The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WA No.688 of 2021 Khali Charan Jani ..……. Appellant Mr. S. Mallick, Advocate -Versus- State of Orissa & others ..……. Respondents Mr. Manoj Kumar Khuntia, Addl. Government Advocate CORAM: JUSTICE S. TALAPATRA JUSTICE SAVITRI RATHO ORDER 27.07.2023 Order No. 04. 1. 2. This matter is taken up through Hybrid Mode.
Legal Reasoning
Heard Mr. S. Mallick, learned counsel appearing for the appellant. 3. By means of this intra-court appeal, the order dated 19.08.2021 delivered in WPC (OAC) No.3954 of 2013 by the learned Single Judge has been challenged. By the said order dated 19.08.2021, the learned Single Judge has, without entering into the merit, observed that since the appellant did not file the statutory appeal, he does not have any right to maintain a challenge before the State Administrative Tribunal or before this Court under Article-226 of the Constitution of India, the jurisdiction which has been invoked by the appellant. 2 4. Mr. Mallick, learned counsel appearing for the appellant has clearly submitted that the writ petitioner did approach the State Administrative Tribunal previously also on the same subject matter. The first Original Application being O.A. No.2695(C) of 2006 was filed in the year 2006 and the said matter was disposed of, by the order dated 02.08.2012. While disposing the said first Original Application, the State Administrative Tribunal had observed that second marriage is not permissible without specific permission of the Government, if the customs permit the same. It had been further observed that the applicant [the appellant herein] had violated the Government Servants Conduct Rules and therefore, he did not deserve to continue in the service as he had admittedly married for the second time while his first wife was alive and the proceeding of inquiry was initiated on the complaint of his wife. 5. However, on that count, the said Original Application was not
Decision
decided or disposed of. It had been observed in the latter part of the said order that the petitioner should be given a reasonable opportunity to lead his evidence if he is inclined to repel the allegations made in the said complaint filed by his wife. Accordingly, the matter was remitted to the disciplinary authority for fresh inquiry into the matter after affording reasonable opportunity to the petitioner (the appellant 3 herein). Thereafter, the disciplinary authority, by the order dated 22.11.2013 has observed that the report of the inquiring authority dated 14.08.2013, Annexure-9 to this petition, has been framed after providing fair and reasonable opportunity to the petitioner. It has been observed further as follows: “Hence after analysis of the evidence on record and due application of mind, I agree with the finding of the Enquiring Officer vide Annexure-2 as the charged Constable violated the Rule-24 of the Odisha Government Servants Conduct Rules, 1959 which prohibits Government Servants to meet for the second time in case his spouse is living. As such, he has violated the Rule for the second time even though his first wife is alive and he has not divorced her.” 6. Mr. Mallick, learned counsel having referred to the inquiry report dated 14.08.2013, Annexure-9, has contended that even the inquiring authority has observed that the delinquent Constable had married first one Kanchan Jani and from that marriage, they had two sons. According to the appellant, he had divorced his first wife in the village panch in the year 1997. The appellant clearly admits that he had married one Kumudini Devi in the year 1999. 7. It is apparent from the report of inquiry that the inquiring authority unequivocally observed that the delinquent Constable belongs to Soura caste. In that community, the bigamy is not practiced. A man can keep second wife only when the first wife is dead or divorced. The element of divorce has not been believed by the 4 disciplinary authority inasmuch as no evidence was led by the delinquent Constable. 8. On the finding of the learned Single Judge regarding existence of alternative remedy, Mr. Mallick, learned counsel has relied on a decision in Kanak (Smt) and another vs. U.P. Avas Evam Vikas Parishad and others: (2003) 7 SCC 693 where the apex court has held as follows: “Furthermore, this writ petition was entertained. The appellants herein filed a counter-affidavit. The matter was argued on merit and in that view of the matter it is too late in the day to contend that the respondent herein should have availed of the alternative remedy.” 9. As a measure of restating the law, the apex court has referred to L. Hirday Narain vs. ITO: (1970) 2 SCC 355, where the law has been laid down in the following terms: “We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income Tax Officer under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits.” 10. Mr. Mallick, learned counsel has further contended that since 2006, the petitioner has been pursuing the matter and hence, the learned Single Judge was not correct in dismissing the writ petition on the solitary ground that there was alternative remedy of appeal and the 5 appellant did not pursue that remedy. We find sufficient force in the submission of Mr. Mallick, learned counsel. After a long pendency of the lis, this kind of disposal frustrates the end of substantive justice. The constitutional Courts are expected to scuttle the litigation on the ground of maintainability at the threshold, as far as practicable, to avert casualty of justice. 11. Mr. Manoj Kumar Khuntia, learned Addl. Government Advocate appearing for the respondents has not expressed any reservation to the proposition of taking up the appeal for disposal on merit at this stage. 12. We have heard Mr. Mallick, learned counsel at length. We have also perused the inquiry report dated 14.08.2013, Annexure-9, where the appellant has been held to be belonging to Soura community. According to Mr. Mallick, Soura community is a recognized Scheduled Tribe in the State of Odisha. But there is no such evidence, even the copy of the Presidential Order has not been brought on records. The State did not accede to the claim of status of the appellant as a member of the Scheduled Tribe (ST) community. Even, there is no challenge against the said observation of the inquiring authority in the Original Application. For abolition of the State Administrative Tribunal, the original application has been 6 adjudicated by the learned Single Judge. There is no material on records that the practice of bigamy is prevalent in the said Community. On the contrary, the Inquiring Authority has observed categorically that practice of bigamy is not prevalent in Soura community. 13. Mr. Mallick, learned counsel has relentlessly argued that since the divorce was made according to the community practice, that should be treated as the valid divorce. In that case, the appellant cannot be charged of bigamy. 14. We are constrained to observe that no material regarding the customs or any evidence regarding the community decision was placed before the inquiring authority or in the proceeding, germane to the instant appeal. Thus, we do not find any infirmity in the final order dated 22.11.2013, Annexure-12 to the writ petition. As such, though we set-aside the order of the learned Single Judge dated 13.08.2021 holding that the order of dismissal on maintainability ought not to have been passed after long years of pendency, but on merit, for the aforesaid reasons, we dismiss the writ petition. 15. In the result, the appeal stands dismissed. 16. At the fag end, Mr. Mallick, learned counsel has raised the plea that the punishment is disproportionate. 7 17. We do not think that this is a case of such category where we should exercise our discretion for directing the disciplinary authority to reconsider the proportionality of penalty. 18. No order as to costs. (S. Talapatra) Judge (Savitri Ratho) Judge Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. I/C Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 07-Aug-2023 12:17:52