Mahesh Chandra Tripathi, J.Aneeta Yadav is before this Court assailing the impugned dismissal order dated 20.6.2014; appellate order dated 8.9.2014 and revisional order dated 27.1.2015 passed by the respondent nos. 5, 4 and 3 respectively. She has further prayed for direction commanding the respondent authorities to reinstate her services treating continuous in service with all consequential benefits and to pay her regular salary month to month as and when it falls due.

2. Record in question reflects that the petitioner was appointed on 15.3.1994 on the post of Constable in U.P. Police Department and since then, she was continuously working on the post in question with full satisfaction of her superior officers. She has completed more than 20 years of her services and work and conduct of the petitioner was always appreciated by her superior authorities. An anonymous complaint was made that the petitioner had solemnized marriage to Shri Brijesh Kumar Yadav, who had already married with Smt. Kusma Devi and they have four children and on the said complaint, an enquiry was conducted by Shri Anil Kumar, Circle Officer, Derapur, Kanpur Dehat and the report was submitted before the Superintendent of Police, Kanpur Dehat on 24.11.2009. The copy of the complaint was not served upon the petitioner at any point of time. Thereafter punishment of adverse entry has been awarded to Shri Brijesh Kumar Yadav, husband of the petitioner by order dated 28.6.2011.

3. Thereafter another preliminary enquiry was conducted by Shri Rajesh Dwivedi, Circle Officer, Akbarpur, District Kanpur Dehat, and the report was submitted on 18.9.2012. A departmental enquiry was initiated against the petitioner under Rule 14 (1) of U.P. Police Officers of Subordinate Ranks (Punishment and Apepal) Rules, 1991 and a charge sheet was issued to her on 14.11.2013. The petitioner submitted her reply against the charge sheet, denying the allegations made against her. The enquiry officer submitted his report dated 5.3.2014 in which the petitioner was found guilty. The respondent no.5 issued a show cause notice to the petitioner on 12.3.2014 to which she submitted her reply on 28.5.2014. By the impugned order dated 20.6.2014 the petitioner was dismissed from service on the ground that she had solemnized marriage to Shri Brijesh Kumar Yadav, who had already married with Smt. Kusma Devi and has four children. Without seeking permission from the department, the petitioner solemnized the marriage to Shri Brijesh Kumar Yadav, who has already married and his wife is alive, and therefore, the act of the petitioner comes under purview of Section 29 (2) of U.P. Government Servant Conduct Rules, 1956 (in short, 1956 Rules). Against the dismissal order the petitioner filed an appeal on 11.7.2014 and supplementary appeal on 21.7.2014 and the said appeal was dismissed on 8.9.2014 by respondent no.4. Thereafter, the petitioner filed a revision on 27.7.2014 before the revisional authority and the said revision was dismissed on 27.1.2015.

4. Shri Vijay Gautam, learned counsel for the petitioner submits that the petitioner solemnized the marriage on 20.5.1995 to Shri Brijesh Kumar Yadav and at that time, she has no knowledge that Shri Brijesh Kumar Yadav was married person and his wife is alive and they have four children, and therefore, the petitioner has not committed any misconduct. The husband of the petitioner, who is also serving as Constable in Civil Police, has been awarded censure entry whereas the petitioner being a lady Constable has been awarded harsh punishment and she has been dismissed from service. He has placed reliance on the judgement passed by this Court in Shravan Kumar Panday v. State of UP and others, (2010) 8 ADJ 243 in which on the ground of plurality of marriage, the dismissal order has been passed in pursuance of Rule 29 of 1956 Rules and this Court, while allowing the writ petition, had directed for minor punishment with following observations:-

"10. I have considered the submissions of the parties and perused the record. As well as the rule which clearly gives an indication that whoever contravenes the provisions contained in Rule 29 (1) and (2) shall be awarded with minor penalty. In the present case awarding a punishment of dismissal that is admittedly a major punishment is certainly against the letter and spirit of Rule 29. In Gaya Deens case (Supra), I have already taken a view after due consideration of the judgment of 1997 A.L.J. Page 1714, Paras Nath Pandey v. Assistant Director of Training and Employment, U.P. Lucknow that rule does not provide major punishment.

11. In view of the aforesaid fact and submissions as well as the decisions , I am of view that the order of dismissal dated 30.11.2009 cannot be sustained and is liable to be quashed.

12. The writ petition is allowed. The order dated 30.11.2009 is hereby quashed and the petitioner be reinstated in the service forthwith with all consequential benefit. However, it will be open to the respondents to award any minor punishment against the petitioner if they think proper in the facts and circumstances of the case and that too after affording full opportunity to the petitioner."

5. Shri Vijay Gautam, learned counsel for the petitioner states that being a lady Constable in police department, the petitioner has rendered more than 20 years satisfactory service and at the time of his marriage, she has no knowledge that her husband was already married and he has living wife and she has not committed any misconduct and as such, the present proceedings would not be attracted under Rule 29 (1) and (2) of 1956 Rules. He submits that even though for the sake of acceptance, she is liable to be awarded minor punishment. He has also placed reliance on the judgements of this Court in Smt. Rajbala Sharma v. State of UP and ors 2009 (7) ADJ 97 in which it was held in paras 12 to 20 as follows:-

"12. Here is a case of a widow of a police personnel who was given compassionate appointment on the death of her husband in harness on 10.2.92. At the time of the death of her husband, the petitioner had two minor children to maintain. She was given compassionate appointment on 21.11.92 on the post of constable (m). It is evident from record that the petitioner was subsequently promoted on the higher post of Assistant Sub Inspector of Police (m). This shows that her work, conduct and performance in the services had remained satisfactory. It was natural for a young widow like the petitioner to get attracted to a colleague working in the same department. Both were in the ministerial establishment working in the same office. The love is blind. It also appears from the record that Sri Ajeet Singh was supporting his senior colleague Smt. Raj Bali Sharma and her children in the time of need. It is borne out from the record that Sri Ajeet Singh was providing mental and other support to the petitioner and her children to carry on in life at a small city, i.e., Bulandshahr. In peculiar circumstance in which the widow police personnel was living, it was natural for her to be attracted to a supportive man. Like in garden a creeper (Lata, vallarre) needs a strong support to climb up and sustain itself, a woman also may need a support who could stand with her facing the life garden in hard times. Even a small stream needs support of its banks,strong hills rocks to proceed further in the process to transform itself into a big mighty river.

13. As far as petitioners statement is concerned , she has demonstrated that she had no knowledge about the first marriage of Sri Ajeet Singh. As far as the offence of remarriage (as per section 494 IPC) is concerned, in the present case the petitioner Smt. Raj Bala Sharma had married after the death of her first husband. Section 494 I.P.C. deals with a person who had a husband or wife living. This charge cannot be fastened on Smt. Raj Bala Sharma, petitioner. There is substance in the submission of the learned counsel for the petitioner that according to section 17 of Hindu Marriage Act, no marriage between two Hindus could be solemnised if one of them has a husband or wife living. If such marriage is solemnised after the commencement of this Act it would be null and void. The provisions of section 494 and 495 IPC shall apply in such cases. Applying this law, the marriage of the petitioner with Sri Ajeet Singh was null and void under law and no punishment could be awarded against her under section 29 of the U.P. Govt. Servant Conduct Rules, 1956. As per section 11 read with section 5 of the Hindu Marriage Act, 1955, the marriage may be held as void. The petitioners case cannot be dealt with under rule 29 of the U.P. Govt. Servant Conduct Rules, 1956. Sri Ajeet Singh had given in writing to the Enquiry Officer that he had not informed the petitioner regarding her earlier marriage. The petitioner appears to be innocent in the present case.

14. In Rule 29 of the U.P. Govt. Servant Conduct Rules, 1956, the main thrust has been given on the term " without obtaining prior permission of the government". In this case the petitioner has not been charged for this misconduct. She has been charged only for remarriage and not for charge of not obtaining the permission of the government. Neither there was such accusation against the petitioner nor it was found proved.

15. This Court has read the provisions contained in rule 29 of the U.P. Govt. Servant Conduct Rules, 1956. It has been provided in these rules that whoever contravenes the provisions contained in rule 29(1)&(2) shall be awarded with a minor penalty. In the present case, the awarding of punishment of dismissal is certainly against the letter and spirit of rule 29 itself. The major penalty ought not to have been awarded against the petitioner applying the rule 29(1)(2)(3) of the U.P. Govt. Servant Conduct Rules, 1956.

16. This Court has also taken note of the fact that the work, conduct and performance of the petitioner has remained satisfactory. The petitioners alleged marriage with Sri Ajeet Singh did not in any manner interfere with or obstruct her official duties. She was promoted from the post of constable to S.I. (M) and was posted at Bulandshahar. There is nothing on the record to show that her work, conduct and performance was not up to the mark. Even otherwise her living with Sri Ajeet Singh or having intimate relation could not be branded as an offence committed by her as it has come on record that she was not aware of earlier marriage of Sri Ajeet Singh and she being widow could have performed remarriage with a colleague or a man of her choice.

17. Learned counsel for the petitioner has also submitted that the petitioner as well as Sri Ajeet Singh both have been dismissed from service and none of them have any other means to sustain their families . Both of them are immensely suffering due to issuance of dismissal order. The education and upbringing of the children is also suffering.

18. This Court has also noted that as a result of dismissal from service, the petitioner, a widow has immensely suffered, as submitted by the learned counsel for the petitioner. It may be hard for her to sustain herself and her two children in life. Her daughter is of marriageable age and both the children have to be settled in life. Considering the subject matter of accusation, misconduct committed by the widow, it was not appropriate to throw her out of employment, dismiss her from services rendering her unfit for future employment.

19. This Court has also taken note of two decisions of this Court in which similar controversy has been set at rest. In 1997 All.L.J 1714 (Supra), this Court has held that no major penalty could be awarded to a Government servant on contravention of provisions contained in rule 29 of the U.P. Govt. Servant Conduct Rules, 1956. Only a minor penalty as indicated in the rules could have been imposed. The punishment of dismissal in the present case is not proportionate to the charges levelled against the petitioner. The misconduct which has been imputed to the petitioner is not in any manner affecting the discharge of her official duty. No such finding has been recorded by the competent authority in this regard. The punishment of dismissal from service awarded to the petitioner appears to be harsh and it does not commensurate to the gravity of charge proved against her. The petitioners case is squarely covered by the above said decision of this Court as well as in the light of the decision rendered by Honble Apex Court in the case of Ranjit Thakur v. Union of India ( AIR 1987 SC 2386 [LQ/SC/1987/698] ) and other cases cited in the aforementioned judgment of this Court.

20. In view of the above discussion, the petition succeeds and is allowed. The order of impugned dismissal of the petitioner dated 13.1.2006 and the orders passed in the appeal and revision dated 19.3.2006 and 12.4.2007 respectively are quashed. Since the order of dismissal has been quashed by this Court, the petitioner is entitled for reinstatement. The respondents are directed to reinstate the petitioner in service within one month from the date of filing of a copy of this order by the petitioner before the authority concerned. It is further observed that it shall be open to the appropriate authority to award only other minor penalty against the petitioner as provided in sub rule (3) of rule 29 of the U.P. Govt. Servant Conduct Rules, 1956 if the charges are proved. All the consequences shall follow.

The petitioner shall be treated to have remained in service with all the consequential benefits of such service.

No order as to cost."

6. Learned Standing Counsel, on the other hand, has vehemently opposed the writ petition on the ground that as per provisions contained in Rule 29 of 1956 Rules, second marriage is impermissible and in the present matter, once it has been accepted by the petitioner, that her husband was already married and he has living wife and four children, then no leniency is required in the matter and the writ petition is liable to be dismissed. He has also placed his reliance on the judgement passed by this Court in Writ A No.36738/2008 (Khursheed Ahmad Khan v. State of UP and ors) decided on 1.3.2011 in support of his submission.

7. Heard rival submission and perused the record.

8. This much is admitted situation that the petitioner was appointed in the police department in the year 1994 and she has discharged her duties with utmost satisfaction in the police department for more than 20 years. By the impugned order, she has been dismissed from service on the ground that she has solemnized marriage to Shri Brijesh Kumar Yadav, who had already married with Smt. Kusma Devi and they have four children. The petitioner has no knowledge regarding the second marriage of her husband at the time of solemnization of the marriage and at this belated stage, the punishment of dismissal from service is too harsh and disproportionate to the conduct of the petitioner.

9. The petitioner had no knowledge about the first marriage of Sri Brijesh Kumar Yadav. Section 494 of Indian Penal Code deals with a person, who had a husband or wife living. This charge cannot be fastened on the petitioner. There is substance in the submission of the learned counsel for the petitioner that according to Section 17 of Hindu Marriage Act, no marriage between two Hindus could be solemnized, if one of them has a husband or wife living. If such marriage is solemnized after the commencement of this Act it would be null and void. The provisions of Sections 494 and 495, I.P.C. shall apply in such cases. Applying this law, the marriage of the petitioner with Sri Brijesh Kumar Yadav was null and void under law and no punishment could be awarded against her under Section 29 of 1956 Rules. As per Section 11 read with Section 5 of the Hindu Marriage Act, 1955, the marriage may be held as void. The petitioners case cannot be dealt with under Rule 29 of 1856 Rules.

10. The Court has also perused the judgement rendered by this Court in Khursheed Ahmand Khans case (supra) and find that the fact of the said case is entirely different to the present case and the same would not be applicable under the present facts and circumstances of the case.

11. In the present matter, it is admitted situation that the husband of the petitioner, who is also Constable in the police department, has been awarded punishment of only censure entry and as such, keeping into consideration the judgement rendered in Shravan Kumar Pandeys case (supra), this Court is of the opinion that the impugned orders cannot be sustained and are accordingly set aside.

12. The writ petition is allowed and the respondents are directed to reinstate the petitioner in the service forthwith with all consequential benefits. However, it will be open to the respondents to award any minor punishment against the petitioner, if they think proper in the facts and circumstances of the case and that too after affording full opportunity of hearing to the petitioner.