JESMINE BEGUM Vs. STATE OF ASSAM

JUDGEMENT

(1.) Both the writ petitioner and the respondent No. 2 are Doctors by profession they were married on 11.5.89 under the provisions of the Special Marriage Act, 1954 and thereafter started living as husband and wife. The marital happiness of the parities however, was short lived as on 4.2.93 the respondent No.2 allegedly married one Smti Banu Afia Rahman again under the provisions of the Special Marriage Act, 1954. The writ petitioner filed a complaint before the appropriate authority of the State contending that while solemnizing the second marriage, the respondent No.2 had made a false statement before the Marriage Officer that he was unmarried and further that the second marriage took place during the validity of the first marriage and as such the respondent No. 2 was guilty of a bigamous marriage which is contrary to the provision of the Rule 26 of the Assam Civil Service (Conduct) Rules, 1965 (hereinafter referred to as the Conduct Rules)

(2.) Thereafter, on 10.10.94 a show cause notice under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1965 was issued to the petitioner asking him to show cause as to why any of the penalties prescribed by the aforesaid Rules should not be inflicted on him for commission of misconduct and violation of the provisions of the Conduct Rules. The aforesaid show cause, it must be noticed was issued on the allegations of the second marriage of the respondent No. 2, the details of which have been noted. The respondent No. 2 showed caused and thereafter on 30.12.95, the disciplinary authority on perusal of the reply of the respondent No. 2, thought it proper to drop the proceeding sought to be initiated against him. Subsequently, on the same facts, a second show cause notice dated 10.2.98 alleging commission of the same misconduct was brought against the writ petitioner. The writ petitioner successfully challenged the aforesaid show cause notice dated 10.2.98 before this Court in CR No.3214/98.The show cause notice dated 10.2.98 was set aside by this Court by order dated 3.1.2002 primarily on the ground that what was attempted by the second show cause dated 10.2.98 was an impermissible review of an earlier closed action. While the matter was resting at that, the writ petitioner i.e. the wife had instituted the present proceeding challenging the order dated 30.12.95 dropping the first show cause notice dated 10.10.94 issued against the respondent No. 2. The somewhat belated challenge made in the present writ petition has been sought to be explained by the writ petitioner by contending that the order-dated 30.12.95 was not brought to her notice at any earlier point of time and she could come to know of the aforesaid order dated 30.12.95 only upon institution of CR No. 3214/98 wherein she was impleaded as a party Respondent.

(3.) While the writ petition continued to remain pending before this Court certain other developments took place which must be noticed. It appears that a third show cause notice was issued to the petitioner on 17.2.2002 in respect of the same subject matter. The respondent No.2, being aggrieved has instituted WP(C) No. 4776/2002 wherein an interim restraint order has been passed by this court halting the process sought to be initiated by the third show cause notice dated 17.2.2002. While the writ petition No. 4776/2002 continues to remain pending even as on date, the subject matter of challenge i.e. the show cause notice dated 17.2.2002, has been dropped by the disciplinary authority by an order dated 3.5.2003 which has been placed before the Court. The aforesaid order dated 3.5.2003 has been passed primarily on the ground that criminal proceedings instituted against the Respondent No. 2 in respect of contracting the alleged bigamous Marriage has, in the meantime, ended in the acquittal of the Respondent No.2. These are the broad features of the case on which this Court has been called upon to decide whether a writ of mandamus should now be issued to the State compelling the State to pursue the matter concerning the second marriage of the petitioner, which took place in the year 1993, by way of a departmental proceeding.