BALIA, J. - (1.) THIS appeal is directed against the judgment of the learned Single Judge dated 5. 12. 2006 allowing S. B. Civil Writ Petition No. 5380/2006 preferred by the respondent.
(2.) THE facts of the case are that the respondent was in the service of the State of Rajasthan and was inducted as Lecturer in the Government College, Dholpur since 1981. Her first appointment was on ad hoc basis. Later on, she was selected by RPSC. While she was posted as Lecturer in Government College, Barmer in 1994, she married Dr. Sangat Singh, who too was working as Lecturer in Government College, Barmer in 1998. By communication dated 9. 10. 2002 the petitioner was called upon to explain the allegation against her that she has contacted marriage with Dr. Sangat Singh, who was already married while his first wife was alive. She replied reminded to this effect also on 25. 10. 2002. The respondent-petitioner submitted in response that she has been knowing Dr. Sangat Singh since about four years before marriage. During this period whenever she has visited the house of Dr. Sangat Singh, she has not found his wife in his house. She was informed by Dr. Sangat Singh that his fist marriage has resulted into divorce before fifteen years and she has no reason to dis- believe said statement. She has not seen his wife at the residence of Dr. Sangat Singh at any time. She was also shown declaration executed by the former wife of Dr. Sangat Singh that they have already dissolved their marriage. It is in the aforesaid circumstances, that when she was proposed by Dr. Sangat Singh she accepted the proposal and marriage took place with bonafide belief that first marriage stood dissolved. She had fully been assured that Dr. Sangat Singh's first marriage has been dissolved. She also made it clear that she has met Dr. Sangat Singh's first wife, who is also staying in Barmer. She met Smt. Bhanwari Devi in the presence of her mother and brother and they clearly told the petitioner that marriage between Smt. Bhanwari Devi and Dr. Sangat Singh had been dissolved and they have no objection to her marriage with Dr. Sangat Singh. In these circumstances, she married Dr. Sangat Singh. This explanation was submitted in writing on 28. 10. 2002. Notwithstanding the aforesaid explanation, charge-sheet was issued under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules,1958 dated 22. 4. 2004 alleging that the petitioner is employed as Lecturer (English) at Government College, Barmer since 11. 1. 1994. During that period the incumbent has married Dr. Sangat Singh, Lecturer (Political Science), who has already married and his first wife was living which is in violation of Rule 25 of the Rajasthan Civil Services (Conduct) Rules, 1971. In the details of the charges while referring to the explanation submitted by the petitioner, it was stated that since under the law the divorce can only be effected through a decree of Court and since the explanation does not refer to any such decree passed by the Competent Court, the act of the petitioner was treated to be in violation of Rule 25 of the Conduct Rules. She stated in her explanation that she married Dr. Sangat Singh on the basis that he was already a divorced person and all surrounding circumstances, which have been referred in detail in the reply suggested that the earlier marriage between Dr. Sangat Singh and his first wife did not exist, a fact which was admitted by Dr. Sangat Singh's wife also and she reiterated that marrying the divorced husband did not result in any violation of Conduct Rules. During the pendency of the enquiry she also reiterated before the enquiry officer after he has ordered to proceed ex-parte that she has submitted a decision of 'rawana Rajput Hitkarini Panchayat Sabha', Barmer dated 5. 1. 1996 stating that the marriage of Dr. Sangat Singh with Smt. Bhanwari Devi has been dissolved as per the customs of Rawana Rajput Hitkarini Panchayat Sabha community which is recognised by the Society and the said customs were recognised by the courts also. She has also requested in the first instance by letter dated 13. 12. 2004 that since Additional Commissioner-Ist has been appointed as enquiry officer she does not want to appear in person and explain. Shortly thereafter in furtherance of this letter she further communicated on 28. 1. 2005 explaining the genesis behind letter dated 13. 12. 2004 wherein she clearly stated in the letter wrote to the Government, that the said Additional Commissioner - enquiry officer has number of times called her on phone and entreated her with proposals which were immodest and he tried to mentally harass her. In these circumstances, she has asked for change of enquiry officer. She clearly stated that because of the conduct of the enquiry officer she had written a letter dated 13. 12. 2004 and she has asked for enquiry to be conducted by an unbiased enquiry officer. Alongwith this letter petitioner simultaneously sent a communication dated 28. 1. 2005 about the existing evidence of customary forms of divorce of Dr. Sangat Singh and wife to the enquiry officer.
(3.) THE petitioner's assertion in her communication dated 28. 1. 2005 explaining her letter dated 13. 12. 2004 were not responded to and enquiry report was submitted on 5. 3. 2005 by the same enquiry officer holding the incumbent guilty of misconduct alleged against her. He has referred to letter dated 13. 12. 2004 to demonstrate the non-cooperation of the petitioner in participating in the enquiry and to buttress his conclusion to proceed ex-parte against the petitioner. However, in the enquiry report nothing was stated about letter dated 13. 1. 2005 addressed to the Government and letter dated 28. 1. 2005 bringing to the notice of enquiry officer existence of customary form of divorce supported by evidence of decision rendered by Rawana Rajput Hitkarini Panchayat Sabha, Barmer and that she has married Dr. Sangat Singh, Lecturer (Political Science), who was already married but his marriage with first wife dissolved. In reply to notice to show cause against the finding of the enquiry officer issued by the disciplinary authority, the petitioner reiterated her stand taken in her response. She also made a request for re- enquiry reiterating the allegations against Additional Commissioner about his unbecoming conduct about which she had already complained vide her letter dated 28. 1. 2005, who was the enquiry officer in the Departmental Enquiry. The disciplinary authority accepted the report of the enquiry officer and passed the order of removal from service. ;