Page No.# 1/13 GAHC010269972025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7131/2025 CN-234 ABUL KALAM AZAD S/O- HURMAT ALI, R/O VILLAGE - PUTLARTARI, P.O. JARABARI, P.S. BARPETA, DISTRICT- BARPETA, ASSAM VERSUS THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY, HOME DEPARTMENT, DISPUR, GUWAHATI-781006. 2:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI- 781007 3:THE INSPECTOR GENERAL OF POLICE (T AND AP) ASSAM ULUBARI GUWAHATI- 781007 4:THE COMMANDANT 28TH ASSAM POLICE BATTALION HOWLY DISTRICT- BARPETA ASSA Advocate for the Petitioner : MR. R ALI, N PERVIN,MR H A AHMED,MR. MUSTAFA HUSSAIN Advocate for the Respondent : GA, ASSAM, Page No.# 2/13 – B E F O R E – HON’BLE MR. JUSTICE SOUMITRA SAIKIA Advocate for the petitioner : Mr. R. Ali, Advocate Advocate for the respondents : Ms. M. Battacharjee, Addl. Sr. Govt. Advocate Date on which judgment is reserved : 23.06.2026 Date of pronouncement of judgment : 14.07.2026 Whether the pronouncement is of the operative part of the judgment? : No. Whether the full judgment has been pronounced? : Yes. JUDGMENT AND ORDER (CAV) Heard Mr. R. Ali, learned counsel for the petitioner. Also heard Ms. M. Bhattacharjee, learned Addl. Senior Government Advocate for the respondents. 2] The petitioner before this Court has assailed the order dated 06.03.2025 passed by the Commandant-cum-Disciplinary Authority, 28th Assam Police Battalion, Howly, Barpeta dismissing the petitioner from service and the order dated 29.07.2025 passed by the Appellate Authority-cum-Inspector General of Police (T&AP) Assam, Ulubari, Guwahati rejecting the appeal filed by the petitioner and upholding the order passed by the Disciplinary Authority dismissing the petitioner from service. The petitioner also seeks a direction to Page No.# 3/13 the respondent authority to reinstate him in service with all consequential service benefits including back wages. 3] The writ petitioner was initially appointed as A.B. Constable and posted at 4th Assam Police Task Force Battalion, Howly vide order dated 10.04.2008. During the course of his service period he was undergone several training and had posted at different places. He had rendered his services with sincerity to the satisfaction of all concerned. 4] The petitioner’s first wife was living separately from the petitioner since 02.09.2019 by leaving behind their minor son and the writ petitioner. The first wife filed a complaint before the Commandant on 16.08.2024 alleging inter alia that she submitted a petition seeking her name to be entered as a nominee in the service record of the writ petitioner. In the said complaint, it was alleged that the first wife of the petitioner got married to the petitioner in the year 2010 and one child has born out of the marriage between the petitioner and the first wife. However, he married another woman in the year 2019 without her consent and from the nominee form and the particulars submitted by the petitioner, the first wife came to know that the name of the second wife is Khalisa Khatun, daughter of Kafiur Rahman. The first wife therefore, alleged that being a Government servant the petitioner cannot marry another woman during the lifetime of his spouse or without a formal divorce from the competent Court of law. 5] On the basis of the complaint, the Commandant-cum-Disciplinary Page No.# 4/13 Authority issued a show cause to the petitioner dated 22.08.2024, whereby the petitioner was called upon to show cause as to why the act of second marriage which tantamount to gross indiscipline and brings bad name to the department shall not render him unfit to remain in service, and asking him to submit his written statement within a period of 10 days. The petitioner thereafter, submitted his written statements denying the charges levelled against him. The departmental authority thereafter, initiated the departmental proceedings against the petitioner being DP.08/2024. An enquiry officer was appointed to complete the enquiry. Upon completion of the enquiry the enquiry officer submitted his report. In conclusion, the enquiry officer held that the delinquent Government servant, namely the writ petitioner had entered into a second marriage without taking proper consent of his first wife and/or without being divorced the second marriage was performed as per Mohammedan law. The enquiry officer therefore, concluded that the charge of gross indiscipline on the part of the petitioner is proved beyond reasonable doubt. The disciplinary authority thereafter, issued another show cause notice on the writ petitioner serving him a copy of the enquiry report and asking him to submit his statement in his defence. As in view of the enquiry report the disciplinary authority was of the view that there is a likelihood of inflicting major penalty on him. The writ petitioner thereafter, submitted his reply to the second show cause notice. However, the respondent authority did not accept the explanations furnished by the petitioner and by the impugned order dated 06.03.2025 the petitioner has been dismissed from service. Being aggrieved, the petitioner filed an appeal before the appellate authority which however, came to be dismissed by order dated 29.07.2025. Page No.# 5/13 6] It is submitted by the learned counsel for the petitioner that the petitioner's first wife had deserted him and his minor son therefore, he had no option but to marry the second wife. Under such circumstances, when the enquiry officer had accepted his explanations, the disciplinary authority ought not to have imposed a major penalty of dismissal from service. In support of his contentions, the learned counsel for the petitioner has referred to the judgment of the Division Bench of this Court that rendered in Writ Appeal No. 357/2022. 7] The respondents have contested the matter by filing their affidavit. The affidavit was filed by the Inspector General of Police. The respondent authority disputed the contentions of the writ petitioner that because of personal and family hardship, the punishment of dismissal is inappropriate. The respondent authority contended that the punishment must commensurate with the gravity of misconduct. 8] It was further submitted by the State Counsel that there is an Office Memorandum dated 20.10.2023 which was issued under the provisions of Rule 26 of the Assam Civil Services (Conduct) Rules, 1965. By the said OM, it was provided that in case of any Government servant contracting another marriage without obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under personal law for that time being in forced then the disciplinary authority may initiate departmental proceedings under the provisions of the Assam Civil Services (Discipline & Appeal) Rules, 1964 for imposition of major penalty including compulsory retirement against those Government Servants found to have violated Rule 26 of the Assam Civil Page No.# 6/13 Services (Conduct) Rules, 1964 and which itself is a gross misconduct on the part of the Government Servant having large bearings on the society. 9] As per the said OM, the disciplinary authorities besides initiating departmental proceedings shall take necessary steps for inflicting legal penal action by the Court of law as per the provisions of law. It is submitted that this particular OM having been issued by the respondent authorities, the department had to initiate the disciplinary proceedings as contemplated under the OM and punishment as required. It is submitted that there is no infirmity in the enquiry proceedings and therefore, there being no merit in the writ petition the same should be dismissed. It is also submitted that the punishment imposed is appropriate and it commensurate the misconduct which has been proved in the enquiry and therefore, does not call for any interference. 10] The learned counsel for the parties have been heard and the pleadings available on record have been carefully perused. 11] The writ petitioner does not challenge the departmental proceedings. The writ petitioner in fact, in his pleadings has admitted the second marriage with Khalisa Khatun on the ground that his first wife deserted the matrimonial home. There is also no quarrel with the fact that the Assam Civil Services (Conduct) Rules prohibit second marriage during the lifetime of the existing spouse. The Government of Assam by OM dated 20.10.2023 has issued instructions with regard to bigamous marriages. The said OM is extracted below: Page No.# 7/13 “GOVERNMENT OF ASSAM DEPARTMENT OF PERSONNEL ::: PERSONNEL (B) DISPUR ::: GUWAHATI-6 No.ABP.122/2023/7 Dated Dispur the 20th October, 2023 OFFICE MEMORANDUM Sub: Bigamous marriages. It is hereby reiterated that as per the provisions of Rule 26 of The Assam Civil Services (Conduct) Rules 1965- “1) No Government servant who has a wife living shall contract another marriage without first obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him. 2) No female Government servant shall marry any person who has a wife living without first obtaining the permission of the Government." In the context of the above provisions, the Disciplinary Authority may initiate immediate Departmental Proceeding under the provision of the Assam Services (Discipline and Appeal) Rules 1964, for imposition of major penalty including compulsory retirement against those Government Servants found to have violated Rule 26 of the Assam Civil Services (Conduct) Rules 1965, which itself is a gross misconduct on the part of a Government Servant having large bearings on the society. The Disciplinary Authorities besides initiating Departmental Proceedings shall also take necessary steps for inflicting legal penal action by the Court of law, as per provisions of law whenever such cases are detected. The above instructions shall come into force with immediate effect and the instructions may be brought to the notice of all concerned. Sd/- Shri. Niraj Verma, IAS Additional Chief Secretary to the Govt. of Assam Personnel Department Мemo No. ABP.122/2023/7-A Dated Dispur the 20th October, 2023 Copy forwarded to: 1. All Additional Chief Secretaries to the Government of Assam, Dispur. 2. The Additional Chief Secretary to the Chief Minister, Assam, Dispur. 3. All Principal Secretaries/Commissioner and Secretaries/Commissioner & Special Secretaries/Secretaries to the Government of Assam. 4. All the Heads of Departments. 5. All District Commissioners. 6. Principal Secretaries, KAAC, Diphu/ Bodoland Territorial Council, Kokrajhar/ Dima Hasao Autonomous Council, Haflong 7. The Secretary, Co-ordination, Office of the Chief Secretary, Assam, Dispur. 8. PS to the Ministers/ Minister of State, Assam, Dispur. 9. The Superintendent, Assam Government Press, Bamunimaidan, Ghy-2l for favour of publication of the above Notification in the extraordinary Assam Gazette and submit 50 (fifty) copies to this Department. By order etc. Joint Secretary to the Govt. of Assam Personnel (B) Department” Page No.# 8/13 12] Since there is no quarrel with the fact that the petitioner entered into a second marriage during subsistence of his marriage with first wife and since they did not challenge essentially to the departmental proceedings initiated or the manner of conducting the departmental proceedings, it is not necessary to embark on these questions as no challenge has been made in the departmental proceedings, save and except the quantum of punishment. 13] A Writ Court is not required to examine the quantum of punishment which is imposed by the authorities unless it sought for any other justifiable reason. The disciplinary authority is best suited to determine the imposition of quantum of punishment. Where the Court finds any lacuna in the departmental proceedings then it is open to the Court to invoke its power of judicial review and pass appropriate orders for interference either with the proceedings and/or with the quantum of punishment imposed. As discussed above, in the present proceedings there is no challenge made to the departmental proceedings by the petitioner. There is no necessity to examine whether the respondent authorities have been able to prove sufficiently the conduct of the second marriage by the writ petitioner inasmuch as it is specifically admitted by the petitioner in the present proceedings. 14] In Trilok Singh Rawat vs. Union of India reported in 2000 (3) GLT 558, in a similar matter the Division Bench of this Court interfered with the order of dismissal and remanded the matter to the disciplinary authority for imposing any other penalty other than the penalty of dismissal. The Division Bench of this Court in The Union of India and Ors. vs. Pranab Kumar Nath in Writ Appeal Page No.# 9/13 No.357/2022 in a similar matter held in the facts of that case that the respondent therein who was the sole bread earner and on whom besides his first wife and second wife, his minor daughter was also dependent. Therefore, the Division Bench held that dismissal from service is the most extreme form of punishment which can be imposed on a Government employee and which has the effect of not only cutting out of the source of income and depriving him and his dependents in the means of sustenance. The Division Bench held that an act of conducting second marriage during the subsistence of the first marriage can be said to be in violation of the Rules and is therefore, an act of indiscipline, it cannot be said that it is one of the most heinous form of misconduct for which the delinquent employee must be necessarily visited with the punishment of dismissal from service. The Division Bench therefore, considered that the imposition of dismissal from service will amount to disproportionately harsh punishment and thereby will interfere with the order of dismissal and dismiss the writ appeal by upholding the order of the learned Single Judge in interfering with the order of dismissal. The relevant paragraphs of the said judgment are extracted below: “7. It is true that Courts while dealing with penalty imposed on a delinquent normally does not interfere with the quantum of punishment, unless it shocks the conscience of the Court. However, there are no clear criteria laid down in this regard to define as to what shocks the conscience of the Court, inasmuch as, it would depend on facts of each case. 8. In the present case what comes from the records is that the writ petitioner has a child from the first marriage who is about 15 years and if the said penalty of dismissal is to be upheld, it will cut off the only source of income not only for him but also for his first wife, her daughter and his second wife. The writ petitioner appears to be the sole bread earner, on whom his first wife, his daughter and his second wife appear to be dependent upon. It can be observed from the records that in course of the inquiry the first wife of the petitioner, Smt. Chandana Nath had made a request to the authority to look after her and her child who would be about 15 years by now, which clearly shows the sense of dependency on the Page No.# 10/13 writ petitioner which she can legitimately demand from her husband. 9. Dismissal is the most extreme form of punishment which can be imposed upon a Government employee, which has the effect of not only cutting off the source of income, thus depriving him and his dependents of the means of sustenance. Apart from it, he will be not eligible for reemployment in a public sector. Thus, the civil consequences it entails are of extreme nature which in our opinion, should not be ordinarily invoked unless the misconduct is of such nature that there is no other option but to impose such a punishment. There can be various other serious misconducts for which this most severe form of punishment can be imposed. 10. In the present case, in our opinion though this act of conducting of second marriage can be said to be an act of indiscipline, inasmuch as, contracting a second marriage during the subsistence of the first marriage was in violation of rules, yet, it cannot be said that it is one of most heinous form of misconducts for which he must be necessarily visited with the punishment of dismissal. The records also do not indicate of any serious physical violence perpetrated upon the first wife or the daughter of the writ petitioner or any other act of cruelty, though there is allegation that the writ petitioner had beaten his first wife and daughter. The writ petitioner appears to have contracted the second marriage on account of not being happy in the marital life with his first wife. 11. Under the circumstances and taking a holistic view of the entire circumstances as reflected in the records, this Court, without condoning the said act of misconduct, is of the view that imposing the punishment of dismissal to the writ petitioner would cause serious economic hardships not only to the petitioner himself but also to his first wife and his daughter and also to the other woman. The punishment of dismissal imposed on the writ petitioner will deprive the family members of financial support and also may drive them to penury. In our opinion devastation which may be caused, more particularly, the financial hardships which may be caused by the penalty imposed to the family members can be one of the parameters for judging as to whether the penalty imposed is disproportionate or shocking. In our view, keeping in mind the misconduct proved, if a lesser penalty could have been also imposed for the same misconduct, the authorities must examine the impact which will have not only to the employee concerned, but also to all of his family members who are entirely dependent on him, before taking the severest and ultimate form of punishment under the rules. 12. Accordingly, for the reasons discussed above, we are of the view that dismissal of the writ petitioner from service in this case will amount to be disproportionately harsh punishment and accordingly, we uphold the order passed by the learned Single Judge in setting aside the order of dismissal, however, for different reasons as discussed above. We accordingly direct that the Disciplinary authority may pass any other lesser penalty on the petitioner other than the penalty of dismissal.” 15] Having examined the judgment pressed into service rendered in Pranab Page No.# 11/13 Kumar Nath (supra) and also Trilok Singh Rawat (supra), it seen that two Division Bench of this Court have held that second marriage entered into by the delinquent Government servant during the subsistence of the first marriage although is an act of indiscipline, the order of dismissal from service being the extreme form of punishment was considered to be disproportionately harsh and accordingly, necessary orders were issued by the Division Bench of this Court. 16] Coming to the facts of the present case it is seen from the pleadings that the first wife had initiated proceedings for payment of maintenance before the competent Court being CR Case No.732 of 2018 and there was an order for payment of maintenance by the competent Court which the learned counsel for the petitioner submits before the Court that he had regularly paid the maintenance till his order of dismissal was passed. It is also the pleaded case of the petitioner that his mother expired due to illness and his minor son was suffering from severe neurological ailments and was treated in AIIMS, Delhi and the father of the petitioner is also suffering from various ailments and the petitioner being the eldest son, there is no other person to look after the minor son of the petitioner and his aged father. In the affidavit filed by the respondents, there is no averment disputing the contentions of the petitioner that he is required to pay maintenance to his first wife under order of the competent Court. While the Office Memorandum dated 20.10.2023 has issued in terms of Rules of the Assam Civil Services (Conduct) Rules, 1965 and necessary proceedings are required to be initiated, the authorities are duty bound to examine each and every case on the facts and circumstances of the case for the imposition of major penalty in the form of dismissal as prescribed under the Rules of 1964. From the orders passed by the disciplinary authority as also by Page No.# 12/13 the appellate authority, there is nothing to indicate that the respondent authorities have examined the case from that perspective and imposed a punishment of dismissal from service for the alleged misconduct of the petitioner for entering into a second marriage during the subsistence of his first marriage. 17] Considering the facts and circumstances urged before this Court and also considering the judgment of the Division Bench in Pranab Kumar Nath (supra) and Trilok Singh Rawat (supra), this Court is of the view that the imposition of punishment of dismissal of the petitioner is disproportionate for more than one reason. Under the provisions of Rule 7 of the Rules of 1964, there are several punishments listed which are major penalties which could have been imposed by the disciplinary authority. There is no discussion in the order of the disciplinary authority and/or the order passed by the appellate authority as to why any other punishment as prescribed under Rule 7 would not be appropriate in the facts and circumstances of this case. The OM dated 20.10.2023 also does not specifically provide for imposition of a penalty such as dismissal from service in cases where an employee is found guilty of contracting a second marriage during the subsistence of the first marriage. Rather, the OM dated 20.10.2023 permits the disciplinary authority to initiate departmental proceedings under the provisions of the Rules of 1964 for imposition of major penalty including compulsory retirement against those Government servants who were found to have violated Rule 26 of the Assam Civil Services (Conduct) Rules, 1965. What is equally necessary to note is that there is competent Court which had directed payment for maintenance to the first wife and which the petitioner claims to have been paid in terms of such orders of the Court. There is no averment in Page No.# 13/13 the affidavit filed by the respondent disputing the same. There is also no discussion in the impugned order of the dismissal passed by the respondent authority and also by the appellate authority as to the consequences that may follow in the event of the petitioner being dismissed from service and as to how the Court's order can be complied by the petitioner in the event he does not receive any salary or pension. Under such circumstances this Court is of the considered view that the imposition of punishment or dismissal from service of the petitioner requires interference and therefore, the matter is remanded back to the concerned authority for imposition of any other major penalty other than dismissal from service keeping in view the order passed by the competent Court towards payment of maintenance to the first wife namely Jesmina Ahmed and which the petitioner claims that he has been making such payments regularly. The respondent authority will examine this matter and pass appropriate orders within a period of 60 days from the date of receipt of the certified copy of this order. 18] This writ petition accordingly stands allowed to the extent indicated above. 19] Pending interlocutory application, if any, is also disposed of. 20] Interim order, if any, stands merged. JUDGE Comparing Assistant