http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

CASE NO.:

Appeal (civil) 5185 of 2001

PETITIONER:

M.M. MALHOTRA

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT: 04/10/2005

BENCH:

ARIJIT PASAYAT & H.K. SEMA

JUDGMENT:

JUDGMENT

ARIJIT PASAYAT, J.

Appellant calls in question legality of the judgment rendered by a Division

Bench of the Bombay High Court (Nagpur Bench) dismissing the writ petition

filed by him holding that the order of compulsory retirement passed by the

authorities was in order.

The background facts leading to the passing of the order of compulsory

retirement are as under:-

Appellant was appointed to the permanent Commission as a Pilot Officer in

the Logistics Branch of Indian Air Force on 14.4.1973. Prior to his posting

at Nagpur vide order dated 17.11.1990 he was posted at Trivandrum since

28.10.1987. During tenure of his service in the Indian Air Force, the

appellant was posted at Leh in Laddakh, Nal in Rajasthan and few other

places.

Appellant was married to Mrs. Roopa Malhotra on 19.10.1973 as per Hindu

rites. The marriage was also registered with the Registrar of Marriage on

5.9.1974. On 21.3.1992, Mrs. Roopa Malhotra lodged a complaint with the

then Chief of the Air Staff against mis-deeds of the appellant and prayed

for maintenance as well as appropriate action against him. In the said

complaint Mrs. Roopa Malhotra (described for convenience as `complainant')

stated that in the year 1990, she came to know that the appellant had

developed illicit relations with one Miss Anna Suja John when he was posted

at Trivandrum. She strongly objected to their illicit relations and on

account of that, the appellant started torturing her brutally. The

appellant was posted at Nagpur on 12.11.1990. The complainant also came to

Nagpur from Ambala and started residing with the appellant at Nagpur. Since

1991, appellant started asking complainant for mutual divorce. However, she

did not agree for the same. The appellant started beating her brutally and

torturing her mercilessly because of Miss Anna Suja John. It was further

stated in the complaint that in the year 1991 itself, Miss Anna Suja John

came to Nagpur and started staying with the appellant and complainant Mrs.

Roopa Malhotra at their residence at Nagpur. The complainant strongly

objected to this and requested the appellant not to have any relationship

with Miss Anna Suja John and told her to leave Nagpur. When complainant

could not bear the torture, she sought an interview with the then Air

Marshal I.G. Krishna, HQ Maintenance Command, Indian Air Force and narrated

her plight to him. Younger brother of the appellant came to Nagpur and told

the complainant that if she files a complaint against her husband, his

career would be spoiled. He also promised that Miss Anna Suja John would go

back to Kerala. However, it was noticed by the complainant that the

situation did not improve and appellant continued his illicit relations

with the other woman i.e. Miss Anna Suja John. When the complainant had

gone to Kanpur she saw Miss Anna Suja John with her child residing in the

parental house of the appellant at Kanpur. At that time, she realized that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

she had been cheated by the appellant as well as his brother. The appellant

abused the complainant in front of Miss Anna Suja John in filthy language.

When they were at Kanpur, appellant and Miss Anna Suja John used to sleep

in one room and complainant was asked to sleep in another room. At Kanpur,

the appellant told the complainant that he and Miss Anna Suja John are

married. While they were at Kanpur, appellant and Miss Anna Suja John were

behaving as husband and wife and going to hotels and various other places

together. The same thing continued at Nagpur. The complainant tried her

best to keep her nineteen years' old marriage intact. However, it became

impossible for the complainant to survive in that situation. The appellant

stopped providing her basic amenities, which are necessary for survival of

an individual. The appellant in spite of being allotted official residence

in Vayu Sena Nagar, Nagpur started residing in rented accommodation in

Nagpur along with Miss Anna Suja John as husband and wife. The physical and

mental torture continued to increase alarmingly and life of the complainant

became hell and, therefore, she was constrained to file the above referred

complaint.

On the basis of the said complaint, on or about 8.4.1992, the Court of

Enquiry was initiated against the appellant by the concerned authority.

During pendency of the enquiry, a detailed statement of complainant-Mrs.

Roopa Malhotra was recorded by the Enquiry Officer in which she gave minute

details and sequence of events and under what circumstances she was

constrained to file the complaint dated 21.3.1992 to the Chief of Air

Staff. The Enquiry Officer also examined Shri V.K. Grover, Wing Commander

as an independent witness, who was also asked to conduct investigation

regarding allegations made by complainant Mrs. Roopa Malhotra against the

appellant. The report in this regard was submitted by Shri Grover. The

appellant had also taken part in the Court of Enquiry.

After conclusion of the Court of Enquiry on 22.5.1993, entire material

along with reports was forwarded to the Chief of the Air Staff and after

considering these reports, Chief of the Air Staff was of the opinion that

trial of the Officer by the Court Martial is inexpedient, but retention of

such Officer in service is undesirable and, therefore, show-cause notice

dated 10.9.1992 was issued to the appellant by which he was called upon to

show-cause as to why he should not be dismissed/removed from service under

Section 19 of the Air Force Act, 1950 (in short the `Act') read with Rule

16 of the Air Force Rules, 1969. The charges levelled in the show-cause

notice against the appellant on the basis of which proposed action was

contemplated are as follows:

(i) illicit relations of appellant with Miss Anna Suja John and ill-

treatment meted out and criminal force used by the appellant to complainant

Mrs. Roopa Malhotra as per complaint dated 21.3.1992;

(ii) the appellant had contracted "plural marriage" with Miss Anna Suja

John, which is contrary to para 578 of the Regulations for the Air Force

(Revised Edition), 1964, and birth of a child out of the said illegal

wedlock;

(iii) though appellant was posted at Nagpur with effect from 12.11.1990 and

was allotted an official accommodation at House No.95/2, instead of staying

with the family in the said accommodation, he had taken on rent of rupees

two thousand one hundred per month a house `Ram Raksha' at N-5 Lakshmi

Nagar, Nagpur and was staying with said Miss Anna Suja John as husband and

wife;

(iv) when appellant's legally wedded wife Mrs. Roopa Malhotra objected to

his behaviour, appellant used criminal force on her by slapping, kicking

and beating her on numerous occasions. The appellant had also demanded

mutual divorce and on refusal by her to agree to the same, appellant

physically and mentally tortured her, deprived her of basic amenities and

refused to give her sufficient subsistence allowance for her survival and

the behaviour and conduct of the appellant was most unbecoming of an Air

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

Force Officer.

The appellant submitted his reply and requested to keep the show-cause in

abeyance in view of clause 578(g) of the Regulations of Air Force (Revised

Edition), 1964 and further requested for grant of time to file reply. Time

was prayed for till 21.11.1992. In his letter dated 22.12.1992, allegations

of malafide were made against the then Air Chief Marshal Shri N.C. Suri as

being instrumental for issuing show-cause notice dated 10.9.1992. In the

communication it was indicated that Mrs. Roopa Malhotra @ Ruby Basu had

filed written statement on 1.10.1992 in Regular Civil Suit no.887/1992

filed by the appellant wherein she had stated that she was already married

to one D.J. Basu, her husband. The marriage was subsisting at the time when

she married the appellant. It is to be noted that the said suit was filed

by the appellant in the Court of Civil Judge, Senior Division, Nagpur,

inter alia, for a declaration that defendant Roopa was not his wife as her

spouse was living on the date they started living as husband and wife. Suit

was decreed on 19.6.1993. It was appellant's stand that in view of the said

statement he should not be required to submit his explanation in view of

Rule 16(4) of the Rules. The enquiry continued and after a certain stage

appellant did not effectively participate. On consideration of materials,

it was observed that there was irrefutable evidence of plural marriage and

disgraceful conduct of not only sleeping with Miss Anna in the presence of

his legally wedded wife, but also use of criminal force against his wife.

Reference note was submitted to Ministry of Defence. Finally, the order of

compulsory retirement was passed. Same was challenged before the Bombay

High Court, Nagpur Bench. The High Court noted that the letter dated

22.12.1992 written by the appellant was totally silent in regard to the

name of the person who filed regular civil suit no.887/1992, against whom

suit was filed, the purpose for which the suit was filed and relief sought

in the suit. The appellant submitted that there was no plural marriage as

so-called marriage was non existent in the eyes of law. Since there was no

valid marriage at the first instance the question of plural marriage did

not arise. The High Court did not find any substance in the plea and held

that the conduct of the appellant was unbecoming of a member of the

disciplined force like Air Force. It was held that he was guilty of act

which is prejudicial to the good order and discipline in the Air Force. In

any event it was felt that the conduct of the appellant was certainly

deplorable and the order of compulsory retirement as passed did not suffer

from any infirmity.

In support of the appeal, appellant who appeared in-person submitted that

the decree passed by the competent court holding that the marriage of Ruby

Basu @ Roopa Malhotra with Mr. D.J. Basu was in existence when the

appellant purportedly entered into marital ties with so-called Roopa

Malhotra. That being so, there was no marriage in the eyes of law. Once a

marriage is declared void it related back to the date of marriage. Further

no reason was indicated as to why court martial was not held. No fair

opportunity was granted. Certain pages which have been utilized for the

purpose of finding the appellant guilty were not signed by him as they were

not recorded at the relevant point of time. The appellant had objected to

the manner in which the proceedings were conducted. Reliance was placed on

Rule 16 of the Rules. It was further submitted that if the allegations of

plural marriage fail, the foundation on which the order of compulsory

retirement was passed loses its base and, therefore, the High Court was not

justified in its conclusion.

In response, learned counsel for the Union of India submitted that the High

Court's judgment highlights various facts which clearly show that the

continuance of the appellant in the Air Force would be detrimental to the

interest of the force, his acts were clearly unbecoming of a member for

disciplined force and, therefore, the High Court's judgment does not

warrant any interference.

We shall first deal with the question as to whether there was a plural

marriage. The factual scenario is very confusing. It was Roopa Malhotra who

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

alleged that during the subsistence of the appellant's marriage with her he

had conducted another marriage with Miss Anna Suja John. But the fact

remains that there is a decision rendered by a competent jurisdiction to

the effect that the marriage of Ruby Basu @ Roopa Malhotra was subsisting

at the time when the appellant undisputedly married her. Nobody has

questioned correctness of the said decision.

For appreciating the status of a Hindu woman marrying a Hindu male with a

living spouse some of the provisions of the Hindu Marriage Act. 1955

(hereinafter referred to as the `Marriage Act') have to be examined.

Section 11 of the Marriage Act declares such a marriage as null and void in

the following terms:

11. Void marriages. - Any marriage solemnized after the commencement of

this Act shall be null and void and may, on a petition presented by either

party thereto against the other party, be so declared by a decree of

nullity if it contravenes any one of the conditions specified in clauses

(i), (iv) and (v) of Section 5".

Clause (i) of Section 5 lays down, for a lawful marriage, the necessary

condition that neither party should have a spouse living at the time of the

marriage. A marriage in contravention of this condition, therefore, is null

and void. By reason of the overriding effect of the Marriage Act as

mentioned in section 4, no aid can be taken of the earlier Hindu law or any

custom or usage as a part of that law inconsistent with any provision of

the Act. So far as Section 12 is concerned, it is confined to other

categories of marriages and is not applicable to one solemnised in

violation of Section 5(i) of the Act. Sub-section (2) of Section 12 puts

further restrictions on such a right. The cases covered by this section are

not void ab initio, and unless all the conditions mentioned therein are

fulfilled and the aggrieved party exercises the right to avoid it, the same

continues to be effective. The marriages covered by Section 11 are void

ipso jure, that is, void from the very inception, and have to be ignored as

not existing in law at all if and when such a question arises. Although the

section permits a formal declaration to be made on the presentation of a

petition, it is not essential to obtain in advance such a formal

declaration from a court in a proceeding specifically commenced for the

purpose. The provisions of Section 16, which is quoted below, also throw

light on this aspect :

16. Legitimacy of children of void and voidable marriages:-

(1) Notwithstanding that a marriage is null and void under Section 11, any

child of such marriage who would have been legitimate if the marriage had

been valid, shall be legitimate, whether such child is born before or after

the commencement of Marriage Laws (Amendment) Act, 1976 (68 of 1976), and

whether or not a decree of nullity is granted in respect of that marriage

under this Act and whether or not the marriage is held to be void otherwise

than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage

under Section 12, any child begotten or conceived before the decree is

made, who would have been the legitimate child of the parties to the

marriage if at the date of the decree it had been dissolved instead of

being annulled, shall be deemed to be their legitimate child

notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be

construed as conferring upon any child of a marriage which is null and void

or which is annulled by a decree of nullity under Section 12, any rights in

or to the property of any person, other than the parents, in any case

where, but for the passing of this Act, such child would have been

incapable of possessing or acquiring any such rights by reason of his not

being the legitimate child of his parents.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

Sub-section (1), by using the words underlined above clearly implies that a

void marriage can be held to be so without a prior formal declaration by a

court in a proceeding. While dealing with cases covered by Section 12, sub-

section (2) refers to a decree of nullity as an essential condition and

sub-section (3) prominently brings out the basic difference in the

character of void and voidable marriages as covered respectively by

Sections 11 and 12. It is also to be seen that while the legislature has

considered it advisable to uphold the legitimacy of the paternity of a

child born out of a void marriage, it has not extended a similar protection

in respect of the mother of the child. The marriage of the appellant must,

therefore, be treated as null and void from its very inception.

The above position was highlighted in Smt. Yamunabai Anantrao Adhav v.

Anantro Shivram Adhav and Anr., (AIR) 1988 SC 644.

The effect of the decree passed is that the marriage with Roopa Malhotra @

Ruby Basu was void and, therefore, there was no marriage in the eyes of

law. That being so, the appellant's subsequent marriage with Miss Anna Suja

John cannot be said to be case of plural marriage. To that extent the

appellant is right in his submission that the case of "plural marriage" has

not been established. But that is not the end of the matter. Even if it is

so, his so-called marriage with Roopa Malhotra was void. Obviously,

therefore, he was staying with Roopa who was not his wife as husband and

wife. If marriage with Miss Anna Suja John was not a case of plural

marriage in view of the subsisting marriage of Ruby Basu @ Roopa Malhotra

then also question has been rightly raised by the learned counsel for the

respondents about the moral conduct of the appellant in living as husband

and wife with some other spouse during subsistence of Roopa @ Ruby's

marriage. The decision to order compulsory retirement was taken

additionally for acts involving moral turpitude. The High Court has

highlighted several aspects as to how the appellant was treating Roopa

Malhotra with cruelty and torturing her. It has highlighted as to how such

acts were prejudicial to good order and air force discipline. Use of

criminal force against a woman is an act unbecoming of an officer and is an

offence under Section 45 of the Act. The said provision reads as follows:

"45. Unbecoming Conduct: Any Officer or Warrant Officer who behaves in a

manner unbecoming his position and a character expected from him shall, on

conviction by court-martial, if he is an officer, be liable to be cashiered

or to suffer such less punishment as is in this Act mentioned; and if he is

a Warrant Officer, be liable to be dismissed or to suffer such less

punishment as is in this Act mentioned."

Section 46 enumerates certain forms of disgraceful conduct. It reads as

under:

"46. Certain forms of disgraceful conduct - Any person subject to this Act

who commits any of the following offences, that is to say, -

(a) is guilty of any disgraceful conduct of a cruel, indecent or

unnatural kind; or

(b) malingers, or feigns, or produces disease or infirmity in himself,

or intentionally delays his cure or aggravates his disease or infirmity; or

(c) with intent to render himself or any other person unfit for

service, voluntarily causes hurt to himself or that person;

shall, on conviction by court-martial, be liable to suffer imprisonment for

a term which may extend to seven years or such less punishment as is in

this Act mentioned."

Under the Scheme of the Act, and the Rules any act of misconduct of an

officer involving moral turpitude and/or amounting to offence can be dealt

with in two ways. It can be by way of disciplinary action i.e. Summary

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

Disposal of Charges and Court-Martial or administratively under Sections 18

and 19 of the Act. While dealing with the matter under Section 19 of the

Act, the procedure contained in the Rule 16 of the Rules has to be

followed. This rule incorporates principles of natural justice i.e.

issuance of show-cause notice, consideration of reply. Para 667(b) of the

Regulations for Air Force, 1964 on which the appellant relies no doubt

stipulates initiation of action on the part of the Commanding Officer to

bring the offender to trial by the Court-Martial. In a given case, however,

considering the nature of the accusations and the type of evidence a

decision can be taken to deal with the case administratively in terms of

Rule 16(4) of the Rules. In the instant case it was concluded that it would

neither be expedient nor practicable to have trial by Court-Martial and,

therefore, the action was taken by departmental proceedings. This Court had

occasion to consider an identical provision in the Army Act, 1950 (in short

`Army Act') and Army Rules, 1954 (in short `Army Rules'). Constitutional

validity of Rule 14 of the Army Rules which is on the same line as Rule

16(4) of the Rules was questioned in Union of India v. Capt. S.K. Rao,

[1972] 1 SCC 144. The challenge was found unsustainable. It was, inter

alia, observed as follows:

"14. Section 19 itself suggests that there should be rules, and subject to

the provisions of the Act and such rules, the Central Government may

dismiss or remove from the service any person subject to the Army Act.

Section 191(2)(a) specifically gives power to make a rule providing for the

removal from the service of persons subject to the Act. It follows that

there may be a valid rule whereunder, subject to the other provisions of

the Act the Central Government may remove a person from the service. Rule

14 is such a rule; it is, therefore, not ultra vires.

15. It was argued that the words "subject to the provisions of this Act"

occurring in Section 19 makes Section 19 subject to Section 45, and the

Central Government has thus no power to remove a person from the service in

derogation of the provisions of Section 45. But the power under Section 19

is an independent power. Although Section 19 uses the words "subject to the

provisions of this Act", it speaks of removal of a person from the service.

Section 45 provides that on conviction by court-martial an officer is

liable to be cashiered or to suffer such less punishment as is in this Act

mentioned. For removal from service under Section 19 of the Army Act read

with Rule 14 of the Army Rules, 1954, a court-martial is not necessary. The

two Sections 19 and 45 of the Act are, therefore, mutually exclusive."

Above being the position, the appellant's stand that the departmental

proceeding was invalid has to be rejected.

The residual question is whether there is need for remand to the

authorities to re-consider the question of punishment once it is held that

plural marriage was not established. We have given our anxious

consideration to his plea. Normally, when the foundation for an order is

partially held not in accordance with law, reconsideration of the quantum

of punishment can be directed. But that is not the invariable rule. If the

Court on considering the material before it concludes that the punishment

awarded is not shockingly disproportionate it can maintain the order. In

the instant case the findings of the disciplinary authority show as to how

the acts of the appellant were clearly unbecoming of a member of

disciplined force and his continuance would be prejudicial to good order

and discipline.

The Scheme of the disciplinary rules in general is to identify the conduct

which is made punishable and then to provide for the various punishments

which may be imposed for the acts which are inconsistent with such conduct.

For example, the Central Civil Services (Conduct) Rules, 1964 contain

provisions which pertain to the standards of conduct which the Government

servant (within the meaning of those rules) are to follow whereas the

Central Civil Services (Classification, Control and Appeal) Rules, 1965

provide the punishment or penalties which may be imposed for misconduct.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

The conduct rules and the rules for punishment may be provided in separate

rules or combined into one. Moreover, there are a host of departmental

instructions which elucidate, amplify and provide guidelines regarding the

conduct of the employees.

The range of activities which may amount to acts which are inconsistent

with the interest of public service and not befitting the status, position

and dignity of a public servant are so varied that it would be impossible

for the employer to exhaustively enumerate such acts and treat the

categories of misconduct as closed. It has, therefore, to be noted that the

word "misconduct" is not capable of precise definition. But at the same

time though incapable of precise definition, the word "misconduct" on

reflection receives its connotation from the context, the delinquency in

performance and its effect on the discipline and the nature of the duty.

The act complained of must bear a forbidden quality or character and its

ambit has to be construed with reference to the subject-matter and the

context wherein the term occurs, having regard to the scope of the statute

and the public purpose it seeks to serve.

In Union of India and Ors. v. Harjeet Singh Sandhu, [2001] 5 SCC 593, in

the background of Rule 14 of the Army Rules, it was held that any wrongful

act or any act of delinquency which may or may not involve moral turpitude

would be "misconduct" under Rule 14.

In Baldev Singh Gandhi v. State of Punnjab and Ors., [2002] 3 SCC 667, it

was held that the expression "misconduct" means unlawful behaviour,

misfeasance, wrong conduct, misdemeanour etc.

Similarly, in State of Punjab and Ors. v. Ram Singh Ex. Constable, AIR

(1992) SC 2188), it was held that the term "misconduct" may involve moral

turpitude. It must be improper or wrong behaviour, unlawful behaviour,

wilful in character, forbidden act, a transgression of established and

definite rule of action or code of conduct but not mere error of judgment,

carelessness or negligence in performance of the duty; the act complained

of bears forbidden quality or character.

"Misconduct" as stated in Batt's Law of Master and Servant (4th Edition)

(at page 63) is "comprised positive acts and not mere neglects or

failures." The definition of the word as given in Ballentine's Law

Dictionary (148th Edition) is "A transgression of some established and

definite rule of action, where no discretion is left except what necessity

may demand, it is a violation of definite law, a forbidden act. It differs

from carelessness."

It may be generally stated that the conduct rules of the Government and

public sector corporations constitute a code of permissible acts and

behaviour of their servants.

The scheme of the Conduct Rules, almost invariably, is to first of all

enunciate a general rule of conduct and behaviour followed by specific

prohibitions and restrictions. For example, Rule 3 of the Central Civil

Services (Conduct) Rules, 1964 which occurs under the heading "General"

provides that every Government servant shall at all times:

(i) maintain absolute integrity;

(ii) maintain devotion to duty; and

(iii) do nothing which is unbecoming of a Government servant.

It has been pointed out by learned Additional Solicitor General that in the

past also appellant's conduct was found to be objectionable. He was tried

for general court-martial on a charge of using improperly travel voucher of

another officer's wife for his wife's travel. He was awarded sentence of 12

months' forfeiture of service for the purpose of promotion and severe

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

reprimand. He was also awarded severe displeasure for a period of eighteen

months w.e.f. 16th September, 1987 for making false allegations against

superior officers and misbehaving with canteen sales girl. Though these

were not factors which weighed with the authorities in passing the order of

compulsory retirement yet it throws light on desirability to retain the

officer in service. On the facts of the present case the order of

compulsory retirement cannot be said to be one which is shockingly

disproportionate to warrant interference.

While, therefore, holding that the charge of plural marriage has not been

established, yet taking into account the other allegations we do not think

it a fit case where any interference is called for.

Appeal is dismissed without any order as to costs.