Madhya Pradesh High Court
Praveen Kochak vs The State Of Madhya Pradesh on 28 November, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
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NEUTRAL CITATION NO. 2024:MPHC-IND:36852
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
th
ON THE 28 OF NOVEMBER, 2024
WRIT PETITION No. 26357 of 2021
PRAVEEN KOCHAK
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
....................................................................................
Appearance:
Shri Hitesh Sharma, learned counsel for the petitioner.
Ms. Bhagyashree Gupta, learned Govt. Advocate appearing on behalf
of Advocate General.
Shri Anand Agrawal, learned counsel for the respondents no.4 & 6.
.....................................................................................
ORDER
1] This petition under Article 226 of the Constitution of India has
been filed by the petitioner, seeking the following reliefs:-
“7. a) To allow this petition by issuing appropriate
writ, order or direction and to direct the respondent
no.3 to accept the petitioner’s application and appoint
him as per his qualification.
b) To quash the impugned action of the respondent no.3.
c) Any other relief which this court may deem fit in the
interest of justice.”
2] The case of the petitioner is that he happens to be the son of
late Hiralal Kochak, who was employed as a Class-III employee on
the post of Hand Pump Technician in the Public Health &
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2024 17:49:55
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Engineering Department, Rajgarh (Biaora), who died in harness, on
17.05.2021, during the Covid-19 pandemic period.
After the death of his father Hiralal, the petitioner being the son of
the deceased Hiralal applied for compassionate appointment on
19.07.2021, which was rejected by the respondent vide order dated
04.08.2021, informing that there is nothing on record to prove that
the mother of the petitioner was the wife of the deceased Hiralal, as
in his nomination Form of Hirala, the name of Shanti bai is not
mentioned, neither there is any reference that the petitioner is his
son (Annexure P/2).
3] The aforesaid order has been challenged by the petitioner in
the present petition, and subsequently, on account of appointment of
respondent no.6 on compassionate basis on 16.02.2023, by way of
amendment, the second wife of the deceased Hiralal and his
children were also arrayed as respondents and the following relief
was sought in the amended petition:-
“7. d) That, the appointment order dated 16.02.2023 in
favour of respondent no.6 may kindly be set aside and
petition may kindly be given compassionate appointment..”
4] The petitioner’s contention is that he happens to be the son of
the first wife of the deceased Hiralal, who was Shanti Bai, and
without taking any divorce from his mother, Hiralal solemnized
another marriage with Usha Bai, whose son Yuvraj/respondent no.6
has been subsequently granted the compassionate appointment vide
order dated 16.02.2023, which is also under challenge in the present
petition.
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5] In support of his contentions, counsel for the petitioner has
relied upon the decision rendered by the Supreme Court in the case
of Khursheed Ahmad Khan vs. State of Uttar Pradesh and others
reported as (2015) 8 SCC 439; the decision rendered by the Madras
High Court in the case of M. Muthumadasamy vs. The Accountant
General and others { W.P.(MD) no.2831 of 2022 decided on
11.02.2022, and the decision rendered by the High Court of West
Bengal in the case of Sk. Jahiruddin & another vs. The State of
West Bengal and others (WPST 57 of 2021}.
6] Counsel for the petitioner has also drawn the attention of this
Court to the judgment dated 22.12.2007, passed by the Judicial
Magistrate, First Class Dharampuri in Criminal Case no.3/2007
whereby on an application for maintenance u/s.125 of Cr.P.C.,
Shanti bai, the first wife of Hiralal and his son-Praveen, have been
awarded maintenance to the tune of Rs.1,000/- and 500/-
respectively.
7] The prayer is vehemently opposed by shri Anand Agrawal,
the counsel for the respondent nos.4 & 6/ the second wife and her
son, as the respondent no.6 has been granted compassionate
appointment.
8] Counsel for the respondents no. 4 & 6 has also drawn
attention of this Court to the same judgment dated 22.12.2007,
passed by the learned Judge of the trial Court to submit that even in
the aforesaid judgment, it has been observed by the trial court that
in the year 1992, the marriage/Natra of Shantibai was solemnized
with Hiralal. However, in the year 1994, she was driven out, of the
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NEUTRAL CITATION NO. 2024:MPHC-IND:36852
house by Hiralal, and thus, he solemnized the marriage with
Ushabai and are residing together as husband and wife, and the
court has also taken note of the reply filed by Hiralal that he has not
married to Shantibai, and entered into Natra only, and also that
when Shantibai got employment, she left him as he was
unemployed at that time and she also refused to reside with him.
9] Attention of this Court has also been drawn by the counsel for
the respondents no. 4 & 6 to para 14 of the judgment dated
22/12/2007 in which, it is also observed that Hiralal has three
children from his marriage with Ushabai, and thus, it is submitted
the since Ushabai was validly married wife of Hiralal, and in all the
certificates of the respondent no.6, the name of his father is
mentioned as Hiralal only, as also in the nomination Form of the
deceased Hiralal, Ushabai’s name is mentioned as his nominee, and
in the death certificate, which has also been filed by the petitioner
himself, the name of Hiralal’s wife is stated to be Ushabai.
10] Counsel for the respondents no.4 & 6 has also submitted that
the application of the petitioner has been rejected by the
respondents not only on the ground that he has not been able to
prove that he happens to be the son of Hiralal, but also on the
ground that he has not filled the application form in proper format.
11] Counsel for the respondents no. 4 & 6 has also relied on the
decision rendered by the Supreme Court in the case of Union of
India and another vs. V.R. Tripathi reported as AIR 2019 SC 666
to submit that a child born out of second marriage is legitimate.
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12] Counsel for the respondent/State has also opposed the prayer
and it is submitted that in all the Departmental documents, the name
of Ushabai is mentioned as the wife of the deceased Hiralal, and
thus, the respondents have not erred in granting compassionate
appointment to her son-respondent no.6/Yuvraj.
13] Counsel for the respondent/State has also opposed the prayer
on the ground that the petitioner is 28 years old and he cannot be
said to be in dire need of employment. It is also submitted that the
application has also been rejected on the ground that the details as
required have not been mentioned in it. It is also reiterated that
even in the death certificate of the deceased employee, the name of
his wife is mentioned as Usha Bai, and in such circumstances, the
State has not erred in granting her son the compassionate
appointment, and has rightly passed the order in favour of the
respondent no.6 for compassionate appointment on 16.02.2023,
which does not call for any interference.
14] Heard the counsel for the parties and also perused the record.
15] From the perusal of the record, this Court finds that the facts
of the case are not disputed. Even otherwise, from the judgment
dated 22.12.2007, filed as Annexure P/5 with the petition, it is
apparent that the petitioner Praveen Kochak was born out of his
mother’s marriage with the deceased Hiralal Kochak in the year
1992. In the aforesaid judgment, it is also observed that Hiralal had
started residing with Ushabai soon after a couple of months from
his marriage with Shantibai, and also that both of them were
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residing separately as husband and wife, and both of them have also
solemnized marriage.
16] The aforesaid decision relates to a proceeding under section
125 of the Cr.P.C. filed by Shantibai, the mother of the petitioner
along with the petitioner, when he was only 14 years old in the year
2007. Thus, it is apparent even from the aforesaid decision that the
deceased Hiralal Kochak started residing with Usha Bai either from
1992 or at the most from 1994.
17] It is also found that in all his service record, Hiralal has
mentioned his second wife Ushabai by as his wife, and the
respondent no.6/Yuvraj as his son. It is also found that from various
documents of the petitioner as also the respondent no.6, both of
them have mentioned the name of their father to be Hiralal Kochak.
Even if Hiralal belonged to Scheduled Tribe in which, they also
have tradition of Natra also, in which, a woman resides with a man
under contract, but, undoubtedly the petitioner was born out of a
relationship between Hiralal Kochak and his first wife Shantibai,
and thus, the petitioner was the legitimate son of Hiralal Kochak.
18] In this contest, it would be relevant to referred to the decision
rendered by the Supreme Court in the case of Khursheed Ahmad
Khan (supra), whereby the Court has held as under:-
8. As regards the charge of misconduct in question, it is patent that
there is no material on record to show that the appellant divorced his
first wife before the second marriage or he informed the Government
about contracting the second marriage. In absence thereof the second
marriage is a misconduct under the Conduct Rules. The defence of the
appellant that his first marriage had come to an end has been
disbelieved by the disciplinary authority and the High Court. The
learned counsel for the State has pointed out that not only the
appellant admitted that his first marriage was continuing when heSignature Not Verified
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performed the second marriage, the first wife of the appellant herself
appeared as a witness during the enquiry proceedings and stated that
the first marriage was never dissolved. On that basis, the High Court
was justified in holding that the finding of proved misconduct did not
call for any interference.
9. The learned counsel for the State also submits that the validity of
the impugned Conduct Rules is not open to question on the ground that
it violated Article 25 of the Constitution in view of the law laid down
by this Court in Sarla Mudgal v. Union of India [(1995) 3 SCC 635 :
1995 SCC (Cri) 569]. He further submitted that the High Court was
justified in holding that the punishment of removal could not be held to
be shockingly disproportionate to the charge and did not call for any
interference.
10. We have given due consideration to the rival submissions. We are
of the view that no interference is called for by this Court in the matter.
11. As already mentioned above, there is adequate material on record
in support of the charge against the appellant that he performed the
second marriage during the currency of the first marriage. Admittedly,
there is no intimation in any form on record that the appellant had
divorced his first wife. In service record she continued to be mentioned
as the wife of the appellant. Moreover, she has given a statement in
enquiry proceedings that she continued to be the wife of the appellant.
The appellant also admitted in inquiry conducted on directions of the
Human Rights Commission that his first marriage had continued. In
these circumstances, the finding of violation of the Conduct Rules
cannot be held to be perverse or unreasonable so as to call for
interference by this Court. In these circumstances, the High Court was
justified in holding that the penalty of removal cannot be held to be
shockingly disproportionate to the charge on established judicial
parameters.”
19] A perusal of the aforesaid decision would reveal that the
Supreme Court has clearly deprecated the practice of polygamy
holding that it is not an integral part of religion, and also that it is
necessary for a person to take permission to solemnize second
marriage if their custom permits the same, and the fact that in the
present case also, there is nothing on record to suggest that Hiralal
Kochak divorced his first wife Shantibai before contracting second
marriage, or that he had informed the Government about contracting
the second marriage, if his customs permit the same.
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20] In such circumstances, this Court is of the considered opinion
that merely mentioning of the name of any person in the official
documents referring the same to be the nominee of the employee is
of no avail to such person to claim compassionate appointment on
account of death of deceased employee in the face of a rival claim
by the other family members of the deceased employee, as the
compassionate appointment is provided under a policy formulated
by the State Government and such policy would never promote the
polygamy.
21] So far as the decision relied upon by the counsel for the
respondents. no. 4 & 6 in the case of V.R. Tripathi (supra) is
concerned, which provides that a child born out of in the second
wife is a legitimate child, and is entitled for grant of compassionate
appointment is concerned, the same would be of no avail to the
respondent no.6 and in fact supports the claim of the petitioner,
whose mother’s relationship with Hiralal Kochak is alleged to be
contractual in nature.
22] On due consideration of the aforesaid factual and legal
aspects of the matter, this Court is of the considered opinion that the
petitioner has made out a case for compassionate appointment being
the son of Hiralal Kochak, born out of his first wife and the fact that
Hiralal though mentioned the name of his second wife Ushabai and
his son in all his service record, but did not inform his department
regarding the factum of his second marriage with Ushabai which
was a condition necessary as has been held by the Supreme Court in
the case of Khursheed Ahmad Khan (supra).
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23] In such circumstances, the writ petition stands allowed and
the appointment order the respondent no.6-Yuvraj dated 16.02.2023
is hereby set aside.
24] With the aforesaid observation, the present petition stands
allowed.
(SUBODH ABHYANKAR)
JUDGE
moni
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