Joy Thomas Vs. Union of India, Represented by the Secretary, Ministry of Defence, New Delhi and Others

Padmanabhan Nair, Member (J):

1. The petitioner was working as a Commissioned Officer in Air Force. He was removed from service under Section 19 of the Air Force Act 1950 read with Rule 16(7) of the Air Force Rules 1969. He has filed this proceedings challenging the order of removal and for a direction for re-instatement and for other consequential reliefs, or in the alternative to grant him pro-rata pension and also ex-serviceman status. This Transferred Application was filed as a Writ Petition before the Honourable High Court of Kerala and the same was transferred to this Bench consequent to its formation.

2. Petitioner was enrolled in the Indian Air Force on 10.5.1994 as an Airman. Subsequently he was commissioned on 22.6.2001 as a Flying Officer in the Administrative Branch of the Indian Air Force as a Flight Controller. While serving at 503 Signal Unit at Delhi, petitioner submitted an application for permission to marry Miss Juliet Augustine, a resident of Idukki District in Kerala, who was working as a Registered General Nurse in Walsgrave Hospital under a Charitable Trust of U.K. Government. In the application it was stated that the date of proposed marriage was on 15.9.2003. The complete details of the spouse was furnished in the application. There is a stipulation that those who are applying for marriage shall put up their application three months prior to marriage to meet the processing time. In the petitioner's case, there was only 45 days to meet the processing time. As the petitioner was serving in Delhi, 45 days time is more than sufficient to process the application. Petitioner had explained to his Commander that since the marriage has to be solemnised within the leave period of his spouse, he could not comply with the stipulated period of 3 months. The application was forwarded to the Headquarters on 31.7.2003 with the recommendation of the Commander. The petitioner proceeded on leave on 25.8.2003. On 14.9.2003, petitioner confirmed from the Commander through telephone that no reply was received from the Head Quarters. The marriage was solemnised on 15.9.2003 as scheduled. Petitioner returned to his unit on 18.10.2003 and submitted application for necessary documentation in service records. That application was forwarded to the Air Headquarters on 27.10.2003. No communication from Air Headquarters was received till that date on the application seeking permission for marriage. The Air Headquarters asked the petitioner to obtain a certificate from his wife whether she is willing to resign her present job. The petitioner's wife was unwilling to resign her present job. On 19.11.2003, petitioner submitted the unwillingness certificate rendered by his wife. On 15.1.2004, petitioner received a show cause notice as to why he should not be dismissed/removed from the service. Petitioner submitted a reply to the show cause notice. The same was rejected and the petitioner was removed from service as per Ext.P8 order dated 12.7.2004. According to the petitioner he was sent out of service for no fault other than his marriage with a girl who is working in a foreign hospital for her daily bread, which will not affect the petitioner or the Indian Air Force or the security of the Nation in any way. So, the decision to throw him out of service is unjust, irrational and unjustifiable. Because of his mental agony and frustration, petitioner could not pursue his case for pension, reinstatement or ex-serviceman status in time. On 20.7.2006, petitioner submitted an application claiming reinstatement or in the alternative to provide him pension and other terminal benefits including ex-serviceman status. It was not considered by the respondents. It is contended that removal of personnel from service is a punishment and it was imposed on the petitioner without conducting any enquiry. The stand of the respondents that petitioner violated the provisions of Para 3 of A.F.O. 14 of 2000 and the provisions of para 7.3 of Chapter VII of IAP 3904 are not correct. It is also contended that Para 3 of AFO 14 of 2000 and Para 7.3 of Chapter VII of IAP 3904 are unconstitutional and liable to be quashed. It is averred that Para 7.3 of Chapter VII of IAP 3904 relate to marriage of a member of Indian Air Force to a spouse who is employed in a foreign country. It says that such a marriage is prohibited. It is contended that this clause infringes the fundamental rights of the members of the Air Force under Articles 14, 19 and 21 of the Constitution of India. It is also contended that in this case petitioner sought permission and till the date of marriage no decision was taken in that application. The action was taken only after the date of marriage. It is also contended that the authorities have insisted resignation of petitioner's wife from her employment after the marriage only. The said insistence based on para 3 of AFO 14 of 2000 and para 7.3 of Chapter VII of IAP 3904 is illegal and liable to be quashed. Hence this Transferred Application to set aside Ext.P7 order, to quash Para 3 of AFO 14 of 2000 and Para 7.3 of Chapter VII of IAP 3904, and for a direction to reinstate the petitioner in service or to grant pro-rata pension and other terminal benefits to the petitioner.

3. The respondents 2 and 3 have filed a counter affidavit. It is admitted that petitioner was enrolled in the Air Force on 10.5.1994 as an Airman and was Commissioned as Flying Officer on 20.2.2001. The petitioner submitted an application on 30.7.2003 seeking permission to marry Miss Juliet Augustine. In that application it is specified that Miss Juliet Augustine is employed as a Registered Nurse since 5.6.2002 in Walsgrave Hospital under the National Health Scheme of the Government of U.K. Para 3 of AFO 14 of 2000 enjoins that any person desirous of marrying an Indian National working with a foreign mission or with a foreign organization inclusive of commercial organization irrespective of the fact as to whether the same is situated within or outside India, has to obtain permission from the Central Government prior to the marriage. It is also mandatory that application with complete details should be furnished to the Air Head Quarters at least three months prior to the date of marriage. The petitioner has not applied for getting permission within the stipulated period of three months in advance. It is admitted that petitioner applied for necessary documentation. It is also contended that if a serving personnel propose to marry a person working in foreign organisation financed by a foreign government, he/she has to resign from the said organization prior to the marriage and said fact has to be brought to the notice of the Air Headquarters with immediate effect. Petitioner was also informed about it. But the wife of the petitioner was unwilling to resign her job. Petitioner was removed from service after affording him full opportunity to vindicate his stand and put forth his defence. The receipt of the application dated 20.7.2006 is admitted. It is contended that there is no infringement of any fundamental rights available to the petitioner. It is a policy decision taken by the Government. It is also contended that orders are not liable to be quashed. Subsequently, an additional counter affidavit was filed by the respondents. It is contended that organization in which the petitioner's wife is employed as Registered General Nurse in U.K. comes under prohibited organisation under Para 7.3 of Chapter VII of IAP 3904. Therefore, even the Government could not have given permission under any circumstance. On receipt of the application, an opportunity was given to the petitioner to obtain and forward a certificate from his spouse expressing her willingness to resign the job. She has expressed her unwillingness to resign the job. So, a speaking order rejecting permission was issued on 13.1.2004.

4. The only question arising for consideration in this case is whether the removal of the petitioner from service under Section 19 of the Air Force Act is legal and proper?

5. It is admitted by the petitioner himself that he submitted an application on 30.7.2003 seeking permission to marry Miss Juliet Augustine, a native of Kerala, who was working in Walsgrave Hospital in U.K. The marriage was scheduled to be conducted on 15.9.2003. Para 3 of AFO 14 of 2000 only says that any person desirous of marrying an Indian national working in a foreign mission or in any foreign organization including commercial organisation whether situated in India or outside is to obtain permission from the Central Government before marriage. It is also stated that it must be ensured that application is complete in all respects and reaches the Air Headquarters (Directorate of Personnel Services) at lest three months before the date of proposed marriage. It is admitted by the petitioner that he gave only 45 days time to the respondents to take the decision. The explanation offered by the petitioner is that he was working in Delhi and the distance between his unit and Air Headquarters is less than 10 kms. And every day Mail Despatch Rider delivers the mail. The question is not regarding the distance between the places where the petitioner is working and Air Headquarters. A uniform rule is prescribed. The rule cannot be changed because of the proximity between the Air Headquarters and petitioner's unit. It is not possible to hold that time limit of 3 months fixed is unreasonable or it is against the fundamental rights guaranteed to Indian citizens. But, in this case, as admitted by the petitioner himself, he proceeded on leave on 25.8.2003, married the lady and reported back to his unit on 18.10.2003. Immediately after reporting, petitioner furnished the details of his spouse. In the application seeking permission itself it is stated the date of birth of Juliet Augustine is 22.11.1975 and she is working as a Registered Nurse in Walsgrave Hospital (UK Government Organisation), funded by National Health Service of U.K. Government. It is also admitted that Miss Juliet Augustine was working in that hospital from 5.6.2002. So, it is a case in which the petitioner sought permission to marry an Indian National who is already working abroad as a Staff Nurse in a hospital funded by U.K. Government. Chapter VII of IAP 3904 deals with employment of family members of serving personnel. Para 7.1 deals with general provisions. Para 7.2 defines 'members of family'. Para 7.3 deals with restriction of employment of members of the family of service personnel in Foreign Mission and Foreign Organisations located in India and abroad. Originally, the heading was as follows: “Restriction on employment of members of the family of Air Force Personnel in India”. It was amended with effect from 20.12.2004. But, the amendment has no consequence. A reading of the various clauses clearly establishes that that clause does not deal with persons working in India, members of family of personnel working in India and abroad. Para 7.3 as on that date reads as follows:

“7.3 Spouse - Restriction on spouse are as follows:

(a) In Foreign Mission - Prohibited.

(b) In Group I Organisation - Prohibited.

(c) In Group II Organisation - Prior permission of MOD is required.

(d) In Commercial Organisations Financed by Foreign Govt. - Employment in foreign Governments/ Agencies including Municipalities, Government hospitals and such other bodies which are basically financed by Foreign Governments, is prohibited.

(e) In Commercial Foreign Organisations Not Financed By Foreign Governments – Prior permission of Air Hqs (Dte of Int)) is required”.

As rightly pointed out by the counsel for the respondents, Government Hospitals will also come within the meaning of 'Commercial Organisations' financed by Foreign Governments and are included in the prohibited category. So, even if the petitioner made an application prior to three months of marriage, the Government will not be in a position to grant permission because the provision was very clear. In fact, the very same issue arose in T.A. No.14 of 2010. We considered this issue and held as follows:

“Clause (d) of para 7.3 provides that spouse of an Air Force Personnel may take up employment in foreign commercial organisation with prior permission of appropriate authority – Air HQs.(Dte. of Int). Prior to 31.10.2007, neither the Air HQs nor MoD had the power to grant permission to take up employment in an organization falling under sub-clause (d) of para 7.3. In para 6 of the counter affidavit, it is averred that spouse of the petitioner was working in a hospital in U.K. financed by the Government of U.K. In para 7 of the counter affidavit, it is again stated that the petitioner had violated para 7.3(d) of IAP 3904 by permitting his wife to take up employment in a Foreign Commercial Organisation financed by Government of U.K. It is also averred that "there existed no provision at that time to grant permission in such cases". The averment that wife of the petitioner was working in a hospital financed by the Government of U.K. is not denied by the petitioner in the rejoinder (reply affidavit) filed by him to the counter affidavit filed by the respondent. Since there was absolute prohibition in taking up employment in such an institution, neither Air HQs nor MoD could have granted permission to the petitioner even if he had filed an application for seeking permission.”

In this case also, it is specifically contended that permission sought for could not have been granted in view of the absolute prohibition.

6. It is argued by the counsel for the petitioner that insistence of resignation of the petitioner's wife based on Para 3 of AFO 14 of 2000 and 7.3 of IAP 3904 is illegal. In fact, the relevant rule is Para 7.5 of IAP 3904, which reads as follows:

“7.5 Exception.- There may be cases where the spouse may be working in prohibited organisations mentioned at Para 7.3 (a), (b) and (d), prior to his/her marriage with the Air Force personnel. In such cases, the spouse should resign from these organisations forthwith and the fact is to be brought to the notice of Dte of Int and Dte of PS immediately. However, in cases where the spouse may be working in organization mentioned at Para 7.3(c) and (d), prior to his/her marriage, the cases are to be processed on personnel channels for approval by appropriate authority.”

It shows that if an Air Force personnel wants to marry a lady who was working in a prohibited organisation, the spouse shall be given an opportunity to resign from the organisation forthwith. Admittedly, in this case, petitioner was asked whether his wife was willing to resign, but she has given an unwillingness certificate. So, it is idle to contend that insistence of resignation is illegal. Article 33 of the Constitution of India deals with the powers of the Parliament to modify the rights conferred by Part II in their application to Forces etc. So, the contention that there is violation of fundamental right also is not correct.

7. The petitioner was issued with a show cause notice. Petitioner was removed from service under Section 19 of the Air Force Act read with Rule 16(7) of the Air Force Rules. Section 19 of the Air Force Act reads as follows:

“19.Termination of service by Central Government.- Subject to the provisions of this Act and the rules and regulations made thereunder, the Central Government may dismiss, or remove from the service any person subject to this Act.”

There is compliance of section by serving a show cause notice to him. Since the facts are admitted, there is no need to conduct an enquiry. So, we do not find any illegality or impropriety in removing the petitioner from service. He is not entitled to reinstatement. The petitioner has only completed 10 years of service and he was dismissed from service. So, he is not entitled to get pro-rata pension and ex-serviceman status. The Transferred Application is only to be dismissed.

In the result, the Transferred Application is dismissed.