Punjab and Haryana High Court: In a petition filed to set aside the order dated 12-07-2016, passed by the Armed Forces Tribunal concerned, whereby the petitioner’s dismissal from service, vide order dated 08-09-2014 was upheld, the Division Bench of Sureshwar Thakur* and Sudeepti Sharma, JJ., stated that there was lack of application of mind by the respondent to grant the ex-post sanction to the plurality of marriage, especially when prima facie the former wife of the petitioner, did consent to the petitioner’s second marriage. Further, since no protest was made by the petitioner’s former wife regarding petitioner’s second marriage, therefore, the same might have been a mitigating circumstance for the respondent to favourably exercise the empowerment vested in it regarding granting of ex-post sanction. Thus, there was evident lack of application of mind by the respondent and it made the impugned order to suffer from vice of gross arbitrariness.
The Court stated that the fundamental right to life endowed upon the petitioner and his family members would be breached. Further, the petitioner had rendered an unblemished service in the Indian Air Force. Consequently, irrespective of the vices of delay and laches, prima facie the impugned order was harsh, arbitrary and suffered from gross non application of mind. Thus, the Court quashed and set aside the impugned order.
Background
The petitioner, a resident of West Bengal, professed Islamic religion and had joined Indian Air Force on 27-12-2005. On 06-07-2009, the petitioner married a Muslim lady and from this wedlock they had a daughter. Thereafter, on 05-12-2012, the petitioner married another Muslim lady, allegedly a divorcee and from this second marriage, he had a son. Thus, during the period which petitioner was rendering his service in the Air Force, he had contracted more than one marriage. The said marriage was contracted without his seeking any permission from the competent authority.
According to the petitioner, when he disclosed his second marriage, a Court of Inquiry was conducted against him and after completion of the enquiry, an appropriate action was recommended.
Analysis, Law, and Decision
The Court observed that evidently in the present case, the petitioner did not obtain the requisite permission from the competent authority, as per Para 579(g) of the Regulations for the Air Force, 1964. The Court stated that, yet it was required to be advancing the cause of justice. Moreover, the present Court was also required to be doing substantial justice. Further, the bar on limitation might not become a stumbling block for this Court to decide the present case on merits, especially when upon an incisive reading of the records, it was unfolded that there was a gross non application of mind by the respondent concerned in the impugned order.
The Court stated that given the present petitioner was a solitary bread earner for his entire family, and the right of livelihood of the petitioner, and his dependents would become direly prejudiced. Deprivation of any source of livelihood to the petitioner and to his family members would cause jeopardy to Article of the . Further, it was also required to be discerned from the records whether the petitioner throughout his service rendered in the Indian Air Force, did have an unblemished record, as a patriotic soldier.
The Court stated that from the reading of the entire records, it was revealed that the petitioner diligently served the Indian Air Force. It was clear that the petitioner belonged to Muslim community and thus as per the personal law, he was permitted to contract a plural marriage, which he did. However, before contracting the second marriage, the petitioner was required to obtain a prior permission from the Central Government. The said permission was not obtained and therefore, such actions were taken against the petitioner.
The Court stated that there was lack of application of mind by the respondent to grant the ex-post sanction to the plurality of marriage, especially when prima facie the former wife of the petitioner, did consent to the petitioner’s second marriage. Further, since no protest was made by the petitioner’s former wife regarding petitioner’s second marriage, therefore, the same might have been a mitigating circumstance for the respondent to favourably exercise the empowerment vested in it regarding granting of ex-post sanction. Thus, there was evident lack of application of mind by the respondent concerned and it did make the impugned order to suffer from vice of gross arbitrariness.
The Court stated that the fundamental right to life endowed upon the petitioner and his family members would be breached. Further, the petitioner had rendered an unblemished service in the Indian Air Force. Consequently, irrespective of the vices of delay and laches, prima facie the impugned order was harsh, arbitrary and suffered from gross non application of mind. Thus, the Court quashed and set aside the impugned order.
[X v. Union of India, CWP 3580 of 2021, decided on 30-09-2024]
*Judgment authored by: Justice Sureshwar Thakur
Advocates who appeared in this case :
For the Petitioner: R.S. Panghal, Advocate
For the Respondent: Bharat Bhushan Sharma, Senior Panel Counsel.
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