PRAKASH BABU BAJPAI Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Petitioner aggrieved by his dis -charge from the Indian Air Force, in which he was serving as corporal, has filed this petition. On 21st Dec. 92 a show cause notice, Annex -P/4 to the petition was issued to the petitioner by the Commanding Officer No. 265 SU, Air Force, calling upon him to show cause as to why administrative action should not be taken against him under Section 20(3) of the Air Force Act for contracting plural Marriage with Ms. Poonam Agnihotri D/o H.P. Agnihotri on 14th Dec. 91 in New Delhi. In this show cause notice it was alleged that the petitioner was already married to Ms. Gayatri Devi D/o R.K. Pandey before contracting marriage with Ms. Poonam Agnihotri, his marriage with said Ms. Gayatri Devi having been solemnised according to Hindu rites on 10th March, 91 at Kanpur. It was also pointed out that plural marriages were prohibited under para 578 of the requlations for the Air Force (RE), 1964. On 4th Jan. 93, the petitioner replied to the aforesaid show cause notice taking a stand that his marriage with Ms. Gayatri Devi was not a legal and valid marriage and was no marriage in the eyes of law as the essential ceremony of Saptapadi was not completed. It was also pointed out that his marriage with Ms, Poonam was contracted after obtaining permission from the Air Force Authorities and afterwards the marriage was duly recorded in the Personal Occurrence Reports maintained by the Air Force.

(2.) ON 2nd Now., 93, another show cause notice was issued by the Commanding Officer 265 SU, Air Force to the petitioner calling upon him to show cause as to why administrative action of removal from services under Section 20(3) of the Air Force Act, 1950 for contracting plural marriage with Ms. Poonam Agnihotri on 14th Dec. 91 in New Delhi should not be take against him. It was stated in this notice that Court of inquiiy conducted at 265 SU, Air Force found that during the subsistence of petitioner's marriage with Ms. Gayatri Devi without obtaining a proper divorce from her.the petitioner got married again to Ms. Poonam Agnihotri .which was illegal and contrary to provisions of para 578 of the Regulations for the Air Force (RE), 1964. On 16th Now. 93 the petitioner filed an interim reply to the aforesaid show cause notice, challenging the proceedings and the conclusions of the Court of Inquiry. He reiterated that his marriage with Ms. Gayatri Devi was not a marriage in the eyes of law, as the marriage ceremony was not completed in accordance with Hindu Rites in terms of Section 8 of the Hindu Marriage Act, 1955. He also asked for a copy of the report of the Court of Inquiry and relevant documents. It was also contended in this interim reply that action under Section 20(3) of the Air Force Act, 1950, could not have been taken without complying with the requisites of Rule 18 of the Air Force Rules, 1969 and if such an action was taken without complying with the requisites of Rule 18 of the Air Force Rules, 1969, it would be against the principles of Natural Justice. After receiving the proceedings of the Court of Inquiry, the petitioner filed a detailed reply to the show cause notice on 7th Dec., 1993. In this reply, he pointed out to certain legal flaws in the procedure adopted by the Court of Inquiry. According to the petitioner his reply was forwarded to higher authorities by the Commanding Officer, 265, SU, Air Force and thereafter nothing was heard by the petitioner till 31st August, 94, on which date he was called in the orderly room and apprised that discharge orders in respect of the petitioner had been received from Air Officer in charge, Air Force Record office, New Delhi and as a consequence, Asstt. Adjutant immediately issued the clearance with a direction To be cleared within 24 Hours'. The petitioner's request for copy of the discharge order was not heeded to, but he was told that discharge has been ordered Under Rule 15(2) (g) (ii) of the Rules.

(3.) SH . S.K. Nanda, learned Counsel for the petitioner contended that before passing the impugned order of discharge. Reply to the show cause notices given by the petitioner were not considered and no reason or the rejection of the contentions raised in the reply to show cause notices were conveyed to the petitioner. This according to the learned Counsel was a clear breach of the principles of natural justice. It was further contended that the action was initiated under Section 20(3) of the Air Force Act, but the discharge was given Under Rule 15(2)(g)(ii) of the Air Force Rules. According to the learned Counsel an opportunity show cause as to why the petitioner should not be discharged Under Rule 15(2) g)(ii) should have been given and as it has not been given, the discharge is vitiated. It was also submitted that discharge was unauthorised as the authority empowered to discharge the petitioner Under Rule 15(2)(g) (ii) was Air Officer In -charge Personnel and not the Commanding Officer of the Unit. It is further contended that discharge Under Rule 15(2)(g)(ii) carries a stigma with it and cannot be called simple discharge. An inquiry has, therefore, to predede such a discharge. It was further contended that despite Regulation 578 of the Air Force Rugulations, no person could be discharged on the ground of Bigamy without trial by Court Martial.