Delhi High Court
Captain (Mrs.) Krishna vs Uoi & Ors. on 8 October, 2010
Author: Gita Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 14th July, 2010
Date of decision: 8th October, 2010
+ W.P.(C) No.166/2010
CAPTAIN (MRS.) KRISHNA ..... Petitioner
Through, Mr. S.K. Kakkar, Adv. & Mr. K.S.
Pathania, Adv.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Jatan Singh, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether reporters of local papers may be allowed to YES
see the Judgment?
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in the
Digest? YES
GITA MITTAL, J
1. This petition manifests the conflict which may arise between
matrimonial bliss and the call of duty in the armed forces because of
the requirement of a serving personnel having to serve at locations far
removed from her/his matrimonial home or the restrictions on
movement even though there may be no separation by location. It
draws attention to the urgent necessity of balancing personal and
professional lives of the defence personnel and raises issues of the
nature of the right to marriage and infringement of the petitioner's
right to life under Article 21 and violation of Article 14 of the
Constitution of India by the respondents by the manner of rejection of
her application for resignation from service.
2. Captain Mrs. Krishna, the petitioner herein, took admission in the
B.Sc. (Nursing) course at the Armed Forces Medical College, Pune, in
1997 which she successfully completed in June, 2001. The petitioner
got her permanent commission in the Indian Army on 7th June, 2001 in
the Military Nursing Service ('MNS' hereafter). By dint of her service,
she was subsequently promoted to the rank of Captain as Nursing
Officer in the service. It is on record that from the 7 th of June, 2001 to
the 10th of September, 2001, the petitioner was posted at the CH (SC),
Pune; and thereafter from the 14th of September, 2001 to the 9th of
June, 2005 was posted at CH (NC) C/O 56 APO. From 10th June, 2005
till the passing of the impugned order, the petitioner remained posted
at the Military Hospital, Roorkee, Uttranchal as Nursing Officer.
3. On the 10th of December, 2004, the petitioner is stated to have
married one Shri Rajeev Vishwakarma in accordance with Hindu
customs and traditions. From this wedlock, on the 23rd of September,
2005, the parties were blessed with a daughter who is presently aged
about five years.
4. So far as the matrimonial home of the petitioner is concerned,
her husband is stated to be employed with the Bharat Heavy Electrical
Limited (BHEL) located at Ranipur, Haridwar. After marriage, for
sometime the petitioner stayed with her husband at BHEL, Ranipur,
Haridwar. However, on account of the distance between her place of
residence and posting as well as service requirements, the petitioner
has not been able to spend much time in the matrimonial home. The
petitioner submits that after the birth of their daughter, her husband
asked her to stay permanently with him along with their daughter and
called upon her to resign from service. He expressed objection to the
separation necessitated by her job requirements. The pressures of the
service thus resulted in stress and strain on the petitioner's
matrimonial life.
5. In view of the ensuing turmoil and expressing inability to tolerate
the same any further, on the 5th of September, 2008, the petitioner's
husband filed a petition seeking dissolution of their marriage by
decree of divorce under Section 13(1)(i)(a) of the Hindu Marriage Act,
1955. This petition is premised, inter alia, on the ground that it was
agreed by the parties before marriage that after its solemnization, the
petitioner shall resign from service. The petitioner's husband has
made a grievance that she is not performing her matrimonial duties; is
not residing permanently with him and is not resigning from her job.
He has also complained in his petition that thereby he has been
deprived of wedded bliss and that not only he has to cook his own
food and cope with a separation from his wife but is compelled to
endure a separation also from his daughter.
6. The petitioner's husband contends that service compulsions have
necessitated the separation of the petitioner from her husband and
induced dejection and loneliness in him and he is desperate to end
this kind of an arrangement. In this background, the petitioner is
faced with the twin alternatives of either resigning from service or
dissolving her marriage from her husband by a decree of divorce.
7. On account of this predicament coupled with the extreme
emotional strife in her life, the petitioner submits that she is unable to
concentrate on her duties and to give her best in service. Physically
and mentally strained, the petitioner submits that the continuous
stress and tension have also resulted in the deterioration of her health
and as a result, she is now suffering from thalasemia minor.
The writ petitioner has stated that she does not want divorce
under any circumstance and wants an opportunity to end the
acrimony and discord in her matrimonial life. In this background, she
sought time from her husband to process her resignation.
8. The petitioner states that, in view of all these facts, she had no
option but to make an application on 8th November, 2008 to the
Commandant, MH Roorkee seeking permission to apply for resignation
from commission on the above grounds. Our attention has been
drawn to the recommendations on this application by the Principal
Matron dated 10th November, 2008; the Registrar of the hospital dated
10th November, 2008 as well as the recommendations of the
Commandant of the Military Hospital, Roorkee.
9. After obtaining such permission to resign, the petitioner
submitted an application for resignation in the form prescribed in the
annexure-1 to appendix `A' of the Army Headquarters letter
no.B/70030/DGMS-4A dated 31st December, 1999, which was
registered as no.11048/Retire/Nur(o)/2008 dated 16th December, 2008
and also referred to as letter no.340023/M-F 25 dated 5th January,
2009. The petitioner furnished the requisite information, enclosing
therewith a copy of the divorce petition, her medical records as well as
all requisite undertakings including the undertaking that she had not
attended any course involving an obligatory period of service during
the last five years. The petitioner also submitted the certificate with
the application in terms of appendix `B' to the Army Headquarter
letter dated 31st December, 1999 to the effect that she had not been
allotted a PPO number by the CDA (P) and had not drawn any amount
on account of pensionary awards including pension and an
undertaking to pay amounts, if any, due to the Government before she
was relieved of her duties.
10. As the petitioner did not hear anything on the fate of her
resignation letter despite the passage of eight months, she addressed
a letter dated 18th August, 2009 to the Commandant of the Military
Hospital, Roorkee to know about the status of her resignation citing
the problems stated in her request on account of which she would not
be able to join her duties again. She requested the commandant to
send a reminder to the authorities concerned with regard to her
resignation.
11. In the meantime, a communication dated 17th August, 2009 was
issued by the Integrated Headquarters of the MOD (Army), Adjutant
General's Branch of the Director General of Medical Services (Army),
New Delhi addressed to the Headquarters of the Central Command
(Med), informing that the petitioner's request for resignation was
rejected on the following grounds:-
"..................the nursing officer had sought
resignation on the ground of marital disharmony
leading to filing of divorce petition by her spouse.
From the perusal of the contents of the petition, it is
revealed that reasons for filing of court case is not
merely the service of the nursing officer but also the
ill treatment to her-in-laws by the nursing officer. In
the petition her spouse has also alleged that the
nursing officer is least interested in staying with him.
Therefore, even her resignation from service will not
resolve their marital disharmony. Hence her request
for resignation from service has not been acceded
to."
12. The petitioner was informed of the rejection of this request under
cover of a letter dated 31st August, 2009 issued by Shri A.S. Rathor,
Colonel Sr. Registrar & OC TPS for Commandant and was called upon
to join her unit. It was also informed that sixty days furlough leave
had been sanctioned to her w.e.f. 8th September, 2009 and that an
order dated 17th August, 2009 posting her to 7 AFH had been received.
This movement was required to be implemented by 19th October,
2009.
13. Aggrieved by the rejection of her request for resignation from
service as well as by order of her posting, the petitioner has filed the
present writ petition seeking quashing of the order dated 17th August,
2009 with a direction to the respondents to accept her application for
resignation and to discharge her from military service.
Petitioner's contentions
14. In support of her writ petition, the petitioner has placed reliance
on the instructions issued for applying for premature
retirement/resignation from commission for Nursing Officers as are
provided in appendix `A' to the Army Headquarters letter No.B-
70030/DGMS-4A dated 31st December, 1999. It is contended that
these army instructions govern processing and consideration of
applications seeking to resign from service of members of the Military
Nursing Service. The petitioner contends that having regard to the
stated reasons, the respondents had no discretion at all thereunder so
far as consideration of her application was concerned and were bound
to have granted the same. The primary submission is that the
rejection is arbitrary, is based on irrelevant considerations and fails to
consider the relevant material. The challenge to her posting is
premised on the illegality attributed to this rejection.
15. The petitioner has contended that her request for voluntary
resignation falls under clause 4(b)(v)(aa) of the said instructions. It
has been urged that the petitioner has been compelled to put in her
request for voluntary resignation on the ground of extreme marital
discord which she is facing due to her employment. The petitioner
makes a grievance that the order violates her right to life, privacy and
dignity guaranteed under Article 21 of the Constitution of India.
16. The petitioner has explained that on account of the exigency of
service, she is unable to continuously cohabit with her husband. Her
inability to fulfil her marital obligations is putting extreme pressure on
her marriage so much so that her husband has filed a petition for
divorce. In support of the prayer made in the writ petition, learned
counsel for the petitioner has placed reliance on the judgment of the
Supreme Court in (1990) 4 SCC 27 J.K. Cotton Spinning and Weaving
Mills Company Ltd. Vs. State of UP & Ors. and the pronouncements
of this court reported at 1996 (1) SLR 505 : 1995 (59) DLT 573 Major
Rahul Shukla Vs. Union of India & Ors.; 2007 INDLAW DEL 176
Captain Preeti Giri Vs. Union of India & Ors.; 2000 (54) DRJ 188
Major S.K. Jain Vs. Union of India.
17. The submission is that the respondents were bound by the
afore-noticed instructions and could not have rejected the application
on any ground other than those stipulated thereunder.
18. It is further contended that in the judicial pronouncements afore-
noticed, the courts have held that the respondents were entitled to
keep in view service exigencies and inability to make immediate
alternative arrangements in consideration. However, even in such
eventuality, the respondents had no jurisdiction to reject an
application seeking to resign from service, but, had to keep the
decision thereon it in abeyance till such time alternative arrangements
are made. In this background, the petitioner has assailed the order
dated 17th August, 2009 contending that the order is arbitrary,
irrational and contrary to the binding instructions and guidelines read
with the applicable law and is therefore also violative of Article 14 of
the Constitution of India. The petitioner contends that unlike a prayer
for voluntary retirement which is fettered by several riders and
discretion lies with the competent authority to accept or reject the
same but a request for resignation has to be treated on a differential
footing as the discretionary power vested in the authorities for a
decision on an application for resignation is limited and circumscribed.
It has also been urged that the petitioner is not bound by any
bond or undertaking which would compel her to continue in service.
Respondent's submissions
19. The writ petition is vehemently opposed by Mr. Jatan Singh,
learned Standing Counsel for the respondents who contends that the
petitioner has no absolute right to acceptance of her prayer for
resignation or premature release from the Army. It is urged that such
request is required to be considered by the Government and
discretion in this regard lies with the respondents in terms of Section
11 of the Military Nursing Service Ordinance 1943 (`MNS Ordinance'
hereafter) which stands elaborated by para 105(f) of the Defence
Service Regulations (Vol.1) 1987.
20. It has further been contended that though the policy letter states
that marital disharmony shall be considered as one of the grounds for
sympathetic consideration of the request for release from service so
far as the petitioner was concerned, the competent authority rejected
her application for the reason that the basic ground for marital
disharmony is not the separation of the petitioner and her husband
but their mal-adjustment in personal relations. In this regard, the
respondents have extensively quoted from the divorce petition in the
counter affidavit and in the oral submissions and contended that the
application of the petitioner was rightly rejected since it was devoid of
any merit.
21. We may note that as per the respondents, only such applications
for resignation are accepted on marital grounds where the
respondents feel that the acceptance of the request will provide relief
to the Nursing Officer and that she will thereafter live with her
husband to lead a happy married life.
Applicable rules
22. Before considering the contentions of the parties on the merits,
we may consider the applicable rules and instructions governing the
subject. The respondents have drawn our attention to the contents of
the Defence Service Regulations Vol. 1, 1987. In this behalf, reliance
has been placed on para 102 and 104(d) which may be usefully
extracted and read as follows:-
"102. Refusal of Employment- An officer is not at liberty
to decline any employment in the Army for which he
may be selected, nor can he throw himself out of
employment by resignation of his appointment.
xxx xxx xxx
104. Retirement and Resignation -
xxx xxx xxx
(d) An officer will not be relieved of his duties until
receipt of intimation that his application to retire or
resign has been accepted. An officer whose
application to retire or resign has been accepted may
apply to the Central Government for his application to
be cancelled. In the case of officers who have once
proceeded on leave pending retirement, permission
to withdraw such applications will only be granted in
exceptional circumstances. The decision of the
Central Government on all applications to retire will
be final."
The respondents have placed reliance on para 105(a) and
(f) of the above regulations which reads as follows :-
"105. Application for Resignation-(a) Application of
officers of the Army resign their commission of to retire
from the service will be forwarded through the prescribed
channels to Army Hq. The applicant need not give a
prospective date from which it is desired that the
retirement/resignation should take effect as it may not
be administratively convenient for the competent
authority to take a decision by a desired date. However,
if an applicant desires to retire from a specified date for
any valid reasons, such as commutation of pension or
higher rate of pension, he may indicate a prospective
date in his application and submit his application not less
than 4 months before that date. In the case of retirement
with requisite qualifying service for pension, the
applicant will also state where he wishes to draw his
pension.
xxx xxx xxx
(f) The applications for premature
retirement/resignation will be examined by Army HQ and
submitted for consideration and approval of the COAS
who may reject an application which is not based on
adequate and justifiable reasons at his level without
reference to the Government or recommend for
acceptance by the Central Government. In case, the
officer feels aggrieved by the decision of the COAS, he
can, if he so chooses, file a statutory complaint
addressed to the Central Government under the
provisions of section 27 of the Army Act. The decision of
the Central Government on application to retire
premature/resign will be final."
23. The petitioner has placed reliance on the Instructions which
have been issued as Appendix `A' to the Army Headquarters letter
bearing no.B/70030/DGMS/-4A dated 31st December, 1999 on the
subject of "Premature Retirement/Resignation from Service :
Officers of MNS". The relevant extracts of these instructions
necessary for the present adjudication are set out hereafter:-
"Introduction
A nursing officer who desires to retire
prematurely or resign her commission before she
becomes due for retirement on account of
superannuation may apply for premature
retirement/resignation as per the instructions
contained in this letter.
xxx xxx xxx
Criteria for Acceptance
4. The grounds for premature
retirement/resignation will be considered on
individual merits subject to service requirements.
For acceptance of an application the
guidelines/criteria laid down by the Min. of Def which
are enclosed as Appx `A' will be the guiding factors.
However, the following guidelines in order of
preference would be followed for recommending
applications for PR/resignation.
xxx xxx xxx
(b) Extreme Compassionate Grounds : The request on
extreme compassionate grounds will be considered
after the facts represented by the nursing officers
are verified to the extent possible. The following
compassionate grounds will be given preference for
acceptance of request for premature
retirement/resignation:-
xxx xxx xxx
(v) Marital disharmony
(aa) Where there is a threat of divorce corroborated
by a certificate from Registrar of the court but not
from his/her counsel regarding filing of a case in the
court for divorce with a copy of court documents.
(ab) Spouse settled abroad and unwilling to return
to the country - a certificate duly attested by a First
Class Magistrate to be produced by the applicant.
xxx xxx xxx
Essential Conditions
5. Conditional requests for premature
retirement/resignation which are coupled with
postings, reconsideration of punishment, expunction
of adverse remarks in annual confidential reports
etc. will not be entertained. The aggrieved nursing
officer may be advised to take up such issues
separately and submit applications for premature
retirement/resignation only when they have finally
decided to leave service unconditionally,
applications from the nursing officers for premature
retirement/resignation whose statutory/non-
statutory complaints are pending will be considered
only after decision on the complaint is
communicated and the officer decides to leave the
service unconditionally. However, the concerned
nursing officer, if she so desires, may withdraw her
complaint under intimation to all concerned before
submitting her application for premature
retirement/resignation.
6. Applications from the nursing officers who are
involved in any disciplinary case or enquiry, judicial
or quasi judicial proceedings, will not be forwarded
to this HQ until the case against them is finalized. In
case the nursing officer gets involved in any such
cases after forwarding her application the matter will
be immediately reported to this HQ and AC/DV-2 at
the earliest. In this connection attention is also
invited to paras 6-8 (a & c) of AG's Branch letter
No.B/39010/AG/PS-4C dated 11 Aug 95."
Discussion
24. It is noteworthy that the instructions dated 31st December, 1999
have been specifically issued for the Military Nursing Service and are
the only guidance on the subject. The respondents have also not
disputed the validity and the bindingness of these instructions on the
subject. We thus find that the manner in which a request for voluntary
resignation from service by an officer of the Military Nursing Service is
to be made, processed, as well as the considerations which would
guide the decision making on such a request are stipulated in the
afore extracted instructions which have been annexed as appendix
`A' to the Army Headquarters letter dated 31st December, 1999. No
other rule, regulation or instruction on the subject has been pointed
out.
25. The petitioner has urged that having regard to the admittedly
binding instructions and the guidelines provided therein, it was not
open to the respondents to reject the petitioner's request for
resignation from service on a ground other than one which is
stipulated thereunder.
26. There can be no dispute also to the applicability of the Defence
Service Regulations relied upon by the respondents. However, it
needs no elaboration that a decision rejecting an application to be
relieved from service which impacts fundamental rights of a party and
is assailed on grounds of arbitrariness and irrationality, would be
subject to judicial review in appropriate proceedings despite the
statement that finality is attached to it in para 104(d) of the said
Regulation as extracted above.
Nature of right involved
27. The first issue which bears consideration as to what is the nature
of the right of the petitioner which is involved. The petitioner submits
that by resigning her commission, she is making an endeavour to
preserve her family by dispelling the acrimony and discord in her
matrimonial life.
28. It is important to note that the expression "family" as a social
unit is not specifically statutorily defined in any legislation in India.
International perspectives and impact on the right involved in the
present case
29. The right to family life has, however, been placed at the highest
pedestal and has attained comprehensive recognition and protection
in international law. It is noteworthy that several international
conventions are centered around the family as a unit and list such
right as a fundamental and basic human right. Foremost amongst
these is the Universal Declaration of Human Rights, 1948. Articles
12, 16 and 25 of this declaration unequivocally state that family is a
natural and fundamental group unit of society which is entitled to
protection by society and the state, and stipulate as follows:-
"Article 12
No one shall be subjected to arbitrary interference with
his privacy, family, home or correspondence. Everyone
has the right to the protection of the law against such
interference.
Article 16
1. Men and women of full age, without any limitation
due to race, nationality or religion, have the right to
marry and to found a family. They are entitled to equal
rights as to marriage, during marriage and at its
dissolution.
2. Marriage shall be entered into only with the free
and full consent of the intending spouses.
3. The family is the natural and fundamental group
unit of society and is entitled to protection by society
and the State.
xxx xxx
Article 25
1. Everyone has the right to a standard of living
adequate for the health and well-being of himself and of
his family, including food, clothing, housing and medical
care and necessary social services..
2. Motherhood and childhood are entitled to special
care and assistance. All children, whether born in or out
of wedlock, shall enjoy the same social protection."
India voted in favour of this declaration and has also
adopted it."
(emphasis supplied)
30. The International Covenant on Economic, Social, Cultural
Rights, 1966 also underlines the importance of the family. In Article
10(1), 17 & 23, it states as follows:-
"Article 10
The State Parties to the present Covenant recognize
that:
(1) The widest possible protection and assistance should
be accorded to the family, which is the natural and
fundamental group unit of society, particularly for its
establishment and while it is responsible for the care
and education of dependent children. Marriage must be
entered into with the free consent of the intending
spouses.
xxx xxx xxx
Article 17
1. No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honor and
reputation.
2. Everyone has the right to the protection of the law
against such interference or attacks.
xxx xxx xxx
Article 23
1. The family is the natural and fundamental group unit of
society and is entitled to protection by society and the
State.
2. The right of men and women of marriageable age to
marry and to found a family shall be recognized.
3. No marriage shall be entered into without the free and
full consent of the intending spouses.
4. States parties to the present covenant shall take
appropriate steps to ensure equality of rights and
responsibilities of spouses as to marriage, during marriage
and at its dissolution. In the case of dissolution, provision
shall be made for the necessary protection of any children."
(Underlining by us)
This covenant came into force on 3rd January, 1976 while India
ratified it on the 10th of April, 1979. It also recognises that the widest
possible protection and assistance should be accorded by the state
parties to the family which is the natural and fundamental group unit
of society.
31. The International Covenant on Civil and Political Rights is a
multilateral treaty adopted by the United Nations General Assembly
on 16th of December, 1966 and entered into force on 23rd March, 1976
which restates the above principles. Article 23 thereof is relevant for
the present consideration and states as follows :-
"Article 23
1. The family is the natural and fundamental
group unit of society and is entitled to protection by
society and the State.
2. The right of men and women of marriageable
age to marry and to found a family shall be
recognized.
3. No marriage shall be entered into without the
free and full consent of the intending spouses.
4. States Parties to the present covenant shall
take appropriate steps to ensure equality of rights
and responsibilities of spouses as to marriage,
during marriage and at its dissolution. In the case of
dissolution, provision shall be made for the
necessary protection of any children."
(Underlining supplied)
It is pertinent to note that India is a state party to the treaty.
The 'State parties' have an obligation to respect the human rights
mentioned in this treaty.
32. Article 16 of the Convention on the Elimination of All Forms of
Discrimination Against Women, 1979 is another provision which
grants comprehensive protection to women in the context of family
life. The relevant extract thereof reads as follows :-
"Article 16
1. States Parties shall take all appropriate measures to
eliminate discrimination against women in all matters relating
to marriage and family relations and in particular shall ensure,
on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into
marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and
at its dissolution;
xxx xxx xxx"
33. Certain regional covenants and instruments also recognise the
right to marriage including the European Convention on Human
Rights which states as follows :-
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority ex-
cept such as is in accordance with law and is necessary in
a democratic society in the interests of national security,
public safety or the economic wellbeing of the country, for
the protection of health or morals or for the protection of
the rights and freedoms of others."
34. Article 9 of the Charter of Fundamental Rights of the European
Union which was declared at Nice in December 2000 provides that
'The right to marry and the right to found a family shall be guaranteed
in accordance with the national laws governing the exercise of these
rights.'
35. These international and regional conventions emphasise the
centrality and the social importance of the family and are a clear
expression of the recognition of the right to family as well as the
protection of the family unit, as a basic human right.
36. The effect of these international norms and covenants on
recognition, exposition, expansion and interpretation of basic human
rights and expansion of fundamental rights guaranteed under the
Constitution of India is well settled. Reference to celebrated and
binding judicial precedents on this aspect can be usefully adverted to.
On the issue of absence of domestic legislation on the subject of
sexual harrasment at work place and the jurisdiction of the courts to
rely upon international norms, in para 7 & 14 of the pronouncement
reported at AIR 1997 SC 3011 Vishakha & Ors. vs. State of
Rajasthan & Ors. the Supreme Court had stated as follows :-
"7. In the absence of domestic law occupying the field, to
formulate effective measures to check the evil of sexual
harassment of working women at all work places, the
contents of International Conventions and norms are
significant for the purpose of interpretation of the
guarantee of gender equality, right to work with human
dignity in Articles 14 15 19(1)(g) and 21 of the
Constitution and the safeguards against sexual
harassment implicit therein. Any International Convention
not inconsistent with the fundamental rights and in
harmony with its spirit must be read into these provisions
to enlarge the meaning and content thereof, to promote
the object of the constitutional guarantee. This is implicit
from Article 51(c) and the enabling power of the
Parliament to enact laws for implementing the
International Conventions and norms by virtue of Article
253 read with Entry 14 of the Union List in Seventh
Schedule of the Constitution. Article 73 also is relevant. It
provides that the executive power of the Union shall
extend to the matters with respect to which Parliament
has power to make laws. The executive power of the
Union is, therefore, available till the Parliament enacts
legislation to expressly provide measures needed to curb
the evil.
14. The meaning and content of the fundamental rights
guaranteed in the Constitution of India are of sufficient
amplitude to encompass all the facets of gender equality
including prevention of sexual harassment or abuse.
Independence of judiciary forms a part of our
constitutional scheme. The international conventions and
norms are to be read into them in the absence of enacted
domestic law occupying the field when there is no
inconsistency between them. It is now an accepted rule of
judicial construction that regard must be had to
international conventions and norms for construing
domestic law when there is no inconsistency between
them and there is a void in the domestic law. The High
Court of Australia in Minister for Immigration and Ethnic
Affairs v. Tech 128 ALR 353, has recognised the concept
of legitimate expectation of its observance in the absence
of a contrary legislative provision, even in the absence of
a Bill of Rights in the Constitution of Australia."
(emphasis by us)
37. In (1999) 1 SCC 759 Apparel Export Promotion Council vs. A.K.
Chopra, also the Supreme Court was dealing with the case of sexual
harassment at the place of work which vitiated the working
environment and observed that the international instruments cast an
obligation on the Indian State to gender sensitise its laws and the
Courts are under an obligation to see that the message of the
international instruments is not allowed to be drowned. The Supreme
Court again emphasised that the courts must never forget the core
principles embodied in International Conventions and Instruments and
reiterated the above principles.
38. In the case of (2003) 6 SCC 1 Kapila Hingorani Vs. State of
Bihar, the Apex court while placing reliance on a previous
pronouncement stressed on the importance of reading International
Treaties and Conventions into the interpretation of Constitutional
provisions and domestic laws. Placing reliance on earlier judgments,
the court observed as follows:
"47. It is also well-settled that a statute should be
interpreted in the light of the International Treaties
and Conventions. In Chairman, Railway Board and
Ors. v. Mrs. Chandrima Das and
Ors. MANU/SC/0046/2000 : 2000CriLJ1473 this Court
stated the law thus:-
"24. The International Covenants and
Declarations as adopted by the United
Nations have to be respected by all signatory
States and the meaning given to the above
words in those Declarations and Covenants
have to be such as would help in effective
implementation of those rights. The
applicability of the Universal Declaration of
Human Rights and the principles thereof may
have to be read, if need be, into the domestic
jurisprudence." "
(underlining supplied)
39. The principles which would govern the extent and manner and
applicability of International Conventions and treaties have been
succinctly laid down in a pronouncement of the Supreme Court
reported at JT 2008(7)SC11, 2008(9)SCALE69 Entertainment
Network (India) Ltd. Vs. Super Cassette Industries Ltd. This case
was concerned with an issue involving interpretation of Section 31 of
the Copyright Act, 1957. The court traced the evolution of the
jurisprudence on the issue under consideration in paras 48 to 54 which
are important and read as follows:-
"48. Beginning from the decision of this Court in
Kesavananda Bharati v. State of Kerala
MANU/SC/0445/1973 : AIR 1973 SC 1461, there is
indeed no dearth of case laws where this Court has
applied the norms of international laws and in
particular the international covenants to interpret
domestic legislation. In all these cases, this Court
has categorically held that there would be no
inconsistency in the use of international norms to
the domestic legislation, if by reason thereof the
tenor of domestic law is not breached and in case of
any such inconsistency, the domestic legislation
should prevail.
In Jagdish Saran and Ors. v. Union of India
MANU/SC/0067/1980 : (1980) 2 SCR 831, it was
observed:
"It is also well-settled that interpretation of
the Constitution of India or statutes would
change from time to time. Being a living
organ, it is ongoing and with the passage
of time, law must change. New rights may
have to be found out within the
constitutional scheme. Horizons of
constitutional law are expanding."
49. In the aforementioned judgment, this Court
referred to a large number of decisions for the
purpose of treaties and conventions. Yet again in
Indian Handicrafts Emporium and Ors. v. Union of
India MANU/SC/0640/2003 : AIR 2003 SC 3240, this
Court considered the Convention on International
Trade in Endangered Species (CITIES) and applied
the principles of purposive constructions as also not
only the Directive Principles as contained in Part IV
of the Constitution but also Fundamental Duties as
contained in Part IVA thereof. Referring to Motor
General Traders and Anr. v. State of Andhra Pradesh
and Ors. MANU/SC/0293/1983 : (1986) 1 SCR 594,
Rattan Arya and Ors. v. State of Tamil Nadu and Anr.
MANU/SC/0550/1986 : (1986) 2 SCR 596 and
Synthetics and Chemicals Ltd. and Ors. v. State of
U.P. And Ors. MANU/SC/0595/1989 : AIR 1990 SC
1927, this Court held:
"There cannot be any doubt whatsoever
that a law which was at one point of time
was constitutional may be rendered
unconstitutional because of passage of
time. We may note that apart from the
decisions cited by Mr. Sanghi, recently a
similar view has been taken in Kapila
Hingorani v. State of Bihar (supra) and John
Vallamattom and Anr. v. Union of India
(supra)."
50. These judgments were referred to in the
decision of Liverpool and London S.P. and I Asson.
Ltd. v. M.V. Sea Success I and Anr.
MANU/SC/0951/2003 : (2004) 9 SCC 512, wherein
this Court observed that as no statutory law in India
operated in the field, interpretative changes, if any,
must, thus be made having regard to the ever
changing global scenario. Liverpool also referred for
the proposition that the changing global scenario
should be kept in mind having regard to the fact that
there does not exist any primary act touching the
subject and in absence of any domestic legislation to
the contrary. Concurring with the said decisions, it
was however opined that the same could not mean
that it restricted the jurisdiction of the Indian High
Courts to interpret the domestic legislation strictly
according to the judge made law.
51. Liverpool and London S.P. and I Asson. Ltd.
(supra) has been followed by the Supreme Court in a
plethora of cases inter alia The State of West Bengal
v. Kesoram Industries Ltd. & Ors.
MANU/SC/0038/2004 : (2004) 2 66 ITR 721(SC). In
Pratap Singh v. State of Jharkhand and Anr.
MANU/SC/0075/2005 : 2005 CriLJ 3091 wherein this
Court directed to interpret the Juvenile Justice Act in
light of the Constitutional as well as International
Law operating in the field. (See also Centrotrade
Minerals and Metal Inc. v. Hindustan Copper Limited
MANU/SC/8146/2006 : (2006) 11 SCC 245 : State of
Punjab; State of Punjab and Anr. v. Devans Modern
Brewaries Ltd. and Anr. MANU/SC/0961/2003 :
(2004) 11 SCC 26 and Anuj Garg and Ors. v. Hotel
Association of India and Ors. MANU/SC/8173/2007 :
AIR 2008 SC 663.
52. However, applicability of the International
Conventions and Covenants, as also the resolutions,
etc. for the purpose of interpreting domestic statute
will depend upon the acceptability of the
Conventions in question. If the country is a
signatory thereto subject of course to the provisions
of the domestic law, the International Covenants can
be utilized. Where International Conventions are
framed upon undertaking a great deal of exercise
upon giving an opportunity of hearing to both the
parties and filtered at several levels as also upon
taking into consideration the different societal
conditions in different countries by laying down the
minimum norm, as for example, the ILO
Conventions, the court would freely avail the
benefits thereof. Those Conventions to which India
may not be a signatory but have been followed by
way of enactment of new Parliamentary statute or
amendment to the existing enactment, recourse to
International Convention is permissible.
53. This kind of stance is reflected from the
decisions in PUCL v. Union of India
MANU/SC/0274/1997 : AIR 1997 SC 1203, John
Vallamattom v. Union of India MANU/SC/0480/2003 :
AIR 2003 SC 2902, Madhu Kishwar v. State of Bihar
MANU/SC/0468/1996 : AIR 1996 SC 1864, Kubic
Darusz v. Union of India MANU/SC/0426/1990 : 1990
CriLJ 796, Chameli Singh v. State of
Swaminathaswami Thirukoil MANU/SC/0441/1996 :
(1996) 1 SCR 1068, Apparel Export Promotion
Council V. A.K. Chopra MANU/SC/0014/1999 : (1999)
1 LLJ 962 SC, Kapila Hingorani v. State of Bihar
MANU/SC/0403/2003 : (2003) III LLJ 31 SC, State of
Punjab and Anr. v. Devans Modern Breweries and
Anr. MANU/SC/0961/2003 : (2004) 11 SCC 26 and
Liberpool & London S.P. & I Asson. Ltd. v. M.V. Sea
Success I MANU/SC/0951/2003 : (2004) 9 SCC 512."
40. With regard to the application of International conventions and
treaties in India, in para 47 it was pointed out that International Law
had been utilised for several purposes including the following :-
"In interpreting the domestic/municipal laws, this court
has extensively made use of International law inter alia
for the following purposes :
(i) As a means of interpretation;
(ii) Justification or fortification of a stance taken;
(iii) To fulfill spirit of international obligation which
India has entered into, when they are not in
conflict with the existing domestic law;
(iv) To reflect international changes and reflect the
wider civilization;
(v) To provide a relief contained in a covenant, but not
in a national law;
(vi) To fill gaps in law."
41. So far as the present case is concerned there is no legislation on
the question which arises. The right recognised by and the rules laid
down in the aforenoticed international conventions, would guide the
consideration of the petitioner's right in the light of the following
principle laid down in Entertainment Network (India) Ltd. v. Super
Cassette Industries (supra) :-
"54 Furthermore, as regards the question where
the protection of human rights, environment,
ecology and other second generation or third-
generation rights is involved, the courts should not
be loathe to refer to the International Conventions."
42. The jurisdiction of the high courts to source and base
interpretation and rights in international conventions stands
recognised and reiterated by the Supreme Court in the above referred
precedents. (Ref :- Liverpool and London S.P. and I Asson. Ltd. v.
M.V. Sea Success I and Anr. (supra); Vishakha & Ors. vs. State of
Rajasthan & Ors.; Apparel Export Promotion Council vs. A.K.
Chopra; Jagdish Saran and Ors. v. Union of India (Supra)).
43. Marriage involves fundamental decisions about creation of a
relationship which stands recognised as a basic human right in the
several international and regional conventions and treaties set out
above. The same is also an essential part of the national constitutions
and legislations in several countries including the Constitutions of the
Kingdom of Belgium, Hellenic Republic, Kingdom of Spain, Ireland,
Italian Republic, Republic of Cyprus, Republic of Latvia, Republic of
Lithuania, Republic of Hungary, Republic of Poland, Portuguese
Republic and the Republic of Slovenia and others. Marriage and
family are under the special protection of the state under the basic
law of the Federal Republic of Germany.
44. The international instruments recognise and reiterate that the
family is a natural and fundamental group unit of society; provide that
it is the right of men and women of marriageable age to marry and
found a family, and clearly state that such right is entitled to
protection by society and the state.
45. The international instruments further clearly state that parties
are all under obligation to take appropriate steps to ensure equality of
rights and responsibilities of spouses as to marriage and that the
states are also under an obligation to recognise and accord the widest
possible protection and assistance to the family as a natural and
fundamental group unit of society.
46. It would, therefore, be the responsibility of the respondents and
the duty of the court to construe the right claimed in the context of
these norms, and ensure its protection.
Marriage as part of right to life under Article 21 and protection
accorded to a person's privacy and dignity
47. Even though marriage as a right has not received statutory
recognition in any legislation in India, judicial pronouncement has,
however, held that the individual's privacy of marriage and dignity are
essential concomitants of the right to life and liberty guaranteed under
Article 21 of the Constitution of India which are to be afforded
protection.
48. In (1994) 6 SCC 632 R. Rajagopal vs. State of Tamilnadu , the
Supreme Court held that "the right to privacy was implicit in the right
to life and liberty guaranteed to the citizens of this country by Article
21 and that a citizen has a right to safeguard the privacy of his own,
his family, marriage, procreation, motherhood, child-bearing and
education among other matters".
49. The Supreme Court has declared that though our Constitution did
not refer the right to privacy expressly, still it can be traced from the
right to life in Article 21. In (1964) 1 SCR 332 Kharak Singh vs. State
of U.P., it has been held that 'right to privacy' was part of right to life
in Article 21.
50. On the issue as to what would constitute privacy, light is thrown
in the judgment of the Supreme Court in Gobind vs. State of M.P.
(1975) 2 SCC 148. Placing reliance on the pronouncements of the US
Supreme Court reported at 381 (1965) US 479 Griswold vs.
Connecticut and 410 (1973) US 113 Jane Roe vs. Henry Wade, it was
held as follows :-
"20. There can be no doubt that the makers of our
Constitution wanted to ensure conditions favourable to
the pursuit of happiness. They certainly realised as
Brandeis, J. said in his dissent in Olmstead v. United
States 277 US 438, 471 the significance of man's
spiritual nature, of his feelings and of his intellect and
that only a part of the pain, pleasure, satisfaction of
life can be found in material things and therefore they
must be deemed to have conferred upon the
individual as against the Government a sphere where
he should be let alone.
xxx xxx xxx
22. There can be no doubt that privacy-dignity
claims deserve to be examined with care and to be
denied only when an important countervailing interest
is shown to be superior, or where a compelling state
interest was shown. If the court does find that a
claimed right is entitled to protection as a
fundamental privacy right, a law infringing it must
satisfy the compelling state interest test. Then the
question would be whether the state interest is of such
paramount importance as would justify an
infringement of the right."
In para 28, it was held that the right to privacy will have to go
through a process of case-by-case development and that the right is
not absolute.
51. In 381 (1965) US 479 entitled Griswold v. State of Connecticut,
the Court described the protected interest as a right to privacy and
placed emphasis on the marriage relation and the protected space of
marital cohabitation.
52. In 410 (1973) US 113 entitled Jane Roe v. Wade, the US
Supreme Court had observed that though the Constitution of the USA
does not explicitly mention any right of privacy, the United States
Supreme Court recognised that a right of personal privacy or a
guarantee of certain areas or zones of privacy, does exist under the
Constitution, and that the roots of that right may be found in the First
Amendment, in the Fourth and Fifth Amendments, in the penumbras
of the Bill of Rights in the Ninth Amendment and in the concept of
liberty guaranteed by the first section of the Fourteenth Amendment.
53. Constitutional protection to personal decisions relating to
marriage, family relationships, procreation, contraception, child
rearing and education was reiterated in the judgment reported in 505
(1992) US 833 entitled Planned Parenthood of Southeastern Pa v.
Casey. The Court explained the respect that the constitution demands
for the autonomy of the person in these matters which involve "the
most intimate and personal choices a person may make in a lifetime,
choices central to personal dignity and autonomy, are central to the
liberty protected by the Fourteenth Amendment. At the heart of
liberty is the right to define one's own concept of existence, of
meaning, of the universe, and of the mystery of human life. Beliefs
about these matters could not define the attributes of personhood
were they formed under compulsion of the State".
54. It is considered the normal aspiration of every human being to
fulfil his personal being and the desire to belong to a family unit of
which he considers himself to be a part. It brings about the most
intimate, socially and legally accepted relationship. The right to family
life is recognised as an important right of every individual. This is the
aspiration which the petitioner is seeking to be recognised, respected
and protected.
55. Human dignity is also considered an essential concomitant of the
right to life under Article 21 of the Constitution of India.
56. The expression `dignity of the individual' finds specific mention
in the preamble to the Constitution of India. In AIR 1980 SC 1535 :
1980 SCR (3) 855 Prem Shankar Shukla vs. Delhi Administration at
page 529, V.R. Krishna Iyer, J had observed that the guarantee of
human dignity forms part of our human culture.
57. The concept of right to dignity has been explained in para 8 of
(1981) 1 SCC 608 Francis Coralie Mullin vs. Administrator, Union
Territory of Delhi & Ors., in the following terms:-
"... We think that the right to life includes the
right to live with human dignity and all that goes
along with it, namely, the bare necessaries of life
such as adequate nutrition, clothing and shelter
and facilities for reading, writing and expressing
oneself in diverse forms, freely moving about and
mixing and commingling with fellow human beings.
......... Every act which offends against or impairs
human dignity would constitute deprivation pro
tanto of this right to live and it would have to be in
accordance with reasonable, fair and just
procedure established by law which stands the test
of other fundamental rights."
58. A Division Bench of this court in the pronouncement reported at
160 (2009) DLT 277 Naz Foundation vs. Government of NCT of Delhi
& Ors., in para 26 has observed that the constitutional protection of
dignity requires us to acknowledge the value and worth of all
individuals as members of our society. It recognises a person as a
free being who develops his or her body and mind as he or she sees
fit. The court held that at the root of the dignity is the autonomy of
the private will and a person's freedom of choice and of action.
Human dignity rests on recognition of the physical and spiritual
integrity of the human being, his or her humanity, and his value as a
person, irrespective of the utility he can provide to others.
59. In this regard, the court had placed reliance on the observations
of L'Heureux-Dube, J in Egan vs. Canada (1995) 29 CRR 2nd 79, 106 to
the effect that dignity is a difficult step to capture in precise terms.
The court had also relied on expansion of this concept in the
pronouncement of the Canadian Supreme Court in the judgment
reported as The Canadian Supreme Court in Law vs. Canada (Ministry
of Employment and Immigration, 1999 (1) SCR 497 wherein it was
held as follows :-
"Human dignity means that an individual or group
feels self-respect and self-worth. It is concerned with
physical and psychological integrity and
empowerment. Human dignity is harmed by unfair
treatment premised upon personal traits or
circumstances which do not relate to individual
needs, capacities, or merits. It is enhanced by laws
which are sensitive to the needs, capacities, and
merits of different individuals, taking into account
the context underlying their differences. Human
dignity is harmed when individuals and groups are
marginalized, ignored, or devalued, and is enhanced
when laws recognise the full place of all individuals
and groups within Canadian society."[at para 53]"
60. It needs no elaboration that the right to life under Article 21
encompasses protection of a person's dignity, autonomy and privacy.
Section 2(i)(d) of the Protection of Human Rights Act, 1943 defines
`human rights' as the 'rights relating to life, liberty, equality and
dignity of the individual guaranteed by the Constitution or embodied
in the International Covenants and enforceable by the courts in India.
The rights to life, liberty and dignity thus stand statutorily recognised
as well in the above legislation as entitled to protection and
enforceable by judicial process.
61. The right to marriage encapsulates the right to privacy, dignity,
liberty and self-fulfilment of the aspirations of individuals, which stand
recognised as essential concomitants of the right to life under Article
21 of the Constitution of India. It is also the object, spirit and
intendment of the several laws relating to marriage. The social
importance of the family unit as a social institution between persons
of opposite sexes also stands emphasised in several judgments.
Personal liberty under Article 21 would take into its ambit the right to
marry, cohabit and socialise with spouse and other members of
family. Without such right and opportunity the `family' as a unit would
be meaningless and marriage would be an empty shell. Thus the
claimed right of the petitioner to marriage and cohabitation with her
family, which is involved in the instant case, is an essential part of her
fundamental right to life guaranteed under Article 21 of the
Constitution. The challenge by the petitioner has to be examined in
the context of the complained violation of this basic right.
Denial of the application for resignation - Whether violates the
petitioner's privacy & dignity and tantamounts to infringement of
any right of the petitioner.
62. There is another aspect to the right to life which would be
involved in the instant case. The expression 'personal liberty' in
Article 21 has been held by the Supreme Court to be covering a
variety of rights which go into constitution of the personal liberty of
man which have been raised to the status of fundamental rights and
also lend additional support and protection to the right guaranteed
under Article 19 of Chapter III of the Constitution. In (1978) 1 SCC
248 Maneka Gandhi vs. Union of India, it was held that any law
interfering with the personal liberty of persons must satisfy the triple
test of (i) it must prescribe a procedure; (ii) the procedure must
withstand a test of one or more of the fundamental rights conferred
under Article 19 applicable in a given situation; and (iii) it must also be
liable to be tested with reference to Article 14. It is well settled that
the tests propounded by Article 14 pervade Article 21 as well and any
law and procedure authorising interference with the personal liberty
must also be right and just and fair and not arbitrary, fanciful or
oppressive. If the procedure prescribed does not satisfy such
requirement of Article 14, it would fail to be a procedure within the
meaning of Article 21.
63. Restrictions on the private intimacy which a marriage entails is a
breach of the individual's privacy and dignity and hence would be an
infraction of the fundamental rights conferred under Article 21 of the
Constitution of India. The same can only be by a law and procedure
which satisfies the established tests. Such procedure and its working
cannot be arbitrary, illogical or irrational.
64. The exercise of the right to marry obviously gives rise to
personal, social as well as legal consequences. It would be subject to
the constitutional provisions and the prevailing laws. So far as the
defence services are concerned, there would be several limitations
prescripted by the legislations, rules and regulations governing the
armed forces. However, the limitations thereby must not restrict or
reduce right to such an extent or in such a way that the very existence
of the right is irreparably damaged or permanently impaired. The
dissolution of marriage by decree of divorce obviously results in
demolition of the very edifice on which a marital relationship rests. It
is, therefore, to be seen as to whether the order passed by the
respondents is substantially and procedurally reasonable.
65. The Supreme Court has explained the difference between
voluntary retirement and resignation in a judgment reported at (1990)
4 SCC 27 J.K. Cotton Spinning & Weaving Mills Company Ltd. Vs.
State of UP & Ors. In para 7 of the pronouncement, so far as
resignation is concerned, the court had observed as follows:-
"7. From the aforesaid dictionary meanings becomes
clear that when an employee resigns his office, he
formally relinquishes or withdraws from his office. It
implies that he has taken a mental decision to sever
his, relationship with his employer and thereby put an
end to the contract of, service, As pointed out earlier
just as an employer can terminate the services of his
employee under the contract, so also an employee
can inform his employer that he does not desire to
serve him any more. Albeit, the employee would have
to give notice of his intention to snap the existing
relationship to enable the employer to make
alternative arrangements so that his work does not
suffer. The period of notice will depend on the period
prescribed by the terms of employment and if no such
period is prescribed, a reasonable time must be given
before the relationship is determined. If an employee
is not permitted by the terms of his contract to
determine the relationship of master and servant,
such an employment may be branded as bonded
labour, That is why in Central Inland Water Transport
Corporation v. Brojonath Ganguly this Court observed
as under : (SSCC p.228, para 111)
"By entering upon a contract of employment
a person does not sign a bond of slavery and
a permanent employee cannot be deprived
of his right to resign. A resignation by an
employee would, however, normally require
to be accepted by the employer in order to
be effective."
66. These observations are made in the context of civil employment.
Undoubtedly, the considerations which govern severance of the
employment in the defence services are different. The observations,
however, do shed valuable light on the question raised before us and
would certainly guide adjudication in the instant case.
67. It needs no elaboration that there are restrictions on the working
of the rights of persons in service with the defence services. Article 33
of the Constitution permits such restrictions as are reasonable.
68. So far as fundamental rights of serving officers of the army are
concerned, reference can usefully be made to the pronouncement of
the Supreme Court reported in JT 2000 (5) SC 135 Union of India Vs.
Charanjit S. Gill & Ors. wherein the court had held that the
fundamental rights of serving officers of the army have to be
protected to the extent permissible under law by not forgetting the
paramount need of maintaining the discipline in the armed forces of
the country.
69. At this stage, we may usefully refer to the judicial
pronouncement reported at 1995 (59) DLT 573 : 1996 (1) SLR 505
Major Rahul Shukla Vs. Union of India & Ors. wherein this court had
occasion to consider a request for resignation by the petitioner who
was a doctor with the Indian Army. The observations of this court on
the nature of and limitations on the right of an army personnel to
resign from the commission as well as the manner in which such an
application is required to be processed shed valuable light on the
issue in hand and deserve to be considered in extenso. The same
read as follows:-
"9. There may be substance in the submission of
learned counsel for the respondent that the service
jurisprudence applicable to the civil services cannot
be ipso facto extended and applied to defence
services which are a class by themselves and
therein considerations of secrecy, and of safety,
security and sovereignty of the country have vital
role to play enabling personal interest to be
sacrificed for or giving way to the larger interests of
the nation. Yet it cannot be forgotten that the
persons serving the army are citizens of the country
and the authorities in the army are subject to the
Constitution.
10. Assuming that the right of an army personnel
to resign from his commission in army may not be
so wide and absolute as it may be in civil services,
yet the authorities in the army are bound to follow
the regulations of the army and they have to play
within the four corners laid down thereby subject to
provision of law. A reading of the several provisions
of that Section of the Army Manual which deals with
the removal resignation and retirement of army
personnel, specially the provisions which we have
quoted hereinabove, in our opinion, leads to a few
inferences. The applications for voluntary retirement
or resignation though dealt with on similar footing
do not in fact deserve so. While an application
seeking voluntary retirement is fettered by several
riders and discretion lies with Competent Authority
to accept or not to accept the prayer; a prayer for
resignation has to be dealt with on different footing
as the discretionary power vested in the authorities
taking decision on application for resignation is
limited and circumscribed.
11. An application for resignation may be rejected if it is not
based on adequate and justifiable reasons. The over-riding
consideration is whether the officer's continuance in service for
a specific period is necessary to meet exigencies in a
service and alternative arrangements cannot be
made. Even in such a case the application for resignation
cannot be rejected. It can only be held in abeyance. In the
case at hand it is not the case of the respondent that
the facts stated by the petitioner in his application
for resignation were false or were not adequate or
not justifiable. That finding could not have been
arrived at in as much as the Colonel Commanding
Officer having personally reviewed the application,
was satisfied of the validity thereof. Any higher
authority to form an opinion different from the one
expressed by the Colonel Commanding Officer must
have been possessed of material concrete enough to
form a different opinion which it is not so.
12. The ground on which the application has been
turned down is the necessity of the petitioner
continuing in service to meet exigencies .thereof.
That cannot be a ground for rejection of the
application. It may be a ground for keeping the
application in abeyance. Unfortunately on two
occasions the grounds available-for keeping the
application in abeyance was utilised for rejecting the
application.
13. The petitioner moved the application for
resignation earlier on 22.3.93 and later on 6.6.94.
The respondents should have formed an opinion
about the period for which the petitioner's
continuance in service was necessary and how much
time it would take to make an alternative
arrangement. It is difficult to believe the authorities
of the respondents could not have succeeded in
making alternative arrangements during the period
of over two years by this time and if that be so then
it is not a happy reflection on them."
(Emphasis by us)
This court had allowed the above petition and set aside the
impugned order rejecting the petitioner's request for resignation. The
respondents were directed to consider the same afresh with sympathy
and compassion.
70. We are informed by Shri S.K. Kakkar, learned counsel for the
petitioner that the Special Leave Petition assailing the above judgment
also stands rejected and it has attained finality. The respondents are
therefore bound to consider applications for resignation from
commission from the forces in accordance with these principles.
Inability to permit immediate resignation even on account of service
exigency, therefore can merely result in postponement of the event
and not denial of the request.
71. Our attention is also drawn to the judgment of this court in a writ
petition filed by a lady officer of the Military Nursing Service reported
at 2007 INDLAW DEL 176 Captain Preeti Giri Vs. Union of India &
Ors. In this case, the court had occasion to consider the petitioner's
request for discharge from Military Nursing Service in terms of the
afore-noticed policy on extreme compassionate ground. The
petitioner was given liberty to make a fresh application enclosing
supporting documents for consideration thereby making out a case of
discharge before the respondents.
72. Learned counsel for the petitioner has also placed a
pronouncement of this court reported at 2000 INDLAW DEL 747 :
2000 (54) DRJ 188 Major S.K. Jain Vs. Union of India wherein the
petitioner, who was a captain in the Army, had submitted an
application for premature retirement in view of domestic problems
being faced by him. This application had been rejected by the
respondents which order was the subject matter of challenge. In this
case, the petitioner had placed reliance on policy guidelines dated 20th
January, 1979 governing the consideration of an application for
premature retirement. The petitioner had also sought to bring his
case within the clause of extreme compassionate grounds which were
disputed by the respondents. Placing reliance on the earlier
pronouncement of the Division Bench in Major Rahul Shukla (supra) it
was held that the competent authority had committed an error in
treating the specific instructions detailed in the policy as exhaustive
rather than illustrative of the instances cited therein.
It is, therefore, open to the respondents to consider applications
for resignation on grounds other than those cited in the guidelines and
instructions on the subject.
73. It is essential to understand the spirit in which the respondents
appear to have carved out the policy with regard to an application
seeking resignation from service by personnel who are part of the
Military Nursing Service contained in the instructions under
consideration. So far as the criterion for acceptance of such a request
is concerned, the same is to be found in para 4 of the afore-noticed
instructions. `Marital disharmony' is one of the stated reasons and
has been put under the category of `Extreme Compassionate
Grounds'. The respondents have specifically indicated in these
guidelines that the marital disharmony is required to be manifested by
a threat of divorce. Such a threat is required to be corroborated by a
certificate from the registrar of the concerned court with regard to
filing of a case in the court for divorce with a copy of a court document
and nothing more.
74. The respondents have rejected the application of the petitioner
referring to the petitioner's conduct as stated in the petition and
further that her husband has alleged that the petitioner was least
interested in staying with him. The respondents have concluded that
the reason for filing the divorce case was not merely the service of the
nursing officer and that her resignation from service will not resolve
their marital disharmony and therefore rejected her application.
75. We may note that even though there is no specific constitutional
or statutory recognition of the right to marriage and family in any
legislation in India, however, the importance accorded to preservation
and sanctity of the marriage is found in all personal laws and every
effort to prevent its breaking up is mandated therein. Such
considerations are also statutorily recognized in some of the statutes.
The cultural background and sociological evolution would show that
marriage as an institution in this country is placed on the highest
pedestal. The importance of its preservation does stand recognised in
several legislations and by all religions.
76. The Hindu Marriage Act, 1955 which is concerned with
marriages between hindus provides for dissolution of marriage by
decree of divorce on certain grounds which have been set out in
Section 13 of the enactment. However, by virtue of sub-section 2 of
Section 23 of the Hindu Marriage Act, 1955, the statute mandates that
before proceeding to grant any relief under the enactment, it is the
bounden and the mandatory duty of the court, in the first instance in
every case where it is possible to do so consistently with the nature
and circumstances of the case, to make every endeavour to bring
about a reconciliation between the parties. This provision applies to a
petition where dissolution of marriage by the decree of divorce has
been sought even on grounds of cruelty. Such being the statutory
spirit, intendment and purpose, it would be the mandatory duty of
every court or authority who could effect a reconciliation between
warring spouses, to facilitate the same. These matters are required to
be considered by courts sensitively with a human angle. The judge is
required to actively stimulate a rapprochement process with a
constructive, affirmative and productive approach rather than
adopting an abstract, theoretical or doctrinaire approach to this
important effort.
77. So far as Muslim law is concerned, in the judgment of this court
reported at 2008 (103) DRJ 137 Masroor Ahmed vs. State (NCT of
Delhi) & Anr., learned brother B.D. Ahmed, J on a detailed
examination of the Muslim law held that Islam discourages divorce,
yet it is permissible on grounds of pragmatism, at the core of which is
the concept of an irretrievably broken marriage. The court reiterated
the observations of Baharul Islam, J (then in the Gauhati High Court) in
Sri Jiauddin vs. Mrs. Anwara Begum (1981) 1 GLR 358 wherein
necessity of reconciliation was recognised. It was held that 'talaq'
must be for reasonable cause, only under exceptional cases and was
required to be preceded by attempts at reconciliation between the
husband and the wife by two arbiters - one from the wife's family, the
other from the husband's. If the attempts failed, talaq may be
effected. So far as reconciliation was concerned, in para 33 of the
judgment, the court pointed out the following :-
"The crucial point is that for a pronouncement of
talaq to result in the dissolution of the marital tie there
must be an attempt at reconciliation. In the case of an
irrevocable talaq, it must precede or it may be after the
pronouncement but before the end of the iddat period."
78. The Family Court Act, 1984, applicable to all persons irrespective
of their religion contains Section 9 which provides that an attempt at
reconciliation is again required to be made at the first instance where
ever it is possible to do so, consistent with the nature and
circumstances of the case.
79. The Special Marriage Act, 1954 also applicable to all, contains
similar statutory provisions as well. Under sub section (2) & (3) of
Section 34, a duty is cast on the court in the first instance, in every
case where it is possible to do so, consistently with the nature and
circumstances of the case, to make every endeavour to bring about a
conciliation between the parties.
80. A view has been taken by the present respondents on the
contents of the divorce petition filed against her by the petitioner's
husband. However, the permissibility and propriety of such a view
requires to be examined.
81. On the aspect of the considerations which must weigh even with
a court seized of divorce proceedings, reference can usefully be made
to the following observations of Lord MacDermott in (1951) AC 319
Preston-Jones Vs. Preston-Jones :-
"the jurisdiction in divorce involves the status of the
parties and public interest requires that the marriage
bond shall not be set aside lightly without strict
enquiry."
82. In its pronouncement reported at AIR 1958 SC 441 Earnest John
While v. Kathleen Olive White, the Supreme Court has relied upon
the above observations in Preston Jones (supra) emphasising the
necessity to inquire into and be satisfied beyond reasonable doubt in
matrimonial disputes.
83. On the duty of the judge exercising matrimonial jurisdiction, the
court in the judgment reported at (1979) 4 SCC 258 V.K. Gupta Vs.
Nirmala Gupta very aptly stated that:-
"It is fundamental that reconciliation of a ruptured
marriage is the first essay of the Judge aided by counsel
in this noble adventure. The sanctity of marriage is,
in essence, the foundation of civilisation and
therefore, court and counsel owe a duty to society
to strain to the utmost to repair the snapped
relations between the parties. This task becomes
more insistent when an innocent offspring of the wedding
struggles in between the disputed parents.
At the end of this conciliatory journey, it is possible
to reach a happy destination resulting in the restoration of
the conflict between the parties, eventual restoration of
the conjugal home, on our gentle persuation, they may
move to live together, and we may be glad that story
ends happily we should impress the spouses that an ideal
marriage, life is always good and they should not break
the tie.. Judicial monitoring is a statutory prophylactic. "
The Court further stated as follows:
"Before proceeding to grant any relief in the matter of
matrimonial causes.... it shall be the duty of the court in
the first instance in every case where it is possible to do
so consistently with the nature and circumstances of the
case to make every endeavour to bring about a
reconciliation between the parties."
84. The effort for reconciliation has, therefore, been statutorily
institutionalized. Judicial interpretation and pronouncements have
mandated that such efforts are to be made even if there is acute
estrangement, and that it is the bounden duty of the family court to
make an attempt for reconciliation and rapprochement. It has been
stipulated that the attempt by the court to effect the resolution must
be sincere and every effort made to preserve the matrimonial ties.
85. The spirit, intendment and purpose of these statutory provisions
is a recognition of the fact that the jurisdiction in matrimonial matters
is not punitive but is remedial, whether it be to effect the dissolution
of a marriage or a direction for restitution of conjugal rights.
86. We may note that the guiding principle in such cases is the
recognition of the importance of marriage and that the acrimony
between spouses manifests erosion of the basic human rights of the
persons involved and impacts the community as well as society. For
this reason, the legislation and jurisprudence which has evolved,
emphasise that the same deserves to be brought to an end. An effort
for reconciliation may result in the parties burying their differences
and agreeing to live together. Or they may agree to, disagree and
part. In either case, stability is brought to lives and the parties know
where their relationship stands and litigation ended.
87. What needs to be stressed is that such be the duty of the court,
the responsibility on the respondents to act in consonance with these
principles is even more onerous.
88. The instructions dated 31st December, 1999 issued by the
respondents are in consonance with the spirit of the above
international covenants and jurisprudence. They encompass the
special needs and strains which a marriage may face on account of
the rigors of service with the armed forces.
It is clearly evident that the ground of marital discord recognised
in para 4(b)(v)(aa) of the said instructions dated 31st December, 1999
is a reflection on the recognition of the right to marriage and the
aforenoticed principles by the respondents and the importance given
by the armed forces also to the institution of marriage. This is clearly
in consonance with the recognition of such right nationally and
internationally. The respondents recognise the importance of bringing
marital discord to an end. The instructions also indicate the
awareness about the possible need of cohabitation to nurture a
marriage. We find that provision of an opportunity to bring about
either is clearly postulated therein. For these reasons, the instructions
on the subject have provided that filing of a divorce petition would be
considered as an extreme compassionate ground to justify the
severance of the ties of employment with the armed forces, so as to
further possible preservation or amicable resolution and dissolution of
bonds of another kind. The aforenoticed Instructions thus manifest
the high degree of protection to the families of the members of the
MNS which is accorded by the respondents. The procedure prescribed
thereunder has to be effectuated to ensure implementation of this
spirit.
We are heartened by the recognition of the above principles and
norms as well as positive stand on the issue adopted in this behalf in
the Instructions dated 31st December, 1999 governing the Military
Nursing Service.
89. The aspiration and desire of the petitioner to make an effort to
resolve disputes and cohabit with her husband and daughter as a
family by itself deserves to be protected and encouraged. It is a fact
that her employment is not only interfering with the same, but has
become a root cause of such discord and is exposing the petitioner to
a threat of severance of her matrimonial ties on account of dissolution
of her marriage by a decree of divorce. This manifests the essential
and immediate need of taking such measures which could facilitate
rapprochement and restoration of harmony in the petitioner's family
life.
90. We find that the valid criterion for the favourable consideration
of a request for resignation and the limits within which the
respondents would exercise discretion to consider such an application
are stipulated under the said instructions. In Major Rahul Shukla Vs.
Union of India & Ors. (supra), it has been stated that the
contingencies stated in similar instructions are merely illustrative and
not exhaustive. It has been held that the same, however, do bind the
respondents to consider a request for resignation on the grounds
stated in the illustration.
91. The respondents have not rejected the petitioner's application on
any consideration relating to non-availability of adequate manpower in
the category of officers in which the petitioner is employed. No
exigency of service, let alone any extremity is even suggested in the
impugned order. The respondents have not disputed the petitioner's
statement that she has not given any bond and that she is not
shackled by any service liability.
92. On the factual aspect, It is also not disputed that the petitioner
has a daughter who was an infant in the year 2005. The respondents
also do not dispute that the petitioner's husband has filed a petition
seeking divorce. In this background, the petitioner's request for
resignation in the admitted facts clearly falls within the criterion laid
down in para 4(b)(v)(aa) of `marital disharmony' and appears to be
covered within the nature of Extreme Compassionate Grounds
mentioned in the instructions.
93. An issue has been raised with regard to the parameters within
which the respondents can examine the contents of the divorce
petition which is mentioned in the applicable instructions. Even
assuming that the respondents could examine the grounds on which
the divorce petition has been filed, perusal of the opening paragraph
of the divorce petition shows that the petitioner's husband has
referred to the pre-nuptial agreement between the parties to the
effect that after the marriage, she would resign from service. A
grievance is made by him against the petitioner shifting to the official
quarters. This was obviously in order to meet the service
requirements, its nature and demands. The petitioner's husband has
expressed distress because of his separation from the petitioner and
he complains in the petition that he is not only compelled to live far
from his wife and daughter, but as a result is having to do his own
cooking.
94. The failure to have resigned from service has been perceived by
her husband as an extreme ambition on the part of the petitioner and
a dream not fulfilled by her marriage. The allegations made in the
divorce petition thus may very well be an erroneous construction or
misunderstanding on the part of the petitioner's husband. As noticed
hereinabove, the petitioner was posted at Roorkee, which may be
considered as close to Haridwar. However, the impugned order
discloses that the petitioner stands posted out therefrom. It is on
record that while posted as Roorkee, the petitioner had to reside in
official quarters. It cannot be disputed that continuation in military
service warrants separation from her husband.
95. It would also appear that the petitioner's submission with regard
to the constraints in leaving her job, has been considered by her
spouse as an incident of cruelty to him. Every action of the petitioner
is being construed by her husband as an effort to further ambitious
desires which perception has resulted in a prayer for dissolution of the
marriage by a decree of divorce on the ground of cruelty on the part
of the petitioner.
96. This petition seeking dissolution of marriage appears to have
been filed by the petitioner's husband on 5th September, 2008. The
petitioner's application for permission to apply for resignation was
made only on 8th November, 2008 which would be indicative of the
fact that the divorce action is not collusive and does not appear to
have been created or urged as a shield and device to seek resignation
from service. We may note that the petitioner's resignation manifests
her desire to make an effort to restore some order to her matrimonial
life. It also displays a lack of ambition as against a desire to restore
normalcy to her matrimonial life with her husband.
97. The petitioner has urged that her husband has clearly indicated
that she must resign from service or divorce him.
98. The respondents in the instant case, do not dispute the existence
of marital disharmony in the marriage of the petitioner. On the
contrary, the respondents place reliance on the averments in the
divorce petition filed by the petitioner's husband. The impugned order
reflects that a subjective picking of the allegations against the
petitioner by her husband has been effected without taking a
comprehensive view in the matter.
99. The impugned order does not manifest any effort by the
respondents for reconciliation or resolution of the grievance expressed
by the petitioner's husband. It makes no reference at all to the fact
that the petitioner's husband refers to his desire for cohabitation with
his wife. The order also does not refer to grievance of the petitioner's
husband in more than one place with regard to the failure of the
petitioner to resign from service and that he is thus compelled to live
away from his wife and daughter because of the same. The
respondents have erred in failing to consider that the primary
allegations against the petitioner is her husband's contention about
her refusal to resign from service and the impact of the consequent
separation. The other allegations really arise out of the pressures of
the kind of existence which is thereby enforced.
100. From the above, it would appear that the criterion in the
instructions dated 31st December, 1999 are also premised on a
presumption of inability of a serving personnel to give the essential
hundred per cent to the service if he/she is faced with a divorce
petition. The prescribed criteria in the binding instructions, clearly
accepts that continuation in service may be one of the attributes of or
a contributory factor for marital disharmony. A threat of divorce
evidenced by the filing of a case for the same has been prescribed as
sufficient for a favourable consideration of a request for resignation.
The imperative nature of such ground is manifested from the fact that
the respondents have placed the same under the category captioned
as "Extreme Compassionate Grounds".
101. It is important to note that the criterion laid down under the
instructions do not stipulate that continuation in service must be the
ground for the marital disharmony or the only ground on which the
divorce petition must rest. On the contrary, a threat of divorce is
perceived as sufficient reason for favourable consideration of an
application for resignation from service. The instructions presume
that being relieved from service is an essential step to reduce marital
disputes. The instructions do not refer to either the nature of
allegations or the result of the divorce action. In this background, it
may not be appropriate for the respondents to analyse the grounds on
which the petitioner's spouse has sought divorce and premise an order
on the same, without anything more.
102. We may point out that it is also not essential that acceptance of
a resignation, as in the case in hand, may necessarily put an end to
the parties' matrimonial woes. However, recognition of such an
opportunity to resolve the disputes by acceptance of the resignation
and provision of an opportunity to do so, is an effort to implement and
afford protection to the right to family of every person, the mandate of
the provisions of the Constitution, the International Covenants and the
spirit of the statutes set out above.
103. There is another aspect to this matter. The possibility of
frustration and set back to the afore-noticed statutorily mandated
reconciliation process by the court seized of the matrimonial action
against the petitioner which could result from the separation between
the spouses on account of the posting of the serving spouse, cannot
be ignored. In the instant case, the divorce litigation is in the court at
Haridwar while the petitioner stands posted out to a distant location.
104. The impugned order completely fails to consider the
recommendations on the application of the petitioner's immediate
superiors and fails to give any reasons for overruling them.
105. It has been settled by various previous pronouncements that the
state or its instrumentalities while implementing their policy and in
decisions based thereon cannot be unreasonable or arbitrary and
must be guided by reason.
106. In a recent judgment of the Supreme Court reported at
MANU/SC/0476/2010 Sindhu Education Society & Anr. Vs. The Chief
Secretary, Govt. of NCT of Delhi & Ors., the Supreme Court observed
that framing a policy is a domain of the Government. However, the
working of a government policy has essentially to be done within the
framework of the Constitution & the laws. The framework of policy
should be such as to fit in of the Constitutional scheme of our
democracy. It has been held by the court that even when
Government changes its policy decision, it is expected to give valid
reasons and act in the larger interest of the entire community rather
than a section thereof. In para 66 of the judgment, the Supreme
Court held:
"........... It is a settled canon of administrative
jurisprudence that state action, must be supported by
some valid reasons and should be upon due
application of mind. In the affidavits filed on behalf of
the state, nothing in this regard could be pointed out
and in fact, none was pointed out during the course
of arguments. Absence of reasoning and apparent
non-application of mind would give colour of
arbitrariness to the state action."
107. The reasons in the impugned order are certainly not valid and
fail to consider the relevant facts.
108. The impugned order in the instant case raises yet another
important aspect on the right to life of the petitioner. Its impact on the
dignity and privacy, integral and essential components of the right to
life of the petitioner require to be examined.
109. Marriage and issues relating thereto are certainly matters
involving the core issues of the privacy and dignity of the individual
concerned which are essentials of the fundamental right to life. We
find that the impugned order on the other hand has scrutinized the
divorce petition and reached a conclusion on the merits of the
allegations made therein without even hearing the petitioner's side on
the allegations. The observations in the order would only add to the
differences between the parties.
110. The afore-noticed instructions contain clear directions. Yet, the
respondents have completely misdirected themselves in presuming
the correctness of the averments, made in the divorce petition against
the petitioner and deduced that her resignation from service would
not resolve the marital disharmony in the petitioner's marriage. This is
certainly not the spirit, intendment and purport of the guidelines and
instructions issued by the respondents. It is important that the
authorities must apply the criteria in its true spirit and must not
overlook material points while dealing with the applicability of such
guidelines. In our view, the respondents have limited jurisdiction to go
into the reasons or grounds on which a petition for dissolution of
marriage has been filed. The instant case underlines the need of the
working of the right to marriage and family life so far as the members
of the forces is concerned and the urgency to reflect on the need to
reconcile family and working life.
111. The matter of verification of the allegations in matrimonial
matters requires sensitive handling. The instructions suggest that the
factor which is to be verified, is the existence of marital discord in the
life of the personnel concerned which is manifested by the existence
of a threat of divorce and nothing more. The impugned order certainly
encroaches into matters which are strictly within the confidential
space occupied by delicate and sensitive disputes between two
spouses and not permitted by the instructions on the subject.
112. These observations are based only on some of the contents of
the divorce petition and do not reflect any effort made by the
authorities to verify the real facts. The conclusions arrived at by the
respondents mock at the most private conduct of the petitioner, relate
to issues and allegations of happenings which were within the four
walls of her home and make public disclosure of the same in the
impugned order. They certainly degrade and devalue the self worth of
the petitioner, and hence make an improper intrusion on her privacy
and dignity.
113. Merely because the respondents had access to the divorce
petition filed by the husband of the petitioner does not permit
comment on the correctness or tenability of the averments therein by
any person or authority, other than the court before whom it is filed.
Even the decision making by the court has to rest on a trial and
evidence after sincere reconciliation efforts. The same is subject to
defence by the other side.
To say the least, the observations in the impugned order are not
only wholly unwarranted but suggest ignorance about human relations
and the requirement of matrimonial adjustments to nurture marital
ties.
114. It is evident that the petitioner's predicament with regard to the
choice between her personal and professional life appears to be that
of a person placed between the devil and the deep blue sea. A
humanitarian and compassionate view envisaged under the
instructions in keeping with the constitutional principles was required
to be taken.
Conclusion
115. The impugned order, therefore, certainly tantamounts to a gross
violation of the privacy and dignity of the petitioner and hence of her
constitutional right to life guaranteed under Article 21 of the
Constitution of India. Such order premised on the contents and
evaluation of the merits of allegations in the divorce petition is
contrary to the spirit, intendment and purpose of the international
instruments noticed above, the Constitutional provisions, the marriage
laws of the country as well as the specific Army Instructions noted
above. The respondents have also failed to abide by the clear
directions in Major Rahul Shukla's case (supra).
116. We, therefore, hold that the rejection of the application for
resignation by the respondents is not based on relevant material but is
premised on extraneous grounds. The impugned order is also contrary
to the instructions which govern the subject. The same violates the
requirements of Article 14 of the Constitution as well and thereby
justifies the interference by this court. The order of posting of the
petitioner in the given facts and circumstance was unwarranted and
unjust.
Result
117. In view of the above discussion, it is directed as follows:-
(i) The order dated 17th August, 2009 is hereby set aside and
quashed and the respondents are directed to consider afresh the
application of the petitioner seeking resignation from service in the
light of the above discussion.
(ii) It is further directed that such consideration shall be effected
within a period of four weeks and the decision taken communicated to
the petitioner forthwith.
(iii) Pending consideration, decision and communication of the order
to the petitioner, there shall be a stay of the order of posting bearing
no.IHQ letter No.B/70034/P/DGMS-4A dated 17th August, 2009.
(iv) Appropriate orders with regard to the petitioner's service,
pending consideration of the application, shall also be passed by the
respondents taking a considered and sympathetic view in the matter.
Additional Directions
118. Before parting with this case, we may advert to the statutory
recognition of yet another dispute redressal mechanism which has
found statutory recognition in Section 89 of the Code of Civil
Procedure and has been successfully implemented in the courts in
Delhi. Inter alia, mediation and conciliation have been provided as an
alternate dispute redressal mechanism. This court has pioneered
institutionalised mediation mechanisms.
Long separations, as in the case in hand, are essential having
regard to the size of the work force and nature of duties in the defence
services. Coping with the separation and bringing up children single
handedly, while husband and/or wife is on a field posting or away on
training and exercises or for any other exigency, is no mean a task.
Undoubtedly, the separation involved by the nature of postings and
duties in the armed forces must be putting a strain on the most
undemanding of spouses of the force personnel.
119. In this background, it may perhaps be appropriate that a
mediation and conciliation mechanism is explored and created by the
respondents to facilitate resolution of disputes and differences, if any,
in the areas of marriage and other related areas. The nature of issues
between the parties in the present case clearly suggests that perhaps,
if such a facility was available, the petitioner may not have been
facing the proceedings which she is now defending.
120. We may notice that several welfare mechanisms are already in
place in the defence forces. It is time that the defence forces also
explore the institutionalization and putting in place of a formal
mediation and conciliation framework, perhaps even within the
existing welfare schemes and agencies worked by them, which may
facilitate dispute resolution, or in any case provide a forum for
ventilating grievances of the parties, before they seek dispute
redressal in courts.
121. Of course, lest it be said that this court has encroached on their
jurisdiction, we hasten to add the examination of such possibility, and
putting it in place, are in the absolute domain of the respondents. But
certainly the essentiality, propriety and possibility of such measures
deserves to be seriously examined and explored. Not only grievances
as the present one but of other kinds including those relating to
service issues may perhaps be brought to an end without court
intervention being necessary.
We, accordingly issue a direction to the respondents to examine
this issue and take a considered view on creating such a facilities, if
possible.
The writ petition is accordingly allowed in the above terms.
GITA MITTAL
(JUDGE)
J.R. MIDHA
(JUDGE)
October 8, 2010
aa/kr
