Yogendra Kumar vs Indian Air Force
2021 Latest Caselaw 18665 Guj

      C/LPA/1053/2021                            ORDER DATED: 22/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 1053 of 2021
                                   In
              R/SPECIAL CIVIL APPLICATION NO. 14964 of 2021
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                            YOGENDRA KUMAR
                                 Versus
                            INDIAN AIR FORCE
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Appearance:
MS SHREE KOTWAL(11177) for the Appellant(s) No. 1
MR DEVANG VYAS(2794) for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                             Date : 22/12/2021

                               ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE)

1. The present Letters Patent Appeal takes exception to order dated 05.10.2021 passed in Special Civil Application No. 14964 of 2021, whereby the learned Single Judge has refused the interim relief pending the Special Civil Application.

2. The brief facts leading to filing of the present appeal are as follows :-

2.1 The appellant is a Corporal working as weapon fitter posted at 2222 Squadron, Indian Air Force, Pechora Missile System at Jamnagar, Gujarat.

2.2 As per the mandatory standard instructions of Indian Air Force, the vaccination drive against Covid-19 was being undertaken at Air Force station for all service personnel as per the direction of the higher authority.

       C/LPA/1053/2021                           ORDER DATED: 22/12/2021




2.3             The appellant vide his application dated 26.02.2021

expressed his unwillingness to take vaccine. It was stated by him that he was using Ayurvedic medicines/products for increasing his immunity against Covid-19 virus which was found to be successful in his case. He further stated that he had some hesitation in taking Covid-19 vaccine as his inner consciousness did not allow him to get vaccinated and instead he is using the ayurvedic method. On 26.04.2021, the Air Commodore, Air Officer Commanding, issued a show cause notice to the appellant as to why no action should be taken against him for unwillingness to take Covid-19 vaccine as per the regulations for the Air Force. In reply dated 29.04.2021, the appellant stated that since the vaccine was not fully approved by administration and has been given as emergency use authorization, it should not be considered as only option in order to get prevention against Covid-19.

2.4 The appellant was issued 'Discipline : Airmen Show Cause Notice' dated 10.05.2021 calling upon him to show cause as to why he should not be dismissed from service in terms of Air Force Act, 1950 read with Air Force Rules, 1969 for showing unwillingness to get vaccinated for Covid-19, which was mandatory for all the Air Force Personnel.

2.5 The appellant was called upon for personal hearing on 25.08.2021 in terms of the order passed by this Court in Special Civil Application No. 8309 of 2021 which was preferred by the appellant fearing his dismissal. On 01.09.2021, the said hearing took place via video conferencing.

2.6 By order dated 21.09.2021, the appellant came to be dismissed from service by a detailed order. Paragraphs 26 and 27 of the said order read thus :-

C/LPA/1053/2021 ORDER DATED: 22/12/2021

"26. AND WHEREAS, in view of the foregoing, I am of the firm view that refusal on your part from getting vaccinated against Covid-19 has the potential adversely affecting the Operational efficiency and capability of the concerned unit/formation. You were duly notified that there is neither any discretion nor any option for an air warrior in taking Covid-19 vaccination. Your refusal in this regard is prejudicial to the Covid-19 free environment in the Indian Air Force envisaged by the Government of India. You, being part of the safety chain, cannot be allowed to break the same as per your perceptions. The likely threat imposed by you by not getting vaccinated cannot be allowed to create an unsafe and doubtful atmosphere within the Air Force Campus. Therefore, your further retention in the Service is undesirable.

27. NOW THEREFORE, in exercise of the powers vested in me as the AIR Officer Commanding- in-Chief South Western Air Command, Indian Air Force, I hereby order your [that is to say, 957422 Corporal Yogender Kumar Weapon Fitter (R) of 2222 Squadron, Air Force] dismissal from the service in terms of Section 20(3) of the Air Force Act, 1950 read with Rule 18 of the Air Force Rules, 1969. This order shall be effective in accordance with the directions passed by the Hon'ble High Court in SCA 8309 OF 2021, vide order dated 11 August 2021."

2.7 Aggrieved by the order of dismissal, the appellant preferred Special Civil Application No. 14964 of 2021. Vide order dated 05.10.2021, the learned Single Judge while issuing Rule, refused the interim relief as prayed for by the appellant herein.

2.8 Aggrieved, the appellant herein has filed this Letters Patent Appeal.

3. Heard learned advocates for the respective parties.

4. Learned advocate Ms. Shree Kotwal for the appellant submitted that the appellant has been discriminated for being a member of Disciplinary Force and the order of dismissal and refusal of interim stay to such dismissal is denying the protection to

C/LPA/1053/2021 ORDER DATED: 22/12/2021

the appellant guaranteed under the Constitution of India with respect to his fundamental right to life. It was submitted that the appellant is being forced to take Covid-19 vaccine which has only been given a emergency use authorization and it can cause severe adverse effects without any treatment protocol to treat the same. It was further submitted that his unwillingness to take vaccine based on his study on Ayurveda has been treated as indiscipline and resulted into his dismissal from service. It was also submitted that the order of dismissal as well as refusal of interim relief violates the appellant's autonomy over his body as well as his right to privacy with regard to what should be injected within his body.

4.1 Ms. Kotwal further submitted that Article 21 encompasses within its fold, right to health as a fundamental right, however vaccination by force or being made mandatory by adopting coercive methods violates such a fundamental right of the appellant. It was submitted that the welfare policy for vaccination should never undermine the fundamental right to health. It was submitted that DGAFMS (Directorate General Armed Force Medical Services) in its policy letter dated 11.10.2021 has mentioned that the vaccination is completely voluntary for three armed services and thus, any notification or order with regard to medical policies within the Air Force which is against the instructions of Ministry of Defence is highly questionable and the same should not be used against the appellant as the appellant has acted in terms of policy letter dated 11.10.2021 as aforesaid. It was also argued that making vaccine mandatory and forcing it upon the appellant herein will be in contravention of judgment of the Hon'ble Apex Court in "Common Cause" case wherein the Hon'ble Apex Court has held that an individual has a right over his/her body and the right to decide the medical treatment for themselves. It was finally submitted that the appellant has refused to get

C/LPA/1053/2021 ORDER DATED: 22/12/2021

vaccinated since the vaccine was not fully approved and it can cause severe side-effects and thus, the legitimate fear of life is not based on perception of the appellant but it can be established by several documents and data published in respect of the said vaccine all over the world.

5. Mr. Devang Vyas, learned Additional Solicitor General appearing on behalf of the respondent submitted that granting interim relief to the appellant pending adjudication of the Special Civil Application would amount to encouraging indiscipline in the Armed Forces. It was submitted that the appellant was part of safety chain and hence, cannot be allowed to break the same since it can create an unsafe and doubtful atmosphere within the Air Force Campus. It was further submitted that it was absolutely mandatory for the appellant herein to get vaccinated to maintain the discipline in the Air Force and hence, the appellant cannot take shelter under protection of his fundamental right. It was also submitted that the conduct of the appellant amounted to misconduct and insubordination in so far as refusing the orders of the superior officer which is against the oath which was taken by the appellant at the time of joining his service in Indian Air Force. It was ultimately prayed that the interim relief should not be granted as the same would amount to allowing the Special Civil Application at interim stage.

6. A perusal of the pleadings shows that the appellant has his own perception with respect to vaccination against Covid-19. He has tried to support the same through his personal study/assessment of data available in public domain. We find that the appellant is posted as weapon fitter at 2222 Squadron, Pechora Missile System at Jamnagar, Gujarat. The instructions of Air Commodore, Air Force Commanding was for all the Air Force

C/LPA/1053/2021 ORDER DATED: 22/12/2021

personnel to get vaccinated against Covid-19 in light of the pandemic prevailing in the country. We are of the opinion that the appellant while asserting his fundamental right has also ignored his duty as part of safety chain in Indian Air Force. It is now well settled that the fundamental rights are subject to reasonable restrictions. Since the Special Civil Application is pending and main issue is already at large before the learned Single Judge, we would not like to express any opinion on merits of the case. Apart from it, the impugned order does not decide any right in favour of any party at this stage and therefore, appeal is not entertained without touching the issue of its maintainability aspect. In other words, grant of interim relief would amount to grant of final relief before its adjudication on its merits in pending writ petition.

7. We find that the impugned order refusing the interim relief to the appellant is just and proper and is based on sound reasons. We find no reason to interfere with the same. In the premises, the Letters Patent Appeal is dismissed. No order as to cost.

(S.H.VORA, J)

(ANIRUDDHA P. MAYEE, J.)

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