Updated: August 14, 2021 11:22:13 am
An air force personnel of the rank of corporal posted in Jamnagar, who was served with a show cause notice by IAF for refusing to get vaccinated, was granted temporary protection by the Gujarat High Court on Wednesday while directing the concerned IAF authority to provide the personnel an opportunity to present his case.
Additional solicitor general (ASG) Devang Vyas submitted before the Gujarat HC on Wednesday that while Covid-19 vaccination is optional for the general public, it has been made compulsory as a policy decision for air force personnel by making it part of their service condition.
During the course of hearing, the government counsel submitted that only nine personnel from the IAF across the country have refused vaccination among whom, one has been terminated for failing to respond to the show cause notice served for the service condition violation.
Yogendra Kumar (28), an IAF personnel, moved the Gujarat HC after he was served a show cause notice by IAF on May 10, wherein the IAF had sought an explanation from Kumar on why he should not be terminated from service for his refusal to take the vaccine.
ASG Vyas submitted during the hearing, “…so far as air force personnel are concerned, under the policy decision, it is now made a service condition…This is in continuation of the oath that they undertake at the time of enrolment for the service. Also considering that the air force is a frontline force, it is imperative to see to it that the force is not put in any vulnerable state. Across India, only nine personnel have refused to take the vaccine. All of them were given show cause notice. One of them did not respond so in view of lack of response, his services are terminated already…” “Here, the petitioner (Kumar) has responded to the show cause notice and therefore my submission is either he can appear before the authority (which has issued the show cause notice), or there is a provision under the Armed Forces Tribunal Act so he can approach Armed Forces Tribunal as well.”
Colin Gonsalves, senior advocate at the Supreme Court, representing the petitioner along with advocate Aum Kotwal, however, pointed out to the division bench of Justice AJ Desai and AP Thaker that the show cause issuing authority had already in its notice concluded that Kumar has disobeyed and is thus he must show why he must not be dismissed from service.
The bench, however, suggested that the grounds on which Kumar seeks exemption, including the ground of an individual’s right over his/her own body and the right to decide the medical treatment for themselves, can be presented before the IAF authority and opined that “all matters at the stage of hearing of notice (that is, show cause notice by any authority) cannot be entertained.”
Disposing the petition, the bench in its order directed that Kumar’s case be dealt with afresh by the authorities after examining all the material placed on record of the court. “The authority shall give an opportunity of hearing to the petitioner, even through his advocate, to represent his case.” The bench added that the authorities decide the case as early as possible, preferably in a period of four weeks hereinafter and thereafter “If any adverse order is passed, the same shall not be implemented for a period of two weeks…The authority shall deal with the case keeping in mind the submissions made by the petitioner… It is hereby made clear that we have not examined the case on merits.”
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