ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR. Versus

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1 1 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR OA No.2807 of 2013 Praduman Narayan Singh Union of India & others Versus...Petitioner Respondent(s) For the petitioner For the Respondent(s) : Mr.Surinder Sheoran, Advocate : Mr. Ram Chander, Sr.PC CORAM:JUSTICE SURINDER SINGH THAKUR, JUDICIAL MEMBER AIR MARSHAL (RETD) NARESH VERMA, ADMINISTRATIVE MEMBER ORDER By means of the present petition, the petitioner has sought setting aside of orders dated and (Annexures A-4 & A-5, respectively) whereby the petitioner has been ordered to be discharged form service being a permanent low medical category and the non recommendation which are the basis of his premature termination of service, alleged to be in contravention of the principles of natural justice and against the relevant provisions. 2. In short, the facts germane to the controversy involved in the present case be stated as follows:- (i) The petitioner was enrolled in the Indian Army in the trade of soldier GD w.e.f At that time, he was in the medical

2 2 category SHAPE-I which is the prescribed medical and physical standard applicable to the Army. (ii) The petitioner, while posted with 2 Bihar was admitted in Military Hospital Danapur and during treatment was diagnosed as a patient of RECURRENT PIVD L5-S1. Although he was given proper treatment by the medical authorities, but, did not recover. As such, he was down-graded to Low Medical Category P3(T24) on (iii) Again, the petitioner was admitted in Military Hospital, Ranikhet for the aforesaid disability and he was downgraded to P2(P) w.e.f by the Medical Board held on (Annexure A- 1). (iv) Despite the above, the petitioner submitted his willingness certificate to provide him sheltered appointment in the Regiment, which was recommended by the Commanding Officer of the said Regiment, and the services of the petitioner continued. (v) The Integrated HQ of MoD (Army), vide letter dated (Annexure A-2), issued directions to the Command Headquarters that the guidelines issued vide letter dated were not being implemented in true spirit. Thus, the fourth respondent, vide his letter dated (Annexure A-3), issued instructions to the Bihar Regimental Centre that all endeavour should be made to permit willing permanent LMC persons to continue to serve till their pensionable service of 15 years. (vi) In spite of issuance of the aforesaid clarifications and instructions, the Records Office issued letter dated (Annexure A-4) regarding the disposal of LMC (P) personnel wherein the name of the petitioner fell at Sr.No.1(g). The said letter is reproduced as under:-

3 3 RESTRICTED Mil 6319 REGISTERED SDS Bihar Regt Abhilkh Karyalya Records The Bihar Ret PIN C/o 56 APO 1041/O/09/RA1 11 Feb 2013 DISPOSAL OF LMC (P) PERS 1. Approval is hereby accorded to discharge the following personnel of your unit wef 31 Jul 2013 (AN) in terms of IHQ of MoD(Army) letter No.B/10201/Vol-VI/MP-3 (PBOR) dt 30 Sep 2010 due to non availability of sheltered appointment. They will report to the Bihar Regiment Centre (Depot Coy) for discharge drill on 01 Jul (a) x Sep Chadran Deo Oraon (b) k Sep Hemiltan Lakra (c) k LNk Dhirendra Kumar (d) y LNk Dinesh Majhi (e) a LNk Rajendra Kumar (f) f Sep Rakesh Kumar Singh (g) k LNk Praduman Narayan Singh 2. Sanction of the competent authority will invariably be obtained on IAFY-1948A in accordance with Army Rule The disch will be sanctioned as under:- (a)nco will be disch under item III(iii)(a)(i) of the table annexed to Rule 13(3) of Army Rule 1954 as amended vide Gazette Notification pub on SRO 22 dt 13 May 2010 issued under IHQ of MoD(Army) letter No.B/10201/Vol.VI/MP-3 (PBOR) dt. 30 Sep 2010 (fwd vide this office letter No.1039/I/84/RA1 dt 22 Oct 2010). 3. Discharge documents as per Appx U to Para 545 of BIHAR ROI 2001 and this office letter No.1604/G/25/NE dated 22 Dec 80 in respect of above pers as applicable to them may please be submitted to this office forthwith. 4. Please ensure that a show cause notices are given to the above pers of the cause of disability prior to sanction of the final disch by the competent authority on IAFY-1948A. A copy of the show cause notice and reply thereto of the indls will invariable be fwd to this office alongwith the disch docu. 5. Action to bring the above pers before Release Medical Board vide AO 3/89 will be completed before their dispatch to the Bihar Regt Centre (Depot Coy) for disch drill. Please ensure that the purpose of medical

4 4 board viz Release Medical Board prior to disch from service is invariable be mentioned to the letter when they are sent to the imilitary Hospital for medical board. 6. Please ensure that Certificate-cum-Declaration of family as per Appx A to Para 7 of HQ of MoD (Army) letter No.A/20105 MP-8 (I of R) dated 28 Aug 2002 is submitted alongwith person docu instead of old format. 7. ECHS documents will be submitted to this office alongwith complete pension docu in separate folder with demand draft. Please ensure Draft should be prepared in favour of REGIONAL CENTRE ECHS PATNA payuable at SBI Main Branch Patna Code No.: Cos units are requested to ensure hat ACRs in r/o all JCOs/ NCOs are initiated/ reviewed wherever entitled as per Para 9 of AO 1/2002/MP by covering the pd upto their final dt of SOS from unit. 9. No cancellation of disch will be accepted once disposal order issued. 10. Please ack. Sd/- (Sukumaran K) Maj Offg CRO For OIC Records (vii) Thereafter the respondents issued a show cause notice to the petitioner (Annexure A-5) on which can usefully be quoted as under:- BY HAND A/310/ 2 BIHAR PIN C/o 56 APO 25 Feb 2013 No K LNk Praduman Narayan Singh 2 BIHAR PIN C/o 56 APO SHOW CAUSE NOTICE

5 5 1. It has been intimated by Records The Bihar Regt vide their letter No.1041/1/109RA1 dt 11 Feb 2013 that you have been placed in low medical category S1H1A1P2(P)E1 since 05 Mar 2009 and you will be discharged from service with effect from 31 Jul 2013 (AN). 2. In view of the above, in accordance with the direction of Records The Bihar Regt. You are hereby informed to submit your reply in writing to show cause as to why your service should not be terminated under the provision of Items III(iii)(a)(i) of the table annexed to Rule 13(3) of Army Rule 1954 as amended vide Gazette Notification pub in SRO 22 dt 13 May 2010 issued under IHQ of MoD(Army) letter No.B/1020/Vol-V/MP-3 (PBOR) dt 30 Sep Please submit your reply to this show cause notice within 03 days on receipt of this letter. Sd/-(Samarendra Pratap) Col CO (viii) In reply to the aforesaid show cause notice vide Annexure A-6 dated , the petitioner sought the copy of grounds for his discharge and also requested to retain him in service till he attains the qualifying service for pension of 15 years, but, it did not find favour with the respondents and as such, on the basis of Annexure A-4, the petitioner was discharged w.e.f (AN) for want of a sheltered appointment and his discharge was stated to be under Army Rule 13(3) item III (iii) (a)(i) of 1954 as amended from time to time. 3. The learned counsel for the petitioner vigorously argued that the petitioner was ordered to be prematurely discharged from service on medical grounds in contravention of the relevant provisions of the rules and instructions regarding the disposal of permanent Low Medical Category persons and without adhering to their own policy.

6 6 4. Contra, the respondents in their reply supported the discharge of the petitioner being legal and factually correct. 5. On having examined the facts of the present case in the light of our earlier judgment rendered in O.A. No.2360 of 2013, titled Rakesh Kumar Singh vs. Union of India, dated , disposed of alongwith two other connected matters, we find that the discharge order of the petitioner is wrong and illegal besides being against the instructions issued by the respondents because discharge of the petitioner is on medical grounds due to the disability aforesaid, but, the clause under which the petitioner is discharged i.e. 13(3) item III(iii) (a) (i) of Army Rule 13(3) specifically deals with the cause of discharge on medical grounds which can only be carried out on the basis of the opinion of the Release Medical Board proceedings and when the competent authority i.e. the Commanding Officer certifies after conforming with the procedure and that there is no sheltered appointment in the Unit or the LMC the individual is surplus to the organization. But in the instant case, the discharge of the petitioner was stated to be under Rule 13(3) item III(iii) (a) (i) 1954 of the Army Rules as amended by the Gazette notifications dated , issued by the Ministry of Defence. However, we are unable to find the certificate of the Commanding Officer that there is no sheltered appointment available in the Unit whereas the cause given is that there was no sheltered appointment available in the Regiment. Therefore, the discharge order is unsustainable. 6. Further, as is evident from letter Annexure A-4, dated quoted above, the decision for discharge of the petitioner alongwith others was already

7 7 taken and discharge drill was sought to be held on without holding any Release Medical Board. The show cause notice dated , reproduced above, was subsequent to this decision which was also repelled by the petitioner in his reply, is only a cover up story. The record does not reveal that the petitioner was subjected to a Release Medical Board prior to the decision taken to discharge him from service. As a matter of fact Paras 11 and 12 of the Integrated HQ of the Ministry of Defence (Army) letter dated specifically clarify that where approval has been accorded, the individual will be brought before an Invaliding/ Release Medical Board as applicable and discharge carried out as per laid down instructions whereas as per Para 7 of the said letter dated recommendations of the Release Medical Board / Invaliding Medical Board are required prior to the sanction of the actual discharge. 7. We find that the case of the petitioner is fully covered by the following decisions referred to in our judgment dated in Rakesh Kumar Singh s case (supra):- (i)oa No.1999 of 2012, Nirmal Singh vs. UOI & Ors, decided on ; (ii)cwzp No.988 of 2012 (O&M), Subedar Manjit Singh vs. UOI & Ors, decided on ; (iii)oa No.1897 of 2012, Ex Sepoy Gurjit Singh vs. UOI & Ors, decided on ; and later (iv)cwp No of 2018, decided on , modifying the relief. 8. Consequently, this O.A. is allowed and we hereby direct the respondents:- (i) To reinstate the petitioner into service from the date of discharge and grant him all the consequential benefits in

8 8 accordance with the law within four months from the date of receipt of a certified copy of this order by the ld. Counsel for respondents. (ii) In case the petitioner re-joins duty as aforesaid, the consequential benefits in terms of pay and allowances etc. shall be admissible to him for the intervening period which shall also count for pension and pensionary benefits. (iii) However, the respondents are at liberty to examine the case of the petitioner based on the recommendations of the Release Medical Board and pass appropriate orders accordingly. The question of grant of sheltered appointment shall also be considered by the respondents as per Rules and Regulations governing the subject. 9. The petition stands disposed of accordingly. (Justice Surinder Singh Thakur) Chandigarh (Air Marshal(Retd)Naresh Verma) Dated: `bss Whether the judgment for reference to be put on internet Yes/ No