ACA Adityan)
The petitioner, who after putting up 4 years and 4 months of service in the Army, who was discharged on medical grounds on 21.07.1984, had approached the Honourable High Court of Madras for reinstatement in the Army Service with backwages or in the alternative directing the respondents to award 40% disability pension from the date of discharge with future interest at 18% per annum by way of a writ. After the constitution of this Armed Forces Tribunal under the Armed Forces Tribunal Act 2007, the said writ petition was transferred to this Tribunal and renumbered as T.A.No.45 of 2009.
2. The averments in the affidavit to the petition in brief relevant for the purpose of deciding this application reads as follows:-
2(a)The petitioner was enrolled as an Infantry Soldier in the service of Indian Army on 20th March 1980. The petitioner has passed the Army Certificate of Education on 01.10.1980 and Map Reading Examination on 15.10.1980, during the vigorous period of one year training. The petitioner was subjected to armed patrolling duties, and often exposed to outside the shelter for guarding the nation at night and day in extreme cold and hot weather. After serving the peace station tenure, the petitioner was posted in field unit at high altitude Rupa at Arunachal Pradesh, wherein he had developed nausea and was admitted in Tingu Hospital, from where he was evacuated to MH Tezpure, then to Calcutta Base Hospital, where he was medically categorized to category CEE (Temporary) for 6 months and on review he was upgraded to medical category BEE (Permanent) at Secundrabad Military Hospital as having diagonised AORTO ARTHERITIS. After the categorization as category âB (Pemanent), the petitioner was sent on operational duty to Andaman Nicobar Islands. Thereafter, the petitioner was sent for the Blue Star operation at Golden Temple Amiritsar in Sikh riot civil war. The petitioner was also awarded with Sainya Seva Medal and assessed âVery Good in character. In Army, the personnel with permanent category âCEE , that is lower than Medical category âB (Permanent) are allowed to serve on the option of willingness to serve. The petitioner submitted his willingness to continue in service.
2(b)The petitioner was examined by Medical Officer Lt Col S.Das and he informed that the petitioner was assessed for 40% disability pension. The petitioner was not given any paper in respect of percentage of disability. The Summary opinion of Lt Col S.Das, AMC classified Specialist in Medicine in MH, Secunderabad, on 22nd May 1984, was given to the petitioner, to the shock and surprise of the petitioner, without the recommendation of the Invalidating medical board. The petitioner was discharged from Army stating that âdischarged from service on medical groundsâ in his discharge certificate dated 21.07.1984. The petitioner was not willing to come out of service as he was having no means of survival to him and his family. The petitioner was given Ex-Servicemen Certificate to avail the canteen facility. The petitioner was not provided with any terminal benefits. The petitioner was continuously representing to 3rd respondent through letter on 23.02.1985 for grant of disability pension and he had also sent another representation dated 13.03.1985 to the same 3rd respondent to grant disability pension or reinstate into service, but the petitioner did not receive any reply from 3rd respondent. On 18.03.1985, the 3rd respondent had replied that the petitioners claim for disability pension was rejected by the second respondent stating that the disability on account of which the petitioner was discharged from service was not attributable to military service and does not fulfil the following conditions, namely it existed before or arose during his military service and has been remains aggravated thereby and in the same letter it was informed that the above decision was intimated to the petitioner through letter No.2580977/DP/10/PG-3 dated 20.12.1984. The letter dated 23.02.1985 was taken up by the respondent as an appeal though the letter was not at all an appeal as the medical invalidating board paper and relevant other papers were never sent to the petitioner and the letter was general in nature and was asking various queries and relief. Without answering the queries raised in the said letter, it was treated as an appeal and the same was rejected by the competent authority. On 05.08.1987, the petitioner sent a representation to the first respondent to provide an alternative employment in the Army, which was also rejected by the first respondent vide letter No.2580977/DP/58/PG-3 dated 08.01.1988. The petitioner sent a legal notice dated 02.07.2004, to the R2 and R3 for grant of disability pension on medical grounds. The 3rd respondent rejected the said claim vide letter No.2580977/DP/58/PG-3 dated 01.10.2004. The 4th respondent did not follow the rule position and gone beyond the statutory provision to discharge the petitioner. The order of discharge is not valid in the eye of law. The relevant provision applicable for the effective discharge on medical ground is Section 13(3)(III)(iii) of the Rules, which is to be carried out only on the recommendation of Medical Invalidating Board and that too by Commanding Officer, whereas the petitioner was discharged on invoking Section 13(3)(III)(v) of the Rules, which is to be invoked only for other than the grounds mentioned in the rule. Even for the application of the said provision, Brigadier/Sub Area Commander is competent to discharge, whereas the petitioner was discharged by inferior officer in the rank of a Commanding Officer, who is incompetent to discharge the petitioner. Even then as per that provisions of discharge, the petitioner should have been served with show cause notice before issuing discharge certificate, but the same was not complied with. As per section 23 of the Act, the valid certificate of discharge must be issued in the mother tongue mentioning the ground for discharge and the authority ordering the discharge with his name rank. The same was also not followed in the case of the petitioner. When waiting for the Invaliding Medical Board, the discharge order was issued in gross violation of the rules. Hence, the petition.
3. The third respondent has filed counter. No other respondents filed any separate counter on their behalf. (Now the learned JAG Officer intervenes and represents that the counter filed for the third respondent is on behalf of the other respondents also). The counter filed by third respondent runs as follows:- The petitioner was enrolled in the Madras Regiment on 20th March 1980. He was discharged from service with effect from 22nd July 1984, after rendering 4 years and 4 months service, due to low medical category for the disability AORTO-ARTERITIS 447 (V-67). The petitioners claim of disability pension was rejected by the PCDA (P), Allahabad, as well as Government of India; Ministry of Defence, since the petitioner was invalided out of service on account of a disability, which is neither attributable to nor aggravated by military service. The petitioner is also not eligible for service element as his qualifying service was less than 10 years. The petitioners second appeal dated 10.09.1987 was also rightly rejected on 31.12.1987 by the Government of India, Ministry of Defence. After long silence of 19 years now the petitioner has filed the present petition for his re-instatement into service or for grant of disability pension, which cannot be allowed.
3(a)The petitioner ex-Sepoy was enrolled in the Madras Regiment on 20th March 1980. He was discharged from service with effect from 22nd July 1984 after rendering 4 years and 4 months service due to low medical category for the disability. The petitioner was initially diagnosed as a case of Severe Hypertension just after completion of the basic training on 21st April 1981 at 28 Field Hospital. After thorough investigation, the petitioner was finally diagnosed as a case of Non- Specific AORTO-ARTERIES (V-67). His Medical category was down graded temporarily for 6 months with effect from 17th September 1981 and permanently with effect from 16th November 1983. The petitioners claim that he served in Andaman and Nicobar Islands and in Operation Blue Star are flase. In fact the petitioner reported at Madras Regiment Centre, Wellington (Nilgiris), at TamilNadu on 2nd July 1984, at the time of Operation Blue Star at Amritsar. The award of âSainya Seva Medalâ is of routine nature.
3(b)Although the personnel in low medical category may be given sheltered appointment, if available, in their own trade, commensurate with their medical category, in the instant case, the Commanding officer had not considered his retention in service though he was willing to serve, due to non-availability of suitable sheltered appointment in the unit and approved his discharge from service accordingly. Subsequent to the petitioners discharge, terminal benefits such as Final Settlement of Accounts of Rs.791.50, Army Group Insurance Maturity benefit Rs.2,652/- and Invalid Gratuity of Rs.1,790.75 respectively, totalling to Rs.5234.25 were paid to him. The disability pension claim was rejected on the ground that the petitioner did not fulfil the stipulated conditions of military service. This was communicated to the petitioner on 20th December 1984. The petitioner had submitted his first appeal for the grant of disability pension along with other grounds and the same was even rejected by the Government of India, Ministry of Defence, as no reasonable grounds were found to alter the decision and conveyed to the petitioner on 30th May 1986.
3(c)The petitioner preferred a second appeal dated 10.09.1987 to the Government of India, Ministry of Defence, without any new grounds, which was turned down and the same has also been communicated to the petitioner. The petitioner after a gap of 16 years, from the date of his second appeal, sent a letter through his Advocate to the higher authorities including Honourable President of India. The factual position of his case was once again explained vide letter dated 01.10.2004. The persons who are considered permanently unfit for further military service will be invalided out from service in medical category E (EEE) on recommendation of medical authorities under Item III(iii) of Army Rule 13(3). In the instant case, the petitioner was down graded to medical category BEE (Permanent) and not invalided out of service under medical category E (EEE). Commanding Officer 17 Madras (under whom the petitioner served) had not considered his retention in service due to non-availability of suitable sheltered appointment. The competent authority ie., OIC Records had therefore, approved the petitioners discharge from service on medical grounds under Item III(v) of Army Rule 13(3) read in conjunction with Rule 13(2A).
3(d)As per Army Rule 12(1), certificate required to be provided to the ex-servicemen under the provisions of Army Act Section 23 is called discharge certificate and vide note 2 to the said rule, the proper form to be used is IAFY-1964 or any certificate which complies with Army Act Section 23 would also be legally sufficient. The officer in charge Depot Company (Demob Wing) is the delegated competent authority to issue discharge certificate on IAFY-1964 to service personnel on their termination of service. The petitioner was down graded to medical category BEE (Permanent) and not invalided out of service under medical category E(EEE). The competent authority ie., OIC Records had, therefore, approved the petitioners discharge from service on medical grounds under item III(v) of Army Rule 13(3) read in conjunction with Rule 13(2A).
3(e)The Army Rule 13(3) III (v) stipulates that if the circumstances of the case permit, the person whose discharge is contemplated will be given an opportunity to show cause against the contemplated discharge. Hence, it is not mandatory to issue show cause notice in all cases, if the circumstances do not permit for issue of such a notice. The petitioner was not issued with show cause notice under the then prevalent circumstances which are known to the concerned Commanding Officer only, who discharged the petitioner under Army Rule 13(3)III(v) read in conjunction with Rule 13(2A). Comments on this particular point after a period of 22 long years cannot be offered at this belated stage.
3(f)As per Rule 173 of Pension Regulations for the Army 1961 (Part I), unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of disability which is attributable to or aggravated by military service and is assessed at 20% alone. The disease AORTO-ARTERITIES 447 (V-67) of the petitioner was considered by a duly constituted Medical Board as well as PCDA (P), Allahabad, as not attributable to military service. The petitioner has already been paid a sum of Rs.1,790.75 on account of invalid gratuity. The petitioner had informed the medical officer at 155 Base Hospital on 22nd January 1981 that he was having headache, vertigo tinnitus since last one year when he was undergoing basic training. He was admitted to 28 Field hospital immediately after joining his unit ie., on 21st April 1981. The petition is highly belated. Hence, the same is liable to be dismissed.
4. Now the point for determination is Whether the petitioner is entitled for an order of reinstatement or in the alternative for the grant of disability pension at 40% from the date of discharge with future interest at 18% per annum as prayed for?
5. The Point:- Heard the learned counsel Mr.M.Selvaraj, appearing for the petitioner and the learned JAG Officer Lt.Col.Sandeep Kumar and considered their respective submissions.
5(a)Even though the learned JAG Officer in support of his contention that the order of discharge passed against the petitioner is on the medical ground is valid under Army Rule 13(3)(iii)(v) read with rule 13(2A), a perusal of the Discharge Certificate produced along with the petition by the petitioner at page 4 paragraph 4 would reveal that the petitioner was discharged from service on medical grounds under 13(3) (iii)(v) of the Army Rules. The Army Rule 13(3)(iii)(v) reads as follows:
13(3).Authorities empowered to authorised discharge
TABLE
There is absolutely no material placed before this Tribunal to show as to the above provison of law, a show cause notice was offered to the petitioner before his discharge by the Officer who ordered the discharge on medical grounds against the petitioner. A perusal of discharge certificate shows that the discharge certificate was issued by the Officer in-charge Madras Regiment on the authority of Commanding Officer of 27 MADRAS REGEMENT, who is neither a Brigadier nor Sub Area Commandar. So, prima facie, the order of discharge on medical grounds ordered by the Officer in-charge, Madras Regiment under the Army Rule 13(3)(iii)(v) isnot valid in the eye of law.
5(b)Learned JAG Officer in support of his contention that the order of discharge is valid would contend that the said order of discharge was passed by the Officer in charge of the Madras Regiment under Rule 13 (3)(iii)(v) r/w 13(2A) of the Army Rules. Rule 13 (2)(2A) reads as follows:
âWhere the Central Government or the Chief of the Army Staff decides that any person or class of persons subject to the Act should be discharged from service, either unconditionally on the fulfilment of certain specified conditions, then, notwithstanding anything contained in this rule, the Commanding Officer shall also be the competent authority to discharge from service such person or any person belonging to such class in accordance with the said decision.â
In support of the said contention, learned JAG Officer would also rely on Army Order 46 of 1980 which order inter alia provides for continuance of persons so classified subject to the following conditions:
a)The persons so classified should be willing to continue in the service;
b)It should be subject to availability of suitable alternative appointments, commensurate with their medical category;
c)Such continuance is justified in public interest; and
d)Retention of such persons does not result in excess of sanctioned strength of the Regiment Corps.
Learned JAG Officer in support of his contention would rely on the following passage in the decision reported in Military Law Journal 2003
14 (Sub Clk TBK Rao v Commanding Officer, Artillery Records and others)_
âEven if these conditions exist, the Army has retained with it, the power to discontinue such persons.
While there is no dispute as to the fulfilment of some of the conditions in respect of the petitioners, the dispute is as to whether as on the date of the issuance of the impugned orders, the strength in their respective regiments exceeded.â
Learned JAG Officer would further contend that as per the above provisions of law under Rule 13 (3)(iii)(v) r/w 13 (2A) of the Army Rules, and also of the Order 46 of 1980, the petitioner was given an option for alternative appointment and since he was considered not fit for any alternative appointment by the Commanding Officer , the petitioner was discharged. This argument of the learned JAG Officer cannot hold any water because there is no mention in the discharge certificate that alternative appointment was not available. But in the Discharge Certificate the provision under which the petitioner was discharged is crystal clearly mentioned as under Army Rule 13 (3)(iii)(v) and not r/w 13 (2A). Rule 13 (3)(iii)(v) is a separate rule and is not in any way connected with rule 13 (2A). When an Armed Personnel is discharged under rule 13 (3)(iii)(v) of the Rules, as we have already mentioned, the competent authority to authorise the discharge is only the Brigadier or Sub Area Commander, that too, after serving showcause notice against the delinquent. But in this case on hand there is absolutely no material placed on records to show that a show cause notice was served even by the Officer who discharged the petitioner under Rule 13 (3)(iii)(v) to the petitioner before his discharge. So, we are of the considered view that the provision under which the petitioner was discharged that is rule 13 (3) (iii)(v) is illegal and also against the principal of natural justice for want of issuance of show cause notice to the petitioner before his discharge. 5(c)Today learned JAG Officer would produce the entire file relating to the petitioner maintained at 17 Madras Regiment wherein the petitioner was working before the date of discharge. In one of the documents that is, willingness certificate, the petitioner has given his option to continue in service with effect from 16.11.1983. It was also countersigned by the Commanding Officer stating that ânot recommendedâ. A perusal of the Invalid Medical Board AFMSF-16 pertaining to the petitioner reads that the petitioner was suffering from the disease by name AORTO â ARTERIRITIS ( 44% (Y-67). The summary opinion of the Medical Officer Lt Col Jesudoss as per the AFMSF 16 (IMB), is that the petitioner was classified under medical category BEE (Perm) and not under medical category EEE (Perm.). There is absolutely no material placed before this Tribunal to show why the Commanding Officer has not recommended the petitioner, who was suffering form AORTO â ARTERIRITIS, an opportunity to serve in sheltered appointment available to him in spite of his willingness to serve in any another alternative appointment.
5(d)Learned JAG Officer would contend that since there is no suitable alternative appointment available the petitioner was denied the said opportunity. But there is no other material available to show what are all the alternative appointments available and offered to the petitioner and whether the petitioner is not suitable for any of the other alternative appointment available for the person who was discharged under Medical category BEE (perm.) So we are of the considered view that the discharge of the petitioner under rule 13 (3)(iii)(v) is illegal and against the provisions of law.
5(e)The next limb of argument advanced by the learned JAG Officer is that the petition is highly belated because the petitioner was discharged on 22.07.1984 but the petitioner has filed the writ petition only on 17.04.2006 that is after a lapse of 22 years and petition is liable to be dismissed on that score. But in a case of disability pension which was claimed by an armed personnel who was discharged from the service in the year 1983 in a writ petition of the year 2005 which was disposed of with the following observation by the Apex Court in Shiv Dass v. Union of India and others reported in AIR 2007 Supreme Court 1330.
âIt has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V.Raja Lakshmi v. State of Mysore (AIR 1967 SC 993). There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Sri Pyarimohan Samanataray (AIR 1976 SC 2617) making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar AIR 1976 SC 1639 also.)
In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference. It would have dismissed the writ petition on that score alone.
In the peculiar circumstances, we remit the matter to the High Court to hear the writ petition on merits. If it is found that the claim for disability pension is sustainable in law, then it would mould the relief but in no event grant any relief for a period exceeding three years from the date of presentation of the writ petition.â
5(f)Admittedly, the petitioners date of birth is 29.09.1960 and his date of enrolment is 20.03.1980 and the date of discharge is 21.07.1984. So he will be entitled to service pension in the cadre of Sepoy as on 20.03.1995, on completion of 15 years of service from the date of his enrolment. But he was discharged after serving only 4 years and 4 months on 21.07.1984. As we have discussed in our earlier paragraph that the discharge of the petitioner was not in accordance with the relevant provisions of rule and also the petitioner was not given an opportunity to serve inspite of his willingness to serve in the sheltered appointment, we are of view that he is entitled for the service pension in the rank of sepoy as he is to be considered in service till the normal age of retirement in the year 1995. But we restrict the monetary benefit to commensurate from three years before the date of the filing of the petition i.e, with effect from 17.04.2003.
6. In fine, the petition is disposed on the following terms:- The petitioner is entitled to all service monetary benefits only with effect from 17.04.2003. The petitioner is not entitled to any backwages apart from the one we have mentioned earlier. With regard to other reliefs the petition is dismissed. No costs.