DILIP KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The present writ petition has been filed against the impugned order dtd. 13/4/2021 passed by the respondents whereby the statutory appeal preferred by the petitioner against the order dtd. 5/5/2020, whereby he was discharged from the services, has been upheld.

(2.) The facts, as mentioned in the present petition, are that the petitioner was appointed as Sub-Inspector in the Indo Tibetan Police Force (ITBP) in the year 1993 and was promoted to the rank of Subedar Major and thereafter, Assistant Commandant (Group A) /General diary duty in the year 2008. Petitioner claims to be in Shape -1 absolute medical fitness as per the Shape system of Annual Medical Examination till the year 2014. On a complaint filed by petitioner's wife alleging petitioner to be an alcoholic, he was sent to Cuttack, Orissa for a period of 28 days and he was placed under Shape-2. Thereafter, petitioner was sent to Base Hospital Tigadi, New Delhi, where based upon the opinion dtd. 12/6/2013, he was found medically fit in Shape-1. However, again vide opinion dtd. 25/6/2013, respondents placed petitioner in Shape-3 for six months. Against the opinion dtd. 25/6/2013, petitioner preferred representations, but those remained unanswered. After expiry of six months period on 14/8/2014, petitioner was declared fit in Shape-1. The petitioner claims to have met with an accident and remained absent from duty for 256 days, which was permitted by the respondents and he was thereafter allowed to join the duties. However, the said period of 256 days was taken as unpaid leaves for not performing any duty and petitioner had not informed about his medical condition.

(3.) The petitioner has averred that on 16/1/2013 he was placed in Shape 2 and Shape 3 respectively w.e.f. 7/3/2013 to 24/6/2013 and thereafter from 25/6/2013 till 3/1/2014 on the ground that he was allegedly diagnosed with Alcohol Dependence Syndrome (ADS). Petitioner was Shape -1 on 4/1/2014 but was again Shape-2 on 6/8/2015 and also on 20/7/2016. On 11/4/2017 he was recommended to be placed under Shape-5 and to be invalidated from service. The petitioner got himself examined from another hospital and was declared fit. According to petitioner, despite repeated requests he was not granted leaves and after much pursuance he was granted leave and he was about to leave for his hometown on 3/7/2017, he was informed that his Invalidation Medical Board (IMB) was fixed for 17/7/2017 in 9th battalion and he was directed to report in 9th battalion. Upon reaching there, petitioner was informed that there was no order for constitution of IMB and he accordingly came back and reported his 10th battalion. Thereafter, petitioner remained under observation of doctor from 30/9/17 to 17/10/2017 and on 18/10/2017, wherein though he was found fit but in the medical report he was again kept in Shape-5 category. On petitioner's request, petitioner was sent for re-examination from 30/9/2017 till 18/10/2017, wherein he was found fit for performing his duties. However, respondents in terms of guidelines issued by the MHA vide Ministry UO No. 1-45024/3/2004-Pers-11 dtd. 31/7/2007, kept the petitioner under observation in Shape-5 and referred him to IMB. The Medial Board constituted on 6/12/2017, recommended that the petitioner should be boarded out from the services of ITBP.