BRIJ MOHAN SINGH BHADORIA Vs. UNION OF INDIA

JUDGEMENT

(1.) The case of the Petitioner is that the Respondents have illegally attempted to Discharge him from service on the ground of permanent low medical category. This is evident from a reading of the letter dated 31.12.2003. A Show Cause Notice dated 20.4.2004 was thereafter issued stating inter alia that the Petitioner had been downgraded in low medical category P3(P) for head injury with fracture of frontable bone and large scalp laceration w.e.f. 12.11.2001. We may note, however, that in an earlier Show Cause Notice dated 1.10.2003, in addition to this ground, it had also been mentioned that keeping the Petitioner's low medical category in view he was tasked/assigned administrative duties which he refused to do and in addition to it he started misbehaving with his seniors and used indecent language when asked to attend Roll Calls and other parades. Since the ground of indiscipline does not find mention in the subsequent Show Cause Notice dated 20.4.2004, we are not called upon to rule on it. Learned counsel for the Respondents had endeavoured to take the case out of rulings of the three Division Benches of this Court on the ground that a Special Leave Petition is pending. On an earlier occasion, by Orders dated 21.8.2007 in CM 11090/2007 in WP(C) 5946/2007, we had noted that the Hon'ble Supreme Court had not stayed the operation of these Judgments and hence they had to be complied with.

(2.) As has already been mentioned the legal propriety of Discharge Orders predicated on permanent low medical category, without complying with Rule 13 (3) (III) (iii) of the Army Rules, 1954 (hereinafter referred to as Rules) had been struck down. In CWP 5958/2001 titled L/Hav Raj Singh -v- The Union of India the Division Bench presided over by S.B. Sinha, the Chief Justice of Delhi High Court (as His Lordship then was) had observed that once 'a person has been found medically invalid for further service, an order of discharge can be passed only on the recommendation of an Invaliding Board'. Since in that case no such Order had been obtained, the Discharge was struck down. The Division Bench also noted that the Invaliding Board would normally look into the question of whether the OR concerned can be given suitable alternative appointment/duties. The argument that recourse could be had to Rule 13 (3) (III) (v) of the Rules, ignoring the preceding Rule 13 (3) (III) (iii) of the Rules, was held to be untenable. This question again came up for consideration before yet another Division Bench, presided over by B.A. Khan, Acting Chief Justice (as the learned Chief Justice of Jammu and Kashmir then was) in Nb. Sub. Raj Pal Singh -v- Union of India, 127(2006) DLT 470 and the conclusion was the same. The Division Bench noted that a perusal of the earlier Order and Army Rules discloses 'that the function and objective of Invaliding Board as contemplated under Army Rule 13(3)(3)I(ii) cannot be substituted with the functions of a Release Medical Board'. It would be advantageous and topical to highlight that both the Division Benches had relied on the observations of the Hon'ble Supreme Court in Capt. Virendra Kumar -v-Union of India, AIR 1981 SC 947. It has been explained that the Respondents preferred a Review of the decision in Rajpal Singh which came up for consideration before the Bench presided over by Swatanter Kumar, J. (as the learned Chief Justice of Bombay then was) in Nb. Sub. Raj Pal Singh - v. Union of India, 2007 94 DRJ 631 (DB). By a detailed Judgment, as extensive as the main Judgment delivered by the Division Bench presided over by the Acting Chief Justice of Delhi, the conclusion previously arrived at and articulated was reaffirmed. We are in respectful agreement with the conclusions arrived at by the other Division Benches of this Court. It is quite obvious that in view of the decisions of different Division Benches of this Court the Hon'ble Supreme Court did not consider it appropriate to stay the impugned Judgment at the admission/notice stage.

(3.) In these circumstances since the Invaliding Medical Board has not been constituted in respect of the Petitioner, the writ petition must be allowed.