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(OA No.2807 of 2013)

ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH

AT CHANDIMANDIR
…

OA No.2807 of 2013
…

Praduman Narayan Singh ...Petitioner

Versus

Union of India & others …Respondent(s)

…

For the petitioner : Mr.Surinder Sheoran, Advocate

For the Respondent(s) : Mr. Ram Chander, Sr.PC

CORAM:JUSTICE SURINDER SINGH THAKUR, JUDICIAL MEMBER

AIR MARSHAL (RETD) NARESH VERMA, ADMINISTRATIVE MEMBER
…

ORDER
28.05.2015
…

By means of the present petition, the petitioner has sought setting aside of

orders dated 11.02.2013 and 25.02.2013 (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. 15.03.2002. At that time, he was in the medical
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(OA No.2807 of 2013)

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
20.12.2007.

(iii) Again, the petitioner was admitted in Military Hospital, Ranikhet

for the aforesaid disability and he was downgraded to P2(P) w.e.f.
05.03.2011 by the Medical Board held on 09.03.2011 (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 28.05.2012

(Annexure A-2), issued directions to the Command Headquarters
that the guidelines issued vide letter dated 30.09.2010 were not
being implemented in true spirit. Thus, the fourth respondent, vide
his letter dated 12.01.2013 (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 11.02.2013 (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:-
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(OA No.2807 of 2013)

“RESTRICTED

Mil 6319 REGISTERED SDS

Bihar Regt Abhilkh Karyalya
Records The Bihar Ret
PIN-908765
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 2013.

(a)4275423X Sep Chadran Deo Oraon

(b)4277572K Sep Hemiltan Lakra
(c)4277829K LNk Dhirendra Kumar
(d)4278184Y LNk Dinesh Majhi
(e)4279490A LNk Rajendra Kumar
(f)4281281F Sep Rakesh Kumar Singh
(g)4281976K LNk Praduman Narayan Singh

2. Sanction of the competent authority will invariably be obtained on

IAFY-1948A in accordance with Army Rule 1954. 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
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(OA No.2807 of 2013)

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.:00152.

8. 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 25.02.2013 which can usefully be
quoted as under:-

“BY HAND

A/310/ 2 BIHAR
PIN-910 502
C/o 56 APO
25 Feb 2013

No.4281976K LNk Praduman Narayan Singh

2 BIHAR
PIN-910502
C/o 56 APO

SHOW CAUSE NOTICE

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(OA No.2807 of 2013)

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 2010.

3. 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
13.03.2013, 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. 31.07.2013 (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.

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(OA No.2807 of 2013)

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 17.04.2015 , 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 13.05.2010 , 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 11.02.2013 quoted

above, the decision for discharge of the petitioner alongwith others was already
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(OA No.2807 of 2013)

taken and discharge drill was sought to be held on 01.07.2013 without holding

any Release Medical Board. The show cause notice dated 25.02.2013,

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 30.09.2010

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 30.09.2010 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 17.04.2015 in Rakesh Kumar

Singh‟s case (supra):-

(i)OA No.1999 of 2012, Nirmal Singh vs. UOI & Ors,

decided on 09.04.2013;

(ii)CWZP No.988 of 2012 (O&M), Subedar Manjit Singh vs.

UOI & Ors, decided on 19.05.2014;

(iii)OA No.1897 of 2012, Ex Sepoy Gurjit Singh vs. UOI &

Ors, decided on 29.05.2014; and later

(iv)CWP No.14468 of 2018, decided on 15.01.2015,

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
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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)

(Air Marshal(Retd)Naresh Verma)

Chandigarh

Dated: 28.05. 2015

`bss‟

Whether the judgment for reference to be put on internet – Yes/ No