The High Court
Case Details
THE HIGH COURT OF MEGHALAYA WP(C) No.43/2012 No. G/57421F Rifleman/GD P. Muamuan Guite, S/o Shri.Vungzakam Guite, R/o village: Zogam Road, Vengnuam, New Lakma, Post Office: Churachandpur, District: Charachandpur, Manipur, Presently residing at Assam Rifles Bazar, Happy Valley, Shillong, East Khasi Hills District, Meghalaya 1. 2. 3. 4. 5. -Vs- The Union of India represented by the Secretary, Ministry of Home Affairs, Govt. of India, New Delhi. The Directorate General of Assam Rifles, Laitkor, Shillong, Meghalaya-793010. The Brigadier (Pers), H.Q.: Directorate General Assam Rifles, Laitkor, Shillong, Meghalaya. The Inspector General Assam Rifles, C/o 99 A.P.O. Commandant, H.Q.: 5th Assam Rifles, Pin 932005, C/o 99 A.P.O. :::: Petitioner :::: Respondents BEFORE THE HON’BLE MR JUSTICE T NANDAKUMAR SINGH For the Petitioner For the Respondents Date of hearing Date of Judgment & Order : : : :
Legal Reasoning
Mr. R Jha, Adv. Mr. SC Shyam, Sr. Adv. 05.11.2013 05.11.2013 (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:13)(cid:11)(cid:12)(cid:10)(cid:14)(cid:15)(cid:10)(cid:14)(cid:15)(cid:10)(cid:14)(cid:15)(cid:10)(cid:14)(cid:15)(cid:9)(cid:9)(cid:9)(cid:9) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:13)(cid:11)(cid:12) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:13)(cid:11)(cid:12) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:13)(cid:11)(cid:12) Heard Mr. R Jha, learned counsel appearing for the petitioner and Mr. SC Shyam, learned senior counsel for the respondents. Page 1 of 6 2. By this writ petition, the petitioner is assailing the discharge certificate dated17.03.2000 for discharging the petitioner from service on medical ground w.e.f. 30.04.2000. 3. The facts sufficient for deciding the present writ petition is briefly noted. The petitioner was enrolled as a recruit in Assam Rifles on 31.03.1994 as Rifleman General Duty. During his service tenure, he was a Boxer and had represented the force i.e. Assam Rifles in various tournaments and had also been awarded with medals and other citations by his higher officials. It is also stated that the petitioner had also completed various courses and military qualifications such as MR-II, TT-II, Class XII Passed as well as SLR, LMG, CM, AK-47, 21 Mortar, MMG, 81 Mortar etc. and the force was very proud of him as he had won several medals as a Boxer. To the utter shock and dismay, the petitioner was discharged from service vide discharge certificate dated 17.03.2000 issued by the Commandant w.e.f. 30.04.2000 on medical ground
Decision
(Annexure-I to the writ petition.) 4. The petitioner had filed several appeals and representations before the Directorate General of Assam Rifles (respondent No.2) from time to time against the said discharge certificate dated 17.03.2000 issued by the respondent No.5 i.e. the Commandant 5th Bn. Assam Rifles with the hope and trust that the petitioner may be reinstated in service. It is stated that those appeals and representation are still pending. The grounds for assailing the impugned discharge certificate dated 17.03.200 w.e.f. 30.04.2000 are that:- (i) No show cause notice was issued to the petitioner before he was discharged from service on medical ground; (ii) The prescribed procedure have not been followed while discharging the petitioner from service on medical ground, Page 2 of 6 inasmuch as, the petitioner was not subjected to Medical Board for invalidation of personnel and also the Review Medical Board and; (iii) The copy of the opinion of the Specialist that the petitioner had suffered from some type of disease was not furnished to him. 5. The respondents filed their affidavit-in-opposition. In their affidavit- in-opposition, it has been categorically stated that the petitioner had been asked to appear before the Medical Board for invalidation of personnel and also the Review Medical Board had considered the opinion of the specialist. In the affidavit-in-opposition, it is also stated that the petitioner himself knew quite well that he was suffering from some type of disease i.e. AIDS with Pulmonary Tuberculosis. Paras 9, 10, 11 & 15 of the affidavit-in-opposition filed by the respondents read as follows:- “9. That while denying the correctness of the statement made in Para 3 (v) and 3 (vi), it is respectfully submitted that the petitioner was discharged from service on medical grounds w.e.f. 30.04.2000 after the invalid medical board proceedings were duly approved by the competent auth as per procedure. While the petitioner had appeared before the invalid medical board, he knew that he is being invalided out of service as per specialist opinion since he himself has signed the part I of the said invalid medical board proceedings. The service benefits which were entitled to him have already been paid to him. However, he was not entitled to invalid pension for which a minimum of 10 years service is mandatory. Petitioner is also not entitled to disability pension since his disease is not attributable to service condition. 10. That while denying the correctness of the statement made in Para 3 (VII) and Para 4, it is respectfully submitted that the petitioner was detected to have been suffering from AIDS with to Command Hospital Pulmonary Tuberculosis and referred Eastern Command, Kolkata for specialist opinion on 26.07.1999. The classified specialist Medical and clinical recommended the petitioner to be unfit for further retention in service and also recommended him to be released from service in low medical cat EEE. The petitioner’s final medical board was reviewed on 21.08.1999 by the competent medical auth in which he was declared 100% disabled and recommended to be discharged from service in medical category EEE. Accordingly, the petitioner wad discharged from service on 30.04.2000. it may be further be submitted that there is no provisions for issue of show cause notice to the persons being discharged on medical grounds. However, the Page 3 of 6 petitioner was informed abut the convening of medical board and appeared before the medical board and have signed the part-I of the medical board proceedings being fully satisfied with the findings of the board as such there was no illegality or arbitrariness in conducting the medical board or violation of any fundamental rights as contended by the petitioner. 11. That with regard to the statement made in para 5, it is respectfully submitted that the petitioner had remained under medical treatment with various service hospitals such as 183 Military Hospital, 165 Military Hospital and Command Hospital Eastern Command, Kolkata and was well aware of the fact that he has been suffering from AIDS with Pulmonary TB. Therefore he was placed in Low Medical Category EEE as per the opinion of specialist with recommendation to be invalided out of service as the petitioner was unfit for further retention in service. to service conditions. Whereas, 15.That while denying the correctness of the statement made in para 10, it is respectfully submitted that the petitioner was discharged from service on medical ground due to the disability i.e. AIDS with Pulmonary TB is not attributable to service conditions as per opinion of the medical board because the disease was invited by the petitioner himself by indulging in sexual activities with Casual Sex Workers. The conditions for grant of disability pension as given in MHA OM dated 10.12.2010 is that the disease should be attributable the disability of petitioner is not attributable to service condition. Also in terms of CCS (Pension) Rules, 1972, minimum of 10 years of qualifying service is mandatory for grant of invalid pension. The petitioner has rendered 06 years and 01 month service only. As such he is not entitled to invalid pension. Though, the percentage of disability was 100% but it was neither attributable nor aggravated by service condition. In terms of Appx 3 GOI decision 3(2) of CCS (EOP) Rules, individual’s disability for grant disability pension should be more than 60% and should be attributable or aggravated by service condition. 6. From the certificate issued by the Medical Board, it is clear that the petitioner is suffering from AIDS with Pulmonary Tuberculosis. It is the further case of the petitioner that the petitioner shall be entitled to receive invalid pension. It is trite law that the invalid pension would be entitled to the Govt. employees who suffer from disease attributable to service. In order to ascertain as to whether the type of disease suffered by the petitioner is attributable to service, this Court put a pointed question to the learned counsel appearing for the parties. Mr. SC Shyam, learned senior counsel appearing for the respondents fairly submits that there is a prescribed Rule followed by the Assam Rifles Page 4 of 6 personnel for discharge of Assam Rifles personnel on medical ground. He also further contended that in that Rule, the type of disease attributable to service are clearly mentioned and according to the learned senior counsel appearing for the respondents that the type of disease suffered by the petitioner i.e. AIDS with Pulmonary Tuberculosis is not the type of disease attributable to service. This fact is not denied by Mr. R Jha, learned counsel for the petitioner, inasmuch as, AIDS is not the type of disease attributable to service. In para-15 of the affidavit- in-opposition of the respondents, the respondents clearly stated that the petitioner was discharged from service on medical ground due to disability i.e. AIDS with Pulmonary Tuberculosis is not attributable to service conditions as per opinion of the Medical Board because the disease was invited by the petitioner himself by indulging in sexual activities with casual sex workers. The conditions for grant of disability pension as given in Office Memorandum of the Govt. of India dated 10.12.2010, is that the disease should be attributable to service conditions. 7. Mr. R Jha, learned counsel for the petitioner also strenuously contended that the petitioner should be given one more chance to be examined by the Review Medical Board. The respondents had clearly stated in their affidavit-in-opposition that the petitioner was subjected to invalidation medical board proceeding and also the findings of the invalidation medical board was reviewed by the Review Medical Committee on 21.08.1999 and the Review Medical Board also found that the petitioner was 100% disabled and further recommended to be discharged from service. In this given fact, the question of granting one more chance to the petitioner for appearing in the Review Medical Board is not called for. Giving one more chance to the petitioner to appear before the Medical Board is only an empty formality and also only for satisfying the desires of the petitioner. In the given fact, this Court reiterated that the petitioner is suffering from AIDS with Pulmonary Tuberculosis. From the record, it appears Page 5 of 6 that the main disease suffered by the petitioner is “AIDS and Pulmonary Tuberculosis” is only consequence of the ‘AIDS’. No doubt, this case is an unfortunate case inasmuch as, the petitioner was a very active Rifleman General Duty and even participated as a Boxer in various tournaments. But his case is that he is suffering from AIDS with Pulmonary Tuberculosis which is not attributable to service. The respondents in their affidavit-in-opposition annexed Office Memorandum of the Govt. of India dated 10.12.2010, where-under special benefits would be available only to the employees who are discharged from service on medical ground and a copy of it is available at Annexure-R/IV of the affidavit-in-opposition filed by the respondents. 8. Even if the petitioner is not entitled to invalid pension for the simple reason that the type of disease suffered by the petitioner is not attributable to service, the respondents shall consider with human touch if the petitioner is entitled to any benefits under the said Office Memorandum of the Govt. of India dated 10.12.2010 and take a decision within a period of 6(six) months from the date of receipt of a certified copy of this judgment and order. 9. With the above observations and directions, this writ petition stands disposed of. (cid:1)(cid:2)(cid:3)(cid:4) JUDGE Page 6 of 6