EX-SEPOY (WASHERMAN) RAM KHILAWAN versus UNION OF INDIA & ORS. on 2 September 2019

SUPREME COURT REPORTS

[2019] 11 S.C.R.

AEX-SEPOY (WASHERMAN) RAM KHILAWAN

v.

UNION OF INDIA & ORS.

(Civil Appeal Nos. 6977-6978 of 2019)

BSEPTEMBER 02, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Service Law:

Discharge from service - On medical grounds - WithoutCsubjecting the appellant/employee to the Invalidating MedicalBoard as per the procedure laid down under Army Rules - Proprietyof - Held: Discharge of the appellant was only under sub-clause(iii) r.13(3)(III) and not under sub-clause (v) of r.13(3)(III) of ArmyRules - Therefore, he could not be invalidated out of service withoutDthe recommendation of the Invalidating Board and hence dischargeis not sustainable - In terms of General Principles of Army Order46 of 1980, he is entitled to be retained in service for 10 years -Since the appellant had joined the service on 23.10.1987, he wouldbe deemed to be discharged only on 22.10.1997 - Thus he isentitled to pension in addition to the disability pension - He isEentitled to arrears of pension for a period of three years prior tofiling of writ petition - Army Rules, 1954 - r.13(3)(III)(iii) - ArmyOrder 46 of 1980.

Allowing the appeals, the CourtFHELD: The order of discharge is on the ground that theappellant has been placed in Low Medical Category. Thedischarge of the appellant was only under category 13(3)(III)(iii)of Army Rules, 1954, as he has been found medically unfit forfurther service. Clause (v) of Rule 13(3)(III) would be applicableGin respect of all other classes of discharge which do not findmention in Rule 13(3)(III). The communication of discharge fromthe service is on the ground that he has been placed in the LowMedical Category. Once he has been put in Low MedicalCategory, clause (iii) of Rule 13(3)(III) would be applicable assuch clause alone deals with discharge if any personnel is foundH

medically unfit for further service. There is no reference to sub-clause (v) of Army Rule 13(3)(III) in the order of discharge. Stillfurther, it is not the recital of a provision which is relevant todetermine as to whether the personnel is discharged underclause (v) or clause (iii) of Rule 13(3)(III) of the Rules. It isthe object, language and the purport of the discharge which willbe relevant to determine whether an army personnel had beendischarged under clause (iii) or clause (v). Clause (v) is theresidual clause when other clauses are not applicable to suchpersonnel. Since the discharge of the appellant is covered byclause (iii) of Rule 13(3)(III) of the Rules, as the discharge ofthe appellant was only on the ground of his medical unfitnessfor further service, therefore, he could not be invalidated out ofservice without the recommendation of the Invalidating Board.such discharge is not legally sustainable. [Paras 8, 10 and 12][1072-D-G-H; 1073-A-C-G]

2. In terms of clause (b) of General Principles of ArmyOrder 46 of 1980, he is entitled to be retained for ten yearsbeing in the rank of personnel of Other Ranks. Since, he joinedthe service on October 23, 1987, he would be deemed to bedischarged only on October 22, 1997. As a consequence thereof,the appellant became entitled to pension in addition to disabilitypension which was granted to him for a period of five years.However, the appellant will not be entitled to arrears of salaryfor the period up to the date of discharge inter alia on the groundof no work no pay but he shall be entitled to arrears of pensionfor a period of three years prior to filing of Writ Petition whichwas transferred to the Tribunal. [Para 13, 14] [1073-H; 1074-A-C]

Union of India & Ors. v. Rajpal Singh (2009) 1 SCC216 : [2008] 15 SCR 879 ; Smt. Sulekha Rani v. Unionof India and Ors. Civil Appeal No. 1280 of 2019decided on July 16, 2019 - relied on.

Case Law Reference

[2008] 15 SCR 879

relied onPara 7relied onPara 11

Civil Appeal No. 1280 of 2019decided on July 16, 2019

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ACIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6977-6978 of 2019.

From the Judgment and Order dated 21.10.2011 of the ArmedForces Tribunal, Regional Bench, Lucknow in T.A. No. 1120 of 2010and order dated 28.05.2013 in R.A. No. 03 of 2013 in T.A. No. 1120Bof 2010/order dated 30.06.2014 in M.A. No. 502 of 2014 in T.A. No.1120 of 2010.

Lt. Col. K. Ramesh, Vibhuti Sushant Gupta, Ms. ArchanaRamesh, Himanshu Kalra, Ram Naresh Yadav, Advs. for the Appellant.

R. Balasubramanian, Sr. Adv., Yogesh Pachauri, S. K. Singhania,CSachin Sharma, A. K. Sharma, Mukesh Kumar Maroria, Advs. for theRespondents.

The Judgment of the Court was delivered by HEMANT GUPTA, J.D1. Delay condoned. Appeals admitted.

2. The challenge in the present appeals is to orders passed bythe Armed Forces Tribunal[1], Regional Bench, Lucknow on October 21,2011, May 28, 2013 and June 30, 2014 whereby, challenge to thedischarge of the appellant from service on August 31, 1993 remainedEunsuccessful.

3. The appellant was enrolled in the Army as a Washerman onOctober 23, 1987. He was discharged from service on medical groundson August 31, 1993 due to “CNS (IN) Seizure” when he was put inLow Medical Category BEE on August 27, 1992. Appellant, aggrievedFagainst the discharge, submitted statutory complaint on August 11, 2007wherein, the stand of the appellant was that no show-cause notice wasgiven to him by the Commanding Officer who sanctioned dischargeunder Rule 13(3) Item III (v) of the Army Rules, 1954[2]. Such statutorycomplaint was declined on October 12, 2007, inter alia, on the groundthat though the appellant has given his option to serve in the shelteredGappointment but no sheltered appointment was available commensuratewith the trade to suitably employ in the public interest. Therefore, hewas discharged under the provisions of Army Order 46 of 1980 readwith Rule 13(3) Item III(v) of the Rules.

1 TribunalH2 Rules

EX-SEPOY (WASHERMAN) RAM KHILAWAN v.UNION OF INDIA & ORS. [HEMANT GUPTA, J.]

4. The appellant filed writ petition before the High Court ofJudicature at Allahabad but subsequently on commencement of ArmedForces Tribunal Act, 2007, the writ petition was transferred to theTribunal, Regional Bench, Lucknow. The learned Tribunal found thatthe appellant was placed in permanent Low Medical Category BEEand was discharged from service on August 31, 1993 with only 05 years11 months and 08 days of service. The Classified Specialist has putthe following restrictions on the appellant:

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"not be allowed to swim or work near fire or moving machineryand also to handle firearms to ensure seizure precautions."

Therefore, he could not be employed in other shelteredappointment in public interest. The Tribunal found that the appellanthas been given disability pension @20% for five years.

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5. Some of the relevant provisions of the Rules need to bereproduced:

“13. Authorities empowered to authorize discharge. - (1)Each of the authorities specified in column 3 of the Table belowshall be the competent authority to discharge service personsubject to the Act specified in column 1 thereof on the groundsspecified in column 2.

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[2019] 11 S.C.R.

A(ii) xx xx xx (iii) Having been found Commanding To be carried out medically unfit for Officer only on the further service. recommendation of an invaliding Board. B(iii) (a) Having been Commanding The individual will found to be in Officer be discharged from permanent low medical service on the category SHAPE 2/3 by recommendations of a medical board and Release Medical when:- Board. C(i) no sheltered appointment is available in the unit, or (ii) is surplus to the organization.(iv) At his own request Commanding The Commanding Dbefore fulfilling the Officer Officer will exercise conditions of his the power only when enrolment. he is satisfied as to the desirability of sanctioning the application and the Estrength of the unit will not thereby be unduly reduced. (v) All other classes of Brigade/Sub The Brigade or Sub-discharge. – Area Area Commander Commander. before ordering the Fdischarge shall, if the circumstances of the case permit give to the person whose discharge is contemplated an Gopportunity to show cause against the contemplated discharge.

6. Another relevant provision is Army Order No. 46 of 1980,which reads as under:

“AO 46/80 Disposal of Permanent Low Medical CategoryPersonnel Other Than Officers Aim

1. The aim of this Army Order is to lay down implementationinstructions for the disposal of permanent low medical categoryJCOs/OR in terms of Ministry of Defence Letter No. A/32395/VIII/Org 2 (MP) (c)/713-S/A/D (AG) dated 10-5-1977 asamended vide Corrigendum No. A/32395/X/Org 2 (MP) (c)/7167/A/D (AG) dated 26-11-1979, reproduced as Appendices Aand B respectively to this Order.

Retention

2. General principles

(a) The employment of permanent low medical categorypersonnel, at all times, is subject to the availability of suitablealternative appointments commensurate with their medicalcategory and also to the proviso that this can be justified in thepublic interest, and that their retention will not exceed thesanctioned strength of the regiment/corps. When such anappointment is not available or when their retention is either notconsidered necessary in the interest of the service or it exceedsthe sanctioned strength of the regiment/corps, they will bedischarged irrespective of the service put in by them.

(b) Ordinarily, permanent low medical category personnel will beretained in service till completion of 15 years' service in the caseof JCOs and 10 years in the case of OR (including NCOs).However, such personnel may continue to be retained in servicebeyond the above period until they become due for discharge inthe normal manner subject to their willingness and the fulfilmentof the stipulation laid in sub-para (a) above."

7. Learned counsel for the appellant relied upon judgment of thisCourt in Union of India & Ors. v. Rajpal Singh[3] wherein, this Courthas held that if a person is to be discharged on the ground of medical 3 (2009) 1 SCC 216

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Aunfitness, such discharge cannot be passed without subjecting him tothe Invalidating Board as per procedure laid down in Rule 13. The Courtheld as under:

“30. A plain reading of the Army Order shows that it comes intooperation after an opinion has been formed as to whether aBparticular personnel is to be retained in service or not, if so forwhat period. If a person is to be retained in service despite hislow medical category for a particular period as stipulated in ArmyOrder 46 of 1980, the question of subjecting him to the InvalidatingBoard may not arise. However, if a person is to be dischargedon the ground of medical unfitness, at that stage of his tenure ofCservice or extended service within the meaning of the ArmyOrder, he has to be discharged as per the procedure laid downin Clause I(ii) in Column 2 of the said Table.”

8. In the present case, the order of discharge is on the groundthat the appellant has been placed in Low Medical Category. TheDextract from the order of communication of discharge reads as under:

“1. The personnel mentioned in Appendix 'A' to this letter havebeen placed in Low Medical Category lower than 'AYE' andbecome due for x discharge from service as per policy ondischarge of permanent low medical category personnel laid downEin Army Order 46/80. They will report to Depot Coy HQ WingASC Centre (South), Bangalore-7 and SOS from service w.e.f.the dates shown against their names. No joining time isadmissible.”

9. The argument of learned counsel for the respondents is thatFthe discharge of the appellant was under clause III(v) of Rule 13(3) ofthe Rules and, therefore, the question of subjecting the appellant toInvalidating Medical Board does not arise. It is argued that such is thecase admitted by the appellant in his statutory complaint as well.

10. We have heard learned counsel for the parties and find thatGthe discharge of the appellant was only under category 13(3)(III)(iii)as he has been found medically unfit for further service. Clause (v) ofRule 13(3)(III) would be applicable in respect of all other classes ofdischarge which do not find mention in Rule 13(3)(III) (iii). Thecommunication of discharge from the service is on the ground that heHhas been placed in the Low Medical Category. Once he has been put in Low Medical Category, clause (iii) of Rule 13(3)(III) would beapplicable as such clause alone deals with discharge if any personnelis found medically unfit for further service. There is no reference tosub-clause (v) of Army Rule 13(3)(III) in the order of discharge. Stillfurther, it is not the recital of a provision which is relevant to determineas to whether the personnel is discharged under clause (v) or clause(iii) of Rule 13(3)(III) of the Rules. It is the object, language and thepurport of the discharge which will be relevant to determine whetheran army personnel had been discharged under clause (iii) or clause (v).Clause (v) is the residual clause when other clauses are not applicableto such personnel. Since the discharge of the appellant is covered byclause (iii) of Rule 13(3)(III) of the Rules, as the discharge of theappellant was only on the ground of his medical unfitness for furtherservice, therefore, he could not be invalidated out of service withoutthe recommendation of the Invalidating Board.

11. This Court in Smt. Sulekha Rani v. Union of India andOrs.[4] held that when the discharge was on the ground of medicalunfitness, the Rule prescribes a particular procedure for discharge. Thus,an order of discharge passed without subjecting the officer to anInvalidating Board would be contrary to the statutory rule. The Courtheld as under:

“10. After considering the facts and material before us, we areof the view that the discharge of the appellant's spouse withoutconvening an Invalidation Medical Board suffers from anillegality. The respondents have relied upon the responsepurportedly addressed by the Jawan to the notice to show causeissued to him. The provisions Rule 13(3)(III)(v) upon whichreliance has been placed had no application to the case. It wouldnot operate in an area which is covered by medical unfitness.”

12. Therefore, we find that discharge of the appellant was notunder the residual clause (v) but under clause (iii) of Rule 13(3)(III) ofthe Rules. Since the discharge has proceeded without reference toInvalidating Medical Board, such discharge is not legally sustainable.

13. Having said so, in terms of clause (b) of General Principlesof Army Order 46 of 1980, he is entitled to be retained for ten yearsbeing in the rank of personnel of Other Ranks. Since, he joined the 4 Civil Appeal No. 1280 of 2019 decided on July 16, 2019

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Aservice on October 23, 1987, he would be deemed to be dischargedonly on October 22, 1997.

14. As a consequence thereof, the appellant became entitled topension in addition to disability pension which was granted to him for aperiod of five years. However, the appellant will not be entitled to arrearsBof salary for the period up to the date of discharge inter alia on theground of no work no pay but he shall be entitled to arrears of pensionfor a period of three years prior to filing of Writ Petition No. 61717 of2007 which was transferred to the Tribunal. The arrears of pensionbe paid to the appellant within a period of six months from the date ofreceipt of copy of this order.C

15. In view of the above, the appeals are allowed.

Kalpana K. Tripathy

Appeals allowed.

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