Ram Khilawan Vs. Union of India (UOI) and Ors. - (Supreme Court) (02 Sep 2019)

Discharge proceeded without reference to Invalidating Medical Board cannot be sustained

MANU/SC/1191/2019

Service

The Appellant was enrolled in the Army as a Washerman. He was discharged from service on medical grounds on August 31, 1993. Appellant, aggrieved against the discharge, submitted statutory complaint wherein, the stand of the Appellant was that, no show-cause notice was given to him by the Commanding Officer who sanctioned discharge under Rule 13(3) Item III (v) of the Army Rules, 1954. Such statutory complaint was declined, on the ground that though the Appellant has given his option to serve in the sheltered appointment but no sheltered appointment was available commensurate with the trade to suitably employ in the public interest. Therefore, he was discharged under the provisions of Army Order 46 of 1980 read with Rule 13(3) Item III(v) of the Rules.

The Appellant filed writ petition before the High Court but subsequently on commencement of Armed Forces Tribunal Act, 2007, the writ petition was transferred to the Tribunal. The learned Tribunal found that, the Appellant was placed in permanent Low Medical Category BEE and was discharged from service on August 31, 1993 with only 05 years 11 months and 08 days of service.

The discharge of the Appellant was only under category Rule 13(3)(III)(iii) as he has been found medically unfit for further service. Clause (v) of Rule 13(3)(III) would be applicable in respect of all other classes of discharge which do not find mention in Rule 13(3)(III). The communication of discharge from the service is on the ground that, he has been placed in the Low Medical Category. Once he has been put in Low Medical Category, Clause (iii) of Rule 13(3)(III) would be applicable as such Clause alone deals with discharge if any personnel is found medically unfit for further service. There is no reference to Sub-clause (v) of Army Rule 13(3)(III) in the order of discharge. Still further, it is not the recital of a provision which is relevant to determine as 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 the purport of the discharge which will be relevant to determine whether army personnel had been discharged under Clause (iii) or Clause (v). Since the discharge of the Appellant is covered by Clause (iii) of Rule 13(3)(III) of the Rules, as the discharge of the Appellant was only on the ground of his medical unfitness for further service, therefore, he could not be invalidated out of service without the recommendation of the Invalidating Board.

Therefore, discharge of the Appellant was not under the residual Clause (v) but under Clause (iii) of Rule 13(3)(III) of the Rules. Since the discharge has proceeded without reference to Invalidating Medical Board, such discharge is not legally sustainable. In terms of Clause (b) of General Principles of Army Order 46 of 1980, he is entitled to be retained for ten years being in the rank of personnel of Other Ranks. As a consequence thereof, the Appellant became entitled to pension in addition to disability pension which was granted to him for a period of five years. Appeals allowed.

Tags : DISCHARGE PROCEDURE LEGALITY