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ARMED FORCES TRIBUNAL, REGIONAL BENCH,
LUCKNOW
Court No.1
Reserved Judgment
Transferred Application No.1485 of 2010
Monday this the 28th day of October, 2013
Hon’ble Mr. Justice B.N. Shukla, Member (J)
Hon’ble Lt. Gen. R. K. Chhabra, Member (A)
Gautam Kumar Yadav,
Aged about 30 years,
Son of Sri Ram Murat Yadav,
Ex Recruit, ASC Centre and College,
Agram Lines,
Bangalore – 560 007
By Legal Practitioner V. K. Pandey, Advocate
…….. Applicant
Versus
1. The Union of India.
Represented by its Secretary,
Ministry of Defence,
South Block, DHQ, P.O.
New Delhi – 110011
2. The Chief of the Army Staff,
COAS Secretariat,
Integrated Headquarters (Army)
South Block, DHQ, P.O.
New Delhi – 110011
3. Commanding Officer No.2,
Training Battalion (SUP)
ASC Centre (South)
Bangalore – 560 007
4. Officer Incharge,
Record Office,
ASC Record (South)
Bangalore -560 007
By Legal Practitioner Sri R. K. Singh, Standing Counsel
for the Central Government,
……… Respondents
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ORDER
“Hon’ble Mr. Justice B.N. Shukla, Member (J)”
1.
The petitioner had filed writ petition No.11915 of 2009 in the
High Court of Karnataka at Bangalore, and thereafter, it was
transferred to Regional Bench of the Armed Forces Tribunal at
Kochi vide order dated 26.03.2010, and it was renumbered as T.A.
No.190 of 2010 . Thereafter, the petitioner moved an application for
transfer of the case before the Chairperson of the Armed Forces
Tribunal and vide order of the Chairperson dated 20.10.2010, the
said T.A. has been received by way of transfer in this Tribunal, and
here it has been registered as T.A. No.1485 of 2010.
2.
In brief, it is the case of the petitioner that he was enrolled in
the Indian Army on 03.12.2002 as recruit E R (Equipment Repairer)
in the ASC Centre and School at Bangalore. He was enrolled as
sportsman, i.e. 4 KM cross country runner and was selected by a
special team sent to Gorakhpur (U.P.) by respondent No.4. At the
time of selection the petitioner had undergone medical examination
in the centre, which was conducted by Unit RMO and at that time
there was no notice of ailment of any kind and he was found
medically fit in all respects. After return from sports events, the
petitioner again joined the Training Centre and after 152 days of
Recruit Training, the petitioner suddenly found some swelling in his
left arm and he reported to the Unit MI Room under the instructions
of his Company Havildar Major (CHM). The Doctor gave him
medicine for four days and he was referred to CHAF Bangalore on
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03.02.2003, where he was diagnosed as a case of Leprosy, but no
proper treatment was given to the petitioner, and suddenly he was
informed that he would be boarded out from service. The petitioner
was neither given any proper instructions about his disease nor was
any Review Medical Board carried out and suddenly without
warning or show cause notice; the petitioner was discharged on
30.04.2003. The petitioner after filing writ petition earlier in the
High Court of Judicature at Allahabad and thereafter in the High
Court of Karnataka, approached respondent No.3 with a request to
carry out Review Medical Board and sent a number of
representations, but to no avail. In the T.A. following reliefs have
been claimed:
“To issue “(A) A Writ in the nature of certiorari or any other
Writ or directions setting aside the Order dated 30th
April 2003 issued by the 3rd Respondent which is
marked at ANNEXURE „A‟ for the perusal of this
Hon‟ble Court being arbitrary and unconstitutional;
(B)
To seek a Writ of mandamus or any other order
or direction to consider the Application dated
22.03.2009, submitted by the petitioner to the 1st, 2nd
and 4th respondents, a copy of which is marked at
ANNEXURE „B‟ for perusal of this Hon‟ble Court;
(C)
Further to seek any other benefit as deemed fit
by this Hon‟ble Court, keeping in mind the facts and
circumstances of the case;
in the interest of justice and equity.”
3.
In the counter affidavits filed on behalf of the respondents,
earlier in the High Court of Karnataka and thereafter in this
Tribunal, same pleadings have been reiterated. It is pleaded that
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during the basic training, the petitioner was hospitalized at
Command Hospital (Air Force), Bangalore on 3rd February, 2003
and diagnosed as “Hansen’s disease (BT) IN LEPRA REACTION
TYPE-1 (A-030)” and as per the opinion of the Medical Authorities,
he was recommended to be invalided out of service in Category P5
as per Army Order 36 of 1987 being not likely to be a fit soldier. He
was brought before the Invaliding Medical Board and invalided out
of service with effect from 01.05.2003 (A.N.) and the disease was
not attributable or aggravated by military service. It is further
pleaded that the petitioner is not entitled to any relief because his
representation dated 22.03.2009 (Annexure-B) was disposed of on
09.04.2009 (Annexure CR-1) and Annexure-A filed with the writ
petition is only service particulars, which is issued to all personnel
on termination of service in the Army and in case the petitioner was
aggrieved, he should have challenged the findings of the Invaliding
Medical Board, but the same has not been challenged, and thus, the
reliefs sought for have become infructuous and the T.A. is liable to
be dismissed.
4.
In the rejoinder affidavit filed on behalf of the petitioner, it
has been pleaded that at present petitioner is fully fit for Army
Service and he is liable to be re-enrolled in the Indian Army.
5.
We have gone through the entire record and have heard Shri
V.K. Pandey, learned counsel for the petitioner and Shri R.K. Singh
for the respondents.
6.
In the T.A. relief No. (B) as claimed by the petitioner has
become infructuous because his representation (Annexure-B) has
already been disposed of by the competent authority vide order
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dated 09.04.2009 (Annexure R-1 to the rejoinder affidavit). Relief
(A) relates to quashing of order dated 30.04.2003 (Annexure A to
the T.A.), which is discharge certificate. The petitioner never
challenged the Invaliding Medical Board proceedings. During
training, the petitioner was diagnosed as “Hansen’s disease (BT) IN
LEPRA REACTION TYPE-1 (A-030)” and the Medical Authorities
recommended that the petitioner be invalided out of service. The
petitioner was brought before the Invaliding Medical Board and
invalided out of service with effect from 01.05.2003 (A.N.). As has
been observed earlier, representation of the petitioner has already
been disposed of by the competent authority and now the petitioner
is not entitled to any relief as claimed by him.
7.
During the course of arguments, learned counsel for the
petitioner submitted that the petitioner was a recruit and at present
he is totally fit and does not suffer from any disability, and therefore
he can be re-enrolled in the service in terms of paragraph 143 of the
Regulations for the Army, 1987. Along with the T.A. report of Tilak
Pathology Private Limited (Annexure-E) has been filed, wherein it is
mentioned that, “no lepra bacilli seen”. The certificate has been
issued by the Medical Officer Incharge, State Dispensary, Malgaon,
Gorakhpur (U.P.) (Annexure A-2), wherein it has been certified that
the petitioner has now fully recovered and is fit. The said certificate
has been countersigned by the District Leprosy Officer, Gorakhpur.
8.
Paragraph 143 of the Regulations for the Army relates to re-
enrolment of ex- Army men medically boarded out. It reads as
under:
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“143. Re-Enrolment of EX-SERVICEMEN Medically Boarded
Out,—
(a) Ex-Servicemen, who are in receipt of disability pension, will not
be accepted for re-enrolment in the Army,
(b) Ex-Servicemen, medically boarded out without any disability
pension" or those whose disability pensions have been stopped
because of their disability having been re-assessed below 20% by
the Re-Survey Boards, will be eligible for re-enrolment, either in
combatant or non-combatant (enrolled) capacity in the Army,
provided they are re-medically boarded and declared fit by the
medical authorities. If such an ex-serviceman applies' for reenrolment and claims that he is entirely free from the disability for
which invalided, he will be medically examined by the Rtg MO and if
he considers him fit, the applicant will be advised to apply to officerin-charge, Records Office concerned, through the recruiting officer
for getting himself re-medically boarded. The officer-in-charge,
Records Office concerned, on receipt of the application, will arrange
for his medical examination at a Military Hospital nearest to his
place of residence. The individual concerned will have to pay all his
expenses, including that on accommodation and journey to and from
the place of medical examination.
If the individual is found fit and re-enrolled on regular engagement,
he will be enlisted for the full period of combined colour and reserve
service, subject to the following conditions :—
(i) If he had not previously completed the minimum period of colour
service after which he could be transferred to the reserve, he will
rejoin the colours and his previous colour service will count towards
the minimum service required for transfer to the reserve.
(ii) If he had previously completed the minimum period of colour
service required for transfer to the reserve and is fully trained and
suitable in all other respects, he may be re-enrolled, provided a
vacancy in the reserve exists, and be immediately transferred to the
reserve.
(c) The counting of former service for pension or gratuity is
governed by the provisions of Pension Regulations.”
9.
We are not inclined to make any observation on merits of the
petitioner’s claim and it would be for the authority concerned to
process the case of the petitioner, in accordance with law, since we
do not find any illegality in the discharge of the petitioner on
grounds of medically unfitness.
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10.
The T.A. is dismissed, but we direct that if the petitioner files
an application for re-enrolment under Regulation 143 of the
Regulations for the Army along with a certified copy of this order
within a period of two months from today, then the respondents may
consider the case of the petitioner for re-enrolment in view of the
relevant provisions. No order as to costs.
(Lt. Gen. R. K. Chhabra)
Member (A)
sry
(Justice B.N. Shukla)
Member (J)
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