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2001 DIGILAW 157 (CAL)

Prajesh Banerjee v. Union of India

2001-03-16

MAHEMMAD HABEEB SHAMS ANSARI

body2001
JUDGMENT M.H.S. Ansari, J. The petitioner at the time during the period 1996-98 was a senior Supervisor posted to 16 Squadron. In the instant writ application, petitioner questioned the order of termination being Annexure P-19 dated 11th April, 2000 and for reinstatement of the petitioner in service and prayed for reliefs inter alia as under: "a) A writ 'or in the nature of certiorari commanding the respondents transmit to this Hon'ble Court the records of the case including the order of termination being annexure 'P-19' herein so that conscionable justice may be administered by quashing the same; b) A writ of or in the nature of Mandamus commanding the respondents to reinstate your petitioner in service and allot job commensurate with the status and ability of your petitioner; c) A writ of or in the nature of Mandamus commanding the respondents concerned to initiate proceedings against the respondents No.3, 4 and 5 for administering willful and wrongful treatment to your petitioner causing illegal termination of service of you petitioner; d) A direction upon the respondents to pay compensation and/or damages to your petitioner for the administration of willful and wrong treatment to your petitioner resulting in termination of his service." 2. In the writ application averments and allegations are inter alia as under: That upon the posting of Wing Commander 'B' to the Squadron in which the petitioner was posted, the atmosphere got vitiated as the petitioner was humiliated by the said Wing Commander 'B' on every minor issue details whereof have been stated and the petitioner even sought for positioning him at an alternative place which only infuriated the Wing Commander. The petitioner sought intervention of AOC. A Court of enquiry was held at Ambala base into certain conduct of the petitioner. During the said Court of enquiry: the petitioner was informed that he would have undergo a psychiatric evaluation. According to the petitioner, this was done at the behest of the said Wing Commander 'B'. 3. On or about 2nd/3rd August, 1999, AFMSF- 10 (Air Force Medical Service Form- 10) was raised by AOC, Air Commander K. S. Chinnah recommending psychiatric examination of the petitioner. For the said psychiatric evaluation, petitioner was admitted to psychiatric ward of the Command Hospital, Chandimandir at Chandigarh. 3. On or about 2nd/3rd August, 1999, AFMSF- 10 (Air Force Medical Service Form- 10) was raised by AOC, Air Commander K. S. Chinnah recommending psychiatric examination of the petitioner. For the said psychiatric evaluation, petitioner was admitted to psychiatric ward of the Command Hospital, Chandimandir at Chandigarh. The treatment continued from 3rd August, 1999 to 18th August, 1999 whereafter the petitioner was instructed to go to the Base Hospital, Delhi for the concurrence of medical opinion form a senior Psychiatrist (Col. 'G'). According to the petitioner, the Doctors at Chandimandir diagnosed the case of the petitioner to be a case of anxiety and depression. The petitioner got admitted to the Base Hospital at Delhi and on reaching there, the senior Psychiatrist (Col. 'G') started the treatment. According to the petitioner, the said senior Psychiatrist (Col. 'G') told the petitioner that as he had misbehaved with the said Wing Commander 'B', the petitioner would have to face the consequences. Allegations have been made with regard to the wrongful treatment administered by the said senior Psychiatrist (Col. 'G') and the petitioner states that he apprehended that the senior Psychiatrist (Col. 'G') was really trying to give effect to Wing Commander's (B) desire of ruining petitioner's life and career. Upon expressing his unwillingness and refusal to take further treatment, the senior Psychiatrist (Col. 'G') as also the other Doctors explained to the petitioner that in such an event, petitioner's services would be terminated without any pensionery benefits. The petitioner further alleges that the said senior Psychiatrist (Col. 'G') had subjected the petitioner to six electric shocks (ECTs - Electro Convulsive Therapies) by force and threat and under influence of drugs administered to the petitioner. It is further alleged that the said ECTs were given without taking any permission from the next of kin (wife). In addition, it is alleged that the petitioner had been administered with very powerful and strong anti-psychotic drugs which were more powerful and potent than the drugs administered to the petitioner at Chandimandir. 4. The petitioner even moved the Delhi High Court by way of writ application seeking relief to stop the continuance of treatment for alleged psychotics disorders. An interim order was issued by the Delhi High Court. 4. The petitioner even moved the Delhi High Court by way of writ application seeking relief to stop the continuance of treatment for alleged psychotics disorders. An interim order was issued by the Delhi High Court. The petitioner states that the atmosphere at the Base Hospital became more hostile since the petitioner's wife had caused the writ application to be moved in the Delhi High Court. The petitioner's wife brought the petitioner back to home at Durgapur on October 4, 1999. The petitioner consulted eminent Doctors at Calcutta and after receiving treatment, it is stated, the petitioner came back to normal life "from the clutches of death." 5. On October 17, 1999 petitioner reported back to Ambala and pleaded for a check up by any other Doctor for a second opinion. It is stated that the petitioner was admitted to the Hospital at Ambala where he was kept pending approval of "invalidating Medical Board from October 22, 1999 till first week of December, 1999." It is averred that the 1MB sent its report from Ambala to Delhi by November 7, 1999 and from Delhi Base Hospital, the papers were hastened to Air Force Headquarters with 'uncanny promptitude' in that the process was completed and papers 'cleared within seven days'. In the meantime petitioner visited the Doctors in Calcutta to report back for further treatment for which the petitioner applied for leave which was not granted. The petitioner left the hospital on his own on 7th December, 1999 and thereafter on his own accord reported on 7th January, 2000 to Ambala Hospital and got himself admitted there once again. It is alleged that, however, the petitioner was 'boarded out of service medically' as a case of schizoaffective psychosis on 18th January, 2000. The petitioner thereafter enquired as to whether the petitioner will be paid disability pension. By a letter dated 5th April, 2000 petitioner was informed that disability pension is not admissible to the petitioner as at the time of release, petitioner was found to be suffering from disability which was neither attributable to nor aggravated by Military service since the disease was found to be a constitutional disorder. 6. Certificate of release/termination of the petitioner from service was communicated to the petitioner at the residential address of the petitioner at Bankura being Annexure P-19 dated 11th April, 2000, questioning the same, the instant writ application has been filed. 6. Certificate of release/termination of the petitioner from service was communicated to the petitioner at the residential address of the petitioner at Bankura being Annexure P-19 dated 11th April, 2000, questioning the same, the instant writ application has been filed. Affidavit was affirmed on 9.8.2000. The reliefs prayed for by the petitioner in the instant writ petition are, as have been noticed supra. 7. By a supplementary affidavit affirmed by the petitioner on 17th August, 2000, the petitioner has brought on record certain facts which "due to inadvertence" escaped the pleadings in the writ petition. They are as under; “I state that though I was declared normal and was asked to sign on the 1MB treatment papers during the period from 22nd October, 1999 to 31st October, 1999 and there was absolutely nothing to administer with any drugs for abnormality, the respondents, without issuing any show cause for invalidation as is required under the Medical rules, either to me or to my next of kin, the respondent authorities induced my wife to give a 'No Appeal' statement against the order of the 1MB on or about 27th October, 1999. Such no Appeal was obtained from my wife against the promise to her of my early release from the hospital, where I was virtually kept under confinement." 8. An affidavit-in-opposition has been filed on behalf of the respondents affirmed by the Commanding Officer (respondent No.4). Various averments and allegations made in the petition have been traversed. Incidents pertaining to the petitioner have been set out including the incident of 16.7.1999 and to the court of enquiry which was ordered into the said incident. With regard to the said Court of enquiry, it is stated that the same was conducted in a fair and unbiased manner. The enquiry was conducted by two independent officers with the presiding officer being very senior Group Captain. It is stated that on the facts available, it was decided by the appropriate authorities that the petitioner would need medical help. It is stated that the AIMSF - 10 was raised by respondent No.4 after ascertaining the initial facts including the interview had with the petitioner and only after he felt, there was necessity of medical help did he order the psychiatric evaluation. It is stated that: "Psychometric assessment done at Command Hospital (Western Command), Chandimandir on 4th August, 1999 by Dr. It is stated that: "Psychometric assessment done at Command Hospital (Western Command), Chandimandir on 4th August, 1999 by Dr. S.P. Rathee, Ph.D, Clinical Psychologist had revealed cyclothymic traits (Potentially Psychiatric mood swings associated with affective psychosis), emotional inability atypical/unpopular responses, impulsivity, conflict with authority figures and mal-adjustment. After treatment by psychiatrist he was recommended observation in low medical classification (S3: fit for only ... routine duties under supervision, not fit for flying) and further medication. As per service regulations the aforesaid opinion was subject to review/reassessment by Senior Adviser (Psychiatry, and the petitioner was transferred to Base Hospital, Delhi Cantt on 20th August, 1999 along with one sick attendant as he was not fit to travel alone." 9. In the affidavit-in-opposition, it has been stated that the respondent No. 5 had no personal acquaintance with the petitioner's Commanding Officer (respondent No.3) nor was he subordinate in any manner to the respondent No.4. Neither the respondent No.3 nor respondent No.4 even tried to influence the respondent No.5 and the allegations made by the petitioner, it is stated are part of his mental illness which among other symptoms, manifest with persecutory delusions. 10. With regard to the electro convulsive therapy, it is stated that the appropriate psychiatric treatment including ECT was administered under general anesthesia after obtaining the petitioner's consent in accordance with the rules. Facts have been stated as to when and how the same was stopped. The writ petition filed in the Delhi High Court was dismissed as withdrawn. 11. It is stated that the petitioner's wife took the petitioner on out pass from the Base Hospital on 4th October, 1999 but did not return. The petitioner was, therefore, discharged in absentia. The petitioner absented himself without leave contrary to Military discipline and in complete disregard of the norms and conventions of Military hospital. With regard to the medical invalidment, it is stated that the petitioner's wife (next of kin) was served with show cause notice on 28th October, 1999 (Annexure R-16) and she declined to appeal against the invalidment Medical Board. Her letter has been annexed to the affidavit-in-opposition as R-17. The petitioner was invalided out of service it is asserted, on medical grounds in accordance with the law. 12. Her letter has been annexed to the affidavit-in-opposition as R-17. The petitioner was invalided out of service it is asserted, on medical grounds in accordance with the law. 12. In the affidavit-in-reply with regard to the said Annexures R-16 and R17 it has been stated as under: "........1 say that Annexures R-16 and R-17 will reveal that the letter of ' no appeal' was taken from my wife under abnormal circumstances. I say that the letter being annexure R-17 to/the said opposition does not bear any date. Moreover, there was absolutely no reason for the respondents to obtain a 'no appeal' from my wife when I was absolutely normal and comfortable at the period of time particularly when the respondents claimed to have taken consent from me while administering ECT. I say that the said 'no appeal' was obtained by the respondents by way of black-mail." 13. After having heard the learned counsel for the respective parties the view that I proposed to take in the matter, it was considered not necessary to set out in detail the various averments made in the writ application, the manner in which the same were traversed in the affidavit-in-opposition and in affidavit-in-reply. Only certain pleadings as above, which in the opinion of this Court are sufficient for the disposal of the instant writ application, have been stated. The reasons therefor will be apparent from this judgment. 14. From the narration of facts as above, it is noticed that a Court of enquiry was' initiated and during the same decision was taken for medical evaluation of the petitioner which ultimately culminated in an order of invalidment passed by the Medical Board constituted in that behalf and after obtaining the approval of the Central Government as can be seen from annexure P-17 dated 18.1.2000, the petitioner was released form service. The crux of the controversy, therefore, in the opinion of this Court centers around the orders invaliding the petitioner out of service. It is needless to state that in exercise of its jurisdiction under Article 226, the scope of judicial review is limited to seeing whether the action complained of (IMB report in the instant case) has been taken in accordance with the law and the procedures prescribed therefor have been adhered to and whether the decision is perverse. 15. It is needless to state that in exercise of its jurisdiction under Article 226, the scope of judicial review is limited to seeing whether the action complained of (IMB report in the instant case) has been taken in accordance with the law and the procedures prescribed therefor have been adhered to and whether the decision is perverse. 15. Before, however, we deal with the main question as above, it is but appropriate that the rival contentions on the other aspects of the case may be noticed. 16. Mr. Partha Sengupta appearing along with his Leader Mr. Sakti Nath Mukherjee, learned advocates for the petitioner reiterated the various averments made in the writ application and the affidavit-in-reply with a view to high light that the entire action culminating in the passing of the impugned order of invaliding the petitioner out of service suffers from malice. Individual incidents referred to in the writ application have been relied upon. It was sought to be high lighted that there was a known personality conflict between the petitioner and the Wing Commander 'B' and as apprehended by the petitioner consequent upon the said Officer having been posted at 14 Squadron, the petitioner was humiliated on every minor issue and some times even in front of the junior pilots. Reference has been made to the various annexures to the writ petition including the correspondence made by the petitioner to positioning him to another base. 17. Mr. Partha Sengupta strenuously urged that the affidavit-in-opposition has been affirmed on behalf of the respondents by the Commanding Officer and, therefore, the various averments made in the writ application and statements of facts with regard to malicious acts of the respondents No.3 and the Senior Psychiatrist, the respondent No.5 should be treated as non traversed as no individual affidavits denying the same have been filed by the said respondents. Facts as to malice ought to be accepted in their entirety as to their being correct and as stated in the writ petition, it was contended. 18. Mr. Sakti Nath Mukherjee, ld. Sr. advocate on behalf of the petitioner contended that the entire action culminating in the impugned order of invalidment of the petitioner stem form malice and as malice would unravel every action including the impugned orders based upon 1MB are inflicted with the vice of malice and, therefore, should be set aside. 19. On the other hand Mr. Sr. advocate on behalf of the petitioner contended that the entire action culminating in the impugned order of invalidment of the petitioner stem form malice and as malice would unravel every action including the impugned orders based upon 1MB are inflicted with the vice of malice and, therefore, should be set aside. 19. On the other hand Mr. Priyabrata Mukherjee appearing along with Mr. Swap an Kr. Banerjee, on behalf of the respondents submitted that the allegations have been traversed in detail in the affidavit-in-opposition and there is no warrant for applying the rule of 'non-traverse'. The invalidment of the petitioner was based upon medical advice and no malice has been attributed to the said authorities or to the persons who constituted the Medical Board. Keeping in view the nature of illness with which the petitioner is inflicted with and the opinion formed by the Medical Board, the question of the said action of invalidment being tainted with malice attributed to respondent No.3 and/or respondent No.5 does not arise. The treatment was offered to the petitioner at the military hospital by competent Doctors and the question of the nature of treatment as contended by the petitioner being wrong medical treatment are not based on medical record but on the assumption and conclusions drawn by the petitioner himself from certain prescriptions such conclusions are unwarranted and baseless and have been specifically denied besides being a disputed question of fact, the same cannot be decided in a writ proceedings. 20. Ld. Counsel Mr. Priyabrata Mukherjee referred to the allegations in paragraph 32 of the writ application wherein it is stated that the petitioner has been deliberately subjected to wrong medical treatment because of which he had lost his eye sight partially have been found to be incorrect as the petitioner was referred to Senior Eye Specialist who did not find any visual defect in the petitioner. - 21. As to the treatment itself allegations made in the writ petition based upon the treatment petitioner had from private Doctors Mr. Priyabrata Mukherjee. Ld. advocate drew attention of this Court to paragraph 35 of the affidavit-in-opposition wherein it is stated that it will be professionally unethical for respondent No.5 to comment of the opinion/statements allegedly made by a Fellow Medical Doctor whose formal written opinion has not been brought on record. Priyabrata Mukherjee. Ld. advocate drew attention of this Court to paragraph 35 of the affidavit-in-opposition wherein it is stated that it will be professionally unethical for respondent No.5 to comment of the opinion/statements allegedly made by a Fellow Medical Doctor whose formal written opinion has not been brought on record. It is further stated therein that conclusions drawn by the petitioner from Doctor (Col.) A. Mukherjee's prescription dated 30th September, 1999 are unwarranted and baseless. 22. The exercise of power for improper purpose is invalid. The Supreme Court in Common Cause, A Registered Society vs. Union of India & Ors., AIR 1999 SC 2979 , observed that where actual malice was proved it rendered the action both ultra vires and tortuous. It was observed that it was not necessary to establish actual malice in every claim for misfeasance in public office. The Supreme Court summarized the law of misfeasance in the light of the ratio in Three Rivers District Councils vs. Bank of England, 1996 (3) All England Law Reports 558, and laid down six principles emanating therefrom. Judged in the light of the said principles, in the case on hand whether there was deliberate and dishonest abuse of powers given to a public officer, the knowledge by the officer both that he has no power to do, the act complained of and that the act would probably injure the petitioner, are all questions which in the instant case would need to be established by evidence. It is my considered view that the allegations with regard to malice in the facts and circumstances of this case are such which would require to be established by adduction of evidence documentary and oral on the question as to whether the treatment administered to the petitioner at the Military Hospital was wrong treatment or that the Doctors administering the treatment to the petitioner at the said Government Hospitals were acting at the behest of the respondent No.3 and administering wrong treatment willfully or deliberately. The nature of illness and the treatment to be administered in relation thereto are of a highly specialized and technical nature. Expert opinion may also be required to ascertain the rival contentions with regard to the nature of treatment administered to' the petitioner or that should have been administered to the petitioner and/or the consequences of either of them. The nature of illness and the treatment to be administered in relation thereto are of a highly specialized and technical nature. Expert opinion may also be required to ascertain the rival contentions with regard to the nature of treatment administered to' the petitioner or that should have been administered to the petitioner and/or the consequences of either of them. It is well settled principle of law that one of the grounds against the exercise of the discretion by a Writ Court in matters where disputed facts have to be investigated, the right claimed by the petitioner is not capable of being established in the summary proceedings under Article 226 because it requires a detailed examination of the evidence as may be had in a suit. The Writ Court normally does not embark upon an enquiry into such disputed questions which can be adjudicated only upon adduction of evidence, oral and/or documentary. It must, however, be clarified that this is a rule of discretion and not of exclusion of jurisdiction. In my considered view, therefore, the question is left open for being raised before and adjudicated, if so advised by the petitioner in appropriate proceedings. This court did not and has not for that reason dilated on this aspect of the matter in any great length either in relation to the pleadings or in relation to the contentions raised in the writ application or as those urged before Court by the ld. counsel for the respective parties. I have, therefore, refrained from proceeding to decide the issues of fact for the reason that the material on record is not sufficient to decide the same. As already noticed, the matter involves determination of facts requiring expert opinion and issues involving facts of highly technical nature. 23. The only question, therefore, for decision of this Court is as to whether the action of the respondent authority in invalidating the petitioner out of service is sustainable. 24. Before dealing with the relevant contentions in relation to the legality and/ or validity of the impugned orders of invalidation, it would be useful to refer to certain rules relating to invaliding out of service. To the extent necessary, Regulations 421 and 422 are extracted hereunder: "421: (a) Invaliding out of service.- When it becomes obvious that an individual will have to be invalided out of service, a Medical Board will be arranged and held at once. To the extent necessary, Regulations 421 and 422 are extracted hereunder: "421: (a) Invaliding out of service.- When it becomes obvious that an individual will have to be invalided out of service, a Medical Board will be arranged and held at once. NOTE: For cases of Pulmonary Tuberculosis, Epilepsy, Amputation and Psychosis, see relevant paras below. (b) Invalidment of Service Officers.- The following types of cases of invalidment in respect of Service Officers should be processed expeditiously and must in all cases be finalized within the maximum period noted against each type of case from the date of approval of the invaliding medical board proceedings by the DMS(Army)/ DMS (Navy)/DMS (Air):(i) cases where invalidation board proceedings are not accompanied by appeals-3D days. (ii) cases of invalidation accompanied by appeals-56 days. (iii)cases of invalidation where there is the difference of opinion among medical authorities or where review medical board is necessary as a result of appeal-84 days. RECORDING OF BOARD PROCEEDINGS 422; (a) When answering questions on the various forms, members of Medical Boards must bear in mind that the disposal of the individual, and the determination of his eligibility for a disability pension/gratuity is mainly decided on the facts brought to the notice of and opinions expressed by the Board. Various financial queries affecting the patients' entitlements may arise at a later date and answers may have to be based on the evidence in the Medical Board documents." Rule 424 states that the proceedings of Medical Board will be treated as confidential. To the extent relevant, the said Rule 424 is extracted hereunder: "PROCEEDINGS CONFIDENTIAL 424. Proceedings of Medical Boards will be treated as confidential and disposed of only through medical channels and formation headquarters. The following information may, however, be given:- (a) In the case of an officer/cadet who is found fit to return to duty, the President of the Medical Board will inform the officer accordingly instruct him to report for duty forthwith. (b) In the case of an officer/cadet found temporarily unfit/fit only in restricted medical category, the President will inform him/her of the board's opinion and as to the period of such unfitness/restricted medical category. (c) Release on medical grounds. (i) An officer who is found by a Medical Board to be permanently unfit for form of military service may be released from the Service in accordance with the procedure laid down in this rule. (c) Release on medical grounds. (i) An officer who is found by a Medical Board to be permanently unfit for form of military service may be released from the Service in accordance with the procedure laid down in this rule. (ii) The President of the Medical Board shall, immediately after the Medical Board has come to the conclusion that the officer is permanently unfit for any form of military service, issue a notice specifying the nature of the disease or disability he is suffering from and the finding of the Medical Board and also intimating him that in view of the finding he may be released from the Service. Every such notice shall also specify that the officer may 'within fifteen days of the date of receipt of notice, prefer a petition against the finding of the Medical Board to the Chief of the Army Staff/Chief of the Naval Staff/Chief of the Air Staff through the President of the Medical Board: Provided that wherein the opinion of the Medical Board the officer is suffering from a mental disease and it is either unsafe to communicate the nature of the disease or disability to the officer or the officer is unfit to look after his interests, the nature of the disease or disability shall be communicated to the officer's next-of-kin who shall have the like right to petition. (iii) If no petition is preferred within the time specified in sub-para (ii) above the officer may be released from the service by an order to that effect by the Chief of the Army Staff/Chief of the Naval Staff/Chief of the Air Staff. (iv) If a petition is preferred within the time specified in sub-para (ii) above it shall be forwarded to the Central Government together with the records thereof and the recommendation of the Chief of the Army Staff/Chief of the Naval Staff/Chief of the Air Staff. (iv) If a petition is preferred within the time specified in sub-para (ii) above it shall be forwarded to the Central Government together with the records thereof and the recommendation of the Chief of the Army Staff/Chief of the Naval Staff/Chief of the Air Staff. The Central Government, may, after considering the petition and the recommendation of the Chief of the Army Staff/Chief of the Naval Staff/Chief of the Air Staff, pass such order as it deems fit." Cases of psychotic illness to be invalided from the Armed Forces have been dealt with in Rule 450 which reads as under: "Cases diagnosed as suffering from psychosis or who have had a psychotic break down even though they may have recovered, will be invalided as expeditiously as possible out of service as permanently unfit for service in the Armed Forces except those referred to in para 451 below. In all cases AFMSF - 10 duly completed will be attached to the invaliding medical board proceedings." 25. A detailed procedure is thus prescribed under the statutory Regulations for Medical Services and Armed Forces, 1983 for invaliding out of service. A Medical Board is to be constituted. Cases of psychotic illness with which we are concerned in the case on hand have to be invalided expeditiously as permanently unfit for service in the Armed Forces. The proceedings of Medical Board are treated as confidential. An officer who is found by a Medical Board to be permanently unfit for any form of Military service, may be released from the service in accordance with the procedure laid down therein. The President of the Medical Board, immediately after the Medical Board has come to the conclusion that the officer is permanently unfit for any form of Military service, is to issue a notice specifying the nature of the disease or disability, he is suffering from and the finding of the Medical Board and intimating such officer that in view of the finding he may be released from service. In the case of mental disease, the nature of disease or disability may be communicated to the officer's next of kin. Within 15 days of the date of receipt of such notice, a petition against finding of Medical Board can be preferred by the officer or the next of kin, as the case may be, to the Chief of Air Staff through the President of the Medical Board. Within 15 days of the date of receipt of such notice, a petition against finding of Medical Board can be preferred by the officer or the next of kin, as the case may be, to the Chief of Air Staff through the President of the Medical Board. If no petition is preferred within the said stipulated period, the officer may be released from service by an order to that effect by the Chief of AIR staff. However, if a petition is preferred within the stipulated time, the same is required to be forwarded to the Central Government together with the records thereof and the recommendation of the Chief of Air Staff. Power has been conferred on the Central Government to pass such order as it deems fit upon consideration of the same. 26. In the light of Regulation 450, the contention of the ld. counsel for the petitioner that the 1MB sent its report from Ambala to Delhi and from Delhi Base Hospital papers were hastened to Airforce Headquarters with uncanny promptitude in that the process was completed and paper cleared within 7 days only on infirmity can be found with such promptitude as the matter was required to be dealt with as expeditiously as possible and as 'no appeal' had been filed. 27. It was contended that the notice specifying the nature of disability and the finding of Invaliding Medical Board that the petitioner may be released from service as envisaged in clause 'c' of Regulation 424 (extracted supra) was not given and, therefore, the proceedings of the Invaliding Medical Board are vitiated. The said contention is belied by Annexure R-16 whereby the petitioner's wife (next of kin) was informed in terms of the said clause (c) (ii) that the petitioner is being invalided out of service by Medical Board held in the hospital on 29th October, 1999 for the disability specified therein. Therein it was notified that the addressee may represent against the decision of the Board. 28. Mr. Partha Sengupta, ld. counsel for the petitioner sought to contend that the Annexure R-16 is dated 28th October, 1999 and the said notice states that the petitioner is being invalided by the Medical Board held on 29th October, 1999 that is to say that even before that Medical Board has invalided the petitioner, the letter dated 28th October, 1999 was issued. counsel for the petitioner sought to contend that the Annexure R-16 is dated 28th October, 1999 and the said notice states that the petitioner is being invalided by the Medical Board held on 29th October, 1999 that is to say that even before that Medical Board has invalided the petitioner, the letter dated 28th October, 1999 was issued. The same it was contended is pre-judged the issue and inference of malice stands established. I cannot accept the said submission. Clause (c) (ii), extracted super, specifically states that immediately after the Medical Board has come to the conclusion that the officer is permanently unfit, the President of the Medical Board is to issue a notice specifying the nature of disorder or disability and the finding of the Medical Board. The letter dated 28th October, 1999 (Annexure R-16) has accordingly to be construed in the light of the said clause (c) (ii). So construed, it will disclose that the Medical Board came to the conclusion that the officer is permanently unfit, notice thereof was given to the next of kin intimating her that her husband may be released from service on 29th October, 1999. The notice specified that the wife, (next of kin) has the right to make representation against the decision of the Medical Board. 29. Annexure R- 17 is letter of the wife of the petitioner wherein it is stated that she does not wish to appeal against the 1MB being conducted for release of her husband from service. True, as contended by Mr. Partha Sengupta the letter is undated. The statement therein, however, leads to one conclusion that it was with reference to the letter Annexure R-16 in that reference has been made to 1MB. 30. As noticed supra, in the writ application filed by the petitioner no reference was made to Annexures R- 6 and 17. On the contrary ground No. XIII taken in the writ application is to the following effect: "FOR THAT the action of the respondents is also in contravention of the provisions of the Regulations for Medical Services of the Armed Forces, 1983 inasmuch as the President of the Medical Board has not, immediately after the Medical Board had come to the conclusion that your petitioner is permanently unfit for service, issued any notice specifying the nature of the disease or disability. Your petitioner is suffering from either to your petitioner or to his next of kin and the finding of the Medical Board, and has not intimated that in view of the finding your petitioner might be released from service." Annexure R-16 is precisely such notice as contemplated in the Regulation 424 (c) (ii). 31. It is only in the supplementary affidavit, R-16 has been alluded to while at the same time it has been asserted that the respondents "without issuing any show cause for invalidation ..................the respondent authorities induced my wife to give a 'No Appeal' statement against the order of 1MB on or about 27th October, 1999......." Such no appeal, it has been stated was obtained against the promise to her of his early release from hospital where allegedly the petitioner was kept under confinement. 32. It is only in the affidavit-in-reply that the petitioner has come up with the plea that there was absolutely no reason for the respondents to obtain a no appeal from the petitioner's wife and the further plea that the said no appeal was obtained by the respondents by way of black mail. There is any amount of inconsistency and contradiction in the pleadings of the petitioner on this aspect of the matter. 33. The petitioner, as per the averments in the writ application itself would disclose, had left the hospital on his own and thereafter on his own accord reported on 7th January, 2000 to Ambala Hospital. The question of the petitioner being "virtually kept under confinement" is belied by the aforesaid statement. The petitioner was also aware of the "Invaliding Medical Board from 22nd October, 1999 till 1st week of December, 1999." The petitioner, as can be gathered from the pleadings was also aware of the 'no appeal' but did not choose to take further action in relation thereto. Subsequent conduct ofthe petitioner was such as would enable an inference to be drawn against the petitioner and belie his contention that 'no appeal' was obtained by the respondents by black mail or by inducement. The petitioner claimed disability pension. The respondents by their letter No. Air HQ/24270/2211/PP & R-3 dated 5.4.2000 informed the petitioner that he is not eligible for disability pension. The petitioner was advised to prefer appeal within six months in case he is not satisfied by the said decision. The petitioner claimed disability pension. The respondents by their letter No. Air HQ/24270/2211/PP & R-3 dated 5.4.2000 informed the petitioner that he is not eligible for disability pension. The petitioner was advised to prefer appeal within six months in case he is not satisfied by the said decision. Petitioner did not file any appeal against the said order rejecting his claim for disability pension. The petitioner submitted pension papers for 'invalid' pension. The averments in paragraph 44 of the affidavit-in-opposition have not been denied except in general way reiterating the contentions made in paragraph 43 of the writ application and anything in consistent or contrary thereto. It is at this stage that the instant writ petition was filed. The petitioner has now claimed that there is no reason for him to accept invalid pension, inasmuch as, he "strongly believes that he cannot be invalided from service because of wrongful act of the respondents." 34. It must, therefore, be held that the proceedings of the Medical Board do not suffer from any procedural irregularity. The petitioner was aware of the proceedings of the invalidment Medical Board and also of the requisite notice issued by the 1MB after it arrived at the conclusion that the petitioner must be released from service. Notice thereof as' contemplated was given to the petitioner's wife. 35. No doubt as contended by Mr. Sakti Nath Mukherjee, the petitioner has questioned the entire action including invalidment by the 1MB on the ground that the same is vitiated by malice. It is also true that a malicious act equated with intentional act is without just cause or excuse. Therefore, it is contended by Mr. Mukherjee that the action tainted with the vice of malice would unravel all actions. Whether the actions imputed to the respondents' Nos. 3 and 5 suffer from the vice of malice and/or were actuated by malice, in my opinion, have to be relegated to a secondary place, when as in the instant case, the petitioner has been invalided out of service on the basis of the report of a duly constituted Medical Board. 36. Whether the actions imputed to the respondents' Nos. 3 and 5 suffer from the vice of malice and/or were actuated by malice, in my opinion, have to be relegated to a secondary place, when as in the instant case, the petitioner has been invalided out of service on the basis of the report of a duly constituted Medical Board. 36. In State of Bihar vs. P.P. Sharma, 1992 (Supp) (1) SCC 222: AIR 1991 SC 1260 , on the aspect of sustain ability of the charge where plea of mala fide had been taken by the delinquent by way of writ petition under Article 226 of the Constitution it was held by the Supreme Court that though administrative authority has wide discretion but yet action taken on the basis of sufficient material which prima facie justifies initiation of the inquiry, mala fides getrelegated to the background since the action taken on the basis of ample material on record justifying impugned action against the delinquent, deserves to be sustained. However exercise of discretion is not a power to act ad-arbitrarium; it is not a despotic power, nor hedged with arbitrariness and the determination of plea of mala fide involves two questions (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. The action must, therefore, be proved to be made mala fide. For such considerations, mere assertion or a vague or bald statement is not sufficient. The Supreme Court further observed that it must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case, and ifit is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand. 37. As noticed supra, the malice in the instant case has been attributed to respondents Nos. 3 and 4. I have already expressed the view that the material on record is not sufficient to decide the same. 1 have also held that the procedure for invalidment out of service as prescribed by the Regulation has been adhered to and does not suffer from any procedural irregularity. 38. 3 and 4. I have already expressed the view that the material on record is not sufficient to decide the same. 1 have also held that the procedure for invalidment out of service as prescribed by the Regulation has been adhered to and does not suffer from any procedural irregularity. 38. If there was material before the Medical Board to arrive at the conclusion as it did, then any action which have been characterized as malicious and attributed to respondents Nos. 3 and 5 cannot in this proceeding be given primacy. As already noticed supra, petitioner has a separate cause of action for such actions with regard to the treatment or mal treatment of the petitioner in the base hospital. The same would require consideration upon facts adduced by oral/documentary evidence and may be on the evidence of Experts in the field. The petitioner is at liberty to pursue such remedy as may be open to him in law for the reasons already stated viz., that the Writ Court cannot embark upon such enquiry into the disputed questions of facts. 39. No malice has been attributed to the Medical Board based whereupon petitioner was invalided out of service after consent in that behalf as required was given by the Central Government. Once an Expert body like the Medical Board as in the instant case, expresses an opinion, it is entitled to great weight. Therefore, unless the findings of the 1MB are utterly perverse, this Court exercising/jurisdiction under Article 226 of the Constitution cannot ignore the same or substitute its opinion for that of the expert body (1MB). Relevant in this context is the submission made on behalf of the respondents by their ld. counsel Mr. Priyabrata Mukherjee that the petitioner has not brought on record any formal opinion even of the private Doctors who attended to the petitioner. The allegations in the writ application are mere inferences drawn by he petitioner himself from the prescriptions of the private Doctors. Even the allegation with regard to the treatment at the Command Hospital Chandimandir would show that cyclothymic traits were noticed in the petitioner. The petitioner was recommended to be kept under observation in low medical classification. The petitioner was thereupon transferred to Base Hospital. There is thus material on record to sustain the action of the respondents for referring the petitioner for medical evaluation and for constitution of IMB. The petitioner was recommended to be kept under observation in low medical classification. The petitioner was thereupon transferred to Base Hospital. There is thus material on record to sustain the action of the respondents for referring the petitioner for medical evaluation and for constitution of IMB. There is no material before this Court, much less Medical to find fault with the conclusions arrived at by the 1MB. The finding of fact reached by the 1MB in the case on hand is not liable to be interfered with in exercise of the power of judicial review under Article 226 of the Constitution unless it is shown to have been reached in the absence of evidence to support it or the decision arrived at was for extraneous or irrelevant considerations. Any exercise of jurisdiction by the Writ Court is circumscribed by such conditions. Tested in the light of the said well accepted principles the conclusion reached by the 1MB in the case on hand does not suffer from any of these infirmities. There is, therefore, no warrant to interfere with the same. 40. I cannot also for the aforesaid reasons accede to the contention so strenuously urged by Mr. Partha Sengupta, ld. advocate for the petitioner that another Medical Board be constituted anywhere in the country of the choice of the respondent for obtaining a second opinion. The said contention would have merited consideration and the matter would have been entirely different had the petitioner availed of the opportunity of appeal against the decision of the 1MB, show cause notice in relation whereto was served upon the next -of -kin (wife of the petitioner). The 'no appeal' entered by the 'next of kin' cannot be brushed aside or ignored merely because the petitioner has now choosen to take a different view in the matter, when the claim of the petitioner for disability pension was denied. 41. Subject to the observations and liberty reserved to the petitioner as aforestated, the instant writ application is liable to be dismissed. 42. In the result, the writ application in so far as prayers 'a', 'b' and 'c' are concerned, the same is dismissed. 43. In so far as the prayer 'd' is concerned, it shall be open to the petitioner to avail of the efficacious alternative remedy of a suit. 44. 42. In the result, the writ application in so far as prayers 'a', 'b' and 'c' are concerned, the same is dismissed. 43. In so far as the prayer 'd' is concerned, it shall be open to the petitioner to avail of the efficacious alternative remedy of a suit. 44. However, in the facts and circumstances of the case, there shall be no order as to costs. 45. Let urgent Xerox certified copy of this judgment and order be furnished to the appearing parties, if applied for, on priority basis. Application dismissed with liberty to file an appropriate proceeding.