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2011 DIGILAW 340 (RAJ)

Union of India v. Ramesh Singh Barhath

2011-02-14

DALIP SINGH, S.S.KOTHARI

body2011
JUDGMENT 1. - Heard learned counsel for the petitioners-Union of India and perused the record. 2. This special appeal has been listed from the defect side, as there is a delay of 394-days in filing this appeal and it is accompanied by an application under Section 5 of the Limitation Act. 3. We have perused the judgment impugned passed by the learned Single Judge to satisfy ourselves before entering into the question regarding condonation of delay as to whether the appeal merits admission or not. 4. The learned Single Judge allowed the writ petition filed by the petitioner-respondent vide judgment dated 02.07.2009 with the directions that the action of the appellant in discharging the petitioner from service with effect from 03.04.2003 was bad in the eye of law and, consequently, quashing the same and treating the petitioner to be reinstated in service, he was also held entitled for payment of the disability element with effect from 06.03.2004 till the date of his reinstatement in service. 5. Facts, in brief, are that the petitioner was enrolled in the Army on 25.03.2002 and thereafter he was reported to have fallen ill due to conditions of military service and was admitted to the Military Hospital, Jabalpur on 12.12.2002. He was admitted to the Military Hospital on 12.12.2002 and as per the advise of the Medical Specialist he was to be treated till 13.06.2003. Instead, he was discharged from the Military Hospital on 31.12.2002 and kept with others in the barrack. He was again admitted in the Military Hospital on 15.02.2003 and Invaliding Medical Board (IMB) was held on 06.03.2003 and the petitioner was returned to the Unit on 13.03.2003 with the advice to continue the treatment on 13.06.2003. In the meanwhile, the petitioner was invalided out of service due to T.B. on 03.04.2003 at the young age of 18-years despite advise of the Medical Specialist for keeping him under treatment upto 13.06.2003. 6. Since, the petitioners disability was attributable to the military service and the same was as estimated as 100% disability. He was granted disability element at the rate of Rs. 1550/- per month from 03.04.2003 to 05.03.2004 vide PPO dated 10.10.2003. 7. 6. Since, the petitioners disability was attributable to the military service and the same was as estimated as 100% disability. He was granted disability element at the rate of Rs. 1550/- per month from 03.04.2003 to 05.03.2004 vide PPO dated 10.10.2003. 7. It appears that the petitioner was re-summoned before the Medical Board and after being reassessed by the Board he was found to have been cured of the disability element and as a result of the above his disability was assessed less than 20%. The disability pension, which he was being paid were stopped with effect from 06.03.2004 as a consequence of the Re-survey Medical Board (R.S.M.B.) held on 21.03.2004. 8. Petitioner sent notices to the Medical Board thereafter, on 12.08.2004, 02.11.2004, 13.01.2005 and 17.04.2005 for being reinstated in services. But since the appellant did not accept the request of the petitioner-respondents the petitioner was constrained to file the present writ petition for the reliefs stated in the writ petition. 9. The learned Single Judge considered the totality of the facts and circumstances of the case and held that as a consequence of the Re-Survey Medical Board (RSMB) and in terms of Regulation 143 of Regulation of the Army,1987, which has been reproduced in Para No.9 of the judgment, in case, the Re-Survey Medical Board after reassessment considered the disability to be less than 20% and in case the Ex-service Man applies for reinstatement he is entitled for being considered in terms of the aforesaid regulations. 10. The learned Single Judge found that the petitioner having applied by means of his representation and not having been considered by the appellant for being reinstated or for re-entering in the army service no fault could be attributed to the petitioner and, accordingly, his writ petition was allowed. 11. Learned counsel for the appellant strongly contended that the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 on which reliance was placed and which finds mention in Para No.10 of the judgment has no application so far as the persons of the defence forces are concerned. 12. It was submitted by the learned counsel that the learned Single Judge erred in relying upon the aforesaid provisions of the Act of 1995. 13. 12. It was submitted by the learned counsel that the learned Single Judge erred in relying upon the aforesaid provisions of the Act of 1995. 13. We have considered the aforesaid submissions and we find that the learned Single Judge has dealt with and relied upon the aforesaid provisions only in addition to having relied upon the provisions of Regulation 143 of Regulation of the Army, 1987 and that it is not the sole reason given by the learned Single Judge for having allowed the writ petition. 14. So far as the applicability of Regulation 143 of Regulation of the Army, 1987 is concerned the fact as mentioned in the writ petition that soon after the Re-survey Medical Board was held, the petitioner did send his representation for re-induction and reinstatement, as has been mentioned herein above in our judgment and that the appellants failed to consider his case for being re-adapted into service in terms of Regulation 143 of Regulation of the Army, 1987, which the appellants were duty bound to have done after the findings of the R.S.M.B. 15. Moreover, in the facts and circumstances of the present case, the appellants proceeded in an utmost hot haste manner despite the advise of the Medical Specialist to carry on with the treatment of the petitioner upto 13.06.2003, to conduct the IMB, even before the said date in the month of March, 2003 and discharge him from service holding his disability to be 100%. The aforesaid action of discharging the petitioner too was bad in the eye of law and contrary to the advice of the Medical Specialist. 16. In the facts and circumstances, therefore, we find that the learned Single Judge has not committed any error in allowing the writ petition of the petitioner by setting aside the order of discharge from service dated 03.04.2003 and directing his reinstatement as a consequence thereof. 17. The learned Single Judge has also taken care of the fact that till the reinstatement the petitioner would be entitled to payment of disability element at the rate of 100% based upon his discharge on 03.04.2003 with effect from 06.03.2004 when it was stopped, till the reinstatement, as directed. 18. Consequently, we find no merit in this appeal and the appeal, the stay application as well as the application under Section 5 of the Limitation Act stand dismissed.Appeal Dismissed. *******