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Meghalaya High Court · body

2018 DIGILAW 40 (MEG)

Om Bahadur Thapa v. Union of India

2018-07-30

MOHAMMAD YAQOOB MIR

body2018
ORDER : Mohammad Yaqoob Mir, J. 1. Petitioner seeks quashing of the order HQ DGAR order No. I.31021/41AR/IMB/16 Adm-III/137 dated 18.04.2016 and subsequent discharge certificate thereto bearing Sl. No. 214, further prays for setting aside the Annual Medical Check-up categorisation and also the speaking order No. OB Thapa/UPAO-Legal/953/2018/1335 dated 17.05.2018. 2. Petitioner admittedly was enrolled in the Assam Rifles on 10.12.2008 and posted to 41 Assam Rifles w.e.f. 08.04.2010 after completion of his basic military training. He was allotted with Ex. No. G/5017057A Rifleman (General Duty). 3. While serving with 41 Assam Rifles in the month of January 2015, he was diagnosed as a case of Alcohol Dependence Syndrome (ADS) and referred to Assam Rifles Composite Hospital, Shukhovi on 05.09.2015 for medical treatment and management by the Psychiatrist. After assessing his medical status, he was placed in Low Medical Category S3 (Temporary-24) by the Psychiatrist on 19.01.2015 and was advised to take medicines regularly, abstain from alcohol consumption. Then again, he had been referred to Assam Rifles Composite Hospital, Shukhovi after six months for medical review on 17.07.2015, on examination, he was upgraded to medical category S2 (Temporary-24) w.e.f. 28.07.2015. 4. Petitioner had been counselled by the authorised medical attendant and the Psychiatrist and persuaded him to abstain from taking liquor as a result whereof considerable improvement had been seen in his health. On improvement from category S3 to S2, he was employed in sheltered appointments in the unit for his betterment. 5. Subsequently, within a couple of months from the last medical review he again started consuming liquor which deteriorated his health, therefore, was again immediately referred to Assam Rifles Composite Hospital, Shukhovi for evaluation on 05.09.2017. In the said hospital on examination, was diagnosed as a case of Alcohol Dependence Syndrome (Relapse), thereafter, he was discharged from hospital on 16.09.2015 placing him in Low Medical Category S5 (Permanent) and invalidated out of service subject to approval of a duly constituted medical board by the Psychiatrist. 6. Based on the Psychiatrist opinion, an Invalid Medical Board was convened by the said hospital vide Convening Order No. I.11099/Conv/A-IMB/IMB/2015/1910 dated 21.10.2015. Invalidation Medical Board consisting of a panel of doctors assembled at Unit Hospital, 41 Assam Rifles, after proper assessment, recommendation was for invalidation out of service in low medical category S5 (Permanent) for Alcohol Dependence Syndrome (Relapse). 6. Based on the Psychiatrist opinion, an Invalid Medical Board was convened by the said hospital vide Convening Order No. I.11099/Conv/A-IMB/IMB/2015/1910 dated 21.10.2015. Invalidation Medical Board consisting of a panel of doctors assembled at Unit Hospital, 41 Assam Rifles, after proper assessment, recommendation was for invalidation out of service in low medical category S5 (Permanent) for Alcohol Dependence Syndrome (Relapse). His medical category by the Medical Board was found not attributable to and aggravated by the service conditions. 7. Based on the findings of the Invalid Medical Board, the petitioner was discharged from service w.e.f. 01.06.2016 vide order dated 18.04.2016. The petitioner aggrieved thereof, had filed a writ petition bearing No. 384 of 2016 before this Court which had been disposed of vide judgment dated 04.04.2018 directing the respondents that since the petitioner had filed an appeal against the decision of the Invalidation, same has not been considered, the appellate authority to consider the case of the petitioner and to do the needful according to the Rules. 8. In compliance to the said judgment, the respondents have passed a detailed speaking order referring therein the above background and then, mentioning that in compliance to the judgment of this Court, a representation was received by the Department, making it clear that prior thereto no representation was received. After receiving the representation pursuant to the Court's direction, same was considered. While considering the same, it has been made clear as to how the petitioner was treated with the sole aim and object of detaining him in the service but he did not reform himself, then it is mentioned that on two other occasions he has been awarded punishments, one for offence of intoxication under Section 35 of the Assam Rifle Act 2006 and another for absenting himself without leave. Then, it is also mentioned that the petitioner as the relapse case of Alcohol Dependence Syndrome indulged inebriated behavior. Despite better medical treatment, the petitioner did not mend his ways then, finally on evaluation, he was placed on Low Medical Category S5 (Permanent). 9. Then, it is also mentioned that the petitioner as the relapse case of Alcohol Dependence Syndrome indulged inebriated behavior. Despite better medical treatment, the petitioner did not mend his ways then, finally on evaluation, he was placed on Low Medical Category S5 (Permanent). 9. While referring to the health policy issued by the Ministry of Home Affairs vide OM dated 31.07.2007 providing for regulating and assessing the fitness level of combatant in Armed Forces of the nation, the term S5 (Permanent) refers to 'Mentally unstable on account of psychological/psychiatric disorders or having psychopathic personality', with employability limitations 'Unfit for service' and retention of such persons in combat service in an Armed Force like Assam Rifles is a security threat for the nation and also for its men. 10. It is also mentioned therein that Invalidation Medical Board constituted, as per the opinion of the Psychiatrist consisting of a panel of doctors recommended the petitioner to be invalided out from service in Low Medical Category S5 (Permanent). 11. It is also mentioned that Invalidation Medical Board proceedings were read over and signed by the petitioner in presence of an independent witness on 31.12.2015 and the petitioner has endorsed his signature on the board proceedings. He had the right to challenge the same by submitting the representation to the respondent authorities which he did not. His representation was entertained, considered and finally rejected. 12. Learned counsel for the petitioner would contend that for non-observance of Rule 26 of the Assam Rifles Rules, 2010, an order of discharge and then, final order rejecting his representation is liable to be set aside. On scrutinising the arguments, it is found to be misplaced because Rule 26 envisage that the authority as specified in Rule 17 (Director) when agrees with the findings of the medical board, then shall communicate the same to the said person who shall make a representation within thirty days to the competent authority to be supported by a prima facie evidence of error of judgment in the opinion expressed by the Medical Board, such evidence should be from the Government doctor not below the status of civil surgeon and should contain specific mention that he has taken into consideration the findings of the Medical Board before recording his opinion. 13. 13. The respondents have specifically stated in the speaking order impugned dated 17.05.2018 that the Invalidation Medical Board proceedings were read over and signed by the petitioner in the presence of an independent witness on 31.12.2015 and he had endorsed his signature on the proceedings but did not make any representation. Despite that, in compliance to the Court's direction as passed in the earlier disposed of W.P.(C) No. 384 of 2016, the representation of the petitioner was received but same was not supported by any such requisite medical certificate as is the mandate of Rule 26(3) of the Assam Rifles Rules. 14. Learned counsel for the petitioner was specifically asked to show as to whether the petitioner while filing the representation had annexed any such medical certificate for prima facie satisfaction, he had no answer. Even today, he could not show any such medical certificate. Therefore, there is no question to accept the submission that Rule 26 of the Assam Rifles has been violated, such a contention accordingly stand repelled. 15. Another contention raised is that the respondents have not followed Rule 56(j) of the Rules. The submission again, is without any substance because that rule pertains to those employees who have rendered thirty years of service, proposed to be retired prematurely. The petitioner has rendered nearly seven years of service so he does not fall within the category of those employees whom Rule 56 of the Rules would apply. 16. The respondents Assam Rifles being a disciplined force, there is no scope for retaining a person who after repeated chance to reform has not reformed himself. The respondents have no venom or any bias against the petitioner nor same is alleged or pleaded. In fact, in the better interest of the petitioner they had provided him better medical facilities, initially petitioner had responded, from category S3 he had improved to category S2, low medical category. As his health condition deteriorated again, medical care was given by the respondent authorities but unfortunate for him, for his own fault he was placed on the basis of proper medical assessment in low medical category S5 (permanent) giving rise to psychiatric problems. As per health policy issued by the Ministry of Home Affairs on 31.07.2007, retaining of such person in combat service in an Armed Force is a security threat to the nation as also to the fellowmen. As per health policy issued by the Ministry of Home Affairs on 31.07.2007, retaining of such person in combat service in an Armed Force is a security threat to the nation as also to the fellowmen. For stated reasons and law, no case is made out for indulgence. Petition being without merit, is accordingly dismissed.