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2019 DIGILAW 452 (GAU)

Dikumoni Das v. Union of India

2019-04-09

NELSON SAILO

body2019
JUDGMENT : 1. Heard Mr. S. Chakraborty, learned counsel for the writ petitioner and Mr. D.C. Borah, learned CGC who appears for all the respondents. 2. By filing this writ petition, the petitioner has challenged the impugned order dated 19.10.2013 (Annexure - 9) by which he has been terminated from service with immediate effects under Rule 25 of the Border Security Force Rules, 1969 (BSF Rules of 1969) without any financial benefit and also the impugned order dated 03.01.2014 (Annexure - 11) by which, the Appellate Authority rejected his appeal by affirming the earlier order dated 19.10.2013. 3. The petitioner was selected and recruited as Constable under the Border Security Force (BSF) and accordingly, he was offered appointment vide communication dated 29.10.2011 (Annexure - 2). The petitioner joined the post in terms of the offer of appointment and he was posted at Jalpaiguri, West Bengal for training. While he was undergoing the training, he suddenly became unconscious on 28.10.2012 and as a result, the authorities took him to the Subsidiary Training Centre (STC) BSF Hospital and he was advised to take rest w.e.f. 29.10.2012. The petitioner was under treatment from 30.10.2012 to 05.11.2012 where after, he was referred to North Bengal Medical Hospital for better treatment. The petitioner was advised to undergo MRI test of his brain and accordingly, he underwent the test on 05.11.2012. He also underwent another MRI test on 08.11.2012. According to the petitioner, as per the two tests, no abnormality was found in him. He, however, received a show-cause notice from the DIG and Commandant STC BSF, North Bengal on 23.02.2013 (Annexure - 5), which stated that the petitioner on being produced before the Board of Medical Officers held on 18.01.2013, was awarded Low Medical Category S1H1A1P5E1 w.e.f. 18.01.2013 since he was suffering from Seizure Disorder. He was therefore considered to be unfit for service in the BSF. The petitioner thus was asked to show-cause within a period of 15 days from the date of receipt of the notice as to why his services should not be terminated on the ground of physical unfitness. The petitioner responded to the show-cause notice under his letter dated 09.03.2013 wherein he stated that he did not agree with the opinion of the Medical Board and consequently, he was produced before the Review Medical Board on 18.09.2013. The petitioner responded to the show-cause notice under his letter dated 09.03.2013 wherein he stated that he did not agree with the opinion of the Medical Board and consequently, he was produced before the Review Medical Board on 18.09.2013. The Review Medical Board however also opined that the petitioner was unfit for further service in BSF and awarded Low Medical Category S1H1A1P5E1 as he was suffering from Seizure Disorder. 4. Consequently, vide order dated 19.10.2013 (Annexure - 9), the petitioner was terminated from service with immediate effect. The further appeal made by the petitioner on 25.11.2013 (Annexure - 10) was disposed of vide communication dated 31.11.2014 (Annexure - 11) by the appellate authority by rejecting the same. Aggrieved, the petitioner is before this Court. 5. Mr. S. Chakraborty, learned counsel for the petitioner submits that firstly, the petitioner could not have been removed under Rule 25 of the BSF Rules 1969 since the same only provides for the retirement of subordinate officers and enrolled persons on the ground of physical unfitness. Secondly, Mr. S. Chakrabortt submits that prior to bringing the petitioner before a Medical Board, the Commandant is required to satisfy himself that the petitioner for reason of his physical disability is unable to perform his duties. However, such decision was not made by the Commandant before the petitioner was removed or terminated from service. Thirdly, the learned counsel submits that the findings of the Medical Board and the decision to retire him is to be communicated to him in terms of the proviso to Sub-Rule (3) of Rule 25 of the BSF Rules of 1969. However, no such communication was made to the petitioner. Lastly, the learned counsel Mr. S. Chakraborty submits that finding of the Chief Medical Officer dated 01.11.2012 that the petitioner was unfit for training till further information was not communicated to the petitioner after he was medically examined. Under the circumstance, he submits that the respondent authorities have only decided to terminate or retire the petitioner from service in haste. 6. Mr. S. Chakraborty submits that finding of the Chief Medical Officer dated 01.11.2012 that the petitioner was unfit for training till further information was not communicated to the petitioner after he was medically examined. Under the circumstance, he submits that the respondent authorities have only decided to terminate or retire the petitioner from service in haste. 6. Mr. D.C. Bora, learned CGC submits that due opportunity was granted to the petitioner inasmuch as against the low medical category given to him, a show-cause notice was issued to the petitioner and as per his request, he was also examined by a Review Medical Board which came to a concurrent finding that the petitioner was suffering from Seizure Disorder and was not fit to be retained in service. Accordingly, he was released from the BSF. He submits that Rule 25 of the BSF Rules of 1969 may not provide the provision for termination from service but nevertheless, the same has been duly rectified by the Appellate Authority when the appeal was rejected. Under the circumstance, the petitioner cannot have any legitimate grievance and the writ petition should be dismissed. Mr. D.C. Borah, learned CGC appearing for the respondents has also produced the relevant records of the case. 7. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record including the records produced by the learned CGC. 8. From the projection made by the petitioner, the issue to be decided is as to whether the petitioner could have been terminated or retired from service by the respondent in the manner it was done. 9. As noticed, the petitioner was appointed as a Constable of the BSF vide Communication dated 29.10.2011. It was provided in the Communication that he will be initially kept on probation for a period of 2 years, which may be extended by the appointing authority for a period not exceeding 1 year for reasons to be recorded and writing. During the probationary period, if the appointing authority considers that he is not likely to become an efficient member of the Force due to any reason, his service can be terminated without assigning any reasons or without any advance notice. 10. During the probationary period, if the appointing authority considers that he is not likely to become an efficient member of the Force due to any reason, his service can be terminated without assigning any reasons or without any advance notice. 10. While the petitioner was undergoing training at Baikunthpur in the District of Jalpaiguri, West Bengal, he suddenly become unconscious on 28.10.2012 and as a result, he was taken to the STC Hospital and he was advised to take rest w.e.f. 29.10.2012. He was under treatment from 30.10.2012 to 05.11.2012 in the said Hospital whereafter, he was referred to North Bengal Medical Hospital for better treatment. The petitioner upon being advised underwent 2 MRI tests of his brain on 05.11.2012 and 08.11.2012. He continued to be under medical supervision, although no abnormality was detected in the MRI test. Consequently, a Medical Board was constituted on 18.01.2013 to examine the petitioner’s health condition and to make an assessment. The Medical Board after examining him gave him a Low Medical Category of S1H1A1P5E1 w.e.f. 08.01.2013, since he was found to be suffering from Seizure Disorder. He was therefore considered to be unfit for service in the BSF. 11. Thereafter, the petitioner was served with a show-cause notice on 23.02.2013, asking him to show-cause as to why the services should not be terminated on the grounds of physical unfitness as he was declared to be unfit by the Medical Board. The petitioner was asked to submit his reply within 15 days from the date of receipt of the show-cause notice. The petitioner submitted a reply to the show-cause notice vide his Letter dated 09.03.2013, stating that he did not agreed with the opinion of the Medical Board. Therefore, a Review Medical Board was constituted on 18.09.2013 and the petitioner was again awarded the Low Medical category of S1H1A1 P5E1 and was again declared to be unfit for further service in the BSF. Consequently, he was terminated from service vide Order dated 19.10.2013 with immediate effect in terms of Rule 25 of the BSF Rules of 1969. 12. Being aggrieved, the petitioner filed an appeal before the respondent No. 3 on 25.11.2013, which however was not entertained and rejected by the said authority vide Communication dated 03.01.2014 made to the petitioner himself. Consequently, he was terminated from service vide Order dated 19.10.2013 with immediate effect in terms of Rule 25 of the BSF Rules of 1969. 12. Being aggrieved, the petitioner filed an appeal before the respondent No. 3 on 25.11.2013, which however was not entertained and rejected by the said authority vide Communication dated 03.01.2014 made to the petitioner himself. Coming to the contention of the petitioner that Rule 25 of the BSF Rules of 1969 is not a provision for removing an employee or servicemen of the BSF, it may be gainful to reproduce the same for ready perusal as below:- "25. Retirement of subordinate officers and enrolled persons on grounds of physical unfitness- (1) Where a Commandant is satisfied that a Subedar- Major, an Inspector, a Sub-Inspector, an Assistant Sub-Inspector or an enrolled person is unable to perform his duties by reason of any physical disability, he may direct that the said Subedar-Major, the Inspector, the Sub-Inspector, the Assistant Sub-Inspector or the enrolled person, as the case may be, brought before a Medical Board. (2) The Medical Board shall be constituted in such manner as may be determined by the Director-General. (3) Where the said Subedar-Major, Inspector, Sub-Inspector, Assistant Sub- Inspector or enrolled person is found by the Medical Board to be unfit for further service in the Force, the Inspector-General, the Deputy Inspector-General or as the case may be, the Commandant may, if he agrees with the finding of the Medical Board order the retirement of the Subedar-Major, the Inspector, the Sub-Inspector, the Assistant Sub-Inspector, or as the case may be, the enrolled persons: Provided that before the said Subedar-Major or Inspector or Sub-Inspector or Assistant Sub-Inspector or as the case may be, the enrolled person is so retired the finding of the Medical Board and the decision to retire him shall be communicated to him. (4) The Subedar-Major, the Inspector, the Sub-Inspector, the Assistant Sub- Inspector, or as the case may be, the enrolled person may, within a period of fifteen days from the date of receipt of such communication, make a representation to the officer next superior in command to the one who ordered the retirement. (5) The said superior officer shall have the case referred to a Review Medical Board which shall be constituted in such manner as may be determined by the Director-General. (5) The said superior officer shall have the case referred to a Review Medical Board which shall be constituted in such manner as may be determined by the Director-General. (6) The superior officer may, having regard to the finding of the Review Medical Board, pass such order as he may deem fit. (7) Where a representation has been made to a superior officer under sub-rule (4), and order passed under sub-rule (3), shall not take effect till it is confirmed by such superior officer." 13. From the above abstract, it may be seen that Rule 25 of the BSF Rules 1969 provides for retirement of superior officers and enrolled person on grounds of physical unfitness. When a Commandant is satisfied that the enrolled person is unable to perform his duty by reason of any physical disability, he may refer the case to a Medical Board. The Medical Board shall thereafter, make an assessment of the enrolled person and if he is found to be unfit for further service in the Force, the Commandant, if he agrees with the finding of the Medical Board, order his retirement and in such event, the decision to retire him should be communicated to the person concerned and he will be entitled to make a representation before the next superior officer who is above to the one who ordered his retirement within a period of 15 (fifteen) days from the date of receipt of the communication. The superior officer after having regard to the finding of the Review Medical Board shall pass an order as he may deem fit. 14. The petitioner in the present case has alleged that the Commandant is required to satisfy himself before referring the matter before the Medical Board. In this connection, it may be seen that the petitioner after he became suddenly unconscious on 28.10.2012 was taken to STC, BSF Hospital where he was advised to take rest w.e.f. 29.10.2012. He was under treatment in the said Hospital w.e.f. 30.10.2012 to 05.11.2012. The Chief Medical Officer of the said Hospital informed the Commandant that the petitioner was diagnosed with a case of Seizure Disorder and he was therefore advised to attend Neurology OPD. He further remarked that the petitioner was considered to be unfit for training till further information. He was under treatment in the said Hospital w.e.f. 30.10.2012 to 05.11.2012. The Chief Medical Officer of the said Hospital informed the Commandant that the petitioner was diagnosed with a case of Seizure Disorder and he was therefore advised to attend Neurology OPD. He further remarked that the petitioner was considered to be unfit for training till further information. Therefore, from the advise given by the Chief Medical Officer of STC, BSF Hospital, it was obvious that the petitioner was unfit for duty or for training and that he required to be further examined in the Neurology OPD. Therefore, under the circumstance, further satisfaction of the Commandant may not be required. 15. The further contention of the petitioner that the findings of the Medical Board and the decision to retire him was not communicated to him cannot be accepted inasmuch as the impugned Order dated 19.10.2013 itself reveals that the petitioner was not agreeable with the opinion of the Medical Board and therefore, he was produced before the Review Medical Board for further examination. Further, the show-cause notice dated 23.02.2013 issued to the petitioner also shows that a proforma for requesting a Review Medical examination was also included with the notice. Moreover, the appeal filed by the petitioner before the respondent No. 3 on 25.11.2013 is also conspicuously silent about the non-receipt of the findings of the Medical Board and the decision to retire him. 16. The last contention of the petitioner is that the findings of the Chief Medical Officer of STC, BSF Hospital dated 01.11.2012 was not communicated to him. However, the same may not be crucial so as to vitiate his removal/retirement from service. This is because the Chief Medical Officer vide his Communication dated 01.11.2012 only informed the DIG and Commandant, STC BSF, North Bengal that the petitioner was diagnosed with a case of Seizure Disorder and was advised by the Medicine Specialist of the said Hospital to attend Neurology OPD. He therefore considered him to be unfit for training till further information. The said Communication, in my considered opinion cannot be said to be a conclusive medical opinion rendered on the health condition of the petitioner. As can be noticed from what happened on 28.10.2012 i.e., when the petitioner become suddenly unconscious, CT Scan on his brain was conducted along with EEG. The said Communication, in my considered opinion cannot be said to be a conclusive medical opinion rendered on the health condition of the petitioner. As can be noticed from what happened on 28.10.2012 i.e., when the petitioner become suddenly unconscious, CT Scan on his brain was conducted along with EEG. He was therefore, considered to have Seizure Disorder and was advised for further management. Therefore, no prejudice can be said to be cause by the petitioner. Although the term used in the impugned Order dated 19.10.2013 may be terminated from service, but the same in my considered opinion cannot vitiate the impugned Order for the reason that the authority concerned is empowered to retire an enrolled person from service by reason of any physical disability under Rule 25 (3) of the BSF Rules of 1969. 17. It may further be noticed that the petitioner having being appointed on 29.10.2011 was still on probation when the impugned Order was passed on 19.10.2013. It is a well settled position in law that on account of unsuitability, a probationer can be removed from service. 18. Under the facts and circumstances of the case, I am of the considered opinion that the writ petition has no merit and the same is accordingly dismissed. No cost.