-Report by Nehha Mishra
In the case of DILIP KUMAR VS UNION OF INDIA, the court said that the “petitioner may be unfit to perform the duty for the post he was appointed but certainly, punishment of “removal from service” inflicted upon him is too harsh.”
FACTS
The petitioner joined the Indo-Tibetan Police Force (ITBP) in 1993 as a Sub-Inspector and was later elevated to Subedar Major and Assistant Commandant (Group A)/General Diary Duty in 2008.
According to the Shape system of annual medical examination, the petitioner claims to be in Shape -1 absolute medical fitness through 2014. He was sent to Cuttack, Orissa for 28 days under Shape-2 after the petitioner’s wife made a complaint saying that he was an alcoholic.The petitioner was then transported to Base Hospital Tigadi in New Delhi, where, by the opinion, he was determined to be in Shape-1 medically fit. But once more, in their opinion from June 25, 2013, the respondents put the petitioner in Shape 3 for a period of six months.
Petitioner preferred representations in opposition to the opinion from June 25, 2013, but those were not responded to. Six months passed, and the petitioner had been deemed fit for Shape-1. The petitioner claims to have been in an accident and off work for 256 days, which the respondents approved of before allowing him to resume his job. Although the petitioner had not disclosed his medical condition, the 256 days were treated as unpaid leave for not doing any duties.
Petitioner was Shape 1 on January 4, 2014, but changed to Shape 2 again on August 6, 2015, and again on July 20, 2016. On April 11, 2017, it was suggested that he be placed under Shape-5 and removed from service. At another facility, the petitioner underwent a self-examination and was given the all-clear.
The petitioner claims that despite repeated requests, he was not granted leaves. On 03.07.2017, just as he was about to leave for his hometown, he was informed that his Invalidation Medical Board (IMB) was scheduled in the 9th battalion and instructed to report there. When the petitioner arrived there, he was informed that there was no order for the formation of the IMB; as a result, he returned and reported to his 10th battalion.
After that, the petitioner was under the doctor’s care, when he was deemed fit, but in the medical report, he was once more placed in the Shape-5 category. On the petitioner’s request, he was sent for a second test, during which time he was determined to be qualified to carry out his duties. But by instructions provided by the MHA, the defendants held the petitioner under observation in Shape-5 and forwarded him to IMB. The Medical Board recommended that the petitioner be terminated from ITBP services.
PETITIONER’S CONTENTION
When removing the petitioner from his position, the respondents, according to the petitioner’s knowledgeable attorney, failed to consider the provisions of Rule 23 of the ITBP Rules, 1994, which state that the officer or board issuing such an order must believe the incumbent is physically unfit, even though it is clear from Dr. Bhatnagar’s report that the petitioner was healthy on the day of his examination.
The seasoned attorney further argued that the MHA guidelines, do not state that anyone who is in Shape-5 must be terminated from employment. The Board considered the period from 2013 to 2016, which includes the 122 days that he was absent from work due to an accident rather than ADS. Since 2013, no complaint has been filed against the petitioner. The relevant fact is that neither of the doctors mentioned above determined that the petitioner had ADS and that he was therefore fit to carry out his obligations. It was argued that the respondent’sactions were malicious, and as a result, they should be disregarded.
RESPONDENT’S CONTENTION
The petitioner was discovered to be intoxicated and was sent for a medical examination, first to Composite Hospital, CRPF, Bhubaneshwar where he was kept in a Low Medical Category; next, he was referred to a Referral Hospital, ITBP for the opinion of a psychiatrist who opined it a case of “Mental and behavioral disorder due to use of alcohol, Harmful use,” according to the learned counsel appearing on behalf of respondents.
Further claimed that the petitioner was assessed by a psychiatrist before being submitted to the IMB. The psychiatrist concluded that the petitioner had been given more than three years to improve and stop drinking, but he had failed and was held under Shape 5. He was then taken before the IMB, which, after considering the specialists’ opinion, advised that the petitioner board out on 06.12.2017.
JUDGEMENT
According to MHA guidelines dated 31.07.2007, para.235(f)(vi), the Controlling Authority is required to watch for any signs of relapse, but in the present case, we do not find any mention of a relapse of ADS in the petitioner. Instead, various reports from different doctors and psychiatrists at various points noted that the petitioner was in a normal, stable state of health.
The court ordered the respondents to have the petitioner examined to determine whether or not he is currently experiencing ADS. As a result, a Medical Board was established, and the petitioner had a physical examination at the Base Hospital in Delhi Cantt by Dr. Virendra Vikram Singh.
According to Dr. Virendra Vikram Singh, a prolonged full remission of the petitioner cannot be predicted with absolute confidence in light of the petitioner’s elevated AST/LFT and sickness, which has the potential for lapse and return. It is widely accepted that it is unfair to intervene in situations involving the Medical Board’s opinion while seated in an appellate or writ jurisdiction, particularly if the opinion is provided by subject-matter experts.
The petitioner may not be qualified to carry out the duties of the position to which he was assigned, but this Court believes that the punishment of “removal from service” meted out to him is excessive. This Court determines that if the petitioner received a lighter sentence, the interests of justice would be served.
As a result, the challenged orders from the respondents, dated 13.04.2021 and 05.05.2020, are hereby reversed. The petitioner will be regarded as having “compulsorily retired from service” and will be eligible for pensionary and other benefits as of the date he was let go from his position. The respondents have four weeks to issue the required orders and provide the necessary benefits.
The present petition is disposed of as a result of the instructions.
READ FULL JUDGEMENT: https://bit.ly/3MZhzPT