The doctrine of proportionality in disciplinary matters and the need to consider the context of a delinquent's actions and the impact of service-related disabilities in determining the proportionality of punishment.

MR. JUSTICE S. RAVINDRA BHAT

1. The Petitioner, a Lance Naik in the Border Security Force (“BSF”) is aggrieved by the order of dismissal issued to him on 16.01.1996 pursuant to a trial by the Summary Security Force Court (SSFC). He seeks directions for quashing of the proceedings and the order of dismissal.

2. The petitioner, a Lance Naik was attached to the 96th Battalion in the BSF. On 08.07.1993, he was on duty as a driver at Subji Mandi, Bala Mura Road, Srinagar when there was a militant attack. The attack was conducted with bombs and grenades, as a result of which splinters entered his head. It was pointed out that one colleague died immediately in the ambush. The Petitioner was admitted to the Army hospital in Srinagar for several weeks, and he proceeded on Medical leave for two months. During this leave, the Petitioner was treated in the District Hospital, Churachandpur, Manipur. The treating doctor certified on 05.01.1994 that the Petitioner was no longer fit for active service, and that he was suffering from “permanent conduction of deafness of left ear and nervous breakdown”. The documents pertaining to his treatment at the Army Hospital, Srinagar are, however, not before us today.

3. On the expiry of his medical leave, the Petitioner reported to his Battalion and submitted the Medical Certificate. He claims that he was retained in service instead of being discharged with “invalid pension” under Rule 38 of the Central Civil Service (Pension) Rules. In May 1994, he was treated again at the BSF Hospital in Jammu and Kashmir due to continuing problems with his hearing and mental state. He was referred to the Psychiatry Department of Medical College in Jammu. On 05.01.1995, the Petitioner was examined by a Medical Board. The Board opined that he was suffering from “effect of splinter injury head with anxiety somato-form disorder”. The Board considered the Petitioner unfit to remain in category AYE and recommended that he be kept under medical category CEE(T) for a year.

4. The Petitioner recounts of an incident that occurred in the same year when he was thrown inside quarter guard for an hour on being observed to not participate in the Physical Training. He states that although the Commandant was made aware that he was not fit for the P.T., the Commandant responded with hostility. The Petitioner was given two months leave by the new Commanding Officer. The Petitioner came back from leave to find that his medical documents were missing (which he ascribes to the respondents), and that he faced Summary Security Force Court proceedings for an offence under S. 21(2) of the Border Security Force Act (“disobeying the lawful command given by his superior officer”). The offence alleged against him was that he disobeyed his superior officer’s order to fall in for maintenance of the Headquarter area. The SSFC proceedings resulted in him being dismissed from service by order dated 16.01.1996. This order of dismissal is impugned in the present writ petition.

5. It is contended that after his dismissal, the Petitioner’s mental illness consumed him. He underwent treatment in the District Hospital, Churachandpur in Manipur since 30.04.2008 as an out-patient. The treatment has been taking effect and in one year, the Petitioner was assessed to have fully recovered and fit to resume normal duties (certificate dated 08.05.2009). He approached this court, seeking redressal in the circumstances. The Petitioner’s explanation for the long delay in filing the writ petition is that he was of unsound mind during the intervening period and that he was unable to take recourse to any legal remedy until 08.05.2009 when he had fully recovered from unsoundness of mind. Today the Petitioner seeks that his dismissal be set aside and that he be allowed to enjoy “Invalid Pension” from the time he was kept out of service. He also claims compensation of Rs.80 lakhs for the mental agony and distress that he underwent.

6. Counsel for the Petitioner a