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IN THE HIGH COURT OF DELHI AT NEW DELHI
SURESH KUMAR KAIT, NEENA BANSAL KRISHNA, JJ.
Dilip Kumar – Appellant
Versus
Union of India and Others - Respondents
W.P. (C) 8155 of 2021 & CM. APPL. 25298 of 2021
Decided on : 19-04-2023
Alcohol Dependence Syndrome - Service Termination - ITBP Rules, 1994 Rule 23 - MHA Guidelines dated 31.07.2007 - The court discussed the provisions of Rule 23 of ITBP Rules, 1994, which suggest that the officer or the Board passing such an order shall be of the view that the incumbent is physically unfit. The court also highlighted the MHA guidelines dated 31.07.2007, which provide instructions for disposal of alcohol dependence cases in the armed forces.
Fact of the Case:
The petitioner, a Sub-Inspector in the Indo Tibetan Police Force, was discharged from service based on a recommendation by the Invalidation Medical Board (IMB) due to Alcohol Dependence Syndrome (ADS). The petitioner challenged the discharge, claiming that he was fit for duty and that the respondents' actions were mala fide.
Finding of the Court:
The court found that the petitioner had been placed in different medical categories over the years, with conflicting opinions from medical professionals. The court noted that the petitioner's current medical condition, as evaluated in 2023, indicated ADS with a possibility of lapse and relapse. However, the court also found that the punishment of removal from service was too harsh and ordered the petitioner to be compulsorily retired from service with pensionary and other benefits.
Issues: The main issue was whether the petitioner's discharge from service based on the recommendation of the IMB due to ADS was justified.
Ratio Decidendi: The court considered the conflicting medical opinions and the harshness of the punishment imposed on the petitioner. It concluded that while the petitioner may be unfit for his appointed post, the punishment of removal from service was too severe, and the interest of justice would be met by inflicting a lesser punishment of compulsory retirement with benefits.
Final Decision: The court set aside the impugned orders and directed the petitioner to be treated as compulsorily retired from service with pensionary and other benefits.
JUDGMENT :
Suresh Kumar Kait, J.
The present writ petition has been filed against the impugned order dated 13.04.2021 passed by the respondents whereby the statutory appeal preferred by the petitioner against the order dated 05.05.2020, whereby he was discharged from the services, has been upheld.
2. The facts, as mentioned in the present petition, are that the petitioner was appointed as Sub-Inspector in the Indo Tibetan Police Force (ITBP) in the year 1993 and was promoted to the rank of Subedar Major and thereafter, Assistant Commandant (Group A)/General diary duty in the year 2008. Petitioner claims to be in Shape-1 absolute medical fitness as per the Shape system of Annual Medical Examination till the year 2014. On a complaint filed by petitioner's wife alleging petitioner to be an alcoholic, he was sent to Cuttack, Orissa for a period of 28 days and he was placed under Shape-2. Thereafter, petitioner was sent to Base Hospital Tigadi, New Delhi, where based upon the opinion dated 12.06.2013, he was found medically fit in Shape-1. However, again vide opinion dated 25.06.2013, respondents placed petitioner in Shape-3 for six months. Against the opinion dated 25.06.2013, petitioner preferred representations, but those remained unanswered. After expiry of six months period on 14.08.2014, petitioner was declared fit in Shape-1. The petitioner claims to have met with an accident and remained absent from duty for 256 days, which was permitted by the respondents and he was thereafter allowed to join the duties. However, the said period of 256 days was taken as unpaid leaves for not performing any duty and petitioner had not informed about his medical condition.
3. The petitioner has averred that on 16.01.2013 he was placed in Shape 2 and Shape 3 respectively w.e.f. 07.03.2013 to 24.06.2013 and thereafter from 25.06.2013 till 03.01.2014 on the ground that he was allegedly diagnosed with Alcohol Dependence Syndrome (ADS). Petitioner was Shape-1 on 04.01.2014 but was again Shape-2 on 06.08.2015 and also on 20.07.2016. On 11.04.2017 he was recommended to be placed under Shape-5 and to be invalidated from service. The petitioner got himself examined from another hospital and was declared fit. According to petitioner, despite repeated requests he was not granted leaves and after much pursuance he was granted leave and he was about to leave for his hometown on 03.07.2017, he was informed that his Invalidation Medical Board (IMB) was fixed for 17.07.2017 in 9th battalion and he was directed to report in 9th battalion. Upon reaching there, petitioner was informed that there was no order for constitution of IMB and he accordingly came back and reported his 10th battalion. Thereafter, petitioner remained under observation of doctor from 30.9.17 to 17.10.2017 and on 18.10.2017, wherein though he was found fit but in the medical report he was again kept in Shape-5 category. On petitioner's request, petitioner was sent for re-examination from 30.09.2017 till 18.10.2017, wherein he was found fit for performing his duties. However, respondents in terms of guidelines issued by the MHA vide Ministry UO No. 1-45024/3/2004-Pers-11 dated 31.07.2007, kept the petitioner under observation in Shape-5 and referred him to IMB. The Medial Board constituted on 06.12.2017, recommended that the petitioner should be boarded out from the services of ITBP.
4. Against the aforesaid recommendation of the Medical Board, the petitioner preferred a writ petition before this Court, which was disposed of with liberty to petitioner to reply to Show Cause Notice dated 13.11.2018 issued by the respondents. The petitioner claims to have made a representation dated 14.02.2019 to the respondents. Thereafter respondents vide order dated 05.05.2020 directed discharge of petitioner from his service. The appeal preferred against the order dated 05.05.2020 was rejected by the respondents vide order dated 07.01.2021. Hence, the present petition has been filed.
5. During the course of he
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