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IN THE HIGH COURT OF DELHI AT NEW DELHI
Suresh Kumar Kait, Neena Bansal Krishna, JJ.
Kamlesh Kumar – Appellant
Versus
Union of India & Ors. – Respondents
W.P.(C) 6906 of 2016
Decided On : 10-07-2023
Alcohol Dependence Syndrome - Termination of Services - ITBP Rules 1992, CCS (Medical Examination) Rules 1957 - S3 (T-24), S2 (T-24), S5(P) - The court discussed the petitioner's health condition, medical examinations, and the recommendations of the Invalidation Medical Board. It highlighted the petitioner's request for Review Medical Examination, the respondents' refusal, and the legal provisions governing the termination of services on medical grounds. The court directed the petitioner to be treated as 'compulsorily retired from service' with entitlement to pension, medical, and other consequential benefits.
Fact of the Case:
The petitioner sought quashing of the termination order based on his Alcohol Dependence Syndrome. He claimed that he was fit for duty despite medical examinations showing his incapacity. The respondents contended that the petitioner failed to prove his fitness for service.
Finding of the Court:
The court found that the petitioner's health condition and the respondents' actions warranted a lenient view. It directed the petitioner to be treated as 'compulsorily retired from service' with entitlement to pension, medical, and other consequential benefits.
Issues: The issues revolved around the petitioner's health condition, the validity of the termination order, and the respondents' refusal to conduct a Review Medical Examination.
Ratio Decidendi: The court considered the petitioner's plea for leniency and the respondents' refusal to conduct a Review Medical Examination. It balanced the interests of justice and directed the petitioner to be treated as 'compulsorily retired from service' with entitlement to pension, medical, and other consequential benefits.
Final Decision: The court directed the petitioner to be treated as 'compulsorily retired from service' with entitlement to pension, medical, and other consequential benefits.
JUDGMENT
Suresh Kumar Kait, J.
1. The present petition has been preferred by the petitioner seeking quashing of order dated 13.05.2016 vide which his services have been terminated on the recommendations of the Invalidation Medical Board.
2. The facts giving rise to the present petition are that petitioner was working as Head Constable (`HC')/GD in Indo Tibetan Border Police (ITBP) since 28.02.1992. On 17.06.2015, he was served with a Memorandum dated 28.05.2015 mentioning that he is completely and permanently incapacitated for further service of any kind in the department on account of indulgence in drugs and drinks and has been suffering from `Alcohol Dependence Syndrome'.
3. According to petitioner, his Invalidation Medical Board was conducted on 13.08.2013. His health condition though was shown improved vide medical examination dated 22.02.2014, despite this, his next medical examination was conducted on 06.02.2015, however his condition was static. Yet again, after 19 days, his medical examination was conducted on 25.02.2015. The status of above Invalidation Medical Board is as under:
"1. S3 (T-24) w.e.f. 14/08/2013
2. S2 (T-24) w.e.f. 22/02/2014
3. S2 (T-24) w.e.f. 06/02/2015
4. S5(P) w.e.f. 25/02/2015"
4. Petitioner has averred that in the discharge slips dated 13.08.2013, 21.02.2014 and 06.02.2015, it was mentioned that petitioner can be deputed on service without arms and ammunition. However, he was deputed as Incharge of Store Room where heavy arms and ammunitions were stored. Petitioner has alleged that on 19.06.2015, he was forced to sign undated application for grant of 22 days' leave and was thus, sent on `Forced Leave'. Petitioner went to the Institute of Human Behaviour and Allied Sciences (IHBAS) and consulted a Doctor vide OPD CRF No.2015-6-33774 dated 25.06.2015, where various tests were conducted and on 06.07.2015 he was referred to RML Hospital, New Delhi for further medical evaluation and he was informed in writing that without any request from his department, he could not be evaluated.
5. Petitioner claims to have thereafter approached the higher authorities, including IG and DIG at Guwahati and made a request for his re-medical examination but his request was rejected. Also, because he was undergoing treatment for his illness, he could not file an appeal within time. In the meanwhile, petitioner's wife vide letter dated 07.07.2015 requested the respondents not to board out the petitioner on the basis of Memorandum dated 17.06.2015.
6. On 20.07.2015, petitioner requested the respondent-Department for Review Medical Examination but no effective action was taken. Petitioner after making request to the higher authorities including IG and DIG, preferred an appeal on 20.07.2015 wherein he requested for his Review Medical Examination. In view of request of petitioner's wife, petitioner's case was forwarded to Sector Headquarter, Tezpur for consideration on compassionate grounds, and vide letter No.4875-76 dated 21.07.2015 of the respondents, the competent authority extended time for boarding out by six weeks w.e.f. 17.07.2015, directing the petitioner to submit his relevant medical documents.
7. Thereafter, petitioner made a request to the respondents for his Review Medical Examination but his request was not considered. However, petitioner got himself examined by doctor at a Government Civil Hospital on 20.08.2015, who opined that petitioner was physically and mentally fit for Armed Forces service. On 29.08.2015, petitioner submitted his medical documents and on 02.09.2015, he was transferred to 39th Battalion on compassionate grounds vide order No.19421-35 dated 01.09.2015. His boarding out time was further extended w.e.f. 28.08.2015 to 15.10.2015.
8. Case of petitioner was thereafter referred to the higher authorities vide letter No.1038 dated 10.02.2016 for further decision. The Director (Medical) vide Office Memorandum dated 31.03.2016 opined that there was no requirement of constitution of Re-medical
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