10 July 2023 1:33 PM GMT
The Delhi High Court has modified the Indo Tibetan Border Police's decision to invalidate a Head Constable out of the service due to Alcohol Dependence Syndrome and said his case be treated as ‘compulsorily retired from service’ so that he is entitled to pension, medical and other consequential benefits.In 2016, the Head Constable was permanently incapacitated for any further service...
The Delhi High Court has modified the Indo Tibetan Border Police's decision to invalidate a Head Constable out of the service due to Alcohol Dependence Syndrome and said his case be treated as ‘compulsorily retired from service’ so that he is entitled to pension, medical and other consequential benefits.
In 2016, the Head Constable was permanently incapacitated for any further service within the department on account of indulgence in drugs and drinks. He was diagnosed with ‘Alcohol Dependence Syndrome’.
The division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna on Monday said the “interest of justice would have been met if respondents had permitted for review medical board.” It added that when the petitioner was unable to get himself evaluated from a Government Hospital, “it was too harsh of the respondents to have refused to conduct his review medical examination.”
The court said that it certainly is not observing upon the medical health condition of the petitioner at the relevant time. Observing that since much water has flown by now, the court said it would not be prudent to pass any direction for review medical board.
“Therefore, keeping in mind that till the time of invalidation from service in the year 2015, petitioner had given 24 years of his life serving the armed Forces, this Court is inclined to take some lenient view,” said the bench.
The court was hearing the plea seeking quashing the order by which the service of the Head Constable was terminated on the recommendations of the Invalidation Medical Board. The petitioner was serving as a head constable in Indo Tibetan Border Police since 1992. In 2015, he was served with a Memorandum 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’.
The court noted that even though the Medical Board on three occasions in 2013, 2014 and 2015 found him unfit for duties above altitude of 9000 ft and 14,600 ft and cold weather, yet he was deputed to high altitude post and "was also given duty of ‘Kate Ancoi’ means a person who takes care of weapons, arms and ammunition."
"Also, as per all the above noted Discharge Slips dated 13.08.2013; 21.02.2014 and 06.02.2015, petitioner was recalled for Review after six months by the same Doctor i.e. CMO (OG), CH, CRPF. However, it is only after a few days i.e. on 25.02.2015, the petitioner was examined at Composite Hospital [where invalidation from services was recommended]," said the court.
In 2015, the authorities gave a termination notice of one month under Rule-26(3) of ITBPF Rules, 1994 read with Rule-2(2) of CCS (Medical Examination) Rules, 1957, to the petitioner. However, the petitioner instead of replying to the Memorandum or filing an appeal, allegedly proceeded on 22 days leave and undertook to join after that. He allegedly also stated in his application that he was not interested to make any representation or appeal.
The bench noted that petitioner’s wife requested the authorities not to invalidate him from his service, which was acceded to and invalidation of petitioner was deferred for a period of six weeks.
Thereafter, an appeal was also filed by the petitioner to the respondents seeking his Review Medical Examination, specifically stating that he had already approached IBHAS and RML Hospital, but in the absence of any recommendation from the competent authorities, he was refused to be examined, the court noted further.
On pursuing the appeal, the court noted that “the appeal preferred by the petitioner reveals that petitioner had pleaded before the competent authority that he was forced to sign to forego his right to appeal and was sent on forced leave.”
"Also, in the appeal petitioner has averred that he was forced to sign the same within two days of issuance of Memorandum dated 17.06.2015. Infact, as per Memorandum dated 17.06.2015 the period of 30 days for filing appeal ended on 16.07.2015 and petitioner preferred the appeal on 20.07.2015 i.e. if not within time, then also not highly belated, with delay of two days only. Even otherwise, on perusal of aforesaid undated Specimen Letter of Undertaking, based upon which respondents have pleaded that petitioner had foregone his right to appeal; it does not appeal to the Court as to why an officer who is being invalidated from service shall in writing forego his right to file an appeal and probability of obtaining such undertaking by coercion at the hands of respondents cannot be ruled out," it observed.
The court said that the appeal filed by the petitioner has gone unanswered and his request for a Review Medical Board was also rejected on the ground that the fitness issued by the Single Doctor in OPD could not override the Invalidation Medical Board.
It also noted that subsequently, he was referred to RML Hospital, New Delhi for further medical evaluation but he was informed in writing by the doctors that without any request from his department, his complete medical evaluation could not be done.
In light of such circumstances, the court said it was too harsh to have refused to conduct his review medical examination. While ordering that the petitioner's invalidation from service be treated as ‘compulsorily retired from service’, the court said: “Respondents are directed to pass necessary orders and clear the arrears within four weeks”.
Case Title: Kamlesh Kumar v. UOI & Ors
Citation: 2023 LiveLaw (Del) 575
Advocate Shefali Kishore appeared for the petitioner.
Advocate Rajesh Gogna appeared for the respondent.
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