Supreme Court Directs Indian Army To Pay Rs 50 Lakh Compensation To Ex-Havaldar Dismissed After Wrongful Diagnosis As HIV+ve

In a major relief to an ex-army havaldar, the Supreme Court on Wednesday (March 20) directed the Indian Army to award him a lumpsum compensation of Rs.50,00,000/- (Rupees fifty lakh only) towards compensation on account of wrongful termination of service. The case relates to a wrongful diagnosis of an ex-army havaldar who was terminated from the services wrongfully on account of his diagnosis of AIDS. Reversing the findings of the Armed Forces Tribunal (“AFT”), the Bench Comprising Justices Sanjiv Khanna and Dipankar Datta found a glaring defect in the AFT ruling since it had wrongly found the ex-serviceman/Appellant infected with HIV+ve despite he being not diagnosed with such symptoms. “The AFT, in the impugned judgment, has referred to extensive medical literature citing the hazards of HIV and how it can lead to a deterioration in the physical condition of those who get detected as HIV+ve. However, while the medical literature contemplates myriad infirmities which accompany such a disease and consequently render an individual unfit for military service, the AFT failed to observe that the appellant in the present case was not diagnosed with any such symptoms. The appellant was treated by the Command Hospital at Pune in 2001, and by the respondents' admission, successfully responded to the treatment administered. Nothing has been brought on record to indicate that the appellant was thereafter unfit to continue in service as a Clerk.”, the Judgment authored by Justice Dipankar Datta said. The Appellant provided his services to the Indian Army till the year 2001 and was terminated from the services pursuant to the medical report showing him HIV+ve. The court rejected the respondents' contention that they had doctors in 2001 who used their best professional judgment to opine that the appellant was HIV+. “The respondents' contention that doctors in 2001 have used their best professional judgment to opine that the appellant was HIV+ve,in our opinion, should be rejected, in the absence of any medical literature to show that the test results as per then prevailing medical standards justify the diagnosis that the appellant was suffering from AIDS defining illness. On the other hand, there are lapses galore on the part of the respondents. They were, in spite of being aware of the adverse and pernicious impact on the appellant, grossly careless and negligent.”, the court observed.“The AFT's opinion that the need of the medical specialist was fulfilled by placing an oncologist on Board is something with which we cannot agree. The appellant while serving in the army was being prematurely discharged; thus, extreme caution and care in ensuring correct diagnoses was required.”, the court added. The court found that the respondents had deliberately tried to cover up the wrong diagnosis of the appellant and the Medical Board had wrongly rejected the appellant's prayer on flimsy and wrong grounds. “Even disability pension was denied by categorizing the appellant as suffering from AIDS, a self-inflicted condition.”, the court noted. The court found that the respondents had arbitrarily rejected the appellant's request for disability status which was still a provision in the respondent's policy for conferring disability status to those afflicted with self-inflicted disease like HIV AIDS. After recognizing that the respondent had failed to understand the plight of the appellant by severing him from the Indian Army, the court decided to additionally award him monetary compensation while noting that an equitable restitution of what the appellant has suffered because of psychological, financial and physical trauma coupled with the position that the appellant's reinstatement in service is not an available option now and also that direction for grant of pension isn't possible at this stage. “In view of the extreme mental agony thus undergone by the appellant, in not only facing the apathetic attitude of the respondents 2 to 4 but in facing the concomitant social stigma and the looming large death scare that accompanied such a discharge from the armed forces, we deem it fit to award a lumpsum compensation of Rs.50,00,000/- (Rupees fifty lakh only) towards compensation on account of wrongful termination of services, leave encashment dues, non-reimbursement of medical expenses and the social stigma faced, to be paid by the respondents 2 – 4 to the appellant within eight weeks from the date of this judgment without fail. In addition to the above, the appellant shall be entitled to pension in accordance with law as if he had continued in service as Havaldar and on completion of the required years of service retired as such, without being invalided.”, the court concluded. Accordingly, the appeal was allowed and the impugned judgment of AFT was set aside. “We are conscious that whatever amount by way of compensation has been directed to be paid to the appellant, by the respondents 2 to 4, can in no manner compensate for the...

Supreme Court Directs Indian Army To Pay Rs 50 Lakh Compensation To Ex-Havaldar Dismissed After Wrongful Diagnosis As HIV+ve

Yash Mittal

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