Delhi High Court
Subedar(Skt) Puttan Lal And Other ... vs Union Of India & Ors. on 20 November, 2008
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20.11.2008
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SUBEDAR(SKT) PUTTAN LAL
AND OTHER CONNECTED PETITIONERS ...PETITIONER(S)
Through:
Major K. Ramesh, Mr. Amol Rattan Singh, Ms. Neelam
Rathore, Col. S.R. Kalkal, Mr. Rajeev Anand, Mr. C.M.
Khanna, Mr. Viraj R. Datar, Col. C.K. Sharma, Col. A.S.
Chauhan, Mr. Mohan Kumar, Mr. N.L. Bareja, Mr.
Hitender Sakkarwal, Mr.Sudhir Mittal, Mr. E.J. Varghese,
Mr. Kuljiwan Goyal, Mr. Alok Kishor, Mr. Kundan Kumar,
Mr. Anil Kumar Pandey, Mr. Rajeev Anand, Mr. B.P.
Shukla, Mr. S.M. Dalal, Mr. D.S. Kauntae, Mr.Soumyajit
Pani, Dr.Alok K.Sharma, Mr.R.D.Tyagi, Captain
K.M.Saxena, Ms. Rekha Palli with Ms. Punam Singh,
Mr. S.L. Kumar with Mr. B.K. Ahluwalia, Col.S.S.Chhawal,
Mr. A.K. Bakshi with Mr. Romesh Gautam, Ms.Bandana
Shukla, Mr.R.K.Sharma, Mr.Aagney Sail & Mr.Abhik
Kumar, Mr.M.S.Sasan, Dr.R.S.Sasan, Mr.A.K.Trivedi,
Ms.Jagrati Singh for Mr. M.K.Bhardwaj, Mr.S.K.Kumar,
Mr.B.V.K.Ahluwalia and Ms.Rita Hingmang.
....... ....... Advocates for the Petitioners.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through:
Mr. Ashwani Bhardwaj, Mr. Manoj Ohri, Mr. Hemant
Gupta, Mr. Puneet Khurana, Ms.Monica Garg, Mr.Shakir
Hasan, Mr.Amiet Andley, Mr. Saroj Bidawat, Col. R.
Balasubramaniam,Mr. Aakash Pratap, Ms. Barkha
Babbar, Ms. Sonia Mathur, Mr. Pankaj Batra, Mr. Anil
Gautam, Mr. M.M. Beg, Mr. Saleem Ahmed, Ms.Shilpa
Singh, Mr.Yogesh Varma, Mr.Prakash Kumar,
WP (C) No.5946 of 2007 and other connected matters Page 2 of 8
Mr.Jaswinder Singh, Ms. Monika Garg, Mr. Gaurav
Liberhan, Mr.Rohit Malik, Mr.Jatin Dhawan,
Mr. M.Y. Khan, Mr. Amiet Andlay, Mr. S.M. Zulfiqar Alam,
Ms.Jyoti Singh, Mr. Ankur Chhibber, Mr. A.S. Singh,
Mr.Pankaj Batra, Mr. Saleem Ahmed with Mr. Habibur
Rahman, Mr. Sanjay Katyal with Mr. Ranjeet Kumar Jha,
Mr. Vikas Sethi with Ms. Maninder Acharya,
Mr. Rajan Sabharwal with Ms. Seema Bhadauriya,
Mr. Pushkar Sood with Mr. Varun Kathuria,
Mr. Sewa Ram with Mr. R.K. Bachchan,
Mr. Dalip Mehra with Mr. Rajiv Ranjan Mishra,
Mr. Jai Bansal and Mr. Vivek Singh, Advocates, proxy for
Ms. Madhu Sharan, Mr. Sanjay Katyal,
Mr. R.V. Sinha, Mr. A.S. Singh and Mr.Puneet Khurana,
Advocates along with Colonel G.S.Aul and Major S.S.
Pandey for the Respondents.
....... ....... Advocates for the Respondents.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be
reported in the Digest? No
SANJAY KISHAN KAUL, J. (ORAL)
1. The common question which arises for consideration in this
batch of petitions is as to whether an army personnel could
have been discharged from service without holding the
Invaliding Medical Board ('IMB' for short). A Division Bench of
this Court had held against the respondents against which the
respondents preferred a Special Leave Petition. Since the
Hon'ble Supreme Court was seized of the matter, it issued
directions that this Court should stay its hand till the
authoritative pronouncement of the Supreme Court is
available on this aspect. We may also note that interim
orders were granted by this Court, but the Supreme Court
vacated the interim orders and in view thereof a general
interim order was passed by this Court on 14.05.2008 keeping
in mind the orders passed by the Supreme Court whereby the
benefit of stay was restricted to the service personnel
continuing in the accommodation provided by the Army.
2. The Supreme Court has delivered a judgment in Civil Appeal
No.6587/2008 in Union of India & Ors v. Rajpal Singh on
07.11.2008. The question which has been decided has been
succinctly set out in para 2 of the Order itself as to whether
the holding of an IMB is a condition precedent for discharge of
a Junior Commissioner Officer ('JCO') on account of low
medical category.
3. We may add here that this principle would actually apply not
only to the JCOs alone, but also to all the Personnel Below
Officers Rank ('PBORs' for short). The conclusion of the
Supreme Court is that the High Court was correct in holding
that the PBORs could not be discharged from service without
holding an IMB.
4. The result of the aforesaid judgment is that all the present
petitions are liable to be allowed.
5. We have heard the counsel for the parties for purposes of
concluding as to what directions are required to be passed in
the present petitions. The following directions are accordingly
issued:
i) The order passed by the Chief of Army Staff dated
12.04.2007 directing discharge of all the personnel in Low
Medical Category without holding the IMB is quashed.
ii) The petitioners who stand discharged as a consequence of
the aforesaid order are entitled to be reinstated with all
consequential benefits including continuity of service, pay and
allowances and seniority as per the rules.
iii) The petitioners would report to their respective
Regimental Centre from where they have been discharged
within a period of 30 days from today for joining. The pay and
allowances and other benefits to such of the petitioners who
have not been paid the pension and retiral benefits including
by AGIF arising from the discharge order will be remitted
within a maximum period of three months from today.
Naturally, this would be applicable only to such of the
petitioners who join within the aforesaid time.
iv) There are certain petitioners who have been paid pension,
retiral benefits and amount by AGIF and if they seek to re-join
naturally they have to refund the amount. However, they are
also entitled to be paid the pay and allowances. Thus only the
net amount has to be refunded by them. The respondents will
inform such persons about the net amount which has to be
refunded back by them and the amount be remitted by such
persons within 30 days of intimation of the amount to be
remitted back by them.
v) In respect of aforesaid direction (iv), if the balance
amount is not remitted back to the respondents, it will be
deemed that such petitioners have accepted their discharge.
vi) In case of the petitioners who have not been discharged,
naturally the occasion to discharge them now would not arise
without holding the IMB.
vii)The respondents are not precluded from holding the IMBs
after such joining in accordance with law as per the Army Act,
1950, The Army Rules, 1954 and Army Instructions.
viii) In view of the passage of time from the date of discharge
till the date of rejoining, it will be open to the respondents to
carry out any police verification as may be deemed
appropriate by the respondents.
6. We would have disposed of all these writ petitions with the
aforesaid directions alone, but we are conscious of the fact
that there are a large number of personnel who have been
discharged under the policy which has been held to be illegal
by the Supreme Court. This has already started resulting in a
spate of petitions before this Court. Such policy decision was
taken on 12.04.2007 and is in proximity of time. In order to
give option to such other persons who may not have
approached the Court till now arising as a consequence of the
judgment of the Supreme Court and to avoid such
unnecessary spate of litigation before this Court, it has
become necessary to issue certain further general directions
even in respect of the PBORs who have not approached any
Court till date. This is not only in the interest of such persons
but also in the interest of the respondents and to avoid
unnecessary huge litigation.
7. Insofar as the aforesaid persons are concerned, the
following directions are issued:
i) Individual options will be sent by the respondents to such
persons within two months making an offer to them to rejoin if
they so desire as per the aforesaid directions passed in the
present writ petitions. The option letter will indicate that such
option has to be exercised within a period of 30 days of the
receipt of the letter and in case the retiral and pensionary
benefits have been paid to them, such persons must rejoin
along with the amount liable to be refunded by them to the
respondents which shall also be indicated in the option letter.
ii) The respondents will also give a public notice/advertisement
apart from issuing the individual notice in a suitable manner
preferably in national newspapers.
iii)It is made clear that such persons will also be governed by
all the directions made in respect of the petitioners herein
insofar as applicable.
iv)The general directions are applicable only to such of the
persons who have been discharged or proposed to be
discharged under the policy letter dated 12.04.2007 or those
who may have been discharged earlier but have already
approached the competent court by filing a petition.
v)It is pointed out that there may be certain PBORs, which may
also include some petitioners, whose normal date of
superannuation has already arrived or would arrive before the
aforesaid option is issued. In such cases, the persons would
be entitled to only the benefit of pay and allowances for the
differential period after adjusting any additional benefit arising
from the premature discharge. Needless to say that those
who decide not to rejoin after their premature discharge would
neither be entitled to any pay and allowances nor would be
required to repay the amount, if any, paid to them after their
premature discharge.
The petitions stand allowed with the aforesaid directions.
CM 771/2008 in WP(C)389/2008
In view of the disposal of the writ petition, the
application does not survive for consideration and the same
stands disposed of.
SANJAY KISHAN KAUL, J.
NOVEMBER 20, 2008 MOOL CHAND GARG, J.
dm
