Full Judgment Text
Neutral Citation Number: 2023:DHC:2613-DB
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: March 07, 2023
Pronounced on: April 19, 2023
+ W.P.(C) 8155/2021 & CM. APPL. 25298/2021
DILIP KUMAR ...... Petitioner
Through: Mr. Sudarshan Rajan, Mr. Hitain
Bajaj, Mr. Ramesh Rawat & Mr.
Mahesh Kumar, Advocates
Versus
UNION OF INDIA AND OTHERS .....Respondents
Through: Mr. Vikrant N. Goyal, Ms. Ayushi
Garg & Ms. Tesu Gupta, Advocates
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
SURESH KUMAR KAIT, J
1. 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
W.P.(C) 8155/2021 Page 1 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
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
W.P.(C) 8155/2021 Page 2 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
leave for his hometown on 03.07.2017, he was informed that his
th
Invalidation Medical Board (IMB) was fixed for 17.07.2017 in 9
th
battalion and he was directed to report in 9 battalion. Upon reaching
there, petitioner was informed that there was no order for constitution of
th
IMB and he accordingly came back and reported his 10 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 hearing, learned counsel appearing on behalf
W.P.(C) 8155/2021 Page 3 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
of petitioner submitted that while boarding out the petitioner from his
service, the respondents have failed to look into 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 of that incumbent is physically unfit,
whereas from the report of Dr. Bhatnagar it is clearly made out that the
petitioner was fit on the date of his examination. Even further report of
Dr. Rajendran Akambadiyar suggested that “subsequent OPD evaluation
did not reveal any alcohol seeking behaviour or any oddities of
behaviour.” The medical report dated 13.04.2017 noted that the petitioner
was fit to join his duties. Even the observations of the IMB also suggested
that petitioner was alert, well-mannered and responded appropriately to all
the questions put by the Board.
6. Learned counsel further submitted that the instructions of MHA
dated 31.07.2017 do not suggest that if a person is in Shape-5, he has to
be removed from service. The Board took into consideration the period
from 2013 to 2016, which included the period of 122 days when he was
absent from duty, not because of ADS but because of an accident. No
complaint since the year 2013 was made against the petitioner. The
material fact is that petitioner had been found fit to perform his duties by
both the doctors named above and have not concluded that petitioner was
suffering from ADS. It was submitted that the action of respondents is
mala fide, hence, deserves to be set aside.
7. On the other hand, learned counsel appearing on behalf of
respondents submitted that on a complaint made by petitioner‟s wife on
13.01.2013, petitioner was found intoxicated and was sent for medical
W.P.(C) 8155/2021 Page 4 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
check up, first to Composite Hospital, CRPF, Bhubaneshwar where he
was kept in a Low Medical Category; then he was referred to Referral
Hospital, ITBP for opinion of Psychiatrist who opined it a case of
“Mental and behavioural disorder due to use of alcohol, Harmful use (F-
10.2)”. The petitioner remained in Low Medical Category from
25.06.2013 to 13.08.2014. On 14.08.2014, petitioner was upgraded to
Shape-1. However again on 25.07.2015 relapse of ADS occurred and
petitioner was admitted in Field Area Hospital and was placed in Shape 2
w.e.f. 06.08.2015. His condition was reviewed on 20.07.2016, as during
the intermediate period the petitioner remained absent from duty. He was
placed in Shape 2 category. Thereafter, petitioner was examined by Dr.
Rajendran Akambadiyar between the period 02.04.2017 to 11.04.2017
and he was put in Shape 5 category. Thereafter, the petitioner was
referred to Departmental Rehabilitation Board, who on 08.06.2017 opined
that petitioner was not fit for any kind of duty and recommended his
invalidation from service.
8. Learned counsel submitted that before putting the petitioner for the
IMB, he was examined by the Psychiatrist from 30.9.2017 to 17.10.2017,
who opined that petitioner has already been given more than three years to
improve and abstain from alcohol but he failed and he was kept under
Shape 5 w.e.f. 11.04.2017. Thereafter, he was brought before the IMB,
who after taking into consideration the opinion of the Specialists from
11.04.2017 and 17.10.2017, recommended for boarding out of the
petitioner on 06.12.2017.
9. It was next submitted that vide Memorandum No.I-26011/06/2010-
W.P.(C) 8155/2021 Page 5 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
Pers-1305 dated 13.11.2018, the Invalidation Medical Board met on
6.12.2017 along with copy of the Form-23, Psychiatric opinion dated
11.04.2017 & 17.10.2017, petitioner was called upon to make a
representation against the error of judgment in the opinion expressed by
the Medical Board, but instead he filed W.P.(C) No. 775/2019 before this
Court challenging the Memorandum dated 13.11.2018, which was
withdrawn by the petitioner.
10. Learned counsel next submitted that in terms of Rule 38(3) of CCS
(Pension) Rules, 1972, petitioner was found to be permanently
incapacitated and also in terms of Rule 23(3) of the ITBP Rules, 1994, the
petitioner was recommended unfit for duty by the IMB and hence, he has
rightly been discharged from service.
11. In rebuttal, learned counsel appearing on behalf of petitioner
submitted that on one hand respondents have boarded out the petitioner
from service on the recommendations of Dr. Rajendran Akambadiyar and
Dr. Amit Bhatnagar, however, on the other hand respondents have not
taken into consideration their opinion on the health of petitioner. It was
submitted that according to medical report dated 13.04.2017, the
petitioner was fit to join duties and he was not suffering from ADS and
therefore, his boarding out is bad in law and deserves to be set aside.
12. We have carefully considered the respective submissions of the
parties and gone through the records of this case.
13. The petitioner had joined ITBP in the year 1993 and has remained
Shape 1 till the year 2014. On a complaint made by his wife on
13.01.2013 alleging him to be alcoholic, the petitioner was placed under
W.P.(C) 8155/2021 Page 6 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
Shape 2. However, in his examination at Base Hospital Tigadi, New
Delhi on 12.06.2013, petitioner was declared Shape 1. The report dated
12.06.2013 by Dr. Vivek Kumar reads as under:-
“For clinical evaluation, the patient was admitted
to BHD on 22/04/13. No alcohol withdrawal signs
were observed in the ward nor did the patient
report symptoms of withdrawal. He denied of
craving alcohol and did not consume alcohol
during his stay. His initial investigations
pertaining to a '"abuse revealed S.bil.- 0.6 mg%,
SGOT- 28 IU/L, SGPT-32 IU/L, GGT-29.83 U/L
and USG abdomen came to be within normal
limits. Patient had been managed by
pharmacologic and non-pharmacologic means.
He was actively participated in counseling for
motivation to quit alcohol and relapse prevention.
He had complied with the task given for
counseling.
OPINION:-
After examining the individual thoroughly
considering history, examination, mental state
examination, investigations, ward behaviour and
available documents the individual is diagnosed
as a case of "Mental and Behavioural disorder
due to use of 'Alcohol, Harmful Use {F-10.1)'.
Further, individual is not fulfilling the criteria for
"Mental and Behavioural. Disorder due to use of
Alcohol, Dependence Syndrome (F-10.2)’. The
existing SHAPE guidelines for in-service
personnel of CAPFs is silent on the above said
diagnosis of the individual hence the individual
may be placed in S1”
14. Subsequent upon the aforesaid opinion dated 12.06.2013 of
Dr.Vivek Kumar, the respondents vide communication dated 20.06.2013,
W.P.(C) 8155/2021 Page 7 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
declared the petitioner in Shape 1.
15. The petitioner was again sent for medical examination on
25.06.2013, wherein he was diagnosed as a case of „Mental and
Behavioral disorder due to use of Alcohol, Harmful Use (F-10.l)‟.
Pertinently, while rendering this opinion, Dr. Vivek Kumar took verbatim
note of his earlier opinion dated 12.06.2013 and opined as under:-
“After examining the individual considering
history, examination, mental state examination,
investigations, ward behaviour and available
documents the individual is diagnosed as a case
of “Mental and Behavioral disorder due to use of
Alcohol, Harmful Use {F-10.l}. As per the existing
SHAPE guideline ·for in service personnel of
CAPFs the individual may be placed in S3 (T-
24)”.
16. However thereafter, vide communication dated 07.10.2014, the
petitioner was declared in Shape-1 on 14.08.2014, translated version
whereof reads as under:-
th
“On transfer from th i s battali o n for 20 battalion
suspended company No . 930150143 assistant
commandant/ G . D . Dilip Kumar who was under
medical category S2 (T-24) because of suffering
from " Mental and Behavioural Disorder due to
use of Alcohol harmful use (F-10 . 1)" from
04 . 01.2014 , in this regard it has been informed by
st
the Medical Officer, 41 Battalion through office
comments number 248-49 dated 13 . 09 . 2014 that
the said officer has been done SHAPE-1 from
14.08.2014 ”
W.P.(C) 8155/2021 Page 8 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
17. It is not disputed by both the sides that, thereafter, petitioner had
met with an accident and the medical prescription dated 12.12.2015 to this
effect has been placed on record. The petitioner had remained absent from
his duty for a period of 256 days due to medical reasons and he was
declared fit to join duty w.e.f. 18.06.2016. The respondents had granted
leave to the petitioner for the said period, but he was not paid having not
performed any duties. The petitioner was permitted to join his duties by
the respondents.
18. On 11.04.2017 petitioner was examined by Dr. Rajendran
Akambadiyar, who recommended to keep petitioner in Shape-5. A perusal
of aforesaid report dated 11.04.2017 by Dr. Rajendran Akambadiyar
reveals that a detailed note of petitioner‟s case history, with regard to
previous LMC status including the absentee period, history of illness and
his condition during the period of observation, were noted. What is
noteworthy is the opinion of doctor on petitioner‟s state of health at the
said time, which is noted as under:-
“ Condition on present admission and course
in hospital
On admission individual was found to have
alcohol withdrawal features. Mental examination
revealed a kempt anxious individual who was
evasive about the alcohol consumption. Due to
denial and minimization, he had no insight and
was not reliable for further assessment. He
reported with his wife. His relevant investigations
like CGT. 75 U/L SGOT-67 U/L (10-40) and
SGPT 54 U/L (10-42) were supportive of alcohol
consumption. He was managed with forced
abstinence detoxification and on improvement
given benefits of psychotherapy aimed at relapse
W.P.(C) 8155/2021 Page 9 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
prevention and was also briefed about the
consequences of relapse. He promises to abstain.
Subsequent OPD evolution did not reveal any
alcohol seeking behavior or any oddities of
behavior. He was again started for medication for
alcohol dependence”.
19. Pursuant to the aforesaid opinion, Dr. Rajendran Akambadiyar
placed petitioner in Shape5 while relying upon the instructions of Medical
Examination and Classification of Personnel in the CFMFs issued vide
Ministry /UO No. I- 45024/3/2004-Pers-1I dated 31.07.07. It is relevant to
note here the aforesaid instructions dated 31.07.07), which read as under:-
“(f) ALCOHOL DEPENDENCE
Alcohol dependence and drug abuse are
recognized as behavioral / psychiatric problems
in 1CD-10. These are incompatible with
service/ethos in Armed Forces and all such cases
should be invalidated/weeded out of service
unless the patient shows an unequivocal
determination to give up the use of alcohol / drug
for good in the shortest time span. There is well
laid down procedure for disposal of such patients
of Alcohol dependence/ drug abuse. However it
does not meet the organizational interests of
Forces where a large number of men are alcohol
dependent and still continue to stay. In view of
the above following instructions for disposal of
Alcohol dependence/drug abuse cases may be
strictly adhered to:
i. Alcohol dependence/drug abuse cases will be
observed in temporary LMC in S-3(T-24) initially
if showing favorable response to treatment.
W.P.(C) 8155/2021 Page 10 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
ii. If during the period of such observation vide
2(a) his condition relapses again, he should be
placed in S-5 and invalidated out of service.
iii. After six months of observation in LMC in S-3
(T-24), if his behavioral / abstinence report is
complimentary and his observation in hospital
shows sign of abstinence (There should not be any
symptom / sign of withdrawal when no alcohol /
drug are allowed during the period of observation
in psychiatric ward) he/she should be upgraded to
category S-2 (T-24).
iv. During this period of observation in S-2 (T-24)
if the Controlling Officer of patient refers him to
psychiatrist with adverse behavioral report /
remark and patient shows signs of relapse, he
should be placed in S-5.
v. After 6 months of observation in S2(T-24) if the
report as above is complimentary and patient
shows signs of alcohol abstinence he should b e
upgraded to S1.
vi. If after up-gradation to S-1, the patient shows
any time any sign of relapse and referred by
Controlling Officer/AMA to psychiatrist with
adverse remarks in his report, then also patient
should be placed in S-5.
20. According to the afore-noted clause, the alcohol dependence / drug
abuse cases will be temporarily observed in Low Medical Category in
Shape 3 and if during the period of observation, the condition relapses, he
should be placed in Shape 5 and invalidated from service. However, if the
report is complimentary, he should be upgraded to Shape 2 and he should
be referred to Psychiatrist. If the patient shows signs of relapse, he should
W.P.(C) 8155/2021 Page 11 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
be placed in Shape 5 and if the report is complimentary, he should be
placed in Shape 1. Even if, after up gradation to Shape 1, the patient
anytime shows sign of relapse, in view of adverse remarks in his report by
the controlling officer or the Psychiatrist, then also he should be placed in
Shape 5.
21. In the present case, the petitioner was declared Shape-1 on
20.06.2013; on 25.06.2013 he was placed in Shape-3; and on 07.10.2014
petitioner was again placed in Shape-1. On 11.04.2017 he was placed in
Shape-5 by Dr. Rajendran Akambadiyar. A perusal of aforesaid opinion
dated 11.04.2017 by Dr. Rajendran Akambadiyar reveals that petitioner
had alcohol withdrawal features and pursuant to abstinence detoxification,
he was made to undergo psychotherapy to avoid relapse and he had
promised to abstain from alcohol. He was prescribed medicines to avoid
alcohol dependence. The aforesaid noting dated 11.04.2017 by Dr.
Rajendran Akambadiyar shows that petitioner was under treatment for
alcohol dependence and was responding positively.
22. This Court now examines the opinion of the Specialist- Psychiatrist
in respect of petitioner. As already noted above, Dr. Vivek Kumar
rendered his first opinion on 12.06.2013 wherein it is noted that
petitioner‟s liver function test and ultrasound abdomen was found to be
normal and within normal limits. It is also noted that the patient has
actively participated in counseling for motivation to quit alcohol and
relapse prevention and motivated to quit alcohol. Accordingly, he was
advised to further follow up with a Psychiatrist. The petitioner was kept in
Shape 1.
W.P.(C) 8155/2021 Page 12 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
23. Thereafter, again on 25.06.2013 petitioner had followed up before
a Psychiatrist, wherein the opinion and conclusion rendered on
12.06.2013 were verbatim repeated, except the fact that the petitioner was
placed under Shape-3. No different reasoning had been assigned in the
report dated 25.06.2013 to place petitioner in Shape -3 within less than 15
days of placing him in Shape-1 on 12.06.2013. However, thereafter vide
communication dated 07.10.2014, petitioner has once again been placed
under Shape- 1 w.e.f. 14.08.2014 by the respondents.
24. We have also gone through the Discharge Summary Slip dated
18.10.2017 issued by Dr. Amit Bhatnagar at the Indo Tibetan Border
Police Base Hospital, which notes as under:-
“officer admitted, observed and reviewed. He
is being discharged in stable condition and the
opinion is being sent to Bn in sealed envelope.
Individual, advised discharge on 17.10.2017
but as officer submitted an application
requesting for discharge on 18.10.2017 his
discharge was withheld on 17.10.2017.”
25. We have also gone through the confidential report by Dr. Amit
Bhatnagar, submitted along with Discharge Summary Slip dated
18.10.2017, relevant part whereof notes as under:-
“ Examination
During his hospital stay and close ward
observation pt. was conscious cooperative,
Kempt, tidy, anxious, EDT (I) in hands, no
craving illegible easy to establish, illegible
maintained for long, PMA was initially slightly
increased but later on average, speed moderate
volume, coherent, goal directed with no
W.P.(C) 8155/2021 Page 13 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
deviations, attention and concentration well
maintained, all the three modalities of memory
intact no fornication. Patient denies to be
deluded or hallucinated, Denial with
rationalization and minimization were alcohol
related defence used by the pt. no suicidal
intent/ideation present, sensorium was clear
with well preserved insight. No over
psychopathology.”
26. Despite having rendered the afore-noted favourable opinion in
respect of petitioner, Dr. Amit Bhatnagar relying upon para No. 235 (f)
(vi) of MHA guidelines dated 31.07.2007, recommended that the patient
was given 08 years to improve and abstain from alcohol, i.e. in August,
2015; in July, 2016 and in April, 2017 he was awarded Shape-5. In our
considered opinion, in terms of para-No. 235 (f) (vi) of MHA guidelines
dated 31.07.2007 the Controlling Authority is required to observe if there
are any signs of relapse, but in the present case we do not find any
mention of relapse of ADS in the petitioner and rather, different report at
different times by different Doctors and Psychiatrists noted that the
petitioner was in normal physical and stable condition.
27. What is beyond belief in the present case is that while passing the
impugned order dated 05.05.2020 terminating the services of petitioner on
the basis of physical unfitness, the respondents have taken the stand that
petitioner had failed to reply the Show Cause Notice dated 13.11.2018
despite opportunity given under the provisions of Section 23(3) of ITBP
Rule, 1994. During pendency of the present petition, this Court was taken
aback to find out that on the basis of opinion rendered on 11.04.2017, the
W.P.(C) 8155/2021 Page 14 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
petitioner has been terminated from the services in the year 2020, after a
lapse of almost four years.
28. It is pertinent to mention here that this Court vide order dated
22.12.2022 directed the respondents to get the petitioner examined to
manifest as to whether, as of date, petitioner is suffering from ADS or not.
Consequently, a Medical Board was constituted and petitioner was
examined by Dr. Virendra Vikram Singh in the Base Hospital, Delhi
Cantt. A copy of opinion dated 30.01.2023 rendered by Dr. Virendra
Vikram Singh has been placed on record, wherein it is noted as under:-
“5. On present evaluation AC Dilip Kumar
claimed that he had not consumed alcohol since
2017. examination found no symptoms or signs of
current alcohol use, alcohol withdrawal or
evidence of target organ damage. Relevant
investigations (MCV-90.5fL, GGT-19 (U/L) are
within normal limits. AST-44 U/L ALT-55U/L are
marginally above the normal limits and USG
abdomen found no abnormality. Urine drug
screen was negative for Benzodiazepine and other
substance use.
6. Overall based on medical records and
current evaluation we are of the opinion that AC
Dilip Kumar is a patient of Alcohol Dependence
Syndrome. Currently abstinent (ICD10, F10.20).
However, giving congnisance to raised AST/LFT
and the nature of his illness which has possibility
of lapse and relapse, a sustained full remission
cannot be documented with absolute certainty.”
29. Apparently, vide aforesaid opinion dated 30.01.2023, Dr. Virendra
Vikram Singh has opined that giving congnisance to raised AST/LFT and
W.P.(C) 8155/2021 Page 15 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
the nature of his illness, which has possibility of lapse and relapse, a
sustained full remission of petitioner cannot be predicted with full
certainty . It is settled position that while sitting in appellate or writ
jurisdiction, it is unjust to interfere in the matters pertaining to opinion of
the Medical Board, especially if the opinion is rendered by the Experts in
the field.
30. The Supreme Court in Veer Pal Singh Vs. Ministry of Defence
(2013) 8 SCC 8, the appellant wherein was downgraded and on the
recommendations of the IMB, was discharged from service; was denied
pensionary benefits on the grounds that the disease suffered by him was
not attributable to his military service and his request for review medical
board was rejected by the competent authority; allowed the appeal and
observed that:-
“10. Although, the courts are extremely loath to
interfere with the opinion of the experts, there is
nothing like exclusion of judicial review of the
decision taken on the basis of such opinion. What
needs to be emphasised is that the opinion of the
experts deserves respect and not worship and the
courts and other judicial/quasi-judicial forums
entrusted with the task of deciding the disputes
relating to premature release/discharge from the
army cannot, in each and every case, refuse to
examine the record of the Medical Board for
determining whether or not the conclusion
reached by it is legally sustainable.”
31. There is no doubt to the position that fitness of personnel of armed
forces is of prime importance and to ensure their physical and mental well
W.P.(C) 8155/2021 Page 16 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
being, periodic medical checkups are being conducted. In the present case,
a perusal of different opinions rendered by the Experts, we find that in
different medical examinations, petitioner has been placed in Shape 1,
Shape 2 and Shape 5. However, what is relevant is the latest opinion
rendered on 30.01.2023, whereby he has been found to be a patient of
ADS. In our considered opinion, if at this stage petitioner is shown to be
suffering from ADS, with a possibility of lapse and relapse; he may not be
able to perform his duties upto the required satisfaction. However, we also
find that the previous reports categorically note that the petitioner has also
shown withdrawal symptoms from alcohol influence. As per report dated
18.10.2017, petitioner was conscious, cooperative, kempt, attention and
concentration well maintained and was clear with well preserved insight.
In view of the aforesaid report dated 18.10.2017, the appropriate course
for this Court would have been to direct the respondents to reconsider the
punishment imposed upon the petitioner. But in the peculiar
circumstances of the present case; where based upon the medical opinion
rendered in 2017, petitioner was removed from service in the year 2020
and his current medical condition has been re-evaluated in the year 2023
pursuant to directions of this Court; and thereby he has been made to
undergo agony of long trial, in the interest of justice, we do not deem it fit
to relegate him to respondents for any further decision. In the considered
opinion of this Court, petitioner may be unfit to perform duty for the post
he was appointed but certainly punishment of “removal from service”
inflicted upon him is too harsh. This Court finds that interest of justice
would be met if petitioner is inflicted with lesser punishment.
W.P.(C) 8155/2021 Page 17 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45
Neutral Citation Number: 2023:DHC:2613-DB
32. Accordingly, the impugned orders dated 13.04.2021 and
05.05.2020 passed by the respondents are hereby set aside. The petitioner
shall be treated as “compulsorily retired from service” and shall be
entitled to pensionary and other benefits from the date he was relieved
from the service. The respondents are directed to pass necessary orders to
this effect and grant consequential benefits within four weeks.
33. With directions as aforesaid, the present petition is accordingly
disposed of.
(SURESH KUMAR KAIT)
JUDGE
(NEENA BANSAL KRISHNA)
JUDGE
APRIL 19, 2023
r
W.P.(C) 8155/2021 Page 18 of 18
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:19.04.2023
11:45