Service Lawyer: A person cannot be discharged in Army on medical grounds without subjecting him to the Invalidating Board; SC.

Supreme Court of India

Justice Hemant Gupta and Justice L Nageswara Rao

The SC {EX-SEPOY (WASHERMAN) RAM KHILAWAN v. UNION OF INDIA & ORS.} holds that if a person is to be discharged on the ground of medical unfitness, such discharge cannot be passed without subjecting him to the Invalidating Board.

In the present case, the appellant was enrolled in the Army as a Washerman on October 23, 1987. He was discharged from service on medical grounds on August 31, 1993 due to “CNS (IN) Seizure” when he was put in Low Medical Category BEE on August 27, 1992. Appellant, aggrieved against the discharge, submitted statutory complaint on August 11, 2007 wherein, the stand of the appellant was that no show-cause notice was given to him by the Commanding Officer who sanctioned discharge under Rule 13(3) Item III (v) of the Army Rules, 1954. Such statutory complaint was declined on October 12, 2007, inter alia, on the ground that though the appellant has given his option to serve in the sheltered appointment but no sheltered appointment was available commensurate with the trade to suitably employ in the public interest. Therefore, he was discharged under the provisions of Army Order 46 of 1980 read with Rule 13(3) Item III(v) of the Rules. The armed forces tribunal dismissed the petition of the appellant.

Setting aside the judgment of the tribunal, it was held by the SC that since the discharge has proceeded without reference to Invalidating Medical Board, such discharge is not legally sustainable, was therefore set aside, and the appellant was directed to be paid pension of three years prior to filing of the writ petition in HC (which was later transferred to tribunal).