Supreme Court of India
EX-SEPOY (WASHERMAN) RAM KHILAWANversusUNION OF INDIA & ORS.
- Citation
- 2019 INSC 987
- Decided
- 2 September 2019
- Disposal
- Appeal(s) allowed
- Bench
- L NAGESWARA RAO
Holding
A discharge under Rule 13(3)(III)(iii) without the Invalidating Medical Board’s recommendation is illegal, and the appellant is entitled to pension, disability pension and arrears of pension.
Summary
Ram Khilawan, an ex‑sepoy (washerman) who joined the Indian Army on 23 Oct 1987, was discharged on 31 Aug 1993 on medical grounds after being placed in a permanent Low Medical Category (BEE) due to a CNS seizure. He challenged the discharge, arguing that it was made under Rule 13(3)(III)(v) of the Army Rules, 1954, without a show‑cause notice, and that he was entitled to pension. The Armed Forces Tribunal held that the discharge was under Rule 13(3)(III)(iii), i.e., for medical unfitness, and granted a disability pension for five years. The Supreme Court held that a discharge under clause (iii) requires the recommendation of an Invalidating Medical Board; since this was not obtained, the discharge was illegal. Applying Army Order 46 of 1980, the Court deemed the appellant’s service to continue until 22 Oct 1997, entitling him to a regular pension in addition to the disability pension and arrears of pension for three years, but not arrears of salary. The appeals were allowed.
Issues considered
- Whether a discharge of an army personnel on the ground of medical unfitness under Rule 13(3)(III)(iii) is valid without the recommendation of an Invalidating Medical Board.
- Whether the discharge in the present case falls under clause (v) of Rule 13(3)(III) as a residual clause.
- Entitlement of the appellant to pension and disability pension under Army Order 46 of 1980.
- Whether arrears of pension are payable to the appellant.
Legislation cited
- Armed Forces Tribunal Act, 2007
- Army Order 46 of 1980s. clause (b)
- Army Rules, 1954s. Rule 13(3)(III)(iii), s. Rule 13(3)(III)(v)
Subjects
dischargemedical unfitnessInvalidating Medical BoardArmy RulespensionArmy Order 46Armed Forces Tribunallow medical category
Judgment
1066 [2019]
SUPREME COURT 11 S.C.R. 1066
REPORTS [2019] 11 S.C.R.
A EX-SEPOY (WASHERMAN) RAM KHILAWAN
v.
UNION OF INDIA & ORS.
(Civil Appeal Nos. 6977-6978 of 2019)
B SEPTEMBER 02, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Service Law:
Discharge from service - On medical grounds - Without
C subjecting the appellant/employee to the Invalidating Medical
Board as per the procedure laid down under Army Rules - Propriety
of - Held: Discharge of the appellant was only under sub-clause
(iii) r.13(3)(III) and not under sub-clause (v) of r.13(3)(III) of Army
Rules - Therefore, he could not be invalidated out of service without
D the recommendation of the Invalidating Board and hence discharge
is not sustainable - In terms of General Principles of Army Order
46 of 1980, he is entitled to be retained in service for 10 years -
Since the appellant had joined the service on 23.10.1987, he would
be deemed to be discharged only on 22.10.1997 - Thus he is
entitled to pension in addition to the disability pension - He is
E
entitled to arrears of pension for a period of three years prior to
filing of writ petition - Army Rules, 1954 - r.13(3)(III)(iii) - Army
Order 46 of 1980.
Allowing the appeals, the Court
F HELD: The order of discharge is on the ground that the
appellant has been placed in Low Medical Category. The
discharge of the appellant was only under category 13(3)(III)(iii)
of Army Rules, 1954, as he has been found medically unfit for
further service. Clause (v) of Rule 13(3)(III) would be applicable
G in respect of all other classes of discharge which do not find
mention in Rule 13(3)(III). The communication of discharge from
the service is on the ground that he has been placed in the Low
Medical Category. Once he has been put in Low Medical
Category, clause (iii) of Rule 13(3)(III) would be applicable as
such clause alone deals with discharge if any personnel is found
H
1066
EX-SEPOY (WASHERMAN) RAM KHILAWAN v. 1067
UNION OF INDIA & ORS.
medically unfit for further service. There is no reference to sub- A
clause (v) of Army Rule 13(3)(III) in the order of discharge. Still
further, it is not the recital of a provision which is relevant to
determine as to whether the personnel is discharged under
clause (v) or clause (iii) of Rule 13(3)(III) of the Rules. It is
the object, language and the purport of the discharge which will B
be relevant to determine whether an army personnel had been
discharged under clause (iii) or clause (v). Clause (v) is the
residual clause when other clauses are not applicable to such
personnel. Since the discharge of the appellant is covered by
clause (iii) of Rule 13(3)(III) of the Rules, as the discharge of
C
the appellant was only on the ground of his medical unfitness
for further service, therefore, he could not be invalidated out of
service without the recommendation of the Invalidating Board.
such discharge is not legally sustainable. [Paras 8, 10 and 12]
[1072-D-G-H; 1073-A-C-G]
D
2. In terms of clause (b) of General Principles of Army
Order 46 of 1980, he is entitled to be retained for ten years
being in the rank of personnel of Other Ranks. Since, he joined
the service on October 23, 1987, he would be deemed to be
discharged only on October 22, 1997. As a consequence thereof,
the appellant became entitled to pension in addition to disability E
pension which was granted to him for a period of five years.
However, the appellant will not be entitled to arrears of salary
for the period up to the date of discharge inter alia on the ground
of no work no pay but he shall be entitled to arrears of pension
for a period of three years prior to filing of Writ Petition which
F
was transferred to the Tribunal. [Para 13, 14] [1073-H; 1074-A-
C]
Union of India & Ors. v. Rajpal Singh (2009) 1 SCC
216 : [2008] 15 SCR 879 ; Smt. Sulekha Rani v. Union
of India and Ors. Civil Appeal No. 1280 of 2019
decided on July 16, 2019 - relied on. G
Case Law Reference
[2008] 15 SCR 879 relied on Para 7
Civil Appeal No. 1280 of 2019 relied on Para 11
decided on July 16, 2019 H
1068 SUPREME COURT REPORTS [2019] 11 S.C.R.
A CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6977-
6978 of 2019.
From the Judgment and Order dated 21.10.2011 of the Armed
Forces Tribunal, Regional Bench, Lucknow in T.A. No. 1120 of 2010
and order dated 28.05.2013 in R.A. No. 03 of 2013 in T.A. No. 1120
B of 2010/order dated 30.06.2014 in M.A. No. 502 of 2014 in T.A. No.
1120 of 2010.
Lt. Col. K. Ramesh, Vibhuti Sushant Gupta, Ms. Archana
Ramesh, Himanshu Kalra, Ram Naresh Yadav, Advs. for the Appellant.
R. Balasubramanian, Sr. Adv., Yogesh Pachauri, S. K. Singhania,
C Sachin Sharma, A. K. Sharma, Mukesh Kumar Maroria, Advs. for the
Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
D 1. Delay condoned. Appeals admitted.
2. The challenge in the present appeals is to orders passed by
the Armed Forces Tribunal1, Regional Bench, Lucknow on October 21,
2011, May 28, 2013 and June 30, 2014 whereby, challenge to the
discharge of the appellant from service on August 31, 1993 remained
E unsuccessful.
3. 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
F 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, 19542. 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
G 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.
1
Tribunal
H 2
Rules
EX-SEPOY (WASHERMAN) RAM KHILAWAN v. 1069
UNION OF INDIA & ORS. [HEMANT GUPTA, J.]
4. The appellant filed writ petition before the High Court of A
Judicature at Allahabad but subsequently on commencement of Armed
Forces Tribunal Act, 2007, the writ petition was transferred to the
Tribunal, Regional Bench, Lucknow. The learned Tribunal found that
the appellant was placed in permanent Low Medical Category BEE
and was discharged from service on August 31, 1993 with only 05 years
11 months and 08 days of service. The Classified Specialist has put B
the following restrictions on the appellant:
"not be allowed to swim or work near fire or moving machinery
and also to handle firearms to ensure seizure precautions."
Therefore, he could not be employed in other sheltered C
appointment in public interest. The Tribunal found that the appellant
has been given disability pension @20% for five years.
5. Some of the relevant provisions of the Rules need to be
reproduced:
“13. Authorities empowered to authorize discharge. - (1) D
Each of the authorities specified in column 3 of the Table below
shall be the competent authority to discharge service person
subject to the Act specified in column 1 thereof on the grounds
specified in column 2.
xx xx xx E
TABLE
Category Grounds of discharge Competent Manner
authority to of
authorise discharge
discharge F
1 2 3 4
Junior xx xx xx
Commissioner
Officers
Warrant xx xx xx
G
Officer
Persons (III) (i) xx xx
enrolled under
the act who
have been
attested H
1070 SUPREME COURT REPORTS [2019] 11 S.C.R.
A (ii) xx xx xx
(iii) Having been found Commanding To be carried out
medically unfit for Officer only on the
further service. recommendation of
an invaliding Board.
B (iii) (a) Having been Commanding The individual will
found to be in Officer be discharged from
permanent low medical service on the
category SHAPE 2/3 by recommendations of
a medical board and Release Medical
when:- Board.
C (i) no sheltered
appointment is
available in the unit, or
(ii) is surplus to the
organization.
(iv) At his own request Commanding The Commanding
D before fulfilling the Officer Officer will exercise
conditions of his the power only when
enrolment. he is satisfied as to
the desirability of
sanctioning the
application and the
E strength of the unit
will not thereby be
unduly reduced.
(v) All other classes of Brigade/Sub The Brigade or Sub-
discharge. – Area Area Commander
Commander. before ordering the
F discharge shall, if the
circumstances of the
case permit give to
the person whose
discharge is
contemplated an
G
opportunity to show
cause against the
contemplated
discharge.
H
EX-SEPOY (WASHERMAN) RAM KHILAWAN v. 1071
UNION OF INDIA & ORS. [HEMANT GUPTA, J.]
6. Another relevant provision is Army Order No. 46 of 1980, A
which reads as under:
“AO 46/80 Disposal of Permanent Low Medical Category
Personnel Other Than Officers
Aim
B
1. The aim of this Army Order is to lay down implementation
instructions for the disposal of permanent low medical category
JCOs/OR in terms of Ministry of Defence Letter No. A/32395/
VIII/Org 2 (MP) (c)/713-S/A/D (AG) dated 10-5-1977 as
amended vide Corrigendum No. A/32395/X/Org 2 (MP) (c)/
7167/A/D (AG) dated 26-11-1979, reproduced as Appendices A C
and B respectively to this Order.
Retention
2. General principles
(a) The employment of permanent low medical category D
personnel, at all times, is subject to the availability of suitable
alternative appointments commensurate with their medical
category and also to the proviso that this can be justified in the
public interest, and that their retention will not exceed the
sanctioned strength of the regiment/corps. When such an E
appointment is not available or when their retention is either not
considered necessary in the interest of the service or it exceeds
the sanctioned strength of the regiment/corps, they will be
discharged irrespective of the service put in by them.
(b) Ordinarily, permanent low medical category personnel will be F
retained in service till completion of 15 years' service in the case
of JCOs and 10 years in the case of OR (including NCOs).
However, such personnel may continue to be retained in service
beyond the above period until they become due for discharge in
the normal manner subject to their willingness and the fulfilment
of the stipulation laid in sub-para (a) above." G
7. Learned counsel for the appellant relied upon judgment of this
Court in Union of India & Ors. v. Rajpal Singh3 wherein, this Court
has held that if a person is to be discharged on the ground of medical
3
(2009) 1 SCC 216 H
1072 SUPREME COURT REPORTS [2019] 11 S.C.R.
A unfitness, such discharge cannot be passed without subjecting him to
the Invalidating Board as per procedure laid down in Rule 13. The Court
held as under:
“30. A plain reading of the Army Order shows that it comes into
operation after an opinion has been formed as to whether a
B particular personnel is to be retained in service or not, if so for
what period. If a person is to be retained in service despite his
low medical category for a particular period as stipulated in Army
Order 46 of 1980, the question of subjecting him to the Invalidating
Board may not arise. However, if a person is to be discharged
on the ground of medical unfitness, at that stage of his tenure of
C
service or extended service within the meaning of the Army
Order, he has to be discharged as per the procedure laid down
in Clause I(ii) in Column 2 of the said Table.”
8. In the present case, the order of discharge is on the ground
that the appellant has been placed in Low Medical Category. The
D extract from the order of communication of discharge reads as under:
“1. The personnel mentioned in Appendix 'A' to this letter have
been placed in Low Medical Category lower than 'AYE' and
become due for x discharge from service as per policy on
discharge of permanent low medical category personnel laid down
E in Army Order 46/80. They will report to Depot Coy HQ Wing
ASC Centre (South), Bangalore-7 and SOS from service w.e.f.
the dates shown against their names. No joining time is
admissible.”
9. The argument of learned counsel for the respondents is that
F the discharge of the appellant was under clause III(v) of Rule 13(3) of
the Rules and, therefore, the question of subjecting the appellant to
Invalidating Medical Board does not arise. It is argued that such is the
case admitted by the appellant in his statutory complaint as well.
10. We have heard learned counsel for the parties and find that
G the discharge of the appellant was only under category 13(3)(III)(iii)
as he has been found medically unfit for further service. Clause (v) of
Rule 13(3)(III) would be applicable in respect of all other classes of
discharge which do not find mention in Rule 13(3)(III) (iii). The
communication of discharge from the service is on the ground that he
H has been placed in the Low Medical Category. Once he has been put
EX-SEPOY (WASHERMAN) RAM KHILAWAN v. 1073
UNION OF INDIA & ORS. [HEMANT GUPTA, J.]
in Low Medical Category, clause (iii) of Rule 13(3)(III) would be A
applicable as such clause alone deals with discharge if any personnel
is found medically unfit for further service. There is no reference to
sub-clause (v) of Army Rule 13(3)(III) in the order of discharge. Still
further, it is not the recital of a provision which is relevant to determine
as to whether the personnel is discharged under clause (v) or clause
B
(iii) of Rule 13(3)(III) of the Rules. It is the object, language and the
purport of the discharge which will be relevant to determine whether
an army personnel had been discharged under clause (iii) or clause (v).
Clause (v) is the residual clause when other clauses are not applicable
to such personnel. Since the discharge of the appellant is covered by
clause (iii) of Rule 13(3)(III) of the Rules, as the discharge of the C
appellant was only on the ground of his medical unfitness for further
service, therefore, he could not be invalidated out of service without
the recommendation of the Invalidating Board.
11. This Court in Smt. Sulekha Rani v. Union of India and
Ors.4 held that when the discharge was on the ground of medical D
unfitness, the Rule prescribes a particular procedure for discharge. Thus,
an order of discharge passed without subjecting the officer to an
Invalidating Board would be contrary to the statutory rule. The Court
held as under:
“10. After considering the facts and material before us, we are E
of the view that the discharge of the appellant's spouse without
convening an Invalidation Medical Board suffers from an
illegality. The respondents have relied upon the response
purportedly addressed by the Jawan to the notice to show cause
issued to him. The provisions Rule 13(3)(III)(v) upon which
reliance has been placed had no application to the case. It would F
not operate in an area which is covered by medical unfitness.”
12. Therefore, we find that discharge of the appellant was not
under the residual clause (v) but under clause (iii) of Rule 13(3)(III) of
the Rules. Since the discharge has proceeded without reference to
Invalidating Medical Board, such discharge is not legally sustainable. G
13. Having said so, in terms of clause (b) of General Principles
of Army Order 46 of 1980, he is entitled to be retained for ten years
being in the rank of personnel of Other Ranks. Since, he joined the
4
Civil Appeal No. 1280 of 2019 decided on July 16, 2019 H
1074 SUPREME COURT REPORTS [2019] 11 S.C.R.
A service on October 23, 1987, he would be deemed to be discharged
only on October 22, 1997.
14. As a consequence thereof, the appellant became entitled to
pension in addition to disability pension which was granted to him for a
period of five years. However, the appellant will not be entitled to arrears
B of salary for the period up to the date of discharge inter alia on the
ground of no work no pay but he shall be entitled to arrears of pension
for a period of three years prior to filing of Writ Petition No. 61717 of
2007 which was transferred to the Tribunal. The arrears of pension
be paid to the appellant within a period of six months from the date of
receipt of copy of this order.
C
15. In view of the above, the appeals are allowed.
Kalpana K. Tripathy Appeals allowed.
D
E
F
G
H
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