Civil Appeal No 1702 of 1987
648 from the Judgment and order dated 3131987 of the Allahabad High Court in Civil Misc
Writ Petition No 5702 of 1985
Petitioner in person Lt Col KD Gupta Kuldeep Singh Additional Solicitor General CV Subba Rao and Pramod Swarup for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
This appeal is by special leave and is directed against the judgment of the Allahabad High Court dismissing the writ application of the appellant
He was granted a permanent Commission in the Indian Army in 1958 and was initially appointed as a Second Lieutenant
He obtained successive promotions to the ranks of Lieutenant Captain and Major
In December 1974 he was selected for promotion to the rank of acting Lt Colonel and was so promoted with effect from 27th February 1975
From the following year the appellant came to face a series of set backs in his service
On March 22 1976 his Brigade Commander directed the appellant to report to the Officer Commanding Military Hospital Kirkee for his psychiatric examination
He was examined by Lt Colonel Mukherjee specialist in psychiatry on 23rd March 1976 and by Surgeon Commodore D netto Psychiatry Consultant to the Indian Navy on the 26th March 1976
On the basis of their reports the appellant s medical classification was reduced from Shape I to Shape III by order dated August 13 1976
By order dated November 16 1976 the appellant was posted as GLO MajorCaptain 152 GL Sec
Type Vice Captain IK Bedi a post ordinarily held by a Major or Captain
Though there was no specific order reducing the appellant in rank from Acting Lt Colonel to that of Major he was treated as Major
On December 10 1976 appellant s classification was upgraded to Shape II and on a second medical review on September 2 1977 to Shape I
His authorities however decided the appellant to be subjected to Special Review  before restoration of the rank of Acting Lt Colonel and on October 31 1977 required the Brigadier Commander to initiate a special report and submit it to the Headquarters
The Brigade Commander recorded appreciation of the appellant s work and recommended his promotion as Lt Colonel
Yet the Army Headquarters by letters dated October 12 and November 27 1978 directed the appellant to be sent to the Military Hospital at Pune for further examination by the psychiatry consultant
It was indicated by way of 649 justification for such requirement that when the appellant was graded as Shape I an earlier incident of 1963 had been overlooked
On such examination the appellant was permanently downgraded as Shape II
The appellant filed an application under Article 32 being Writ Petition No 5302 of 1980 challenging these actions and his downgrading
A two Judge bench of this Court by judgment dated August 10 1983 allowed the same
This Court stated According to the petitioner this was done entirely without any basis and that even the clinical reports would reveal that the petitioner was perfectly fit
We do not desire to go into these claims of the petitioner since we are satisfied on the material placed before us that even the very reduction of the petitioner s rank in 1976 from Acting Lieutenant Colonel to Major was bad
Shri Abdul Khader learned counsel for the respondents explained to us that the petitioner had been reverted from the rank of Acting Lieutenant Colonel to Major for three reasons i Reduction in rank had to follow as a matter of course on placement of the petitioner in a lower medical category ii After the latest medical examination in 1978 he was not eligible to be considered for promotion for one year his earlier reduction in rank was therefore justified and iii He performed no duty for six months from March 22 1976 when he was admitted in the hospital and under the rules he stood automatically reduced in rank
This Court examined all the three points and ultimately ended by saying As stated by us earlier we find no substance in any one of the reasons mentioned by Shri Abdul Khader on behalf of the respondents for the reversion of the petitioner from the rank of Acting Lieutenant Colonel to Major
The reversion or reduction in rank cannot be justified and it is 650 accordingly quashed
The petitioner is directed to be re stored to the rank of Acting Lieutenant Colonel with effect from the date he was reverted and stripped off the badges indicating his rank
As a result of the restoration of the rank of the Acting Lieutenant Colonel to the petitioner other consequences such as consideration of the petitioner s further claims to advancement pay arrears of pay etc will have to be considered by the authority and it is directed that these claims may be considered and disposed of within a period of six months from today
 The appellant waited for a reasonable time after lodging his claim and ultimately went before the Allahabad High Court by filing an application under Article 226 of the Constitution being Writ Petition No 5702 of 1985
Before the High Court he asked for quashing of the proceedings of the Review Medical Board dated 11th January 1984 and for a declaration that he should be treated as belonging to medical category Shape I for all purposes without interruption since 2nd September 1977
He also asked for an appropriate posting considering his entitlement and other service benefits
The claim was resisted by the respondents on the ground that there was nothing wrong in the recategorisation and the directions of the Supreme Court had been fully complied with and the appellant has no subsisting grievance
On 31st March 1987 the High Court dismissed the petition
This appeal has been filed after obtaining the special leave
The appellant as on the earlier occasion argued the appeal in person and began his arguments by contending that the respondents were guilty of not giving effect to the directions contained in the judgment of this Court
When we heard the appellant we realised how very correct the observation of Chinnappa Reddy J where he re corded in the judgment of this Court were As usual with parties who argued their cases themselves he was so full of his facts and grievances big and small that we experienced for quite a while difficulty in getting a picture of the case in its proper frame
 After the matter was heard at length we found that there was absolutely no merit in the contention of the appellant that the respondents were guilty of not complying with the directions of this Court
Learned Additional Solicitor General was therefore right in taking the stand that full effect had been given to the directions contained in 651 the judgment of this Court
We would like to recall here that there were several other contentions made in the writ petition which this Court did not go into by saying that even without considering them the appellant was entitled to his relief
The appellant had moved this Court on the earlier occasion under Article 32 of the Constitution but on this occasion he went before the High Court under Article 226
Some of his allegations had already been made in the writ petition before this Court and others related to subsequent events
It is unnecessary to go into several aspects which the appellant in his anxiety had pleaded and even canvassed at the hearing
It is sufficient to indicate that the main grievance of the appellant has been against recategorisation from Shape I to Shape II
We have already pointed out that the appellant enjoyed Shape I until 1976 when he was reduced to Shape 3 in August 1976
In 1977 he was brought back to Shape I
According to the appellant there was absolutely no justification for the direction made in March 1976 to subject the appellant for psychiatric examination
Similarly when the appellant had been recategorised in September 1977 as Shape I there was no necessity to require him to be subjected to further examination at Pune
He denied the allegation that the incident of 1963 had not been taken into account while recategorising him as Shape I
According to the appellant a prejudicial approach developed against him in the Headquarters establishment without any justification and he has been unduly subjected to psychiatric examination from time to time and on the basis of the records built up against him adverse opinion has been forthcoming
To meet this objection of the appellant and remove apprehension of bias from his mind in course of hearing we suggested to learned Additional Solicitor General appearing on behalf of the respondents that the appellant may be examined by a board consisting of three experts specially constituted with an outsider as Chairman
Respondents  learned counsel after obtaining instructions accepted the suggestion
By order made on January 25 1988 this Court directed In course of hearing of the appeal we suggested to learned Additional Solicitor General appearing on behalf of the respondent to have a fresh psychiatric evaluation of the appellant by a competent body of psychiatrists by including in the board some in service and retired Army psychiatrists and some from outside
This was initially opposed by learned Additional Solicitor General by contending that it would be against the discipline of the Defence Department and would create in unwholesome 652 precedent
We adjourned the matter and gave him the opportunity to take instructions from Government and we are happy to note that on the basis of instructions he has agreed
as a special case to the constitution of such a board of psychiatrists
Appellant has also been heard in person in the matter
He has made writ submissions by way of an application we have taken into consideration
We direct that a board of psychiatrists consisting of three experts be constituted with the Professor and Head of the Psychiatrist wing of the All India Institute of Medical Sciences New Delhi Air Com
K Sethi Consultant of the Army Hospital at Delhi and Colonel MA Bhasin Senior Advisor in Psychiatry Southern Command Hospital Pune
The Head of the Department of the All India Institute of Medical Sciences as referred to above shall act as the convenor and chairman of the Board
The Board shall meet at Delhi at such place date and time as may be fixed by the convenor in consultation with the two other members
The Board shall peruse all the records relevant for the purpose of making psychiatric evaluation of the appellant and the respondents shall produce all such records as may be necessary and required for such purpose by the Board including the relevant instructions of the Defence Department in the matter of such assessment
The appellant shall appear before the Board when directed and the respondents shall take steps to ensure his availability before the Board
The report should be made available to this Court within six weeks from today
The expenses including payment if any necessary to be made to any of the experts shall be borne by respondent No 1
The evaluation shall inter alia indicate whether there was any justification to categorise the appellant as Shape II after he had been adjudged as Shape I and as to whether the present categorisation as Shape II permanent is justified
We place on record that this shall not be treated as a precedent
 The Board sent its report dated March 8 1988 after examining the appellant between 22nd February 1988 and 8th March 1988
It evolved the following procedure 653 a Each of the experts to examine the patient independently at least twice
b Each expert to maintain his own observations
c Daily observations reports of the patient to be recorded by the Senior Resident Psychiatry
d Psychometeric evaluation e Perusal of old records of hospitalisation by the three consultants after the current examination
f Maintenance of confidentiality of observation by the experts Sr
Resident and the Psychologist
g Review of the unit reports after current examination
h Joint review and report by the board on 7th and 8th March after examining all the material collected above
In paragraph 5 of the Reports the Board observed a During September 1977 when he was recommended to be upgraded to medical category S I Lt Col
KD Gupta was a symptomatic as per the medical histories examined by the board
The old medical records do not show any evidence of a psychiatric disorders between September 1977 when he was upgraded to S I and the review board which took place in November 1978 following which he was recategorised to permanent S II as per the opinion of that review board on the ground that a relapse could occur in future
b The current A04378 and DG Memorandum 97 extract attached as appendics A   B  precludes such an individual to be upgraded from medical category S II to S I c The natural history of affective psychosis MDP ICD 9 is strongly supported of the fact that relapse without 654 any precipitating cause and remission without any medical intervention can take place
 We felt that certain elucidation was necessary and requested the presence of the Chairman Professor Mohan in Court
Prof Mohan appeared in due course and with reference to what was stated in paragraph 5a he stated We were of the view that there was no material in the Medical reports justifying the recategorisation to S II from S I apart from apprehensions of relapse In answer to a question posed by learned Additional Solicitor General Dr Mohan stated During September 1977 when he was recommen ded to be upgraded to medical category S I Lt
Colonel KD Gupta was a symptomatic as per the medical histories examined by the board
We meant that there was no record in the history of medical papers to suggest that Lt Col Gupta was unwell  Upon the suggestion of the learned Additional Solicitor General Dr Mohan was asked as to whether he was of the view that the appellant was at the time of the present examination entitled to be categorised as S I and he answered
If you take the natural history of the illness it is difficult to say one way or the other because it is self limiting and phasic and after the phase is over there is no residual deficit left
The individual is as normal as anybody else is
The period between attacks varies from one individual to another from months to year    The report and the statement made by Professor Mohan make it clear that there was no justification for the appellant to be subjected to phychiatric test in 1978 following which he was recategorised as S II
We agree with the learned Additional Solicitor General that the subject is technical and ordinarily should be left to experts available in the Defence Department and the guidelines indicated by the Department should be followed
This Court has no intention to disturb the discipline of the Defence Department but on the basis of material 655 available on the record which had been partly dealt with by this Court on the earlier occasion while disposing of the writ petition and what we have now found on the basis of the report of examination by the Committee of Experts the appellant has become entitled to limited relief
Though there was no order reducing him from the rank of acting Lieutenent Colonel to Major he was treated to have been so reduced
Then followed the frequent psychiatric examinations without any real justification
These have constituted the foundation of the appellant s grievance
His recategorisation as S II in 1978 in these circumstances was without justification
He is therefore entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation continuing as S I
In a petition dated 2nd April 1988 the appellant had asked for certain directions and reliefs
The application is confused one inasmuch as arguments pleadings and prayers have been jumbled up
The appellant inter alia has asked for entitlements of promotion in view of promotions earned by his batchmates
We do not think that would be a safe guide but we do hope and trust that the respondents should consider his case for promotion with an open mind on the basis of his continuity in shape I
He has also indicated in paragraph 8 of that petition that he is prepared to be released from service after his promotional entilement is finalised and he is given his dues on such basis as may be determined
The appellant has claimed compensation which we see no basis to grant
The appeal is allowed in part and to the extent that the appellant s medical category shall be taken as being continued to be S I from 1977 and on that basis his promotional entitlement shall be finalised by the respondents within three months hence
We make it clear that it is open to the respondents to release the appellant from service after this has been done
This case may not be taken as a precedent and we reiterate that this Court would like the discipline of the Defence Department to be maintained by itself in the interest of the nation Parties are directed to bear their own costs
GN Appeal partly allowed


Summary:
This was an appeal under Section 130 E of the against the judgment and order of the Customs Excise and Gold Control Appellate Tribunal New Delhi
D The appellant imported 58 bales of Woollen rags from Canada and filed the bill of entry for release of the goods described as woollen rags
The goods were found by the Customs authorities to be acrylic rags and not woollen rags
The Collector of Customs ordered confiscation of the goods under section 111d and m of the  but in lieu of confiscation the appellants were given the option under section 125 of the Act to clear the goods on payment of redemption fine of Rs50000
The appellants appealed to the Central Board of Excise and Customs which sustained the order of confiscation but reduced the redemption fine to Rs20000 and also directed that the goods be released after they were mutilated to the satisfaction of the Collector of Customs so as to render them unfit for use except as rags and after payment of appropriate duty
The appellants moved a revision against the Board s order whereon the Customs Excise and Gold Control Appellate Tribunal passed an order directing that the goods be released on payment of customs and other related duties with countervailing duty leviable under the Central Excise Tariff and subject to Board s order about payment of redemption fine and mutilation of the goods
The appellants then moved this Court for relief by this appeal under Section 130 of the 
Disposing of the appeal the Court 602  HELD Per Ranganath Misra J on behalf of RS Pathak CJ
and on his own behalf on 17th December 1986 this Court had directed waiving of the redemption fine
The appellants complained that a part of the goods was not traceable whereupon notice was issued to the Calcutta Port Trust which was joined as respondent No 2 to the appeal
The only question surviving for examination was as to the availability of the goods return whereof had to be made to the appellants and in case the whole or part of the goods was not traceable in what way the direction of the Tribunal for return of the goods had to be worked out
605G H In view of the provisions of the Act viz sections 45 47 125 and 126 there can be little scope to dispute that until the goods are cleared for home consumption the scheme of the Act requires the goods to remain in the hands of the Customs authorities and obviously the statutory authority to account for the goods would be of the authorities under the Act charged with the responsibility of keeping the goods
606G H 19 bales were alleged to be missing and parts of some of the available goods were alleged to have been taken out and made into independent bales
These allegations were not accepted by the respondent No 1
The Respondent No 2 denied any liability
In case it was ultimately found that the Customs authorities by themselves had the total liability to account for the goods or in case their said liability had to be shared by the Calcutta Port Trust and even though one or both were liable to account for the goods and they had failed to do so in what manner the appellants would be compensated were matters which required factual consideration warranting reception of evidence
This proceeding before the Court was not appropriate for looking into this part of the grievance
In this situation the order of the Tribunal as modified by this Court for the return of the goods could not be fully given effect to
The Court considered it appropriate to require the Tribunal to finally dispose of this question
In case the goods were not finally traceable and the liability to account for the goods was fixed on one or both of the respondents the Tribunal would decide what amount of compensation in lieu of the goods should be payable to the appellants
607A E Per B C Ray J
On 17th December 1986 this Court had passed an order directing inter alia the waiving of the demand of penalty and also directing 603 the Port Trust authorities to which notice had been issued to disclose the location of the goods
The Port Trust Authorities stated in their counter affidavit that out of the 58 bales only 45 bales were landed short of 13 bales and that the Collector had confiscated the entire consignment and removed 6 bales from IKPD to their confiscated godown and balance 39 bales had been lying at different points of docks at the sole risk of the customs
610DF The appellant contended that it was prepared to pay the customs duty as demanded in compliance with the order of this Court and to take delivery of the goods but as the goods had been lost and were not traceable from the control and custody of the Customs authorities the customs authorities were liable to pay the value of 39 bales of woollen rags on Cl
F basis
The customs authorities submitted that the value of the imported goods could not be determined in this appeal as a suit had to be brought for such issue and that it was the responsibility of the Port Trust to indemnify the appellant for the loss
611C E The imported goods had been unloaded from the ship in the Customs area
The Collector of Customs had confiscated the goods
Goods in the Customs area are under the Control of the officers of the Customs as per the provisions of section 141 of the said Act
After confiscation of the goods in dispute the same had vested in the Central Government in accordance with the provisions of section 126 of the Act
The Calcutta Port Trust respondent No 2 had averred that the goods remained in the Customs area and were subsequently confiscated by the Collector of Customs
The said goods were not handed over to the custody of the Port Trust
611G H 612A B It was the Customs authorities who were in possession and control of the said goods and they were liable to pay the value of the goods to the appellant as damages to compensate the appellant
Not a single document was produced before the Court by the Customs Authorities showing that the goods had been handed over to the custody and possession of the Board of Trustees and that the Board had issued any receipt for that as required by Section 42 read with section 43 of the 
Under no circumstances could the Board of Trustees be held responsible for the loss or destruction of the said imported goods
The respondent No 1 was liable for the loss or damage caused to the appellant by the destruction of the said goods in the custody and possession of the Customs authorities
612B F It was not Possible for this Court while hearing the appeal under 604 Section 130 E of the against the order of the Appellate A Tribunal to ascertaindetermine the money value of the goods lost or destroyed from the possession and custody of the Customs authorities
The appellant might take appropriate proceedings for determination of the damages and recovery of the same in accordance with law
612F G State of Bombay now Gujarat vs Memon Mahomed Haji Hasam  relied upon by the appellant