IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 681 of 2004 Reserved on: 22.07.2008 Date of decision: 22.08.2008 Chaman Lal … Petitioner Versus State of H.P. and others . … Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the Petitioner: Mr. Dalip Sharma with Mr. Umesh Kanwar, Advocates. For the respondents: Mr. R.M. Bisht and Mr. Rajesh Mandhotra, Deputy Advocate Generals. Per V.K. Ahuja, J. : This is a civil writ petition filed by the petitioner under Articles 226/227 of the Constitution of India, challenging the order passed by the learned H.P. State Administrative Tribunal, on 13.8.2004, dismissing the application partly filed by the petitioner under Section 19 of the Administrative Tribunals Act. Briefly stated, the facts of the case are that the petitioner filed an application under Section 19 of the Administrative Tribunals Act before the learned Tribunal challenging the order passed by the respondents sending the petitioner on invalid pension. The petitioner alleged that he was appointed as a constable on 22.12.1986 and was posted in 3rd Battalion, Pandoh. He alleged that he was 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 attached with one Garba Ram, Inspector and had brought to the notice of high ups some irregularities committed by said Garba Ram. The petitioner was sent for medical examination by a Board who opined after examining the petitioner that he was suffering from temporary Schizophrenia and thereafter, the petitioner was retired on medical grounds with effect from 20.7.1994 as per the order passed by the respondents. The petitioner alleged that he has filed an appeal before the appellate authority but neither the said appeal was decided nor any action was taken on it. It was further alleged that the Accountant General had returned pension papers of the applicant on the ground that in case of temporary case of Schizophrenia is curable and as such the applicant cannot be retired on this ground. The petitioner alleged that he was fully fit to discharge his duties and, therefore, the impugned order sending him on invalaid pension is liable to be set aside. The petitioner filed Original Application before the learned Tribunal which took reply from the respondents in which they pleaded that the Medical Board had opined that the applicant was heading toward “Frank Schizophrenia” and the Board was of the opinion that the person under reference is temporarily unfit to discharge his duties effectively may be of any nature. The applicant was again got medically examined from a Medical Board at Zonal Hospital, Mandi, on 9.6.1994 and the Board opined that the applicant is medically unfit at present as he is under treatment in the Psychiatry O.P.D. of Zonal Hospital Mandi as a case of Schizophrenia. It was further opined that Schizophrenia was treatable just like other physical illness, however, the possibility of relapse in later life, inspite of best treatment cannot be ruled out and keeping in view the nature of duties of a constable which 3 are sensitive, the petitioner was rightly sent on invalid pension. It was also pleaded by the respondents that the appeal filed by the petitioner was dismissed by passing a speaking order dated 18.5.1995 and the order sending the applicant on invalid pension has been upheld. The learned Tribunal passed a detailed order referring to all the opinions of the different Medical Boards and accordingly, held that the impugned order dated 20.7.1994 affirmed on appeal does not suffer from any illegality and the Original Application preferred by the petitioner was dismissed. We have heard the learned counsel for the parties and have gone through the record. The main ground taken by the learned counsel for the petitioner was that papers for release of gratuity have been sent back by the Accountant General on the ground that the medical certificate uses the term temporarily and not permanently as provided for in Rule 38 of CCS (Pension) Rules and as such, the petitioner could not have been sent on invalid pension. Thus, it was submitted that the impugned order was liable to be set aside. On the other hand, the learned Deputy Advocate General had submitted that not only the first medical report but other medical reports were also considered and keeping in view the nature of the disease from which the petitioner was suffering and keeping in view the nature of the duties of a constable who has to handle fire arms also and perform duties in sensitive areas, the impugned order does not suffer from any illegality. We have gone through the order passed by the learned Tribunal in which they have referred to the opinion of the Medical Board dated 9.6.1994 which had opined that the petitioner is medically 4 unfit at present as he is under treatment in the Psychiatry O.P.D. of Zonal Hospital, Mandi, as a case of Schizophrenia. It was also opined that Schizophrenia is treatable just like other physical illness. However, the possibility of relapse in later life, inspite of best treatment cannot be ruled out. These are findings of fact recorded by the learned Tribunal after referring to the opinion of the Medical Board and they had concluded that keeping in view the nature of the ailment, the possibility of relapse cannot ruled out. The mere fact that the word ‘permanent’ was not used, as was sought to be urged by the learned counsel for the petitioner, as required under Rule 38 of the CCS (Pension) Rules, is not sufficient to hold that the petitioner cannot be sent on invalid pension. The opinion of the Medical Board was considered by the learned Tribunal that the petitioner was medically unfit to discharge his duties effectively may be of any nature. It is not for the Accountant General to opine if the petitioner could be sent on invalid pension or not and the word ‘permanently’ as used in Rules 38 of the CCS(Pension) Rules, cannot be so strictly observed so as to hold that the opinion of the Medical Board should be ignored that the petitioner was medically unfit to perform his duties of any nature. The Accountant General was not sitting in appeal against the order passed by the Disciplinary Authority affirmed by the appellate authority and it can only give its opinion as to whether gratuity was payable to the petitioner as per rule or not. Therefore, the comments made by the Accountant General that the petitioner could not have been sent on invalid pension cannot be said to be correct. The rules have to be read reasonably and a meaning has to be given which can be said to be correct in view of the facts and 5 circumstances of the case. The opinion of the Medical Board if read as a whole will clearly show that the petitioner was unfit to perform his duties and keeping in view the nature of the duties to be performed by a constable, it cannot be said that a person suffering from Schizophrenia should be allowed to be continued in service. In passing the impugned order, the Disciplinary Authority had also considered the question that the petitioner’s conduct in sending the registered parcels containing 3 live cartridges of .303 to the President of India in the month of May, 1994. Prior to the passing of the order on 20.7.1994 and keeping in view the totality of the circumstances including the reports of the Medical Board, the order passed by the Disciplinary Authority sending the petitioner on invalid pension cannot be said to be suffering from any illegality calling for an interference by this Court. The learned Tribunal in our opinion had considered the relevant rule, the opinion of the Medical Board in its right perspective and had passed an order dismissing the application filed by the applicant/petitioner, which order does not suffer from any illegality. Insofar as the interpretation of the term ‘permanent’ given in Rule 38 which in the opinion of the Accountant General had disentitled the petitioner to gratuity, the said relief was granted to the petitioner by the learned Tribunal but it had refused to grant him further relief of reinstatement in service. The order passed by the learned Tribunal giving directions for payment of gratuity do not call for an interference by this Court. However, in regard to the relief of pension it was observed that the applicant may be considered for the grant of invalid pension subject to general rule of minimum qualifying service and if the petitioner was not entitled to any pension since he had not rendered 6 service for nearly ten years only that question shall be considered by the respondents and if entitled to pension, the petitioner shall be entitled to the same, as directed by the learned Tribunal. However, in case the petitioner is found not entitled to any pension, we are of the opinion that the petitioner should be paid lumpsum amount as has been granted by the Apex Court in some of the cases. We may make a reference to the decision of the Apex Court in Management of Aurofood Pvt. Ltd. Vs. S. Rajulu, 2008(6) Scale 109, in which the learned Single Judge of the High Court had observed that the misconduct even if held to be proved amounted to the use of ‘unparliamentary language’ and was trivial in nature and directed the reinstatement of the employee who was working as a Packer with the appellant company. The appeal filed by the appellant was dismissed by a Division Bench. The Apex Court held that in the facts and circumstances of the case, the respondent employee was not reinstated in service. However, it was directed that a sum of Rupees Ten Lacs be paid as compensation as full and final settlement with respect to his entire claim. The trend of the latest decision of the Apex Court is that in case the employee cannot be reinstated and granted back wages due to the fact that he had not worked for these years and the case has been decided after sufficiently long time. Therefore, in appropriate cases lumpsum amount can be directed to be paid to him keeping in view the above decision of the fact that the petitioner was prima facie not held entitled to any pension. This Court even while allowing the writ petition can mould the relief to be granted in the facts and circumstances of each case. In the present case, as observed above, the petitioner had sent three live cartridges to the President of India. This if true would amount 7 to gross misconduct. Even if we were to set aside the impugned order, the respondent would have the right to enquire into this matter and after holding an inquiry, take suitable action. The said incident took place in the year, 1994. We are now in the year, 2008. The petitioner admittedly, suffered from schizophrenia for some time. Therefore, we are of the considered opinion that no order can be passed reinstating him in service and we can only grant monetary relief to the respondent. We are of the opinion that in case no pension is payable to the petitioner, which question shall be examined by the respondents, he shall be entitled to lumpsum amount of Rs.2,00,000/- in lieu of the service rendered by him. The petition is allowed in view of the above terms. No order as to costs. ( Deepak Gupta ), Judge August 22, 2008 ( V.K. Ahuja ), (BSS) Judge 8