Case: Capt. Virendra Kumar Vs. Union of India

officer any matters adverse to him, if in his opinion, it is not in the interest of the security of the State to do so. (2) In the event of the explanation being considered by the Chief of the Army Staff unsatisfactory, the matter shall be submitted to the Central Govt. for orders, together with the officer?s explanation and the recommen?dation of the Chief of the Army Staff as to whether the officer should be: (a) called upon to retire; or (b) called upon to resign. (3) The Central Government after considering the reports the expla?nations, if any, of the officer and the recommendation of the Chief of the Army Staff, may call upon the officer to retire or resign, and on his refusing to do so, the officer may be compulsorily retired or removed from the service on pension or gratuity, if any, admissible to him. 15A. Release on medical grounds: (1) An Officer who is found by a Medical Board to be permanently unfit for any form or military service may be released from the service in accordance with the procedure laid down in this rule. (2) The President of the Medical Board shall, immediately after the Medical Board has come to the conclusion that the officer is permanently unfit for any form of military service, issue a notice specifying the nature of the disease or disability he is suffering from and the finding of the Medical Board and also intimating him that in view of the finding he may be released from the service; every such notice shall also specify that the officer may, within fifteen days of the date of receipt of the notice, prefer a petition against the finding of the Medical Board of the Chief of the Army Staff through the President of the Medical Boards: Provided that where in the opinion of the Medical Board the officer is suffering from a mental disease and it is either unsafe to communicate the nature of the disease or disability to the officer or the officer is unfit to look after his interests, the nature of the disease or disability shall be communicated to the officer?s next of him who shall have the like right to petition. (3) If no petition is preferred within the time specified in Sub-rule (2), the officer may be released from the service by an order to that effect by the Chief of the Army Staff. (4) If a petition is referred within the time specified in Sub-rule (2), it shall be forwarded to the Central Govt. together with the records thereof and the recommendation of the Chief of the Army Staff?The Central Govt. may, after considering the petition and the recommendation of the Chief of the Army Staff, pass such order as it deems fit.? 8. These two rules, so far as we are able to see, lay down the procedural basis for termination of services of Regular Commissioned Officers on account of physical disability or medical unfitness. If Rule 15 applies toEmergency Commissioned Officers, as it does, prescribes a certain procedure which must be followed. The Chief of the Army Staff must be. It satisfied that the officer is unfit to be retained in the service due to physical disability. By the way there are sedentary posts in the Army. This satisfaction is not purely subjective and only on its formation the Chief of the Army Staff shall proceed further. He may, thereafter, inform the officer concerned about the ground for release from service. Natural justice comes in at this stage. Once the Chief of the Army Staff holds that the officer?s physical disability justifies termination of service, there is another opportunity given by the Rule (Rule 15(2)) for the affected officer to make an explanatory representation to the Central Government. The orders of the Central Government, after considering the reports and the explanations, and the recommendation of the Chief of the Army Staff, will be made under Rule 15(3). This finished the exercise under Rule 15. If Rule 15Ais to be invoked in the case of the commissioned officer, the Army Chief has to make up his mind the procedure, to be followed is set out therein. A Medical Board has to examine the officer. Other procedures in keeping with natural justice are also set out. But nothing has been brought to our notice indicating that the fair procedure under Rule 15 or 15-A has been farely or at all followed. Mere injury in action does not automatically end the officer?s service. The consequence is that the order of termination of service is invalid for failure to adhere to basic procedure. Even the top boss must act according to law as lawlessness in the Defence Force is a grave risk, four-star general or foot infantory Jawan. 9. The inevitable result of the invalidation of the termination of service is that the officer comes back into service and, therefore, the salary due to him from the time of his formal release or termination down to date will have to be paid. We direct that this be done within three months from today. 10. The fact that the order of release or termination is invalid for non-compliance with the procedural requirements does not make the officer a Permanent or Regular Commissioned Officer. His services are still liable to be terminated, but the correct procedure has to be followed. It looks as if the appellant has suffered a physical disability in action and the Chief of the Army has full power to act and may either resort to Rule 15 or 15Aand deal with him on that footing. Or may allot to him some sedentary position consistent with his physical condition and his otherwise proven talent. 11. We are sure that the defence personnel are dear to the country and to the Defence Department and so a considerate disposition will be brought to bear on the dealing with the appellant Virsndra Kumar. Human resources are the real wealth of a nation.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. In accordance with the Army Instruction 13/S/65, the screening of the Emergency Commissioned Officers for grant of permanent commission commenced. The Emergency Commissioned Officers, where not found fit for the grant of permanent commission were to be released in accordance with the phased programme issued by the Army Headquarters inm No. A/11579/II/Org. 2 (M.P.) (a) Copy of the memorandum admitted to be correct is reproduced as in records of the case, only extracts have been given8. These two rules, so far as we are able to see, lay down the procedural basis for termination of services of Regular Commissioned Officers on account of physical disability or medical unfitness. If Rule 15 applies toEmergency Commissioned Officers, as it does, prescribes a certain procedure which must be followed. The Chief of the Army Staff must be. It satisfied that the officer is unfit to be retained in the service due to physical disability. By the way there are sedentary posts in the Army. This satisfaction is not purely subjective and only on its formation the Chief of the Army Staff shall proceed further. He may, thereafter, inform the officer concerned about the ground for release from service. Natural justice comes in at this stage. Once the Chief of the Army Staff holds that the officer?s physical disability justifies termination of service, there is another opportunity given by the Rule (Rule 15(2)) for the affected officer to make an explanatory representation to the Central Government. The orders of the Central Government, after considering the reports and the explanations, and the recommendation of the Chief of the Army Staff, will be made under Rule 15(3). This finished the exercise under Rule 15. If Rule 15Ais to be invoked in the case of the commissioned officer, the Army Chief has to make up his mind the procedure, to be followed is set out therein. A Medical Board has to examine the officer. Other procedures in keeping with natural justice are also set out. But nothing has been brought to our notice indicating that the fair procedure under Rule 15 or15Ahas been farely or at all followed. Mere injury in action does not automatically end the officer?s service. The consequence is that the order of termination of service is invalid for failure to adhere to basic procedure. Even the top boss must act according to law as lawlessness in the Defence Force is a grave risk,r general or foot infantory Jawan9. The inevitable result of the invalidation of the termination of service is that the officer comes back into service and, therefore, the salary due to him from the time of his formal release or termination down to date will have to be paid. We direct that this be done within three months from today10. The fact that the order of release or termination is invalid fore with the procedural requirements does not make the officer a Permanent or Regular Commissioned Officer. His services are still liable to be terminated, but the correct procedure has to be followed. It looks as if the appellant has suffered a physical disability in action and the Chief of the Army has full power to act and may either resort to Rule 15 ord deal with him on that footing. Or may allot to him some sedentary position consistent with his physical condition and his otherwise proven talent11. We are sure that the defence personnel are dear to the country and to the Defence Department and so a considerate disposition will be brought to bear on the dealing with the appellant Virsndra Kumar. Human resources are the real wealth of a nation.