Case: EX.SEPOY (WASHERMAN) RAM KHILAWAN Vs. UNION OF INDIA

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 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 (Rules). 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 appellant filed writ petition before the High Court of 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 the following restrictions on thebe allowed to swim or work near fire or moving machinery and also to handle firearms to ensure seizurehe could not be employed in other sheltered appointment in public interest. The Tribunal found that the appellant has been given disability pension @20% for five years.In the present case, the order of discharge is on the ground that the appellant has been placed in Low Medical Category. The extract from the order of communication of discharge reads asThe personnel mentioned in Appendix ‘A? to this letter have been placed in Low Medical Category lower than ‘AYE? ad become due for x discharge from service as per policy on discharge of permanent low medical category personnel laid down 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.?

Reasoning:
10. We have heard learned counsel for the parties and find that 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). 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 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 (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 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.This Court in Smt. Sulekha Rani v. Union of India and Ors. (Civil Appeal No. 1280 of 2019 decided on July 16, 2019) held that when the discharge was on the ground of medical 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 asAfter considering the facts and material before us, we are of the view that the discharge of the appellants 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 not operate in an area which is covered by medical unfitness.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.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 service on October 23, 1987, he would be deemed to be discharged only on October 22, 1997.