In W.P.(C) 8155/2021-DEL HC- Fitness of armed forces personnel is of prime importance: Delhi HC orders Indo Tibetan Police Force Officer diagnosed with Alcohol Dependence Syndrome to be treated as compulsorily retired from service, sets aside Discharge Order
Justices Suresh Kumar Kait & Neena Bansal Krishna [19-04-2023]

Read Order:DILIP KUMAR Vs. UNION OF INDIA AND OTHERS

Tulip Kanth

New Delhi, April 20, 2023: Considering the fact that the petitioner, who was posted as Assistant Commandant (Group A) in the Indo Tibetan Police Force and diagnosed with Alcohol Dependence Syndrome, may be unfit to perform duty for the post he was appointed, the Delhi High Court has set aside the discharge order passed against him while noting that the punishment of removal from service inflicted upon him was too harsh.

“It is settled position that while sitting in appellate or writ jurisdiction, it is unjust to interfere in the matters pertaining to opinion of the Medical Board, especially if the opinion is rendered by the Experts in the field”, the Division Bench of Justice Suresh Kumar Kait & Justice Neena Bansal Krishna affirmed.

The petitioner was appointed as Sub-Inspector in the Indo Tibetan Police Force (ITBP) in the year 1993 and was promoted to the rank of Subedar Major and thereafter, Assistant Commandant (Group A) /General diary duty in the year 2008. The Petitioner claimed to be in Shape -1 absolute medical fitness as per the Shape system of Annual Medical Examination till the year 2014. 

On a complaint filed by the petitioner's wife alleging petitioner to be an alcoholic, he was sent to Cuttack, Orissa and was placed under Shape-2. However, again vide another opinion, respondents placed the petitioner in Shape-3 for six months. 

Against this opinion, petitioner preferred representations, but those remained unanswered. After expiry of six months, the petitioner was declared fit in Shape-1. The petitioner claimed to have met with an accident and remained absent from duty for 256 days. This period was taken as unpaid leaves for not performing any duty and the petitioner had not informed about his medical condition.

The petitioner had averred that he was placed in Shape 2 and Shape 3 on the ground that he was allegedly diagnosed with Alcohol Dependence Syndrome (ADS). Petitioner was Shape -1 in 2014 but was again Shape-2 in 2015 and 2016. But in 2017, he was recommended to be placed under Shape-5 and to be invalidated from service. 

Thereafter, the petitioner remained under observation of doctor from September 30, 2017 to October 17, 2017 and though he was found fit,  in the medical report he was again kept in Shape-5 category. The Medical Board later recommended that the petitioner should be boarded out from the services of ITBP.  The respondents directed discharge of petitioner from his service and the appeal preferred against the order was rejected by the respondents. Hence, the present petition had been filed.

The Bench took note of the Doctor’s opinion and stated that the petitioner was under treatment for alcohol dependence and was responding positively.“There is no doubt to the position that fitness of personnel of armed forces is of prime importance and to ensure their physical and mental well being, periodic medical checkups are being conducted”, the Bench said.

Perusing the different opinions rendered by the Experts,the Bench found that in different medical examinations, petitioner had been placed in Shape 1, Shape 2 and Shape 5. However, the Bench referred to the latest opinion whereby he had been found to be a patient of ADS. 

“In our considered opinion, if at this stage petitioner is shown to be suffering from ADS, with a possibility of lapse and relapse; he may not be able to perform his duties upto the required satisfaction. However, we also find that the previous reports categorically note that the petitioner has also shown withdrawal symptoms from alcohol influence”, the Bench stated.

As per the 2017 report, the petitioner was conscious, cooperative, kempt, attention and concentration well maintained and was clear with well preserved insight. In view of the aforesaid report, the Bench held that the appropriate course would have been to direct the respondents to reconsider the punishment imposed upon the petitioner. 

But in the peculiar circumstances of this case where based upon the medical opinion rendered in 2017, the petitioner was removed from service in the year 2020 and his current medical condition had been re-evaluated in the year 2023 pursuant to directions of this Court and thereby he had been made to undergo agony of long trial,the Bench did not deem it fit to relegate him to respondents for any further decision. 

“In the considered opinion of this Court, petitioner may be unfit to perform duty for the post he was appointed but certainly punishment of removal from service inflicted upon him is too harsh. This Court finds that interest of justice would be met if petitioner is inflicted with lesser punishment”, the Bench held while setting aside the impugned orders and directing that the petitioner would be treated as compulsorily retired from service.

The Bench also ordered that he shall be entitled to pensionary and other benefits from the date he was relieved from the service.