Court No. - 39
Case :- WRIT - A No. - 17517 of 2018 Petitioner :- Raj Nath Mishra Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Shiv Kant Pandey Counsel for Respondent :- A.S.G.I.
Hon'ble B. Amit Sthalekar,J. Hon'ble Jayant Banerji,J.
Heard Sri Shiv Kant Pandey, learned counsel for the petitioner and Sri Ashok Singh, learned counsel for the respondent.
The petitioner in the writ petition is seeking quashing of the order dated 15.5.2018 passed by the Armed Forces Tribunal as well as other orders dated 4.5.2018 and 17.1.2018. By the order dated 15.5.2018 the petitioner has been directed to go for a medical examination before a medical board consisting of at least five experts of different fields. However, the petitioner was discharged from service w.e.f. 30.9.1994. He filed a writ petition before the High Court being W.P. No. 31562 of 1994 which was subsequently transferred to the Armed Forces Tribunal and numbered as Transfer Application No. 1065 of 2010. The allegation of the petitioner was that he was discharged from service on the ground that he had a psychiatric ailment.
Sri Ashok Singh, learned counsel for the opposite party submits that the petitioner was not discharged on grounds of psychiatric ailment but he was discharged as per the terms and conditions of service of enrolment of Airman as shown against his name vide AFRO letter dated 19.7.1993. The orders impugned before this Court, however, show that the Tribunal on the allegation of the petitioner has proceeded on an assumption that the petitioner was discharged on the ground that he was a psychiatric patient as observed in the order dated 17.1.2018.
In our opinion, the Tribunal should have first adjudicated the validity of the discharge order itself and looked into the terms and conditions of enrolment of the petitioner as Airman instead of proceeding on allegations that his discharge was on grounds relating to psychiatric ailment. May be, that the petitioner had made allegations against some Commanding Officer but that does not in itself reflect a mental ailment. The question that still remains to be decided is as to why the petitioner was discharged from service and whether his discharge was valid and in accordance with law, and, whether the award of censure and reproof were in accordance with law? However, we find that the Tribunal has proceeded tangentially on an exploration whether the petitioner is suffering from some mental ailment in fact the petitioner's third relief was in the nature of a writ of mandamus not to send him to the Psyche Ward in the service hospital which was also his apprehension as stated in para 24 of that writ petition ( T.A. No. 1065 of 2010). The Tribunal has proceeded thus on the ground that the petitioner was discharged as Psychiatric patient. May be also that the petitioner had himself stated in his representation that he may be referred to a Psychiatric Centre of the All India Institute of Medical Sciences, New Delhi for determining whether he was suffering from "PARANOID STATE". However, the learned counsel for the parties have referred to the order of discharge that has been enclosed as Annexure-4 to the writ petition in which it is stated that the petitioner is being discharged from service on fulfilling the condition of their (sic) enrolment w.e.f. the date as shown against their (sic) names. This order nowhere reveals that the petitioner was discharged as Psychiatric patient. Therefore, the Tribunal should have, infact first tested the validity of the orders impugned in the Transfer Application instead of accepting the petitioner's request for reference to Psychiatric Centre. The Tribunal should have also recorded the findings as to what was the issue involved in the case which was necessary for decision and should not have merely on the petitioner's application referred him to a five member Medical Board without specifying as to what the five member Board was required to examine the petitioner about. Infact, in our opinion no purpose would be served in psychiatric examination of the petitioner, as of today, when he is 74 years of age with reference to the factors which led to the imposition of penalty and his consequential discharge from service more than 14 - 15 years ago.
We, therefore, stay the operation of the orders dated 17.1.2018, 4.5.2018 and the order dated 15.5.2018 in so far as it directs the constitution of the Medical Board. We further direct the Tribunal to decide the case of the petitioner on merit examining the validity of the discharge order and thereafter, pass appropriate order in accordance with law.
The order dated 15.5.2018 shall be subject to any final judgment and order which may be passed by the Tribunal on the merits of the Transfer Application.
Considering that the original writ petition was of the year 1994 we also direct the Tribunal to decide this case expeditiously, preferably within a period of four months from the date of receipt of a certified copy of this order.
It is made clear that no unnecessary adjournment shall be granted to any of the parties.
Order Date :- 18.8.2018 Vandana