Microsoft word - cav ta 14-2010 mcnew

IN THE ARMED FORCES TRIBUNAL
REGIONAL BENCH, GUWAHATI.
T.A. NO. 14 OF 2010
(Arising out of Writ Petition (C) No. 1911/2007)
HON’BLE MR. JUSTICE H.N.SARMA, Member (J)
HON’BLE CMDE MOHAN PHADKE (Retd), Member (A)
Lt.Col( retd) G.C.L.Arokiadas Son of Late S.Guru swami Station Cell HQ 51 SUB AREA Narengi Cantt. PO Satgaon,Guwahti-781027,Assam. Mr.A.Ahmed Legal Practitioner For Appellant. -Versus-
Represented by the Secretary to the Govt. of India, Ministry of Defence South Block, New Delhi-1. -In –Chief, Eastern Command Fort William, Kolkata-21. Military Secretary’s Branch Army Headquarters DHQ PO New Delhi-110 011. Page 1 of 19
AG’s Branch L Block, AHQ- DHQ Post Office New Delhi-110011. Medical Services AG’s Branch L Block AHQ,DHQ P) New Delhi-110 011. HQ 101 Area, Happy Valley Shillong Meghalaya. Narengi Cantt PO Satgaon,Guwahti-781027. : 24-08-2011
Date of Judgment
& Order : 02-09-2011

JUDGMENT & ORDER
( Cmde Mohan Phadke)
The petitioner/appellant, Lt.Col. (Retired) G.C.L.Arokiadas, was commissioned in the Indian Army (Rajputana Rifles) as 2nd Lt. in 1976. He became due for retirement from the Army Service after attaining the age Page 2 of 19
of superannuation on 31.12.2006 (AN) vide Military Secretary’s Branch (MS Retirement) letter No.30002 /Dec.2006/Inf/MS-7A dated 30.12.2005 (Annexure-G at Page-42 of the writ petition). On 23.03.2005, however, the petitioner was admitted to 151 Base Hospital, Basistha and discharged from there on 24.7.2005 vide hospital discharge slip at Annexure-A. As per Sl.22 of the said hospital discharge slip, the petitioner’s case was “…. A diagnosed case of (1) ALCOHOL DEPENDENCY
SYNDROME (2) DIABETES MELLITUS (TYPE-II) in low med
classification S3 (Temp) and P3 (Temp) since Nov.2003.
Presently admitted on 23rd Mar 05 with relapse of alcohol
abuse. Treated with in patient detoxification and deaddiction
measures incl impulse control ( with Cap Fluoxetine) and
anticraving agents ( acamprosate) IMB held on 21 Jul 05 and
patient placed in low medical classification S5 and P2 (
Perm) and upgraded to P1 for OBESITY….”
The wife of the petitioner then filed a writ petition being WP(Crl)14/2005 alleging that her husband was bodily lifted and placed in isolation in the Psychiatric Ward of the Military Hospital, Basistha. It was also alleged that her husband was kept under surveillance by four soldiers of the Indian Army and that he was denied free movement. The respondents had contested the case Page 3 of 19
by contending that her husband had, of late, been displaying abnormal conduct and that he was suffering from alcohol dependence syndrome which had required his hospitalization. On hearing the matter the Division Bench of the Gauhati High Court, vide order dated 29.6.2005, directed that the petitioner be sent either to
the All India Institute of Medical Sciences, New Delhi (AIMS) or the National Institute of Mental and Neurological Science at Bangalore( NIMHANS). Pursuant to the order of the Court, the Respondents on 17.11.2005 addressed a letter to the authorities of NIMHANS, Bangalore, referring the petitioner and his case for evaluation. Thereafter, the Medical Superintendent of NIMHANS by communication dated 27.1.2006 forwarded to the Respondents a copy of the medical report, which was to the effect that assessment of the petitioner for a period of over 10 days as an in-patient, did not disclose any evidence of abnormal behaviour or any alcohol NIMHANS in the report dated 27.1.2006 also recorded their opinion that on the basis of the case history of the petitioner as collected from his wife as well as the petitioner and, based on the assessment made, the Page 4 of 19
petitioner does not suffer from any psychiatric disorder including alcohol dependence syndrome. Earlier, the petitioner had on his own gone to the National Drug Ghaziabad, and was referred to Medicare Diagnostic Centre. After due diagnosis, the aforesaid Medical Diagnostic Centre found him fit for all purposes vide their report at Annexure- C and D of the petition, as mentioned in paragraph 12 of the petition. The medical certificate dated 27.01.2006 along with the clinical report of the Department of Neuro- chemistry of NIMHANS Bangalore is at Annexure-H (Pages 47 to 50). In the meanwhile, an Invaliding Medical Board was held on 21.7.2005 at 151 Base Hospital C/O 99 APO resulting in the petitioner being recommended to be invalided out of service as evidenced from the Military Secretary’s Branch, MS Retirement, Army Headquarters letter No.30006 /622 /MS/ A dated 24 Mar 2006 (Annexure-J). Pursuant to the recommendation of the said Invaliding Medical Board, the competent authority had approved the invalidment of IC-36817 Lt.Col. GCL Arokiadas Inf of Station Cell Hq 51 Sub Area on medical ground. The aforesaid invalidment order (Annexure-J) Page 5 of 19
referred to AG’s Br.letter No.76101/1536/DGMS-5(A) dated 13 MAR 2006 which forwarded the Invaliding Medical Board Proceedings( IMBPs) dated 21 Jul 2005 in respect of the above mentioned officer. When the petitioner once again approached the Gauhati High Court, the Hon’ble Court finally heard the matter on 16.8.2006 and directed the Army authorities vide Judgment and order dated 17.8.2006 (Annexure K) to reconvene the Medical Board for re-examination of the petitioner. In the above context, relevant portions of the said Judgment and order dated 17.8.2006 of the Hon’ble Gauahti High Court are extracted herein below:- “……. A Division Bench of this Court by
order dated 29.6.2005 disposed of the writ
petition filed by the wife of the present petitioner
by directing that the present petitioner be sent
either to the All India Institute of Medical
Science, New Delhi ( AIMS) or the National
Institute of Mental and Neurological Science at
Bangalore ( NIMHANS).Acting pursuant to the
order of this Court, the Respondents on
17.11.2005 addressed a letter to the authorities of
the
NIMHANS,
Bangalore
referring
petitioner
evaluation.
Thereafter, the Medical Superintendent of
NIMHANS by a communication dated 27.1.2006
forwarded to the Respondents a copy of the
medical report, which was to the effect that
assessment of the petitioner for a period of over
10 days, as an inpatient, did not disclose any
evidence of abnormal behaviour or any alcohol
withdrawal symptom. The Medical Specialists of
NIMHANS in the report dated 27.1.2006 also
recorded their opinion that on the basis of the
case history of the petitioner as collected from
his wife as well as the petitioner and based on the
assessment made, the petitioner does not suffer
Page 6 of 19
from any psychiatric disorder including alcohol
dependence syndrome.”
3. While the aforesaid developments were going
on, certain facts and events that had occurred
parallely are necessary to be noticed by this
Court at this stage. It appears that on 21.7.2005,
the Respondents convened an Invalidating
Medical Board to examine the petitioner on the
basis of a legal opinion obtained by them as to
the permissibility of convening the said Board in
view of the order of the Court dated 29.6.2005
passed in WP(Crl)14/2005. Another significant
fact that must be taken note of is that there is an
opinion recorded in the file produced by the
learned CGC that the Invalidating Board should
be convened after the report of the Medial
Specialists in the NIMHANS is obtained.
However, it appears that the said opinion was
departed from in view of the legal opinion
received to the effect that it would be permissible
to hold the proceedings of the Invalidating
Medical Board. Thereafter, the Board recorded
its opinion on 21.7.2005 that the petitioner was
suffering from alcohol dependence syndrome
apart
diabetes.
Consequently,
impugned order dated 4.3.2006 was passed
invalidating the petitioner out of service on
medial ground, after obtaining the necessary
concurrence of the higher authorities with
regard to the opinion tendered by the
Invalidating Medical Board. It is the validity of
the aforesaid action of the respondents taken in
the circumstances noted above that has been
called into question in the present writ petition.
4. The arguments advanced by the learned
counsels for the parties have, indeed been short
and precise. Shri Ahmed, learned counsel for the
petitioner contends that the impugned order
dated 4.3.2006 is wholly contrary to the order
dated 29.6.2005 passed by this Court in WP(Crl)
14/2005. Shri Ahmed, learned counsel for the
petitioner has further contended that the facts of
the case make it abundantly clear that the Army
Authorities in the present case had acted in
undue haste. In convening the Invalidating
Medical Board and thereafter, in invalidating
the petitioner from active service. On the other
hand, Shri N.Bora, learned CGC has vehemently
contended that the proceedings of the Medical
Page 7 of 19
Board were held strictly in accordance with the
provisions of the Army Act, Rules and the norms
in force and no infirmity, whatsoever, had
occurred in the process. Shri Bora has further
argued that the order dated 29.6.2005, referring
the petitioner for examination and evaluation by
the specialists in NIMHANS, was passed by this
Court in the context of a Habeas Corpus petition
and there was no embargo put on the convening
and holding of the Invalidating Medical Board
by this Court. Shri Bora, leaned CGC has also
assailed the opinion of the Medical Specialists of
NIMHANS by contending that the opinion
recorded was on the basis of the information
provided by the petitioner and his wife and that
such opinion was without any reference to the
long history of alcohol dependence of the
petitioner which has commenced way back in the
year 2003.
5. The rival submissions advanced on behalf of
the respective parties have been duly considered
by the Court. The pleadings made in the writ
petition, counter affidavit of the Respondents as
well as the records, in original, as made available
to the Court have been duly perused and
considered.
At the outset, it must be made clear that
evaluation of medical condition of a serving
officer in the Indian Army, in order to determine
the fitness of such officer or continuance in the
service, must be necessarily made by the Army
Doctors. Civilians Doctors and their opinions
may not ordinarily have any role to play in this
regard. The question involved i.e. fitness for
continuance in service must also necessarily be
decided by application of the standards
prevalent in the Armed Forces. A perusal of the
records in original including the proceedings of
the Invalidating Medial Board, leaves the Court
satisfied that the proceedings of the said Board
was indeed conducted in accordance with the
Act, Rules and the norms in force.
However, that will not be all. This Court has
noticed that the Invalidating Medical Board was
convened on 21.7.2005 even before a reference of
the case of the petitioner to the Medical
Page 8 of 19
Specialists at NIMHANS or AIIMS was made on
the basis of the direction issued by the Division
Bench of this Court on 29.6.2005. While it will
not be correct for this Court to express its views
on the correctness of the legal opinion obtained
by the Respondents on the basis of which the
Invalidating Medical Board was convened, the
order of the Court dated 29.6.2005 in WP (Crl)
14/2005 referring the case of the petitioner to the
Medical Specialists at NIMHANS/AIIMS cannot
be altogether ignored. Though it is also correct
that the order dated 29.6.2005 passed by this
Court was in the context of a Habeas Corpus
petition where the invalidation of the petitioner
on medical ground was not in issue, the question
that confronts the Court is what value or
importance should be attached to the opinion of
the Doctors at NIMHANS to the effect that the
petitioner does not suffer from any alcohol
dependence syndrome.
7. By order dated 29.6.2005 passed in
WP(Crl)14/2005 the Division Bench of this Court
had attempted a resolution of the two conflicting
versions with regard to the medical condition of
the petitioner. This was sought to be done by
making a reference of the said question to a
Medical Institute of high repute. A correct
answer, on an objective determination of the
issue, was bound to have a vital role on the
suitability of the petitioner to continue in
Military Service. Viewed from the aforesaid
perspective, the reference made to the Medial
Specialists and the report submitted cannot be
brushed aside by the court merely because at the
time in which the said reference was made, the
invalidation of the petitioner was not an issue.
NIMHANS is one of the most reputed Mental
Institutes in the Country. Judicial notice of the
said fact can be taken and there is also no
dispute between the parties on the said score. It
will, therefore, may not be incorrect for the court
to give due respect and primacy to the
professional opinion rendered by specialists of
such a reputed Mental Institute. The opinion of
the Medical Invalidating Board convened and
conducted by the Army authorities and the
report of the Specialists of NIMHANS give rise
Page 9 of 19
to two conflicting versions or opinion with
regard to the medial condition of the petitioner.
Out of the aforesaid two conflicting versions,
only one version can be correct. Depending on
which is correct version the respective stands
taken by the parties before the Court will stand
vindicated.
conflicting
versions
emanating in the instant case will have to be
reconciled. The only way such reconciliation can
be made would be by means of a direction to the
Army authority to re-reconvene a Medical Board
for reexamination of the petitioner. Such Medial
Board though, in view of the facts of the case,
should consist of a Civilian Expert, yet this
Court, at this stage, is refraining from issuing
any direction for inclusion of a Civilian Doctor
as the Court has full faith in the high traditions
of the Indian Army. The Medical Board to be
constituted on the basis of the above direction
will perform its task in an unbiased and
dispassionate manner within a period of one
month from today. The petitioner will appear
before the Respondents within 15 (fifteen) days
and thereafter appear before the Board as soon
as the same is constituted and a date for holding
the re-medical examination of the petitioner is
fixed. Once the opinion of the Medical Board is
received, the Respondent authority will proceed
to pass further orders to grant such relief, if any,
as may be found due in the light of the opinion
rendered by the reconstituted Board.
8. Consequently, the writ petition shall stand
answered and decided in terms of the above.”
5. Pursuant to the direction of the Hon’ble Gauhati High Court the petitioner was admitted to the Army Base Hospital, Delhi Cantonment on 25.09.2006 and subsequently transferred to the Army Hospital(R&R), Delhi Cantt on 20.10.2006 from where he was discharged on 28.10.2006. He was examined by Brigadier Sudarsanan, Consultant (Psychiatry), and the Page 10 of 19
report is at Annexure-L to the petition. The opinion of the Consultant (Psychiatry) is given at page 75, (Annexure-L) of the petition which reads as follows: “OPINION
1. This is a case of Alcohol Dependence
Syndrome - presenting with long standing abuse of
alcohol including day time drinking, several episodes of
alcoholic intoxication and related misconduct, multiple
hospitalization following alcoholic excesses, alcohol
withdrawal symptoms, probable target involvement and
alcohol related socio occupational deterioration.
2. It is evident from the foregoing longitudinal history
and clinical findings the opinion of the Medical Board
NIMHANS Bangalore is factually incorrect as they did
not access crucial and mandatory longitudinal medical
history well documented from the Army Medical
authorities which was easily available on demand.
3. Presently, as the patient remained abstained from
alcohol for past few months target organ involvement,
especially liver and pancreatic functions have reversed
to normal limits. However, significant cerebral atrophy
not consistent with his age persists. Fortunately his
cognitive functions and personality are well preserved.
4. Keeping in view his current status of remaining
abstinent for several months and his date of retirement
only two months away (31 Dec 06) and to avoid any
adverse impact on his post retirement rehabilitation
related to his invalidment, he is now recommended to
be placed in Med Cat S2 ( Permanent) and be released in
same Med Category.
Adv. To strictly abstain from Alcohol/Substance of
abuse.
Diag- ALCOHOL DEPENDENCE SYNDROME CURRENTLY
ASBTINENT (ICD F 10.20)
Sd/ S.Sudarsanan
Brig Consultant(Psychiatry)”

Page 11 of 19
6. As per the aforesaid report, the petitioner was recommended to be placed in medical category S-2(Permanent) and released in the same medical category. Col. AD Mathur, Senior Adviser (Medicine), who also examined the petitioner, also recommended the petitioner to be in Medical Cat P2 for diabetes (Annexure- L page 76 of the writ petition refers). Further, as evidenced from Annexure–O (page 86) of the petition, a Review Medical Board was convened as per the direction of the DGAFMS pursuant to order of the Hon’ble High Court. The note endorsed at Annexure-O ( page 86) reads “OFFICE OF THE DGAFMS/DG-3A
INVALIDING MEDICAL BOARD: LT COL GCL
AROKIADAS
1. Reference our note No.9450/RMB/DGAFMS/DG-3A dt.19
Sep 2006.
2. As per direction of DGAFMS and Gauhati High Court
orders, a Review Medical Board in respect of IC-36817X
Lt.Col.Arokiadas was convened at Army Hosp ( R & R)
Delhi Cantt. after obtaining the opinion of Sr.Adviser
(Psychiatric) Base Hospital and Delhi Cantt.
3. Review Medical Board proceedings held on 27 Oct 2006
at Army Hosp ( R &R) Delhi Cantt in respect of IC
36817X Lt.Col Arokiadas of Stn Cell HQ 51 Sub Area
approved by DGAFMS are forwarded herewith for further
necessary action.
Sd/A.K.Verma
Dir AFMS(Health)

DGMS(Army/5A)
DGAFMS/MA (Pens)”
Page 12 of 19
The opinion recorded by the Medical Board at Appendix-A of the Medical Board Proceedings at Annexure-L (Page 85 of the petition) reads as follows : OPINION OF THE REVIEW MEDICAL BOARD IN
RESPECT OF IC 36817X LT.COL (RETD) GCL
AROKIADAS HELD AT ARMY HOSPITAL (R&R)
DELHI CANTT.-10 ON 27 OCT 2006.
1. The officer is an established case of alcohol
dependence syndrome in medical category S2
(permanent) invaliding medical board HELD on
21 July 2005 had recommended S5 (Permanent).
2. He has had multiple admissions to various
hospitals
alcoholic
intoxication.
executive
(AFMSF-10)
unsatisfactory,
3. Experts at NIMHANS have opined on the
individual without taking into cognizance of the
facts contained in previous medical records.
documents
interviewed the officer and is of the opinion that
the IMB held on 21 July 2005 and accepted by
the DGMS (Army) on 10 Mar 2006 is in order in
all aspects.
Sd/A.K.Dubey Sd/SR Mehta
Sd/S.K.Kaul
Maj Gen Maj Gen
For Sr.Const.Surgery Sr.Const(Medicine) For DGHS
Member-I Member-II Presiding Officer.”
Aggrieved by the decision of the said Review Medical Board, the petitioner filed writ petition being WP(C) 1911/2007 before the Gauhati High Court with a view to seek the setting aside and quashing of the Review Medical Board decision dated 27.10.2006 (Annexure-N) which upheld the earlier opinion of IMB of 21.7.2005 and Page 13 of 19
(Annexure-O) as well as the Invalidment certificate dated 24.03.2006 (Annexure-J). The petitioner also sought the issuing of a direction to the Respondents to treat the superannuation with effect from 31.12.2006 and consequently to pay him the arrears of pay and allowances with effect from April 2006 to December 2006 viz. date of actual retirement. The instant petition was transferred to this Tribunal for adjudication. We have heard Mr.A.Ahmed, learned counsel Mr.D.C.Chakraborty, learned CGSC appearing for the respondents. We have also examined the pleadings in the backdrop of the Judgment and Order dated 17.8.2006 of Hon’ble Gauhati High Court whereby the petitioner was directed to be re-examined by a Medical Board in view of the conflicting medical opinions of medical experts from 10. As discussed above, the Respondents, in following the directive of the Gauhati High Court, appear to have first referred the matter to Brig. Sudarsanan, Consultant (Psychiatry) for examination with reference to Page 14 of 19
the NIMHANS report. After discussing the case in detail in his summary and opinion, which runs into about 3 pages (pages 73-75 of the petition), Brig. Sudarsanan, had recommended the petitioner to be placed in Med Cat S2 (Permanent) and be released in same Med Category. The case was also referred to the Senior Adviser (Medicine) whose report is at Page 76 of the petition. The Review Medical Board was then convened with reference to the directive of the DGAFMS and Gauhati High Court as well as the report of the Senior Adviser (Psychiatry) Army Base Hospital, Delhi Cantt. The said Review Medical Board, however, recorded a very sketchy opinion (Appendix-A, Page 85 of the petition) which does not reflect any application of mind. The opinion does not refer to, or touch upon, the detailed opinion of Brig.Sudarsanan, Consultant (Psychiatry) and record any reason whatsoever for not accepting his recommendation to place the petitioner in Medical Category S2 (Permanent). In his opinion Brig.Sudarsanan, Consultant (psychiatry) had, in fact, quite cogently stated “Keeping in
view his current status of remaining abstinent for several months
and his date of retirement only two months away (31 Dec 06) and to
avoid any adverse impact on his post retirement rehabilitation
related to his invalidment, he is now recommended to be placed in
Page 15 of 19
Med Cat S2 (Permanent) and be released in same Med Category.” In
fact, this recommendation received further support from “recommended to continue in medical category P-2 for
diabetes”
11. It is also pertinent to note that both Brig.Sudarsanan, Consultant (Psychiatry) as well as Col.A.D.Mathur, Senior Adviser (Medicine) have observed and recorded that the petitioner was currently abstinent. Whereas Brig.Sudarsanan, Consultant (Psychiatry) has mentioned his current status as “remaining abstinent
for several months”, Col.A.D.Mathur has mentioned
“currently abstinent in the protected environment”.
Therefore, both the reports quite clearly establish the fact that the petitioner was at the material time abstaining from alcohol. This opinion, in fact, concurs with the finding of the expert at NIMHANS which was to the effect that assessment of the petitioner for a period of over 10 days as an ‘in-patient’, did not disclose any evidence of abnormal behaviour or any alcohol withdrawal symptom. The Medical specialists of NIMHANS in the report dated 27.1.2006 also recorded their opinion that on the basis of the case history of the petitioner as collected from his Page 16 of 19
wife as well as the petitioner and, based on the assessment made, the petitioner does not suffer from any syndrome. Bearing this in mind, the report of the Review Medical Board (Appendix A, Page 85 of the petition), which does not record any reason whatsoever and yet differs from the above medical experts which include Specialists from the Army, cannot be accepted. The opinion of the Review Medical Board does not inspire confidence as it does not give any reason whatsoever for differing with the recommendation of the aforesaid medical experts to place the petitioner in Medical Category S2 (permanent). Finding of the Review Medical Board which blindly agrees with the recommendation of the Invaliding Medical Board to release the petitioner in Medical Category S5 (permanent) in utter disregard of the opinion of several established and acknowledged medical experts is thus liable to be rejected for lack of objectivity and reason. With the rejection of this opinion the other medical opinion- from the army- that remains on board is that of Brig.Sudarsanan, Consultant (Psychiatry) to whom the case was referred for examination by the army Page 17 of 19
12. Necessary relief in the present case was, as per decision of the Hon’ble High Court in Judgment and Order dated 17.8.2006, to be based on the finding of the Review Medical Board. Since the opinion of the Review Medical Board has been rejected by this Court due to lack of objectivity and cogent reason, consequential and necessary relief will follow in terms of opinion of Brig. Sudarsanan, Consultant (Psychiatry) who has recorded the fact that the petitioner/appellant was abstaining from alcohol and, therefore, his medical category is to be P2 (permanent), which has again been affirmed by Col.A.D.Mathur, Senior Adviser (Medicine). In view of this medical finding, that the petitioner had abstained from taking liquor, for the past few months at least, and that he did not disclose any withdrawal symptoms or abnormal behaviour, his admission to military hospital on this ground becomes questionable and needs to investigated as it is a matter of grave concern which, not only infringes on the fundamental right of the petitioner, but also impacts upon the morale of the service. The Respondents are accordingly directed to look into this Page 18 of 19
aspect and take necessary remedial measures in this 13. For the aforesaid reasons, the Respondents are directed to consider the petitioner to be in Medical Category P2 (Permanent) - as recommended by Brig. Sudarsanan, Consultant (Psychiatry) - and consequently allow him to continue in service in the said category till his retirement on superannuation. The Respondents are also directed to pay the petitioner/appellant salary and other consequential benefits as admissible for the period the petitioner is deemed to be in service. 14. With the above observations and directions, the appeal stands allowed. However, in the facts and circumstances of the case, there will be no order as to MEMBR(A) MEMBER(J)
Page 19 of 19

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