O.A. No. 188 of 2014. Case: Ashish Chaudhary Vs Union of India and Ors.. Armed Forces Tribunal

Case NumberO.A. No. 188 of 2014
CounselFor Appellant: T.R. Jagadeesh, Adv. and For Respondents: K. Ramakumar, Senior Advocate and K.M. Jamaludeen, Senior Panel Counsel
JudgesS.S. Satheesachandran, J. (Member (J)) and Vice Admiral M.P. Muralidharan, AVSM and Bar, NM, Member (A)
IssueArmed Forces Tribunal Act 2007 - Section 14
Judgement DateDecember 07, 2015
CourtArmed Forces Tribunal

Order:

S.S. Satheesachandran, J. (Member (J)), (Regional Bench, Kochi)

  1. The applicant, Ashish Chaudhary, an Ex-cadet, who was discharged during the course of training from the Indian Naval Academy, has filed the above application under Section 14 of the Armed Forces Tribunal Act, 2007 (for short 'the Act') challenging Annexure A11 order, for setting it aside with directions to the respondents to retain him in service providing all consequential benefits.

  2. The present application is second round of litigation challenging the order of discharge of the applicant during the course of his training. His previous application, O.A. No. 42 of 2012, was allowed by this Tribunal setting aside the order of discharge with direction to the second respondent to reconsider the matter and take appropriate, just and proper decision in accordance with law. After providing a personal hearing and also considering the representation made by the applicant Annexure A11 order was passed negativing the claims of the applicant for re-induction to training and continuance in service. Impeaching Annexure A11 order the applicant has filed the present application.

  3. The applicant after clearing the SSB (Service Selection Board) joined the Indian Naval Academy as a cadet on 3rd January 2010. During the course of training he sustained a minor injury on his left hand while working in the workshop. The tendon of the little finger was operated by the Specialist and he was sent on sick leave for six weeks. After surgery he was fit to join the academy, but was advised to avoid carrying weight on the left hand for a few weeks. In view of his hospitalisation he had missed the final examination and could complete the practical alone. On review of the applicant, he had to undergo physiotherapy for the little finger injured and on such treatment it started functioning normally. On his reporting back to the Academy after discharge from the hospital he was harassed by a few senior cadets under the guise of ragging. At times ragging was so severe that he was not allowed even to take food from the mess and only permitted to drink water for six to seven days. He was also forced to carry weight in his left hand and was compelled to climb ropes. He was called fake names, and, abused and ridiculed before his course mates, which made him depressed. He had complained to the authorities concerned of the atrocities meted out, but no action was taken other than placing a board in the corridor that ragging is prohibited. The applicant was sent over for psychiatric assessment before Surgeon Lt. Commander Rohit R. Pisharody, who, after examination found no problem with him and advised to place him in S2A2 category for three months, subject to concurrence of the report by Surgeon Captain Kaushik Chatterjee. According to the applicant the above Surgeon Captain wanted to board out the applicant from service at the instance of the third respondent and he therefore recorded that the applicant was not interested in services. An Invaliding Medical Board (for short 'the IMB') was conducted. Later, on the request of his father, a serving Commander of the Indian Navy, he was again sent to Armed Forces Medical College, Pune, where further assessment was done by Specialist. Surg. Cmde. VSSR Ryali (HOD Psychiatry) found the applicant with no mental illness, but, still he gave the opinion to send him out of service stating that "due to the deformity in finger it is neither in the interest of the cadet nor the navy for him to continue." An IMB was again conducted and rejecting his plea that he had no mental illness and also the request for continuation of his training, the Board recommended for releasing him describing him as a case of adjustment disorder. Annexure A7 order of the Board recommending his release was approved by the 4th respondent issuing Annexure A8 order. Both the above orders were challenged by the applicant before this Tribunal filing O.A. No. 42 of 2012. The Tribunal set aside those orders and directed the second respondent (Chief of Naval Staff) to reconsider the case of the applicant providing him a personal hearing. After affording a personal hearing and also for submission of a representation, Annexure A11 order was passed holding that no grounds existed to impeach his release from service. Annexure A11 was passed by the 5th respondent who had no authority to do so since the Tribunal had directed the second respondent to consider the representation/appeal preferred by the applicant and to take a decision. Annexure A11 order had been passed ignoring and bypassing the observations made in the Order passed in O.A. No. 42 of 2012 by the Tribunal which were directed to be taken note of by the second respondent to form a just decision on his appeal/representation, is the case of the applicant. Specific findings entered by the Tribunal in the previous O.A. were not only not taken into consideration but discarded. Stating matters which have been found irrelevant by the Tribunal, Annexure A11 order was passed re-iterating the allegations stated in the previous order of discharge, all of which had been rejected by this Tribunal. The findings entered in Annexure A11 that the applicant is a case of adjustment disorder and unfit to continue in service is baseless and unsustainable, and the term 'adjustment disorder' has been conveniently used by the respondents to board him out of service. Asserting that the applicant has no personal disorder or adjustment problems the applicant has sought for setting aside Annexure A11 order and to issue directions to the respondents to re-induct him in service with all consequential benefits, including opportunity for completion of his training.

  4. The respondents have filed reply statement controverting the allegations stated in the O.A. Impeaching the maintainability of the O.A. it is contended that Annexure A11 order is challenged after delay of almost a year and that being so, on that solitary ground alone the O.A. is liable to be dismissed. Refuting the case of the applicant that during the training he was subjected to inhuman and harsh ragging by his seniors, it is contended by the respondents that Indian Naval Academy (for short 'the INA') has a 'Zero Tolerance' policy towards any sort of ragging/man handling. The applicant had never raised any complaint of harassment by his seniors and no such incident was also reported at any point of time during his stay in the academy, according to the...

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