T.A. No. 76 of 2010. Case: Corporal Vijayakumar Vs Union of India, The Chief of Air Staff and The Chief Controller of Defence Accounts (Pensions). Armed Forces Tribunal
| Case Number | T.A. No. 76 of 2010 |
| Counsel | For Appellant: Party-in-Person and For Respondents: Sri. K.M. Jamaludeen, Senior Panel Counsel |
| Judges | Shrikant Tripathi, Member (J) and Thomas Mathew, PVSM, AVSM, Member (A) |
| Issue | Air Force Act, 1950 - Section 26; Constitution of India - Article 226 |
| Judgement Date | July 31, 2013 |
| Court | Armed Forces Tribunal |
Order:
Shrikant Tripathi, Member (J)
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The applicant, Vijayakumar, Ex. Corporal No. 698173, filed the instant matter in the Hon'ble High Court of Kerala at Ernakulam as Writ Petition No. 24731 of 2009 for quashment of his discharge from service and the opinion of the Medical Board with further prayer for his reinstatement in service. After the establishment of this Bench, the aforesaid matter was received by transfer under Section 34 of the Armed Forces Tribunal Act, 2009 and registered here as T.A. No. 76 of 2010. The following reliefs have been claimed in the matter:
(A) To issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ or order or direction calling for the records leading to Exhibits P4, P8, P9 and P13 respectively, and to quash the same as contrary to medical science, ethics and law, and consequently to quash Exhibit P16 and the impugned discharge order mentioned therein, declaring it as null and void ab-initio, unconstitutional, unreasonable, arbitrary, illegal and unsustainable in law;
(B) To declare that the recommendations of the aforementioned three Medical Boards dated 24.04.1994, 10.01.1995 and 10.05.1995, finding the petitioner as psychologically fully fit person in all respects and recommending his (the petitioner's) retention in service, shall prevail until a duly constituted Medical Board find him otherwise.
(C) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ or direction or order directing the respondents to reinstate the petitioner in service with all consequential benefits;
(D) To declare that in the event of his reinstatement in service, the petitioner shall be deemed to have obtained three promotions respectively to the ranks of Sergeant, Junior Warrant Officer (JWO) and Warrant Officer (WO) along with his contemporaries in service and therefore, the respondents shall reinstate him in service in the rank of Warrant Officer (acting-paid) as the petitioner was entitled to get three promotions during the period when he was illegally kept out of service by the impugned order.
(E) To award model costs, compensation and damages from the respondents and
(F) To issue any other and further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case.
The relevant factsas per the averments in the instant case are that the applicant was enrolled in the Air Force on 27.5.1986 and was discharged from service with effect from 09.01.1996 on the recommendation of the Invaliding Medical Board held on 30th October, 1995 which opined that the applicant had the disability "Affective Psychosis (Hypomania) ICD 296(a) to the extent of 40% for two years". The applicant being aggrieved from the invalidment filed Writ Petition No. 1334 of 1997 in the Delhi High Court for quashment of his discharge which was dismissed on 18th July, 2002. The applicant then filed Review Application No. 10134 of 2002 but did not press the same and sought for permission to withdraw the same with the liberty to file a writ petition with respect to the claim for the disability pension. The Honourable Delhi High Court permitted the applicant to withdraw the review petition with the liberty to file a fresh petition for disability pension. Accordingly, the applicant filed Writ Petition No. 36243 of 2004 in the Hon'ble High Court of Kerala for disability pension, which was allowed on 10th October, 2006 directing the respondents to sanction and pay disability pension for 40% disability to the applicant for two years with effect from the date of his discharge. It was further observed that it will be open to the respondents to subject the applicant for review of his disability and decide the further course of action and eligibility for disability pension. It appears that the applicant did not receive any sanction order in compliance of the aforesaid order of the Hon'ble High Court of Kerala, so he filed Contempt Case (Civil) 453 of 2007. Consequently, sanction order along with PPO was issued in favour of the applicant sanctioning him disability pension with effect from the date of his discharge for a further period of two years. In order to consider the case of continuation of the disability after the expiry of the initial period of two years, a Review Medical Board held on 22.3.2002 found that the applicant had the disability "Affective Psychosis (Bipolar)". More so, the Re-Assessment Medical Board held in the year 2007 found the disability continuing but categorised the same as Affective Psychosis (Hypomania) and assessed the same at 50% for life, with effect from 22.6.1997. Accordingly, the applicant is being paid regularly the disability pension and there does not appear to be any dispute to this extent. But after receiving the opinion of the Re-Assessment Medical Board, the applicant seems to have changed his stand and tried to contend that his discharge was not proper, as the disability which occasioned for his discharge was not found subsisting by the subsequent Medical Boards. Accordingly, he filed Review Petition No. 720 of 2008 for review of the aforesaid order rendered by the Kerala High Court on the ground that the disability found by the Re-Assessment Medical Board was based on altogether new version and therefore, the disability which was diagnosed by the Invaliding Medical Board was baseless and as such his discharge from service was not proper. The Hon'ble High Court took the view that if the applicant had any grievance the same will have to be pursued in appropriate original proceedings and not in a review petition. Accordingly, the Hon'ble High Court of Kerala disposed of the Review Petition vide order dated 18th June, 2009 with liberty to the applicant to initiate appropriate original proceedings incorporating also the subsequent developments after the judgment dated 10th October, 1996.
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The applicant has filed a written argument pertaining to the pleas relating to res-judicata and merits of the case. With regard to the res-judicata, the crux of the submissions of the applicant are that while passing the order in the Review Petition No. 720 of 2008, the Kerala High Court, granted permission to the applicant to raise his grievance in appropriate original proceedings. So, according to the applicant, the instant petition based on the opinion of the Re-Assessment Medical Board, which prove the finding of the Invaliding Medical Board as incorrect, is maintainable. The applicant next contended that any original petition based on altogether a new cause of action or on facts appearing after conclusion of the previous proceedings would not be barred by the principles of res judicata. According to him, the present proceedings being based on the opinion of the Re-Assessment Medical Board was maintainable.
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The other submissions on behalf of the applicant as disclosed in the written submissions are as follows:
(A) A perusal of Exhibits-P10 to P12, being the authority on the subject, viz., ICD (International Classification of Diseases, by World Health Organization (WHO). makes it clear that there exists no mental disability or disease or disorder in the names alleged by the Medical Boards;
(B) The Medical Boards, dated 22.06.2007, 22.03.2002 and 30.10.1995 have recorded three inconsistent names for the alleged "disability" in this case, (viz., "Affective Psychosis (Hypomania)- ICD V 67", "Affective Psychosis (Bipolar)" and "Affective Psychosis (Hypomania)- ICD296 (a)", respectively). In the light of the undisputed authority, Exhibits-P10 to P12, it can be further seen that all these names are merely imaginary, invalid, fictitious and non-existent in medical science;
(C) The respondents have succeeded in hiding the medical records. Exhibit-P5 was secured by the respondents fraudulently misleading the Hon'ble High Court, as humbly submitted in the original W.P. (C)/T.A. Similar attempts by the respondents are discernible before this Hon'ble Tribunal also, vide the facts, pleaded in para. 3, 4, etc., in the rejoinder;
(D) As mentioned above, during the pre-IMB period, all the Medical Boards had concurrently found and declared the petitioner as fully fit, both physically and psychologically. But, the IMB, dated 30.10.1995, while alleging a non-existent "disability" against the applicant, has overlooked all these relevant findings;
(E) Evidently, the IMB has fabricated a fake case against the petitioner vide the statements in the IMB proceedings, at pages C(1/25) and C(2/25), etc., of the medical records produced by the respondents. In order to fabricate the case and findings, the respondents obtained the petitioner's signatures on blank forms well in advance, almost immediately after his illegal detention in the psychiatric ward on 05.09.1995. Evidently, the IMB was held on 30.10.1995 which was based on the findings and recommendations by the psychiatrist, (namely, Surg Cdr V.S.S.R. Ryali, Classified Specialist in Psychiatry), but the petitioner's signature under Part-I of the AFSF-16, (i.e., personal statements in answer to the questions allegedly asked by the Medical Board, is dated sometime in September, 1995), vide page C(2/25) of the medical records. The Pages C(1/25) and C(2/25) (Ext. P24) therein are the first and second pages of the AFMSF-16, where the petitioner's signature was put some time in September, 1995. This signature is also duly attested and countersigned by the aforesaid psychiatrist;
(F) Further, in Exhibit-P24, it may be shocking to note that the date of the first starting of the alleged...
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