EX-SEPOY (WASHERMAN) RAM KHILAWAN versus UNION OF INDIA & ORS.

Citation: [2019] 11 S.C.R. 1066 · Decided: 02-09-2019 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 11 S.C.R.
EX-SEPOY (WASHERMAN) RAM KHILAWAN
v.
UNION OF INDIA & ORS.
(Civil Appeal Nos. 6977-6978 of 2019)
SEPTEMBER 02, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Service Law:
Discharge from service - On medical grounds - Without
subjecting the appellant/employee to the Invalidating Medical
Board as per the procedure laid down under Army Rules - Propriety
of - Held: Discharge of the appellant was only under sub-clause
(iii) r.13(3)(III) and not under sub-clause (v) of r.13(3)(III) of Army
Rules - Therefore, he could not be invalidated out of service without
the recommendation of the Invalidating Board and hence discharge
is not sustainable - In terms of General Principles of Army Order
46 of 1980, he is entitled to be retained in service for 10 years -
Since the appellant had joined the service on 23.10.1987, he would
be deemed to be discharged only on 22.10.1997 - Thus he is
entitled to pension in addition to the disability pension - He is
entitled to arrears of pension for a period of three years prior to
filing of writ petition - Army Rules, 1954 - r.13(3)(III)(iii) - Army
Order 46 of 1980.
Allowing the appeals, the Court
HELD: The order of discharge is on the ground that the
appellant has been placed in Low Medical Category. The
discharge of the appellant was only under category 13(3)(III)(iii)
of Army Rules, 1954, as he has been found medically unfit for
further service. Clause (v) of Rule 13(3)(III) would be applicable
in respect of all other classes of discharge which do not find
mention in Rule 13(3)(III). The communication of discharge from
the service is on the ground that he has been placed in the Low
Medical Category.  Once he has been put in Low Medical
Category, clause (iii) of Rule 13(3)(III) would be applicable as
such clause alone deals with discharge if any personnel is found
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   [2019] 11 S.C.R. 1066
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medically unfit for further service.  There is no reference to sub-
clause (v) of Army Rule 13(3)(III) in the order of discharge.  Still
further, it is not the recital of a provision which is relevant to
determine as to whether the personnel is discharged under
clause (v) or clause (iii) of Rule 13(3)(III) of the Rules.  It is
the object, language and the purport of the discharge which will
be relevant to determine whether an army personnel had been
discharged under clause (iii) or clause (v).  Clause (v) is the
residual clause when other clauses are not applicable to such
personnel.  Since the discharge of the appellant is covered by
clause (iii) of Rule 13(3)(III) of the Rules, as the discharge of
the appellant was only on the ground of his medical unfitness
for further service, therefore, he could not be invalidated out of
service without the recommendation of the Invalidating Board.
such discharge is not legally sustainable. [Paras 8, 10 and 12]
[1072-D-G-H; 1073-A-C-G]
2.  In terms of clause (b) of General Principles of Army
Order 46 of 1980, he is entitled to be retained for ten years
being in the rank of personnel of Other Ranks.  Since, he joined
the service on October 23, 1987, he would be deemed to be
discharged only on October 22, 1997.  As a consequence thereof,
the appellant became entitled to pension in addition to disability
pension which was granted to him for a period of five years.
However, the appellant will not be entitled to arrears of salary
for the period up to the date of discharge inter alia on the ground
of no work no pay but he shall be entitled to arrears of pension
for a period of three years prior to filing of Writ Petition which
was transferred to the Tribunal. [Para 13, 14] [1073-H; 1074-A-
C]
Union of India & Ors. v. Rajpal Singh (2009) 1 SCC
216 : [2008] 15 SCR 879 ; Smt. Sulekha Rani v. Union
of India and Ors. Civil Appeal No. 1280 of 2019
decided on July 16, 2019 - relied on.
Case Law Reference
[2008] 15 SCR 879
relied on
Para 7
Civil Appeal No. 1280 of 2019
relied on
Para 11
decided on July 16, 2019
EX-SEPOY (WASHERMAN) RAM KHILAWAN v.
UNION OF INDIA & ORS.
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SUPREME COURT REPORTS
[2019] 11 S.C.R.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6977-
6978 of 2019.
From the Judgment and Order dated  21.10.2011 of the Armed
Forces Tribunal, Regional Bench, Lucknow in T.A. No. 1120 of 2010
and order dated 28.05.2013 in R.A. No. 03 of 2013 in T.A. No. 1120
of 2010/order dated 30.06.2014 in M.A. No. 502 of 2014 in T.A. No.
1120 of 2010.
Lt. Col. K. Ramesh, Vibhuti Sushant G
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