Gauhati High Court
Page No.# 1/5 vs The Union Of India And 4 Ors Rep. By Its ... on 7 February, 2025
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/5
GAHC010275522024
2025:GAU-AS:1261-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/29/2025
NO 10245224N LNK HEMANTO BORDOLOI
S/O LT. LATISINGH BORHOLOI R/O VILL. BHUGAL GHAT P.O. CHABUK
DHARA P.S MIKIR BHETA DIST. MORIGAON, PIN-782106
VERSUS
1: THE UNION OF INDIA AND 4 ORS REP. BY ITS SECRETARY MINISTRY OF
HOME AFFAIRS NEW DELHI-110011
2:THE CHIEF OF THE ARMY STAFF COAS SECRETARIAT INTEGRATED HQ
OF MOD (ARMY) D.H.Q.P.O NEW DELHI 110011
3:THE DEPUTY DIRECTOR GENERAL DEFENCE SECURITY CORPS
GENERAL STAFF BRANCH INTEGRATED HEAD QUARTERS MINISTRY OF
DEFENCE ARMY WEST BLOCK III R.K. PURAM NEW DELHI-11066
4:THE DIRECTOR HQ COMMAND
DEFENSE SECURITY CROPS
5:THE COHMMANDING OFFICER
1025 DSC PLATOON ATT WITH 14 BRD EASTERN COMMAND BORJHA
For the Appellant(s) : Mr. K.M. Mahanta, Advocate.
For the Respondent(s) :
-B E F O R E -
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON'BLE MR. JUSTICE SUMAN SHYAM 07.02.2025 (Vijay Bishnoi, CJ) This writ appeal is preferred by the appellant being aggrieved with the order dated 10.09.2024 passed by the learned Single Judge in WP(C) Page No.# 2/5 No.8365/2022, whereby the learned Single Judge has dismissed the writ petition filed by the appellant.
The appellant preferred the aforesaid writ petition before the learned Single Judge essentially aggrieved by the discharge order issued by the Lt. Col., Senior Records Officer for DIC Records bearing No.CA-1/1612/CPE/DO/ Ser- 179/2019 of the month of August, 2019. Though in the copy of the discharge order annexed with the writ petition the exact date is not reflected but the appellant in his petition has mentioned the date of the said order as "21.08.2019", however, in the prayer portion, wherein he has prayed for setting aside the discharge order, the date of the discharge order is mentioned as "05.08.2019." Be that as it may, the fact remains that the discharge order was issued in the month of August, 2019.
Initially the appellant was enrolled in 119 Infantry Battalion (TA), Assam on 17.09.1989 and after rendering 17 years 7 months 3 days of qualifying service, he was granted service pension for life. Thereafter, the appellant was re-enrolled into the Defence Security Corps (hereinafter to be referred as "DSC") on 17.09.2009 for a period of 10(ten) years extendable to 5(five) years, subject to his suitability and willingness. As such, his engagement in the DSC service was for a period of 10(ten) years with a provision of extension of further 5(five) years, subject to suitability and willingness.
It is not in dispute that the appellant was discharged from service on completion of 10(ten) years and further extension of 5(five) years has been denied to him on the ground that the appellant was placed in Permanent Low Medical category from 07.05.2019 because he suffered 'A Crush Injury Middle Finger (RT) OPTD (Partial Amputation Done)'. It was the case of the respondents that the above condition is a medical criteria unaccepted for further Page No.# 3/5 extension of service as per the Policy laid down vide Adjutant General Branch letter.
The appellant has challenged the said action of the respondents on the ground that since he has suffered permanent disability of 97%, he is entitled to continue in service in a suitable post until he attains superannuation and, therefore, he has prayed for quashing of the discharge order and has also prayed for consequential service benefits.
Countering the said claim of the appellant, the respondents have contended that the appellant has suffered permanent disability of 9 to 10% only and not of 97% and, therefore, as per the Policy of the respondent Department, he is not entitled for the reliefs as prayed for by him in the writ petition.
Preliminary objection regarding the maintainability of the writ petition has also been raised by the respondents stating that the appellant has not preferred any appeal against the discharge order though he was granted an opportunity to do so. Another preliminary objection was also raised that the appellant ought to have approached the Armed Forces Tribunal instead of filing the writ petition directly before this Court.
Though the appellant has not made any specific prayer for grant of disability pension in the writ petition but it appears that this prayer was made before the learned Single Judge and was also duly considered.
The learned Single Judge, after considering the arguments raised on behalf of the parties concerned and after scrutinizing the original records, has come to the conclusion that the percentage of disability of the appellant was 9 to 10% and not 97%. Relevant paragraph of the impugned judgment dealing with this aspect is reproduced hereunder:-
Page No.# 4/5 [8.] It may be stated herein that since the percentage of disability of the petitioner, as shown in the proceedings of the Medical Board, were not legible from the writ petition, the original records were requisitioned. The learned CGC has produced the original records wherein it is seen that whitener has been applied after the figure '9' against column 20(b) of the Medical Board proceedings. According to the petitioner, the same should read as '97%'. However, facts not in dispute is that the only injury suffered by the petitioner before and after his appointment to the DSC was 'crush injury' on his middle finger and for which, partial amputation was done. Therefore, it is unlikely that for the said injury, the petitioner can be said to have suffered 97% disability. In other words, the over-writing or whitener applied against the column showing the percentage of disability of the petitioner would not make any difference. Further, in other pages of the Medical Report, the percentage of disability is clearly reflected as 9 to 10%. Therefore, there can be no suspicion about the correction made by whitener. As stated, the Medical Board, after making a detail assessment, came to the conclusion that the percentage of disability of the petitioner was 9% to 10% and for life. He was, therefore, recommended to be released in medical category S1H1A2 (P) P1E1. The same was approved and confirmed by the respondent authorities concerned."
Assailing the impugned order, the learned counsel for the appellant has submitted that the learned Single Judge has wrongly recorded a finding that the permanent disability of the appellant was 9 to 10% only and not 97%. The learned counsel for the appellant has invited our attention towards the copy of the proceeding of the Medical Board annexed with the writ petition and submitted that in Column No.20 of the said proceedings it has been clearly reflected that the permanent disability of the appellant was 97%.
It is to be noticed that the learned Single Judge has troubled himself to call for the original records and after scrutinizing the same, has recorded a finding of fact that from the said record it is clearly reflected that the disability of the appellant was 9 to 10% and, therefore, in such circumstances, we do not find any merit in the above submission made on behalf of the learned counsel Page No.# 5/5 for the appellant.
The learned counsel for the appellant has placed reliance on the decisions of the Hon'ble Supreme Court rendered in Dharamvir Singh -Vs- Union of India & Ors., reported in (2013) 7 SCC 316; Ex-Sepoy (Washerman) Ram Khilawan -Vs- Union of India & Ors. , reported in (2019) 8 SCC 581 and of the Punjab & Haryana High Court rendered in Union of India & Ors. -Vs- Ex. Hav Jarnail Singh & Anr. passed in CWP -
14751-2024.
However, after going through the above referred judgments, we are of the opinion that there is no quarrel about the proposition of law laid down in the above referred judgments. However, the present case rests on a factual aspect, i.e. percentage of permanent disability of the appellant and, when the learned Single Judge has ascertained from the original records the percentage of permanent disability of the appellant and recorded a finding that the same is only 9 to 10%, the above referred judgments are of no help to the appellant.
In view of the above discussion, we do not find any case for interference. Hence, this writ appeal is dismissed at the motion stage itself.
JUDGE CHIEF JUSTICE Comparing Assistant