ARMED FORCES TRIBUNAL, REGIONAL BENCH,

O A No.42 OF 2012

THURSDAY, THE 4TH DAY OF JULY, 2013/13TH ASHADHA, 1935

CORAM:

HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J) HON'BLE LT.GEN.THOMAS MATHEW, PVSM, AVSM, MEMBER (A)

APPLICANT:

ASHISH CHAUDHARY, S/O. JAGBIR SINGH, AGE 20, NAVAL VIDE NO.1458/K/85, (NOW RELEASED ON INVALIDMENT MEDICAL BOARD OF HEADQUARTERS, ), PRESENTLY RESIDING AT 03-JAI, NAVAL PARK, NAVAL BASE, , ANDHRA PRADESH, PIN 530 014.

BY ADV. SRI. K.C. ELDHO.

versus

RESPONDENTS: 1. UNION OF , REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF DEFENCE MINISTRY, CENTRAL SECRETARIAT, NEW DELHI – 110011.

2. THE CHIEF OF NAVAL STAFF, (CHIEF OF PERSONNEL), INTEGRATED HEADQUARTERS (NAVY), MINISTRY OF DEFENCE, NEW DELHI – 110 011.

3. THE COMMANDANT, INDIAN , , DISTRICT – 670 001.

4. THE SQUADRON COMMANDER (MARAKKAR), , EZHIMALA, – 670 001.

BY ADV. SRI. K.M. JAMALUDEEN, SENIOR PANEL COUNSEL. OA No.42 of 2012 - 2 -

ORDER

Shrikant Tripathi, Member (J):

1. By the instant Original Application under Section 14 of the

Armed Forces Tribunal Act, the applicant Ashish Choudhary has challenged the order discharging him from the Indian Naval Academy.

He has further prayed for his reinstatement to the service as a cadet in the Indian Naval Academy (Respondent No.3) with all consequential benefits. It is not in dispute that the applicant joined the Indian Naval

Academy with 85th Indian Naval Academy Course under 10 + 2 (X)

Entry Scheme on 3.1.2000 and was allotted Marakkar Squadron.

After about three months on 6th April 2000, he sustained an injury in his left little finger during a practical training in Carpentry Workshop. He was taken to the Medical Inspection Room on the same day for initial treatment, but was thereafter, referred to Command Hospital

(Air Force), on 9th April, 2010 where he remained hospitalised from 10th April 2010 to 25th May, 2010. He was thereafter sent on six week sick leave with effect from 25th May, 2010. Due to the hospitalisation, sick leave and absence from the training, the applicant missed 80 days of training and failed to appear for the first term final examination scheduled from 13th May to 19th May, 2010. He reported to the Indian Naval Academy after the sick leave and appeared in the pending practical examination. As he was not prepared for the OA No.42 of 2012 - 3 - written academic examination, he expressed his inability to appear in the same. The applicant thereafter proceeded to Command Hospital

(Air Force), Bangalore for a medical review on 1st July 2010 and returned back on 12th August, 2010 after 42 days hospitalisation. By that time, his finger had completely healed. After his return, his pending examinations were re-scheduled in August 2010. It is alleged that after return from the Command Hospital (Air Force), Bangalore, the applicant was given counselling on 13th August 2010 by his Divisional Officer, who advised him to work hard and put in sincere efforts to clear pending examinations and PT test. It is also alleged that on 21st August 2010, the applicant consumed Naphthalene balls in an attempt to self harm and was admitted in the M.I.Room at the Indian Naval Academy for initial management. The applicant, however, denied the incident that he consumed Naphthalene balls. The applicant has pleaded that after coming back to the Academy, he appeared for two more examinations and successfully passed the same. He next stated that a few senior started harassing him in the guise of ragging and had not only physically assaulted him but had also asked him to climb ropes and do push-ups and carry weight in the left hand, knowing that he had an injury. He further submitted that ragging by the senior cadets went on to its extreme and accordingly he was not allowed to take food from the mess and was only allowed to drink water for six to seven days. As the applicant had moved for medical treatment and senior cadets did not get OA No.42 of 2012 - 4 - sufficient time to do ragging, so, on his coming back they started ragging which resulted in causing physical and mental torture to him. Even during the ragging, the seniors used to call him with fake names and he was sometimes abused. He requested the authorities to give proper protection, but with no positive result, and as such, the authorities and the seniors created an impression that the applicant was mentally unfit.

It is also alleged that the applicant was directed to appear before INHS,

Sanjivani, for psychiatric assessment by Surgeon, Lt. Commander,

Rohith R.Pisharody on 11th September 2010, who after diagnosis found no fault with the applicant and advised to place him in medical category

S2A2 for three months, subject to the concurrence of the Surgeon

Captain Kaushik Chatterjee. The applicant has further alleged that irrespective of the opinion of Surgeon Commander Rohith R.Pisharody,

Surgeon Kaushik Chatterjee, who wanted to board out the applicant at the instance of the third respondent, disagreed with the opinion of the Surgeon Commander Rohith R.Pisharody. Consequently, the Invaliding Medical Board was held on 4th December 2010 without giving any chance of appeal. But, on the request of the applicant's father, he was again sent to Armed Forces Medical College, for assessment by Surgeon VSSR Ryali. Despite no mental illness, the Surgeon Commander VSSR Ryali, opined that the applicant be boarded out of service stating that due to the deformity of the left finger, it is neither in the interest of the Cadet nor the Navy to retain OA No.42 of 2012 - 5 - him in service. The applicant has further alleged that the IMB was convened in April 2011, which took nine months. Ultimately, the applicant was discharged from INHS, Sanjivani on 2nd December, 2011.

The Invaliding Medical Board described the applicant as a case of

“Adjustment disorder” which was unfounded and unjustified.

2. The respondents have filed a detailed reply stating that it was incorrect that the applicant cleared two more examinations. The respondents have further stated that the applicant never complained of any harassment by his seniors nor he gave any report with regard to any such incident. These allegations were made after the applicant had been boarded out with an attempt to tarnish the image of the organisation. Surgeon Lt.Comander Rohith R.Pisharody, no doubt, placed the applicant in Medical Category S2 A2 but the opinions of senior doctors, who were experts in psychiatry, were rightly acted upon by the respondents in discharging the applicant from the Academy.

3. We have heard the learned counsel for the parties at length and perused the record.

4. The opinion of Surgeon, Lt.Commander Rohith R.Pisharody, the Graded Specialist (Psychiatry) is on record. Surgeon Commander

Rohith R.Pisharody, inter alia, observed that the candidate could be OA No.42 of 2012 - 6 -

considered for 'retention in service'. He had, however, suggested for a

brief period of psychiatric surveillance without medication exposed to the

rigours of training before upgradation to S1A1. Accordingly, the Surgeon

Commander Rohith R.Pisharody recommended that the applicant be

placed in low medical category S2A2 (S) T 12, subject, of course, to the

concurrence of the opinion by Senior Advisor (Psychiatry) and to review

when due with fresh AFMSF – 10 x 3 . He further recommended that

the applicant was fit for all other training and duties as required and was

advised not to consume alcohol. The relevant portion of the opinion of

Lt.Commander Rohith R.Pisharody is reproduced as follows:

“In view of this being first admission for a low risk self harm episode in the background of perceived stressors, positive response to counselling, adequate pre-morbid function, absence of past/family history of psychiatric illness and presence of insight into his condition, the cadet can be considered for retention in service. However, he will require a brief period of psychiatric surveillance without medication exposed to the rigors of training before up-gradation to S1A1(S). Hence recommended: (a) To be placed in low medical category S2A2(S)T-12 subject to concurrence of the opinion by Sr.Advisor (Psychiatry) and to review when due with fresh AFMSF – 10 x 3 (b) To review with AMA weekly and at Psy OPD monthly (c) Unfit to handle firearms/live ammunition (e) Fit for all other training and duties as required (f) Not to consume alcohol/intoxicants.”

5. Surgeon Captain Kaushik Chatterjee, Senior Advisor in

Psychiatry concurred with the diagnosis and treatment of Lt. OA No.42 of 2012 - 7 -

Commander Rohith R.Pisharody but he, keeping in view the applicant's presentation after a few months training, with inability to cope with relatively trivial stress over short duration, leading to deliberate self harm and Unit report describing him as below average with poor performance under stress, expressed the opinion that the applicant was unlikely to function effectively as an officer, thus the disposal needed to be suitably altered as per the provisions of the DGAFMS Memo No.171 of 2002 and accordingly recommended. He further recommended that the applicant be placed in medical category – “S5 A5”. According to the aforesaid memo No.171 of 2002, a person placed in medical category

S5A5 is treated as “unfit for service”. The relevant portion of the opinion of Surgeon Captain Kaushik Chatterjee, is reproduced as follows:

“I concur with the diagnosis and treatment of Surg Lt. Cdr R.Pisharody, Graded Specialist in Psychiatry, vide his opinion dated 06 Oct 10. However, in view of presentation after a few months of training, with inability to cope in the face of relatively trivial stress over short duration, leading to deliberate self harm and unit report describing him as below average with poor performance under stress, he is unlikely to function effectively as an officer and thus the disposal needs to be suitable (sic “suitably”) altered. Hence as per provisions of DGAFMS Memo 171/2002 recommended (i) To be placed in medical category S5A5.”

6. As observed in the earlier portion of this order, the opinions of the Lt.Commander Rohith R.Pisharody and Captain Kaushik Chatterjee OA No.42 of 2012 - 8 -

were examined by Surgeon Commodore VSSR Ryali, Professor and

Head of Department (Psychiatry), Armed Forces Medical College, Pune,

who opined that it was neither in the interest of the candidate nor the

Service to retain the applicant in service. Accordingly, he agreed with

the opinion and disposal of Surgeon Captain, Kaushik Chatterjee dated

18th October 2010. The opinion of Surgeon Commander VSSR Ryali,

being relevant, is reproduced as follows.-

“Opinion and disposal.- The INA cadet with one year of training has spent nearly 9 months in hospital due to an injury to the (L) little finger which shows a persistent deformity and also deliberate self poisoning due to stressors in the Academy and certain personal traits. He is currently asymptomatic and cross sectionally no psychopathology is discernible. However, in view of persisting physical deformity, his disabling traits and the fact that he may face stressors of similar nature when he resumes training make him vulnerable to a relapse. It is neither in the interest of the cadet nor the service to retain him. I agree with the opinion and disposal of Surg Capt K.Chatterjee, Senior Advisor (Psy), INHS Asvini dated 18 Oct 2010 Diagnosis: 1. Deliberate Self Poisoning (ICD X-69) 2 Adjustment Disorder (ICD-F-43.24)”

7. Learned counsel for the applicant tried to contend that when

Surgeon Lt. Commander Rohith R.Pisharody had recommended the

applicant to be retained in service, after placing him in low medical

category S2A2, there was no justification for Surgeon Captain Kaushik

Chatterjee and Surgeon Commodore Ryali to take a different view. In OA No.42 of 2012 - 9 - this connection, learned counsel for the respondents submitted that

Surgeon Captain Kaushik Chatterjee and Commodore Ryali were not only more seniors but also more qualified and experienced doctors, therefore, their opinions would prevail over the opinion of Surgeon

Commander Rohith R.Pisharody. Even Surgeon Commander Rohith

R.Pisharody had mentioned in his opinion that whatever opinion he expressed, would be subject to the concurrence of the opinion by Senior

Advisor (Psychiatry). As the Senior Advisor(Psychiatry), Captain

Kaushik Chatterjee, did not agree with the opinion of Commander

Rohith R.Pisharody, there is no justification to give due significance to the opinion of Surgeon Commander Rohith R.Pisharody, especially when even the seniormost doctor, Surgeon Commodore VSSR Ryali who was the Professor and Head of Department (Psychiatry), Armed

Forces Medical College, Pune, approved the opinion of Captain Kaushik

Chatterjee and did not approve the opinion of urgeon Commander

Rohith R.Pisharody.

8. More so, the Medical Board diagnosed the disability

“Adjustment Disorder” at 40% for life on the basis of the aforesaid opinion of the Specialists and other clinical examinations.

9. In order to appreciate the controversy involved in the present mater, we have to understand as to what is 'Adjustment Disorder' and its impact. The medical science has settled as to what is adjustment OA No.42 of 2012 - 10 - disorder and under what circumstances it occurs. An adjustment disorder occurs when an individual is unable to adjust to or cope with a particular stressor, like a major life event. Since people with this disorder normally have symptoms that depressed people do, such as general loss of interest, feelings of hopelessness and crying, this disorder is also sometimes known as situational depression. Unlike major depression however, the disorder is caused by an outside stressor and generally resolves once the individual is able to adapt to the situation. One hypothesis for adjustment disorder is that it may represent a sub- threshold clinical syndrome. Its common characteristics include mild depressive symptoms, anxiety symptoms, and traumatic stress symptoms or a combination of the three, such as depressed mood, anxiety, mixed depression and anxiety, disturbance of conduct, mixed disturbance of emotions and conduct, and unspecified.

Adjustment disorder may also be acute or chronic, depending on whether it lasts more or less than six months. If the adjustment disorder lasts less than 6 months, then it may be considered acute. If it lasts more than 6 months, it may be considered chronic. However, the symptoms cannot last longer than six months after the stressors, or its consequences, have terminated. The following factors have been found tobe instrumental for Adjustment Disorder.

(i) younger age;

(ii) more identified psychosocial and environmental problems; OA No.42 of 2012 - 11 -

(iii) increased suicidal behaviour, more likely to be rated as improved by the time of discharge from mental healthcare; (iv) less frequent previous psychiatric history; (v) shorter length of treatment.

Those exposed to repeated trauma are at greater risk, even if that trauma is in the distant past. Age can be a factor due to young children having fewer coping resources; however, children are also less likely to assess the consequences of a potential stressor. A stressor is generally an event of a serious, unusual nature that an individual or group of individuals experience. The stressors that cause adjustment disorders may be grossly traumatic or relatively minor. It is thought that the more chronic or recurrent the stressor, the more likely it is to produce a disorder. The objective nature of the stressor, however, is of secondary importance. Stressors' most crucial link to their pathogenic potential is their perception by the patient as stressful. The presence of a causal stressor is essential before a diagnosis of adjustment disorder can be made.

10. Surgeon Lt.Commander Rohith R.Pisharody while narrating the history of the illness of the applicant categorically recorded in para 2 thereof that the applicant was allegedly isolated by his seniors and was even allegedly denied food during meals and was only allowed to drink water. The applicant further alleged before him that even the course mates isolated him and made fun of him and he felt bad about this and OA No.42 of 2012 - 12 - said that he felt unable to report the matter as he felt that his DO may not understand him. It is therefore incorrect to say that the applicant made the allegations of ragging only in the O.A. Virtually he had made the allegations of ragging even before the doctors. It is a matter of common experience that complaints of ragging in the form of mental and physical torture by seniors to new comers in institutions, academies and universities etc, are frequently made and have attracted the motion of the society every time, which seems to be a serious social problem.

The academies even run by the Armed Forces cannot claim immunity therefrom. When the applicant had levelled serious charge of ragging by his seniors, the authorities ought to have inquired into the incident, especially when the ragging could be one of the major reasons for causing the adjustment disorder in the applicant. It is also significant to state that during the course of carpentry training, the applicant sustained an injury in his left little finger and remained hospitalised for several months, so, he could not be ragged along with his batchmates who were all new comers. When the applicant recovered from the injury and rejoined the Academy, he was secluded from his batchmates for ragging and accordingly after his return from the hospital he was all alone to be ragged. According to him, some of his senior cadets started harassing him in the guise of ragging. They had not only physically assaulted him but had also also asked him to climb ropes and do push ups and carry weight in the left hand, knowing that he had an injury. He OA No.42 of 2012 - 13 - further stated that ragging by the senior cadets went on to its extreme and accordingly he was not allowed to take food from the mess and was only allowed to drink water for 6 – 7 days. He further stated that even during ragging seniors used to call him with fake names and sometimes they abused him. His request with the authorities to intervene in the matter was of no positive consequence. In our view, the circumstances which had prevailed in the academy were solely responsible for causing the disability adjustment disorder for which the authorities could be held to be responsible instead of the applicant. The opinion of the doctors who recommended his ouster from the Academy on the ground of

Adjustment Disorder failed to give due consideration to the aforesaid circumstances that had prevailed in the Academy. The allegations made by the applicant cannot be brushed aside only on the ground that he did not give any application in writing, particularly when he had informed the doctors who examined him. In the backdrop of the aforesaid scenario, the alleged consumption of naphthalene balls by the applicant does not appear to have any material consequence. Anybody would do so, under the circumstances and maltreatment that had prevailed in the academy. More so, the applicant had recovered from the injury to the left little finger and that could not in any way be an instrumental factor for discharging him from the Course. The discharge of the applicant from the Academy was based on altogether irrelevant grounds, therefore, we have no option except to quash the discharge OA No.42 of 2012 - 14 - order and direct the respondents to reconsider the matter.

11. Learned counsel for the applicant lastly submitted that on 30th

March 2011, the applicant had sent an appeal to the Chief of the Naval

Staff, but it was not given due consideration. In this connection, learned counsel for the respondents submitted that the applicant's appeal was replied properly by the Surgeon Commander, Commanding Officer on

31st March, 2011 and accordingly, the applicant was discharged from the Naval Academy. It may be mentioned that the appeal to the Chief of the Naval Staff was given prior to the applicant's discharge and there is no material to show that any appeal was filed after the discharge.

According to the learned counsel for the respondents,whatever points had been raised in the appeal dated 30th March, 2011 were given due consideration before his discharge. There does not appear to be any specific order of the Chief of the Naval Staff on the appeal dated

30.3.2011 submitted by the applicant.

12. It is true that due to the discharge from the Academy the applicant was not in a position to complete the course, but he can very well be permitted to start afresh Training Course in the Indian Naal

Academy. Therefore, this may not be a ground to discard his genuine case. OA No.42 of 2012 - 15 -

13 In view of the aforesaid, the Original Application is allowed.

The impugned order of discharge is quashed. The respondent No.2 is directed to reconsider the matter in the light of the observations made hereinbefore and take appropriate just and proper decision in accordance with law, after providing a reasonable opportunity of hearing to the applicant and then communicate the decision to the applicant.

14. There will be no order as to costs.

15. Issue free copy of this order to both side.

Sd/- Sd/- LT. GEN. THOMAS MATHEW, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J)

DK. (True copy)

Prl. Private Secretary