OA No.42 of 2012.Pdf

ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI 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 CADET VIDE NO.1458/K/85, (NOW RELEASED ON INVALIDMENT MEDICAL BOARD OF HEADQUARTERS, SOUTHERN NAVAL COMMAND), PRESENTLY RESIDING AT 03-JAI, NAVAL PARK, NAVAL BASE, VISAKHAPATNAM, ANDHRA PRADESH, PIN 530 014. BY ADV. SRI. K.C. ELDHO. versus RESPONDENTS: 1. UNION OF INDIA, 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 NAVAL ACADEMY, EZHIMALA, KANNUR DISTRICT – 670 001. 4. THE SQUADRON COMMANDER (MARAKKAR), INDIAN NAVAL ACADEMY, EZHIMALA, KANNUR DISTRICT – 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), Bangalore 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 cadets 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 Captain 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, Pune for assessment by Surgeon Commodore 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.

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