Supreme Court: In a civil appeal challenging the judgment and order of Armed Forces Tribunal (‘AFT’), whereby the AFT rejected the appellant’s prayer seeking reference of his diagnosis as AIDS inflicted, to a fresh Medical Board, the division bench of Sanjiv Khanna and Dipankar Datta*, JJ. has said that by misdiagnosing the appellant with AIDS, Army subjected him to further misery in not only combating social stigma against a disease but also from the dreadful thought of an imminent death resulting from an incurable disease, thus granted him compensation of Rs.50 Lakhs on account of wrongful termination of services, leave encashment dues, non-reimbursement of medical expenses and the social stigma faced, to be paid within eight weeks from the date of this judgment without fail.
Moreover, the Court has granted him pension in accordance with law as if he had continued in service as Havaldar and on completion of the required years of service retired as such, without being invalidated. The Court clarified that in computing the quantum of pension payable to the Army (‘Appellant’) has to consider allowances / increments that the appellant would have been entitled to, had he continued in service till the date of his retirement as Havaldar.
Background:
The appellant was enrolled in the Indian Army in 1993 as a Havaldar. He continued discharging his duties in a clerical post without hindrance until the year 1999, when he began suffering from fever, headache and vomiting. For treatment he was referred to the Jabalpur Military Hospital. Here, the appellant tested positive for HIV. Thereafter, the Army Headquarters issued a Notice stating that all persons who are HIV+ve and are suffering from pulmonary or extrapulmonary tuberculosis, would be considered as AIDS cases.
The appellant was reported to be suffering from “AIDS defining illness in the form of neuro tuberculosis”, and thus was officially diagnosed with AIDS. The appellant was then recommended to be invalided out in the “P5” category. Per the medical categorisation of the Army, “P5” referred to those persons who were suffering from “gross limitations in physical capacity and stamina”.
After confirmation from the Invaliding Medical Board (‘IMB’), that the appellant is suffering from AIDS, in 2001, after 8 years and 58 days of service, at the young age of 27, the appellant was discharged from service under Rule 13 (3), Item III(iii) of the Army Rules, 19541 (‘Rules’) on the ground of having been found medically unfit for further service.
Thereafter, in 2003, the “Guidelines for Management and Prevention of HIV/AIDS Infection in the Armed Forces” (‘2003 Guidelines’) came into force. The appellant approached the Madhya Pradesh High Court, seeking quashing of the discharge order and reinstatement with all consequential benefits. The High Court held his discharge from service to be valid on the ground that AIDS would incapacitate his physical capacity, thus coming within the ambit of Rule 13 of the Rules. The appellant challenged this before the Supreme Court, wherein a 3-Judge Bench allowed the appellant to withdraw his appeal, while directing that he could avail the available statutory remedies. Thereafter, the appellant availed his statutory remedy by making an application to the Director General Armed Forces Medical Service (‘DGAFMS’) seeking a Review Medical Board, which was rejected. Furthermore, the appellant was also denied disability pension, AIDS being categorised as a self-inflicted condition. Aggrieved, the appellant challenged the order before AFT which gave impugned judgment.
Analysis:
The Court noted that the AFT, in the impugned judgment, has referred to extensive medical literature citing the hazards of HIV and how it can lead to a deterioration in the physical condition of those who get detected as HIV+ve. However, it said that while the medical literature contemplates myriad infirmities which accompany such a disease and consequently render an individual unfit for military service, the AFT failed to observe that the appellant in the present case was not diagnosed with any such symptoms. The appellant was treated by the Command Hospital and was responding to the treatment administered.
The Court said that this is a case of wrong diagnosis and false alarm with imperiling consequences for the appellant.
Further, while rejecting the Army’s contention that doctors in 2001 have used their best professional judgment to opine that the appellant was HIV+ve, the Court opined that in the absence of any medical literature to show that the test results as per then prevailing medical standards justify the diagnosis that the appellant was suffering from AIDS defining illness.
The Bench said that the appellant was diagnosed with neuro tuberculosis, which was diagnosed without examination by a neurologist whose opinion was elementary. The Court disagreed with the AFT’s opinion that the need of the medical specialist was fulfilled by placing an oncologist on Board.
The Court remarked that appellant while serving in the army was being prematurely discharged; thus, extreme caution and care in ensuring correct diagnoses was required. The Army deliberately tried to cover up the wrong diagnosis despite the 2003 Guidelines and the test reports of the appellant. The Court further opined that the constitution of a Medical Board by the appellant availing the statutory remedy, was arbitrarily, wrongly and deliberately rejected on flimsy and wrong grounds by applying the 1992 Guidelines.
The Court noted that in 2003 Guidelines defining an AIDS illness to be one where the CD4 cell count is below 200 cells/mm, and said that the appellant has submitted between four diagnostic reports, showing that his CD4 cell count was above 300 cells/mm.
The Court said that the appellant, who was trained to live a disciplined life since the tender age of 19, was unnecessarily and without cogent reason thrust into civilian life with little warning or preparation. The psychological trauma that such displacement can bring about needs no elaboration.
After perusing the Notice, the Court noted that the policy reflects the systemic discriminatory practice and predisposition treating HIV as aggravation of sexually transmitted disease and AIDS is self-inflicted. Further, even going by the Army’s policy, the appellant could not be said to be suffering from AIDS since, in evident resistance of the policy assessment, the appellant is still alive and suffering from no serious ailment.
The Court said that the appellant has been discharged from the services of the Indian Army at the prime age of 27 and was robbed of the opportunity of further serving the nation for many more years on account of unfortunate turn of events, the responsibility for which can lie on no shoulders other than the respondents 2 to 4. The Court also noted that he neither received his leave encashment, nor received reimbursement for the expenses incurred by him in medical tests.
The Court remarked that despite the enactment of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, and the slew of awareness measures taken by Governments in recent times, the stigma and discrimination which lamentably accompanies an HIV+ve diagnosis is still an illness that afflicts the minds of society today. The discriminatory sentiment of deeming persons who are HIV+ve to be unfit for employment, is evident from the way in which the appellant has been responded to and treated by the various authorities.
Thus, the Court while granting Rs. 50 Lakhs compensation to the appellant, has remarked that there could never be an appropriate substitute for such adversity, but such financial compensation might act as a balm to soothe the mind and steady the future.
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CASE DETAILS
2024 SCC OnLine SC 343 Satyanand Singh Union of India |
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