Two decades after being ‘incorrectly diagnosed’ with AIDS, Supreme Court awards ‘wrongfully discharged’ soldier Rs 50 lakh compensation, full pension

The appellant was enrolled in the Indian Army in October 1993 as a havildar on a clerical post

The Bench further directed that in computing the quantum of pension payable to the appellant, the respondents shall take into account allowances and increments that the appellant would have been entitled to, had he continued in service till the date of his retirement as havildar.

Tribune News Service

Vijay Mohan

Chandigarh, March 20

Over two decades after a soldier was invalidated out from service on grounds of having contracted AIDS, the Supreme Court has awarded him full pensionary benefits along with Rs 50 lakh as compensation for incorrect diagnosis, lapses on the part of the authorities and wrongful termination of services.

“In view of the extreme mental agony thus undergone by the appellant, in not only facing the apathetic attitude of the respondents but in facing the concomitant social stigma and the looming large death scare that accompanied such a discharge from the armed forces, we deem it fit to award a lumpsum compensation of Rs 50 lakh towards compensation on account of wrongful termination of services, leave encashment dues, non-reimbursement of medical expenses and the social stigma faced,” the apex court’s Bench of Justice Sanjiv Khanna and Justice Dipankar Datta ruled on March 20.

“In addition to the above, the appellant shall be entitled to pension in accordance with law as if he had continued in service as havildar and on completion of the required years of service retired as such, without being invalided,” the Bench directed.

The appellant was enrolled in the Indian Army in October 1993 as a havildar on a clerical post. In 1999, when he began suffering from fever, headache and vomiting, he was referred to the Jabalpur Military Hospital, where he tested positive for HIV.

During subsequent medical disorders and treatment and in view of the existing medical policies and standing orders, he was officially diagnosed with AIDS and was discharged from service in December 2001, after eight years and 58 days of service, at the young age of 27.

He approached the Madhya Pradesh High Court, seeking quashing of his discharge order. A single judge bench allowed his petition with consequential benefits in 2006, but a Division Bench reversed the order in 2007 after observing that he was not discharged solely on the grounds of having contracted a sexually transmitted disease but that AIDS would incapacitate his physical ability to perform military duties.

He also approached the Director General Armed Forces Medical Service (DGAFMS), seeking a review medical board. The DGAFMS rejected his appeal in 2009 on the grounds that the criterion for his discharge was satisfied in terms of the Army’s prevailing policy at the time.

The DGAFMS’s order was challenged before the Principal Bench of the Armed Forces Tribunal, which upheld the discharge on the grounds that the medical report had concluded after sufficient investigation and detail that he was suffering from CNS Tuberculosis and Immune Surveillance for HIV.

The soldier had argued that he was misdiagnosed with AIDS and there had been an error in medical report itself, since the appellant never suffered from tuberculosis which was taken as a defining illness for AIDS.

It was urged that the appellant was merely suffering from double vision, which the doctors misdiagnosed as a tuberculosis-related symptom of blindness.

He further contended that as per the Army’s 2003 guidelines, he was fit for service since his CD4 cell count was above the minimum limit. It was further argued that the appellant was asymptomatic till date, without undergoing any anti-retro viral therapy as would have been prescribed for a person suffering from AIDS.

“We have no doubt in our mind that this is a case of wrong diagnosis and false alarm with imperilling consequences for the appellant. The respondents’ contention that doctors in 2001 have used their best professional judgment to opine that the appellant was HIV+ve, in our opinion, should be rejected,” the Supreme Court’s Bench said while observing that nothing has been brought on record to indicate that the appellant was unfit to continue in service as a clerk after undergoing treatment.

“On the other hand, there are lapses galore on the part of the respondents. They were, in spite of being aware of the adverse and pernicious impact on the appellant, grossly careless and negligent,” the apex court remarked.

“We find the respondents here have mechanically denied the appellant’s request for disability status in a most arbitrary and unreasonable manner,” the Bench added.

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