IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 25812 of 1999(W)
1. CHACKO.C.K.
... Petitioner
Vs
1. CHIEF OF AIR STAFF
... Respondent
For Petitioner :SRI.V.O.JOHN
For Respondent :SRI.S.KRISHNA MOORTHY
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :24/02/2009
O R D E R
P.R. RAMACHANDRA MENON, J.
........................................................................
O.P. No. 25812 OF 1999
.........................................................................
Dated this the 24th February, 2009
J U D G M E N T
The petitioner has approached this court challenging the
order passed by the respondents discharging him on medical
ground, more than four decades ago, i.e., on 18.11.1966; such
action having wrongly been done just 25 days prior to his
completion of ‘nine years’ for making him eligible to have
obtained the normal service pension. The specific case of the
petitioner is that the respondents have not even stated the
‘disease’ which the petitioner was suffering from at the time of
his discharge or as to the ‘percentage of disability’, while their
contention that the petitioner was having “Anxiety State (310)”
and hence not fit enough to continue in service, is only an
improvisation of the case to mould their defence in the counter
affidavit filed in the present proceedings.
2. The petitioner commenced his service in the Indian Air
Force as an Airman on 13.12.1957 and after completing 8 years
and 341 days of service, he was discharged on ‘medical ground’
O.P. No. 25812 OF 1999
2
on 18.11.1966. Ext.P1 discharge card shows that the ‘character
and general behaviour’ of the petitioner during his career was
‘very good’ throughout and his ‘trade proficiency’ has been
recorded as ‘superior’. The very same factual particulars have
been incorporated in Ext.P4 discharge book issued to him
pursuant to the appropriate proceedings taken by the petitioner.
3. It is seen from the materials on record that the
petitioner had put forth a claim to provide at least the ‘medical
disability pension’, which was turned down by the department
vide Ext. P5 stating that the concerned disability (however, not
specifically denoted) was not attributable to Air Force service
and further that it had not been aggravated because of the
service rendered by the petitioner in the Air Force. Even though,
the petitioner preferred an appeal before the
Government/concerned authority through proper channel, it also
met with the same fate of rejection, as borne by Ext. P11;
without disclosing or discussing the particular disease or the
extent of disability actually suffered by the petitioner, which, in
turn is subjected to challenge in this O.P.
O.P. No. 25812 OF 1999
3
4. The respondents have filed their counter affidavit
sustaining the action pursued by them, asserting that the
petitioner was medically boarded out of service by the
Invalidating Medical Board duly constituted under the relevant
provisions of the Air Force Rules, 1932, on account of his
disease “Anxiety State (310)”. It is pointed out that the
Invalidating Medical Board had assessed the percentage of
disability at 20%, which made the pension sanctioning authority
to reject the claim of the petitioner for ‘disability pension’ on the
ground that the disease from which the petitioner had been
suffering from was neither attributable to nor aggravated by the
Air Force service. It is also stated in paragraph No.3 of the
counter affidavit that the respondents are not bound to keep the
records beyond the stipulated period of 25 years and hence,
that, no records are available with the Air Force Record Office to
verify the position, for having destroyed them as ‘life expired
documents’.
5. Obviously, the actual ‘disease’ of the petitioner and the
‘extent of disability’, as mentioned in the counter affidavit are not
O.P. No. 25812 OF 1999
4
discernible from any of the documents issued from the office of
the respondents at any point of time, as produced by the
petitioner along with the Original Petition. It is for the said
reason that this court, after considering the relevant facts and
figures, passed an interim order on 01.06.2007 directing the
respondents to produce the documents as to the basis on which
the specific averments are made in the counter affidavit as
mentioned above. The fact remains that no such document has
been produced by the respondents till date; nor have they filed
any additional affidavit or statement explaining the “source”
from where they got the particulars/data as to the ‘actual
disease’ and ‘extent of disability’, to have them incorporated in
the counter affidavit when the records are stated as destroyed
already.
6. It is true that there is considerable lapse on the part of
the petitioner in pursuing his rights and remedies before this
court. The order of discharge, having been passed more than 40
years ago, is no more open to challenge and as such, this court
does not find it fit and proper to entertain the claim on this
O.P. No. 25812 OF 1999
5
head. However, it is very much relevant to note that the
statutory appeal preferred by the petitioner is not seen dealt
with properly and no ‘speaking order’ was passed while
dismissing the same, as conveyed to the petitioner vide Ext.P11.
That apart, while pointing out the ‘specific disease’ on the basis
of which the petitioner was medically discharged and as to the
extent of disability in the counter affidavit, no attempt has been
made from the part of the respondents to produce the relevant
documents in compliance with the interim order dated
01.06.2007. This persuades this court to draw an adverse
inference against the respondents who have made rather
contradictory/inconsistent statements in submitting that no
records are available with them for having been destroyed as
‘life expired documents’ on one hand, while asserting on the
other hand that the petitioner was suffering from the ‘specified
disease’ and that the ‘extent of his disability’ was certified by
the Medical Board at ‘20%’. The respondents are blowing hot
and cold simultaneously, which does not appear to be correct or
proper.
O.P. No. 25812 OF 1999
6
7. Considering the similar course pursued by this court on
an earlier occasion vide judgment dated 16.08.1999 in
O.P.No.17488 of 1995 alerting the respondents as to the burden
cast upon their shoulders, this court finds it fit and proper to
direct the respondents to re-consider the matter afresh, taking
note of all the relevant facts and figures and to pass a speaking
order thereon . This is more so since, the petitioner had served
the Indian Air Force for 8 years and 11 months and was just
short of 25 days of service to have completed ‘9’ years to make
him eligible to have the normal service pension. That apart, as
revealed from Ext.P1/P4 discharge proceedings, the ‘character
and general behavior’ of the petitioner was ‘very good’
throughout and his ‘trade proficiency’ had been admittedly
‘superior’. When the petitioner has got the alleged disease
without any previous history, the burden of establishing it lies on
the Defence Authorities as held by a Division Bench of this court
in Ravi vs. Union of India (1998 (1) KLT 56), as relied on in
the judgment dated 16.08.1999 in O.P.No.17488 of 1995
mentioned herein before.
O.P. No. 25812 OF 1999
7
In the above facts and circumstances the second
respondent is hereby directed to re-consider the appeal preferred
by the petitioner, which is stated as rejected vide Ext. P11 and
shall pass a ‘speaking order’ thereon taking a pragmatic
approach and lenient view, as expeditiously as possible, and at
any rate, within a period of three months from the date of
receipt of a copy of the judgment. The impugned orders are set
aside to the above extent and the Original Petition is disposed of
accordingly. The petitioner shall produce a copy of this judgment
before the second respondent along with a copy of the Writ
Petition and the counter affidavit filed therein so as to enable the
said respondent to proceed with the matter.
P.R. RAMACHANDRA MENON,
JUDGE.
lk
O.P. No. 25812 OF 1999
8
P.R. RAMACHANDRA MENON, J.
……………………………………………
O.P.No. 25812 OF 1999
……………………………………………
Dated this the 24th February, 2009
J U D G M E N T