IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 WP(C).No. 6206 of 2008(L) -------------------------------------- PETITIONER(S): ----------------------- SANAL KUMAR C.B., RAJASADANAM, NEDUVATHOOR, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.T.R.JAGADEESH RESPONDENT(S): --------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. THE CHIEF OF THE AIR STAFF, AIR HEADQUARTERS (VAYU BHAVAN), NEW DELHI-110011. 3. CONTROLLER OF DEFENCE ACCOUNTS (AF) (PENSION), DROUPATHI GHAT, ALLAHABAD (UP). 4. SECRETARY, AFGIS, SUBROTO PARK, NEW DELHI-10. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.6206/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE INJURY REPORT. P2:_ COPY OF THE DISCHARGE APPLICATION DT. 7.11.05 SUBMITTED BY THE PETITIONER. P3:- COPY OF THE CERTIFICATE DT. 6.12.07. P4:- COPY OF THE EXTRACT OF PARA 153 AND 158 OF PENSION REGULATIONS FOR THE AIR FORCE. P5:- AN EXTRACT OF REPRESENTATION DT. 11.9.07 SUBMITTED BY THE PETITIONER. P6:- COPY OF THE LETTER AIR H/41002/SGT/PAIII DT. 9.10.07. P7:- COPY OF THE LETTER FROM DEFENCE MINISTER DT. 24.10.07. P8:- AN EXTRACT OF THE GUIDELINES FOR THE AFGIS. P9:- COPY OF THE JUDGMENT IN CMP. 2967/89 HIGH COURT OF DELHI DT. 5.5.04. P10:- COPY OF THE JUDGMENT IN OP. NO.39594/02 DT. 13.11.08. /TRUE COPY/ P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR, J -------------------------------------------------- W.P.(C) NO: 6206 of 2008 --------------------------------------------------- Dated this the 6th day of January, 2009 JUDGMENT The writ petitioner has approached this Court aggrieved by the denial of pension i.e the disability pension based on his 20% disability attributable to Air Force Service. Even though he has sought the said relief that were rejected in Ext.P6. In Ext.P6 the stand taken is that the petitioner was discharged from service under the clause “At your own request” and the personnel who seek discharge under the said clause are not eligible for disability pension as per para 158 of Pension Regulations for the IAF 1961 (Part I) as clarified by the office of PCDA(P) Allahabad. The bare facts for the disposal of the writ petition are the following: 2. The petitioner was enrolled in the Indian Air Force on 16 July 1990 and was employed for Trade duties of Engine Fitter. On 6th August 2001, during the course of employment, while repairing IL-76 aircraft, the petitioner fell down from the seven step ladder and sustained injury at Air Force Station, Agra. As a result of the accident petitioner became disabled. Ext.P1 is the copy of the injury report. It is stated that after the accident, petitioner's contribution towards his trade duties was comparatively low because his right arm was partially incapacitated. Petitioner thereafter, put in an application for immediate discharge from service on compassionate grounds to look after his aged and ailing parents. The copy of the application dated 7-11-2005 submitted by the petitioner for discharge from wpc:6206 of 2008 2 IAF on compassionate grounds, is produced as Ext.P2. Since he was in low medical category, the petitioner was granted discharge from Indian Air Force on 21-3-2006 after completion of 15 years and 08 months of total service. Ext.P3 is the medical certificate which shows that he has sustained injury with 20% disability life long. Thereafter the petitioner submitted an application for pension which resulted in Ext.P6. 3. The stand taken in the counter affidavit is that going by paragraph 158 of Pension Regulation for the Air Force 1961 (Part -1), an individual who seeks discharge at his own request, is not entitled for disability pension. In the instant case since the petitioner was discharged from the service under the clause 'At his own request', he is not entitled for disability pension. It is also submitted that disability pension may be granted to an individual who is discharged from service on account of a disability which is attributable to Air Force Service. Exts.P9 and P10 which are judgments in identical cases passed by the High Court, New Delhi. In Ext.P10 judgment, this Court elaborately considered the legal position with reference to the provisions of Regulation153 of the Pension Regulations. It is relevant to note that in paragraph 6 after considering various contentions, it was held that relying on Regulation 153 petitioner is entitled to grant of disability pension. This conclusion was arrived at after finding that the petitioner was released under the Release Regulations and as per wpc:6206 of 2008 3 medical records the petitioner has contracted a disability of 20% attributable to service and on account of that disability he was put in a lower medical category and at the time of release he was in a lower medical category than which he was in when he entered in the service. Accordingly it was held that the petitioner comes within the above said provision in Appendix II. The said position will apply to the facts of the case herein. 4. Going by the facts of this case also it is evident that at the time of discharge from Indian Air Force, the petitioner was on lower medical category due to the injury attributable to service. The learned counsel appearing for the petitioner submitted that the percentage of disability was 20% for life long. This is admitted in paragraph 6 of the counter affidavit. 5. The petitioner is drawing service pension under Regulation 104 of the Pension Regulations and taking into account the disability element of the pension, it would have to be revised. The same has to be calculated afresh by the concerned authority. The learned Additional Solicitor General appearing for the respondents submits that the petitioner had to undergo a fresh medical examination even though the learned counsel appearing for the petitioner disputed the requirement of the same. At any rate the respondents need not be restrained from subjecting the petitioner to a fresh medical examination. The respondents will pass appropriate orders in wpc:6206 of 2008 4 accordance with the findings rendered above within a period of three months from the date of receipt of a copy of this judgment. The fourth respondent will consider the claim of the petitioner for benefits under the Group Insurance after considering disability component also. The same shall also be considered within the above period of two months. The writ petition is allowed as above. No costs. T.R.RAMACHANDRAN NAIR, JUDGE bps