IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 OP.No. 25812 of 1999(W) ---------------------------------- PETITIONER(S): ---------------------- CHACKO C.K., S/O.KUNJUVAREED, AGED 60 YEARS, CHALISSERY HOUSE, NEW CHURCH ROAD, TRICHUR-1. BY ADV. MR.V.O.JOHN MR.JIMMY JOHN VELLANIKARAN RESPONDENT(S): ------------------------- 1. CHIEF OF AIR STAFF, AIR HEAD QUARTERS, NEW DELHI. 2. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF DEFENCE, CENTRAL SECRETARIAT, NEW DELHI. 3. OFFICER COMMANDING, AIR FORCE RECORD OFFICE, SUBROTO PARK, NEW DELHI-10. 4. CONTROLLER OF DEFNCE ACCOUNTS (PENSION), OFFICE OF THE C.D.A. PENSION, ALLAHABAD. ADV. MR.S.KRISHNA MOORTHY FOR R1 TO R4 MR.B.N.SHIVSANKAR FOR R1 TO R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 25812/1999-W ORDER ON C.M.P. NO.43536/1999 IN O.P. NO. 25812/1999 DISMISSED 24/02/2009. SD/- P.R.RAMACHANDRA MENON, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE DISHCARGE (SINGLE SHEET) DATED 20/09/1966. EXT.P2: COPY OF THE REQUEST DATED 14/06/1989 SENT BY THE PETITIONER TO AIR FORCE RECORD OFFICE. EXT.P3: COPY OF THE LETTER NO.RO/2902/1/NERW(WEL) DATED 26/06/1989 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P4: COPY OF THE DUPLICATE DISCHARGE CERTIFICATE DATED 27/07/1989 ISSUED BY THE 3RD RESPONDENT. EXT.P5: COPY OF THE LETER DATED 24/05/1968 FROM THE OFFICE OF THE 4TH RESPONDENT. EXT.P6: COPY OF THE LETTER NO.CAO/10103/223032/APW/NE DATGED 25/04/1969 ISSUED BY A.F. CENTRAL ACCOUNTS OFFICE, NEW DELHI. EXT.P7: COPY OF THE LETTER DATED 07/03/1968 AFCAO WROTE BY THE PETITIONER FOR GRATUITY PENSION ETC. EXT.P8: COPY OF THE LETTER DATED 26/09/1968 AFCAO WROTE BY THE PETITIONER. EXT.P9: COPY OF THE LETTER REF. NO.RO/2706/83/R-III DATED 19/12/1968 SENT BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P10: COPY OF THE LETTER NO.RO/2706/83/R-III DATED 22/03/1989 SENT BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P11: COPY OF THE LETTER NO.199644/R.47/PEN-A DATED 16/06/1969 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P12: COPY OF THE REQUEST FOR SERVICE PENSION/DISABILITY PENSION SENT BY THE PETITIONER TO THE RESPONDENTS DATED 09/09/1999. O.P. NO. 25812/1999-W RESPONDENT'S EXHIBITS: EXT.R1: COPY OF THE CIVIL APPAL NO.164 OF 1993 DTED 14/01/1993 OF THE SUPREME COURT OF INDIA, NEW DELHI. EXT.R2: COPY OF THE CIVIL APPEL NO.13272 OF 1996 DATED 11/10/1996 OF THE SUPREME COURT OF INDIA, NEW DELHI. EXT.R3: COPY OF THE JUDGMENT IN SLP NO.4862/98 DATED 20/07/1998 OF THE SUPREME COURT OF INDIA. //TRUE COPY// P.A. TO JUDGE Rs/ 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