N M VENKATA REDDY Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner in this case has raised an interesting contention that despite his having put in hardly 103 days in the aggregate with the Air Force, that he should be awarded a disability pension on the ground that he was discharged from service because of such a permanent disability. The respondents have seriously contested his claim and it is therefore necessary to briefly recount the relevant facts. The petitioner was recruited as an Airman with the Indian Air Force and completed the formalities and joined his duties in the month of May, 1978. His case is that there are rigorous medical tests that one is required to undergo before enrolment to such a post in the armed forces and that he completed all the requisite formalities at the end of which having been found fit, he was directed to join his training. According to the petitioner, as a result of various jobs assigned to him, he suffered a permanent disability to his left ear and that, starting from the following month onwards that he was required to undergo various medical check-ups which confirmed the fact that he had totally lost his hearing in his left ear. Since he is handicapped and disqualified from service with the Air force, he was discharged in September, 1978. The petitioner contends that the disability arose in the course of his duties or training as the case may be and that therefore he is entitled to claim disability pension. He further contends that he had been representing to the various authorities and that they had not granted him the pension, that he had claimed which is why finally, in the year 1993 he has filed the present petition.

(2.) IT is necessary for me to record the defence pleaded by the respondents. In the first instance they contend that the petitioner was recruited and that he was in the initial stages of training when he was required to undergo what is known as a re-medical examination. According to the respondents, this examination was done a few weeks after he was recruited and that this examination indicated that he suffered from a serious hearing defect in his left ear. He was thereafter sent to various specialists, medical centres and finally, a certificate came to be issued on 12-8-1978 by the classified specialist, E. N. T. Command hospital, Air Force, Bangalore, indicating that the disability was permanent and that he is considered unfit for training in the Air Force which was why he came to be discharged from service. According to the respondents, the certificate in question indicates that the disability was "neither attributable nor was aggravated". To my mind, this certificate is totally and completely unsatisfactory and indicative of the cavalier manner in which the case has been dealt with in a serious matter affecting the entire life and career of the petitioner. One would have expected the authorities concerned to act with at least a modicum of responsibility which is totally and completely missing in this case. The learned Advocate who represents the respondents has undoubtedly done his very best to defend these officers by stating that the Court should read into the certificate in that the disability is neither attributable to the duties assigned or task performed by the petitioner after the date of his recruitment nor was it aggravated by any of these factors. For purposes of argument, I am prepared to accept the request made by the learned Advocate and to assume that this is what the doctors have sought to indicate in the certificate. It is on the, basis of this certificate basically that the respondents contend that the petitioner is not entitled to any disability pension. The added argument is that admittedly the petitioner was with the air Force for hardly 3 1/2 months and it is contended that it is physically impossible that such a disability would have occurred during such a short period, the majority of which time was spent by him being sent from one specialist to the other and the contention therefore adopted is that unless it can be conclusively demonstrated that the disability is attributable to anything that took place in the course of his service duties or functions, that he would be disqualified from claiming disability pension. In this regard, reliance is placed on Regulation 173, which very clearly specifies that a disability pension may be granted to an individual who has been invalidated from service on account of a disability which is attributable to or aggravated by Air Force service and is assessed at 20% or over. The subsidiary contention taken up on behalf of the respondents is that the certificate-R-2 has stated that the disability was of the level of 11% to 14%, that this being below 20% that the petitioner is not entitled to any disability pension.

(3.) THE principal contention raised on behalf of the petitioner is that admittedly, he had undergone all the requisite checks including a thorough medical examination at the stage when he was recruited. Petitioner's learned Advocate states that even though the respondents have produced various records, that they have not produced the records relating to the medical examination done on him, at that point of time when he was recruited. Apart from this, what the petitioner's learned advocate basically submits is that unless the petitioner was found hundred per cent physically fit at that point of time that he could not have reached the second stage namely that he would not have been recruited and that he could not have commenced his training. Learned Advocate submits that if an injury or disability has occurred for any reason at any point of time thereafter, that it can only be attributed to something that happened in the course of his training and that therefore, the petitioner clearly qualifies. The learned Advocate has assailed the correctness of the certificate-R-2 because he submits that the earlier part of the certificate indicates that the petitioner has suffered a permanent disability and that he is totally unfit to even continue with his training. The submission is that the disablement was serious enough to result in the petitioner's discharge from the Air Force and that the subsequent part of the certificate namely that the disability is only of the order of 11 to 14% is required to be discarded. He also assails the part of the certificate which states that the disability is neither attributable nor aggravated by Air Force duties and he contends that in the first instance, the respondents have not been able to substantiate as to how this conclusion has been arrived at.