Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Coram of Justice Sunita Gupta (Judicial member) and Lt. Gen. Philip Campose (Administrative Member) pronounced an order in respect to an application by the applicant with regard to refusal to grant disability pension by Air Headquarters (Directorate of Air Veterans).

The applicant was enrolled in Indian Air Force and retired in the rank of Sergeant. While going on duty the applicant’s motorcycle skidded and felt down due to which he sustained the injury and was diagnosed as ‘Shoulder Dislocation’. The applicant made the application to Air Headquarters (Directorate of Air Veterans) which was denied on the ground that the injury was less than 20 per cent. Hence, the present application.

 Learned counsel for petitioner, V.S. Kaidan submitted that applicant’s degree of disability was at the rate 20 per cent and thus the applicant meets the twin condition i.e. where any disability that has arisen subsequently during the course of the service of the applicant any disability that has arisen subsequently during the course of his service must be presumed to have been attributed by military service for grant of disability element and thus he is entitled to 50 per cent disability element. 

Learned counsel for the respondent, Shyam Narayan submitted that the disability which was assessed at the rate 20 per cent could have been cured had he not refused to undergo the surgery.  

Tribunal held that the applicant was not justified in his step of not undergoing the curative surgery as per the Para 85 (b) and (c) of the Pension Regulations, 2008. Consequently, the step taken by the respondent in reducing the degree of disablement was justified. Thus on the said ground, the application was rejected. [Sharad Piyush v. Union of India, O.A No. 833 of 2017, Order dated 16-04-2019]

Case BriefsForeign Courts

“Decisions which are taken by the Majlis-e-Shoora (Parliament), particularly during challenging times, are inevitably required to be respected and upheld.”

Islamabad High Court: Hours before release of Indian Air Force pilot Wing Commander Abhinandan Varthaman, the Bench of Athar Minallah, CJ. was hearing petition filed by a Pakistani citizen under Article 199 of the Constitution of Islamic Republic of Pakistan, seeking to stop Prime Minister Imran Khan’s government from handing him over to Indian authorities.

Wg Cdr Varthaman was captured by Pakistan Army on 27-02-2019 after his MiG 21 fighter jet crash-landed in PoK following a fierce dogfight with F-16 fighter jets of Pakistan Air Force which had intruded into Indian airspace. India had categorically rejected Imran Khan’s call for a dialogue, saying there would be “no deal” on Wg Cdr Varthaman’s release. Amid mounting international pressure, PM Imran Khan, in a joint session of Majlis-e-Shoora (Parliament) on 28-02-2019, announced the release of Wg Cdr Abhinandan as a “peace gesture”.

The petitioner appeared in person and argued that PM of Pakistan was not competent to take this decision; the Parliament was not taken into confidence; and the decision had been taken ignoring aspirations of the people of Pakistan. It was argued that Wg Cdr Varthaman violated the sovereignty of Pakistan by unauthorizedly entering into its territory which was an act of war; and that he was liable to be proceeded against and court-martialed in Pakistan.

The Court noted that release of Wg Cdr Varthaman was announced on floor of the House during joint session of Parliament, deliberately keeping in mind tense situation at the border. Not a single member of the National Assembly or Senate had raised any objection to the said announcement. The decision pertained to matters of foreign policy, defence and security of Pakistan; and such issues were neither justiciable nor fell within the domain of a High Court for interference under Article 199 of Constitution. Reliance in this regard was placed on Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan, 2013 SCC OnLine Pak SC 57.

Further, Majlis-e-Shoora represents every citizen of Pakistan. Patriotism of its members is beyond doubt and, therefore, petitioner’s apprehensions in this regard were misplaced and not warranted. Majlis-e-Shoora is competent to affirm policies of the Government and after such affirmation, they cannot be subjected to judicial review. It is the Parliament alone which represents will of the people of Pakistan, and other organs of the State are expected to respect and bow to its decisions. Thus, petitioner’s arguments were misconceived.

Lastly, the Court noted that petitioner had not been able to satisfy this Court that his fundamental rights would be violated if the detained pilot of the Indian Air Force was handed over to Indian authorities.

In view of the above, the petition was dismissed in limine. [Muhammad Shoaib Razzaq v. Federation of Pakistan, WP No. 786 of 2019, Order dated 01-03-2019]

Case BriefsSupreme Court

Supreme Court: A bench comprising of C.J. Ranjan Gogoi and Sanjay Kishan Kaul and K.M. Joseph, JJ. sought information from the Government of India about the details of the steps in the decision-making process leading to the award of purchase order for 36 Rafale Fighter Jets.

The Bench allowed the petitioner to argue the case in-person in a criminal writ petition wherein questions were raised over the Rafale deal whereby India had agreed to purchase 36 Rafale Fighter Jets made by a French company Dassault. In its order, the Court made it clear that it was not issuing any notice at the instant stage; however, it ought to be apprised by the Government about the steps involved in the decision-making process of awarding the contract. It was further clarified that while requiring the Government to produce the information, the purpose was solely to satisfy the Court and any averments made in the petition were not taken into account.

The Court stated in categorical terms that information which was sought would not cover the issue of pricing or the question of technical suitability of the equipment for purposes of the requirements of the Indian Air Force. The requisite information was directed to be placed before the Court in three separate sealed covers on or before 29 October 2018, to be filed with the Secretary General of the Court. The matter is further listed for 31 October 2018. [Manohar Lal Sharma v. Narendra Damodardas Modi,2018 SCC OnLine SC 1920, dated 10-10-2018]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of S. Ravindra Bhat, Deepa Sharma, JJ. has observed that though a member of the Armed Forces ungrudgingly consents to the risk that comes with his enlistment in the forces, he is still entitled to a safe workplace with standard equipment.

On January 04, 2005, while on a regular flight exercise, the petitioner’s MiG 21 aircraft burst into flames soon after takeoff; after all responses to save the aircraft failed he bailed out and sustained some injuries. A medical examination revealed that he was suffering from Cervicalgia (intense forms of pain, localized to the region of the cervical spine), and accordingly he was shifted to a non-flying category. Later, it was disclosed to the petitioner through RTI applications that the cause of the accident was a manufacturing defect and poor workmanship on the part of Hindustan Aeronautics Ltd. The Court of Inquiry had also found that the incident was caused due to the development of a fatigue crack in the welded portion of the afterburner manifold.

The High Court noted that the right to work in a safe environment applies to armed forces as well, and in the case of Indian Air Force, the employers are expected to ensure that the aircraft and the machinery is not compromised by substandard maintenance. The Court also noted that though the conclusions of the Court of Inquiry were available, the truth was withheld from the petitioner, and he could approach the court only after the RTI queries were responded to. Thus, the UOI was held liable to compensate the petitioner Rs. 5 lakhs for the trauma and agony which he had undergone, and HAL was held liable to compensate him Rs. 50 lakhs for the inadequate workmanship that it undertook for the aircraft. [Sanjeet Singh Kaila v. Union of India, 2017 SCC OnLine Del 8170, decided on 02-5-2017]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: While relying upon the Supreme Court decision in Central Board of Secondary Education (CBSE) v. Aditya Bandhopadhyay, (2011) 8 SCC 497, the Information Commissioner Shri Divya Prakash Sinha has held that the RTI applicants shall not resort to clogging the functioning of the public authority by filing mundane RTI applications, and such recourse to RTI Act is an abuse of the process of law.

The appellant had filed approximately 6443 RTI applications to various CPIOs of Indian Air Force that covered subject-matters primarily pertaining to income and expenditure of various forms of Non-Public Funds. He contended that by seeking such multitude of information he aimed to bring in transparency and accountability to IAF. He added that he was forced to file so many RTI applications with one CPIO as there were only 8 CPIOs in the Indian Air Force. The respondents submitted that in each RTI application, appellant has asked for voluminous information which was not readily available and was also cumbersome to compile, and compilation if attempted would disproportionately divert the resources of the organization, accordingly, information was denied under Section 7(9) of the RTI Act.

The CIC noted that it would have been cogent for the appellant to have filed RTI Applications systematically in a structured manner, with specific requests bringing them clearly within the definition of Section 2(f) of the RTI Act. It was also observed that at no particular stage during the pendency of the appeals did it appear that the respondents had adopted deliberate tactics for not parting with the information sought. The Commission thus concluded that the application of Section 7(9) of the RTI Act in the instant appeals was legitimate. However, in its advisory opinion, the Commission admitted that the lack of sufficient number of CPIOs/APIOs in IAF raised serious concerns, and suggested that there should be at least 1 CPIO and 1 APIO at every unit or station level. [Wg. Cdr. Sanjeev Sharma v. CPIOs, Indian Air Force, 2017 SCC OnLine CIC 534, decided on 18.04.2017]