Monday, May 8, 2017

Compensation for right to work in safe environment

On 2 May 2017, the High Court of Delhi awarded Rs 55 lakh to pilot injured in 2005 MiG-21 crash. The petitioner, an officer of the Indian Air Force (IAF), had sustained injuries on 04 April 2005 while bailing out of a fighter aircraft, whilst on duty as a fighter pilot in a MiG 21 aircraft. The manner in which the ejection took place, the petitioner suffered physical injuries. Due to the injuries, he was placed into a medical category lower than the one that was required of him to continue as a fighter pilot. This affected his career prospects.

The petitioner claimed that the aircraft which he was flying lacked airworthiness, induced by purely human factors, resulted in, violation of his right to life under Article 21 of the Constitution, more specifically, his right to work in a safe environment. The IAF relies on the Hindustan Aeronautics Limited (HAL) for manufacture, assemblage and maintenance of its aircrafts.

The petitioner sued for compensation and an apology from the government. The core basis for the petitioner’s claim for compensation was that his right to work in a safe environment, an un-enumerated but integral component of the fundamental right to life and liberty under Article 21 of the Constitution was violated by the Respondents. The main respondents in this case were the Union of India and HAL.

The High Court (HC) chose to exercise its jurisdiction under Article 226 (2) of the Constitution and held that the fundamental right to life and liberty under Article 21 of the Constitution of India occupies a transcendental position. It commended, “Over the years, the right to life has been expanded to include within its fold, various facets of what is considered to be the essential facets of a life of dignity; a life that represents the minimum that the State must ensure and seek to protect. Amongst these facets of “life” is the right to work in a safe environment. It denotes that an individual engaged in public employment, shall at the very least, work in an environment that is secure and does not expose him to unnecessary harm.”

The HC made reference to a British case: Smith and others (FC) (Appellants) v The Ministry of Defence [2013] 4 All ER 794. It held the Union of India was liable to compensate the petitioner by Rs 5 lakhs for the trauma and agony which he underwent all the while and is also liable for non-disclosure of relevant information relating to an unsafe workplace. The HC held the HAL liable to compensate the petitioner Rs 50 lakhs for exposing him to more than the reasonable and ordinary risk due to the inadequate and less than standard workmanship. The HC further commented, “A soldier or officer’s honour and dignity is as much a part of his right to life; it is to be respected just as much, if not more, for the reason that it is offered unhesitatingly and fully in defending the borders of the nation. Unlike “hired guns” they stand guard so that the rest exercise our liberties. Denying them the right to a safe workplace with standard equipment constitutes violation of their right to life and dignity.”

In this connection I would like to refer to certain portions of my book: “The Armed Forces Special Powers Act: A Draconian Legislation?” published in 2015. Chapter V, “Human Rights and Members of the Armed Forces,” provides (pp. 148-49):

“A soldier … is aware of these hazards to his life, but he may be not aware that he may get killed because of the recklessness of his fellow soldiers or the lack of proper equipment. A pilot may get injured/ killed while flying an obsolete aircraft. A soldier may get killed by another disgruntled or mentally disturbed soldier. He might get killed in an IED explosion, if the vehicle provided by the State does not have protection against such devices. A soldier, who he has been provided with a faulty GPS set, may get killed for intruding into enemy territory accidently. A soldier may get killed in an accident in mountainous terrain, if the vehicle provided to him is unfit for use on such terrain. He may die because of snake bite, if the State fails to provide him with suitable boots for jungle terrain infested with leeches, poisonous insects and snakes. The question which arises in such cases of negligence by the government is whether the death of a soldier in these circumstances would amount to human rights violations. Could the next-of-kin of the deceased soldier prefer a claim against the government for human rights violations? Or, could the government can claim ‘combat immunity’ in such cases and refuse to pay compensation for its neglect? While there may not be any jurisprudence on such issues in the Indian legal system, the British Supreme Court has recently decided a few such cases where the Ministry of Defence had claimed combat immunity.”

Why the High Court rejected the argument that the cause does not fall under Section 27 of the AF Act is unclear. Section 27 of the Air Force Act obliges an IAF officer to seek redress for his grievances by complaining to the Central Government in an appropriate procedure if he, upon “due application made to his commanding officer, does not receive the redress to which he considers himself entitled”.

Why the petition was not preferred in the Armed Forces Tribunal under Section 14 of the Armed Forces Act is also not mentioned in the judgement. Section 14 deals with the jurisdiction of the Tribunal in service matters. The jurisdiction is wide enough and covers “any other matter” which has not been defined as service matter under Section 3(o) of the Act. In addition, section 33 of the AFT Act excludes jurisdiction of civil courts in service matters and provides: “On and from the date from which any jurisdiction, powers and authority becomes exercisable by the Tribunal in relation-to service matters under this Act, no Civil Court shall have, or be entitled to exercise, such jurisdiction, power or authority in relation to those service matters.

It is a welcome change in the approach of the higher judiciary in India and first decision of its kind. It will open a Pandora's Box for similar petitions in the future. We have to wait and watch whether the government appeals the decision to the Supreme Court.

Wg Cdr U C Jha (Retd)

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