IAF Pilot’s Victory on ‘Right to a Safe Work Environment’

Bharat Kumar | May 2017

It is an accepted notion that soldiers guarding the frontiers of our country willingly join the armed forces and accept the perils that prevail with the occupation. While it is their ‘duty’ and ‘responsibility’ to safeguard the nation, take risks, and protect us all from any internal or external threats that may prevail, would it also be within their realm of work to make use of any defective defence equipment owing solely due to a manufacturing defect by the equipment manufacturer? The answer to that now would be a ‘no’.

On 2nd May, 2017, a division bench of the Delhi High Court, compromising of Hon’ble Justices S. Ravindra Bhat and Deepa Sharma, gave a historic verdict recognizing the ‘Right to Work in a Safe Environment’ of an Air Force personnel. The Bench also attributed responsibility on Hindustan Aeronautics Limited (“HAL”) for manufacturing and supplying a defective MiG 21 aircraft and partly on the Union of India (“UOI”) for the trauma caused to the Petitioner, Mr. Sanjeet Singh Kaila and for non-disclosure of relevant information.

The incident leading to the petition was when the Petitioner, on the morning of 4th of January, 2005, following the instructions of his superior embarked on a four aircraft training exercise from the Nal airfield in Bikaner, Rajasthan. Immediately after takeoff, the Petitioner experienced a drift pushing his MiG-21 aircraft to the left. As the Petitioner started checking the vitals in the aircraft, he was simultaneously informed by his wingman of fire at the right rear end of the aircraft. The Petitioner instantly peered into the periscope and found fire and sparks engulfing out of the aircraft. Assessing the emergency, the Petitioner carried out all the Standard Operating Procedures (“SOP”). He then directed the second aircraft to deviate away from him, activated the fireextinguisher and took out the undercarriage of the aircraft for a reciprocal landing. As he started to turn towards the airstrip, the fire and hydraulic lights along with the master blinker alarm started blinking sporadically. Despite realizing that all his efforts to save the aircraft were in vain and the only manner in which he could now survive was by ejecting out of the aircraft, the Petitioner deliberately delayed his ejection so as to move the aircraft away from a densely populated village in order to save civilians and avoid any damage to property. The Petitioner ejected just about 2 seconds before the crash.

Owing the difficult circumstances of ejection, the Petitioner was hospitalized from the 4th till the 11th of January, 2005. On 27th January, 2005 a set of medical tests done on the Petitioner revealed disc bulges on his vertebrae, however owing to the fact that there was no fracture and that the Petitioner was completely physically fit, he was told to re-join flying duties. The Petitioner flew for about nine months after the crash, under constant medical supervision. Despite incessant pain every time he took the aircraft on to the air, his motivation levels kept him going till 7th of November, 2005 when he finally reported sick and got hospitalized. Pertinently, his medical reports stated that the disability was suffered during the course of bona fide service, in circumstances that were not within his control and he was unfit to continue with his existing flying duties which was solely attributable to the incident. Till September, 2007 he was shifted to a non-flying category and was permanently placed in the lower medical category by the IAF since late August 2007

Immediately after the crash, a Court of Inquiry (“COI”) proceedings was called in by the IAF in which HAL also actively participated. After months of extensive investigations, discussions and deliberations, on 13th July, 2005, the Vice Chief of Air Staff, at Defence Headquarters, Delhi put down his observations that the crash occurred due to a manufacturing defect owing to poor workmanship by HAL in the MiG 21 aircraft. He further stated that the Petitioner followed all the SOP’s and saved people by delaying the ejection. On 29th July, 2005 the Chief of Air Staff reiterated his junior colleague’s observations. Significantly, despite participating in the COI proceedings as a witness, the Petitioner was never made aware of the findings of the proceedings and HAL despite being privy to and participating in the proceedings never accepted the conclusions.

In June, 2012, and March, 2013 in order to unearth the truth, the Petitioner sent RTI applications to IAF requesting for details for the cause of the crash. Both the replies to the RTI applications stated that the Petitioner followed all protocols and saved innocent people. The replies further stated that the conclusions formed pursuant to the COI proceedings indicated a fatigue failure in the afterburner manifold in the aircraft. Significantly, the reason for this was stated as poor workmanship and a manufacturing defect by HAL.

Realizing that the crash occurred solely due to HAL’s negligence and owing to a manufacturing defect in the aircraft, the Petitioner first sent representations to UOI. Upon not receiving any response, he approached the Hon’ble Delhi High Court stating that his Right to Work in a Safe Environment under Article 21 of the Constitution of India (Right to Life) has been violated. The Petitioner prayed for attribution of responsibility on HAL, which would help in not only strengthening the internal and external security of our country, but safeguard the interests of fellow armed forces personnel, in addition to an apology and damages for violating his rights.

While the UOI accepted that the aforementioned right exists within Article 21, it denied that the right has been violated. UOI stated that as an Air Force pilot, the risk of an accident is implicit within the job itself and the Petitioner voluntarily took up the job. It further stated that the Petitioner was being unfair by stating that no action was taken pursuant to the COI proceedings as remedial measures were being undertaken to prevent recurrence. HAL on the other hand denied all the allegations. It further stated that the Petitioner has filed the petition to extract monies from it and a remedy for the Petitioner in fact lies under Section 27 of the Air Force Act, 1950. HAL also stated that the Hon’ble Court does not have jurisdiction as the cause of action arose in Bikaner, Rajasthan. Both the Respondents had averred that there was delay in approaching the Hon’ble Court.

THE HON’BLE DIVISION BENCH, WHILE COMING DOWN HEAVILY ON THE RESPONDENTS, MADE THE FOLLOWING OBSERVATIONS AND CONCLUSIONS:

Section 27, Air Force Act, 1950 in no manner precludes the maintainability of the present petition;
Since all the high level meetings took place in Delhi, by the very rule, forum convenience does not preclude jurisdiction, but instead relegates the parties to a forum, which can conveniently exercise jurisdiction over the matter. In the facts of this case, Article 226 clothes the petition with sufficient jurisdiction to hear and decide this case.
It is not adjudicating the airworthiness of MiG 21’s as a fleet of aircrafts, but is concerned only with the crash of the aircraft in question.
“The Fundamental Right to Life and Liberty under Article 21 of the Indian Constitution occupies a transcendental position”. Right to Work in a Safe Environment falls as a subset within Article 21. “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 Bench looked into a catena of international judgements and doctrines including the ‘Feres’ doctrine in the US and ‘Volenti Non-Fit Injuria’ and differentiated how the case in hand is different.
That it has to be correctly assessed what risk the Plaintiff assents to, as well as the incidental and necessary and foreseeable risks that are a natural function of or related to the act in question. The Court also stated that what must therefore be examined, is two-fold; first, if a manufacturing defect of the nature complained of, falls within the category of risk that a pilot assents to and second, whether the respondents owed a duty of care to avoid such a defect.
That “a pilot is entitled to care and protection within the tenets of what is within the control of his/her employers, and the bare minimum that his or her employers are expected to ensure and that the aircraft and the machinery they operate is not seriously compromised by sub-par maintenance or substandard maintenance. That is a risk that no pilot consents to implicitly as a function of her or his job description”. The Court further stated that a manufacturing defect or a defect attributable to less than standard maintenance, which is avoidable and compromises the strength of an aircraft however, is altogether different and can give rise to liability and an actionable claim to damages.
Upon a perusal of the COI proceedings, conclusions indicate that HAL was privy to the proceedings and the observations were communicated to it later. However, it did not accept them. The Court also stated that HAL’s defiant resolve of blamelessness that the Petitioner has no actionable claim, is meritless and indefensible.
Even under writ jurisdiction, the Petitioner must be granted compensation. The Court stated “that compensation in such cases is nearly synonymous with restitution, whereby the Court attempts to restore the position as it existed before the act causing such loss to be committed. The task is however, far more complex when the courts seek to “make good” the loss caused by the sufferance of personal injuries- personal injuries bringing within its fold not only the immediate pain and affliction but also the (in most cases) potential loss which is caused as a result of the physical impairment”.
The Hon’ble Court consequently held that UOI is liable for the trauma and agony that the Petitioner underwent and directed it to compensate Rs. 5 lakhs to the Petitioner. It further directed HAL to compensate the Petitioner Rs. 50 lakhs “for exposing him to more than the reasonable and ordinary risk which he undertook, solely on account of the inadequate and less than standard workmanship that it undertook for the aircraft”.

The present case not only attracts attribution of responsibility on a national defence equipment manufacturer, but further helps in strengthening the security and defence preparedness of our country. While it is completely correct to state that a combatant should willingly fight and perish for the sake of the country, it is absolutely incorrect to consider that every such combatant should use a defective military equipment or take every such defective aircraft onto the air because he has signed for risks. Dignity and respect run in the veins of every soldier, providing and restoring them with the same is our utmost responsibility.

About Author

Bharat Kumar

Bharat S. Kumar is a Senior Associate with the litigation team of Saikrishna & Associates. He graduated from Amity Law School (I.P University, Delhi) in the year 2009. He is also an empanelled counsel of the Delhi State Legal Services Authority and iProbono, a pro bono legal services organization. Mr. Kumar had drafted, filed and argued this matter before the Hon’ble Division Bench of the Delhi High Court on behalf of Saikrishna & Associates which had taken up the matter probono for the Petitioner, Mr. Sanjeet Singh Kaila.