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Tuesday, October 28, 2014

Some more light on the attempted illegal withdrawal of toll tax exemption from serving defence personnel

This relates to the attempt to illegally withdraw toll tax exemption to serving defence personnel recently discussed on this blog on 06 August 2014. 

A distorted version of a letter endorsed by me to the Minister of Road Transport & Highways on the said subject is doing the rounds on social media. 

For the sake of transparency, and to put the issue in the correct perspective, the complete letter is reproduced below.

Hope this clarifies all doubts on the subject.

* * *

Sh Nitin Gadkari
Minister of Road Transport & Highways
Transport Bhawan
1, Parliament Street, New Delhi- 110 001

                                                                                                            21 Oct 2014


Dear Minister,

1.           The current Government is known to be inclined towards the betterment of the armed forces and looking after their needs and requirements. It is indeed satisfying that the Prime Minister has made his sensitivity known publicly towards the issues related to the men and women in uniform.

2.           Unknown to you however, your Ministry has recently issued a letter (OM No H-24030/32/2014-(Toll) dated 17 June 2014) in the garb of a clarification under the RTI Act whereby an attempt has been made to nullify and withdraw the exemption from toll tax available to ‘on duty’ and ‘off duty’ serving personnel of the defence services under the provisions of the Indian Tolls (Army & Air Force) Act, 1901 and various notifications and letters/OM issued on the subject from time to time and also decisions of Hon’ble Constitutional Courts.

3.          What is more surprising is that the letter has been issued on the basis of an incorrect and patently wrong legal advice by a junior level staffer of the Department of Legal Affairs of the Ministry of Law & Justice (MoLJ) whereas the same aspect had been clarified and approved at Secretary level of both your Ministry as well as MoLJ in the past. It is also not understood as to how an attempt could be made to nullify an existing dispensation and that too in an ambiguous manner by way of a letter dealing with an RTI query.

4.         A detailed letter on the subject highlighting the correct legal position under law addressed by the undersigned to the Secretary of your Ministry as well as Secretary Department of Legal Affairs, MoLJ is enclosed herewith for your immediate necessary action.

5.            Needless to state, it is requested that OM dated 17 June 2014 may be immediately withdrawn since the same is not only based on incorrect legal and factual appreciation of the Indian Tolls (Army & Air) Force Act, 1901, but is also in direct contravention of the notifications, letters and clarifications issued by the MoRTH in conjunction with MoLJ and law as affirmed by the Hon’ble Supreme Court of India. Toll exemption to defence personnel is available not by way of benevolence or a welfare measure but flows from a legislative Act which in turn was incepted to cater to the frequent movement of members of the forces and their families all over the country. It is also sincerely hoped that your officers keep the Minister in loop in the future before issuing any such letter which may have the effect of negatively altering public policy or the morale of the armed forces.
                                                                                                            Thanking You

* * *

Ministry of Road Transport & Highways
Transport Bhawan
1, Parliament Street
New Delhi- 110 001

Department of Legal Affairs
Ministry of Law & Justice
Shastri Bhawan
New Delhi- 110 001

                                                                                                               21 Oct 2014

* * *

1.      This has reference to OM No H-24030/32/2014-(Toll) dated 17 June 2014 issued by the Ministry of Road Transport & Highways (MoRTH) based on Legal Advice No FTS-48/JS&LA(SKM)/2014 dated 06 June 2014 tendered by an Assistant Legal Adviser of the Department of Legal Affairs (DoLA), Ministry of Law & Justice (MoLJ) vide which a clarification has been issued ostensibly in the garb of some reply to an RTI query vide which it has been stated in a roundabout manner that personnel of the defence services are not entitled to toll exemption when not ‘on duty’.

2.       Before touching upon the merits of the legal advice by the Assistant Legal Adviser of the DoLA/MoLJ, it would be worthwhile to mention here that the ibid matter based on the provisions of the Indian Tolls (Army & Air Force) Act, 1901, has been fully deliberated upon earlier by the MoRTH at the highest level in conjunction with the MoLJ and has also been a matter of litigation which went till the Hon’ble Supreme Court. However, the entire earlier correct legislative, legal and judicial position has been attempted to be negated by the issuance of the ibid OM dated 17 June 2014. Before proceeding further, the provisions of MoRTH Letter No NH-12037/278/2003/PB/NH-1 dated 12 November 2003 (See Appendix A) are brought to your notice, the relevant extract of which is quoted below:-

“Ministry of Law and Justice have indicated that Indian Tolls (Army and Air Force) Act 1901 is a special Act which over-rides general acts such as National Highways Act, 1956 and private vehicles of the officers, soldiers and airmen of regular forces are exempted from paying toll irrespective of whether they are on duty or not.”

3.      The above correct legal position was also amplified vide MoRTH Letter No NH-11065/12/2003-P&M dated 15 Sept 04 to National Highways Authority of India (NHAI) vide paragraph 1 of which it was clearly stated that private vehicles of defence personnel shall be exempted. The subject line of the letter also shows that all categories of exemption under Section 3 of the Indian Tolls (Army & Air Force) Act, 1901, would fall under the definition of ‘defence vehicles’ which is an exemption term usually used on National Highways.

4.        However, the latest MoRTH OM dated 17 June 2014 (See Appendix B) has been issued on the basis of advice tendered by a Assistant Legal Adviser of DoLA/MoLJ (See Appendix C). In Para (c) of the legal advice rendered by the Assistant Legal Adviser in which Sections 3(b) and 3(c) of the Act are taken note of, it is stated by him that “the main focus in Sections 3(b) and (c) is on the word ‘Duty’ ”.  Moreover, in Para (b) of the said legal advice, it is stated that Sections 3(g) and 3(h) of the Act indicate the usage of private vehicles for official purposes or duty only. Unfortunately, the appreciation of the Assistant Legal Adviser is not only legally, but also factually wrong and falls foul of even a literal interpretation of the Act and its provisions, and also of earlier clarifications issued by the Ministry of Law & Justice and the MoRTH which have been affirmed even by the Highest Court of the land.

5.          A bare perusal of Section 3 of the Act (See Appendix D) would show that the ‘On Duty’ proviso is only applicable to personnel of the Territorial Army (TA) and the National Cadet Corps (NCC) and those of the Indian Reserve Forces under Sections 3 (b) and 3 (c) and not to personnel of the Regular Army under Section 3(a). In this context, your attention is invited to Section 3(a) of the Act which provides toll exemption to all officers, soldiers and airmen of the Regular Forces (without the requirement of being ‘On Duty’) whereas Sections 3 (b) and 3 (c) provide toll exemption to TA and NCC personnel and those of the Indian Reserve Forces when on duty or proceeding to or returning from duty/service/training etc. It is bewildering to observe that the Assistant Legal Adviser has taken note of Sections 3(b) and 3(c) in his advice but has omitted to make any reference at all to Section 3(a) which is the actual provision dealing with the Regular Forces. The Assistant Legal Adviser has also commented upon Sections 3(g) and 3(h) but has conveniently overlooked the fact that Sections 3(g), 3(h) and 3(i) operate in different fields. While Section 3(g) exempts all carriages accompanying exempted personnel without there being any requirement of belonging to the Government, Section 3(h) deals with carriages belonging to the Government while 3(i) deals with carriages employed in the service of the Government. The Assistant Legal Adviser has mixed up and confused the provisions of all the three different and separate sections. The provisions of Section 3 are tabulated below for an easier understanding:

Section of the Indian Tolls (Army & Air Force) Act, 1901
Categories to which applicable
Section 3 (a) (i)
Applicable to Regular Forces (without the requirement of being “on duty”)
Section 3 (b)
Applicable to Territorial Army and NCC personnel but only when on duty
Section 3 (c)
Applicable to personnel of the Indian Reserve Forces but only when called out for training/service etc
Section 3 (g)
Applicable to Carriages accompanying exempted personnel (without the requirement of belonging to the Govt or being employed in military service)
Section 3 (h)
Applicable to Carriages belonging to the Govt etc
Section 3 (i)
Applicable to carriages moving under military orders or employed in military service

6.          It is also a matter of deep concern that the issue had earlier been examined by the Ministry of Law & Justice with file notings that were approved by the Secretary of the Department but still the Assistant Legal Adviser has opted to render a diametrically opposite opinion and that too after surprisingly endorsing in Para (a) of his advice that the earlier opinion was correct. It is a cause of greater concern that the file while moving upwards has not been apparently examined in light of the substantive law, that is, the Act itself and it has not even been appreciated by any senior authority in the Law Ministry or the MoRTH that the entire legal advice does not even refer to Section 3(a) of the Act which forms the bedrock of exemption to serving personnel of the regular forces.

7.       It is also brought to your knowledge that provisions of Toll exemption and exemption to ‘off duty’ and ‘on duty’ defence personnel were challenged before the Hon’ble Punjab & Haryana High Court in Civil Writ Petition No 8508 of 2006. The Petition was however dismissed by a Division Bench of the Hon’ble High Court which held that the Act itself provided for concessions to defence personnel. The order of the Hon’ble High Court in the Hon’ble Supreme Court by way of Special Leave Petition 15419 of 2006 however the order of the Hon’ble High Court and toll exemption to “on duty” and “off duty” personnel of regular forces was affirmed by the Hon’ble Supreme Court.

8.            It must also be placed on record that such issues which affect the morale of the rank and file of the Armed Forces should not be dealt with in a cavalier manner and neither should Govt policy be allowed to be so fickle so as to change with the personal opinions of officers that too by overriding earlier letters, opinions, notifications, judgements of Constitutional Courts and even substantive  legislative provisions. In fact it surpasses logic as to how could OM dated 17 June 2014 be issued ostensibly in the garb of a clarification under the RTI Act which has had the effect of overriding the earlier legal position solidified by letters and notifications which still have the authority of law and which derive their force from a substantive provision of law which has not been amended?

9.        In view of the above, you are requested to kindly withdraw the legal advice rendered by the concerned Assistant Legal Adviser and also the OM dated 17 June 2014 immediately since the same is not only based on incorrect legal and factual appreciation of the Indian Tolls (Army & Air) Force Act, 1901, but is also in direct contravention of the notifications, letters and clarifications issued by the MoRTH in conjunction with MoLJ and law as affirmed by the Hon’ble Supreme Court of India. It is also requested that meticulous perusal may be initiated in a democratic manner at the highest level before issuing such letters which may result in altering existing Government policy and may have a large impact on the rights, benefits and privileges of a particular section of the society.

Appendices A to D

Sunday, October 19, 2014

Book review of “Maimed by the System” by the ‘Fauji India’ Magazine

Fauji India Magazine has published a detailed review of my book “Maimed by the System” which is placed below.

More details about the book, including its contents, bulk & official orders, regular mail orders and orders for APO addresses can be accessed from the exclusive website www.Maimed.info

Wednesday, October 15, 2014

Big news for Central Govt Doctors: Justice finally prevails, after SC decision, Govt issues orders that NPA is to be added into pension w.e.f 01 Jan 1996 for pre-96 retirees

In the long and tortuous journey for doctors working under the Central Govt, the Department of Pension and Pensioners’ Welfare (DoPPW) has today finally implemented the decision of the Supreme Court which had held in November 2013 that the Govt was wrong in its interpretation of addition of Non-Practicing Allowance (NPA) into total pensionary benefits.

It may be recalled that earlier the Supreme Court had ruled against the claims of the doctors in BJ Akkara’s case but later when the Apex Court was informed about the correct position on the subject and that the Govt had chosen to hide the actual facts from the Supreme Court as also the very important point that even the Prime Minister had approved a policy favouring addition of NPA into the pension of pre-96 retiree doctors, the Court finally ruled in favour of doctors and recorded in its order the unethical stand of the Govt in this regard before the Supreme Court in BJ Akkara’s case.

The Govt had filed a review petition before the Supreme Court which was dismissed in July 2014. Taking a progressive and balanced view of the matter, the DoPPW has finally issued orders implementing the decision of the Supreme Court across the board universally and not just for the petitioners in the case before the Supreme Court as is usually done by the Department of Ex-Servicemen Welfare in cases of military pensioners.

With this, the Govt would have to release the correct deserved pension to all Central Govt doctors w.e.f 01-01-1996 with all consequential benefits by including the element of NPA into the revised scales for calculating pension.

Sunday, October 12, 2014

Colombian Apex Court asks the military not to summarily discharge disabled soldiers (Reflective of the decisions of our Constitutional Courts)

As reported by the Global Military Justice Reform Blog, the Colombian High Court (the Apex Court of Colombia) has rendered a landmark decision wherein it has ruled that disabled soldiers cannot be summarily discharged from the military on the grounds of unfitness unless such an exercise is undertaken in an objective and fair manner with recorded reasons. The Court has also held that such soldiers should be retained in administrative jobs.

This is reflective of a landmark decision of the Delhi High Court, which, following a Supreme Court decision, had ordered the reinstatement (with full backwages and consequential benefits) of thousands of soldiers summarily discharged from service on medical grounds by the Army HQ in 2007.

The stark discrimination between civilian employees and military personnel in this regard, not only related to protection of service but also to pensionary benefits, has been discussed on this blog before.

Long live the Constitutional Courts!

Friday, October 10, 2014

Another instrument of harassment abrogated- Boarding Passes not required for settlement of TA Claims

The Govt of India has progressively dealt a blow to yet another bastion of harassment.

Though the Ministry of Defence is not as proactive as the DoPT, the same dispensation shall be made applicable to military staff mutatis mutandis.

The Department of Personnel and Training as well as the Department of Pension and Pensioners’ Welfare have time and again displayed utmost sensitivity towards the problems of employees and pensioners. Genuine proposals are given due thought and are not rejected summarily. The officers manning important positions are open to suggestions and are always available for interaction and across the table discussions. In fact, to be military specific, there have been instances when the said departments have taken a stand against the Ministry of Defence and the Army HQ in favour of military pensioners and disabled personnel reminding the system about proper appreciation and interpretation of policy.

It would definitely be in the fitness of things for other Ministries and Departments to imbibe the spirit of positivity set into motion by these two departments.

Tuesday, September 30, 2014

Consolidated reports and reviews on my new book “Maimed by the System”

Thanks to everyone, my latest book “Maimed by the System” has been well received.

Needless to state, I would like all of you to read and own the book since the aim of authoring it was to enlighten the populace on the travails, problems and issues facing military veterans and their families.

The book can be procured through an easy process at a discount and free home delivery, including through Cash on Delivery option, from Amazon India by clicking here. It is a non-commercial project and part of its proceeds shall be used for the welfare of disabled soldiers and military widows.

If you are not comfortable in using the online process, or if you have an Army Postal Office or Post Box/Post Bag address, then you can follow the traditional process the details of which are available by clicking here.

More information on the book is available on its exclusive website www.Maimed.Info

Consolidated reports on the book are as follows:

Thursday, September 25, 2014

In a landmark decision on Tribunalisation, the Supreme Court has struck down the formation of the National Tax Tribunal

In a landmark decision on Tribunalisation comprising 270 pages, stressing upon independence of judicial functioning in a democracy, a 5 Member Constitution Bench of the Supreme Court has struck down the National Tax Tribunal Act, 2005, and hence struck down the inception of the National Tax Tribunal which was to be constituted by the Central Government.

On this blog, I have, in the past, authored opeds and opinions on the pitfalls of Tribunalisation and the same can be accessed here and here. The decision on a Public Interest Litigation filed by me regarding lack of independence of Tribunals has been challenged by the Central Government and is pending before the Apex Court.

Though the existence, continuance, nature and constitution of the existing Tribunals would have to be tested on the touchstone of today’s decision, following are the star points expressed by the Bench in the decision:

That Tribunals would only perform a supplemental role and not a substitutional role. The power of judicial review of the High Court under Articles 226 and 227 can never be ousted.

That Members of Tribunals should have no administrative dealings with the Govt.

That only a person possessing professional qualification in law, with substantial experience in the practice of law, will be in a position to handle the onerous responsibilities which a Chairperson and Members have to shoulder.

That it is not possible for the Court to accept that Technical Members have the stature and qualification possessed by Judges of High Courts.

That it is not possible to accept that a party to a litigation (the Central Government in the case of Tribunals) can participate in the selection process, whereby the Chairperson and Members of such adjudicatory body are selected.

That re-appointment provisions undermine the fairness and independence of Members.

The gratitude of the public in this aspect must go to the Madras Bar Association and their counsel, Mr Arvind Datar, for continually taking up threats to our judicial independence head on and to a logical conclusion.

Law marches on. 

Post Note: And while we are at it, I would recommend readers interested in the subject to peruse this detailed oped rendered by Justice JS Narang of the Punjab & Haryana High Court on the subject of Tribunalisation published in 'The Law' magazine earlier this year. 

Wednesday, September 24, 2014

Different retirement ages for Time Scale and Selection Grade Ranks in the Air Force are discriminatory: Supreme Court

The Supreme Court in a landmark decision today has upheld the order of the Armed Forces Tribunal wherein the discriminatory policy of different retirement ages for the ranks of Group Captain (Time Scale) vis-a-vis Group Captain (Selection Grade) was held illegal and struck down.

The Supreme Court has dismissed the appeal filed by the Ministry of Defence and the Air Force against similarly placed officers led by Gp Capt Atul Shukla, and has concluded the following in strong words:

Suffice it to say that the basis for classification in question for purposes of age of superannuation which the appellant has projected is much too tenuous to be accepted as a valid basis for giving to the Time Scale Officers a treatment different from the one given to the Select Officers.

We are also of the view that concerns arising from a parity in the retirement age of Time Scale and Select Officers too are more perceptional than real. At any rate, such concerns remain to be substantiated on the basis of any empirical data. The upshot of the above discussion is that the classification made by the Government of India for purposes of different retirement age for Time Scale Officers and Select Officers does not stand scrutiny on the touchstone of Articles 14 and 16 of the Constitution as rightly held by the Tribunal.

The above closes another yet long tumultuous journey of affected officers. In fact, once the decision was rendered by the AFT, the Air HQ should have taken up a case with the Govt for rationalising the policy rather than unnecessarily challenging it before the Apex Court.

It is high time that litigation against own employees is considered on the touchstone of logic and equity rather than indulging in ego-fuelled appeals. It is time for the political executive to take a call on this and trample on the vicious cycle of luxurious litigation without accountability. 

Sunday, September 21, 2014

Times of India on “Maimed by the System”

The Times of India has today published a detailed report on my new book “Maimed by the System”.

More information on the book is available on the exclusive website www.Maimed.info

The Times of India report can be accessed by clicking here.

Wednesday, September 17, 2014

My new book “Maimed by the System” released: Purchase Information and Reports

My fourth book, “Maimed by the System” has been released by General VP Malik (Retd), former Chief of the Army Staff.

The book is a hardcover collection of real life accounts of defence personnel, military veterans, disabled soldiers and their kin who were wronged by the system but fought and successfully claimed their rights and dues. These are unique real stories of such individuals who had to put up difficult and protracted battles with the officialdom, something they were clearly unprepared for, to claim their basic rights post disability, post battle and many posthumously. Besides the stories, the book also contains some of my selected published works. The book is dedicated to India’s Constitutional Courts, especially the Delhi and the Punjab & Haryana High Courts for standing by the men and women in uniform. It is hope and triumph that the book embodies, not despair. Rather than evoke disdain for the system, the book should act as a lesson and a mirror for all of us towards a foundation of positivity and compassion.

The foreword has been penned by Mr Eugene Fidell, the First President of the National Institute of Military Justice of the United States of America.

The release ceremony was unlike the usual book releases and the humbling evening was rendered even more interesting with the informal conversation and interaction with guests and the media.

Part of the proceeds of this non-commercial project shall be used for the welfare of disabled soldiers and military widows.

You can support the book by buying it from Amazon India by clicking here. They are offering an exclusive deal and free delivery. They are also offering gift wrap facility for gifting the book. The purchase process on Amazon is simple and they are offering the 'Cash on Delivery' method also. 

The book has been published by Chandigarh based Shree Ram Law House, legal/law publishers established in 1991. Information for those who are unable to buy the book online and for bulk orders, and more on the contents of the book can be accessed from the exclusive website www.Maimed.info

Some reports and reviews:

Jai Hind