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Monday, December 22, 2014

The web of babudom

On the Supreme Court’s dismissal of the en masse litigation filed by the Ministry of Defence against its own disabled soldiers, I had stated in my last blogpost that the new government had lost a good opportunity of earning goodwill of soldiers and military families and that junior babus of the ironically titled Department of Ex-Servicemen Welfare (DESW) should never again be given a chance to let down defence veterans and consequently the entire nation with their sadistic egotism.

People have differed with my thought-process stating therein that the top echelons of the government were not aware of the issue and had they been made aware of the same, action would have definitely been initiated in this regard and consequently bureaucracy tamed.

There is no doubt that the military enjoys a better standing with the current regime but whether the higher strata of governance was duly informed about the games of the DESW or not is the moot question, and in this regard, I would like to put across to you the following instances:










....And much more.

Besides, as we all know, the issue has been raised time and again in national media, including mainstream news channels.

What more was required?

It is clear that it is an iron fist and directives from the top that are required to break the negative web of babudom, both military and civilian, to ensure that problems are resolved and not perpetrated. It is also highly desirable that the three Chiefs apprise the PM and the Defence Minister directly regarding issues confronting our men and women in uniform.

Wake up, sleeping beauties!!! 

Friday, December 12, 2014

Dismissal of en masse appeals filed by Ministry of Defence in the SC against disabled soldiers: A great opportunity lost of earning goodwill by the top political executive, and the need for care in the future

It is well known that the current political regime is proactive and deeply concerned about the welfare of men and women in uniform. It is also well documented that both the Prime Minister as well as the Defence Minister are sensitive towards the fact that military veterans in this country are perturbed by the functioning of the Department of Ex-Servicemen Welfare (DESW) and also the litigation unleashed by it on disabled soldiers, poor pensioners of lower ranks and also military widows. Not only that, this issue was also raised in the Parliament and very recently by known public figures. I had also sent a confidential note to all concerned, including the defence services, requesting action in this regard. But of course, this issue is not as glamorous or brownie point oriented like say the OROP.

Keeping in view the fact that the manifesto of the ruling party spoke of minimizing appeals filed against military veterans by the Govt, many veteran organizations wrote to the PM and all concerned apprising them of some ruthless decisions taken in the past, not by the political executive but by the bureaucracy at the lower levels in tandem with some staffers of the defence accounts department who cannot think beyond the literal interpretation of Govt policy which it feels is sacrosanct even if it is struck down by Courts or contravenes law, logic or basic common sense. Unfortunately, in our system, any illegality or illogical action can be defended with a noting sheet by the civil as well as military bureaucracy leading to wrong inputs to those occupying posts at the top who do not have time or inclination to hear the other (affected) side of the story.

The issue of broad banding affected quite a few disabled soldiers.

The Fifth Pay Commission had introduced the concept of broad-banding to minimize medical subjectivity and rationalize mistakes of medical boards by providing that those with a disability below 50% would be granted a disability element by treating it as 50%, those with 50%-75% would be granted the benefit of 75% and above 76% would be considered as 100%. However while implementing the concept, the Defence Ministry granted it only to post-1996 personnel invalided out on medical grounds and not to pre-1996 or those who were released with disability pension on superannuation or completion of terms, though all categories were equally afflicted with the problem of medical subjectivity. Military pension rules however provided that defence personnel released in a low medical category were deemed to be invalided out of service for purposes of disability pension.

There was a series of litigation thereafter wherein various benches of the Armed Forces Tribunal, High Courts and then the Supreme Court in a detailed decision (Capt KJS Buttar Vs Union of India) held that  pre-96 disabled personnel and those released on completion of terms or superannuation could not be deprived of broad-banding. One of the lead cases therein was that of Former Army Vice Chief Lt Gen Vijay Oberoi, war disabled in the 1965 Indo-Pak War. The then Chief of the Army Staff, Gen VK Singh, rightly and strongly directed that appeals should not be filed in such cases and the decisions needed to be fully accepted and implemented by the establishment.

The filing of appeals in the broad-banding matter even after the decision of the Supreme Court in Capt KJS Buttar’s case displayed a strange kind of incorrigibility. The continued filing of appeals even after the Review Petition of the Defence Ministry was dismissed by the Supreme Court in January 2014 in Capt KJS Buttar’s matter reflected administrative arrogance which surpassed all lines of institutional decency. The sustained filing of civil appeals against disabled and war disabled soldiers in the Supreme Court much after the new regime had taken over was perplexing too since it was diametrically opposite to the sentiment of the new Govt. In the bargain, thousands of appeals were filed and tagged together wasting crores and crores of taxpayers’ money. Your money, my money. Would the citizens of any nation allow their taxes to be used to unleash terror on disabled and war disabled soldiers?

One always thought that with a strong political will in place, the lower level bureaucracy would be tamed. With so many verdicts on the same subject in favour of disabled veterans and with the expressed sentiment of the present government, I personally expected a decision at the highest level to the effect that such appeals filed at the behest of the DESW and also elements of the military establishment would be withdrawn.

Ultimately, like always, it was the judiciary that came to the rescue when the Supreme Court dismissed more than 800 appeals filed by the Ministry of Defence and the Army against its own soldiers. Though it has brought relief to disabled and war disabled solders, in it the Govt has also lost the opportunity of earning a whole lot of goodwill, a chance that should have been grabbed by simply suo moto withdrawing these unethical appeals from the Supreme Court. The anti-veteran sentiment of the lower bureaucracy has let down the political executive but that is for the higher echelons to realize.

I hope the Govt gives no more occasion to junior babus of the ironically titled Department of Ex-Servicemen Welfare to let down defence veterans and consequently the entire nation with their sadistic egotism. I hope next time the Govt is faced with a situation like this, it takes the side of judiciousness, logic, sentiment and sensitivity and not morbid file notings put up by a babu sitting in a dingy office somewhere attempting to decide the entitlement of thousands of those who sacrificed their comforts in their prime, for all of us.

Ungrateful we are indeed. 

Saturday, December 6, 2014

A unique, humble and politically neutral appeal to the Prime Minister and the Defence Minister by public figures regarding our veterans, disabled soldiers and military widows:

ON THE OCCASION OF THE ARMED FORCES FLAG DAY 
7th DEC 2014

When you go home, tell them of us and say
For their tomorrow, we gave our today

A REQUEST BY CONCERNED CITIZENS TO THE HON’BLE PRIME MINISTER AND THE DEFENCE MINISTER (RAKSHA MANTRI) CALLING FOR INCULCATION OF SENSITIVITY WITHIN THE SYSTEM TOWARDS THE NEEDS AND REQUIREMENTS OF MILITARY VETERANS AND FURTHER FOR WITHDRAWING LITIGATION INITIATED BY THE GOVERNMENT IN THE LAST FEW YEARS AGAINST DISABLED SOLDIERS AND MILITARY WIDOWS

Sirs,

1.    At the outset, we would like to emphasize that this request of ours is politically neutral and without any political connotations and we are making this effort on the Armed Forces Flag Day  with an optimism stemming out of your known concern for men and women in uniform.

2.     In the last few years, the country has witnessed humongous amount of litigation initiated by the Government against its own disabled soldiers, old military pensioners and military widows. In fact, it is well known that most of the Civil Appeals/SLPs filed by the Ministry of Defence (MoD) and pending in the Hon’ble Supreme Court are against the disability benefits awarded by Courts and Tribunals to disabled soldiers- an actuality which is stark and alarming enough to make the entire citizenry hang its head in shame.

3.     Most of these appeals are filed in the Hon’ble Supreme Court by the MoD on the pretext that court decisions favouring disabled soldiers are against “Government policy” and some officers seem to suggest that irrespective of the arbitrariness or the illogical nature of some policies, it is their sacred duty to defend them till the Apex Court rather than undertake an honest exercise to resolve anomalies in such policies or making them humane or realizing that there must be something amiss in such policies if the same are being repeatedly commented upon adversely by judicial bodies. Moreover, many decisions rendered by Courts and Tribunals in favour of soldiers are not implemented by the MoD without even obtaining a ‘stay’ from a higher judicial forum.

4.      It is also observed with concern that appeals on similar legal issues are repeatedly filed by the MoD citing artificial distinctions even when a particular matter has already been settled by the Hon’ble Supreme Court or a High Court. It is further a matter of concern that some of such appeals involve a pittance, to take an example, there are appeals filed by the MoD against the enhancement of disability element of pension granted to Sepoys by High Courts/Armed Forces Tribunals @50% disability rates in lieu of 40% rates- a total basic pension amount of Rs 310/- (Rupees Three Hundred and Ten) per month. There are other appeals challenging the award of 20% disability element amounting to Rs 702/- (Rupees Seven Hundred and Two). Comparing it with the litigation threshold of other Ministries again paints a grim picture since establishments such as the Income Tax Department do not approach the Hon’ble Supreme Court unless the amount involved is more than Rs 25,00,000/- (Rupees Twenty Five Lac).

5.      It is also unethical that in the course of such moves by the MoD, the lower level staff has drilled into the minds of the higher bureaucracy and the political executive that soldiers are being ‘greedy’ with their demands. These are one-sided decisions obtained from the political executive by painting a unilateral picture since poor soldiers and military veterans and other stakeholders do not have the ear of the higher echelons of governance and are unable to rebut incorrect facts ultimately leading to skewed decisions. As per media reports, the Government has recently (probably rightly) decided not to appeal to the Hon’ble Supreme Court against a decision of the Hon’ble Bombay High Court involving an amount of Rs 35,000 Crores, in order to support the morale of business houses investing in India and also the overall business sentiment, but we would like to point out here that the morale of our men and women in uniform is also of utmost importance to us as a nation, and we, the citizens, and the Government, are expected to stand behind them rather than stand against them in an adversarial role. It is painful to even imagine the agony caused to poor soldiers and their families who, from far off places, are forced to litigate by the MoD till the Hon’ble Supreme Court with meagre resources.

6.    Disability benefits are granted quite liberally in all democracies but in India these are made subject to many Ifs and Buts leading to a hyper-technical and literal approach rather than a liberal approach as is intended by the rules. For example, many disabilities such as psychiatric and cardiovascular disorders are termed as “Neither Attributable to, Nor Aggravated to military service” resulting in denial of disability benefits not realizing that irrespective of whether a person in deployed in field or peace, there is inherent stress and strain in military service coupled with the fact that a person operates away from family during most of his/her service in a regimented lifestyle under a strict disciplinary code. Within the system, there is denial of benefits at many stages starting from military medical boards to administrative authorities, who, at times even easily blame ‘domestic reasons’ for stress related disorders again not realizing that a person remaining away from family due to the very nature of military service is torn between domestic requirements that he cannot attend to (as other common citizens can) on one hand and the call of duty on the other. Such issues have already been favourably emphasized by the Hon’ble Supreme Court in the two recent decisions of Dharamvir Singh Vs UOI (Civil Appeal 4949/2013) decided on 02 July 2013 and K Srinivasa Reddy Vs UOI (Civil Appeal No 5140/2011) decided on 09 Oct 2014 and by the Hon’ble Punjab & Haryana High Court in Umed Singh Vs UOI (CWP 7277/2013) decided on 14 May 2014 and Barkat Masih Vs UOI (CWP 1792/2013) decided on 23 May 2014. In fact, in most operationally active armies, any disability arising in a person while in military service or during authorized leave is deemed and presumed to be related to service unless caused due to gross negligence or substance abuse.

7.        It would also be appropriate to recall that appreciably many MPs cutting across party lines have taken up this issue in the past, including Ms Smriti Z Irani, who did so in August 2013, in the following terms:

“...though the rules of granting disability pension are inherently very liberal and also endorsed as such by the Supreme Court in the recent judgment of Dharamvir Singh Vs. Union of India, yet many cases of disabilities arising during military service are restrictively and hyper-technically declared ‘neither attributable to, nor aggravated by military service’ by the MoD leading to denial of disability pension to disabled soldiers. Also, military personnel with non-service related disabilities discharged with less than 10 years of service are not entitled to any form of pension leading to denial of the right to live a life of dignity, whereas the employment of civilian employees on being disabled is protected under section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 enabling them to earn full pension. Majority of appeals and SLPs filed by MoD before the Supreme Court are against their own disabled soldiers on the specious ground that courts and tribunals have granted relief against Defence Ministry’s policy. More than one lakh retired defence personnel have been affected.

            Ironically, far from safeguarding the welfare of retired soldiers, sailors and airmen, many of them disabled from battle injuries or the bleak conditions of service, the DESW stonewalls and holds off payment until an ex-serviceman claimant is either dead or broke.

            In view of the above, I urge the Government to intervene in the matter to resolve the issue and ensure that soldiers who made sacrifices for the nation get their rightful and respectful due...”

8.      For the defence community, the ruling majority party had also kindly included “minimizing of appeals” as one of the points in the defence section of its manifesto and even You Sir (the Hon’ble Prime Minister) had objected to litigation involving disabled soldiers in your first campaign in Rewari in Haryana. It is hence legitimate to expect that both of you, that is, the Hon’ble PM and the Raksha Mantri, would be forceful enough to make the MoD realize the morbidity and the anti-veteran character of their attitude in making disabled, war disabled, maimed, handicapped and infirm soldiers the target of such sadistic ego-fuelled litigation which emerges not out of genuine legal points but out of administrative egotism when mere common soldiers, especially of the lower ranks, manage to get relief in Courts against the mighty system, the MoD.

9.         With this sanguine hope, all of us hence appeal to you Hon’ble PM and Raksha Mantri ji, to initiate the following steps:

A.   Direct Ministry of Defence to withdraw litigation initiated against our disabled soldiers & military widows related to the subject of their disability and pensionary benefits at the earliest.

B.     Constitute a committee, with stakeholders and independent experts as members, to resolve all other policy anomalies which have given rise to litigation in issues concerning military veterans and widows.

C.     Ensure that officers serving in the Ministry of Defence in general, and Department of Ex-Servicemen Welfare in particular, are sensitized towards the needs and requirements of the military community and realize that it is their first pious obligation to serve soldiers, veterans and their families, giving them due respect and dignity which they deserve.

Thanking you in anticipation

CITIZENS FOR SOLDIERS

Endorsed by

Rajeev Chandrasekhar, Member of Parliament

211, North Avenue
New Delhi – 110011


(The above address may be used for communication related to the subject)


And


2. Kabir Bedi, International Actor, Cavaliere Ordine al Merito della Repubblica Italiana

3. Brig Kuldip Singh Chandpuri (Retd), MVC, VSM, War Hero, Battle of Laungewala 1971 Indo-Pak War

4. Admiral Arun Prakash (Retd), PVSM, AVSM, VrC, VSM, Former Chief of the Naval Staff

5. Justice Ghanshyam Prasad, Former Judge, Patna High Court, Former Member, Armed Forces Tribunal

6. Lt Gen S Pattabhiraman (Retd), PVSM, AVSM, SM, VSM, Former Vice Chief of the Army Staff, Former Member, Armed Forces Tribunal

7. Vijay Gore, IAS (Retd), Former Additional Chief Secretary Govt of Karnataka


8. Lt Gen PC Katoch (Retd) PVSM, UYSM, AVSM, SC, Former DGIS, Indian Army

9. Chinmayi Sripaada, Award Winning Singer, CEO Blue Elephant, Former RJ & TV Host

10. Lt Gen Milan Naidu (Retd), PVSM, AVSM, YSM, Former Vice Chief of the Army Staff, Former Member, Armed Forces Tribunal

11. Sucheta Dalal, Managing Editor Moneylife, Founder Trustee Moneylife Foundation, Padma Shree Awardee

12. Nitin Gokhale, Journalist, Author, Defence Analyst

13. Maj DP Singh (Retd), 100% Disabled Kargil War survivor, First amputee marathon runner from India, Triple Limca Record holder, Inspirational Speaker

14. JP Singh, IAS (Retd), Former Member Public Service Commission

15. Rahul Ravindran, Actor

16. Jaskirat Singh Nagra, Vice President Continental Device India Limited

17. Navdeep Singh, Lawyer, Author


Friday, November 28, 2014

Maimed by the System eBook is now available on Google Play Books

My book, “Maimed by the System” is now available worldwide in electronic/eBook format on Google Play Books and can be bought at a discount from this link.

The book can be downloaded and viewed on all Android devices, ipad, iphone and also computing devices with the Chrome browser.

Of course, I would still recommend the hardcover version which is also available at a discount and free home delivery through a very easy process via Amazon India.

Yes, I want all of you to read the book!!!

It is a non-commercial project and part of the proceeds shall go into the welfare of disabled soldiers and widows. 

You can learn more about the book on www.Maimed.info

Saturday, November 22, 2014

Disability and Casualty pensionary awards further enhanced: orders issued for civilian pensioners and would be soon issued for defence pensioners

As many would recall, with effect from 01-01-2006, various forms of pensions were calculated and based on the minimum of the new pay bands introduced by the 6th Central Pay Commission rather than the minimum of pay for each separate grade/rank within the new pay bands according to the new fitment tables.

This controversy was ultimately resolved on judicial intervention and the Government ultimately relented and removed the anomaly, though only from September 2012 rather than January 2006 which was in fact the day of the inception of the said anomaly.

That matter went till the Supreme Court which was pleased to affirm the orders of the Delhi High Court which had in turn directed that the benefits were to flow from January 2006 and not from the artificial future date of September 2012. Even the Review and then the Curative Petitions filed by the Government against the decision of the Delhi High Court were later dismissed by the Supreme Court. Of course, the Government did not issue universal orders and has re-agitated the matter in the Supreme Court in many other cases.

Notwithstanding the controversy of revised arrears from January 2006 versus September 2012, another anomaly that persisted was that though the anomaly in the regular pension now stood rectified, the calculation of casualty pensionary awards was still being based upon the minimum of pay band rather than the minimum of pay within the pay band for each grade/rank.

The said anomaly has now been rectified with effect from September 2012 and orders have been issued for civilian pensioners ordaining that casualty pensionary awards shall also be based upon the minimum of pay within the pay band for each grade/rank according to the fitment tables rather than the minimum of the pay band itself.



Orders for defence pensioners are to be issued by the Department of Ex-Servicemen Welfare (DESW) of the Ministry of Defence and are expected soon since the financial clearance has already been accorded.

Friday, November 21, 2014

An open letter to the Defence Minister by an Indian Military Veteran in the United States (From StratPost)

A former Captain of the JAG department of the Indian Army, now in the US, has written an open letter to the Defence Minister which has been featured and published on StratPost.

Here is the text:

Dear Shri Manohar Parrikar,

I write to you today after attending Veterans Day celebrations in Washington DC on November 11, 2014, as a former Indian Army Veteran. I would rather prefer calling ex-servicemen as ‘Veterans’ without giving them a feeling of gender bias or being left out as the term ‘ex’ conveys.

Having served the Indian Army, given my youth to the nation and being a third-generation Army officer I am proud to say that the qualities of ‘guts and glory’ run in my blood.

With this open letter, I intend highlighting the fact as to how Veterans are respected and revered in the United States of America, which I never witnessed back home in my own country. This, I say with conviction after having a first-hand experience at various events, which reflect the honor meted out to the Veterans of the Armed Forces. The country and its citizens do not give any differential treatment to non-US Veterans like me. Rather the kind of attention and respect I have received here as a Veteran is applaudable.

The Veterans Day Celebrations made me feel how American citizens (including civilians) were proud of their soldiers who defend their borders. Each person who knew that I had served my nation came to appreciate my role and hugged me. I wonder why our Indian civilian population would not pay attention to the soldiers who have sacrificed their youth for India. The root cause for all this is that we do not glorify the important role of our Armed Forces in the World Wars and respective wars in the annals of history in the curriculum taught at school level.

Are our men and women in uniform only to be remembered for a short attention span? They are called only on occasions such as Republic Day and when in dire straits especially during natural calamities like floods, cyclones and earthquake for relief work. Not to mention the ‘aid to civil authority’ in times of domestic turmoil just because the local police and administrative authorities (the so called babus) could not handle the situation.

I would like to emphasize that USA has special programs and scholarships (yellow ribbon program) to encourage veterans to continue their higher studies. Please note that this scheme is alike for officers and troops. One such example is yours truly.

I am presently pursuing my Masters of Laws in a top ranking US Law School and the University has awarded me at par scholarship as a foreign veteran. There are various networking events and recruiting workshops that are conducted only for the veterans.

The US Veterans face the same myths of ‘irrelevant experience’ and ‘rigidity in thought and action’ while moving to the civilian world however the US government and its policies make the transition simpler. The US Department of Veterans Affairs and other authorities as well as universities make the Veterans’ ride smooth to move from the battlefield to the boardroom. US Companies receive tax benefits on hiring Veterans. It is pertinent to mention that US troops (not just officers) have been making a mark in the corporate arena by displaying their leadership qualities.

My concern at this point in time is that why our Armed Forces personnel are not glorified for their heroic acts. Our soldiers have been fighting in the toughest terrains possible in this world.

Why are the Veterans treated like a ‘burden’ by the serving officers and the Ministry of Defence? Why does a Veteran have to struggle to get his paltry sum of disability pension by resorting to long drawn and expensive litigation doing rounds of Armed Forces Tribunal and higher Courts? Why are the majority of appeals filed by the Ministry of Defence in the Supreme Court against their own disabled soldiers and old pensioners? Why are you- the decision makers, shielded and insulated from the real problems suffered by the veteran stakeholders and made to sign on the dotted line wherever the military or civilian bureaucracy wants resulting in unilateral decisions which are forcibly imposed?

Why do you not directly get to hear the authentic voice of the Veterans and the problems that they are facing? Why is the status of military personnel on a constant decline in the official pecking order? Why are there not enough continuing legal programs for our soldiers except the antiquated vocational courses of Director General of Resettlement? Why is the Kendriya Sainik Board not being pro-active on policies on Veterans? Is showing an agenda on paper enough?

I say this not as a disgruntled Veteran but as a responsible former officer of Judge Advocate General’s Department who has served in the Integrated Headquarters of Ministry of Defence and worked with these institutions closely.

May I also remind you that your party in its manifesto had promised minimizing appeals against soldiers with respect to the rulings rendered in their favor by judicial bodies, an issue which was also strongly raised by Ms Smriti Irani when she was in opposition, however sadly nothing seems to have moved in that direction, there being not even an iota of change in the attitude of the Ministry in the said regard.

I request you, as the new Defence Minister, to implement progressive policies for all Armed Forces personnel (not just officers but also the troops) and Veterans of the three Forces.

As for the Indian citizens to look up in awe towards the Indian soldier and appreciate the role of Armed Forces at all times, this change in attitude and thought has to be instilled in the minds of the younger generation by highlighting the glory of the Forces. This is also the reason for the low rate of selections in the Armed Forces in the past few years at the Commissioned Officer level.

My country has the third largest Army (and an equally capable Air Force and Navy), that craves for attention and respect for the valour it has shown over the ages.

It is for you to take a call on this Raksha Mantri Ji, it is for you to ensure that Indian Military Veterans like me command respect and dignity in my own country too, just as we do, ironically, in other democracies.

Sincerely,
Loveleen Kaur Mann
Former Captain, Judge Advocate General’s Department
Indian Army

---- 


Loveleen Kaur Mann is a former JAG officer of the Indian Army. She has conducted various Courts-martial independently and handled critical litigation on behalf of Union of India before the Armed Forces Tribunal and Supreme Court of India. Currently she is pursuing her International Legal Studies LLM at Georgetown University Law Center in Washington DC. She is majoring in War Crimes and International Criminal Procedure. She has been nominated as the Global Teaching Fellow 2015 and will focus on Laws of Terrorism and Asylum.

Tuesday, November 11, 2014

Supreme Court overturns decision of Armed Forces Tribunal whereby disability pension was denied to a soldier and endorses the link between domestic commitments vis-a-vis military service leading to aggravation of psychiatric disorders

Readers of this blog would be aware that umpteen number of times the connection between domestic factors and military service leading to an effect on the psychological health of soldiers has been raised by me to which our system seems oblivious. Besides other posts, the issue has been discussed threadbare in this post dated 30 May 2013 and more recently in this op-ed on StratPost dated 15 May 2014, the following lines of which address the issue:

Rules promulgated by the Government state that if the cause of the disability cannot be identified, then disability pension is to be granted to the individual by taking the disability as attributable to service, but in practice, in such cases disability pension admissibility is rejected by stating that pension cannot be awarded since the ‘cause is unknown’ or that the disease is a ‘constitutional disease’. Psychiatric disabilities, Post Traumatic Stress Disorder (PTSD) and even worrying trends of suicides and fratricide are being ignored and mostly being wrongly linked to ‘domestic reasons’ thereby obliterating a connection with military service so as to keep negative propaganda at bay, rather than looking within. But this approach is not only a disservice to our soldiers but also cowardly whereby eyes are closed to an issue which should engage us and which has a direct link with military life.

A soldier spends most of his service life in his unit and away from his family, blaming such occurrences on ‘domestic reasons’ may be the easy way out to escape responsibility but hardly moral, ethical or legal. And then there are certain provisions that our commanders, doctors and even those deciding entitlements sitting in tall towers in Delhi are unaware of. A succinct example would be, that as per rules, even suicides are to be declared as ‘attributable to military service’ if the occurrence is in a high altitude or isolated area, and this has been the rule position since 1937 when the British codified this aspect. But why would anybody want to go deep and study such issues, scratching the surface is much easier, even if it leads to deleterious consequences to the entitlements of our soldiers and their widows.

To deny benefits, at times it is remarked that such disabilities may also have arisen had the particular person not been in the Army. Very well. Here is a person who is 24 hours and 365 days on call under a stern disciplinary code, mostly away from family, in a strictly regimented routine, retires in his 30s, and can he be simplistically compared with say a civilian employee who goes to office at 9 in the morning to return at 5, five days a week, lives with his family in his hometown, enjoys holidays, retires at 60?. It shouldn’t take an expert to reply in the negative.

While a solider is away on military duty, wouldn’t common ailments such as hypertension or heart diseases or seizures or psychiatric disabilities or psychosomatic disorders get aggravated by even seemingly insignificant incidents at the home-front like admissions or non-performance of children in educational institutions, minor property disputes, lack of care of aged parents and family back home, insensitivity of civil administration and the like?


Thankfully, this reality has found favour with the Supreme Court in a recently pronounced decision in a case where a schizophrenic solider, K Srinivasa Reddy, had challenged the verdict of the Chennai Bench of Armed Forces Tribunal (AFT) which had rejected his plea for disability pension on the pretext that the disability had been declared ‘neither attributable to, nor aggravated by service’ by a military medical board. Most importantly, while setting aside the order of the AFT, the Supreme Court has in effect observed in its decision that aggravation is bound to occur in such situations since soldiers are torn between their domestic commitments and call of duty. The Supreme Court has once again reiterated that a disability is to be presumed as having been caused due to service conditions as also provided under the rules unless the medical board assigns reasons as to how the disability was such that it could not be detected at the time of acceptance into service. Of course, our medical boards or the locally and crudely produced Guide to Medical Officers (Military Pensions) which takes no notice of what medical research has gone into its publication, cannot override what is provided under the rules promulgated by the Government of India which duly favour such disabled soldiers.

This brings me to yet another aspect. Forget about negative findings, even when medical boards return a positive finding of attributability or aggravation favouring our soldiers, the Services HQ are administratively terming many disabilities as ‘neither attributable/nor aggravated’. Of course, this is contemptuous since the Supreme Court had way back in 1993 held that once a medical board was in favour of an individual, the declaration of attributability/aggravation could not be overturned by administrative authorities. The reason being put across by the Services HQ is that officers of the Defence Accounts Department (DAD) do not agree to grant of disability pension in many cases even if the medical board is in favour of an officer/soldier. This attitude however is highly objectionable since most of the committees and bodies handling the grant of disability pension are headed by senior service officers and officers of the DAD are merely individual members of such committees. In case, if it is the DAD which is to prevail, then the question arises that what is the use of having such multi-member committees at all? or what is the purpose of having senior serving military officers as the heads of such committees? Instead we can then just have a single member committee consisting of one officer of the DAD who can deal with the futures of our thousands of disabled troops with the nameplate ‘GOD’ placed outside his or her office! 

What is more valuable or binding on us? Rules and decisions of our Apex Court and the agony of our soldiers OR the personal opinion of one junior member of a sarkari committee who can illegally dictate his or her terms to the seniormost uniformed officers who blindly fall in line?


Think. Introspect. Look within.

Saturday, November 1, 2014

A great first step: Standing Committee on Welfare of Ex-Servicemen constituted on the lines of Standing Committee on Voluntary Agencies (SCOVA)

As regular readers would be aware, we have been pointing out that the single biggest impediment in resolution and rationalisation of problems related to military veterans was that the stakeholders did not have a say in decision-making and that senior bureaucrats and the highest of political executive were isolated and insulated from the voice of the veteran community by a regressive coterie of junior level bureaucracy that had grown a tangle of roots within the Ministry of Defence as also the Army HQ. Most problems emanated from this situation since veterans did not have the ear of the decision-makers and decisions were taken behind curtains unilaterally and based on incorrect and sometimes fabricated inputs. This was in sharp contrast to the civil side wherein the Department of Pension and Pensioners’’ Welfare (DoPPW) played a proactive and sensitive role for the welfare of their pensioners in conjunction with the system of the Standing Committee on Voluntary Agencies (SCOVA).

In the last SCOVA meeting under the DoPPW, attended by their Minister of State, Dr Jitendra Singh, this problem was emphatically pointed out, especially by Col Hari Handa, the President of Disabled War Veterans, India (DIWAVE) as was also placed on this blog on 14 September 2014.

Those efforts and Dr Jitendra Singh’s strong directions to the Ministry of Defence have borne fruit and a Standing Committee on Welfare of Ex-Servicemen has been constituted which would hold meetings every quarter. The Committee would be chaired by the Rajya Raksha Mantri (RRM) and would also have on it non-official members comprising veteran organisations and official members such as Secretary, Department of Ex-Servicemen Welfare, CGDA, DGR, MD ECHS and Secretary KSB. There shall be scope for special invitees too, including representatives of Veterans’ Cells of the three services.


A great and welcome new step by the new Government. Hopefully the momentum shall continue.  

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

ERRONEOUS OFFICE MEMORANDUM DATED 17 JUNE 2014 ISSUED BY THE MINISTRY OF ROAD TRANSPORT AND HIGHWAYS BASED ON FACTUALLY AND LEGALLY INCORRECT LEGAL ADVICE TENDERED BY AN ASSISTANT LEGAL ADVISER OF THE MINISTRY OF LAW AND JUSTICE RESULTING IN WITHDRAWAL OF TOLL-TAX EXEMPTION FROM SERVING DEFENCE PERSONNEL

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
                                                                                                             Sd/-

* * *

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

Secretary
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.


Enclosures:
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