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Saturday, April 10, 2010

More, Contd....

The blog-post on Fourth of April on mindless appeals being filed to counter the rightful claims of disabled veterans and the misleading nature of pleadings articulated by the govt before Courts evoked some strong (positive) reactions on the blog and elsewhere, and rightly so.

This makes me want to write something more on another disturbing trend in the legal arena.

There is an inherent trust between the Bench and the Bar in legal systems all over the world. Written and oral pleadings and statements by lawyers are usually taken on face value by the Courts and mostly such pleadings are in the correct spirit and rendered to assist the Court in arriving at justice. The overall force being that we as lawyers are not standing at the bar to ‘win’ or ‘lose’ a case, but as stated above, to assist the Court in arriving at justice. The problem however happens when the govt misleads its own counsel and does not even disclose the complete facts, policy and law even to the lawyer representing its (the Govt’s) case before a Court. And this is invariably done to have an upper hand, by hook or crook. I have given two glaring examples in my earlier blog, of cases wherein the Union of India before the Supreme Court clearly stated an incorrect position of fact and law which remained unrebutted from the other side ultimately leading to decisions which could have been different had the govt played it fair. Now comes another example where probably the Central Govt Counsel was made to state a patently untrue statement before the Tribunal by his client, the Union of India, in Karan Singh Vs Union of India decided on 28 March 2010 by the Jaipur Bench of the AFT, and thankfully it has yet again been fully recorded in the decision :

“…Learned counsel for the non-applicants (Respondents) pleaded that Army is a different set up and an individual is employed therein as a combatant, who is required to deal with the arms, weapons etc. and fight with the enemies as and when necessary or the occasion arises. He has submitted that Army is the only Department or Institution of the Govt of India where disability pension is provided to the Armed Personnel, if the disability suffered by him/them is attributable to military service. No other Department or the Institution of the Govt of India provides for grant of disability pension and so, it cannot be said that the Armed Personnel are thrown out of job, if they suffered disability.”

What a blatantly incorrect statement !. All provisions of disability pension are applicable to all civilian central govt employees under the Central Civil Services (Extra-ordinary Pension) Rules, popularly known as CCS (EOP) Rules in short. The provisions of disability pension contained in the ibid rules are para-materia to the provisions of the Pension Regulations of the defence services which deal with disability pension. Even State Govt services have a concept of disability pension which is sometimes called ‘wound pension’. In fact, the rules were so much skewed in favour of civil servants till recently that prior to 2006, the Cabinet Secretary if injured by tripping in his office was entitled to a maximum disability element of Rs 9,000 while his military counterpart, the Chief of the Army Staff, was entitled to a disability element of only Rs 2600 if he suffered the same amount of disability on account of a properly attributable disability in operational service conditions. A pre-2006 retired Cabinet Secretary is today entitled to a maximum disability element of Rs 27,000 while his military counterpart is entitled to a maximum of Rs 5,880. And here we have a statement that ‘the Army is the only organisation that pays disability pension to its employees’. In fact, civilians are paid full pay and allowances till the age of superannuation even in cases of ‘non-attributable and non-aggravated’ disabilities while the payment of a paltry disability pension is made out to be such a big deal by the govt by twisting facts and figures before Hon’ble Courts.

False statements are made by the Union of India by misleading their own counsel and then unethical appeals are filed if the case still goes against the Govt. The observations of the Hon’ble Supreme Court in Urban Improvement Trust Bikaner Vs Mohan Lal on 30 October 2009 were apt :

“It is a matter of concern that such frivolous and unjust litigation by governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers are brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected. This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice”

Even way back in 1973, the Hon’ble Supreme Court had this to say in Dilbagh Jarry Vs UOI while quoting the Kerala High Court :

“The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State’s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.”

That was 1973, this is 2010, but sadly, the story remains the same. Mr Moily, are you there ???

21 comments:

GaviniVN said...

Sir,

Very apt and precise article.

The GOI policy in r/o Civ.Employees (OM at http://persmin.gov.in/CircularReportForPensionForm2.asp?choice=35) vidicates your views.

The recent maoist killings of cpo personnel was a shocker to the nation and the authorities. Our heartfelt condolences to the bereaved families.

It is good that the Govt came out with a package of 38 lakhs compensation and jobs to NOK of the deceased.

But the jawans protecting the borders and dying on a daily basis be it in the skirmishes or ultras, terrrorists or the enemy forces, are not given similar package benefit?

Why this glaring discrimination?

Similarly, the state police and the CBI officials are given compensation/awards/trophies for nicely entertaining the visiting officers and doing duties at election rallies or for the badobust duties at public meetings. But our officers and authorites are so miserly in giving honours, awards and also the honourary commission ranks (usually twice a year-26Jan and 15Aug). The figures would be dismal and negligible if we compare with the strength of the force vis-a-vis the number of such medals given.

When shall our officers and the Hon.RM, MOD put an end to inertia, start thinking and act in a manner to help the sons of the lessor known Gods? I think it time now.

Thanks

Gavini VN

Anonymous said...

Dear Major Navdeep sir,
An excellent statement, heartrending. Only a few learned people like you could bring such glaring facts. One needs knowledge, courage to write at right time. Kodos to you. But the problem is that the wrong doers go scotfree and remedy is very very costly for the individual.

Harry said...

@ Maj Navdeep

Sir,

The blogpost leaves one aghast and exasperated, at the same time! Flagrant and brazen lying by Bharat Sarkar and its functionaries (you have been TOO decent and mild in you criticism but I can't mince my words!!)

But million dollar question is, "Will things change"? And my straingh answer is NO !

Anonymous said...

colonel i want to go... show me the way to go...
home.

Anonymous said...

Dear Major Navdeep,

Last line : "Mr Moily, are you there?". A real nailer!

A fantastic write-up with a firy finish and I dont think "he" is listening.I hear some "snoring" - not "roaring" echo!

One of the best (ghost- ?) written outputs that can be linked to such a personality may be the Report on the "Ethics in Governance" - perhaps a part of the exercises by the 2nd ARC!

If analysis and arguments on Ethics related to both Judiciary and Executive had extended grounds and scope in a CONSTRUCTIVE manner wrt the public- citizens / employees (civil/ military) beyond "self-interests" (eg Immunity under Art 311 for Bureaucracy; Judges self- declaration of assets- other codes to be followed etc), people like us could have realised that there was something meaningful and relevant to the existing situations and reality in the whole matter!.

For example, as ETHICS would dictate, JUDGMENTS in some of the cases related to PENSIONS/ DISABILITY PENSIONS etc should have suo moto assumed the instant and perennial status of STATUTES (automatically)!

But it is never so! Even after fighting in Courts for a decade and winning a battle, pension parity or EQUALITY ( D S NAKARA Case) or pension at minimum equality-MODIFIED PARITY (Rtd MAJ GEN SPS VAINS Case), the verdicts have not become STATUTES and everytime the past pensioners are GANG-RAPED by the bureaucracy- thru new, unfair, unjust, questionable, contradictory, ambiguously worded- purposely manipulated OMs and Orders!

Court cases spring up in dozens for a single issue - this time for the "Unethically "TINKERED & MODIFIED"- "MODIFIED PARITY" of 1996 (implemented ion 17 12 1998 FAME"!

Yet our Hon VVIP for LAW/ JUSTICE and Hon CEO for Judicial matters hope for reducing the litigations in Govt. related issues or make the Govt. a reluctant litigant?

Surely not one- but several of the clan are SLEEPING!

Anonymous said...

DEAR NAVDEEP,

UR ENTHUSIASM IS UNQUESTIONABLE; BUT YOUR RANT HERE ON UR BLOG IS. WHAT PURPOSE WUD UR RAVING ON THE BLOG SERVE? DO MOILY, THE BABUS OR THE JUDICIARY HAVE THE TIME OR INCLINATION TO READ OR BOTHER ABT UR BLOG. WUD IT NOT BE BETTER TO TAKE UP THESE ISSUES POLITICALLY OR WHATEVER.

AS A READER I CERTAINLY CANT CONTRIBUTE

Navdeep / Maj Navdeep Singh said...

@Anony at 5.54

Thank you for the very positive and immensely optimistic contribution.

Anonymous said...

Sometimes we can not feel the pulse of the affected PENSIONERS or any aggrieved or fathom their difficulties so easily! Sometimes we are not sure of what these write-ups can do! One and half years back, I never bothered about what my pension was and what it shd be. If I have had the privilege of these types of blogs, and same type of awakening after the Fifth CPC issues, may be I/we could have woken up in time and fought a different type of battle.

In contrast, this time, on the pension injustice issue of Sixth CPC- though being a Retd- Scientist located in the South - through blogging with another blogger - a Retd- Engineer from North and few more (some employees also- wd be pensioners!) , we exchanged ideas and notes in a few blog-sites- including Navdeep's, and within a short span of 5 months we brought in a massive awakening among a large Section of pensioners on the Sixth CPC disparities and as a result our group of nearly 500 very senior mature aggrieved pensioners were quickly formed and now we are in for a "war" on injustice to these pensioners.

We could also give some support to others forging similar alliances- both on the Civil and Miltary side to fight the injustice issues in CATs/AFTs/Courts (State- HSC) etc.

WE STILL HAVE SOME FAITH IN THE "JUDICIARY" PLAYING ITS ROLE!
LAWYERS AND LEGAL EXPERTS HAVE TO SUPPORT US AND CUT SHORT THE DELAYS IN COURTS. JUDGES SHOULD BE FAIR TO PENSIONERS OF ALL HUES AND SHADES. THEY SHD CUT SHORT TIME-FRAMES. FOR EXAMPLE WHERE WAS THE NEED FOR 8 ADJOURNMENTS TO HELP GOVT TO FRAME A REPLY THAT TOO IN A CONTEMPT SITUATION?

Though what was voiced by "anon" viz "DO MOILY, THE BABUS OR THE JUDICIARY HAVE THE TIME OR INCLINATION TO READ OR BOTHER ABT UR BLOG"- is true, I still feel the massive awakening these blogs are now bringing in among more well-informed/ hitherto "indifferent" pensioners & others, will certianly make a diiference in the times to come.

And the Govt, can not take things for granted. JUDICIARY WILL CERTAINLY COME UPON THE GOVT. MORE HEAVILY in every judgment. We have seen the pronouncements by the AFTs and even the HSC which is being discussed!.

THINGS HAVE TO IMPROVE- NO OTHER WAY!

Anonymous said...

This mind set kept India under forign rule for centuries.Unfortunate that sme mind set continews in 21st century.When shall we learn from the mistakes of past

Pramod said...

Dear Sir,
Can't the courts pronounce some kind of punitive action against people who initiate such litigations/provide wrong info to the judiciary???

Rajababu said...

Dear Navdeep,

A wonderful but an eye opening post. But can something be done against this malice of babus.

Surely this is a case of "RESPONSIBILITY WITHOUT ACCOUNTABILITY". The erring officials must pay for the misdemeanors else the system will not improve.

Anonymous said...

Apropos posts of Mr Pramod/ Mr Rajababu,. This is what I was trying to hint in the post on April 10th-5.09 pm. i.e. enjoying the immunity against all odds including even CORRUPRTION by misusing the provisions of Art 311- if I am correct.

You get the file notes and you will see the atrocious way some of the files are dealt. Even Addl Solicitor General is ignored for referring the files related to important legal matters/ concerning law & justice. Disposal takes place smartly- by writing a note like - 'this being a small matter, the ASG need not be consulted' - or a note amounting to that. None upwards - even the AS- objects to this type of notes. All put their initials/ signatures at the respective spots in the file notes.

Such "short-circuiting" even in "mega-decision making" and "legal opinions which would require serious top-level conciderations" have become the order of the day.

Accoountability and Responsibility are words of the past and now totally removed from their dictionaries.

SELECTING 'AMBIGUOUS EXPRESSIONS AND SENTENCES RECORDED AS PART OF DISCUSSIONS' FROM THE TEXT OF JUDGMENTS HAVE BECOME THE "STRATEGY" TO HOODWINK THE JUDICIARY. SUCH EXPRESSIONS/ SENTENCES ARE OFTEN MISUNDERSTOOD FOR OIPERATIVE PARTS OF JUDGMENTS WHILE THE NEW CASES ARE HEARD. WOULD IT AMOUNT TO MISLEADING THE JUDICIARY? THESE HAVE BECOME THE GIMMICKS IN RECENT TIMES AND EVEN THE JUDGMENTS OF LANDMARK CASES ( D S NAKARA) ARE BEING REDUCED TO ALMOST A STATE OF UNWORTHY PRECEDENCE. OTHERWISE WHY THERE SHOULD BE "REPEATED CONFLICTS ON PENSION PARITY" IN HSC AGAIN AND AGAIN? WHY FULL PARITY IS REDUCED TO MODIFIED PARITY? AND THEN ON TO "MUTILATED/ NEGATIVE MODIFIED PARITY" NOW?

Art of "providing wrong info to the judiciary???" under immunity/ protection and enjoying "RESPONSIBILITY WITHOUT ACCOUNTABILITY" have been perfected.

Rajababu said...

anon @437pm

second ur thoughts friend. u see english is a funny language left behind by our previous occupiers. it can be twisted, turned and interpreted the way u like.

There are so many files being put up who feels the need to pay attention??? This is where the system needs a revamp. The beuracratic system has been abandoned by the britishers as its uneconomical and causes unending delays. Then why are we following it?? Just to accomodate the ever fattening bueracracy so that every can have their slice of corruption cake and weild power on the hapless. Entire revamp of the Beueracratic system is essential. The babus are ensure the smooth functioning of the system and not become a law onto themselves.

Hfo ravindran said...

Mr Gavini, It is better not 2 get Hony commision ranks. No change in status from Pbor but will get reduced pension. What a funny improvement. thank u

Anonymous said...

Mr Rajababu @Ap 11 906

Of course that is what all of us wd desire, wish and expect to happen! ( "Entire revamp of the Beueracratic system is essential. The babus are ensure the smooth functioning of the system and not become a law onto themselves".

Revamp is "Preempted" in the name of Revamp itself!

(For eg. The 2nd ARC itself-instead of becoming stringent on the areas of lacunae- tries to provide greater provisions for immunity if I am correct).

So long as the Law-breaker himself is the Law-maker, it is difficult to expect improvements within a reasonable time.

Common people- say if they get paid for "not working" in the wake of several populist schemes ( eg. T. Nadu - I find now most of the low-end jobs are given to youngsters (teen aged boys/ girls) from outside states like NER/ Sikkim/ Nepal etc as none from T.Nadu are willing to do these jobs- again because they appear to get free doles of same amount for "not working");they also do not go against any Party/ its Govt./ its Bureaucratic franchise!

So a new complex system is evolving - and Bureaucracy is the brain behind it!

God save the Nation!

Raman said...

Maj Navdeep,

Excellent compilation of facts and truly thought provoking.

Raman

rgkadam said...

Major Navdeep Singh
I don't know the law but I think our courts are not helpless to accept lies (if brought to the notice) stated during the course of arguments to get the favouable decision by hook or by crook by some corrupt babu.

Anonymous said...

DEAR NAVDEEP,
SORRY ABT THE 10 APR/5.54 REMARKS.
I CAN SEE THAT IT HURT U ENUF TO ELICIT A RARE SARCASTIC REMARK.

WELL, MY OUTBURST AROSE FROM READING A SOMEWHAT HELPLESS SOUNDING WRITE UP BY YOU.
WE AS RECEPIENTS OF UR LARGESSE HAVE BEEN USED TO MORE POSITIVE SOUNDING WORDS FROM U.

THE CONVICTION THAT IS UR HALLMARK, WAS NO LONGER THERE AND IT SEEMED , EVEN IF FOR ONLY A FLEETING MOMENT, THAT U WERE JUST ONE OF US.
DO CONTINUE UR GOOD WORK AND ACCEPT OUR BOUQUETS AND IGNORE THE RARE BARBS.

JB Singh said...

Your comments that the Govt should behave like a benevolent father are well taken. Instead, officers of various ministries (including MOD)are out to score points and then successfully hide behind the cloak of anonymity. Benevolence is the farthest thing from their minds

RK said...

Dear All,
I am due for my RMB next month. I am suffering from primary hypertension since 2002 the onset of which was while serving in peace. I contacted the medical auths here and I am told that since it was contracted in PEACE, I will get 30% disability but no disability pension. However, I know of 2 cases wherein officers have got disbility pension for this ailment which also onset during a peace tenure. When I pointed this out to the medical auths, they say after 2008, they are not giving any attributability/aggravation to anyone who has had the onset of hypertension in PEACE. I would be grateful if anyone can help me as to what further course of action, if any, can be/should be taken.

mham07 said...

Monday, June 7, 2010
Anomaly in Circular 430 by Cdr Pathak
From: Ravindra Pathak
Sent: 04 June 2010 16:15
To: Pr. CDA(Pension), Allahabad
Subject: Anomaly in Circular 430
Dear Sir
Kindly refer to Government of India Ministry of Defence Department of Ex Servicemen Welfare letter no PC10(1)/2009-d(Pen-Pol) dated 08 Mar 2010 regarding improvement in the pension to bridge the gap in pension of Pre 01.01.2006 and Post 01.01.2006 discharged Personnel Below Officer Rank (PBOR) of Armed Forces.
It is seen that
1. As per Table 124 (Master Warrant Officer GP "I" Discharged prior to 01.01.1996 (ii)- GP "I" Discharged between 01.01.1996 and 09.10.1997 and (iii) - GP "X" Discharged between 10.10.1997 and 31.12.2005) of the above quoted letter the pension of MWO is revised to Rs. 13590 w.e.f 01.07.2009.
2. As per Table 133(Viceroy Commission Hon Officers) of the above quoted letter the pension of Hon Lt and equivalent is revised to Rs.15465 and that of Hon Capt and Equivalent t Rs 16145 w.e.f 01.07.2009.
3. The Pension of Hon Officers who have retired between 1953 and 31.12.2005 have been not given any increase and thus they are languishing at Rs 13500 and Rs 13850 for Hon Lt and Hon Capt respectively.
It would thus be seen that Hon Lt who retired between 1953 and 31.12.2005 are drawing a pension less than that of MWO (Rs 13590) and Hon Officers who were Viceroys commission.
The above quoted letter also does not give any increment to a widow and thus they are at an handicap. The letter also does not specify as to what would be the pension of a widow whose husband drawing pension as per various table referred to in the above quoted letter dies after 01/07/2009.In the absence of any clarification it would be open to speculation that she will go back to old pension of a widow prior to issue of the above quoted letter.
You are kindly requested to clarify the matter and action being contemplated to rectify the anomaly.
Best regards
Cdr Ravindra Waman Pathak I.N.(Retd)
Member and Coordinator IESM Pension Cell