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Monday, June 7, 2010

The turning point in disability jurisprudence : Now AFT rings the Bell

The Sword of Justice has no scabbard - Antione de Riveral

There is no dearth of discussion on this blog on the very important issue of determination of attributability and aggravation of disabilities of personnel of defence services by service medical authorities and medical boards. Declaration of attributability and aggravation of disabilities due to military service ultimately determines whether a person shall be entitled to disability pension or not, or whether the family of a deceased shall remain entitled to special or liberalised family pensionary awards or not.

The fact that our medical boards are interpreting rules in a restrictive and literal manner rather than a liberal and beneficial manner (as intended and proclaimed by those very rules) has been discussed earlier in detail on these posts of 18th May, 4th April and 10th April. The problem is compounded by the fact that the office of DGAMFS has issued some conflicting letters on the subject which are even in direct contravention of rules. Needless to say, such instructions which are in conflict with rules or regulations have no value in the eyes of law.

The truly landmark order by the Jaipur Bench of the Hon’ble Armed Forces Tribunal shall, if taken in the right spirit, mark the turning point in the history of disability jurisprudence and may also lead to self-correction. These are the opening lines of the decision rendered on 20th May 2010 in the case of Ex-Hav Mohar Singh Vs Union Of India :

“A shockingly bizarre incident reflects inhuman treatment which has crossed all boundaries of humanity by superior responsible Armed Forces Medical Officers, whose actions when resulted into injustice forced the applicant to seek his legal remedy in the form of the present application for grant of disability pension”

In the said case, which could bring tears even to the eyes of a layman, a veteran who was suffering from an unknown progressive neurological disorder triggered by a vehicular accident while in a military vehicle in an operational area and which resulted in multiple bodily and head injuries, was boarded out with 80% disability declared as ‘aggravated by military service’ by a duly constituted medical board thereby entitling him to disability pension. The papers for pension were however rejected by the PCDA(P) who discarded the contention of the medical board, an action which has time and again been deprecated by Hon’ble Courts including the Supreme Court (But would we ever learn ?). He was then called for an Appeal Medical Board (AMB) for fresh medical examination. The veteran appeared before the AMB on a wheel-chair but the said AMB not only declared his disability percentage as NIL but also declared it ‘neither attributable to, nor aggravated by military service’ opting to endorse the administrative opinion of the PCDA(P) rather than the expert opinion of the release medical board. Smelling something amiss when the veteran appeared before the Tribunal on a stretcher, the Hon’ble AFT ordered a fresh medical board which again correctly declared the disability as ‘aggravated by service’ and also pegged the disability @ 100%.

Not taking this lightly, the Hon’ble AFT, besides granting him disability pension, has also directed the payment of costs of Rs 100,000/- to the veteran to be recovered from the salaries of the members of the Appeal Medical Board who had declared the disability as NIL and ‘neither attributable to, nor aggravated by service’. The Govt has also been directed to initiate disciplinary action under the Army Act against all three members of the AMB.

Following are some excerpts from this truly landmark judgement :

“The applicant has been left in lurch only on the random report without taking in consideration the due care and circumstances of the case by mentioning the percentage of disability as NIL. Such type of conduct, behaviour and manner of performance of duties on the part of the AMB, which consisted of ABC, DEF and GHI deserves to be deprecated as they have acted in callous manner and have committed gross negligence by depriving the applicant of his legal dues and rights. The applicant had to starve for pretty six years without any medical and financial assistance from the non-applicants only because of the callous action of the members of the AMB.”

“What has rankled us more is the callous manner, inhuman approach and failure of performance of duty on the part of the members of the AMB dealing with applicant’s case. The applicant has to be compensated for the travails undergone by him. For this gross negligence, we impose costs of Rs 1,00,000/- (Rs One Lakh only) to be paid to the applicant by the non-applicants but it is to be recovered from the salary of all the three Officers of the AMB i.e. ABC, DEF and GHI jointly and collectively in equal ratio. We also direct that all these three Officers should be subjected to disciplinary action under the Army Act.”

While one tends to feel sorry for the members of the board on whom costs have been imposed, the writing on the wall is that we need to set our house in order. Ordinarily, such problems should be resolved in-house without resort to litigation, but instead of looking inwards we continue to crib about ‘external forces’. There is not even a requirement of an overhaul. If our medical boards are made to read and apply in spirit the Entitlement Rules for Casualty Pensionary Awards, 1982, promulgated by the Govt of India, and ignore the subsequently issued subjective letters from time to time from the M-Block, not even one case for disability pension would reach judicial fora and the flow of correct entitlements would become a rule rather than exception as is the case on date.


Anonymous said...

Dear Navdeep,

A good emotive and desrving piece of blog again.

This is a result of the prevelant lingering colonial mindset, culture, ethos and absense of a sense of service that the country is plauged with. Our administration and entire system is a continuation of colonial past under which poeple were considered "subject" rather than respctable "Citizens". Alas! even today all people who has some authority even in pretending semse act as masters and treat others as colonial slaves.

This mindset is predominant in the Army and practiced without any hinderances. In the Army, all those who are employed to serve and assist the soldiers have become their masters. It is not only the AMC but all sunderies of ASC, AOC, Enginners, MES, Ordinance, CDA, etc etc who treat the soldiers as their cononial subject. But why?

Because our leadership too has that mindset of colonial masters. Our leadership in the Armed Forces have failed in developing a culture of "Rule of Law" and runing the processes as per established proceedures. Like Civil Administration, they run the organisation based on negetivity, oscurity, denial, delays, obstruction, confusion and self serving self benefitting ideas.

People have been crying foul since long time and the Generals know it, but our fast running, fast changing, temporary generalship racing towards higher echlons without any contribution or time to contribute, fail to correct the system. All those who need to be corrected make hay while pleasingly watching the "race of generals".

Army needs a change of mindset, attitude and culture. If the honorable Supreme Court and AFT force such changes on the Army, our higher leadership then need to hang their uniforms. To begin with, DGAFMS should lead the way and resign immidiately.

That may be a good begining!

Parvez Jamasji said...

1. With such Injustice heaped by the Faujis on a diabled Soldiers. Do the Chiefs need to wonder at all, about the man power Shortages in Service.

2. Why wont the neta-babus Ignore the Services when SADISTIC & Myopic morons ABOUND in the service itself.

God Bless the Judiciary

Harry said...

@ Maj Navdeep


Ur headline says,".... Now AFT rings the Bell."

But my dear Sir, there is hardly any effect on ground of tolling of such bells! The officialdom (both Military and Civil) continues to perpetrate its own writ with questionable interpretation of rules/judgements of courts on hapless soldiers with shocking regularity !!
There appears to be absolutely NO change in attitude of Govt functionaries.

Pokar Ram said...

Dear Major Navdeep sir,
Congrates to you for the excellent reporting of the case. It is very rightly directed to make accountable the AMB through which other callous machinery should learn lesson.

A B Mehta said...

It is satisfying to note that some level of justice is still available to the really disabled soldiers. I may not agree with Arundhati Roy on many issues but one thing she said about the government being actually run as a corporation rather than welfare state seems true!
I would also like you to comment on a news report that Def Min has announced an additional payment of Rs 3000 for constant attendance allowance of disabled.
Gp Capt A B Mehta

Ramani said...

It is commendable that the AFT,not only granted relief to the affected soldier but also imposed punitive sanction against the Appeal Medical Board.(also recommending action under the army act).
Similarly, the PCDA(p) who also sometimes ??? overrule the Release medical bord finding should be made accountable. Only then can we expect justice.
This shows that constituting the AFT was long overdue and is now at least a beacon for those aggrieved.

Anonymous said...

Dear Maj Navdeep,
A fine article as always.
We have now descended to levels to become the very people that our mothers warned us about.


Anonymous said...

May I request you to post the "Entitlement Rules for Casualty Pensionary Awards, 1982" in your blog. I am sure it is not a classified document. If it is available elsewhere, could you or someone more knowleggable than me, post a link.


Anonymous said...

Disgusting case. I dont think I feel in the least bit sorry for the so called officers on the Appeal Medical Board. Why will anyone wake up, when they can perform such actions willy nilly? In fact, 100000 is a very minimal figure. They should have penalised them for 10 lakhs!

Anonymous said...

It would be interesting to know the identity of the Appeal Medical Board.
Would serve as a warning.

Anonymous said...

Excellent!! But why must we feel sorry for the devilish officers of the AMB?? They have been let off lightly. Each one of them should have been fined 1000000( ten lakh) each so that in future people took more care in such cases

marshal said...

Dear Navdeep,
It is very heartening news that ultimately some deserving ex-soldier got the justice finally. I too experienced many negative approaches by many responsible officers in all arms and services! It is very necessary that those dealing with matters relating to personal welfare should follow dispassionately certain positivity in the overall context. It is high time to change the mind set towards the positivity front.
2. Now the retd men & Offrs & families are dependent for medicines at ECHSs. The specialists there prescribe certain new generation medicines. That's not available in the regular stock but will have to be locally procured. The Naval Hosp administration (not mentioning the station) feels that the specialist is a great bafoon to prescribe the new gene medcn when old & out dated medn are available aplenty . "So cut the LP please. No medcn and you eat the old type med & would get well soon; if not just bad luck", is the likely emotional outrage of those MOs detailed to regulate the LP. If a patient has to get specialised treatment it is a herculean task. Those commanding guys think that they are going to be there for all the time & to be evergreen and NO RETIREMENT and old age!
3. Sorry for the digression but one gets into rage when injustices are noticed! While in service I practiced what I say now. I had set examples to others for the need to be positive in our approach. But the Army is an ocean; there are under currents aplenty!
All that I can suggest to the officers on power is that please do not be sadist at least. Your extra care to be unduly penny wise is not going to be of any use. You have to be judicious of course. Of course . you need not spend 10 Rs where you can do it with one rupee !

Kaps said...

Shame! We are living in glass houses. No wonder babu is able to exploit the moral corruption. Such cases and their judgments need to be brought out in open to serve as a lesson to the mischief mongers as well as to people who have given up a hope of any justice.

Anonymous said...

The identity of the officers is clearly available in the judgement. They have been chastised very publicly, and are going to be in big trouble. Major Navdeep is just being decent by not releasing the names on his blog.

Pokar Ram said...

"Entitlement Rules for Casualty Pensionary Awards, 1982" are available in book "pensionary benefits for armed forces people" authored by Maj Navdeep.


As a rule ,is PCDA(P) empowered to overrule the expert opinion of the Release Medical Board ?

Anonymous said...

dear Navdeep Sir,
you may not know about a lesser known aspect as to how arbitrarily office of the DGAFMS deals with matters pertaining to promotion of medical officers, grossly favouring those from Army and denying to the ones from other' lesser' services. the office has become a law unto itself

ABC said...

Navdeep thanx.

GaviniVN said...


This judgemnt must be taken as an example and hopefully similar verdicts should be pronounced in future, so that some sense of sanity returns to the careless decision makers.

However, the real culprit, MA(P) and the PCDA(P), who differ with the views of RMBs and order fresh AMBs, have been let off. So also the MoD, who authorised PCDA(P) to do such things should also be penalised.

Now, this judgement must be exemplified and must find place in Ministry's GO/OM etc with a fresh and detailed guidelines, to be issued urgently.

anil paranjpye said...

Now that the GAVEL has been introduced, it is proving that the pen is not necessarily mightier than the sword...!

AFT is the best reform in our armed forces till date.It has taken six decades since Independence to come through ...

It takes a lot of courage to differ with the opinion of the higher echelon.The tendency to "go along" is disastruos for any organisation in the long run...remember the 4th Pay Commission?

Anonymous said...

Dear Navdeep,
I would have been happier if the CDA P guys were also penalised financially.
ravi masaldan

Anonymous said...

which is having higher authority , The Medical board or the CDA headed by which is run by non-medical staffs.Only Doctors know about the degree of the sickness not the office personnel.Please clarify.I opion that AMB has done mistake.

Anonymous said...

Let us not get sentimental- Themedical board only determines Attributable oR Aggravated by mil service. The individual suffered from an neurological disorder of unknown cause-leading to a major disability.No doubt but Was it caused/aggravated by service??? Please answer that.The Answer is unfortunately a BIG 'NO".
Help to such deserving soldiers/ex-serviceman should come from Army Benevolent fund/Equivalent and not misconstued thought process. Honorable Court decision not withstanding.

I D Sharma said...

I Had commented earlier,when this article appeared. In my opinion the responsibility lies on the authority who counter signed the AMB more than the specialist doctors who are technicals and not all that well versed with ruler and regulations. The major penalty should be levied on the counter signer. I D