Feel free to contribute on burning issues concerning the armed forces. Contributions would be acknowledged - Use the 'Comments' tab or email navdeepsingh.india[at]gmail.com. No operational/business/commercial matters to be discussed please. Legal advice/litigation related issues would strictly NOT be published or discussed or entertained. Information on this blog is opinion based and is neither official nor in the form of an advice. This is a pro bono online journal in public service related to issues, policies and benefits, and the idea behind it is to educate and not to create controversy or to incite. Be soft in your language, respect Copyrights.

Monday, March 28, 2011

Detailed implementation instructions issued for revised casualty / disability / war-injury awards for pre-2006 retirees based on post-2006 scales

This has reference to the Govt of India letter referred in this post dated 24 February 2011.

The PCDA(P) has now issued detailed instructions for the implementation of the revised awards. The said circular has already been mailed to all concerned including banks.

The circular can be downloaded and accessed by clicking here.

Saturday, March 26, 2011

Consider disabled CPO personnel for alternative employment within the force

In a landmark decision, the Delhi High Court, in Constable Gajendra Prashad Vs UOI, has directed the Ministry of Home Affairs to frame a rehabilitation policy to retain disabled personnel in less exacting duties which do not involve active combat roles.

Following are some excerpts from the progressive judgement which would have far-reaching consequences in all uniformed services :

“It is not in dispute that the medical disability of the petitioner which was opined in the year 2001 continues to be the same and there is no deterioration in the physique or the health of the petitioner. In fact, we must confess, that when the petitioner stood up in court on 4.3.2011 when we heard arguments in the writ petition, we saw him more smart in his turn out vis-à-vis other constables of para-military forces we see in court, who appear before us as litigants, but even as the security personnel deputed in the Delhi High Court complex. Not an inch of fat or flab on the stomach; a slim and trim jawan with a perfect body stood up when we wanted to see the petitioner. Indeed, learned counsel for the respondents was constrained to admit that notwithstanding the loss of a limb, the petitioner has kept himself more than physically fit and we are informed that the petitioner joins the morning drill at the Unit and ensures that his sedentary duties do not make him either dull or a flabby person.”

“The petitioner suffered the disability which placed him in Low Medical Category while performing duties in a hostile condition and there was logic and reason to let the petitioner serve, if he could, on a job where the department lost nothing. Since constables perform duties of a company clerk, why would it be that a physically fit jawan be made to do said duties and not a physically handicapped jawan. It would be a win-win situation. Physically fit jawans would be available for combat duties and those with disabilities, but not of a kind to render them totally unfit, could be accommodate on desk duties. This win-win situation would be in harmony with the concept of a welfare state, which India proclaims to be.”

“We find that the medical board opinion qua the petitioner rendered in the year 2007 continues to be the same as it was in the year 2001. The physical health or the condition of the petitioner has not deteriorated. The disability continues to be the amputation of the right lower limb above the knee and amputation of the left greater toe. If, on the same disability the petitioner was found fit to be adjusted against a lighter duty, we see no reason why he should be boarded out after 6 years. We highlight that the medical board opinion in the year 2007 does not certify or opined that the petitioner was in such Low Medical Category that he could not even perform the duties of a company clerk. Now, jawans are needed to perform wide and varied duties. These may be actual combat. These may be duty as a Sentry at a post. These may be duty in a recreational room. These may be duty as a telephone operator. These may be duty as the dak clerk. Thus, it stands to logic and reason and hence would be a part of fairness in action, a facet of Article 14 of the Constitution, to be observed by the State, that a lowly paid constable at the lowest rung of a Central Para-Military Force who is rendered physically disabled while on active service should be retained in service unless found unfit for any kind of job assigned to constables.”

Wednesday, March 23, 2011

Pension to families of missing personnel : Wait decreased to 6 months from the previously applicable One year

The issue was discussed here on this blog on 14 February 2009.

Families of missing personnel, including those faultily declared deserters but whose whereabouts remain unknown, are eligible for grant of family pension. The family pension in such cases was supposed to commence after one year of lodging of ‘missing report’ with the police under currently applicable orders. This period was however decreased to 6 months by the Department of Pensions and Pensioners’ Welfare after the 6th CPC and the same has now been separately notified by the MoD also. The latest orders to the effect for defence personnel can be accessed by clicking here.

It is however another story that most of our Record Offices remain blissfully unaware of such provisions and continue to deny pension to affected families on the pretext of desertion and ex-parte dismissal under the 3 year / 10 year desertion clause.

Sunday, March 20, 2011

Write-Ups / Articles invited for upcoming journal on law related to uniformed forces

A new journal on the ibid subject is in the offing, the first volume of which should be out towards the middle of this year.

Besides other sections, the journal would have a separate part called ‘Opinions’ which would feature write-ups and articles contributed by an array of varied personalities. The journal would also feature international articles and judgements related to uniformed forces.

Readers of this blog are welcome to contribute their thoughts. The opinions section would be broad-based and not just strictly related to law and hence contributions on topics concerning the uniformed services (including the Police and other uniformed organisation) that may be ancillary to law, for example, administration, service benefits, policy etc are also welcome. Strategic and operational subjects however would not be covered. Case studies or structured articles are also welcome.

Contributors may send in their write-ups to my office email : lawoffice.ns [AT] gmail.com

All contributors may send their full name, address, telephone number, email and brief bio alongwith their write-ups. Those who are serving with government organisations may enclose a scanned self-attested certificate that they have taken the requisite permission / sanction for the same.

The contributions would be liable to be edited and the decision to publish or not shall solely be that of the Editors. Contributors of all featured write-ups would be acknowledged in the journal. There shall be no compensation for the contributions since it is more of a public-oriented project by the publishers.

Wednesday, March 16, 2011

Punjab & Haryana High Court passes strictures and imposes a fine of Rs 50,000 on the Govt for misleading the Court in a disability pension case

Shocking would be too light a word to describe the extent to which our Record Offices can go to defeat claims of our own disabled soldiers. And 2011 has been declared the year of the disabled soldier !!!

A petition filed by a boarded out disabled personnel, Sukhjinder Singh, was allowed by a Single Bench of the Hon’ble High Court which directed the release of disability pension to him.

The Union of India, as expected, however filed a Letter Patents Appeal (LPA) before a Division Bench challenging the order of the Single Bench and also alleging on affidavit that the Invaliding Medical Board had declared the disability ‘neither attributable to, nor aggravated by military service’. A copy of the board was however not produced before the Court.

The Division Bench asked the Union of India to produce before it a copy of the Medical Board which was done on the next date of hearing and which consequently left the Court aghast. The Medical Board had in fact clearly declared the disability as ‘aggravated by physical stress and strain of service’.

Clearly perturbed by the conduct, following are the excerpts of the order finally passed by the Hon’ble Court :

"...The aforesaid record now produced before us would show that on the first date of hearing while obtaining notice of motion, there was active concealment and even misrepresentation of facts from the Bench..."

"...Having heard the learned counsel for the parties and perusing the original record, we are amazed at the conduct of the appellant and its Officers. The instant appeal has been filed through the Secretary, Government of India, Ministry of Defence, South Block, New Delhi; Chief of the Army Staff, Army Headquarters, New Delhi; the Principal Controller of Defence Accounts (Pension) Draupadi Ghat, Allahabad(UP) and couple of other Officers. A perusal of ground No. 7 of the appeal shows that a false plea has been set out which is simply against the record. In para 13 of the original proceedings of the Medical Board, it has been categorically found that the disease of 'Manic Episode F 30' is aggravated by military service whereas the proceedings of the Medical Board have been misquoted in para 7 of the grounds of appeal to say that the Medical Board had opined that the disease Manic Episode F 30 is not aggravated by military service..."

"...It is well settled principle of law applicable to equitable jurisdiction that when the facts are actively concealed or there is a misrepresentation then the party seeking to hear the appeal becomes disentitled to it. Such a conduct has been repeatedly condemned by the Courts. In the case of a private citizen filing a writ petition, a Full Bench of this Court in Chiranji Lal and others v. Financial Commissioner, Haryana and others 1978 PLR 582 has held that when there has been a mala fide and calculated suppression of material facts which if disclosed would have disentitled such a party to the extraordinary remedy under the writ jurisdiction or in any case would have materially affected the merits on the interim as well as ultimate relief claimed then such a party by their own conduct would forfeit the right of relief which they seek to claim. When such a conduct is adopted by the Central Body and its Officers, as is evident from ground No.7 of the Memorandum of Appeal, it assumes further seriousness. The Public Authority always file pleadings after due verification of the record. However, in the present appeal all that has been completely forgotten. Therefore, the appeal is liable to be dismissed with heavy costs..."

"...There is another aspect of the matter because the instant appeal is an illustration of frivolous litigation initiated at the instance of Union of India and its Officers. The appellant-Union of India has framed the National Litigation Policy which has been reported as (2010) 6 SCC J-17. The aforesaid policy has been completely overlooked by the appellants..."

"...Accordingly we find that the appeal is frivolous and a misuse of the process of the Court. In view of the aforesaid, the appeal is dismissed with costs of Rs.50,000/-. The costs shall be paid to the writ petitioner-respondent by the Union of India but the same shall be recovered from the Officer or Officers, who pleaded a false ground after holding an enquiry and fixing the responsibility..."

Sunday, March 13, 2011

Another clarification on LTC-80 fares

Though I had placed this on the chat-box, many people seemed to have missed it.

The Finance Ministry has issued another clarification on the LTC-80 fares which can be accessed by clicking here.

It has been clarified that one can claim reimbursement of air fare on Air India even if it happens to be lower than LTC-80. Some departments had been objecting to reimbursement of AI fares which were lower than the ones notified under AI's LTC-80 scheme.

Wednesday, March 9, 2011

US Army overhauls its PT system

In a marked departure from the traditional PT system, the US Army is on the verge of introducing the ACRT – The Army Combat Readiness Test, with Yoga too reportedly on the table.

More details (and comments thereon) can be seen by clicking here.

Sunday, March 6, 2011

Military Medical Boards : Mathematics or Medical science ?

The following appears in this month's 'Salute' magazine.

(Copyright : 'Salute to the Indian Soldier')

Military Medical Boards : Mathematics or Medical Science ?

Navdeep Singh

Disability benefits in the forces are contingent upon the declaration of a disability being either ‘attributable to, or aggravated by’ service conditions. Detailed Entitlement Rules promulgated by the Government further determine the question of attributability and aggravation. However, non-adherence to the ibid rules and a purely mathematical approach, as opposed to the desired medical one, is resulting in denial of benefits to the disabled and also overburdening judicial fora.

So who decides attributability and aggravation? Based on an artificial over-reliance on various judgements of the Supreme Court wherein it has been held that the opinion of medical boards has to be granted due weight, the system wrongly seems to believe that medical boards are supreme in this arena. They actually are not. Attributability and aggravation are determined under the rules and the boards are supposed to work within the four corners of these rules with proper application of medical and scientific procedures, not mathematical formulae. Primacy of medical opinion does not definitely imply that it would hold field even when rendered in contravention of the statute or when prima-facie perverse. Despite our progress, attributability of disabilities is still decided on primitive guidelines which reflect a strong disconnect with practical realities.

While the unpredictability of military service is universally appreciated, the Guide to Medical Officers published by the office of Director General of Armed Forces Medical Services, still prescribes that stress related disorders cannot be service-related unless a person spends a specific length of time in a field area and unless the symptoms arise within a period of some months after being posted out of field. Ignored is the fact that a solitary stressful incident in a single day can also trigger stress without any reference to length of service in a particular area, and as modern psychiatry has established, there can be a delayed onset of symptoms even 5 years after a stressful event. Then for example the requirement that the symptoms should manifest themselves within 3 months of being denied leave in case of the death of a parent when the individual happens to be the ‘only’ son. Would not a person be affected if he is not the ‘only’ son or if the symptoms arise after four months rather than the mathematical guideline of 3 months? What could also justify the basis of determining heart diseases on the basis of the ‘14 days charter of duties’ ? The service-connection of complicated heart problems in the Indian military is determined by activities a person had indulged in the last 14 days prior to the onset of the disease? It is common knowledge that heart diseases manifest over a long period of time, isn’t it time to shun these outdated practices and deal with such situations with a more scientific temperament on a case to case basis ?.

Claims of attributability and aggravation are rejected by one word terms such as ‘No’, ‘Constitutional’, ‘Unknown’, ‘idiopathic’ whereas the rules clearly stipulate that if the causes are unknown then presumption operates in favour of the claimant and attributability, or atleast aggravation, ‘shall’ be conceded.

In defence, naysayers harp on the argument that stress and lifestyle related disorders can happen to civilians too and thus have no link with military life. How wrong they are. Can one compare the stress levels of a soldier leading a strictly regimented life away from family under a strict disciplinary code 24 hours a day, 365 days a year, at times under the shadow of the gun, with a civil employee living with family, working from 9 to 5, enjoying weekends and holidays. Even seemingly trivial issues such as admission of children, property disputes and insignificant family rows can have a stressful impact on our soldiers especially those deployed away from families, irrespective of whether in peace or field, and to ignore such incidences of service as unrelated to stress related disorders would be the greatest disservice. Not may are aware that civilian employees have the protection of Section 47 of ‘Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995’ which provides that if an employee gets disabled, even when not on duty and due to own negligence, his or her service remains protected and if the said employee is not able to work, still he or she is kept on supernumerary strength and paid full pay and allowances till the age of 60 and pension thereafter. This protection is not available to defence personnel who can be invalided even for minor disabilities, and who, at the lower ranks, even in normal circumstances anyway do not have the protection of employment beyond their 30s.

It is a quivering double jeopardy for disabled soldiers. On one hand, our own medical boards follow a self-defeating hyper-technical approach, and on the other, the protection of employment as guaranteed to all other government employees is unavailable to defence personnel. In theory, 2011 may be the year of the disabled soldier; it remains to be seen how it works on ground.

Major Navdeep Singh is a practising Advocate in the Punjab & Haryana High Court at Chandigarh

Thursday, March 3, 2011

US Supreme Court comes to the rescue of a military reservist fired by his employer

Vincent Staub, an angiography technician serving a civilian hospital, was supposedly fired from his parent employment due to the fact that he was a reservist with the US Army Reserves.

Staub’s embodiment (mobilisation) in 2003 in Iraq resulted in his dismissal from the hospital in 2004. Litigation however led to an unfavourable decision with the Federal Appeals Court upholding the action of the Hospital.

The Supreme Court however overturned the Federal Appeal Court’s ruling by holding that the employer was liable under the federal anti-discrimination law for members of the military. The court also awarded Staub about $ 58,000 in damages.

More can be read about the above here.

Even in India, Territorial Army (TA) reservists have at times faced similar problems with their employers. Apart from private entities, there are instances when TA reservists serving in civil government departments have also faced difficulties despite the fact that the Territorial Army Act, 1948, provides full protection to the parent employment of TA volunteers when mobilised for military duty, whether voluntarily or compulsorily in a national emergency.