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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..."

17 comments:

S.Kanthiah said...

Dear Major Sahib,

Thank you for bring such unpleasant happenings. Any way the judgement is very much encouraging and particularly the penalty awarded to the guilty. Thank you sir.

Sgt.S.Kanthiah
Exwel Trust, Tirunelveli-Dist, TN.

Anonymous said...

Fantastic reporting Major Navdeep. Very good show, the awareness level is increasing. However I donot know for how long, with curb on blogs coming.

Anonymous said...

It has been happening from time imortal. Govt/MoD/Armed Forces have been manipulating, concealing, mis-representating all along against help less citizen.

Costs should be imposed in all cases to the individual officers concerned. By that stretch Mr Gopal Subramanium will be bankrupt soon as he is defending most of false cases on behalf of Army in AFT.

Lt Col(Retd) AN Ramachandran said...

Dear Maj Navdeep,
You are doing a most commendable job by bringing out the gist of the judjment in the public domain for our general awareness and knowledge.That the MoD and Service HQs file frivolous appeals is nothing new.That, more often than not,they also resort to subterfuge to deny justice is also not new.But what is redeeming is that they have been caugt out in the instant case and taken to task for it.However, I am of the view that the wrongdoers should have been visited with a sterner action than monetary penalty.
I do hope that this should also set the tone for the appeals filed by the MoD in almost 95% of the AFT awards.

Anonymous said...

Apparently rule of law has been thrown to the winds at the Ministry of Defence!

Anonymous said...

Similar fate awaits the appellants in case of the Rank pay case. costs should be in ten of crores

Anonymous said...

Such callous officials should be booted out of service immediately. These sick minded people get cheap thrills by depriving others of what is due to them.
Thanks to the Judiciary for this judgement.

Anonymous said...

No circular appears to have been issued by PCDA(P) on grant of disability pensionary awards on percentage basis as per MOD,deptt of ESM welfare orders dated 15 Feb 11..
any one any knowledge about the circular ??
Will the PDAs ( banks etc) disburse
payment based on the MOD letter itself or they have to wait for the PCDA(P) circular ?
Maj Navdeep may please throw some light.

viswa said...

Havdeep Sir, I am an eager follower of your blog from kolkata It is your persistent vigil and timely reporting that keeps us posted of the misfortune of our exservice men brothers. I very much like your style of reporting which is lucid ,to the point.bereft of emotions unlike other senior military bloggers. thank you sir .
Biswajit de (ex/sgt)

GAVINI VN said...

Sir,

Greetings.

Good tidings at last! I WISH AND PRAY MOST OF THE CASES MOD CHALLENGED MUST END UP IN A SIMILAR MANNER.

I CAME ACROSS SUCH IMPOSITION OF PENALTY BY ODISHA(ORISSA)HIGH COURT IN 1993-94 AGAINST BABUS, IF THEY DO NOT IMPLEMENT COURT ORDERS.

IT HAS BECOME BECOME A FASHION IN GOVT OFFICES, EVEN SR OFFFICIALS UTTERING "LET THE COURT DECIDE THE MATTER" AND DO NOT USE THEIR POWERS OF DISCRETION.

I FEEL THAT SUCH OF THE ERRING OFFICIALS SHOULD, BESIDES IMPOSING PENAL AMOUNTS, MUST BE IMPRISONED FOR AT LEAST TWO YEARS.

THEN WE MIGHT SEE AT LEAST 50-60% PENDING CASES IN THE COURTS WOULD SIMPLY BE REDUCED.

THANKS FOR BRINGING THIS PARTICULAR JUDGEMENT TO THE NOTICE OF ALL.

Anonymous said...

It is not only MoD but in most of the cases it is our own Armed Forces and its stupid arrogants reaching on top.

From Officers point of view, it might be bureacrats they feel at odds with, where as in case of PBORs and other auxiliary services, it is senior defence officers, who are villian for them. In AFT most of the cases will have first respondent as Army/Army Chief. Therefore, problem lies at doorstep of Armed Forces more than bureacrats.

Bureacrats are only exploiting the rules, which they are expert and trained at.

amit said...

dear navdeep sir,
another grey or should i say black example of our own org going to the drain, showing the drastic drop in the quality of our officer cadre.
what is the punishment given ,who will hold the inquiry to check the affidavit because as far i know it will be poor officer of some local defending unit who would have signed the affidavit prepared by some law hotshot in JAG.
AMIT

captainjohann said...

This happens because for the Babus and brass of Army HQ , it is a hallowed institution and in its service Mental illness cannot occur.Same is the case with Government hospitals where mentally ill are treated cannot commit suicides and so shown as occuring outside hospital premises. One sees the same attitude in American veterans coming from Iraq/Afghanistan and sufferring from PTSD.

vasu said...

Dear Major Navdeep,
The judgment is remarkable one and unlike most others, this one is a true deterrent to officers who do not understand the responsibility of their seat.
Deterrence comes from wide publicity and spreading awareness in which your role is invaluable.
I sincerely hope judgments like these help sensitizing the powers that be in to exercising their powers more judiciously.

just said...

bravo.. keep it up..

Anonymous said...

Ministry of Defence or ministry of offence

LT.COL.HS DHAM( MAHARS ) said...

we have been going through self inflicted injuries by our very own
comrades. High time we start respecting each others identity" Defence fraternity". Even if a person has served sincerely in the Armed Forces for a short while becomes a comrade in arms and not be looked down upon as an ex or discarded person. It is preposterous
to develope such suicidal attitude. The sooner we wake up the better.Jai Hind