A wonderfully articulated opinion authored by Ms Chander Suta Dogra, published in ‘The Hindu’ today :
Opinion / Oped
April 23, 2013
OUT OF STEP ON SOLDIER WELFARE
Chander Suta Dogra
The Defence Ministry’s stubborn refusal to implement orders of the Armed Forces Tribunal is creating disaffection among serving and retired personnel
Navindra Devi’s husband, Nk Rajpal Singh, wandered off from his Army unit in Bikaner, Rajasthan, while being treated for a psychiatric illness. His body was later found in a well. The unit showed him retrospectively on annual leave.
The Armed Forces Tribunal (AFT) held the Army responsible for his death and awarded Navindra Devi special family pension with 10 per cent interest from the date of death and Rs10,00,000 as compensation. The order, passed on December 8, 2011, has still to be implemented.
Brig T.S. Sekhon had to undergo an emergency procedure on his heart while visiting Germany in 2008. He was refused reimbursement of medical bills by the Ministry of Defence (MoD) under the Ex-Servicemen Contributory Health Scheme (ECHS) on the grounds that there was no provision of reimbursement when a person undergoes treatment abroad. The AFT, based on a similar Supreme Court pronouncement, directed the ECHS to reimburse the amount at rates that the said procedure would have cost in India had the emergency happened here. The judgment, passed on February 28, 2011, remains unimplemented.
Almost four years after the AFT came into existence to provide an alternative judicial mechanism to serving and retired defence personnel of the Army, Navy and the Air Force for redressal of their grievances, it is becoming increasingly apparent that something is wrong with its functioning and administration. The AFT began functioning from August 2009.
That there is a conflict of interest in having the AFT under the administrative control of the MoD, against which most of the cases are directed, is only one of the problems. As reported in this newspaper on April 4, 2013, the MoD has treated AFT members, a mix of retired judges and senior retired army defence officers, to its largesse by ensuring them foreign trips and canteen cards, “with a view of influencing” them.
Presently, the MoD controls the funds and infrastructure of the AFT and also has a say in appointments, an increasingly questionable arrangement. The AFT is mandated to hear grievances relating to appointments and conditions of service, military commission and appeals against court martial.
At another level, the tendency of the MoD to appeal against most judgments of the AFT, even on issues settled by the Supreme Court and against the decisions taken by Army headquarters is leading to much disaffection. Many more are simply not implemented and appeals against them filed much after the mandated period. This is repeatedly being pointed out by ex-servicemen’s organisations and Army Headquarters, but with no let up.
One reason for this is that the AFT does not have power of civil contempt to enforce its judgments. Last month, the Parliamentary Standing Committee on Defence recommended granting civil contempt to the AFT, a move stoutly opposed by the Department of Ex-Servicemen Welfare (DESW) within the MoD, leading many to take that as yet another piece of evidence of the latter’s “anti-defence sentiments.”
Already there is much resentment over the absence of any serving or retired defence officer in DESW, a department meant to deal with problems of veteran soldiers.
But first, this is what DESW had to say in its defence before the parliamentary panel regarding non-implementation of the decisions of the AFT. “Generally, all orders passed by the AFTs are implemented unless they are against the settled policies of the government.”
The Indian ex-servicemen movement reacted strongly to these pronouncements in a letter to the Defence Minister, saying that it appears the “DESW wants to make the AFT subservient to it and intends to treat it as another office of the MoD and not like a judicial body.” Court decisions are binding and have to be implemented unless there is a stay on their operation by a higher court.
A representative of the Ministry of Law lent weight to the allegation that relief granted by the AFT is almost always appealed against by the MoD. The representative told the parliamentary panel: “Against almost each and every matter the appeals are filed.” Not surprisingly, a commonly heard refrain within the defence fraternity is that “the DESW does everything except welfare of retired defence personnel particularly in respect of disabled soldiers and pensioners.”
Some recent actions of DESW in which it has reportedly ignored the instructions of the Defence Minister and protests by the Army substantiate these assertions. The most glaring example is that of Lt.Gen. Vijay Oberoi (retd.), a disabled soldier, on whose petition the Chandigarh bench of the AFT, in 2010 allowed broadbanding benefits to all disabled personnel irrespective of when they left service.
In March 2011, the Supreme Court in a similar case ruled that broadbanding benefits were to be provided to all disabled personnel and not just those who were invalided out, and dittoed it in another case in April 2011.
In August 2011, the Army headquarters and the Chief of Army Staff also directed that no further appeals were to be filed in such cases and that the judgments of the AFT and the Supreme Court implemented in favour of disabled personnel. However, in February 2012, DESW under the MoD appealed against the AFT’s judgment in Lt.Gen. Oberoi’s case.
In March 2012, the Defence Minister directed that no further appeals were to be filed in such cases till a final call is taken and that even the pending cases in the Supreme Court should not be argued by the government. However, in April and May 2012, the MoD/DESW filed more such appeals in similar matters.
Notwithstanding the growing demand to shift administrative control of the AFT from the MoD, the latter has been consistently opposing it.
In November 2012, the Punjab and Haryana High Court also directed that its control be transferred to the Ministry of Law and Justice.
The judgment quoted from an earlier Supreme Court ruling that has suggested that all departmental tribunals like the AFT, should be brought under a wholly independent agency to ensure that the independence of the members of the tribunals is maintained. A proposal to set up a Central Tribunal Division under the Ministry of Law is in the pipeline.
Besides the principal bench in Delhi, there are eight regional benches in Jaipur, Chandigarh, Lucknow, Guwahati, Kolkata, Chennai, Kochi and Mumbai. Together, these nine benches have 15 courts, each with a judicial member (a retired high court judge) and an administrative member (a retired general officer).