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Saturday, November 30, 2013

It all comes back : Dubious stand of officialdom exposed in SC judgement on Central Govt Doctors’ pension case

Much after military doctors had lost their case in the Hon’ble Supreme Court in Col BJ Akkara and others Vs Union of India in which pre-1996 retiree officers had prayed for counting their Non-Practicing Allowance (NPA) in their pension, the Supreme Court, this month, has rendered a detailed judgement coming to the conclusion that NPA needs to be added for pensionary purposes and also how the correct facts were hidden from the Supreme Court in Col BJ Akkara’s case.

In Col BJ Akkara’s case, military medicos had pointed out to the Supreme Court that a parallel question of law was decided by the Delhi High Court (KC Garg Vs UOI) in favour of civilian central govt doctors leading to the withdrawal of the circular which denied counting of NPA in pension and had hence prayed that the same relief should be extended to military doctors too since the Govt had accepted the positive judgement of the High Court. The Govt however opposed this plea in the Supreme Court stating the following, as recorded in the judgement of the Supreme Court in Col BJ Akkara’s case:

“…It is contended that the fact that a decision of the High Court had been accepted or implemented in the case of some persons, will not come in the way of the Union of India resisting similar petitions filed by others, in public interest…”
Ultimately, the case was decided against the petitioners, and the Govt also then took the benefit of Col Akkara’s judgement by the Supreme Court to deny similar benefits to other Central Govt doctors.

After such a chequered history, the issue again came up before the Supreme Court in KC Bajaj & others Vs UOI on which the judgement has been rendered on 27 Nov 2013.

Stating the basis of the controversy, the Hon’ble Supreme Court said this about the case in the opening paragraphs:

“…Whether final result of a case filed by a public servant with regard to his service conditions is dependent on the arbitrary choice of the State and/or its agencies/instrumentalities to prosecute the matter before the higher Courts is one of the questions which would require consideration in these appeals filed against order dated 16.10.2010 of the Division Bench of the Delhi High Court whereby the writ petitions filed by the appellants questioning the correctness of order dated September 12, 2008 passed by the Central Administrative Tribunal, Principal Bench (for short, ‘the Tribunal’) were dismissed. The other question which calls for determination is whether Non Practising Allowance (NPA) payable to the doctors employed in Central Health Services, the Railways and other Departments of the Government, who retired from service prior to 1.1.1996 is to be added to their basic pay for calculation of pension payable to them...”

After going into the nuts and bolts of the issue in great detail and examining all files and notings, it was discovered during the course of the case that after the judgement was rendered by the Delhi High Court in favour of doctors in KC Garg’s case, the same was very much challenged before the Supreme Court by the Govt (while the Court was given an impression in Col BJ Akkara’s case that KC Garg’s judgement was not challenged) but later on the opinion of the Attorney General favouring doctors, the said Special Leave Petition (SLP) was withdrawn from the Supreme Court by the Govt and the petitioners were extended the benefit. After withdrawing the appeal, the Govt had itself moved a case for withdrawing the impugned circular based on Delhi HC’s judgement and on the AG’s opinion and consequently the Prime Minister himself approved the withdrawal of the circular which denied the element of NPA in pension of central govt doctors. However in the meantime, the SC had rendered a decision in favour of the Govt (Of course, since the Supreme Court was not informed about the Govt’s own decision of withdrawal) and then the Govt itself stalled the withdrawal of the circular taking strength from Col BJ Akkara’s decision in its favour.

In the ultimate analysis, the approach of the Govt was dichotomous and it did not even care to place the complete facts of the issue before the Apex Court including the fact that no less than the PM had himself directed the withdrawal of the negative circular in question. In short, the pleadings of the Govt before the Supreme Court were diametrically opposed to their own opinion on the subject on file and also the decision of the PM that had already been taken in favour of doctors by the time.

All said and done, in the latest judgement of the Supreme Court, the Hon’ble Court has held central govt doctors very much entitled to count NPA in their pension and has stated the following on the conduct of the Govt in their pleadings in Col BJ Akkara’s judgement:

“However, the fact of the matter is that the Union of India did challenge the order passed by the Delhi High Court in Dr. K. C. Garg’s case and other connected matters by filing special leave petitions, which were converted into Civil Appeal Nos.1972-1974/2003 and during the pendency of the appeals, a conscious decision was taken by the Government of India not to pursue the appeals and implement the order of the High Court….At the cost of repetition, we consider it necessary to observe that during the pendency of the appeals, the matter was referred to the Attorney General for his opinion whether the judgment of the High Court is correct and the same should be implemented. The Attorney General examined the matter keeping in view the relevant rules and the policy decisions taken by the Government of India and opined that the judgment of the High Court was correct and should be accepted in preference to the view taken by the Tribunal. The issue was then considered at the highest level of the Government and the Prime Minister ordered implementation of the High Court’s order. Thereafter, the appeals were withdrawn. It is a different thing that the proposal for withdrawal of O.M. dated 29.10.1999 was shelved in view of the judgment in Col BJ Akkara’s case. In other words, the Government of India had taken a well considered decision not to pursue the appeals filed against the order of the Delhi High Court and implement the same on the premise that the proposition laid down therein was correct.

In view of the above discussion, we hold that the ratio of the Digambar’s case cannot be invoked to justify the pick and choose methodology adopted by the Union of India in resisting the claim of similarly situated doctors that NPA payable to them shall be taken into consideration for calculating the pension. Such an approach by the Union of India is ex-facie arbitrary, unjust and has resulted in violation of Article 14 of the Constitution.

The judgment in Col. B.J. Akkara’s case cannot be applied to the appellants’ case because the circulars, which fell for interpretation in that case and those under consideration in these appeals are different in material aspect…”

The above events would again prove what we have been stating time and again (See this blogpost and this one too), that the Govt, in order to justify litigation, works on the hook and crook principle and is extremely reluctant in bringing out the correct facts, truth and law before Hon’ble Courts.

In a similar case for central Govt doctors filed by one Dr GD Hoonka and quoted in the Supreme Court judgement itself, the Madhya Pradesh High Court put it very succinctly:

“…The decision of the authorities declining the same to the present respondent, the contest put up before the Tribunal and the present writ petition at the instance of the authorities, is beyond our comprehension, speaks of not only unreasonable approach, seems to be arbitrary and verging on administrative tyranny, and burdening the Tribunal and this Court with utmost unwanted matters, and harassing the retired employee in the evening of his life…”

This, I sincerely feel, is the hallmark of today’s administrative arrogance.

The judgement in Col BJ Akkara’s case can be accessed by clicking here.

The latest judgement in KC Bajaj’s case can be accessed by clicking here

Wednesday, November 27, 2013

'Maimed by the System'


I have started work on my new book, tentatively titled 'Maimed by the System'. 

It would be a picture book with individual survivor/success stories of military veterans (including disabled veterans) and their families who were forced to wage battles, legal or otherwise, against the system and the officialdom to get what was rightfully theirs. 

Though I am not short on data, please share if you are aware of any such thought provoking or unusual human-interest stories which may be considered to be included by me in the book.

I shall also be grateful for any ideas or suggestions on the subject. 

Warm Regards


Wednesday, November 13, 2013

Pension from 01 January 2006 rather than 24 September 2012 : Supreme Court dismisses the Review Petition filed by Govt of India

As most would know, the Govt had challenged before the Supreme Court the decision of the Delhi High Court wherein the judgement by the Central Administrative Tribunal granting benefit of rectification of pensionary anomalies from 01 January 2006 rather than 24 September 2012 was questioned. The order in effect and essence affected all central govt pensioners, including defence pensioners.

The controversy had emanated from the fact whether the benefits of the correct pension were to flow from 01 Jan 2006 which is the date from which the 6th Central Pay Commission recommendations were implemented or from 24 Sept 2012 when the Govt had decided to remove the anomalies in the pension structure after the said Pay Commission. Of course, it was held by Courts that the removal of the anomalies shall date back to the date of the inception of the said anomalies and not any later artificial date.

Incorrigible as it is, the Govt had gone ahead and filed a Review Petition in the matter urging the Supreme Court to review its order of dismissal of the SLP filed by the Central Govt.

The Supreme Court has yesterday dismissed the Review Petition filed by the Govt in the matter.

What other tricks are in the offing?  

Thursday, November 7, 2013

Dispatches from the Supreme Court- recent decisions in military related cases

There was some action in the Hon’ble Supreme Court in October, as far as military related cases are concerned.

A lowdown:

Union of India Vs Col Sanjay Jethi: The Armed Forces Tribunal (AFT) had set aside an additional Court of Inquiry initiated against an Army officer on account of bias and conflict of interest of its members. The AFT had also directed the constitution of another Court of Inquiry with a different Presiding Officer and independent members. The verdict was challenged by the Government before the Supreme Court. The Apex Court has however upheld the judgement of the AFT and has passed a detailed judgement on the subject. Though the Apex Court has sustained the same, it has still made some observations regarding the decision rendered by the AFT. Some parts of the Supreme Court decision are worth reproducing:

“…On a bare perusal of the same one can easily say that the Technical Members have expressed their opinion after analysis of the documents. They have, in detail, scrutinized the documents, drawn their inferences and made their observations.  This document has been marked as Ext XLIX.  By no stretch of imagination it can be said that  it is an arrangement of documents or pagination  of  documents. True it is,  they  are  not  the  authors  of  the  original documents but their analysis and inference  have  been  used against the  respondent  in  the  earlier  COI  and  in  the Additional COI.  It cannot be brushed aside by saying that Technical Members did not sign the final report.  Once they have given an opinion, the possibility to support the same cannot be totally  discarded. That is where the real likelihood of bias comes into play.  As has been stated in number of authorities which we have reproduced hereinbefore if one has something substantial, relevant or material to do with the case he is disqualified.  In the case at hand, we find that the Technical Members had compiled the documents, adopted the methodology, made observations, drawn inferences and expressed the view and, above all, they had prepared the report which has been brought on record as a document.   To say, they had not played any  role  would  tantamount  to blinking  at  reality. In our considered view, their inclusion as the Technical Members   is   not   legally permissible.  It is so as the said respondent is bound to be prejudiced…”

“…We are compelled to repeat  here that once a COI has been constituted to inquire into  the allegations relating to a person's character and military reputation subject to the Act it should not  be  done  by the persons who have expressed  their  views  in  writing behind the back of the person and assume the role of  the recommending authority which is statutory  in  nature  to take disciplinary action.  Law does not countenance the same. In the present case it is irrefragably clear that the recommendation of the COI was the sole basis on which the disciplinary action has been initiated. Nothing else had come on record as observed by the tribunal on earlier occasion as well as by the impugned order and the said finding is unassailable. That being the position,  we find in fitness of things, the Presiding  Officer  should have recused himself to preside over the  COI…”  
“…Before parting  with  the  case,  we  think  and  we  are constrained to think that we should say  something  about the order of the  tribunal.   Section  14  of  the  Armed Forces Tribunal Act, 2007 occurs in Chapter  III  of  the said  Act  and  deals  with  jurisdiction,   powers   and authority of the tribunal in service matters.  Under sub-section (5) of Section 14 the tribunal is required to decide both questions of law and facts that may be raised before it.  The respondent had approached the tribunal under Section 14 of the said Act.  In  the  Statement  of Objects  and  Reasons  it  has   been   spelt   out   for constituting an Armed Forces Tribunal for adjudication of complaints and disputes  regarding  service  matters  and appeals arising out of the verdicts of the court  martial to provide for quicker and less expensive justice to  the members of the said  armed  forces  of  the  Union.   The Preamble of the Act provides for adjudication or trial by the tribunal of justice and compliance in respect of many a matter.  As we find the tribunal has been conferred powers to deal with the cases in promptitude. Promptitude does not ostracize or drive away the apposite exposition of facts and necessary ratiocination. A seemly depiction of factual score,  succinct  analysis of facts and  law,  pertinent  and  cogent  reasoning  in support of the view expressed having due  regard  to  the rational methodology,  in  our  considered  opinion,  are imperative.  We have said so as we find that the tribunal by the impugned order has not adverted to the necessitous facts.  We say so despite sustaining the verdict…”

Union of India Vs Brig TS Sekhon: A senior retired military veteran, Brig Sekhon, had to undergo an emergency procedure while visiting Germany. The cost of emergency treatment even at Indian rates was not reimbursed under the Ex-Contributory Health Scheme (ECHS) on the pretext that the emergency had occurred outside India. The AFT had however directed the Govt to reimburse the veteran according to Indian emergency rates as applicable under the policy. The AFT also took support of clear-cut decisions of the Supreme Court laying down the law in this regard. However rather than accepting the well rounded, balanced and logical verdict of the AFT, the Ministry of Defence filed an appeal before the Supreme Court. The Apex Court has however dismissed the appeal filed by the Ministry.

Union of India Vs Atul Batra: Atul Batra was a sailor who was released from service before completion of his contractual terms in the Navy, on disciplinary grounds. He was not issued a show-cause notice since the rules did not prescribe issuance of the same. The AFT had however reached the conclusion that principles of natural justice had been circumvented and that a show-cause notice was mandatory even if not provided under the relevant regulations. The discharge was set-aside. The Navy had challenged the AFT verdict before the Supreme Court but the appeal has been dismissed by the Apex Court thereby upholding the judgement of the AFT.