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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. 


Anonymous said...

Going through the numerous verdicts of honourable courts at various levels on different issues it seems that the MOD and the services HQS to a certain extents, have adopted an anti service personnel attitude.Is it the way one treats its soldiers or ex soldiers? What are the law officers doing at the MOD and services HQs? Cant the render a proper advise.It is very demoralising for all of us.There is a need to clean up at the MOD.People who have adopted an anti services attitude must be moved out of the m o d . If the remedial action are not initiated immediately it would be too late .At the same time the commanders in uniform should keep their ego aside while dealing the legal cases and work as per the law of land.The whole issue is a very serious matter.

Anonymous said...

'Veterans of India Daily' newspaper at national level is required to be published by joint efforts of ex servicemen organizations in conjunction with some interested agency for national news with special section concerning exservicemen court decisions and special articles on OROP and such welfare matters.Gurdip Singh gurdipbrar@gmail.com.com

Anonymous said...

Maximum problems faced by the armed forces are actually their own creations. All the problems are in incapability of leadership or inability to take right decisions at right time or eagerness to enjoy power in the name of discipline whenever get opportunity.