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Wednesday, September 30, 2015

Oped in “Business Standard” on the lack of judicial review over orders of the Armed Forces Tribunal

I am glad that despite the very shallow understanding of this cataclysm by many serving and retired members of the military community and the harm it has caused to the fundamental rights of the generations to come, this issue has gained the attention that it deserves.

Below reproduced is Col Ajai Shukla’s detailed analysis in Business Standard on the subject of lack of judicial review of the orders of the Armed Forces Tribunal:

Dead IAF pilot's father writes to PM

Gurbax Singh Dhindsa has underlined the fact that military personnel have little recourse to justice in higher courts

Ajai Shukla, September 29, 2015

In arguing how difficult are the terms and conditions of military service, leaders of the "one rank, one pay" (OROP) agitation have highlighted curtailment of fundamental rights of military personnel (under Article 33 of the Constitution); their subjection to harsh disciplinary codes (Army, Navy, Air Force Acts); prolonged separation from families; and the vastly higher risk of death or injury whilst on duty.

Now Gurbax Singh Dhindsa, the father of a dead Indian Air Force pilot, has underlined the fact that military personnel have little recourse to justice in higher courts.

Mr Dhindsa makes this point in a letter to Prime Minister Narendra Modi, Defence Minister Manohar Parrikar and Law Minister DV Sadanand Gowda. His son, Flying Officer GS Dhindsa, had died during the Kargil conflict, when his MiG-21BIS fighter crashed while taking off from Srinagar on an operational mission on August 18, 1999. Mr Dhindsa's letter recounts the difficulties he faced in collecting the benefits due to him as the pilot's next of kin. Like many ex-servicemen who confront such delays, he took the government to court for what should have been paid to him routinely, and with gratitude and honour. Last month, the Armed Forces Tribunal (AFT) - the military's departmental tribunal - ordered the Defence Accounts Department to pay Mr Dhindsa his dead son's ex-gratia payment, pension and other dues that had been held back illegally for 16 years. Inexplicably, the AFT failed to order payment of interest.

When Mr Dhindsa decided to move the high court for grant of interest, he learned that he could not. Article 31 of the Armed Forces Tribunal Act rules that AFT judgments cannot be challenged in the high court. Nor can serving defence personnel or veterans or their families petition the Supreme Court unless the case involves a "point of law of general public importance". Earlier this year, on March 11, ruling on a plea filed by the previous United Progressive Alliance (UPA) government, the Supreme Court endorsed this retrograde provision.

The Supreme Court, in a separate case, is now reconsidering this judgment, which has effectively left defence personnel, veterans and families without remedy after an AFT decision. Earlier a seven-judge Constitution Bench, in L Chandra Kumar versus Union of India, had deemed "unconstitutional" a ruling that prevented High Court review of rulings of the Central Administrative Tribunal (CAT) and State Administrative Tribunals (SATs). Yet, for now, military litigants have no recourse beyond the AFT.

Mr Dhindsa writes: "Of course, civilian employees or their families have no such bar. In case I had been the father of a civilian employee denied pension, I could have simply approached the Central Administrative Tribunal (CAT) and if dissatisfied, the high court and if still dissatisfied the Supreme Court. But since I am the father of a military martyr I cannot approach the high court or even the Supreme Court unless I have a case of public importance."

He goes on: "Even if an appeal was provided as a matter of right to the Supreme Court from each case of the AFT, can you expect defence personnel or their families from the lower socio-economic strata to approach the Supreme Court? Can they afford litigation or even travel to the highest court of India?"

This question is especially relevant, given that the defence ministry's well-established legal strategy is to appeal at every level against every court decision that goes against the government, regardless of the merits of the case. That obliges the litigant, most often a poor villager living on his pension, to pay travel and lawyer fees that he cannot possibly afford. Meanwhile, the defence ministry uses taxpayer money to hire high-priced lawyers with the mandate to drag on cases endlessly until the litigant either dies or runs out of money.

Ironically, misinformed sections of the military welcomed the Supreme Court ruling, which they viewed as "quicker justice", stemming from the removal of one level of appeal. Says prominent military lawyer, Navdeep Singh: "Thankfully people are now realising that this judgment snatches away the precious fundamental right to approach the high court, which is available to every citizen. Under the guise of 'quicker justice', soldiers and veterans had been placed without a remedy against a tribunal's judgment. I am glad that the Supreme Court is revisiting the matter."

Even so, unless and until the apex court reconsiders its earlier judgment, Mr Dhindsa is left without recourse. His letter rhetorically asks: "When a civilian employee or his family member aggrieved by order of the Central Administrative Tribunal (CAT) has a fundamental right to approach the high court and then the Supreme Court, why should the same right be denied to me?"

"When a civilian employee or his family member has a right to a three tier judicial approach, why do I only have one tier? Do we lose our rights just because of joining the defence services rather than civilian jobs?"

"Which court should I approach against order of the AFT when my case (like 99.99% cases) does not involve any 'point of law of general public importance'?"

The National Democratic Alliance (NDA) government, and Mr Parrikar himself, have promised to end the practice of automatic appeals that wear down litigants, regardless of the merits of their cases. However, the defence ministry's department of ex-servicemen's welfare (ESW) scuttles all such attempts, and resentment is rising amongst ex-servicemen.

The AFT was born in August 2009, as a departmental judicial body for providing quick and affordable justice to soldiers, airmen and sailors governed respectively by the Indian Army Act, 1950, Indian Air Force Act, 1950 and the Navy Act, 1957. It rests on the foundations of the Armed Forces Tribunal Act, 2007 (hereafter, the Act), which envisions a military-oriented substitute for the high courts, with appeals addressed only to the Supreme Court, on matters of "general public importance". In 2011, the Delhi High Court ruled that litigants could not be deprived of judicial review in a high court, which the Constitution provided for. However, the Supreme Court struck down that order earlier this year.

There are also serious questions of conflict of interest, with the AFT operating under the defence ministry, which is the respondent in almost every case the AFT hears. The defence ministry argues the Act grants it the powers to make rules, appointments and administer the AFT. In fact, the Act grants those powers to the central government, while the Allocation of Business Rules makes the Ministry of Law and Justice (MOLJ) responsible for the "administration of justice".

There is a battle raging over control of the AFT. The Punjab & Haryana High Court has acknowledged this conflict of interest, directing in a judgment on November 20, 2012 that the AFT be "brought within the control of Department of Justice in the Ministry of Law & Justice." This judgment cites the aforementioned seven-judge Supreme Court ruling in L Chandra Kumar versus Union of India and R Gandhi versus Union of India, which direct departmental tribunals (such as the AFT) should all be brought under a "wholly independent agency" under the MoLJ, which must "try to ensure that the independence of the members of all such Tribunals is maintained."

In its Eighteenth Report, tabled in parliament on March 20, 2013, the Standing Committee on Defence has backed the setting up of a Central Tribunal Division under the MoLJ, which would exercise administrative control over the AFT, rather than the MoD. "The Committee are of the view that in order to build a strong and independent institution, this step will go a long way," says the report.

Reform of the AFT is essential for justice to be visibly served. It is to be hoped that Mr Dhindsa's letter draws the government's attention to this long overdue measure.

Saturday, September 26, 2015

“Forwarded as Received”

Though my last post was also on chain mails, I have realized that irresponsibility on social media and cyberspace is now assuming dangerous proportions with rumour-mongering at its peak which is not only resulting in frustration amongst the military community but also unethical and unmilitary name-calling which can have far reaching consequences on reputations of people and morale of serving personnel and veterans.

While most of us have been forwarding mails and messages in good faith, still it is our bounden responsibility not to put into orbit material which is unverified or which causes unnecessary heartburn, especially amongst serving personnel, or results in slander of personalities. The term “Forwarded as Received” does not suffice and ends up damaging and harming the entire scheme of things as we perceive.

Some very recent examples of immaturity on the net, with mass circulation, can be recalled here:

Forwarding of a message that a senior officer at the Army HQ was responsible for inserting the prohibitory “Pre-Mature Retirement” (VRS) clause in the draft letter for OROP. What could be further from truth? Why on earth would someone do that? Have we ever wondered before forwarding such silly stuff on private and social media!!!

Circulation of a patently false message that a young Major who lost his life in an unfortunate incident during battle inoculation was not evacuated on time because senior officers precluded his evacuation.

Spreading canards about a Colonel whose wife is serving in the Indian Defence Accounts Service (IDAS). The officer’s reputation has been unnecessarily sullied without even an iota of truth. Even if on hypothetical assumption, the officer’s wife, in her official dealings, may have had an opinion or perception about the concept of OROP which may not have been configured with the actuality, how could the officer be blamed for the same and how could canards be spread about his service life, career and posting profile?

Spreading disaffection about senior officers and how they accepted the ‘Apex Grade’ after the 6th Central Pay Commission (CPC) resulting in “OROP” for them and how they should refuse to accept the ‘Apex Grade’. Before spreading such half-truths, people should have realized that officers from the Apex Grade are in receipt of OROP by default, not by design. The pension of past retirees is calculated on the minimum of the new pay grade and since the pay grade of such retirees is fixed, the 50% of the minimum in their case results in a fixed pension for past as well as current retirees by default. Moreover, this fixed pay concept is not new and has been in place since times immemorial. For example, during the 4thCPC, it was Rs 8000 fixed, during the 5th CPC, it became 26000 and during the 6th CPC it was upgraded to Rs 80000. This concept was not introduced by the 6th CPC. Rumour-mongers have also not realized that such officers also suffer in a way since on reaching the ‘Apex’ level, they do not get any enhancement of pay in service and their pay remains fixed without any further increment.

Spreading my old oped of the year 2012 by forging the date as 2015 and stating to the world that the Services HQ are still opposing Non Functional Upgradation (NFU) for the military officer cadre. My old oped had merely stated the restrictive view existing at one point of time in the Services HQ. After a series of deliberations, all three Services HQ were firmly of a view in favour of NFU, and still are, and have fully stood behind the concept. Please ignore emails castigating the Services HQ for not supporting NFU since there is no truth in them. My opeds may be sharp but those are meant to move the system into motion by stirring them out of inertia, and not to pinprick. My opinion, which is meant for positive movement ahead, should not be used as a tool to shame.

Spreading mails regarding false and imaginary calculation tables which are either lesser than what is admissible thereby resulting in disappointment or which are much higher than entitlement thereby resulting in raising false expectations.

Chain mails asking people to file individual cases even in those specific matters wherein judicial intervention has already succeeded and universal orders stand issued by the Govt for all similarly placed individuals or where judicial intervention has already failed resulting in a closure of the issue. (Clarification: Here I am only referring to futility of litigation in those cases where the Govt HAS suo moto already issued universal orders after a particular decision. I am not referring to those issues where despite a favourable judicial decision, the Govt has not issued universal orders)

Also, it is painful to receive messages pertaining to my last post wherein I had attempted to clear the air about pensions of ranks other than Commissioned Officers. It seems that in the melee, affected pensioners have overlooked a very important fact that the new Circulars issued by the PCDA (547 and 548) emanate from a Supreme Court decision stating that pension should not be based on the “minimum of pay band” itself but on “minimum of pay within the pay band” for each rank w.e.f 01-01-2006. It cannot apply to ranks other than commissioned ranks for the simple reason that their pension is based on notional maximum w.e.f 01-07-2009 and hence if the judgement is applied to them w.e.f 01-01-2006, it would result in loss to all ranks since then the pensions would then fall to ‘minimum’ like in the case of Commissioned ranks and all civilians and that is the reason why pensions have been protected for them from 01-07-2009 onwards. They stand to gain only from 01-01-2006 till 30-06-2009 by the Supreme Court decision during which time their pensions were based on the minimum and these new tables would only replace the old tables that were in force from 01-01-2006 till 30-06-2009. If at all there was an anomaly, it was not linked to this Supreme Court decision or these new Circulars and it was on some other issue- it should have been emphasized and taken up that if till 5th CPC (till 31-12-2005) their pensions were based on top of the scales, the same concept should have been extended w.e.f 01-01-2006 rather than from 01-07-2009.

It is bewildering that people are neither understanding the issue nor going into depth of the same and rather sending negative messages to those who are portraying the true picture to them. Rest assured that I am always willing to stand up for our men and women of all ranks unconditionally and that is the reason why this blog has never been officer-specific and neither have been my battles for justice. But I firmly believe in standing up only for causes which are legally sound and also do not believe in circulating sugarcoated mails with trumped-up figures which later cause disillusionment.  

Be careful. Be wise. Let us keep our eyes open. 

Sunday, September 13, 2015

Irresponsible Chain Mails on pensions of Jawans and JCOs

Though the instant post was not ideally required, but I feel compelled to throw light on a subject, which, since the last few days has led to a massive disinformation campaign fuelled by irresponsible chain-mails regarding pensionary benefits of ranks other than Commissioned Officers.

As was brought out in the last post on this blog, the Government has issued the sanction order implementing the Supreme Court decision on removal of a pensionary anomaly with effect from 01 Jan 2006, that is, the date of implementation of the 6th Central Pay Commission (6th CPC) recommendations. There have been mails floating around and queries raised that the benefit as granted to Commissioned Officers and Civilians on 24 Sept 2012 has now been applied from 01 Jan 2006 but similar benefit has not been extended to ranks other than Commissioned Officers. Some mails have been nauseatingly abusive towards the Government and some have raised needless irresponsible conspiracy theories.

Let me attempt to clarify this issue for the benefit of readers.

When the 6th CPC recommendations were implemented, the pensions of pre-2006 retirees were fixed at 50% of the minimum of the applicable pay band with effect from 01 Jan 2006 rather than the pay within the pay band for each rank according to fitment tables. This was implemented for all Central Govt pensioners, irrespective of rank or service. This was objected to by pensioners and led to massive litigation since as per pensioners, the pensions were to be based on minimum of pay within the pay band for each rank/grade and not the minimum of the pay band itself.

While this controversy was simmering, the Government introduced a new system of pension calculation for ranks other than Commissioned Officers wherein they scrapped the system of minimum of the pay band but initiated a system of calculation by taking the maximum of the 5th CPC scales fitted notionally into the new 6th CPC pay bands and alongwith enhanced weightages. This new system came into force on 01 July 2009. The weightages were further enhanced with effect from 24 Sept 2012. Hence, the controversy of minimum of pay band vis-a-vis minimum of pay for each rank/grade within the pay band became redundant for ranks other than Commissioned Officers with effect from 01 July 2009 but the said anomaly continued to hold field for Commissioned Officers and Civilians. Ranks other than Commissioned Officers who were now fixed on notional top of the 5th CPC scales w.e.f 01 June 2009 were however hit by the minimum of pay band vis-a-vis minimum of pay within the pay band anomaly from 01 Jan 2006 till 30 June 2009.

On the other hand, in the case of Commissioned Officers and Civilian retirees, the pension continued to be based on minimum of pay of the pay band itself and later the Government itself rectified the anomaly with effect from 24 Sept 2012 and provided that from Sept 2012 onwards the pension would be based on minimum of pay for each rank/grade within the pay band. The letter was issued in Jan 2013 with retrospective effect from Sept 2012. Various Tribunals and more importantly the Delhi High Court however ruled that the removal of the anomaly would have to be effectuated from 01 Jan 2006 rather than the future artificial cut-off date of 24 Sept 2012, and the said decision was ultimately affirmed by the Supreme Court.

In implementation of the decision of the Delhi High Court affirmed by the Supreme Court, the Government has issued the implementation instructions under question. For ranks other than Commissioned Officers, the instructions would apply from 01 Jan 2006 till 30 June 2009 since from 01 July 2009 onwards the anomaly stood removed and rendered redundant since all such personnel were as it is fixed on notional top of scales. For Commissioned Officers and Civilian pensioners, the instructions would apply from 01 Jan 2006 till 23 Sept 2012 since the anomaly was only removed on 23 Sept 2012.

Those who are cursing the Government and Commissioned Officers and Civilian pensioners must realize the contours of the controversy before jumping the gun based on half-baked information. It is for the information of all, that pre-2006 retiree ranks other than Commissioned Officers are granted pensions based on notional maximum while Commissioned Officers and Civilians are granted pensions based on notional minimum within the pay band. The Government letter rather protects the enhanced pensions of Jawans and JCOs from 01 July 2009/24 Sept 2012 and this should have brought joy to such pensioners, even if the arrears are not that massive, rather than disaffection.

Please do not go by chain-mails being circulated based on half baked information of self styled experts since reliance on such information leads to needless frustration based on non-existent controversies.

Thank You.

Thursday, September 3, 2015