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Thursday, July 28, 2016

Home must avoid the Defence route....

Having appeared in litigation involving both the Ministry of Home Affairs (MHA) as well as the Ministry of Defence (MoD), I can safely say that the former embraces fairness much more than the latter. One does not see hyper-technical pleas being taken in Courts by the MHA or the officers of the Central Armed Police Forces (CAPFs) representing the MHA like we see in the case of the Defence Ministry or the representatives of the three defence services. The MHA also does not unnecessarily harp on contesting legally settled issues with the shrillness displayed by the MoD and its instrumentalities in Courts, and MHA's representatives have the moral courage to admit their wrongs before judicial fora most fairly without having to face pressure to ‘win cases’ from the higher headquarters as is the case with the defence services. The litigation against disability benefits of personnel of CAPFs is also quite low as compared to the defence services.

It therefore came as a surprise that the MHA and the usually sensitised Border Security Force (BSF) challenged the verdict of the Punjab & Haryana High Court in Amarjit Singh’s case. Amarjit was boarded out of the BSF in 1975 with blindness and was not granted disability pension on the pretext that his disability had no connection with service conditions. Again, he was also not granted any other kind of pension since he was released before completion of regular service limits. For close to four decades he kept running from pillar to post and ultimately the Punjab & Haryana High Court, calling it a glaring case of arbitrariness for meting such a treatment to an ex-trooper, granted him pension with full arrears with 9% interest and also awarded Rs 50,000 as costs. There was a small error however in the order since the Court granted him ‘invalid’ pension by declaring his disability attributable/aggravated by service stating that there was no minimum service condition required for the same which was not exactly the correct position since invalid pension is granted to  those cases which are neither attributable nor aggravated by service conditions and carries a minimum requirement of 10 years of service, whereas it is disability pension which is granted to attributable/aggravated cases wherein there is no requirement of any minimum service.

The MHA and the BSF, rather than applying to the Court for correction of the minor scripting error, challenged the verdict before the Division Bench of the High Court under Letter Patents Appeal (LPA). The Division Bench in a detailed decision citing all rules and regulations upheld the judgement of the Single Bench but clarified that it was disability pension that was admissible to the disabled trooper and not invalid pension. Needless to state, disability pension is higher than invalid pension. The Court also maintained the 9% interest and the costs of Rs 50,000 imposed on the Government.

While any right thinking individual would feel that an order in favour of a 100% disabled soldier would be implemented at the earliest, this time, the MHA and the BSF went the MoD and Army route and challenged the verdict before the Supreme Court. Of course, thankfully, the Apex Court dismissed the Special Leave Petition and affirmed the decision of the High Court.

Why I am speaking in detail of the above is that the citizenry wants the MoD to learn from the best practices in litigation from the MHA and it would be a humongous monstrosity for the MHA to rather adopt the opposite route. The Prime Minister and the Defence Minister have expressed concern about the rising litigation initiated by Government departments and the MHA should also take a cue from it. Just like personnel of the defence services, the troopers of CAPFs operate in trying conditions with heavy stress and strain, both in peace and field areas, and it is the barest minimum for us to expect a little more sensitivity towards disabled personnel and their families.

Reminds me again of this remark by the Delhi High Court while dealing with the ex-gratia claim of the wife of a Head Constable of the BSF who was also refused compensation on the ground that the death had no relation with service in the BSF:

“Stress, be it mental or physical, affects the body metabolism and puts a strain on the heart. A human body is not a switch. And unlike a switch which at a mere press stops the onward flow of current, the human body takes time to switch over when a circumstance changes.”

Wise words. Hope someone is listening....


machu said...

Very good article and analysis Maj Navdeep.
It is high time the MOD changed the rules to give disability pension to all personnel boarded out of the service.
It is foolish and stupid to say that one was on annual leave when one met with the accident because of which one sustained injuries or one has got the sickness because his genes inherently carried the disease.If an individual is certified as medically fit to join the services ,any disease he contracts after joining should be attributable.Similarly if one meets with an accident whilst on leave,injuries sustained should be attributable unless the accident was due to drunken driving or his /her negligence,which can be established by a COI or as per police report.
It is high time,the apex court gave a blanket ruling that all personnels medically invalided out be classified as attributable /aggravated cases and be given disability pension ,including old cases,with prospective effect only.
I trust you agree with my views.
Kind regards
Captain M.P.Nair

Unknown said...

The million dollar question is how to thrust the above noble thoughts down the throats of insensitive , accountable to none and most shameless bureaucracy headed by politicians who are equally insensitive, arrogant and have a casual approach even if they are not exactly shameless.

karunakaran a ex havildar said...


Whether it is combat or noncombat injuries or metabolic disorder like blindness, that one or the same to be treated as disability pension to be awarded to the ex trooper regardless of his rank or paramilitary or defence, court must chalk out clear cut procedure in consultation with the affected force leader not to put a soldier in trouble after contracting this ailments, when a soldier becomes fragile and feeble in body how he is able to attend the court

Alok Asthana said...

Well brought out, Navdeep. We, having served in the army, should pray fervently that no other govt dept emulates the MOD in its approach towards the very people it is supposed to work for. Else, India is finished.It would also be worth exploration by some social scientist how the MOD retains its cruelty despite its bureaucrats and political masters changing every 2-3 years? Who sowed the seeds?

Unknown said...

Your efforts to give justice to disabled soldiers are commendable and praise worthy