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Friday, June 30, 2017

A reluctant step, but an important and landmark step nevertheless by the Ministry of Defence for Disabled Soldiers probably ending the dark era of en masse appeals against disabled soldiers

As regular readers would be aware, the issue of declaring disabilities of soldiers as “Neither Attributable to, Nor Aggravated By Military Service” (popularly known as NANA cases) has been a vexed one. While the rules on attributability and aggravation are quite liberal, their interpretation has been literal, leading to denial of disability and special family pensionary benefits to disabled soldiers and families of soldiers who die due to some disability while in service.

Despite several judgements by the Supreme Court, High Courts as also followed by various Benches of the Armed Forces Tribunal, benefits were denied to such disabled soldiers, and on the contrary, multiple appeals were filed against favourable verdicts rendered by Courts.

Besides other issues, this issue was also deliberated upon and discussed in detail in Paragraph 2.2.1 of the Report of the Committee of Experts constituted by the then Raksha Mantri on directions of the Prime Minister, for reducing litigation involving the Ministry of Defence and strengthening the mechanisms for redressal of grievances, of which I too was a Member. The following were the recommendations of the Committee to this end:

In view of the foregoing, the Committee notes and recommends the following:
(a) According to rules, as also endorsed by the Supreme Court, a benefit of doubt regarding ‘attributability/aggravation’ or ‘service-connection’ needs to be granted to any disability arising during service [See Paragraph 32 of Dharamvir Vs Union of India (supra), Paragraphs 15 & 16 of Union of India Vs Rajbir (supra)]. The same however can be denied when it is shown that the disability is due to a person’s own gross misconduct or negligence, illegal activity, substance abuse or intoxication. The same is also a universally acceptable norm in all democracies [See Rule 105 of US Code 38 (supra)]. The same benefit is also admissible in ‘death’ cases due to in-service disabilities leading to entitlement of Special Family Pension for families. The said proposition is also agreeable to all stakeholders including the medical side with the apex medical body, the MSAC, also on board.
(b)  There is no linkage with ‘peace’ or ‘field’ service as far as attributability of disabilities is concerned and any such differentiation locally put across by the office of DGAFMS in the past or professed by any other authority is illegal, contrary to Entitlement Rules, contemptuous towards decisions of the Hon’ble Supreme Court and also against Regulations for Medical Services in the Armed Forces (See Para 33 of Dharamvir Singh Vs Union of India and Regulation 423 of RMSAF). So for example, if a soldier develops Heart Disease while in service, the benefit of doubt needs to be extended to ‘service-connection’ and the claim need not be rejected on grounds such as ‘served in peace area’ or ‘cause unknown’. The claim can only be rejected in case of a note of disability at the time of entry into service or reasons such as ‘heavy smoking’ or ‘lack of dietary control leading to obesity and heart disease’ are recorded, if applicable. Otherwise, the presumption operates in favour of soldiers, as per rules and as held by the Supreme Court.
(c)  Broadly blaming domestic reasons for psychiatric disabilities arising during military service is against common knowledge and unethical since domestic reasons are bound to give rise to stress and also to aggravate the same in soldiers because of the very fact that due to military service they remain away from their families most of the year and cannot hence cope up with all familial requirements efficiently by virtue of their being absent from home. Putting the blame on ‘domestic reasons’ not only gives out a message that the organisation is simply washing its hands off the responsibility towards such soldiers but also results in denial of pensionary benefits to such affected soldiers and their families. The issue already stands addressed in K Srinivasa Reddy Vs Union of India (supra) and also explained in detail in the preceding paragraphs by us. The said principles and causative factors of stress also stand endorsed by way of DO letters written to Chief Ministers by successive Raksha Mantris, which of course has also not resulted in desirable results and needs renewed efforts.
(d) All concerned agencies should realize that non-grant of “attributability” or “aggravation” on flimsy grounds results in denial of pensionary benefits and consequently denial of a life of basic dignity to disabled soldiers. While it may be just a casual stroke of a pen for a medical board, it may be a question of survival for a soldier or his family. The exercise needs to be undertaken in a common-sense oriented, practical, liberal and scientific manner. Guidelines, if any, may not operate in derogation of actual rules and need to move with the times as per global norms based on scientific studies. The lack of transparency in past amendments in the “Guide to Medical Officers (Military Pensions)” wherein the said amendments do not even carry the footnote of the study or the basis leading to the change/amendment is highly avoidable and so is the tendency not to honestly reproduce the actual rules in the said guide and eliminating important parts such as the erstwhile Para 47 of the 2002 version which has vanished without trace and without reasoning and the spirit of which needs to be restored. All authorities, including Medical Boards shall decide attributability/aggravation on a case to case basis as per law laid down by the Supreme Court based on the interpretation of actual rules and ground realities of the inherent stress and strain of military life, rather than the mathematical guidelines of the Guide to Medical Officers or locally issued instructions and DO letters written to medical boards.
(e) Cases of feigning of disabilities where none exist should be dealt with strongly and medical boards should also be extra careful in examining cases where individuals have reported with a medical condition just prior to retirement or release.
(f) The current approach shows that despite clear cut law laid down by the Supreme Court and also the spirit of the rules, there is resistance in accepting the settled legal position based on hyper-technical hairsplitting reasons. The concerned authorities must accept gracefully and with all humility the law laid down by the Apex Court and come to terms to the same since an approach of resistance is not only against law but also at odds with global practices for disabilities incurred during military service.
(g) It is further recommended that henceforth in medical boards, all disabilities arising in service may be broadly dealt with on the anvil of the above practical realities, all appeals pending against such disabled soldiers filed in the Supreme Court be withdrawn immediately and pending or future litigation in Courts and Tribunals related to past cases of disabled soldiers may be dealt with by Government lawyers in judicial fora on the basis of Supreme Court decisions as above, except in cases of gross misconduct, negligence, substance abuse or intoxication, on a case to case basis. Needless to state, the same principles also apply to deaths while in service.

Based on the position as above, the Ministry of Defence has finally issued a policy letter for implementation of Court orders granting disability pension to disabled soldiers, which can be downloaded and accessed by clicking here. While the Ministry has fully accepted judicial dicta as emphasized in the above recommendation, what is strange is that in Paragraph 3 of the said policy, though the Defence Services Headquarters have been asked to implement Court orders and also grant absolute sanctions while implementing the same (as against Conditional sanctions pending appeal, as was the case in the past), the Ministry has still not shown a large heart as far as withdrawal of the pending appeals are concerned, and on the contrary, rather than asking the Defence Services to withdraw the said appeals, the Ministry states that ‘absolute sanctions’ be issued on dismissal of the appeals already pending in the Supreme Court. The question arises that when the recommendations of the Committee are unambiguous on the subject and so is the law declared by Constitutional Courts, why should the pending appeals be pursued till ‘dismissed’, and why not simply withdrawn with full humility?

These are questions to which there are no answers. Notwithstanding this, we should stay positive since not only will this ensure a faster implementation of Court orders related to disability pension, it also, in all probability, marks the closure of a dark era of en masse appeals against disabled soldiers, and I am sure the remaining issues shall also be ironed out soon.

Must place on record my gratitude to Mr Manohar Parrikar for initiating these reforms leading us to a better today

Wednesday, June 28, 2017

Cabinet decisions on allowances of Government Employees: To be paid with effect from 01 July 2017 (UPDATED)

Here is a gist of today’s major cabinet decisions for allowances of Central Government employees based on recommendations of the 7th Central Pay Commission, in layperson terms:

1. Total number of allowances decreased from 197 to 128. To be paid with effect from 01 July 2017.

2. An additional Cell for Siachen introduced in the Risk and Hardship Matrix. The amount enhanced to Rs 42,500 for Officers and Rs 30,000 for ranks other than Commissioned Officers. The rates recommended by the 7th CPC were Rs 31,500 and Rs 21,000 respectively.

3. HRA rates decreased to 24%, 16% and 8% for X, Y and Z cities respectively. However the rates to go up to 27%, 18% and 9% and then 30%, 20% and 10% whenever the rates of DA touch 25% and 50% respectively. The HRA would however remain protected at 30%, 20% and 10% for the lowest possible pay under the Government and would not hence be less than Rs 5400, Rs 3600 and Rs 1800 for any employee.

4. Newly proposed Dress Allowance to be paid @Rs 5000, 10,000, 15,000 and 20,000 per year to employees of various categories. This subsumes all other uniform related allowances.

5. Ration Money Allowance (RMA) not abolished but will be paid directly with the salary in lieu of actual rations to officers posted in peace. Will update readers once there is more clarity on this issue.

6. Facility of One additional Railway Warrant extended to CAPFs and Coast Guard.

7. Field Area Allowances to be regulated @Rs 6,000-16,900. Counter Insurgency Allowance also at the same rates.

8. MARCOS and Chariot Allowance to Marine Commandos and also COBRA Allowance to CRPF personnel in Naxal areas to be granted @Rs 17,300-25,000.

9. Flying allowance @Rs17,300 to 25,000, also extended to BSF’s Air Wing.

10. Deputation Duty Allowance ceiling for defence personnel increased from ₹2000 - ₹4500 per month to ₹4500 - ₹9000 per month.

11. Fixed Medical Allowance for pensioners increased to Rs 1000 per month and Constant Attendant Allowance increased to Rs 6,750.

The Gazette notification for all allowances has been published on 06 July 2017 and is available here

Sunday, June 25, 2017

Justice at last for PSU absorbees who had opted for 1/3rd pro-rata pension: Government implements decision of the Madras High Court for payment of 100% pension, as affirmed by the Supreme Court, for all similarly placed employees

On dismissal of the SLP filed by the Central Government against the judgement of the Madras High Court, the Department of Pension and Pensioners’ Welfare of the Government of India has issued orders for all similarly placed employees finally undoing more than four decades of patent injustice.

In the 1970s, Government employees who opted to join Public Sector Undertakings (PSUs) or autonomous bodies were made entitled to a payment of lumpsum amount in lieu of pension that had accrued from their Government Service. In terms of Rule 37-A of the Central Civil Service (Pension) Rules, 1972 (added in 1973), an employee was entitled to a lump sum amount not exceeding the commuted value of one-third of the pension and terminal benefit equal to twice the aforesaid lump-sum amount, subject to the condition that the Government servant surrendered his right of drawing two-thirds of his pension.

Later, on the directions of the Supreme Court, orders were issued to restore 1/3rd pension after the period of commutation culminated.

An employee however approached the Central Administrative Tribunal stating therein that even the rest of the 2/3rd portion needed to be restored on culmination of the period of commutation since the undertaking taken under Rule 37-A was in contravention to provisions of Section 12 of the Pension Act, 1871, which provided that a person could not be made to wish away his right to pension by any authority. The petition filed by the employee was however dismissed by the Tribunal.

The order of the Tribunal was then challenged by the employee, K Ganesan, in the Madras High Court, which ruled in his favour and held  that the undertaking taken from the employee was repugnant of the Pensions Act and the 2/3rd commuted amount also needed to be restored after expiry of the period of commutation. The Madras High Court directed the Government to do the needful and set aside the order of the Tribunal. The High Court also observed that the earlier decisions of the Supreme Court were not on this point and neither were the provisions of the Pensions Act brought to the knowledge of the Supreme Court. The High Court however refused to grant interest on the arrears in view of the major delay in challenging the provisions of the Rules by the employee.

The Central Government thereafter went into appeal to the Supreme Court but the SLP was dismissed in 2016. The Government thereafter filed a Review which was also dismissed in March 2017.

The Government has now issued orders implementing the decision for all similarly placed employees thereby directing the release of 100% pension from the date of culmination of the period of 15 years from commutation. As a result, all such PSU/Autonomous bodies absorbees shall be entitled to 100% restoration of pension on the date of completion of 15 years from the date of commutation. All such employees would now be entitled to full arrears from the 4th, 5th, 6th and the 7th Pay Commissions, as the case may be.

Again, this case shows as to how the above proactive approach of the Department of Pension & Pensioners’Welfare is in contrast with the approach of Department of Ex-Servicemen Welfare under the Ministry of Defence. While even single-liner judgements and orders of the High Courts and the Supreme Court are implemented across the board for all similarly placed employees/pensioners by the former, the latter does not even implement decisions for specific petitioners unless multiple litigation is indulged in, including contempt and execution applications. 

Thursday, June 8, 2017

Penury Grant enhanced to Rs 4000 per month from the existing Rs 1000

In a progressive move, the Government has enhanced the rate of the monthly Penury Grant to Rs 4000 from the existing Rs 1000 which had remained constant since the year 2011.

The Penury Grant is payable to those ex-servicemen and widows who are living in a state of penury and are not in receipt of pension from any source. The recipient has to be over the age of 65 years to be eligible.

It may be recalled that earlier a one-time grant at the rate of Rs 30,000 was granted to needy veterans and their widows and the system was then changed in the year 2011 to a monthly payout of Rs 1000.

Most of the ex-servicemen affected by the grant are those who were released without any pension on reduction of establishment or for other reasons without completion of minimum pensionable service.

The payout of this scheme is through the Armed Forces Flag Day Fund.

The new letter issued by the Government today can be accessed by clicking here.