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Wednesday, November 7, 2018

Defence Ministry’s approach to litigation: misdirected, highly adversarial and sadistic (Parts I & II)

(Originally published for Bar & Bench)

Navdeep Singh

This might be the oddest and the longest opinion piece I have penned, and therefore it is in two parts, albeit being published simultaneously. And again, like many times before, I must forewarn, this is written to encourage discussion and introspection, not to cause commotion, disparage any entity or provide leverage to pessimistic sentiment.

In the late 1990s/early 2000s, as per the then existing roster of the Punjab & Haryana High Court, litigation related to service matters of Union of India was being allotted to Justice RL Anand, a strong but humane and sensitive Judge. While hearing a matter of an old military widow, an observation he made in open Court, not in jest, but in all seriousness, got stuck in my mind. He said, that if a litigant files a writ petition stating therein that the sun rises in the east, the Ministry of Defence (MoD) and the Army would surely file a written statement opposing the plea and saying that it rises in the west. The Judge was of course referring to the blind opposition put forth by the defence establishment in all cases with the singular aim of defeating the other side, sometimes fairly, and at other times by attempting to play smart. Of  course, during those days litigation used to end at the High Court, about a decade later things came to such a pass that the MoD, in its avatar of an insensitive raging bull, ensured by 2014 that more than 90% of its litigation in the highest Court of the land comprised appeals filed against disability benefits to its own maimed and disabled soldiers, at times involving amounts as little as a few hundred rupees, in matters already well settled by law.

While the Army commands utmost respect in our society, and deservedly so, and rightly remains one of the most venerable institutions in all facets, the track record of the MoD in litigation shows utter lack of grace and total absence of moral courage in admitting a fault. The objective solely remains to prove a litigant wrong and wear him or her out by contesting each and every claim, even if covered by existing decisions of Constitutional Courts or by the Government’s own policy, and at times also to subtly inject wrong information in Court proceedings or attempt to colour or influence the proceedings with one-way information by keeping it hidden from the litigant. Litigation is treated highly adversarial as if it is some kind of war being raged against petty employees which has to be won at any cost! Most of the pleas are opposed out of ego and most of the appeals are filed out of prestige. So much so, that this hook or crook attitude to ‘win’ cases has, in the past decade or so, assumed alarming proportions, with patently false information being projected right till the Supreme Court.

The dogged persistence to resist judicial dicta was again visible earlier this week in Lt Gen Manomoy Ganguly Vs Union of India [Writ Petition (Civil) 980/2018 decided on 29-10-2018] wherein the officer, of the rank of Lieutenant General, was made to undergo four to five rounds of litigation to get what he could have been granted in the first go. It is now that the Supreme Court has put an end to his agony.

Some recorded instances of unethical stands in Courts

Even off hand, many cases come to mind where incorrect submissions are, thankfully, recorded in the judgments, for posterity, though this is only a minuscule part of the malaise.

In PK Kapur Vs Union of India (Civil Appeal 4356/2006 decided on 01-02-2007), where the litigant was appearing in person for extension of certain pensionary benefits as provided to post-1996 retirees to pre-1996 retirees also, the Ministry of Defence put across the plea of an Office Memorandum (OM) issued on 3rd February 2000 which restricted the benefits only to post-1996 retirees. However, the MoD deliberately did not inform the Court that the Department of Pensions & Pensioners’ Welfare had already extended the benefit of the post-1996 OM dated 3rd February 2000 to pre-1996 retirees vide a fresh OM issued on 9th Sept 2001. The litigant lost his case and it was only years later in KJS Buttar vs Union of India (Civil Appeal 5591/2006 decided on 31-03-2011) that the correct law was affirmed by the Supreme Court. The MoD however still chose to carry on appealing in cases which were disposed by various Courts and Tribunals citing the decision in KJS Buttar’s case and ultimately it was a Three Judge Bench in Union of India Vs Ram Avtar (Civil Appeal 418/2012 decided on 10-12-2014) which settled the law. It is yet another sad story that the MoD has again filed a similar appeal in the already well settled subject as recently as in July 2018.

In Secretary MoD Vs Ajeet Singh Vs Union of India (Civil Appeal 16/2003 decided on 06-05-2009) the MoD informed the Supreme Court, which is again recorded in the order, that a minimum of ten years of service is required to earn a disability pension, while the truth is that there is no minimum qualifying service required for the said pension and a disabled soldier with even a single day of service is entitled to the same.

In Bhola Singh Vs Union of India (Civil Appeal 4486/2002 decided on 10-10-2010), the MoD informed the Supreme Court that there is a requirement of minimum 15 years of service to earn the “Service Element” of Disability Pension. While doing so, it projected outdated Regulations before the Court and also wrongly cited the regulation for “Service Pension” rather than “Service Element of Disability Pension” while in reality the minimum service requirement for Service Element stood abrogated from 1st January 1973. The same trick by citing Bhola Singh’s decision was sought to be applied in another bunch matter being heard by the same presiding Judge in Union of India Vs Sinchetty Satyanarayan (Special Leave Petition 20868/2009 decided on 23-02-2012) but since this time there were multiple lawyers available to rebut the untruth, the MoD quietly withdrew its appeals and conceded the matter when caught on the wrong foot in the Supreme Court.

In Union of India Vs Karan Singh (Special Leave Petition 37928/2012 decided on 10-02-2014), the MoD filed an appeal in a particular matter of a disabled soldier when the Defence Minister had already directed the withdrawal of such appeals through an explicit instruction. When this was pointed out in the Court by the counsel for the disabled soldier, the appeal was quietly withdrawn by the MoD.

In Air Vice Marshal Harish Masand Vs Union of India [119 (2005) DLT 152 decided on 08-11-2004] wherein the Delhi High Court was dealing with the promotion of senior officers of the Air Force, there was a crude attempt to mislead and misguide the judicial process by filing false affidavits. The Delhi High Court thus observed:

If one carefully goes through the note, the least we can observe is that at such highest level instead of placing the truth, ways and means were devised by XXXXX and others who were present in the meeting to conceal the truth. If this could happen at that level, how the rule of law and faith of the Court in the affidavits filed by the Government would survive. We are shocked that ways and means were devised by an officer of the rank of Air Marshal to hide from the Court what was against the Air Headquarters. It was a fit case where we would have ordered appropriate actions to be taken against XXXXX, however, we were told that he has retired in September this year. Therefore, we do not contemplate any action”.

Further observing the machinations, the Court recorded:

“What affidavit to be filed in the High Court in the present case, how Court should be misled, how truth should not come before the Court, ingenuity on the part of Air Headquarters to deny justice to the petitioner would not have been unrevealed but for a note recorded by XXXXX, Joint Secretary, Ministry of Defence”.

Of course, such attempts have since been made multiple times, especially in cases involving promotions of officers, and have not been appreciated by Courts and tribunals.

In Amar Chand Suhag Vs Union of India (Civil Writ Petition 5041/2004 decided on 11-08-2006), the MoD again projected an outdated regulation to deny benefits to a disabled soldier. When the Court was apprised of the reality, the MoD was fined by the Punjab & Haryana High Court which also recorded the following in the order-

“But we are constrained to observe that the respondents while reproducing the relevant legal provision pertaining to the assessment of disability pension have concealed the Regulations”.

Needless to state, the concealment in this case was not by the MoD per se but by the Regimental Records Office of the Army.

In yet another shocking case of Lt Col RK Rai Vs Union of India (Civil Appeal 3101/2015 decided on 16-02-2018), the MoD chose to contest a case against grant of disability benefits to a disabled officer who had sought premature retirement from the Army despite the fact that the Govt itself had issued a letter on 19-05-2017 authorising disability pension to such voluntary retirees. Though the said letter is fully discussed in the final order of the Court, it is beyond comprehension why the same was contested and not conceded at the outset or even declared infructuous when it was now fully covered by Government’s own policy.

In Union of India Vs Balbir Singh (Civil Appeal D 4893/2018 decided on 09-03-2018), the MoD appealed in matters concerning soldiers of the lower ranks which had already been decided by the Supreme Court and the High Courts. The Supreme Court imposed costs of Rs One Lac and observed-

This appeal was filed well after several similar matters were dismissed by this Court. We cannot appreciate the conduct of the Union of India in this regard of filing civil appeals/special leave petitions after the issue has been concluded by this Court. This is unnecessarily adding to the burden of the Justice Delivery Systems for which the Union of India must take full responsibility.”

Yet again, recently, in Union of India Vs Prithvi Singh (Civil Appeal D 8754/2018 decided on 25-04-2018), the Supreme Court imposed a fine of Rupees One Lac on the Union of India for repeatedly filing appeals in matters finally settled by the High Court and affirmed thereafter by the Supreme Court. The Apex Court observed-

“The couldn’t-care-less and insouciant attitude of the Union of India with regard to litigation, particularly in the Supreme Court, has gone a little too far as this case illustrates....The Union of India must appreciate that by pursuing frivolous or infructuous cases, it is adding to the burden of this Court and collaterally harming other litigants by delaying hearing of their cases through the sheer volume of numbers. If the Union of India cares little for the justice delivery system, it should at least display some concern for litigants, many of whom have to spend a small fortune in litigating in the Supreme Court...To make matters worse, in this appeal, the Union of India has engaged 10 lawyers, including an Additional Solicitor General and a Senior Advocate! This is as per the appearance slip submitted to the Registry of this Court. In other words, the Union of India has created a huge financial liability by engaging so many lawyers for an appeal whose fate can be easily imagined on the basis of existing orders of dismissal in similar cases. Yet the Union of India is increasing its liability and asking the taxpayers to bear an avoidable financial burden for the misadventure...To say the least, this is an extremely unfortunate situation of unnecessary and avoidable burdening of this Court through frivolous litigation which calls for yet another reminder through the imposition of costs on the Union of India while dismissing this appeal. We hope that someday some sense, if not better sense, will prevail on the Union of India with regard to the formulation of a realistic and meaningful National Litigation Policy and what it calls ‘ease of doing business’, which can, if faithfully implemented benefit litigants across the country.”

Attitudinal Problem, putting pressure on officers dealing with litigation and getting personally involved with cases

In a Committee of Experts constituted by the Raksha Mantri in 2015 on sentiment expressed by none less than the Prime Minister to reduce litigation, especially appeals filed by the Government, of which even this author was a member, we were perplexed when many officers came to us with presentations portraying the methods of filing ‘faster appeals’ rather than methods to reduce appeals. Of course, this militated against the very reason why the Committee was constituted. We had to repeatedly question and counsel many officers, while recording in so many words, that litigation was not a war or a sport that they had to score a ‘win’. We also had to regrettably record in the Report as to how contemptuous language was used against the judiciary by certain elements and how suggestions were made to overreach Courts. All this reflects a strange kind of arrogance which is unacceptable in a democracy. Shockingly, proposals were made before the Committee that members of the judiciary dealing with matters of the Armed Forces should be ‘sensitised’ and there should be a consultative mechanism between the executive authorities and Members of the judiciary. Such statements clearly point out to the lack of basic understanding of the concept of separation of powers and that persons in key appointments feel that judiciary functions like some sarkari office where things are done by hobnobbing, interaction, liaison and overreach. It is not even understood by the system, it seems, that within a courtroom, both parties are to present their cases and the bench is supposed to render decision as per law.

As stated in the beginning, it is also very frightening to see the total lack of grace in accepting a wrong in Courts. While officers of many departments including the Ministry of Home Affairs in parallel litigation, have no qualms in conceding when a particular case is covered by existing case law or even admitting any wrong committed, this trait is rarely seen in the case of MoD or the defence services though lot is said about the virtue of ‘moral courage’ in the military milieu. So much so that even senior officers get personally involved in innocuous litigation putting pressure on young officers, including those of the Judge Advocate General’s Branch (JAG) with phone calls, signals and what not! Undue pressure is exerted to ‘win cases’ and officers are questioned when a case is ‘lost’, not realising that in every litigation, one party has to win and the other has to lose and this is an everyday affair in Courts all over the nation.

This undue pressure also encourages young officers dealing with litigation to show over-enthusiasm and at times, over-smartness, which might help in the short run but not in the longer race. Does it behove senior appointments in the military set-up getting intimately intertwined with proceedings of matters on promotions, pensions, minor disciplinary issues, welfare polices etc? Is that the official mandate? Should that be the focus? Aren’t there other real ‘military’ issues to look after? No real battles to fight? While legal officers of other departments including the uniformed services of the Home Ministry act in an autonomous manner in their functioning with full authority to take a stand or decision on behalf of the system, the representatives of the military, on the other hand, are always terrified of their chain of command.  The Government and its entities are supposed to be faceless organisations and there is no reason to get personally involved or individually entangled in cases out of administrative egotism. This fleeting happiness of winning a point by over-smartness such as maintaining ‘shadow files’ or ante-dating documents, creating documents or asking counsel to change legal opinions also might earn one some brownie points and impress certain bosses but the damage caused by these stunts to the institution, its reputation and the morale of soldiers, veterans and military widows is permanent and irreparable. You never know when the shoe shifts to the other foot!

In fact, the attitude of the system in decrying litigants and using accusatory language was very nicely preserved by the Delhi High Court in one of the cases, wherein it observed:

“...It is also necessary to record here, with some regret, that the pleadings of the Army, in this case, were combative and adversarial. References to the petitioner and XXXXX more often than not had an accusatory note. At no point of time does the Army appear to have thought it appropriate, as an institution, to extend sympathy...Would it then have mattered if the Army had officially said "Sorry". It is time for all of everyone to move forward- beyond egos, beyond perceptions of "propriety" (whatever that means in such cases) and as institutions, to reach out to those with hurt feelings. Doing that shows humaneness and courage; stony silence is not machismo. It is hoped that this is a wake-up call for the Army to take remedial measures in such cases...”

Trying to override judiciousness by creating an unreal noise in the name of ‘national security’

A strange kind of behaviour in litigation is also displayed in routine matters such as promotions when officers representing the establishment try to overawe the Court and the litigant by behaving as if they are dealing with nuclear secrets of the State. This attitude, which was never found acceptable in the High Courts, has increased after the inception of the Armed Forces Tribunal (AFT). Officers in uniform, representing the establishment, try to pass on papers in ‘sealed covers’ to the bench to provide a one-sided story to any litigation. Sadly, while the High Courts tend to rebuke such behaviour, this practice has become routine in some of the benches of the Armed Forces Tribunal. In fact, the aim of this practice is very simple, that is, to steal a march over the litigant by overplaying certain documents while underplaying others, since the litigant then has no possible way to rebut what has been placed before a bench. There have been moments wherein in the open Courtroom, officers in uniform have walked up to the bench literally to show documents at the back of the litigant. What image or perception would this project to the litigant or others present in the Court? In the judicial system of a democracy, the petitioner is the dominus litis, but it seems it’s the other way round in military litigation.

What is brazenly incorrect in encouragement of this system also is that while transparency laws are now all encompassing with even cabinet notes open to public scrutiny, here it is attempted to convey to the judicial system as if heavens would fall if a particular case is decided in favour of a particular individual. Noting this behaviour, the Chandigarh Bench of the AFT in Brig Dinkar Adeeb Vs Union of India (OA 2948/2013 decided on 30-08-2013, later upheld by the Supreme Court) had deprecated the conduct of the Military Secretary’s branch in trying to pass on a file to the bench without showing the same to the Petitioner after the case had been argued, and it was stated by the bench that “no such attempt should have been made”. It is not understood as to how can administrative or promotion matters be shrouded in secrecy? At best, the names of other officers in such proceedings can be blurred or blocked and the rest of the papers can be placed on record.

Courts usually only accept documents in sealed cover wherein the security of the nation is involved or if it’s a case with ramifications on relations with foreign powers or an issue involving fiduciary relationship such as contracts etc. This attitude also recently found disfavour with the Supreme Court in Hav Sham Dass D Vs Union of India (Criminal Appeal D 14045/2018 decided on 12-07-2018) wherein the soldier’s services were terminated however he was not allowed to peruse the documents related to his termination on the pretext of ‘national security’. This is what the Supreme Court observed on the matter:

We may only clarify that every single relevant document pertaining to the appellant’s termination will be allowed to be inspected as per the Rule. We make it clear that no document shall be allowed to be denied to the appellant on the so-called ground of national security.

Strangely despite multiple decisions by the Central Information Commission and the High Courts, the ‘opinion and findings’ rendered against delinquent employees are not passed on them in the name of confidentiality. Meaning thereby, the employee must not know what has been found against him/her and on what basis thereby leaving the employee defenceless and groping in the dark. Interestingly, basing disciplinary action on such a faux cloak of secrecy was shattered by the Supreme Court last week in Union of India Vs Col AD Nargolkar (Civil Appeal 10686/2018 decided on 24-10-2018) wherein the Supreme Court noted-

“To top it all, while giving the aforesaid findings, Court of Inquiry (COI) has referred to the 'discreet inquiry' which had found the allegations to be correct. At the same time, this discreet inquiry was not proved before the COI. We fail to understand as to how it could become the basis of findings of the COI when no opportunity was given to the Officer to meet the same.”

Clearly from the looks of what has been in vogue, Courts should be extremely slow in taking the word of certain instrumentalities of the State on face value. It must however be emphatically stated that it is not the Counsel representing the Union who might be at fault, since the lawyers too, mostly, are kept in dark of the reality of it all. In my personal opinion, such transgressions should not be let off lightly by Courts and tribunals merely because the other side presents itself to be hallowed since it deals with national security. Absolutely not. Organisations dealing with the defence of the nation must be held to even greater probity and judiciousness since injustice itself is the anti-thesis of discipline. No entity must be allowed to get away with the thought that certain organisations hold a right to some special privilege, much less the privilege to misguide.

Incorrect litigation data to Ministry of Law and Justice

Interestingly, the jugglery is not restricted to own rank and file, elements of the MoD even have the propensity to confuse their own political bosses and also other ministries. In data provided to the Law Ministry, the MoD reported pendency of only 3433 cases relating to the said ministry, the MoD also reported zero contempt matters. The Data is still available on the official Law Ministry website, See Slide No 6. The truth however is that more than 15000 cases were pending in the AFT alone which can be seen on Page 21 of a Parliamentary Committee Report. Moreover, as on 01-07-2015, about 4390 applications for contempt or execution of orders were pending in the Chandigarh Bench of the AFT alone and the number of contempt or execution applications in other benches, the High Courts and the Supreme Court would be in addition. The data of pendency in the Armed Forces Tribunal in July 2018 was about 17000. Hence, if even the Ministry of Law & Justice can be at the receiving end of manipulation by some mandarins of MoD, what can a common litigant expect? While the Ministry of Law & Justice lists the MoD as the fifth highest litigant based upon the imperfect data provided by it, the fact remains that in service matters, it is in reality the highest litigant since Ministries of Finance and Railways are burdened by tax related litigation/appeals and accident claims respectively over which they have no control. Moreover, while the MoD is known to file appeals in the Supreme Court in matters involving even a few thousand of rupees (if not hundreds), the Ministry of Finance admirably does not appeal unless the matter is worth Rupees One Crore.

While the Supreme Court has called for the government and its instrumentalities always to be responsible litigants, and there is change in the last decade or so as far as many central government departments are concerned, the same has had no effect on military litigation. The attitude is a reminder of the following words on litigation induced by government agencies by the Supreme Court in Urban Improvement Trust, Bikaner Vs Mohan Lal  (2010) 1 SCC 512:

“4...They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected.

5. This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice....

6. Unwarranted litigation by governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:

(i) All claims against the government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.

(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secures a decision....”

The Government has a huge task at hand. It must not trust what is put up to the political executive by way of file notings from below, blindly. Notes are prepared so as to create a bias in the minds of the competent authorities thereby making wise decision-making an uphill task. The only way to resolve this quandary is to ensure a well-rounded system of consultation with all stake-holders and selected affected parties. In absence of the same, the decision-makers would continue to remain trapped in echo-chambers. 

While we, the ones dealing with military litigation, shall remain, waiting for Godot!

Original links @ Bar and Bench:

Major Navdeep Singh is a practicing lawyer at the Punjab & Haryana High Court, the founding President of the Armed Forces Tribunal Bar Association at Chandigarh, Member of the International Society for Military Law and the Law of War at Brussels and author of ‘Maimed by the System’.

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