AFLJ 2012 (1) - Honble Lt. Gen. S. Pattabhiraman (Retd)

8/13/2019 AFLJ 2012 (1) - Honble Lt. Gen. S. Pattabhiraman (Retd)

1/196


2/196

2 Armed Forces Law Journal 2012 (1) +

discharge orders in Courts. The bureaucratic manner of treating such cases of

recruits, as also aberrations apparent in some of the badly handled cases of

dismissals and disproportionate a!ards on account of courts martial hae besides

being been eye>openers spurred me on to pen my reflections before the in dries up.

). The *andout, I hae aimed at, is to be primarily of use to the prospectie

litigants, !ho hae no! been proided !ith, statutorily, an opportunity both

affordable and close at hand, hitherto considered not so, to be able to address

perceied !rongs in a finite time of not more than a fe! months.

8. It is to the credit of the hierarchy of the three (erices *ead=uarters, their

Records offices, the offices of the :C3A -:ensions/ and the M43, that they hae

responded !ith alacrity to the oer!helming demands made on them eer since the

AFT !as operationalised, !hich has made it possible for the stupendous success

achieed in disposing of record numbers of cases and bringing do!n the pendency

of military litigation from oer 1%&&& to a fe! hundreds? To!ards the end of the

*andout, I hae also placed for consideration of the (erices hierarchy at the top,

recommendations for consideration !ith the M43 to!ards effecting a fe! reforms

to!ards rendering greater e=uity, at pace !ith march of la!.

@. In the end I am thanful to Mr. M. . (idar, Adocate, Madras *igh Court 5

AFT Regional Bench, Chennai 5 Chief ditor of the Armed Forces a! Dournal

and to Ma# adeep (ingh, Adocate, :un#ab 5 *aryana *igh Court 5 AFT

Regional Bench, Chandigarh 5 :ublisher of the online Forces a! ;a+ette for

incorporating the handout in their respectie forthcoming issues.

Cenna.&

1/*Fe, 2012 Sd-

L*+ "en (Re*d) S+ !a**a,.raman

A1-SunCity Apartments

9 Santhome High Road

Mylappore ,

Chennai 600 004.


3/196

Armed Forces Law Journal 2012 (1)

REFLECTIONS ON I!ACT OF COIN" INTO FORCE OF

ARE# FORCES TRI$%NAT (AFT) ACT& 200'

I N # E

!a3e Nos+

1. Introduction 1

Ca4*er I

%. E5aus*.on o6 a7a.la,le remed.es (ser7.n3 4ersonnel) 0

Types of Remedies 0

Time (tipulation 0

Ca4*er II

0. E5aus*.on o6 remed.es-re*.red o66.cers!$OR and *e.r 8.n 7

Ca4*er III7. Cause o6 ac*.on

A44roac.n3 *e r.3* 6orum (9.3 Cour*Su4reme Cour*) 7 > )

(alient 3ifferences !ith Central Administratie Tribunal -CAT/ 7

:olicy Matter s. :ersonal or :ersonnel Issue )

Cause of Action 7

Ca4*er I:

/+ a;or causes 3.7.n3 r.se *o rel.e6s ,e.n3 sou3* and 8 > 17

su33es*ed l.ne o6 a44roac

3isability :ension Claims 8

3ischarge !ithout :ensionary Benefits '

3enial of Family :ension to 9ido!s$et of in -4/ 11 of Missing (ericemen

ntitlement of (econd Family :ension 1%

3enial of :romotion 10

Appeal against (entence of 3ismissal5$Eerdict of Courts Martial 17

Ca4*er :

8. F.l.n3 o6 a44eala44l.ca*.on and 4resen*a*.on o6 4a4ers& scru*.n o6 1% 01

and *e ser7.ces

M43 %'

All Three (erices 0&

ay 4nly 01

Ca4*er :II


5/196


1@. 3ictum of *on"ble Ape Court >> :rimacy of Medical opinion ))

GoI Es. 3amodaran AE -3ead/ through Rs

1


6/196


!ay of (ummary Trials

7&. Army Rules %%, %0 1@&

71. Air Force Rule %7 1@%

7%. (ec '0 -%/ of ay Act 1@0

70. Regs %@, %>>>>>>>>>>>>>>>>>>>

REFLECTIONS ON - I!ACT OF COIN" INTO FORCE OF

ARE# FORCES TRI$%NAL (AFT) ACT& 200'

In*roduc*.on

1. 4n < Aug, %&&', *er cellency (mt. :ratibha 3ei (ingh :atil inaugurated in

the hallo!ed precincts of Eigyan Bhaan, e! 3elhi, the :rincipal Bench of the

AFT in accordance !ith the proisions of the AFT Act enacted by the :arliament in

%&&@.

%. It !as a truly historic occasion !herein the desire for an independent

ad#udicatory forum for the 3efence personnel of the three !ings of the Armed

Forces enisioned first by the *on"ble (upreme Court in its remars !hile

ad#udicating the case of :riti :al (ingh Bedi s. G4I in 1'


7/196


%&11/. Today, t!o years plus do!n the road, it can be stated !ith a great deal of

assurance and pride that there is practically no pendency of cases inherited from

-mostly/ *igh Courts !hich !ere oer approimately 1&,&&&, going bac!ards to

on an aerage of eight to ten years of pending litigation if not more in certain cases.

7. That the AFT, haing disposed of most of the transferred>legacy cases, is only

dealing !ith current cases no! and disposing them in a matter of an aerage of si

to eight months from filing of the petition$appeal to deliery of #udgment, -!hich

currently can only be contested in the *on"ble (upreme Court as per the AFT Act/,

by itself =ualifies to be raned as an unparalleled feat of success in independent

India. The contours of this success story, more importantly its long>term

implications for the three (erices, both sering and the larger beneficiaries i.e., the

retirees$eterans, call for a detailed analysis in the nature of a management eercise.

I !ould ho!eer, haing been fortunately part of this stupendous enture as one of

the founder members, lie to leae behind my immediate report>card as short term

recommendations for those !ho are liely to be associated !ith dealing !ith cases

in the AFT in any capacity.

). This handboo more in the nature of an aide memoire cum helpline for the

prospectie litigants and recommendations for consideration of the respondents,

i+., the M43 and the three (erices, is laid out for conenience into chapters titled

as underL>

a/ Chapter 1> In>house Aailable Remedies to a (ering 4fficers$ :ersonnel belo!

officer ran -:B4R/ !hen aggrieed and before ehaustion of !hich they cannot

approach AFT.

b/ Chapter %> haustion of Aailable Remedies to a Retired 4fficer$ >

(ericeman$ et of in$ egal *eirs.

c/ Chapter 0> Cause of Action and approaching the correct forum, AFT$ *igh

Court$(upreme CourtH

d/ Chapter 7> Categorisation of ma#or causes of dissatisfaction, the liely causes

giing rise to the same and the line of approach.

e/ Chapter )> Filing of Application$Appeal and :resentation of material papers.

(crutiny of Counter$Reply statement of the Respondents and submission of a :oint

by :oint Re#oinder, Reference Boos and pertinent citations of $parimateria case

la!s$ established 3ictums.


8/196


f/ Chapter 8> ntreaty to the Respondents, i+., the Ministry of 3efence and the

three (erices.

g/ Chapter @> ;rey areas in ferment and that may need the Ape Court"s rulings.

h/ Chapter Food for Thought.

i/ Appendi > tracted citations and :olicy letters referred to in the body of the

*andboo.

>>>>>>>>>>>>>>>>>>>>>>>>>>

C9A!TER =I -E9A%STION OF A:AILA$LE REE#IES

(SER:IN" !ERSONNEL)

T4es o6 Remed.es

8. There are primarily t!o classes of remedies that the AFT recogni+es of haing

been ehausted by an aggrieed person, the first by !ay of a statutory complaint to

the M43 or to an authority delegated by the ;oernment as such, in the

Army$ay$Air Force Acts and the second by !ay of appeals against disciplinary or

other a!ards to authorities outlined in Acts or Rules or Regulations.

@. (tatutory Complaint L In any issue giing rise to a cause of action seeing

remedy, eg., pertaining to promotion, seniority, tenure curtailment or !rong>doing

affecting career prospects etc, the applicant, prior to nocing at the doors of the

AFT ideally should hae petitioned the M43 as per releant proision of the ArmyAct1 -(ec %8 for :B4R 5 (ec %@ for 4fficers, read !ith :ara 087, Regs for the

Army/, ay Act% -(ec %0 for both 4fficers 5 (ailors read !ith Regulations %08 to

%0' of The Regulations for the ay, :art II, (tatutory/, or Air Force Act 0 -(ec %@

for 4fficers 5 (ec %8 for Airmen/.

grant of 3isability :ension by !ay of

constituted Boards of (pecialists for the purpose of grant of such a!ards. In the

former case, proisions eist in the Army$ay$Air Force Acts for a person !ho has

been tried and sentenced, to appeal by !ay of pre and post confirmation petition to

authorities specified in the respectie Acts. *o!eer it has been eperienced that

the aggrieed persons, particularly Armyjawansof a lo!er educational bacground

hae not been careful in cogently retaining documents proided by the authorities,

such as copies of court martial proceedings, thus putting them at a handicap

resulting in either an incomplete$ incoherent appeal or a much delayed appeal or no


9/196


appeal at all. Coming as a relief to them, the AFT Act, as enacted deals !ith such an

appeal against court>martial a!ards under (ec 1) 7of the Act as an or.3.nal a44eal

and therefore it is immaterial !hether a person has ehausted the remedy open to

him under the releant Army$ay $Air Force Act prior to seeing relief by !ay of

an appeal against disciplinary a!ards.

T.me S*.4ula*.on

'. As per sections %1)and %%)of the AFT Act, any person !ho has not got a remedy

!ithin si months of his complaint$appeal against a!ards to the M43, can file

petition before the Bench of the AFT, !ithin !hose #urisdiction his $ her case falls.

*e$ she can also file petition against an unsatisfactory reply to his statutory

complaint$ appeal against a!ard, !ithin si months of such a reply haing been

receied. ot!ithstanding the si months stipulation as mentioned in complaints$

appeals, either not replied to or reply receied unsatisfactorily, should a person hae

a grieance !hich has arisen three years prior to the operationalisation of the AFT

Act, he can hae his petition entertained , if he can satisfy the Tribunal Bench that

there !as sufficient cause for the delay. In the case of the :rincipal Bench in e!

3elhi this date of reconing !ould be @ Aug %&&', the date of notification in the

official ga+ette and in the case of the Chennai Regional Bench, the date !ould be %1

4ct %&&', and so on in respect to other Benches as and !hen they !ere notified.

>>>>>>>>>>>>>>>>>>>>>>>>>>

C9A!TER 2 - EA%STION OF REE#IES - RETIRE#

OFFICERS!$OR AN# T9EIR >IN

1&. Record 4ffices in the case of Army :B4R and A;"s branch in the case of

officers is the nodal agency for approaching on any matter concerning pensionary

benefits and serice matters of a personal nature. Ideally, a person should !rite to

such authorities before approaching the Tribunal. In fact Regulations 08


10/196


authorities at the correct addresses and by !ay of registered post and proof of

deliery$acno!ledgement must be aailable to confirm its receipt by the

respondent-s/ and thereby #ustify ehaustion of the remedy.

>>>>>>>>>>>>>>>>>>>>>>>

C9A!TER -CA%SE OF ACTION A!!ROAC9IN" T9E RI"9T

FOR% (9I"9 CO%RTS%!REE CO%RT)

Sal.en* #.66erences w.* Cen*ral Adm.n.s*ra*.7e Tr.,unal (CAT)

1%. The AFT Act, by an epress proision in sec 17 -1/@of the Act, confers on the

AFT eercise of all the po!ers, eercisable in relation to (erice matters -itself

defined in sec 0 -o/ of the AFT Act/, hitherto eercised by any Court in the country,

ecept the !rit #urisdiction !hich continues to be ested in the (upreme Court and*igh Courts under articles %%8 and %%@ of the Constitution.

10. The aboe proision, !hen read !ith sec 0& its decisions are challenged at *igh Courts and subse=uently are

challengeable at (upreme Court.

1). 9ith regard to challenging policy letters of the ;oernment, the Chennai

Regional Bench has held the ie! that despite the #udgment of *on"ble Ape Court

in . Chandraumar s. G4I -supra/, the specific reference to eclusion of !rit

#urisdiction eercisable by *igh Courts under Art. %%8, as built into (ec17 of the

AFT act, categorically forbid the AFT Bench to admit such challenges. This ie!

has ho!eer not been follo!ed in a number of #udgments rendered by some other

Benches of the AFT including the :rincipal Bench and it is hoped that march of la!!ith perhaps a reference to and$interference by the *on"ble Ape Court !ould

clarify the issue in course of time.

18. The AFT is en#oined to ad#udicate on and interpret eisting policy frame!or

to!ards ensuring e=uity and fair>play !ithout discrimination on the part of the


11/196


implementers of such policies. (ec 17 -)/ of the AFT Act empo!ers the Benches of

the AFT !ith ery !ide po!ers, in specifically mandating the AFT Bench to decide

both =uestions of la! and facts that may be raised before it.

Cause o6 Ac*.on

1@. In therefore, deciding to approach a Bench of the AFT, haing ehausted

aailable departmental$institutional remedy open to him$her, an applicant$appellant,

haing made sure that his$her case is not hit by limitation of time, must be clear that

he has a personal issue at stae and should feel aggrieed by a faulty or a se!ed

interpretation of eisting order-s/ on the releant issue that has led to a

complaint$hurt$monetary loss etc, needing alleiation$ redressal either not proided

for or unfairly re#ected by the authorities $ respondent-s/. This dissatisfaction $

discrimination !ould proide the necessary cause of action. A case can be

legitimately made out epressed as relief-s/ being sought -:ara < of the standard

Appeal$Application format/.

1>>>>>>>>>>>>>>>>>>>>>>>>>

C9A!TER ? - AJOR CA%SES "I:IN" RISE TO RELIEFS $EIN"

SO%"9T AN# S%""ESTE# LINE OF A!!ROAC9

#.sa,.l.* !ens.on Cla.ms

1'. Gndoubtedly the single biggest reason of dissatisfaction relating to all three

(erices is the mechanical and unsympathetic treatment at the hands of authorities

dealing !ith processing of claims arising out of non>grant of disability pension on

grounds of non>attributability to serice life$conditions or in reducing the


12/196


percentages of disability belo! acceptable -erst!hile %&P/ percentages that =ualify

for grant of such a pension. 4ut of oer ))& cases disposed of by the Chennai

Regional Bench -prior to 1& 3ec %&11/, rigueur to serice life.

%1. The current status of and rule position relied upon by the M43 and the (erices

!hich are the respondents in defending claims for denying disability pension as

suitably interpreted by recent deelopments on the grant of disability pension

a!ards are as underL>

a/ Initial medical screening at the time of recruitment as soldier$air !arrior$seaman

at best can be general and unliely to detect the presence$ infliction of constitutional

diseases, such as occurrence of fits or hallucination etc. In the case of officer entry

cadets these medical eaminations are more detailed and yet it may not be possible

to conclusiely put the officer trainee cadet through all the specialists. In the eent

therefore, during training, should the inalidment of an indiidual be as a result of

failing to measure up medically, by lac of re=uisite attendance and$or passing of

mandatory physical proficiency tests, during the permitted period of pre>oath taing

or commissioning -despite grace periods/ or, due to prolonged sicness then the

indiidual is discharged as not being able to mae an efficient soldier in accordance!ith statutory proisions by !ay of releant Army Rule$Air Force Rule$ aal

regulation.

b/ 4n the other hand, attributability to or aggraation by serice conditions, being

a necessary pre>re=uisite to grant of disability pension is generally granted to


13/196


bonafide in#ury related cases. In#ury reports and Court of In=uiry proceedings are

particularly relied upon to attribute in#ury to serice conditions, if the in#ury is

sustained !hile in performance of officially sanctioned duties, such as organi+ed

physical or recreational actiity. There has been a long held ie! that a sericeman

!hen on casual leae, !hich as per leae regulations is treated ain to being on duty

for certain documentation purposes, should automatically get the benefit of

attributability and a!arded the recommended disability pension and on the flip side

of interpreting this regulation, a person on annual leae stands ineligible to be

considered as being on duty and hence denied disability pension, een if the in#ury

!as purely accidental !hile being on authori+ed and sanctioned annual leae. 4er

a period of time !ith march of la!, and based on faourable #udgments from certain

Courts, the authorities had gien the benefit of doubt of attributability in cases that

had a direct continuing causal connection !ith trael to and return from leae, eg.,

an in#ury sustained due to a fall from a train !hile returning from leae !as treatedas =ualifying for the grant of disability pension. The goernment apart from

considering the limited etension of interpretation of duty as mentioned, has

ho!eer been loath to concede to a plethora of faourable #udgments passed by

arious *igh Courts in faour of in#ured sericemen !hile being on annual and

casual leae and a number of (pecial eae :etitions -(:s/ are pending in the

*on"ble Ape Court against these #udgments. Recently -on1>7>%&&'/ the *on"ble

Ape Court' in dismissing a Ciil Appeal in G4I s. ;urmit (ingh Butter has

upheld a landmar #udgment passed by *on"ble :un#ab 5 *aryana Court'in ;urmit

(ingh Butter s. G4I, %&&& -0/ R(D, that a serice personnel on leae of absence of

any ind, be it annual leae or casual leae or furlough is to be considered on duty.

*o!eer this landmar #udgment !ould stand superseded by the #udgment rendered

on 1)>@>%&11 by the *on"ble Ape Court in CA o. 7%


14/196


medical category, is a pre>re=uisite for grant of a disability pension. AFM(F>18, the

form used for the purpose has been modified by a ne!er form called Eersion>%&&%.

A copy of this form on completion of the board is being gien to the person

sub#ected to the board soon after its completion since %&&8 and this modified

practice of giing to the affected person the result of his board has in a single stroe

contributed to drastically reducing in fructuous litigious paper !or on account of

repeated claims being preferred and mostly re#ected, !hen the affected person

including officers remained blissfully ignorant of the medical $specialist officer"s

opinion on the disability under !hich he is being sent home and !hether it has been

opined as being attributed to or aggraated by serice conditions and the percentage

of disability and for ho! long recommended by the board -generally for %$) years or

for life/.

d/ The single most important authority relied upon by the (erices in ad#udicating

on disability pension claims is the ntitlement Rules for casualty pensionary

a!ards ,1'


15/196


disability. The coming into effect of the AFT , dictums laid do!n by the *on"ble

Ape Court1&on the primacy of the opinion of the medical boards on the a!ard of

disability pension in, G4I s. 3amodaran AE -3ead/ through Rs -%&&'/ < MD,

%&11 -1/ AFTD %@, 17@) (C, and in 4m :raash (ingh s. G4I, AIR %&1&, (C

0))@ and a number of liberali+ation measures announced by the ;oernment, post

recommendations of the )thC:C hae reduced substantially the baclog of pending

cases related to disability pension a!ards and !ith the maing aailable of the

medical board proceedings in the form of an etract, to affected person on

conclusion of the board itself and replacing the ad#udicatory authority on the opinion

of the medical board, from that of the :C3A -:/ !ith that of the A; -for

officers/$Record 4ffice -for :B4R/ $e=uialents in ay$Air Force, the system has

become transparent and !ould contribute greatly to!ards remoing any doubts on

arbitrariness and thereby remoe the ma#or cause of action against hitherto unseen"

a!ards.

e/ ot!ithstanding !hat is stated aboe, particularly relating to recruits and young

soldiers prior to completing 1& years of serice -!hich entitles a sericeman to

Inalid pension/ and !ho are inalidated out on account of diseases considered as

being neither attributed to nor aggraated by serice, conditions and labeled as

being constitutional in nature, !e hae a social problem !hich re=uires addressing.

In our country a young man thro!n out of the Army$ay$Air Force !ithout

pension at ages arying from %& to 0& years, needs some safeguards from the

organi+ation that legally cannot gainfully employ him. The Armed Forces personnel

are also eempt from being legally proided !ith guaranteed employment by the

employer since the proisions of sec 7@11 of the :rotection of :ersons !ith3isability Act does not apply to the Armed Forces by notification11-i/ of the

;oernment .

f/ Another problem pertaining to denial of disability pension to such persons !ho

oluntarily tae retirement or discharge has been set right by a (upreme Court

ruling1%!hich has rubbished the miscued interpretation of the official authorities by

ruling that any lo! medical category -MC/ person !ho oluntarily retires from

serice of his o!n olition and is placed in a medical category lo!er than that !hen

he #oined the serice, must be put through a duly constituted medical

board-Inaliding$release medical board/ and he !ill on discharge be entitled to the

disability pension at par !ith those !ho are forced out.

g/ The Ape Court has also in a landmar #udgement10 Ra#pal (ingh s. G4I, dt. &@>

11>%&&


16/196


the Constitutional rights of an Indian citi+en !hen done through a Release Medical

Board. As a result, apart from recalling a large number of MC personnel

discharged post>4peration :ARARAM the Army as also the other t!o (erices

hae formulated a comprehensie policy of rehabilitating MC personnel till they

attain pensionable serice.

h/ As has been mentioned earlier, passage of time, march of la! and the

;oernment"s o!n introspection coupled !ith amelioratory measures incorporated

in successie :ay commission a!ards hae all resulted in issuance of :olicy 17o

1-%/$'@$3-:en>C/, dt. 01>&1>%&&1, !hich, apart from simplifying approach to grant

of any type of disability pension has remoed the minimum re=uired %&P and

broadly diided the percentages as up to )&P, )1>@)P and @8>1&&P.

#.scar3e w.*ou* !ens.onar $ene6.*s

%%. Cause of action arising out of non>receipt of pension on completion of

sufficiently long years of serice-as per applicant"s understanding/ yet falling short

of the mandatory =ualifying serice of 1) years is another ma#or reason for litigation

at the AFT. :ost )thC:C, the goernment in Aug %&&1, has increased the period of

condonation of lac of =ualifying serice to earn serice pension, to one year from

that of the earlier 8 months -see sub>paragraph )8-g/,Chapter ) 5 Appendi, for

letter reference/. ;oernment orders proiding for 0 months rounding>off in respect

of Inalid pension -no! entitled after ' years and nine months of =ualifying serice

instead of 1& years, in case of non attributable cases/hae also since been issued in

%&11 -see sub>paragraph )8-g/, Chapter)5Appendi0%,for details/. 9hile these

measures !ill help mitigate a fe! past cases, the circumstances under !hich a

soldier pre>maturely get discharged either oluntarily !ithout comprehending the

later effects of haing to sustain a family !ithout pension, or is sent out by an

insensitie establishment or a commanding officer seeing to sort out a man" !ill

continue to preail and such instances do proide for a #ustifiable cause of action.

%0. Inariably it is seen that, certain errant young soldiers !ithout a care so to say,

being mostly unmarried do not understand the implications of accumulating red in

entries conse=uent to getting summary punishments mostly on account of either

being 4( or A9, initing punishment for offences under sec 0' of the Army and

Air Force Acts and sec )1 of the ay Act or at times desertion under sec 0< of theArmy$Air Force Acts and sec 7' of the ay Act. *aing collected more than 7 red

in entries$ e=uialent criterion in the Air force$ay, the person, no! classified as

a habitual offender maes him self liable to be sent out administratiely after serice

of a sho! cause notice at the leel of an officer of the ran of a Brigadier$

e=uialent. There are an increasing number of *R guidelines$:olicies for C4s to


17/196


follo! to sho! compassion, particularly to those habitual offenders !ho hae not

got any punishment on account of being dealt !ith for offences dealing !ith moral

turpitude or criminal negligence. ot!ithstanding such internal orders and

guidelines, there !ill al!ays be cases sufficient in number, !ho !ould challenge

their Administratie discharge orders at the AFT, because it is not the Scouldn"t care

less delin=uent" soldier !ho is nocing the doors of the AFT but his poor !ife or

parents !ith a large unsupported family that see some form of financial support, as

#ust payment for the serices rendered by their husband or son.

%7. (o, in such cases !hat should be the line of approach of the person or his$ her

counselH There !ill be ery little to dispute in the facts on record. In fact the

respondents in their methodical and systematic manner of maintaining records !ill

furnish a true picture of the circumstances of discharge, !hich !e hae found can be

turned to the adantage of the petitioner !hose o!n plea is more emotional than

factual. 9e hae in the Chennai Bench, disposed of a number of cases, on grounds

of infringement of releant proisions of la! and thereby granting relief by allo!ing

the petitions or suitably modifying a!ards in faour of the petitioners .9e hae

found that, there are cases that hae not been disposed of !ith clean hands, by the

respondents, due to a ariety of human failings. en the paper!or !hich should

conform to la! and principles of natural #ustice is found !anting and therein lies the

panacea for the aggrieed litigant. (ome of the commonly committed errors, that

standout in such bad discharges" are as follo!sL>

a/ (ho! cause notice, is either not issued by the officer empo!ered to do so, or the

discharge is effected !ithout due consideration of the reply by the person !hoissued the sho! cause notice.

b/ Reason for discharge as mentioned in the discharge certificate aries from that of

the sanction, eg, sanction obtained to discharge on grounds of Sinefficient soldier"

after getting reply to a sho! cause notice, gets reflected in the discharge as against

medical grounds, !hich renders it illegal because the latter !ould re=uire an opinion

of an Inalid$ Release medical board to support discharge.

c/ (adly, it has been found that in cases of desertion, !herein a person has

oluntarily re>#oined his Gnit, he has been charge>sheeted for desertion, !hich is

against la!, as it is !ell understood that desertion is distinguished from absent

!ithout leae -A9/ only on account of the motie and once a person !ho may

hae run a!ay to aoid duty, oluntarily re#oins, irrespectie of duration of absence,

as opposed to being arrested or apprehended, he should hae been dealt !ith for

A9$4(, under sec 0' of the Army$Air Force Act and not sec 0


18/196


that on notification of the punishment in official records, this resultantly gets

manifested in a brea in serice and serice put in prior to desertion does not count

for =ualifying serice for pension, unless the person thereafter seres in an

eemplary manner, incurring no red in entry for at least three full years The litigant

remains ignorant of this record in his conduct sheet, and it gets to be no!n only

and after he has been furnished a copy of the counter !hich the tribunal calls for

after the initial notice is issued. In such cases therefore, the litigant sericeman has a

fair chance of redressal if he !ere to call for records pertaining to punishment

entries that led to the issuance of a sho! cause notice as a precursor to eentual

discharge.

#en.al o6 Fam.l !ens.on *o @.dowsNe5* o6 >.n (NO>) o6 .ss.n3

Ser7.cemen

%). A number of cases of !ido!s or grieing mothers of soldiers declared deserters

initially, and after the mandatory period of three years, notified as dismissed, hae

got the benefit of ad#udication by the AFT in their faour by !ay of grant of Family

pension, due to them.

%8. The problem arises !hen haing declared a person as a deserter his Gnit fails

to chec !ith the person"s home !hether his absence is no!n to and acno!ledged

by the 4. 9e found in most cases, despite unambiguous instructions,

apprehension roll declaring a person deserter is not sent to his home properly !ith

acno!ledgement receied of the deliery of this report of a husband or son

missing. The local police also oer a period of time hae gro!n indifferent to

carrying out an inestigation into such reported absence, by failing to physically

isit the family of the soldier. The case thereafter gets to be treated mechanically by

follo!ing the mandatory holding of in=uiry after 0& clear days and declaring the

indiidual as deemed to hae deserted. The impersonal nature of handling such

cases by the serices is eident from the conclusie opinion of such courts of

in=uiry held to inestigate desertion$A9$4(, !hich routinely declares the

indiidual as a deserter, instead of declaring him as 2a deemed deserter $ missing6.

%@. As per ;oernment orders on the sub#ect1),entitlement of Family :ension in

cases of such persons declared missing, is to be gien from the date of a FIR

registered at the home or nearest police station or the date declared as missing - adeserter/, !hicheer is later. (ince the 4 at home is neer properly informed of

the desertion they remain ignorant till an anious =uery is raised by the 4 !ith

the Gnit. This =uery follo!ed by more and more desperate re=uests are replied by

the Record 4ffice$ unit in a standard monologue to say that he has failed to turn up


19/196


and he is accordingly declared a deserter. The sad part is that at no stage does either

the Record 4ffice or the Gnit tell the 4 to register a FIR !ith the local police

and follo! up !ith the police on ascertaining the !hereabouts of the missing

soldier. Three years later, the person is struc off the rolls as dismissed and

!hateer running balance is in his ledger account, is sent to the 4 saying under

:ension Regulations a dismissed person is not entitled to :ension. The rigid,

bureaucratic and heartless attitude coupled !ith lac of no!ledge of eisting

instructions, of registering a FIR !ith police as a pre>re=uisite for processing claim

for Family pension at all leels of administration and a real>time dis>connect

bet!een a unit and its parent Record office results in 4 one adising the !ife or

the parent of the reportedly deserted person to ;4 A3 FI A FIR , and !ith a

copy of the FIR after a reasonable period of !ait and after re>checing !ith the

police, approach the Record office to claim family pension as per entitlement. 4f

course the same !hen granted inoles taing a guarantee of return of the amountpaid, should the missing sericeman re>surface.

%

employed in the ciil after retirement on the demise of the pensioner$re>employed

husband in case a pension is dra!n from the ciil goernment source.

0&. There is no barberseon dra!al of t!o pensions by a sericeman but dra!al ofthe second pension by the family of a ;oernment serant has been disallo!ed

under the proisions of rule )7 of the CC( -:ension/ Rules 1'@% aboe !ith only

one eception. The eception adduced as sub>rule %7 18to Rule )7 says that if the

second pension from that of the late husband"s re>employer is part of mployeesS

:ension (cheme 1'@1 or 1''), -!hich are more in the nature of employee


20/196


:roident Fund scheme/, then the !ido! is entitled to military family pension as

also the pension from the re>employer. The applicability of this beneficial measure

in the goernment notification has ho!eer been made prospectie from (ep %&&1,

the date !hen this !as made effectie from.

01. Tribunals hae pronounced a number of faourable #udgments to !ido!s !ho

fall into the aboe eception !ith the re>employer giing an appropriate certificate

to the effect that the Family pension from the re>employer is as per the aboe

eception proided for in sub>rule %7 to rule )7 of the CC( -:ension/ Rules 1'@%. It

has been interpreted that if the second pension is from a contributory source, then it

is admissible in addition to the family pension from goernment source.

#en.al o6 !romo*.on

0%. 4ne of the common causes of action pertains to denial of the net selectiongrade ran and conse=uent benefits thereof of additional$enhanced serice, bac

!ages and enhanced pensions. The respondents rely on a !ell tested system of

assessing a person !ith his peers of the same batch !ith application of common

policy rules and guidelines relating to criteria in discipline, medical standards and

annual confidential reports -ACRs/.

00. ot much can be distinguished in the arguments adanced by litigants, bet!een

officer related cases or of personnel belo! officers ran -:B4R/. In either case the

petitioner approaches the Tribunal only after a final re#ection of his statutory

complaint. These arguments in all cases hae rested on being biased and sub#ectie

by reporting officers in the chain of CR reporting, starting from the Initiatingofficer, to the reie!ing officer, to superior reporting 4fficer and in certain cases to

net superior Reporting 4fficer.

07. (cope of #udicial reie! in cases of re#ection of statutory complaints related to

non>empanelment is generally limited. *on"ble Ape Court has normally declined

to interfere !ith the selection process of the Army so long as there is no apparent

bias. In G4I and ors s. t. ;en. R ( adyan and another, -%&&&/ 8 (CC 8'seniority>selection in its application to different selection boards

ie. (B>1, (B>%,(B>0,((B and to the Army Cdrs. In re#ecting the plea of Ma# ;en

ah!inder (ingh for promotion een though recommended faourably by the

collegiums consisting of the C4A( and EC4A($Army Cdrs, in ah!inder (ingh

s. GoI and ors, -%&&

paragraphs, 1&< -d/ and 1&< -e/,18C for the Regs for the Army 1'


21/196


commendations of selection boards are not binding on the approing authority, i+.

C4A($the Central ;oernment. In the case of (urinder (hula s. G4I and ors,

-%&&


22/196


the cases bac to the respondents for re>consideration after pointing out the

illegalities inoled.

08 of this boo and confine myself herein only to

the method of approaching the AFT, !ith an appeal against such erdicts inoling

dismissals. The cases coming up for ad#udication can be looed at from three

categories for ease of understanding and therefore of dealing !ith them.

0'. :roceedings of ;eneral and 3istrict Courts MartialL These proceedings, -the

latter applicable only to the Army and Air Force/, are generally free from procedural

irregularities as also from any deliberate and mala fide bias. (itting alongside my

learned and astly eperienced brother *on"ble Dustice A.C. Arumugaperumal

Adityan in the Tribunal, I cannot ho!eer say the same !hen it comes to arriing at

findings based on the case of the prosecution !hich is meant to proe beyond any

reasonable doubt the charges framed against an accused, on the !eight of the

eidence brought for!ard at the trial, !hich is the litmus test in all criminal trials.

The Indian idence Act 1


23/196


of officers assigned to sere as :residing 4fficers or Members of Courts Martial. In

yet another landmar #udgment in t Col (( Bedi s. G4I, in TA o%78$&' 1@-i/, by

the :rincipal Bench, AFT, *on"ble Dustice A.. Mathur had to ac=uit a dismissed

officer charged under sec 8& of the Arms Act read !ith plosie (ubstances Act,

1'&

a/ Eerdict based only on the alleged confessional statement of the accused proides

reasonable ground for appeal. The respondents in typical military style in their

eagerness to =uicly put an end to an ongoing case, are liely to fall prey to aailing

the first opportunity of either etracting a confessional statement so called

oluntarily or coerce the accused to accepting their ersion, not out of any malafide

intent but !ith the eagerness to sho! progress in dealing !ith a disciplinary case

!ith alacrity, considered a military irtue. This leads to iolating the cardinal

principle of giing a chance to the accused to be heard properly, by treating him as

not guilty, once he is to be sub#ected for a trial. There is no room for any short cut

in a trial since the erdict and resultant sentence is not a mere admonishment but a

#udicial indictment !hich is sub#ect to #udicial scrutiny. In any case een from the

point of ie! of passing muster, no confessional statement taen !ith !hateer

amount of transparency, unless it is taen in the presence of a ciilian #udicial

magistrate !ill be admissible as eidence in a criminal court.

b/ Coniction based on non corroboratory eidence and$or circumstantial eidence

alone is the other ground !hich again gien the hurry to dispense #ustice is a not so

uncommon a phenomenon in military trials.

c/ The third and perhaps a less common aberration but a serious one !hich at times

has gone unnoticed during the court martial is an infringement of the statutory

proision itself eg, in Army courts martial, in terms of Army Rule 07-1/1


24/196


a C4 !ith the single most potent po!er oer his command ecepting oer officers.

The C4 is conferred !ith po!ers of dismissal and imprisonment for a period of one

year against on commissioned officers -C4s/ and soldiers and a!ard of seere

reprimand to Dunior Commissioned 4fficers-DC4s/.(ince a period of imprisonment

of three months or more entails such imprisonment to be carried out in a ciil #ail, it

is common practice to get rid of habitual offenders and bad hats on commission of a

cogni+able offence by a!ard of a sentence of imprisonment for a period of three

months and dismissal from serice. It is this punishment of dismissal a!arded by

(CM !hich has gien rise to maimum number of litigation on account of appeals

against courts martial a!ards. This is so because, as a conse=uent result of the a!ard

of dismissal a soldier is depried of all pensionary benefits as per pension

regulations. *aing been a C4 myself and haing eperienced eery rung of higher

command appointments up to a ;4C>in>C, I can say !ith all humility, that, no!

that I am re=uired to ad#udicate along !ith my learned and astly more #udiciallyeperienced brother, on all such cases that hae come up before us for relief, !e"e

had no hesitation, unless the person has been charged for offences inoling moral

turpitude, to modify the sentence of dismissal alone to that of discharge, to permit

the soldier or his 4 to get pensionary $terminal benefits for serice rendered.

*on"ble (upreme Court%& had in ai (ardar (ingh s G4Iand ors,

-1''1/I(C101$1''%AIR71@$1''1(CR-%/8'8, ruled by !ay of a dictum that in

cases !here the =uantum of punishment alone is found to be ecessie then

dismissal modified to discharge !ould sere the ends of #ustice. I shall, in

subse=uent Chapter>8, re>isit this a!ard of dismissal !ith unfortunate

conse=uences of denial of terminal benefits, since there is no proision to a!ard a

more #ust a!ard of discharge" in the scale of punishments a!ardable by courts

martial in sec @1%1of the Army act. Reasons stated in paragraph 0'-a/ to -c/ aboe,

proiding cause of action against perceied illegality in coniction and a!ard of

sentence of general courts martial !ould e=ually apply in the case of (CM. In

addition, some of the other reasons peculiar to (CM could be as follo!sL>

a/ Form used>Appendi III, :art1 -C/%% and Memoranda%0 for the guidance of

4fficers Concerned !ith Courts MartialL (ince most conictions are based on a plea

of guilty, and the same is challenged by the litigant as haing been coerced into

giing, or taen !ithout no!ing the implication, !e find that inariably !hile

challenging the viresof the (CM, non compliance of Army rule 11)-%/ is a ma#or

ground for challenge. 9e also find that in most cases the litigant"s counsel is not

able to proe the infringement to la!, een though malafide intensions may be

obious in the facts of the case. These !ould be reealed on a detailed eamination

of the manner of conduct of the (CM proceedings by the C4 of the accused. There

are detailed guidelines and specific instructions for the C4 to follo! in the


25/196


memoranda of instructions placed in the Army rules after the specimen form for use

at summary courts martial. In the memoranda of instructions for the C4, the manner

of recording of the summary of eidence is gien in great detail. The form to be

used at the (CM is a speaing form by itself. More often than not in typing a similar

form in lieu for use at (CMs, infringements tae place since the C4 does not

meticulously follo! the !ord by !ord instructions !hen he either uses a form in

lieu, !hich may not proide for ade=uate space for filling up releant spoen matter

or types separately on a piece of paper, inadertently omitting certain portions from

the original form. The most important safeguard for an accused in a (CM, is the

summary of eidence. In cases !herein the accused has pleaded guilty, apart from

his signature !hich is re=uired to be taen by the C4, at the appropriate place on the

form being used at the court martial, the C4 is re=uired to read out the full summary

of eidence in the language in !hich the accused understands, !hich means in

*industani or natie language. This eercise in itself !ill tae a certain amount oftime say at least one hour een in cases !hen the summary of eidence consist only

a fe! pages. From a perusal of the form, !hen one discerns that the (CM has been

completed in 0& minutes, it !ould be reasonable to surmise that there has been a

short cutting of the procedure, sho!ing a pre>meditated trial, and therefore a lac of

application of mind. In such cases !herein a definite pre>meditated course of action

is reealed, chances of a disproportionate punishment being a!arded also increase

and this can be used to adance arguments in faour of the litigant.

b/ Caution against a!ard of sentence of Imprisonment in ecess of three months

and 3ismissal. :aragraph 77


26/196


three cases, !ithdra!al in another case !ith faourable indication from the

respondents for grant of a discharge and allo!ed the last case !ith a notional

discharge date to permit the deceased sailor"s !ife to get Family pension. In

disposing of the last case TA1'@$1&, R Mishra$eelam Mishra s. G4I, on %'>&7>

11, in !hich my learned brother *on"ble Dustice A.C. Arumugaperumal Adityan

rendered the #udgment, I obsered that there are clearly laid out set of rules and

procedure in the Army and Air Force Acts by !ay of Army Rules %% 5 %0 %8and Air

Force Rules %7%@, !ith regard to hearing of a charge in front of a C4. These mae it

mandatory for the accused to be gien opportunity to cross eamine !itnesses and

for the recording of a summary of eidence to be ordered by the C4. The rules spell

out clearly that at the summary of eidence the accused !ill be present throughout

!ith opportunity to cross eamine !itnesses deposing against him. The

corresponding proisions that empo!er a C4 in the ay in accordance !ith sec

'0-%/%18.*is reliance on his claim !as onlybased on !hat the concerned Record officer told him, !hich in turn !as based on

!hat the :C3A -:ensions/, Allahabad , decided on perusal of the AFM(F>18.4nce

the initial claim is re#ected, the same is routinely challenged t!ice more by the

applicants, the final time to !hat is called the 3efence Minister"s committee of Final

Appeal but sadly !ithout the applicant being furnished a copy of his o!n medical

Board proceedings. *is challenge unfortunately neer gets alue added, because on

the misplaced grounds of confidentiality, his o!n medical board proceedings are not

gien to himsince %&&) this situation has thanfully been redressed -see earlier

paragraph %1-c/,Chapter7,supraJ.It is only !hen the Tribunals ased the respondents

to furnish copies of the medical board proceedings to the applicant and the Tribunal,

before the final hearing date that the applicant became a!are of the remars of the

specialist and the board of doctors" opinion. That the applicant stood indicated in

most cases is testimony to the important aspect of seeing the respondents" reply

statement !ith all connected documents and altering the final argument supported

by case la!s to #ustify the plea made.


30/196


7'. Another common instance !herein eamination of documents enclosed !ith

the respondents" counter statement, may necessitate change of the plea itself, is the

reason assigned in the discharge certificate .9e"e found that the discharge

certificate, inadertently misplaced by the applicant but produced along !ith the

respondents" counter statement mentions the reason for discharge as being under

Army rule 10-0/III-i/, i+., as being unfit for continuation in serice, but the legal

re=uirements of sering a sho! cause notice at the leel of a Brigadier$e=uialent

ran officer and due consideration of the same are not met, maing the discharge

itself inalid. The applicant in such cases unless he has prayed for a broad redressal,

is re=uired to amend his prayer in light of facts hitherto not no!n to him.

)&. There hae also been cases !here the respondents hae discharged the

applicant on medical grounds !ithout holding an inaliding or a release medical

board, against releant proisions of Army rule, thus rendering the discharge

technically inalid.This fact only comes to light !hen the respondent is unable to

produce the medical board proceedings, to support the reason for discharge in this

case mentioned as Sdue to medical reasons, Army rule 10-0/, III -iii/".

)1. The importance of perusing the counter !ith enclosed documents furnished by

the respondents, is glaringly apparent in the case of summary courts martial in the

case of the Army and summary disposals in the case of the ay, !herein

dismissals a!arded are under challenge. Gnfortunately, the appellant has only a fe!

documents that too dis#ointed, in his possession. The reason is obious. In the

ay"s case, being a summary disposal on a !arrant form, the ay does not een

consider obliged legally to gie the !arrant and details thereof to the appellant. Inthe case of the Army, !hile it is enshrined in the Army Act to gie a copy of the

summary court martial proceedings as also the preceding summary of eidence, the

Gnit leel atmosphere of shunning a person implicated in a trial inariably results in

an unhelpful attitude resulting in miscarriage of the rights of a person accused

and$or conicted thereby resulting in the person dismissed !ithout haing the

benefits of all the documents he is supposed to be gien by the respondents. The

glaring omissions and aberrations that can gie rise to a cause of action against

dismissals a!arded by a summary court martial in the case of the Army or a

summary disposal by the C4 in the case of the ay hae already been coered

earlier in Chapter 7, paragraphs 7& and 71respectiely -supra/.9hat is important is

for the appellant to call for and peruse minutely the proceedings of the summarycourt martial$summary disposal including the summary of eidence and prepare his

defence cogently.


31/196


)%. A re#oinder prepared by the applicant$appellant after perusal of the counter !ith

all connected documents and placed before the tribunal along !ith reported case

la!s and established dictums, preferably of the *on"ble (upreme Court, duly

indeed, !ould go miles in #ustification of the relief sought. It is my eperience that

since the Members prepare themseles fully before the final hearing date, haing

read and assimilated the re#oinder, the oral arguments during final hearing, !hen

ept to the point !ould greatly assist the applicant"s case, for the simple reason that

the burden of proof !ill be on the respondent to deny the applicant the relief sought,

!hich is based on the infirmities eident on the face of records furnished by the

respondents themseles. A !ell prepared re#oinder after a careful scrutiny of the

respondents" counter and supported by appropriate case la!s, therefore, not only

holds the ey to #ustify the prayer made, but in case of a faulty prayer, gies an

opportunity for the applicant to consider !ithdra!ing the case and see the

Tribunal"s indulgence to plead afresh on a different cause of action.

!u,l.ca*.ons& $oo8s& Case Laws& Re4or*ed C.*a*.ons& "o7ernmen*

No*.6.ca*.ons

)0. 9ith the operationalisation of the AFT Benches in %&&', nearly t!o and a half

years hae gone by since the :rincipal Bench at e! 3elhi deliered its first

#udgment, in Aug of the same year. 9ith 1%$10 of the 1) Tribunal Benches

functioning routinely since then and !ell oer 7&&& cases disposed of, there is today

no dearth of reported #udgments on military related sub#ects. In fact the march of

la! had its effect in military #urisprudence, since early %&&& A3 on!ards, !hen The

*on"ble (upreme court drien perhaps by the pro>actie #udgments of *on"ble

3elhi and :un#ab5 *aryana *igh Courts in the main, passed certain landmar

dictums related to disability pension cases. These set the trend so to say for the AFT

tribunals to follo! suit, soon after coming into being. 9ith the AFT #udgments,

aailable on the net and the *on"ble (upreme Court dismissing or disposing of in

good time a number of (:s filed by the respondents, it is increasingly becoming

easier for an applicant $appellant to get appropriate dictums to support their cases.

There has also been a number of ameliorator measures initiated by the ;oernment

post the recommendations of the )thCentral :ay Commission -C:C/ and carried

for!ard post 8thC:C, !hich are also aailable for access in ;oernment !eb sites.

)7. (tandard publications on Acts, Rules and Regulations. Follo!ing is a list ofpublications that !e hae relied on as reference at the AFTL>

a/ The Armed Forces Tribunal Act, %&&@ -))of%&&@/ along !ith -:rocedure/ Rules,-

:ractice/ Rules by Gniersal a! :ublishing Co :t.td,C>FF>1A, 3ilush

Industrial state, ;T arnal Road, 3elhi>11&&00


32/196


b/ The Army Act 1')& -78 of 1')&/ along !ith The Army Rules 1')7, by Gniersal

a! :ub. :t. td.

c/ The Air Force Act 1')& -7) of 1')&/ along !ith The Air Force Rules 1')&, byGniersal a! :ub. :t. td

d/ The ay Act 1')@ -8% of 1')@/ as amended by The ay -Amendment/ Act

%&&) -%0 of %&&)/, by Gniersal a! :ub. :t. td.

e/ The Regulations for the ay -Regs ay/, :art II, (tatutory by ;oernment of

India, Min of 3efence1'8).

f/ The Territorial Army Act, 1'711&&%@.

c/ :ension in the 3efence (erices by Ma# adeep (ingh, practicing adocate in:un#ab 5 *aryana *igh Court and AFT, Regional Bench Chandigarh published

by (hree Ram a! *ouse,@1>@0,(ector 1@>C,1st Floor,Chandigarh,:hL&1@%>

%@&'%@@.


33/196


)8. Citations and otifications. (ome of the important citations, briefly highlighting

applicable dictums$case la!s and ;oernment notifications relied upon by the AFT

tribunals and not referred to in the superscripts so far in this handboo, are listed

belo!, categori+ed broadly into ma#or reliefs being sought by the

applicants$appellantsL>.

a/ #.sa,.l.* !ens.on

-i/ (CC %&1& -7/ :art 7 K (C )80 , %&1& -7/ (R )%0 -(C/ Gnion of India Es C (

(idhu> ntire period of serice up to the date of discharge $ disability is to be

counted as =ualifying serice for disability pension. The Ape Court has ruled that

serice for the purpose of a!ard of disability pension !ill include the entire serice

till the indiidual is discharged $ retired and not to be counted only till the date of

disability .

-ii/ 4rder in C9: o.8&


34/196


Ape Court oerturned the earlier grant of disability pension by the *igh Court. The

officer ho!eer had not faced a release medical board and the Court !as also not

informed that the Regulation )& had been abrogated !ith effect from &1 Dan %&&8.

-i/ C9: )))1$%&&8 R 3hingra Es. G4I -decided on %&.& (C 8@@, AIR %&1& (C 0118. The dictum of the *on"ble (upreme

Court in G4I s. E (ingh holds that the commencement date for calculating the


35/196


three years period of limitation stipulated in sec 1%% of the Army Act 1')&, !ould

be the date on !hich the officer competent to initiate action comes to no! of the

offence. *olding that the second part of sec 1%%, i.e. sec 1%% -1/ -b/ !ould apply in

the case of the ;oernment being the aggrieed party, the Ape Court in the instant

case decreed this to be the date on !hich the ;4C>in>C of 9estern Command

directed initiation of disciplinary proceedings against the delin=uent, !hen the

recommendations of the ;4C, 3elhi Area !as put up to him.

ii/ %&1& -)/ (R (C, pg 1''. In a similar case as aboe in D( (ehon s. G4I,

the Ape Court re#ected the appellant"s case, seeing shelter under sec 1%% of the

Army Act 1')&, interpreting the conening officer of the ;CM as the S initiating

officer" for the purpose of identity of the accused.

iii/ %&1&-7/ (R,pg0

i/ 1'11>%&&


36/196


lo! medical category -MC/ personnel of the Army !ithout sub#ecting them to an

Inalid medical board, as mandated in releant proisions of Army Rule 10 as ultra

vires, the Ape Court directed the 3elhi *igh Court to follo! up !ith detailed

instructions for the respondent to comply.

ii/ AIR 1''8, (upreme Court -10811>7>%&&1/.In a landmar #udgment a three

Dudges Bench headed by the CD, laid out the dictum that, resort to Administratie

dismissal under Army Act sec %&, once the authorities hae not been able to proceed

against a delin=uent by !ay of Court martial, due to period of limitation under sec

1%% haing been crossed or for any other reason, is !ell !ithin the statute. In the

process, the Ape Court relying on a similar #udgment in the case of Gnion of India

s. 3harm :al ureti, obsered and oerturned the #udgment gien by the Ape

Court in the case of Ma# Radharishnan s. GoI !herein the earlier #udgment in the

case of GoI s. ureti !as not brought to the notice of the Bench.

f/ .scellaneous c.*a*.ons

i/ 1''@ -0/ (CC %81, AIR 1''@ (C 11%), 1''@ -1/ BDR @7) in Chandraumar

s. G4I and others. A Constitution Bench settled finitely the issue of Administratie

Tribunals, mainly the CAT, -enacted under the proisions of Art 00%A of the

Constitution/, also haing !rit #urisdiction to hear petitions challenging ;oernmentnotifications and orders, as a Court of first instance.

ii/ CA o)1)1>)1)%$%&&


37/196


claim for pension, relief based on a continuing !rong can be granted een if there is

a long delay in seeing remedy. *o!eer !ith regard to payment of arrears, the

Ape Court restricted the same to a period of three years preceding the date of filing

of the application or !rit, follo!ing the principle applied for recoery of recurring

successie !rongs.

iii/ -1''7/%(CC)%1,-1''7/1(CR@&&,(hyamBabuEerma s. GoI. Ape Court has

ruled that payment made by !ay of salary or pension$remuneration paid in ecess

due to !hateer reason !herein the employee is not at fault, cannot be recoered

once the error is detected.

i/ -%&&8/ % MD 81, Recruit Madurai Eeeran s. G4I The Madurai Bench of the

Madras *igh Court has held that a cause of action is maintainable as long as any

part of the said cause is !ithin the territorial #urisdiction of the Tribunal$Court.

/ %&1& -7/ T 81, Dosy Earghse s. Armed Forces. In its order on 9:-C/0&18&$1&-T/, deliered on 1%>1&>1&, *on"ble erala *igh Court has, in its

interpretation of (ecs 0& and 01 &f the AFT Act, held that the orders of the AFT

Benches can be challenged in the *igh Court.

i/ (imilar to the aboe, *on"ble 3elhi *igh Court in an order in

9:-C/1008&$%&&',ColA3argolar s GoI and a sle! of !rit petitions challenging

the order of AFT, :rincipal Bench, has in its #udgment interpreted (ecs 0& and 01 of

the AFT act, in its o!n !ay to place the superintendence of the AFT on the *igh

Courts. Both the aboe orders are under challenge at the *on"ble (upreme Court.

ii/ AIR 1'


38/196


contained in the ibid letter. (ubse=uently in the year %&11, the M43 has also

relaed the minimum =ualifying serice re=uired for inalid pension to ' years and

' months. The letters are etracted in Appendi. 0%

-ii/ Mo3 letter o. gratia payment of Rs.8&&$> p.m. plus 3A to Reserists

prior to &1.&7.1'8< !ho had not opted for grant of pension and had also not aailed

of any rehabilitation assistance at the time of release from serice.

-iii/ ;oI Ministry of 3efence o.1$1-0/$%&&@>-:en$:olicy/ dated %).1&.%&&@. The

letter remoes the bar of %) years of age for dra!al of family pension in respect of

unmarried $ diorced eligible daughters.

-i/ Mo3 letter o18-8/$%&&>>>>>>>>>>>>>>>

C9A!TER - RECOEN#ATIONS FOR CONSI#ERATION OF

T9E INISTRB OF #EFENCE (O#)

AN# T9E SER:ICES

O#

)@. eed to reach out to 3isabled soldiers$seamen$air !arriors, discharged !ithout

pension. early 0&P of the cases transferred from *igh Courts to AFT tribunals

pertained to claim for disability pension. 4f these again 0&P roughly pertain to

those that are discharged as recruits or !ithin t!o to three years as young soldiers

due to inaliding disease as being neither attributed to nor aggraated by militaryserice. These young men coming from a poor bacground are unable to tae

discharge in their stride, by preparing for another ocation, since they -or their

parents/ had perhaps set eerything in store to get enrolled and mae a career in the

Army$ay$Air Force and conse=uent to inalidment at a tender age are unable to


39/196


re>start a ne! career. These young men unlie their peers !ho #oin any other

;oernment serice are also depried of the benefits of sec 7@ 11of the :eople !ith

3isabilities Act, !hich guarantees alternate employment till superannuation to such

cases !ho are inalided out from ;oernment serice other than Armed Forces, on

account of the Armed Forces of the Gnion being eempt, -for good reasons/, from

the proisions of the Act by a notification to the effect. In disposing of the cases

related to disability pension in cases of such unfortunate young men, !e"e found it

etremely hard to conince the appellants of the morality of dismissal of the suit,

!hile legally they hae no leg to stand on. In a fe! cases along !ith my learned

brother *on"ble Dustice ACA Adityan, !e"e succeeded in getting the Ra#ya (aini

Boards of Tamil adu and Andhra :radesh to come to the succor of some really

pitiable cases, by including in our #udgment a recommendation seeing their

largesse in alleiating the penury and poor medical condition of the applicant by

!ay of e>gratia grants at their disposal. 9e are thanful for their positie attitude.But the sad part is that in spite of haing sufficient funds at their disposal, largely

made up of contributions to the Armed Forces flag day fund from the general public,

they are unable to assist all such applicants, due to the mandatory re=uirement of

eligibility of being an e>sericeman, to be considered for any financial assistance at

their disposal. The single most important consideration to get any assistance from

endriya$ Ra#ya (aini Board is for the recipient to be an >(REICMA. By

definition, an e>sericeman is one !ho dra!s any type of serice pension, be it a

regular pension or Family pension or disability pension. (ince these young men are

inalided out on account of a disability not haing any serice attributability or not

haing been aggraated by serice conditions they are not in receipt of disability

pension. And, since the Armed Forces personnel are eempt from the proisions of

:93 act, these personnel are irtually on the streets. It is this moral$ethical issue

that I !ould beseech the M43 to address. Eery simply put, *e O#!hich lays

do!n the policy for the endriya and Ra#ya (aini Boards, in maing e>gratia

financial a!ards, be it an annuity or a cash grant, can ma8e a s.n3le e5ce4*.onby

!aiing the eligibility of being an >sericeman in case of such of those military

persons, !ith less than 1& years of serice !ho"e been inalided out !ithout

disability pension on production of proof of such an inalidment, !hich a discharge

certificate !ill easily fulfill. The 1& years cut>off is because, in cases of non

attributability to$non aggraation by serice conditions, a sericeman !ill in any

case be eligible for Inalid pension, !hich meets the ends of e=uity.

All Tree Ser7.ces

)


40/196


punishments a!ardable by courts martial in the case of Army$ay$Air Force and in

the po!ers of !arrant punishment of C4s in the case of ay alone. The number of

appeal cases, pertaining to seeing setting aside dismissals, particularly of appellants

!ho had completed pensionable serice and !ere first time offenders of a purely

military type of offence, such as absent from or oer>stayal of leae or use of

criminal force etc, are ery large and the reason is not far to see. I remember as a

C4 I !as ery comfortable and confident of being able to come to grips !ith any

case of indiscipline, particularly if I !anted to set an eample of dealing !ith a

habitual offender or a bad hat, by inoing the po!er of a!ard of dismissal ested

in me by !ay of a trial by summary court martial. All I !anted to see !as the bac

of such a man before his bad influence has a detrimental effect on my Gnit"s

discipline. ittle did I reali+e then, that I !ould, !ithout no!ing or being

consciously a!are of, be depriing a family of its only source of lielihoodH In any

case I had no choice because of my need to maintain discipline at all costs. Today,in all humility, !hen I am sitting in the position of a Dudge and along !ith my

learned brother !e are looing at the a!ard of such dismissals as dis>proportionate

to the offence and in our reasoned #udgment !ith the help of the *on"ble Ape

Court Ss dictum on the sub#ect are able to belatedly modify the a!ard of dismissal to

that of discharge, permitting the dispersal of loced up retrial benefits to the

appellant or his family, I strongly feel in hindsight, if I had a choice of a!arding

compulsory discharge if enshrined in the table of punishments in Army Act, sec @1,

Air Force Act sec @0 and ay Act, sec


41/196


suggested aboe of Compulsory retirement$ 3ischarge, to read as Simprisonment for

a period of up to three months to be undergone in military custody".

8&. The aboe t!o recommendations of bringing in changes to the table ofpunishments a!ardable by courts>martial in respectie Army$ay and Air Force

Acts, for consideration of the three (erices, in consultation !ith M43, if

faourably considered, can be effected as underL>

a/ Re!ord sub>clause @1-c/ of the Army Act$sub clause number eisting sub>clauses se=uentially thereafter in the respectie tables

set out in Army Act sec@1$ay Act sec


42/196


remedy this ma#or lacuna in not proiding for an accused to be heard, a iolation of

the maim Audi Al Teram Partem>So man should be condemned unheard".

Gnfortunately, this, obious and basic infirmity of natural #ustice has not come to

light, een more than 87 years after independence, or )7 years after ay Act 1')@

came into being, and prior to the AFT tribunals coming into force, because I feel in

the pre>AFT days, the *on"ble *igh Courts in routinely admitting an appeal against

coniction, and in the midst of mounting pendency of cases in the courts, hae not

been sensiti+ed to this fla!, because none of these cases seem to hae been heard at

all. I !ould strongly urge the aal authorities to epeditiously, and on an emergent

basis eamine this recommendation and set right the malady by bringing in

necessary amendments to the ay Act and the (tatutory Regulations :art II in

=uic time. The upholding of the order of re>trial passed by AFT, Chennai Bench by

the *on"ble Ape Court in TA187$%&1& in :arida s. G4I -superscription %) in

Appendi refers/ could be relied upon to bring about the necessary amendment.>>>>>>>>>>>>

C9A!TER '- "REB AREAS IN FERENT AN# @9IC9 AB IN:OL:E

A!E CO%RT


43/196


44/196


already *on"ble Madras *igh Court, !hile hearing 9: o %0@0) of %&1&,

challenging the Chennai AFT tribunal order of referring a case challenging the vires

of ;oernment policies to it, has in its order chosen to set aside the order of the

Chennai AFT, asing the Tribunal to re>hear the case. The 3iision Bench !hile

leaning heaily on the dictum laid in Chandra umar s. G4I case -supra/ has also

relied on a recent Ape Court #udgment in Ra#ee umar and anr s. *emra# (ingh

Chauhan and ors -%&1&/ 7 (CC ))7, paragraph 11, !hich is etracted from the order

of the *on"ble Madras *igh Court as 24n a proper reading of the aboe =uoted t!o

sentences, it is clearL

a/ The tribunals !ill function as the only court of first instance in respect of the

aboe areas of la! for !hich they hae been constituted.

b/ en !here any challenge is made to the viresof legislation ecepting the

legislation under !hich tribunal has been set up, in such cases also, litigants!ill not be able to directly approach the *igh Court6 oerlooing the

#urisdiction of the tribunal6.

8). Gnfortunately, Tribunals referred to aboe are constituted under Art 0%0A of

the constitution and the AFT cannot be clubbed !ith all STribunals" for this reason.

(ince a section of the legal community, the #udiciary and the Bar !ants to apply the

same rules as for CAT to the AFT, this debate it is hoped !ill soon be set right by

the *on"ble Ape Court.

>>>>>>>>>>

C9A!TER - FOO# FOR T9O%"9T

Is *e %n.6ormed Ser7.ces< :.ew4o.n* "e**.n3 !ro;ec*ed Correc*l .n Cour*s o6

LawG

88. 4ffice of egal Adisor in M43L As per the rules of Allocation of Business in

the Ministries$3epartments of ;oernment of India, the office of egal Adisor in

M43, is tenanted by an officer of re=uisite authority and eperience, from the

Ministry of a! and Dustice. *e is assisted by an officer from the (erices -usually

Army/ belonging to the DA;"s branch.

8@. By custom and practice, being attached offices $ *ead=uarters of the M43,

indiidual (erices hae either esche!ed representing their cases as separate

respondents !hile contesting cases in Courts$Tribunals or hae been proscribed to

do so, by the M43. By M43, it has generally meant the M43 bureaucracy, !ith

the 3efence (ecretary as its head. The =uestion that arises therefore is, has at any


45/196


point in time, any of the three (erice Chiefs, indiidually or collectiely as the

Chiefs of (taff Committee represented to the *on"ble Rasha Mantri their

ie!point for representing their stand on a matter !hich is different to !hat they are

re=uired to fall in line !ith, !hen going along !ith the egal Adisor"s ie!H The

ans!er seems to be in the negatieN at least I am not a!are of any case !here any

(erice Chief has sought the interention of the 3efence Minister to pro#ect his

serice"s ie!s in a court, !hich is contrary to the one pro#ected as M43"s official

standpoint.

8%&1& upheld the order of the *igh Court and ased the

;oernment of India to comply !ith the order in respect of all affected officers. The;oernment has ho!eer filed a reie! application in the case.

8'. I"e read some!here during the pleadings the litigant officers hae also attached

a copy of an inter office note -I4/ from the office of the Chiefs of (taff Committee

to the M43 that the (erices strongly feel that the correct position is not being

pro#ected by the M43 on the denial of a rightful claim to a large section of officers.

Therefore, the point I !ould lie to be addressed by the senior hierarchy of the

(erices is that !hile disciplined that !e are and ought to be, doesn"t this issue call

for at least apprising the *on"ble Rasha Mantri and see a discussion on the need

for the office of 3irector egal to be more transparent and responsie to the

(erices" ie!s as put for!ard by the (erices , rather than imposing a party line"decided by the ery bureaucrats !ho are seldom !illing to accept the dictum 6to err

is human6H


46/196


@&. (adly, this point of the office of the egal Adisor in M43, apparently being

insensitie to (erices" *ead=uarters ie!point, is a relic of our system !herein the

three (erices are integrated !ith M43 only in name. It is time to seriously carry

for!ard the agenda of true integration on the path enshrined t!ice in the past, i+.

recommendation of the argil Reie! Committee and specifically by the Arun

(ingh Committee. There is in fact a (tanding Committee chaired by the 3efence

(ecretary, on reie!ing the detailed steps agreed to and approed by the *on"ble

Rasha Mantri for effecting purposeful integration to improe synergy bet!een the

M43 and the (erices. I !ould appeal to the (erice Chiefs to, in turn re=uest the

*on"ble Rasha Mantri, for a direction to use the forum of the members of this

committee to reie! the functioning of the office of egal Adisor, M43 and bring

for!ard needed re>structuring so as to be in unison !ith the (erice *ead=uarters,

on all legal issues that come up for litigation in Courts and Tribunals.

$r.n3.n3 "en*lemenLad cade*s under *e ArmNa7A.r Force Ac*(s)

@1. (ince the coming into being of the AFT, one case of a !ithdra!n cadet from

3A on medical grounds -4A o 1&0$%&&' in :rincipal Bench, e! 3elhi,

Reported in %&11 -1/ AFTD 1&7/, one pertaining to a !ithdra!n ;entleman cadet

from 4TA on disciplinary grounds -TA o. '8$%&&' in Regional Bench ucno!/

and one pertaining to a !ithdra!n cadet from 4TA on medical grounds -4A o.

77$%&1& in Regional Bench Chennai/ hae all been dismissed on grounds of lac of

#urisdiction. (ec% 00of the AFT Act on applicability stands in the !ay of these

;Cs$Cs since it recogni+es persons sub#ect to the Army$ay$Air Force

Act-s/.4nly an enrolled person -as it applies to a soldier$seaman$air !arrior/ or acommissioned officer are sub#ect to the Army $ ay $ Air Force Act-s/ as per

(ec%07of the respectie Army$ay$Air Force Act-s/. The discharge of all these

cadets$;C($Cs, though not coered de #ure under the proisions of serice

rules$regulations, has actually been effected de facto by taing recourse to eisting

military procedures and the ery same modus operandi such as inalid medical

board-s/ etc as are applicable to the persons sub#ect to serice Act-s/, !ho are found

unfit for !hateer reason to become an efficient soldier.

@%. The aboe three cases are already delayed by more than a year, from the point

of ie! of the unfortunate litigant cadet$;Cs, in getting the dismissal orders from

the AFT. If pursued in either a *igh Court or in the Ape Court it !ill tae at least afe! more years for finali+ation and by that time the young boy or girl in their late

teens or early %&s !ill be nearing 0& years plus seeing re>instatement or disability

pension. It is a point to ponder !hether haing reduced drastically the litigation time

for young recruits to a fe! months by !ay of enacting and operational sing the AFT


47/196


Act, the framers of the legislation should leae out similarly placed officer cadets

-!ho are truly the nation"s future?/ from its purie!H

@0. I !ould recommend that cadets$;Cs$Cs in all the three serices Academies,!ho are undergoing training to become commissioned officers are included in (ec%

of the respectie Army$ay$Air Force Act-s/as being sub#ect to the respectie Acts

for the limited purpose of effecting discharge forced by circumstances, !hen it is

felt that the cadet !ill not be able to =ualify to be an officer. A suitable sub>clause to

sec % is recommended to be framed and incorporated in the respectie Acts.

>>>>>>>>>>>>>>>

REFLECTIONS ON I!ACT OF COIN" INTO FORCE OF

ARE# FORCES TRI$%NAT (AFT) ACT& 200'

A!!EN#I

E5*rac*s o6 le**ers and c.*a*.ons re6erred *o .n *e ,oo8 and num,ered as

su4erscr.4*s

Su4erscr.4*

re6erence

(a)

I*em

(,)

1 (ec %8 ,The Army Act, 1')&

Te5*E5*rac*

- c /


48/196


Remed o6 a33r.e7ed 4ersons o*er *an o66.cers

-1/ Any person sub#ect to this Act other than an officer !ho deems himself

!ronged by any superior or other officer may, if not attached to a troop orcompany, complain to the officer under !hose command or orders he is seringN

and may, if attached to a troop or company, complain to the officer commanding

the same.

-%/9hen the officer complained against is the officer to !hom any complaint

should, under sub>section -1/, be preferred, the aggrieed person may complain to

such officer"s net superior officer.

-0/ery officer receiing any such complaint shall mae as complete an

inestigation into it as may be possible for giing full redress to the complainantN

or, !hen necessary, refer the complaint to superior authority.

-7/ery such complaint shall be preferred in such manner as may from time to

time be specified by the proper authority.

-)/The Central ;oernment may reise any decision by 1 -the Chief of the Army

(taff/ under sub>section -%/, but, sub#ect thereto, the decision of 1-the Chief of the

Army (taff/ shall be final.

1 (ubs. by Act 1' of 1')), sec % and (ch., for 2the Commander>in>

Chief6.

Su4erscr.4*re6erence

(a)

I*em

(,)

1 (ec %@, The Army Act, 1')&

Te5*E5*rac*

( c )

Remed o6 a33r.e7ed o66.cers

Any officer !ho deems himself !ronged by his commanding officer or any superior

officer and !ho on due application made to his commanding officer does not receie

the redress to !hich he considers himself entitled, may complain to the Central;oernment in such manner as may from time to time be specified by the proper

authority.


49/196


50/196


decision on the statutory complain is not taen !ithin a period of si months from

the date such a complaint is submitted to the immediate superior, the applicant !ill

hae a right to represent direct to Army *ead=uarters or the Central ;oernment as

the case may be after informing his commanding officer.

-e/ The follo!ing channels !ill be follo!ed !hile for!arding statutory complaints L>

-i/ Company Commander or other immediate superior.

-ii/ Commanding 4fficer.

-ii/ Brigade Commander or (ub>Area Commander.

-i/ 3iisional Commander or Area Commander.

-/ ;4C Corps !here applicable.

-i/ ;4C>in>C Command. -ii/ C4A(.

-iii/Central ;oernment.

-f/ (tatutory complaints from officers of AMC and A3C and from all DC4s, 94s

and 4R !hich pertain to matters relating to promotion, appointment, posting, release

and discharge, !ill be processed through departmental channels.

ayout of Complaints L

-g/ The general layout of complaints !ill be as per the specimen reproduced at

Appendi S:". The essentials of a complaint are as follo!sL>

-i/ An introduction !hich !ould state !hether the complaint is statutory or non>

statutory and the proisions of the (tatute or Rules under !hich it is made. In the

case of statutory complaints, this para !ill not be stated as the authority under

!hich the complaint is being made.

-ii/ Bacground of the case, if re=uired.

-iii/ Facts of the case set out briefly in logical and chronological order, giing

specific grieances.

-i/A conclusion containing the specific redress sought for by the complainant

-h/ It !ill be ensured that the complaint is couched in respectful and properlanguage. A complaint containing a false statement or a false accusation !ould

render the complainant liable for disciplinary action under the Army Act. If a

complaint contains accusations or allegations the complainant !ill render a

certificate as under !hich !ill anneed to the complaint L


51/196


2I understand that any false statement or false accusation made by me in this

complaint !ill render me liable for disciplinary action.6

Action by the Intermediary AuthoritiesL

-#/ An intermediary authority !ill eamine the grieance set forth by the complainant

and !ill either grant the redress sought for in the complaint or for!ard the complaint

to the net higher authority along !ith his comments and recommendations. The

immediate superior authority in chain !ill, in addition, also offer his detailed para

!ise comments on the complaint. *e !ill also ensure that the stipulation made in

sub>para -h/ aboe has been complied !ith. In case any of the conditions mentioned

belo! is not satisfied, he !ill !ithhold the complaint and inform the net superior

authority and the complainant the reasons for !ithholding the complaintL>

-i/That the complaint is complete in all respects and is in the correct form.

-ii/That the complaint is not couched in a discourteous, disrespectful or improper

language.

-/ If an intermediary authority grants the redressal ased for, the complainant !ill

be informed and the case closed under intimation to higher authorities in chain.

Before for!arding the complaint to the net higher authority, the immediate superior

authority of the aggrieed indiidual !ill endeaour to interie! the complainant

and mae such inestigations as he considers necessary. *e !ill then for!ard the

complaint, his detailed para!ise comments and recommendations to the net

superior intermediary authority. 9hile for!arding the statutory complaint to the net

higher authority, concerned formation head=uarters shall inariably inform Army

*ead=uarters about the progress of the case and also inform the complainant through

his commanding officer.

Time>frame for processing of complaints L

-l/ All complaints !ill be dealt !ith epeditiously at all leels. The follo!ing time

schedule !ill be strictly follo!ed L

-i/ Time taen to reach Army *ead=uarters -including transit period/ L

-aa/Gnit L L %& days

-!here para !ise comments are re=uired to be for!arded/

-ab/ Bde or (ub Area L 1) day

Documents

AFLJ 2012 (1) - Honble Lt. Gen. S. Pattabhiraman (Retd)