Wednesday, September 30, 2015
Now Gurbax Singh Dhindsa, the father of a dead Indian Air Force pilot, has underlined the fact that military personnel have little recourse to justice in higher courts.
Mr Dhindsa makes this point in a letter to Prime Minister Narendra Modi, Defence Minister Manohar Parrikar and Law Minister DV Sadanand Gowda. His son, Flying Officer GS Dhindsa, had died during the Kargil conflict, when his MiG-21BIS fighter crashed while taking off from Srinagar on an operational mission on August 18, 1999. Mr Dhindsa's letter recounts the difficulties he faced in collecting the benefits due to him as the pilot's next of kin. Like many ex-servicemen who confront such delays, he took the government to court for what should have been paid to him routinely, and with gratitude and honour. Last month, the Armed Forces Tribunal (AFT) - the military's departmental tribunal - ordered the Defence Accounts Department to pay Mr Dhindsa his dead son's ex-gratia payment, pension and other dues that had been held back illegally for 16 years. Inexplicably, theAFT failed to order payment of interest.
When Mr Dhindsa decided to move the high court for grant of interest, he learned that he could not. Article 31 of the Armed Forces Tribunal Act rules that AFT judgments cannot be challenged in the high court. Nor can serving defence personnel or veterans or their families petition the Supreme Court unless the case involves a "point of law of general public importance". Earlier this year, on March 11, ruling on a plea filed by the previous United Progressive Alliance (UPA) government, the Supreme Court endorsed this retrograde provision.
The Supreme Court, in a separate case, is now reconsidering this judgment, which has effectively left defence personnel, veterans and families without remedy after an AFT decision. Earlier a seven-judge Constitution Bench, in L Chandra Kumar versus Union of India, had deemed "unconstitutional" a ruling that prevented High Court review of rulings of the Central Administrative Tribunal (CAT) and State Administrative Tribunals (SATs). Yet, for now, military litigants have no recourse beyond the AFT.
Mr Dhindsa writes: "Of course, civilian employees or their families have no such bar. In case I had been the father of a civilian employee denied pension, I could have simply approached the Central Administrative Tribunal (CAT) and if dissatisfied, the high court and if still dissatisfied the Supreme Court. But since I am the father of a military martyr I cannot approach the high court or even the Supreme Court unless I have a case of public importance."
He goes on: "Even if an appeal was provided as a matter of right to the Supreme Court from each case of the AFT, can you expect defence personnel or their families from the lower socio-economic strata to approach the Supreme Court? Can they afford litigation or even travel to the highest court of India?"
This question is especially relevant, given that the defence ministry's well-established legal strategy is to appeal at every level against every court decision that goes against the government, regardless of the merits of the case. That obliges the litigant, most often a poor villager living on his pension, to pay travel and lawyer fees that he cannot possibly afford. Meanwhile, the defence ministry uses taxpayer money to hire high-priced lawyers with the mandate to drag on cases endlessly until the litigant either dies or runs out of money.
Ironically, misinformed sections of the military welcomed the Supreme Court ruling, which they viewed as "quicker justice", stemming from the removal of one level of appeal. Says prominent military lawyer, Navdeep Singh: "Thankfully people are now realising that this judgment snatches away the precious fundamental right to approach the high court, which is available to every citizen. Under the guise of 'quicker justice', soldiers and veterans had been placed without a remedy against a tribunal's judgment. I am glad that the Supreme Court is revisiting the matter."
Even so, unless and until the apex court reconsiders its earlier judgment, Mr Dhindsa is left without recourse. His letter rhetorically asks: "When a civilian employee or his family member aggrieved by order of the Central Administrative Tribunal (CAT) has a fundamental right to approach the high court and then the Supreme Court, why should the same right be denied to me?"
"When a civilian employee or his family member has a right to a three tier judicial approach, why do I only have one tier? Do we lose our rights just because of joining the defence services rather than civilian jobs?"
"Which court should I approach against order of the AFT when my case (like 99.99% cases) does not involve any 'point of law of general public importance'?"
The National Democratic Alliance (NDA) government, and Mr Parrikar himself, have promised to end the practice of automatic appeals that wear down litigants, regardless of the merits of their cases. However, the defence ministry's department of ex-servicemen's welfare (ESW) scuttles all such attempts, and resentment is rising amongst ex-servicemen.
The AFT was born in August 2009, as a departmental judicial body for providing quick and affordable justice to soldiers, airmen and sailors governed respectively by the Indian Army Act, 1950, Indian Air Force Act, 1950 and the Navy Act, 1957. It rests on the foundations of the Armed Forces Tribunal Act, 2007 (hereafter, the Act), which envisions a military-oriented substitute for the high courts, with appeals addressed only to the Supreme Court, on matters of "general public importance". In 2011, the Delhi High Court ruled that litigants could not be deprived of judicial review in a high court, which the Constitution provided for. However, the Supreme Court struck down that order earlier this year.
There are also serious questions of conflict of interest, with the AFT operating under the defence ministry, which is the respondent in almost every case the AFT hears. The defence ministry argues the Act grants it the powers to make rules, appointments and administer the AFT. In fact, the Act grants those powers to the central government, while the Allocation of Business Rules makes the Ministry of Law and Justice (MOLJ) responsible for the "administration of justice".
There is a battle raging over control of the AFT. The Punjab & Haryana High Court has acknowledged this conflict of interest, directing in a judgment on November 20, 2012 that the AFT be "brought within the control of Department of Justice in the Ministry of Law & Justice." This judgment cites the aforementioned seven-judge Supreme Court ruling in L Chandra Kumar versus Union of India and R Gandhi versus Union of India, which direct departmental tribunals (such as the AFT) should all be brought under a "wholly independent agency" under the MoLJ, which must "try to ensure that the independence of the members of all such Tribunals is maintained."
In its Eighteenth Report, tabled in parliament on March 20, 2013, the Standing Committee on Defence has backed the setting up of a Central Tribunal Division under the MoLJ, which would exercise administrative control over the AFT, rather than the MoD. "The Committee are of the view that in order to build a strong and independent institution, this step will go a long way," says the report.
Reform of the AFT is essential for justice to be visibly served. It is to be hoped that Mr Dhindsa's letter draws the government's attention to this long overdue measure.
(Souirce- Business Standard)
The definition of OROP accepted by the government in Parliament has equal pension for officers retiring in the same rank with equal length of service.
The Centre has informed the Supreme Court that it has complied with a 2008 judgment regarding the implementation of the One Rank One Pension (OROP) on Tuesday, but almost three weeks after the government announced an OROP roll out, the ex-servicemen’s agitation at Jantar Mantar is far from dying down. The ex servicemen claim that the government-announced scheme is anything but OROP.
The definition of OROP accepted by the government in Parliament has equal pension for officers retiring in the same rank with equal length of service. In his September 5 announcement, the Defence Minister Manohar Parrikar said that OROP would be implemented with retrospective effect from July 2014 and with 2013 as the base year. What this essentially meant was that that the veterans’ pensions shall match the pensions of those retiring in 2013 and that they would be given the arrears from July 2014.
The government also announced a one-member judicial committee to address the likely anomalies in the scheme. Most importantly, the scheme, written order of which is slated to be rolled out within a month, will involve revision of pensions every five years.
The government’s interpretation of OROP is unacceptable to the ex- servicemen community. They believe that each of these clauses is a violation of the basic definition of OROP as outlined by the Bhagat Singh Koshiyari Committee in 2012.
For instance, the five-year revision of pensions implies that a veteran’s pension will remain unchanged for five years. This will create multiple pensions for officers of one rank given that for five years – the gap between two revisions – many new retirees will leave the services with different pensions.
The ex-servicemen jokingly term the government’s five-year revision proposal as One Rank Many Pensions and still demand an annual revision.
Disagreement also continues over the judicial committee, as the ex- servicemen are seeking a five-member committee rather than the proposed one-man committee — with three of their own members, one representative from the government and one nominated member.
Last but not the least, there is a strong distrust of the bureaucracy. In fact, the government’s announcement to omit premature retirees from OROP – a clause which was reversed later – was viewed by veterans as a “last minute effort by bureaucrats to create troubles” in OROP.
For its part, the government has remained silent on the subject since its announcement of the roll out on September 5. Everything now depends on its final call in the order expected in October.
(Source- http://www.staffnews.in/2015/09/orop-why-ex-servicemen-continue-to.html#ixzz3nD2WpM00 )
BRIG S VIDYASAGAR VETERAN'S EXPLANATION
Since IESM has taken my name and tried to buttress their argument that everything is honky dory on pension front of JCOs and OR and produce a commentary from Maj Navdeep singh whom I do admire a lot for his work in fighting cases for Ex-Servicemen and widows of ESM, I thought I will be failing in my duty if I do not respond. The learned Advocate has commented “The Brig is unnecessarily asking people to file cases”.
Though I am not a lawyer by profession, I have few comments on the explanation given by Maj Navdeep Singh. I am reproducing his comment as under:-
Comment of Maj Navdeep Singh : In implementation of the decision of the Delhi High Court affirmed by the Supreme Court, the Government has issued the implementation instructions under question. For ranks other than Commissioned Officers, the instructions would apply from 01 Jan 2006 till 30 June 2009 since from 01 July 2009 onwards the anomaly stood removed and rendered redundant since all such personnel were as it is fixed on notional top of scales. For Commissioned Officers and Civilian pensioners, the instructions would apply from 01 Jan 2006 till 23 Sept 2012 since the anomaly was only removed on 23 Sept 2012
My (Brig S Vidyasagar Veteran's Response. My military common sense tells me the following:-
If all anomalies are removed w.e.f. Jul 2009 then why that pension of NCOs has been further improved w.e.f. 24 Sep 2012? Just see the pension of Sepoy of Y group with 15 years’ service as given in various Circulars:-
PENSION AS ON JAN 2006 AS PER CIRCULAR 430
PENSION AS ON
01 JUL 2009 AS PER CIRCULAR 501
PENSION AS ON 24 SEP 2012 AS PER CIRCULAR 501
ARREARS FROM JAN 2006 TO
30 JUN 2009
PENSION ARREARS FROM JUL 2009 TO
23 SEP 2012
TOTAL PENSION ARREARS
28 & ABOVE
What was anomaly and how did it get removed is not explained anywhere!
Let me explain this anomaly by taking help of MoD letter dated 08 Mar 2010 which I am reproducing for your benefit. English is a peculiar language and one word here and there changes entire complexion. Therefore let us see whether Min of Def implemented their own letter:
Government of India,
Ministry of Defence,
Deptt. of Ex-servicemen Welfare,
No PC 10(1)/2009-D (Pen/Pol)
New Delhi Dated 8th March 2010
The Chief of the Army Staff,
The Chief of the Naval Staff,
The Chief of the Air Staff,
Subject: Implementation of the Government decision on the recommendations ofthe Cabinet Secretary’s Committee – Revision of pension in respect of Personnel Below Officer Rank (PBOR) discharged prior to 01.01.2006.
The undersigned is directed to state that in order to consider various issues on pension of Armed Forces pensioners, the Government had set-up a Committee headed by the Cabinet Secretary. The Committee in its Report have recommended the following for pre-2006 PBOR pensioners -
1.1 Pre-10.10.1997 PBOR pensioners may be brought on par with post-10.10.1997 PBOR pensioners; and
1.2 To reduce the gap between the pensions of pre & post-1.1.2006 PBOR pensioners, following principle may be followed -
1.2.1 Pension of all pre-1.1.2006 PBOR pensioners may be reckoned with reference to a notional maximum in the post-1.1.2006 revised pay structure corresponding to the maximum of pre-Sixth pay commission pay scales as per fitment table of each rank.
1.2.2 To continue with the enhanced weightages awarded by the Group of Ministers (GOM) of 2006.
2. The above recommendations of the Committee have been accepted by the Government and the President is pleased to decide that with effect from 1st July 2009, service pension/special pension/invalid pension/service element of disability pension and service element of war injury/liberalized disability pension (in release cases only) of all pre-1.1.2006 PBOR pensioners of Army, Navy and Air Force (including DSC and TA) shall be reckoned at 50% of the notional pay in the post-1.1.2006 revised pay structure corresponding to the maximum of pay scales applicable from 10.10.1997 of the rank and group continuously held for last 10 months preceding invalidment/discharge. The amount so determined shall be the pension for 33 years of reckonable qualifying service including rank weightage (except for TA personnel) as provided under this Ministry’s letter No. 1(6)/98/D(Pension/Services) dated 3.2.1998 and enhanced vide this Ministry’s letter No. 14(3)/2008/D (Pen/Sers)/Vol-III dated 1.2.2006. For lesser period of qualifying service, this amount shall be proportionately reduced. The amount of pension finally arrived at shall be subject to a minimum of Rs. 3,500/- per month.
Let us concentrate on the most important part of the letter i.e. para 1.2.1 and try to understand what actually it conveys:-
1.2.1 Pension of all pre-1.1.2006 PBOR pensioners may be reckoned with reference to a notional maximum in the post-1.1.2006 revised pay structure corresponding to the maximum of pre-Sixth pay commission pay scales as per fitment table of each rank
It talks of notional maximum in the post - 01 Jan 2006 revised pay structure. So let us see what is this Revised pay structure for Sepoy of Y Group (in 6th CPC scales).
What is the notional maximum for Sepoy of 23 years’ service of Group Y corresponding to maximum in 5th CPC scales of pay? It is Rs 6000.
Then by applying 33 year rule pension for Sepoy Gp Y comes to : 6000 x (23 years’ service + 10 years rank weightage)/33 which is Rs 6000
But if you see the pension of Sepoy of Y Group with 23 years’ service in Circular 430 you will find pension fixed is Rs 5523. Is this not wrong figure?
Should it not be Rs 6000 which is top of scale? Here also Sepoys have been deprived of their hard earned pension.
Let me make table for all of you to prove to you how DAD guys make a Charlie out of faujis.
Maximum pay for 33 years’ service including Rank Weightage as given in Fitment Table of SAI 1/S/2008
Entitled Pension @50% of Pay
Pension as per Circular 430
Loss suffered by JCOs and OR without DR per month
Sepoy X Gp for 23 years service
Nk Gp X with 25 years service
Nk Gp Y
Hav Gp X with 27 years service
Hav Gp Y
Nb Sub Gp X with 28 years’ service
Nb Sub Gp Y
Sub Gp X with 28 years service
Sub Y Gp
(Source- Via Gp E-mail from Brig S Vidyasagar Veteran)