Friday, February 23, 2018
GIST OF OA NO.1439/17 (SGT GIRISH KUMAR Vs uNION OF iNDIA) : BROAD BANDING OF DISABILITY PENSION
1. The judgment of larger bench of AFT Delhi comprising of two judicial members and one administrative member in OA No 1439 of 2017 Ex-Sgt Girish Kumar Vs Union of India and batch of petitions delivered on 01 Dec 2017 is a land mark judgment on broad banding arrears to be paid from date of retirement or Jan 1996 whichever is later. They quoted a number of judgments of Hon’ble Supreme Court in support of their verdict. It is a 59 page judgment which most of us do not understand. I tried to make some sense out of this long judgment and inform how this judgment affects Ex-Servicemen in the future. This judgment also gives what is the law of the land as laid down by Hon’ble Supreme Court on many issues agitating the Ex-Servicemen community.
2. Arrears of Any Type. Though the judgment primarily concentrated on arrears of broad banding for disabled soldiers the logic applies to any type of arrears concerning the pay or MSP or grade pay etc.
History of Broad Banding
3. Broad Banding Recommended by 5th CPC(1996–2005). 5th CPC in order to eliminate medical subjectivity recommended benefit of broad banding be given as under to the disabled soldiers whose disability is 20% or more and attribute or aggravated by military service :-
(a) 20 but less than 50% - 50%
(b) 50 to 75% - 75%
© Above 76% - 100%..
4. Broad Banding only to post – 1996 Invalid Soldiers. The low level bureaucrats in Min of Def got the Govt order issued giving the benefit only to Post – 1996 invalid soldiers. Though soldiers get disabled either in peace time or in war due to military service, only Post – 1996 invalid soldiers were to be given benefit of broad banding vide Govt of India, Ministry of Def Office Memorandum No 1(2)/1977/I/D(Pen-C) dated 31 Jan 2001. This denied broad banding benefit to
(a) Pre – 1996 Invalid soldiers
(b) Superannuated Soldiers
(c) Disabled soldiers who sought premature retirement and
(d) soldiers whose disability was not attributed or aggravated by military service (later this was dismissed by Hon’ble Supreme court in 2013 which stated any disability suffered by soldiers who were found medically fit at the time of commission or recruitment but later suffered disability while in service are to be treated as Attributable or Aggravated by Military Service).
5. Broad Banding to be Given from Jan 1996. The Hon’ble Supreme Court in their judgment in the case of KJS Buttar Vs Union of India (2011) 11 SCC 429 ruled that benefit of broad banding to be given to war injured soldiers from Jan 1996. The Hon’ble High Court of Punjab & Haryana in Amarjit Singh Vs Union of India in CWP No 20936 of 2012 decided on 26 May 2014 also ruled that arrears are to be paid from Jan 1996. Finally the three judge bench of Hon’ble Supreme Court in another case Davinder Singh Vs Union of India (CA No: 9946 of 2016 decided on 20 Sep 2016) held that arrears of broad banding are to be given from Jan 1996 or date of retirement whichever is later.
6. Broad Banding Benefit to be Given to Super Annuated Disabled Soldiers. The AFT Chandigarh in Lt Gen Vijay Oberoi Vs Union of India in OA 329 of 2009 (decided on 04 Aug 2010) clubbing with other petitions including Ram Avtar Vs Union of India & others in CA No: 418 of 2012 ruled that broad banding benefit should be given to superannuated disabled soldiers and those soldiers who completed their terms of engagement. This judgment was In Rem meaning it is applicable to all those disabled soldiers who did not file the case in AFT (i.e. universal) as opposed to In personam ( only to those petitioners in the legal case). Aggrieved by the judgment of AFT Chandigarh, the Ministry of Defence filed a case in Hon’ble Supreme Court with CA No: 418 of 2012 titled Union of India Vs Ram Avtar. Hon’ble Supreme Court was pleased to dismiss the appeal of Govt of India on 10 Dec 2014 thereby all the disabled soldiers who were superannuated or completed their terms of engagement were given benefit of broad banding. As expected the Govt of India does not implement the judgment of courts of law in letter and spirit. Ministry of Defence issued a letter dated 19 Jan 2010 granting broad banding benefit to disabled superannuated or those who completed their terms of engagement w.e..f. 01 Jul 2009 and NOT from Jan 1996.
7. Broad Banding Benfit to Those Who are Retired or Invalided Prior to Jan 1996. The Hon’ble Supreme Court in their judgment in case of KJS Buttar Vs Union of India (2011) 11 SCC 429 held that all those disabled soldiers who are retired or invalided prior to Jan 1996 are also to be given broad banding benefit. The Ministry of Defence in the year 2012 after losing the case in Hon’ble Supreme Court issued a letter stating that arrears of broad banding are to be paid from Jan 1996 from when the broad banding became effective rather than 01 Jul 2009. The court observed that there was no restriction of cutoff date of 1996 in case of disabled civilians whereas Ministry of Defence imposed it on disabled soldiers. Based on the judgment of Hon’ble Supreme Court, the Govt of India, Ministry of Defence issued a policy letter dated 15 Sep 2014 granting arrears of broad banding from 01 Jan 1996 for all except those released on completion of terms of engagement or superannuated quoting restriction imposed vide the ministry letter dated 31 Jan 2001 which was quashed by the Courts of Law. (It is very clear that low level bureaucrats generally do not amend their earlier letters which have been quashed or part of letter is quashed by Hon’ble Supreme Court thereby giving effect to the judgment and are happy to deny benefit granted by Courts of Law to soldiers. It is done deliberately on the assumption that soldiers will never come to know of the judgments of courts of law. By the time a contempt petition is filed, the Govt servants would have retired and no damage would be done to such retired civilian Govt employees).
8. The Larger bench of AFT Delhi says“The prohibitory stipulation of granting benefit of broad banding to Post – 1996 Invalid soldiers in letter dated 31 Jan 2001 has already been struck down in Lt Gen Vijay Oberoi & Ram Avatar cases and became non est. Govt of India, Ministry of Defence vide their letter dated 15 Sep 2014 partially implemented the judgment by giving benefit of broad banding to Pre – 1996 invalid soldiers only. It denied the benefit to superannuated soldiers though Hon’ble Supreme Court ruled that even superannuated soldiers are also to be given benefit of broad banding. This is how Govt of India treats the judgment of Hon’ble Supreme Court because they know faujis do NOT file any contempt case in the Apex Court due to lack of awareness of judicial matters.
Period of Arrears
9. A number of Regional AFTs gave judgment of granting benefit of broad banding from date of retirement or 01 Jan 1996 whichever is later but some of the other AFTs gave arrears only for a period of three years from date of filing the case in AFTs. The matter came before three judge bench of Hon’ble Supreme Court in Civil Appeal No: 9946 of 2016 from a matter decided by AFT Chandigarh in Davinder Singh Vs Union of India (OA No: 1289/11) in which the AFT gave arrears only for three years. The Hon’ble Supreme Court going by their earlier judgment in case of Jai Singh Vs Union of India in TA No 1077 of 2011 ruled that all pre – 1996 retirees were also entitled to broad banding benefit from 01 Jan 1996 with interest of 8% per annum.
Delay in Filing Cases of Pension & Effect of Arrears
10. The larger bench of AFT Delhi at paras 28 & 29 in page 22 & 23 says :
“ Para 22. So in our considered view, the Hon’ble Supreme Court has removed the anomaly with regard to disability element of disability pension, from date of its inception and not from any future artificial date, therefore, the benefits must flow to all affected parties without having to litigate for it. This aspect can be seen, yet from another angle. Where the right was already existing by way of rule or policy and the amount is illegally held back from an individual or where there is a vested right arising out of an in rem decision by the Hon’ble Supreme Court and the respondents do not give effect to the judgment, thereby forcing the affected parties to litigate, the entitlement of the entire arrears starts from the same date.
Para 29. The issue revolves around pension and pension is the property of the pensioner and respondents (Govt of India, Ministry of Defence) cannot be allowed to usurp his right or property. Pension has been recognized as property under Article 300-A of the Constitution by the Hon’ble Supreme Court in the case State of Jharkhand Vs Jitendra Kumar Srivastava and another (2013) 12 SCC 210.
Para 30. We may mention that on the issues discussed herein above the Hon’ble Supreme Court after observing favourably has made it amply clear that respondents themselves are expected to base their actions and policies in terms of the decisions. Therefore in our view, no delay or laches or restriction of arrears can be argued in such cases. In other words, the affected persons cannot be made to suffer due to the respondents’ own fault in not following the law laid down and no restriction on arrears can be effectuated. In short, the respondents cannot take the benefit of their own wrong. Ideally, the respondents themselves are supposed to grant the benefits to all affected parties without forcing them to approach the Courts. Arrears in such cases must flow in the same terms as laid down by the Hon’ble Supreme Court without any additional factors or restrictions, irrespective of the fact whether the person approaches the Court or not.”
Pre – 2006 Hony Nb Subs to get Pension of Nb Sub
11. AFT Chandigarh in OA No : 42 of 2010 in Virender Singh Vs UOI & others decided on 08 Feb 2010 (subsequently allowed by Hon’ble Supreme Court) in which the following directions were issued:-
“In case these benefits were to be extended to Havildars granted honorary rank of Nb Sub on or after 01 Jan 2006, it would introduce serious disparities within the same class and category of individuals i.e. Honorary Nb Subs of Pre and Post 01 Jan 2006. This would be arbitrary and discriminatory.
In view of the facts and circumstances of the case, the application is allowed. Respondents 1 to 6 are directed to implement the Government instructions and release the entitled pension with arrears from 01 Jan 2006 to Honorary Nb Subs of the receipt of the order”.
In Rem Vs In Personam
12. As explained earlier paras, In Rem judgment means the universal applicability to all similarly placed pensioners i.e. even those who did not come before Courts of Law are to be given benefit like it was given to petitioners who went to the Courts of Law seeking justice. In Personam on the other hand means the judgment is applicable only to the petitioners who filed the case seeking justice. All similarly affected persons will not get benefit of judgment if the judgment is In Personam. But it is seen though the Hon’bleSuprem Court in Ram Avtar Vs Union of India gaven a In Rem judgment, the Govt of India implemented the benefit of arrears of broad banding only to 800 petitioners and denied the same to thousands of other disabled soldiers who are supre annuated. Since contempt of court has to be filed, but due to lack of knowledge the case was not filed and Govt of India got away paying arrears only to those 800 petitioners. The larger bench defined which judgment is In Rem at para 45 as under:-
“ Suffice to state that where an issue of policy is raised before a judicial forum, upon verdict being rendered, the same has to be treated In Rem and not In Personam. Law draws distinction between claims which are based on facts personal to the claimants vis – a – vis claims which relate to the interpretation of the law, whereas the former would be In Personam and later is In Rem. The issue for our discussion is based on the a policy issued by the Ministry of Defence, Govt of India, which has been adjudicated upto Hon’ble Supreme Court and the verdict has since been rendered, consequently, it has to be treated as In Rem and not In Personam.“
13. If you see most of the judgments of various AFTs and Hon’ble Supreme Court are In Rem but the Govt of India does not implement the judgment universally benefitting lakhs of similarly placed pensioners. They get away because AFTs do NOT have contempt of court powers. Very few approach Hon’ble Supreme Court filing a contempt case against Union of India for not implementing the judgment of Apex court to similarly placed pensioners.
Disability Pension to Pre Mature Disabled Soldiers
14. Prematurely retired disabled soldiers are not given disability element till 29 Sep 2009. Consequent to the judgment of Hon’ble Delhi High Court in Mahavir Singh Vs Union of India, the PMR disabled soldiers were also entitled to disability element only to personnel below Officer Rank. But the Govt of India went on appeal before the Hon’ble Supreme Court against the judgment of Hon’ble Delhi High Court in SLP 4171 of 2004 which was dismissed by the Apex Court on 04 Jan 2005. The Govt of India again treated it as In Personam and granted the benefit only to those petitioners in the SLP. A contempt of Court petition was filed in Hon’ble Delhi High Court in Ex Nk Singheswar Singh Vs Union of India in WP © no 9186 of 2009 dated 28 Aug 2009. On 29 Sep 2009, The Govt of India, Ministry of Defence officially issued a policy letter for grant of disability element to PMR cases but restricted the same only to Post – 2006 retirees. AFT Delhi in JK Kaushik Vs Union of India in TA No: 523 of 2010 decided on 12 Aug 2010 held that disability element needed to be extended to Pre – 2006 retirees with effect from 01 Jan 2006. But finally the Govt of India issued instructions for disability element to PMR cases on 19 May 2017 with financial benefits from 01 Jan 2006.
Circumstances When Arrears can be Restricted to Three Years from Date of Filing Appeal in AFTs
15. The larger bench of AFT Delhi at para 53 explained that an individual who has been separated from Service, if he has no vested right of pension on disability element and the right accrues only by way of judgment depending upon the facts of a particular case vide a decision rendered In Personam and there is delay in approaching the Tribunal then only he is entitled for arrears for three years from date of filing the case in AFT. An example would be a case, where a Medical Board holds disability neither Attributable Nor Aggravated (NA – NA) by military service and a Court based on the judicial interpretation after perusing the entire medical board proceedings comes to the conclusion that the disability should have been regarded as Attributable or Aggravated by Military Service, certainly in that situation there was no existing vested right available to him and the right accrued only when the Tribunal decided the main issue of attributability and aggravation by Service. In such cases, where there undue delay in approaching Tribunals, the arrears can definitely be restricted to three years for a very simple reason that the rights are decided on the case to case basis In Personam turning on individual facts of each individual case and in that eventuality, the judgments having effect In Rem would not be applicable to that individual.
16. Though we are not law qualified pensioners, it is the responsibility of Officers to go through such judgments and guide JCOs /OR of their legitimate entitlements. T SEWA has been using the judgments and filed a number of cases in AFT Delhi and hope to win most of them if not all as our cases are based on previous judicial pronouncements.