Reflections - Impact of Coming Into Force of Armed Forces Tribunal (Aft) Act, 2007

Armed Forces Law Journal 2012 (1) 1 REFLECTIONS - IMPACT OF COMING INTO FORCE OF ARMED FORCES TRIBUNAL (AFT) ACT, 2007

Lt. Gen (Retd) S. Pattabhiraman

1. At the end of my tenure as a founder Member of the Armed Forces Tribunal Regional Bench Chennai, I thought it appropriate to leave behind an immediate after action report with mainly the servicemen litigants in mind, on the impact of coming into force of these Tribunals spread across the country and functioning in nine of the country’s major metros/cities since August 2009.

2. Since then these 15 Tribunal Benches have replaced High Courts and lower courts as the courts of first appeal in relation to all service matters pertaining to both serving and retired personnel of the three wings of the Armed Forces, viz. Army, Navy and Air Force. Furthermore, the adjudicated judgments of these Tribunals, made up of a Bench of a retired judge of a High Court (with one exception notably of the Chairperson, who is a retired Supreme Court judge) and a retired senior Service officer, are challengeable by way of appeal only at the Hon’ble Supreme Court as per current provisions of the Act.

3. The report in the form of a Handout is primarily aimed at providing at a glance to any of the affected serving officers/soldiers and/or retired servicemen/next of kin who may be forced into seeking remedy (beyond the service), a reference material as to how best to go about doing so. To that extent it is more of a “DOs & DON’Ts” guide, with examples based on my exhilarating experience of these past two and a half years.

4. I call this experience as exhilarating because I consider myself as one of the common species of the Indian Army who, till retirement on 31 Dec 2006 and till even later until appointed to this appointment, was led to believe that a serving person is seldom in need of taking recourse to Civil Courts and it is only superannuated / retired personnel and senior serving officers that too when denied promotions who approach High Courts by way of Writ Petitions challenging the Government. On assuming the appointment as Member (Administrative), in the Chennai Regional Bench, this belief was shattered when confronted with the transferred cases from the Hon’ble High Courts of Madras and Hyderabad, which apart from being on an average 8 to 10 years old, pertained largely to recruits and young soldiers sent out on discharge on account of either disability or on grounds of unlikely to make the grade to qualify to be a soldier, who had challenged these 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 awards on account of courts martial have besides being been eye-openers spurred me on to pen my reflections before the ink dries up.

5. The Handout, I have aimed at, is to be primarily of use to the prospective litigants, who have now been provided with, statutorily, an opportunity both affordable and close at hand, hitherto considered not so, to be able to address perceived wrongs in a finite time of not more than a few months.

6. It is to the credit of the hierarchy of the three Services Headquarters, their Records offices, the offices of the PCDA (Pensions) and the MOD, that they have responded with alacrity to the overwhelming demands made on them ever since the AFT was operationalised, which has made it possible for the stupendous success achieved in disposing of record numbers of cases and bringing down the pendency of military litigation from over 12000 to a few hundreds! Towards the end of the Handout, I have also placed for consideration of the Services hierarchy at the top, recommendations for consideration with the MOD towards effecting a few reforms towards rendering greater equity, at pace with march of law.

7. In the end I am thankful to Mr. M. K. Sikdar, Advocate, Madras High Court & AFT Regional Bench, Chennai & Chief Editor of the Armed Forces Law Journal and to Maj Navdeep Singh, Advocate, Punjab & Haryana High Court & AFT Regional Bench, Chandigarh & Publisher of the online Forces Law Gazette for incorporating the handout in their respective forthcoming issues.

Chennai, 15th Feb 2012 Sd/- Lt. Gen (Retd) S. Pattabhiraman A1-SunCity Apartments

9 Santhome High Road

Mylappore ,

Chennai 600 004.

Armed Forces Law Journal 2012 (1) 3 REFLECTIONS ON IMPACT OF COMING INTO FORCE OF ARMED FORCES TRIBUNAT (AFT) ACT, 2007

I N D E X Page Nos. 1. Introduction 1 Chapter I 2. Exhaustion of available remedies (serving personnel) 3 Types of Remedies 3 Time Stipulation 3 Chapter II 3. Exhaustion of remedies-retired officers/PBOR and their kin 4 Chapter III 4. Cause of action: Approaching the right forum (High Court/Supreme Court) 4 - 5 Salient Differences with Central Administrative Tribunal (CAT) 4 Policy Matter vs. Personal or Personnel Issue 5 Cause of Action 4 Chapter IV 5. Major causes giving rise to reliefs being sought and 6 - 14 suggested line of approach Disability Pension Claims 6 Discharge without Pensionary Benefits 9 Denial of Family Pension to Widows/Next of Kin (NOK) 11 of Missing Servicemen Entitlement of Second Family Pension 12 Denial of Promotion 13 Appeal against Sentence of Dismissal&/Verdict of Courts Martial 14

Chapter V 6. Filing of appeal/application and presentation of papers, scrutiny of 18-28 counter/reply statement of the respondents and submission of point by point rejoinder to the same, reference books, placing pertinent citations of pari material case laws/established dictums/government notifications Filing Procedure 18 Presentation of Papers 19 Scrutiny of Counter/Reply Statement of Respondents and 20 2 Armed Forces Law Journal 2012 (1) . Submission of Rejoinder Publications, Books, Case Laws, Reported Citations, 22 Government Notifications Chapter VI 7. Recommendations for consideration of the ministry of defence (mod) 29 - 31 and the services MOD 29 All Three Services 30 Navy Only 31 Chapter VII 8. Grey areas in ferment and which may involve Apex Court’s 32 intervention/ruling Questions of Superintendence and Writ Jurisdiction 32

Chapter VIII 9. Food for thought 33 - 35 Is the Uniformed Services’ Viewpoint Getting Projected 33 Correctly in Courts of Law? ------

APPENDIX

Superscript Ref. Item Page Nos. 1. Sec 26, The Army Act, 1950 36 2. Sec 27, The Army Act, 1950 37 3. Para 364, Regulations for Army, 1962 37 4. Sec 23, The Navy Act, 1957 41 5. Regulations 236, 237, 238, 239 of Navy, Part II, Statutory 42 6. Sec 27, The Air Force Act, 1950 44 7. Sec 26, The Air Force Act, 1950 44 8. Sec 15, The AFT Act, 2007 45 9. Sec 21, The AFT Act, 2007 47 10. Sec 22, The AFT Act, 2007 48 11. Para 368, Regulations for the Army 48 12. Para 369, Regulations for the Army 49 13. Sec 14(1), The AFT Act, 2007 50 14. Sec 30, The AFT Act, 2007 50 15. Dismissal of SLP by Apex Court in UoI Vs. Gurmit Singh Butter 51 16. Punjab & Haryana Court Order in Gurmit Singh Butter Vs. UoI 53

Armed Forces Law Journal 2012 (1) 3 17. Dictum of Hon’ble Apex Court -- Primacy of Medical opinion 55 UoI Vs. Damodaran AV (Dead) through LRs 18. Dictum of Hon’ble Apex Court -- Primacy of Medical opinion 64 Om Prakash Singh Vs. Union of India & Ors. 19. Section 47, The Persons With Disabilities [Equal Opportunities, 72 Protection of Rights and Full Participation] Act, 1995 20. 11 (i) Notification w.r.t. exemption of AF Personnel from 73 provisions of Persons with Disability Act, 1995 21. Punjab & Haryana High Court judgment on grant of Disability 74 Pension as affirmed by the Supreme Court – applicability of broad-banding to those who are released on completion of terms – Union of India Vs. Paramjit Singh 22. Apex Court judgment on compulsory discharge of LMC personnel- 79 UoI Vs. Rajpal Singh 23. MoD Policy letter post- V CPC, on pensionary benefits including 87 broad-banding. 24. Government order on Family Pension to families of missing persons 101 25. Rule 54 – sub-rule 13 (b) & 24 of the CCS (Pension) Rules, 1972 106 26. UoI & Ors Vs. Lt Gen R S Kadyan & Anr – (2000) 6 SCC 69 110 27. Lakhwinder Singh Vs. UoI & Ors (2008) 7 SCC 118 28. Regulations for the Army, 1986 – Reg 108 : Constitution and 122 Duties of Selection Boards. 29. Surinder Shukla Vs. UoI & Ors (2008) 2 SCC 649 122 30. Order of acquittal in a case of an accused serving term for an 125 offence by Principal Bench. 31. Order of re-instatement of an officer tried under Sec 60 of the AA 133 by Principal Bench. 32. Army Rule 34 (1) 139 33. Apex Court sets aside Army Court Martial procedure (96 hours 139 had not elapsed after issuance of charge sheet )- CA No.6181/02 34. Apex Court’s ruling on disproportionate punishment – 148 EX. Naik Sardar Singh Vs. UoI & Ors. 35. Sec 71 of the Army Act, 1950 154 36. Form for use at Summary Court Martial in Appendix III, 155 Part I (c ) of Army Rules 37. Memoranda for guidance of officers (CO) placed at the end of 165 Appendix III to Army Rules 38. Para 448 of Regulation for the Army 166 39. Gist of Orders in r/o cases of Navy personnel dismissed by 169 2 Armed Forces Law Journal 2012 (1) . way of Summary Trials 40. Army Rules 22, 23 170 41. Air Force Rule 24 172 42. Sec 93 (2) of Navy Act 173 43. Regs 27, 28, 29 of Regulations for the Navy, Part II Statutory 174 44. Section 11 Res Judicata (Part I), Suits in General; CPC,ActV/1908 176 45. Order 2 (Frame of Suit) Rule 2, the First Schedule, CPC,Act V/1908 177 46. MoD letters of August, 2001, July 2004 & May 2011 - delegating 178 powers to Service headquarters in a variety of pension related subjects. 47. Section 2, The AFT Act, 2007 186 48. (i) Section 2, The Army Act,1950 } 186 (ii) Section 2, The Air Force Act,1950 } (iii)Section 2, The Navy act, 1957 } ------

REFLECTIONS ON - IMPACT OF COMING INTO FORCE OF ARMED FORCES TRIBUNAL (AFT) ACT, 2007

Introduction

1. On 8 Aug, 2009, Her Excellency Smt. Pratibha Devi Singh Patil inaugurated in the hallowed precincts of Vigyan Bhavan, New Delhi, the Principal Bench of the AFT in accordance with the provisions of the AFT Act enacted by the Parliament in 2007.

2. It was a truly historic occasion wherein the desire for an independent adjudicatory forum for the Defence personnel of the three wings of the Armed Forces envisioned first by the Hon’ble Supreme Court in its remarks while adjudicating the case of Priti Pal Singh Bedi vs. UOI in 1982 and later taken up by successive Central Governments was met, when the Founder Chairperson Hon’ble Justice A.K. Mathur along with eight Judicial Members (retired High Court Judges) and fifteen Administrative Members (14 retired Lt Gens and a retired Naval Commodore who was JAG, Navy) formally took up assignments in the duly constituted 15 Benches of the AFT, regionally distributed at New Delhi - 3 Benches, Chandigarh - 3 Benches, Lucknow - 3Benches and a Bench each at Jaipur, Kolkata, Mumbai, Chennai, Guwahati and Kochi.

3. The opening of the Principal Bench at New Delhi in Aug 2009 was followed up within months by the opening of other seven Regional Benches barring the one at Mumbai (which due to administrative reasons could be opened only on 09 Jun

Armed Forces Law Journal 2012 (1) 3 2011). Today, two years plus down the road, it can be stated with a great deal of assurance and pride that there is practically no pendency of cases inherited from (mostly) High Courts which were over approximately 10,000, going backwards to on an average of eight to ten years of pending litigation if not more in certain cases.

4. That the AFT, having disposed of most of the transferred-legacy cases, is only dealing with current cases now and disposing them in a matter of an average of six to eight months from filing of the petition/appeal to delivery of judgment, (which currently can only be contested in the Hon’ble Supreme Court as per the AFT Act), by itself qualifies to be ranked as an unparalleled feat of success in independent India. The contours of this success story, more importantly its long-term implications for the three Services, both serving and the larger beneficiaries i.e., the retirees/veterans, call for a detailed analysis in the nature of a management exercise. I would however, having been fortunately part of this stupendous venture as one of the founder members, like to leave behind my immediate report-card as short term recommendations for those who are likely to be associated with dealing with cases in the AFT in any capacity.

5. This handbook more in the nature of an aide memoire cum helpline for the prospective litigants and recommendations for consideration of the respondents, viz., the MOD and the three Services, is laid out for convenience into chapters titled as under:- a) Chapter 1- In-house Available Remedies to a Serving Officers/ Personnel below officer rank (PBOR) when aggrieved and before exhaustion of which they cannot approach AFT. b) Chapter 2- Exhaustion of Available Remedies to a Retired Officer/ Ex- Serviceman/ Next of Kin/ Legal Heirs. c) Chapter 3- Cause of Action and approaching the correct forum, AFT/ High Court/Supreme Court? d) Chapter 4- Categorisation of major causes of dissatisfaction, the likely causes giving rise to the same and the line of approach. e) Chapter 5- Filing of Application/Appeal and Presentation of material papers. Scrutiny of Counter/Reply statement of the Respondents and submission of a Point by Point Rejoinder, Reference Books and pertinent citations of /parimateria case laws/ established Dictums. 2 Armed Forces Law Journal 2012 (1) . f) Chapter 6- Entreaty to the Respondents, viz., the Ministry of Defence and the three Services. g) Chapter 7- Grey areas in ferment and that may need the Apex Court’s rulings. h) Chapter 8- Food for Thought. i) Appendix - Extracted citations and Policy letters referred to in the body of the Handbook.

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CHAPTER –I -EXHAUSTION OF AVAILABLE REMEDIES (SERVING PERSONNEL)

Types of Remedies

6. There are primarily two classes of remedies that the AFT recognizes of having been exhausted by an aggrieved person, the first by way of a statutory complaint to the MOD or to an authority delegated by the Government as such, in the Army/Navy/Air Force Acts and the second by way of appeals against disciplinary or other awards to authorities outlined in Acts or Rules or Regulations.

7. Statutory Complaint : In any issue giving rise to a cause of action seeking remedy, eg., pertaining to promotion, seniority, tenure curtailment or wrong-doing affecting career prospects etc, the applicant, prior to knocking at the doors of the AFT ideally should have petitioned the MOD as per relevant provision of the Army Act1 (Sec 26 for PBOR & Sec 27 for Officers, read with Para 364, Regs for the Army), Navy Act2 (Sec 23 for both Officers & Sailors read with Regulations 236 to 239 of The Regulations for the Navy, Part II, Statutory), or Air Force Act3 (Sec 27 for Officers & Sec 26 for Airmen).

8. Appeal against Awards: These can be divided under two classes, viz. Disciplinary awards by way of Court Martial or Non-grant of Disability Pension by way of constituted Boards of Specialists for the purpose of grant of such awards. In the former case, provisions exist in the Army/Navy/Air Force Acts for a person who has been tried and sentenced, to appeal by way of pre and post confirmation petition to authorities specified in the respective Acts. However it has been experienced that the aggrieved persons, particularly Army jawans of a lower educational background have not been careful in cogently retaining documents provided 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

Armed Forces Law Journal 2012 (1) 3 appeal at all. Coming as a relief to them, the AFT Act, as enacted deals with such an appeal against court-martial awards under Sec 154 of the Act as an original appeal and therefore it is immaterial whether a person has exhausted the remedy open to him under the relevant Army/Navy /Air Force Act prior to seeking relief by way of an appeal against disciplinary awards.

Time Stipulation

9. As per sections 215 and 225 of the AFT Act, any person who has not got a remedy within six months of his complaint/appeal against awards to the MOD, can file petition before the Bench of the AFT, within whose jurisdiction his / her case falls. He/ she can also file petition against an unsatisfactory reply to his statutory complaint/ appeal against award, within six months of such a reply having been received. Notwithstanding the six months stipulation as mentioned in complaints/ appeals, either not replied to or reply received unsatisfactorily, should a person have a grievance which has arisen three years prior to the operationalisation of the AFT Act, he can have his petition entertained , if he can satisfy the Tribunal Bench that there was sufficient cause for the delay. In the case of the Principal Bench in New Delhi this date of reckoning would be 7 Aug 2009, the date of notification in the official gazette and in the case of the Chennai Regional Bench, the date would be 21 Oct 2009, and so on in respect to other Benches as and when they were notified.

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CHAPTER 2 - EXAUSTION OF REMEDIES - RETIRED OFFICERS/PBOR AND THEIR KIN

10. Record Offices in the case of Army PBOR and AG’s branch in the case of officers is the nodal agency for approaching on any matter concerning pensionary benefits and service matters of a personal nature. Ideally, a person should write to such authorities before approaching the Tribunal. In fact Regulations 3686 & 3696 of the Regs for the Army can be referred to wherein necessary provision has been made for retired personnel to formally seek clarifications through the offices of the Rajya Sainik Boards/ and seek relief thereby, prior to approaching the AFT. Central Record Offices at Delhi and Mumbai respectively can be approached in the case of Air Force and Navy PBOR and their personnel branches at New Delhi for officers.

11. Once again, like in the case of serving personnel, should there be no satisfactory remedy provided within six months of having made the request/plea, retired personnel have the doors of the AFT open to give vent to their plea in the prescribed format of an application. Due care must however be taken to send their pleas to the 2 Armed Forces Law Journal 2012 (1) . authorities at the correct addresses and by way of registered post and proof of delivery/acknowledgement must be available to confirm its receipt by the respondent(s) and thereby justify exhaustion of the remedy.

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CHAPTER 3-CAUSE OF ACTION: APPROACHING THE RIGHT FORUM (HIGH COURT/SUPREME COURT)

Salient Differences with Central Administrative Tribunal (CAT)

12. The AFT Act, by an express provision in sec 14 (1)7 of the Act, confers on the AFT exercise of all the powers, exercisable in relation to Service matters (itself defined in sec 3 (o) of the AFT Act), hitherto exercised by any Court in the country, except the writ jurisdiction which continues to be vested in the Supreme Court and High Courts under articles 226 and 227 of the Constitution.

13. The above provision, when read with sec 308 of the AFT Act, which lays down the appeal provision against any order of the AFT only at the doorstep of the Hon’ble Apex Court, speeds up the litigation time by placing its superintendence only at one level above, that of the Hon’ble Apex Court.

14. Otherwise modeled on an already well established similar forum, viz. CAT, the above provisions however built into the legislative framework of the AFT Act, frees AFT from the burden of the former, in which no early end to the litigation chain is in sight, when, despite CAT having been empowered with jurisdiction as a court of first instance, on the basis of the famous dictum in L. Chandrakumar vs. UOI, 1997 (3) SCC 261- its decisions are challenged at High Courts and subsequently are challengeable at Supreme Court.

15. With regard to challenging policy letters of the Government, the Chennai Regional Bench has held the view that despite the judgment of Hon’ble Apex Court in L. Chandrakumar vs. UOI (supra), the specific reference to exclusion of writ jurisdiction exercisable by High Courts under Art. 226, as built into Sec14 of the AFT act, categorically forbid the AFT Bench to admit such challenges. This view has however not been followed in a number of judgments rendered by some other Benches of the AFT including the Principal Bench and it is hoped that march of law with perhaps a reference to and/interference by the Hon’ble Apex Court would clarify the issue in course of time.

16. The AFT is enjoined to adjudicate on and interpret existing policy framework towards ensuring equity and fair-play without discrimination on the part of the

Armed Forces Law Journal 2012 (1) 3 implementers of such policies. Sec 14 (5) of the AFT Act empowers the Benches of the AFT with very wide powers, in specifically mandating the AFT Bench to decide both questions of law and facts that may be raised before it.

Cause of Action

17. In therefore, deciding to approach a Bench of the AFT, having exhausted available departmental/institutional remedy open to him/her, an applicant/appellant, having made sure that his/her case is not hit by limitation of time, must be clear that he has a personal issue at stake and should feel aggrieved by a faulty or a skewed interpretation of existing order(s) on the relevant issue that has led to a complaint/hurt/monetary loss etc, needing alleviation/ redressal either not provided for or unfairly rejected by the authorities / respondent(s). This dissatisfaction / discrimination would provide the necessary cause of action. A case can be legitimately made out expressed as relief(s) being sought (Para 8 of the standard Appeal/Application format).

18. On the other hand, we at the Chennai Regional Bench have held that, should a policy letter or a rule position expressed as a letter or an instruction or an order be applicable to a class of persons as a whole eg., Promotion policy for NCOs and CR, Discipline criteria contained say in an Army order or an Air Force regulation or a Navy instruction stand in the way of an applicant and not its implementation by the authorities to the personal disadvantage of the applicant(s), it cannot form the basis of a cause of action before the AFT but may be challenged in a High Court or the Supreme Court, which under the writ jurisdiction vested in them under the Constitution and after examination of the case can pass suitable orders for either amending/modifying the impugned policy/instruction or to strike it down on grounds say of discrimination or bias. Though, other Benches of the AFT have held that the Tribunal is fully competent to examine the legality of policy matters also.

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CHAPTER 4 - MAJOR CAUSES GIVING RISE TO RELIEFS BEING SOUGHT AND SUGGESTED LINE OF APPROACH

Disability Pension Claims

19. Undoubtedly the single biggest reason of dissatisfaction relating to all three Services is the mechanical and unsympathetic treatment at the hands of authorities dealing with processing of claims arising out of non-grant of disability pension on grounds of non-attributability to service life/conditions or in reducing the 2 Armed Forces Law Journal 2012 (1) . percentages of disability below acceptable (erstwhile 20%) percentages that qualify for grant of such a pension. Out of over 550 cases disposed of by the Chennai Regional Bench (prior to 10 Dec 2011), 86 cases pertain to awards on account of disability pension and of these decided cases, 28 (+ 1 Invalid Pension) stand allowed in favour of the petitioners.

20. Ever since the operationalisation of the AFT, and in fact as a result of certain scathing remarks by Hon’ble High Courts, notably Delhi and Punjab & Haryana High Courts and the Apex Court which coincidentally preceded the formation of the AFT, the Ministry of Defence (MOD) has been forced to introspect its orders and procedures so as to reduce substantially the lingering trauma faced by scores of litigants in seeking to literally strive for a life of dignity as opposed to eking out a life of subsistence! As a result it may not be useful to dwell on past cases which stand decided or maybe are in the last leg of litigation at the doorstep of the Apex Court. I shall therefore only enumerate the current state of this `cause of action’ which will remain foremost on account of unfortunate but inevitable discharges that would continue to occur on account of exacting physical standards required of a serviceman not only at the entry stage, in the initial period of training prior to commissioning as an officer or taking oath as a soldier but also subsequently in service, physical fitness being de-rigueur to service life.

21. The current status of and rule position relied upon by the MOD and the Services which are the respondents in defending claims for denying disability pension as suitably interpreted by recent developments on the grant of disability pension awards are as under:- a) Initial medical screening at the time of recruitment as soldier/air warrior/seaman at best can be general and unlikely 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 examinations are more detailed and yet it may not be possible to conclusively put the officer trainee cadet through all the specialists. In the event therefore, during training, should the invalidment of an individual be as a result of failing to measure up medically, by lack of requisite attendance and/or passing of mandatory physical proficiency tests, during the permitted period of pre-oath taking or commissioning (despite grace periods) or, due to prolonged sickness then the individual is discharged as not being able to make an efficient soldier in accordance with statutory provisions by way of relevant Army Rule/Air Force Rule/ Naval regulation. b) On the other hand, attributability to or aggravation by service conditions, being a necessary pre-requisite to grant of disability pension is generally granted to

Armed Forces Law Journal 2012 (1) 3 bonafide injury related cases. Injury reports and Court of Inquiry proceedings are particularly relied upon to attribute injury to service conditions, if the injury is sustained while in performance of officially sanctioned duties, such as organized physical or recreational activity. There has been a long held view that a serviceman when on casual leave, which as per leave regulations is treated akin to being on duty for certain documentation purposes, should automatically get the benefit of attributability and awarded the recommended disability pension and on the flip side of interpreting this regulation, a person on annual leave stands ineligible to be considered as being on duty and hence denied disability pension, even if the injury was purely accidental while being on authorized and sanctioned annual leave. Over a period of time with march of law, and based on favourable judgments from certain Courts, the authorities had given the benefit of doubt of attributability in cases that had a direct continuing causal connection with travel to and return from leave, eg., an injury sustained due to a fall from a train while returning from leave was treated as qualifying for the grant of disability pension. The government apart from considering the limited extension of interpretation of duty as mentioned, has however been loath to concede to a plethora of favourable judgments passed by various High Courts in favour of injured servicemen while being on annual and casual leave and a number of Special Leave Petitions (SLPs) are pending in the Hon’ble Apex Court against these judgments. Recently (on1-4-2009) the Hon’ble Apex Court9 in dismissing a Civil Appeal in UOI vs. Gurmit Singh Butter has upheld a landmark judgment passed by Hon’ble Punjab & Haryana Court9 in Gurmit Singh Butter vs. UOI, 2000 (3) RSJ, that a service personnel on leave of absence of any kind, be it annual leave or casual leave or furlough is to be considered on duty. However this landmark judgment would stand superseded by the judgment rendered on 15-7-2011 by the Hon’ble Apex Court in CA No. 4281/2006, UOI vs. Jujhar Singh, when it overturned an earlier judgment granting disability pension for injury sustained during annual leave by Hon’ble Punjab & Haryana Court on 4-1-2002 while dismissing UOI’s LPANo5/2002 on the subject. It is felt that the Hon’ble Apex Court was not informed of its own earlier dismissal of the Appeal in the case of UOI vs. Gurmit Singh (supra) and also other cases such as Madan Singh Shekhawat Vs. UOI and Joginder Singh Vs. UOI. Further the respondent in the latter case had earned a service pension on superannuation and was claiming a disability pension in addition, for the injury sustained while in service during a spell of annual leave, whereas in the case of Gurmit Singh he was invalided out without any pensionary benefits. c) The medical invalidment by a duly constituted medical board and called an Invaliding medical board or a release medical board, depending on whether a person is being retired/discharged pre-maturely or is being retired/discharged as a low 2 Armed Forces Law Journal 2012 (1) . medical category, is a pre-requisite for grant of a disability pension. AFMSF-16, the form used for the purpose has been modified by a newer form called Version-2002. A copy of this form on completion of the board is being given to the person subjected to the board soon after its completion since 2006 and this modified practice of giving to the affected person the result of his board has in a single stroke contributed to drastically reducing in fructuous litigious paper work on account of repeated claims being preferred and mostly rejected, when the affected person including officers remained blissfully ignorant of the medical /specialist officer’s opinion on the disability under which he is being sent home and whether it has been opined as being attributed to or aggravated by service conditions and the percentage of disability and for how long recommended by the board (generally for 2/5 years or for life). d) The single most important authority relied upon by the Services in adjudicating on disability pension claims is the Entitlement Rules for casualty pensionary awards ,1982, superseded by Entitlement rules 2008, referred to as Appendix II to the Pension Regulations. Extracts from this Appendix supplemented by the guidelines contained in Guide to Medical Officers (Military Pension), 2008, have been quoted at length in a plethora of judgments both for and against the fundamental question of whether a disease resulting in invalidment has come about, as a result of the same having been acquired in service or whether the stress and strain of service conditions have contributed to the worsening of the disease or is it constitutional which would have happened anyway eg., heart attack or cancer and the service condition has no role to play. A simplistic and a plain reading of the Appendix II provisions would suggest and quite rightly so that after the initial period of pre-commission / pre-oath taking training any occurrence of a disease would be on account of service conditions, bait due to environmental factors or climatic conditions or working conditions. In fact the benefit of doubt, if any on account of assigning attributability to service conditions, citing causal (this word is confused with casual by most people including at times in a number of judgments rendered, that it is the most confused word in the lexicon of all those dealing with the subject), connection to service work/workplace/ service routine etc, is mentioned in the Appendix as to be given to the affected serviceman, more so if the disability had surfaced/occurred in Field service conditions. This liberal interpretation of the benefit of assigning attributability of invaliding disease to service conditions, as contained in the Appendix II to Entitlement rules for Pensionary awards, is on the other hand sought to be negated by the concerned authorities by institutionalizing a procedure whereby the office of PCDA (P), Allahabad, is nominated as the sole arbiter of deciding on the opinion of the medical board including overturning attributability to negative and reducing recommended percentages and duration of

Armed Forces Law Journal 2012 (1) 3 disability. The coming into effect of the AFT , dictums laid down by the Hon’ble Apex Court10 on the primacy of the opinion of the medical boards on the award of disability pension in, UOI vs. Damodaran AV (Dead) through LRs (2009) 8 MLJ, 2011 (1) AFTLJ 27, 1475 SC, and in Om Prakash Singh vs. UOI, AIR 2010, SC 3557 and a number of liberalization measures announced by the Government, post recommendations of the 5th CPC have reduced substantially the backlog of pending cases related to disability pension awards and with the making available of the medical board proceedings in the form of an extract, to affected person on conclusion of the board itself and replacing the adjudicatory authority on the opinion of the medical board, from that of the PCDA (P) with that of the AG (for officers)/Record Office (for PBOR) /equivalents in Navy/Air Force, the system has become transparent and would contribute greatly towards removing any doubts on arbitrariness and thereby remove the major cause of action against hitherto `unseen’ awards. e) Notwithstanding what is stated above, particularly relating to recruits and young soldiers prior to completing 10 years of service (which entitles a serviceman to Invalid pension) and who are invalidated out on account of diseases considered as being neither attributed to nor aggravated by service, conditions and labeled as being constitutional in nature, we have a social problem which requires addressing. In our country a young man thrown out of the Army/Navy/Air Force without pension at ages varying from 20 to 30 years, needs some safeguards from the organization that legally cannot gainfully employ him. The Armed Forces personnel are also exempt from being legally provided with guaranteed employment by the employer since the provisions of sec 4711 of the Protection of Persons with Disability Act does not apply to the Armed Forces by notification11(i) of the Government . f) Another problem pertaining to denial of disability pension to such persons who voluntarily take retirement or discharge has been set right by a Supreme Court ruling12 which has rubbished the miscued interpretation of the official authorities by ruling that any low medical category (LMC) person who voluntarily retires from service of his own volition and is placed in a medical category lower than that when he joined the service, must be put through a duly constituted medical board(Invaliding/release medical board) and he will on discharge be entitled to the disability pension at par with those who are forced out. g) The Apex Court has also in a landmark judgement13 Rajpal Singh vs. UOI, dt. 07- 11-2008, INSC 1913, ruled that exercise of powers under Army Act 13 by the COAS, empowering COs to weed out low medical category personnel is ultra vires 2 Armed Forces Law Journal 2012 (1) . the Constitutional rights of an Indian citizen when done through a Release Medical Board. As a result, apart from recalling a large number of LMC personnel discharged post-Operation PARAKRAM the Army as also the other two Services have formulated a comprehensive policy of rehabilitating LMC personnel till they attain pensionable service. h) As has been mentioned earlier, passage of time, march of law and the Government’s own introspection coupled with amelioratory measures incorporated in successive Pay commission awards have all resulted in issuance of Policy14 No 1(2)/97/D(Pen-C), dt. 31-01-2001, which, apart from simplifying approach to grant of any type of disability pension has removed the minimum required 20% and broadly divided the percentages as up to 50%, 51-75% and 76-100%.

Discharge without Pensionary Benefits

22. Cause of action arising out of non-receipt of pension on completion of sufficiently long years of service(as per applicant’s understanding) yet falling short of the mandatory qualifying service of 15 years is another major reason for litigation at the AFT. Post 5th CPC, the government in Aug 2001, has increased the period of condonation of lack of qualifying service to earn service pension, to one year from that of the earlier 6 months (see sub-paragraph 56(g),Chapter 5 & Appendix, for letter reference). Government orders providing for 3 months rounding-off in respect of Invalid pension (now entitled after 9 years and nine months of qualifying service instead of 10 years, in case of non attributable cases)have also since been issued in 2011 (see sub-paragraph 56(g), Chapter5&Appendix32,for details). While these measures will help mitigate a few past cases, the circumstances under which a soldier pre-maturely get discharged either voluntarily without comprehending the later effects of having to sustain a family without pension, or is sent out by an insensitive establishment or a commanding officer seeking to `sort out a man’ will continue to prevail and such instances do provide for a justifiable cause of action.

23. Invariably it is seen that, certain errant young soldiers without a care so to say, being mostly unmarried do not understand the implications of accumulating red ink entries consequent to getting summary punishments mostly on account of either being OSL or AWL, inviting punishment for offences under sec 39 of the Army and Air Force Acts and sec 51 of the Navy Act or at times desertion under sec 38 of the Army/Air Force Acts and sec 49 of the Navy Act. Having collected more than 4 red ink entries/ equivalent criterion in the Air force/Navy, the person, now classified as a habitual offender makes him self liable to be sent out administratively after service of a show cause notice at the level of an officer of the rank of a Brigadier/ equivalent. There are an increasing number of HR guidelines/Policies for COs to

Armed Forces Law Journal 2012 (1) 3 follow to show compassion, particularly to those habitual offenders who have not got any punishment on account of being dealt with for offences dealing with moral turpitude or criminal negligence. Notwithstanding such internal orders and guidelines, there will always be cases sufficient in number, who would challenge their Administrative discharge orders at the AFT, because it is not the ‘couldn’t care less delinquent’ soldier who is knocking the doors of the AFT but his poor wife or parents with a large unsupported family that seek some form of financial support, as just payment for the services rendered by their husband or son.

24. So, in such cases what should be the line of approach of the person or his/ her counsel? There will be very little to dispute in the facts on record. In fact the respondents in their methodical and systematic manner of maintaining records will furnish a true picture of the circumstances of discharge, which we have found can be turned to the advantage of the petitioner whose own plea is more emotional than factual. We have in the Chennai Bench, disposed of a number of cases, on grounds of infringement of relevant provisions of law and thereby granting relief by allowing the petitions or suitably modifying awards in favour of the petitioners .We have found that, there are cases that have not been disposed of with clean hands, by the respondents, due to a variety of human failings. Even the paperwork which should conform to law and principles of natural justice is found wanting and therein lies the panacea for the aggrieved litigant. Some of the commonly committed errors, that standout in such ` bad discharges’ are as follows:- a) Show cause notice, is either not issued by the officer empowered to do so, or the discharge is effected without due consideration of the reply by the person who issued the show cause notice. b) Reason for discharge as mentioned in the discharge certificate varies from that of the sanction, eg, sanction obtained to discharge on grounds of ‘inefficient soldier’ after getting reply to a show cause notice, gets reflected in the discharge as against medical grounds, which renders it illegal because the latter would require an opinion of an Invalid/ Release medical board to support discharge. c) Sadly, it has been found that in cases of desertion, wherein a person has voluntarily re-joined his Unit, he has been charge-sheeted for desertion, which is against law, as it is well understood that desertion is distinguished from absent without leave (AWL) only on account of the motive and once a person who may have run away to avoid duty, voluntarily rejoins, irrespective of duration of absence, as opposed to being arrested or apprehended, he should have been dealt with for AWL/OSL, under sec 39 of the Army/Air Force Act and not sec 38. The damaging effect of being wrongly dealt with for desertion as against absent without leave is 2 Armed Forces Law Journal 2012 (1) . that on notification of the punishment in official records, this resultantly gets manifested in a break in service and service put in prior to desertion does not count for qualifying service for pension, unless the person thereafter serves in an exemplary manner, incurring no red ink entry for at least three full years The litigant remains ignorant of this record in his conduct sheet, and it gets to be known only and after he has been furnished a copy of the counter which the tribunal calls for after the initial notice is issued. In such cases therefore, the litigant serviceman has a fair chance of redressal if he were to call for records pertaining to punishment entries that led to the issuance of a show cause notice as a precursor to eventual discharge.

Denial of Family Pension to Widows/Next of Kin (NOK) of Missing Servicemen

25. A number of cases of widows or grieving mothers of soldiers declared deserters initially, and after the mandatory period of three years, notified as dismissed, have got the benefit of adjudication by the AFT in their favour by way of grant of Family pension, due to them.

26. The problem arises when having declared a person as a deserter his Unit fails to check with the person’s home whether his absence is known to and acknowledged by the NOK. We found in most cases, despite unambiguous instructions, apprehension roll declaring a person deserter is not sent to his home properly with acknowledgement received of the delivery of this report of a husband or son missing. The local police also over a period of time have grown indifferent to carrying out an investigation into such reported absence, by failing to physically visit the family of the soldier. The case thereafter gets to be treated mechanically by following the mandatory holding of inquiry after 30 clear days and declaring the individual as deemed to have deserted. The impersonal nature of handling such cases by the services is evident from the conclusive opinion of such courts of inquiry held to investigate desertion/AWL/OSL, which routinely declares the individual as a deserter, instead of declaring him as “a deemed deserter / missing”.

27. As per Government orders on the subject15,entitlement of Family Pension in cases of such persons declared missing, is to be given from the date of a FIR registered at the home or nearest police station or the date declared as missing ( a deserter), whichever is later. Since the NOK at home is never properly informed of the desertion they remain ignorant till an anxious query is raised by the NOK with the Unit. This query followed by more and more desperate requests are replied by the Record Office/ unit in a standard monologue to say that he has failed to turn up

Armed Forces Law Journal 2012 (1) 3 and he is accordingly declared a deserter. The sad part is that at no stage does either the Record Office or the Unit tell the NOK to register a FIR with the local police and follow up with the police on ascertaining the whereabouts of the missing soldier. Three years later, the person is struck off the rolls as dismissed and whatever running balance is in his ledger account, is sent to the NOK saying under Pension Regulations a dismissed person is not entitled to Pension. The rigid, bureaucratic and heartless attitude coupled with lack of knowledge of existing instructions, of registering a FIR with police as a pre-requisite for processing claim for Family pension at all levels of administration and a real-time dis-connect between a unit and its parent Record office results in NO one advising the wife or the parent of the reportedly deserted person to GO AND FILE A FIR , and with a copy of the FIR after a reasonable period of wait and after re-checking with the police, approach the Record office to claim family pension as per entitlement. Of course the same when granted involves taking a guarantee of return of the amount paid, should the missing serviceman re-surface.

28. In all such cases of missing persons, a cause of action for the NOK to claim family pension would automatically arise but the litigant widow/parent is advised to file a complaint with the local police the moment they suspect of something being amiss. Placing trust only on the Army to trace out and more importantly grant due entitlement due to the NOK is found to be misplaced since the Services unfortunately do not recognize that a person could have gone missing unless in war or while serving on the border. Having declared a person deserter, the services simply wash their hands off in a mechanical and statistical manner. So, the cause of action must be backed by reporting of the absence with the police by way of a FIR, in order to have a good case at the AFT.

Entitlement of Second Family Pension

29. CDA (P), Allahabad, has interpreted provisions contained in the Pension Regulations linked to Rule 5416 of the CCS (Pension) Rules, 1972, as amended to stop payment of military pension to widows of Service personnel who are re- employed in the civil after retirement on the demise of the pensioner/re-employed husband in case a pension is drawn from the civil government source.

30. There is no barber se on drawal of two pensions by a serviceman but drawal of the second pension by the family of a Government servant has been disallowed under the provisions of rule 54 of the CCS (Pension) Rules 1972 above with only one exception. The exception adduced as sub-rule 2416 to Rule 54 says that if the second pension from that of the late husband’s re-employer is part of Employees‘ Pension Scheme 1971 or 1995, (which are more in the nature of employee 2 Armed Forces Law Journal 2012 (1) . Provident Fund scheme), then the widow is entitled to military family pension as also the pension from the re-employer. The applicability of this beneficial measure in the government notification has however been made prospective from Sep 2001, the date when this was made effective from.

31. Tribunals have pronounced a number of favourable judgments to widows who fall into the above exception with the re-employer giving an appropriate certificate to the effect that the Family pension from the re-employer is as per the above exception provided for in sub-rule 24 to rule 54 of the CCS (Pension) Rules 1972. 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 government source.

Denial of Promotion

32. One of the common causes of action pertains to denial of the next selection grade rank and consequent benefits thereof of additional/enhanced service, back wages and enhanced pensions. The respondents rely on a well tested system of assessing a person with his peers of the same batch with application of common policy rules and guidelines relating to criteria in discipline, medical standards and annual confidential reports (ACRs).

33. Not much can be distinguished in the arguments advanced by litigants, between officer related cases or of personnel below officers rank (PBOR). In either case the petitioner approaches the Tribunal only after a final rejection of his statutory complaint. These arguments in all cases have rested on being biased and subjective by reporting officers in the chain of CR reporting, starting from the Initiating officer, to the reviewing officer, to superior reporting Officer and in certain cases to next superior Reporting Officer.

34. Scope of judicial review in cases of rejection of statutory complaints related to non-empanelment is generally limited. Hon’ble Apex Court has normally declined to interfere with the selection process of the Army so long as there is no apparent bias. In UOI and ors vs. Lt. Gen. R S Kadyan and another, (2000) 6 SCC 69816A, the Apex Court while rejecting the plea of Lt. Gen R S Kadyan for consideration for Army Commander has at great length delved into the differing interpretation of the principle of merit-seniority-selection in its application to different selection boards ie. SB-1, SB-2,SB-3,SSB and to the Army Cdrs. In rejecting the plea of Maj Gen Lakhwinder Singh for promotion even though recommended favourably by the collegiums consisting of the COAS and VCOAS/Army Cdrs, in Lakhwinder Singh vs. UoI and ors, (2008) 7 SCC 64816B, the Apex Court has said that under sub- paragraphs, 108 (d) and 108 (e),16C for the Regs for the Army 1986, there

Armed Forces Law Journal 2012 (1) 3 commendations of selection boards are not binding on the approving authority, viz. COAS/the Central Government. In the case of Surinder Shukla vs. UOI and ors, (2008) 2 SCC 64916D, the Apex Court while reiterating the limited powers of judicial review in promotion related cases has also held that unless contemporaries alleged to rank lower in merit (and selected in the impugned board),are impleaded in the main petition as respondents , the case of the petitioner will not stand judicial scrutiny.

35. There has been a noticeable shift towards meaningful relief now available to a petitioner, after the AFT replacing the Hon’ble High Courts as the court of first adjudication, in case an apparent aberration or a patent inconsistency is seen in the pattern of reporting in the impugned CRs. This is so because the AFT Act empowers the Tribunals to look at and adjudicate on facts in addition to examination from the point of law alone. The AFT cannot however, on the basis of aberrations apparent in the examination of the CRs order any promotion but can direct the respondents to subject the petitioner to a fresh process of selection after setting aside aberrations,as stated such in the judgment of the tribunal.

36. The calling for the relevant CRs after exhausting of statutory remedy and seeking their examination for inconsistency/bias /subjectivity, should form the basis of a petition seeking redressal on account of non grant of promotion/non empanelment. Grounds could also arise on account of a faulty interpretation of an existing policy, in which case any apparent resultant discrimination could be highlighted including impleading similarly placed persons who have apparently been the beneficiaries (as a result of the impugned policy) as parties in the application

Appeal against Sentence of Dismissal & / Verdict of Courts Martial

37. Next only in numbers to the disposal of cases seeking disability pension, the AFT has perhaps disposed of the maximum cases pertaining to appeal against verdicts of courts martial and in the case of the Navy against summary trial awards wherein dismissal has been awarded as a punishment. One of the distinguishing features of the provisions of the AFT Act has been the overriding powers vested in the tribunals against any infirmity or illegality found in the conduct of the trial at courts martial and summary trials (involving award of dismissal only). Lack of such powers with Hon’ble High Courts and Supreme Court, of mitigating the sentence or ordering re-trial, and from interfering with the court martial process at any stage, when hither-to-fore, similar appeals were being made to such forums, but under the writ jurisdiction, had unfortunately placed the august courts in a difficult situation of not being able to render immediate relief to deserving litigants, but instead to refer 2 Armed Forces Law Journal 2012 (1) . the cases back to the respondents for re-consideration after pointing out the illegalities involved.

38. In a large Army such as the Indian Army, as also in a comparatively larger Air force and Navy, when compared to the world militaries, the number of litigants appealing against injustices done, in courts martial, can be considered insignificant, thereby giving comfort in the well oiled military system of equitable dispensation of justice being the hallmark of Indian Armed Forces, however, the aberrations noticed in some of the cases dealt with by tribunals of the AFT, do call for a serious introspection and a few corrective actions on the part of the Services in such cases wherein natural justice has been compromised. I shall cover these in the form of recommendations later in Chapter-6 of this book and confine myself herein only to the method of approaching the AFT, with an appeal against such verdicts involving dismissals. The cases coming up for adjudication can be looked at from three categories for ease of understanding and therefore of dealing with them.

39. Proceedings of General and District Courts Martial: 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. Sitting alongside my learned and vastly experienced brother Hon’ble Justice A.C. Arumugaperumal Adityan in the Tribunal, I cannot however say the same when it comes to arriving at findings based on the case of the prosecution which is meant to prove beyond any reasonable doubt the charges framed against an accused, on the weight of the evidence brought forward at the trial, which is the litmus test in all criminal trials. The Indian Evidence Act 1872, applies mutatis mutandis to military trials. It is my observation that the work ethics of the services in relation to dealing with disciplinary cases involves firstly in speedily bringing an accused to trial and thereafter to conclude the trial with least amount of delay. While speed is essential, the services need also to ensure that the conduct/proceedings of the courts martial are free from any attempt to deny full opportunity to the accused to present his case and the procedure adopted does not involve taking recourse to any short cut particularly in garnering and presenting as much corroborative evidence as is possible so as to have an ironclad prosecution case. In some of the cases that have been adjudicated by the AFT unfortunately, these two aspects have been found wanting. In a case resulting in the acquittal of a soldier undergoing sentence of imprisonment in a civil jail on a charge of murder as per Army Act, sec 69 read with sec 302 of the IPC, before the Principal Bench of the AFT, in TA N0.147/0917, Mulk Raj Singh vs. UOI, Hon’ble Justice A.K. Mathur, Chairperson of the AFT, while delivering the judgment has inter alia observed at these shortcomings to be as a result of, inherent lack of training in receiving and examining evidence on the part

Armed Forces Law Journal 2012 (1) 3 of officers assigned to serve as Presiding Officers or Members of Courts Martial. In yet another landmark judgment in Lt Col SS Bedi vs. UOI, in TA No246/0917(i), by the Principal Bench, AFT, Hon’ble Justice A.K. Mathur had to acquit a dismissed officer charged under sec 60 of the Arms Act read with Explosive Substances Act, 1908, for want of corroborative evidence. Some of the shortcomings therefore, that could be looked at for providing reasons for appeal are as follows:- a) Verdict based only on the alleged confessional statement of the accused provides reasonable ground for appeal. The respondents in typical military style in their eagerness to quickly put an end to an ongoing case, are likely to fall prey to availing the first opportunity of either extracting a confessional statement so called voluntarily or coerce the accused to accepting their version, not out of any malafide intent but with the eagerness to show progress in dealing with a disciplinary case with alacrity, considered a military virtue. This leads to violating the cardinal principle of giving a chance to the accused to be heard properly, by treating him as not guilty, once he is to be subjected for a trial. There is no room for any short cut in a trial since the verdict and resultant sentence is not a mere admonishment but a judicial indictment which is subject to judicial scrutiny. In any case even from the point of view of passing muster, no confessional statement taken with whatever amount of transparency, unless it is taken in the presence of a civilian judicial magistrate will be admissible as evidence in a criminal court. b) Conviction based on non corroboratory evidence and/or circumstantial evidence alone is the other ground which again given the hurry to dispense justice is a not so uncommon a phenomenon in military trials. c) The third and perhaps a less common aberration but a serious one which at times has gone unnoticed during the court martial is an infringement of the statutory provision itself eg, in Army courts martial, in terms of Army Rule 34(1)18,an accused has to be given at least 96 hours(24 hours on active service) after the charge sheet is served on him and before he is arraigned in front of the court martial. Failure to comply with this mandatory requirement resulted in the Hon’ble Apex Court19 acquitting the respondent in the case of CA No.6181/2002, UOI vs. AK Pandey. It was also held in the same case that pleading guilty in such a situation would be of no consequence.

40. Appeal against summary Court Martial awards. This is applicable only to Army personnel, there being no provision in Air Force and Navy Acts for this type of a court martial. In a large Army such as the Indian Army, wherein the institution of a Commanding officer is the foundation on which the entire disciplinary edifice of the army is built, summary court martial or SCM as is commonly referred to empowers 2 Armed Forces Law Journal 2012 (1) . a CO with the single most potent power over his command excepting over officers. The CO is conferred with powers of dismissal and imprisonment for a period of one year against Non commissioned officers (NCOs) and soldiers and award of severe reprimand to Junior Commissioned Officers(JCOs).Since a period of imprisonment of three months or more entails such imprisonment to be carried out in a civil jail, it is common practice to get rid of habitual offenders and bad hats on commission of a cognizable offence by award of a sentence of imprisonment for a period of three months and dismissal from service. It is this punishment of dismissal awarded by SCM which has given rise to maximum number of litigation on account of appeals against courts martial awards. This is so because, as a consequent result of the award of dismissal a soldier is deprived of all pensionary benefits as per pension regulations. Having been a CO myself and having experienced every rung of higher command appointments up to a GOC-in-C, I can say with all humility, that, now that I am required to adjudicate along with my learned and vastly more judicially experienced brother, on all such cases that have come up before us for relief, we’ve had no hesitation, unless the person has been charged for offences involving moral turpitude, to modify the sentence of dismissal alone to that of discharge, to permit the soldier or his NOK to get pensionary /terminal benefits for service rendered. Hon’ble Supreme Court20 had in Ex Naik Sardar Singh vs UOIand ors, (1991)INSC131/1992AIR417/1991SCR(2)696, ruled by way of a dictum that in cases where the quantum of punishment alone is found to be excessive then dismissal modified to discharge would serve the ends of justice. I shall, in subsequent Chapter-6, re-visit this award of dismissal with unfortunate consequences of denial of terminal benefits, since there is no provision to award a more just award of `discharge’ in the scale of punishments awardable by courts martial in sec 7121 of the Army act. Reasons stated in paragraph 39(a) to (c) above, providing cause of action against perceived illegality in conviction and award of sentence of general courts martial would equally apply in the case of SCM. In addition, some of the other reasons peculiar to SCM could be as follows:- a) Form used-Appendix III, Part1 (C) 22 and Memoranda 23 for the guidance of Officers Concerned with Courts Martial: Since most convictions are based on a plea of guilty, and the same is challenged by the litigant as having been coerced into giving, or taken without knowing the implication, we find that invariably while challenging the vires of the SCM, non compliance of Army rule 115(2) is a major ground for challenge. We also find that in most cases the litigant’s counsel is not able to prove the infringement to law, even though malafide intensions may be obvious in the facts of the case. These would be revealed on a detailed examination of the manner of conduct of the SCM proceedings by the CO of the accused. There are detailed guidelines and specific instructions for the CO to follow in the

Armed Forces Law Journal 2012 (1) 3 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 CO, the manner of recording of the summary of evidence is given in great detail. The form to be used at the SCM is a speaking form by itself. More often than not in typing a similar form in lieu for use at SCMs, infringements take place since the CO does not meticulously follow the word by word instructions when he either uses a form in lieu, which may not provide for adequate space for filling up relevant spoken matter or types separately on a piece of paper, inadvertently omitting certain portions from the original form. The most important safeguard for an accused in a SCM, is the summary of evidence. In cases wherein the accused has pleaded guilty, apart from his signature which is required to be taken by the CO, at the appropriate place on the form being used at the court martial, the CO is required to read out the full summary of evidence in the language in which the accused understands, which means in Hindustani or native language. This exercise in itself will take a certain amount of time say at least one hour even in cases when the summary of evidence consist only a few pages. From a perusal of the form, when one discerns that the SCM has been completed in 30 minutes, it would be reasonable to surmise that there has been a short cutting of the procedure, showing a pre-meditated trial, and therefore a lack of application of mind. In such cases wherein a definite pre-meditated course of action is revealed, chances of a disproportionate punishment being awarded also increase and this can be used to advance arguments in favour of the litigant. b) Caution against award of sentence of Imprisonment in excess of three months and Dismissal. Paragraph 44824 of the Regulations for the Army imposes on a CO, a caution, notwithstanding liberty to award any legal punishment, in terms of restricting the punishment in a SCM to less than three months and refrain from awarding dismissal for sake of getting rid of a bad hat, for most military offences and particularly in the case of first time offenders. These regulations though non statutory are very much supplemental to the relevant statutory provisions which they amplify. Any violation of these cautionary instructions will provide a strong case for litigants to pray for relief of setting aside a disproportionately excessive punishment, if it is contrary to the guidelines for COs holding SCM, contained in this paragraph of the Regulations for the Army, 1962, even though non-statutory.

41. Appeal against Summary trial awards of Dismissal in the Navy: The third category of cases that the AFT has been required to adjudicate on, pertains to award of summary dismissals under the provisions of the Navy Act 1954. For the record, AFT Regional Bench, Chennai has held the summary trial proceedings in all five cases25 transferred to the tribunal from the Hon’ble Hyderabad High Court, wherein sentence of dismissals have been awarded, as illegal and ordered de-novo trials in 2 Armed Forces Law Journal 2012 (1) . three cases, withdrawal in another case with favourable indication from the respondents for grant of a discharge and allowed the last case with a notional discharge date to permit the deceased sailor’s wife to get Family pension. In disposing of the last case TA197/10, RK Mishra/Neelam Mishra vs. UOI, on 29-04- 11, in which my learned brother Hon’ble Justice A.C. Arumugaperumal Adityan rendered the judgment, I observed that there are clearly laid out set of rules and procedure in the Army and Air Force Acts by way of Army Rules 22 & 2326 and Air Force Rules 2427, with regard to hearing of a charge in front of a CO. These make it mandatory for the accused to be given opportunity to cross examine witnesses and for the recording of a summary of evidence to be ordered by the CO. The rules spell out clearly that at the summary of evidence the accused will be present throughout with opportunity to cross examine witnesses deposing against him. The corresponding provisions that empower a CO in the Navy in accordance with sec 93(2)28 of the Navy Act 1957 and relied upon by the respondents are Regulations 27, 28 & 2929 of the Regulations for the Navy, Part II, Statutory. Regulations 27 & 28refer to carrying out of investigation and taking down of evidence by officers lower in the command echelon to that of the CO. Regulation 29, pertains to the investigation by the CO and Regulation 29(4), which is extracted in the Appendix chapter, is also extracted herein and reads as “If the punishment to be awarded is likely to be a warrant punishment requiring approval of a superior authority, a Summary of Evidence given by the witnesses shall be recorded”. We found to our utter astonishment that either the preliminary investigation stage or at the stage of investigation by the CO, there is neither any de-jure mention of an opportunity to be provided for cross examination in the Regulation and nor de-facto it is practiced. Furthermore, the summary of evidence as understood by the respondent Navy officials is a SUMMATION of previously recorded evidence (of course without an opportunity of cross examination provided to the accused)and NOT a summary of evidence to have been freshly recorded as a consequence of the hearing in front of the CO, as stipulated in the Regulation 29(4) extracted above. The CNS, in confirming the award of a sentence of dismissal in each of the five cases disposed of by the Chennai Tribunal and referred to earlier, has based his decision on evidence which is ultravires and against principles of natural justice and therefore all such dismissals are liable to be set aside.

CHAPTER 5 - FILING OF APPEAL/APPLICATION AND PRESENTATION OF PAPERS, SCRUTINY OF COUNTER/ REPLY STATEMENT OF THE RESPONDENTS AND SUBMISSION OF POINT BY POINT REJOINDER TO THE SAME, Reference Books, Placing Pertinent Citations of Pari materia Case Laws/established dictums/government notifications

Armed Forces Law Journal 2012 (1) 3

Filing Procedure

42. AFT (Procedure) Rules and AFT (Practice) Rules have simplified the manner of filing of an original application or an appeal as also miscellaneous applications in support of or amplification of the main application/appeal. The various forms to be used are also easy to comprehend for a lay person and self explanatory with minimum and only essential legal terminology being resorted to, which again is explained in the sections on definitions. Application can be filed in person with the Registrar or sent by post with a demand draft or a postal order for Rs.250/- .Even this amount can be exempt in case a person is so indigent that he cannot afford this amount. The essential requirement is for the application to be made in triplicate, divided in two compilations, viz. , No1 compilation with the application and the impugned order and compilation no.2 with all the accompanying material papers with an index of documents, affidavits, annexure etc., tied in a paper book form.

43. At the end of AFT (Procedure) rules, there are three forms. Form-I, being the most important, is the form or the format to be used to file the application/ appeal. The 12 paragraphs against which an applicant has top refer his application/appeal are easy to follow, and do not need the assistance of a counsel much unlike a writ petition, hither-to-for soldiers had to fill in a High Court as a court of first appeal.

44. 29 forms placed at the end of AFT (Practice) Rules are mostly for the use of the Registry but a perusal of the same by the applicant is recommended so that he is reassured of the safe custody and chain of movement of the applicant’s case file.

Presentation of Papers

45. The language of the Tribunal is English. All papers including the application/appeal are required to be typed in double space on full scale A4 sized papers. At the discretion of the Tribunal, however papers can be submitted in Hindi with attested English translations. The Tribunals are also not rigid on insistence on A-4 sized paper, since, the practicing lawyers are used to filing petitions on legal size papers.

46. My experience of handling cases filed in the AFT after its formation when compared to the transferred cases from High Courts pertaining to the pre-AFT days, is that the simplified and formatted system in presenting an applicant’s case, as prescribed for in the AFT (Procedure) Rules and the AFT (Practice) Rules, makes it easier and lucid for the Members, while going through the pleadings, to follow the case sequentially and in case the applicant takes pains to make the index to the 2 Armed Forces Law Journal 2012 (1) . documents placed inside in a chronological manner, it would make for easier comprehension since following facts sequentially and fitting them in a cogent pattern, fits in well with a reasoned judicial process.

47. The AFT act clearly states that the tribunals while deciding cases will be governed by the principles of natural justice. Notwithstanding the principle of natural justice being the altar on which the AFT judgments will rest, the detailed procedures, conduct and rules shall however be governed by the Indian Evidence Act 1872, and be guided by the Code of Civil Procedure ,1908 (CPC), which is applicable to all the Indian Courts. Most service personnel particularly the officers are fairly familiar with the basic application of laws of evidence, since the courts- martial are also mandated to follow the Indian Evidence Act 1872. I would however like to highlight two sections of the CPC that negatively attract litigations at the admission stage itself and may require some legal advice so that the application or appeal is not found non-maintainable. These are explained as under:- a) Sec11, CPC, Res Judicata 30 . Under this provision of law, an issue already decided by a competent court between the same parties, cannot be re-opened in another court/Tribunal, except by way of appeal. While this provision of law has hit a few of the transferred cases in the AFT, it is not likely to attract fresh cases being filed , nevertheless, it is worth checking prior to filing an appeal/ application. b) Order2,Rule2,First Schedule, CPC 31 . A suit filed for relief in a Court, must include the whole of the claim that a plaintiff/applicant is entitled to make in respect of the cause of action. This is an extremely important provision which actually is based on common worldly wisdom to make an all-inclusive claim, rather than make a narrow claim, which under this rule precludes an applicant from claiming for subsequent relief for portions omitted earlier. A common example is a claim by an unfortunate recruit restricted to disability pension only (since he was sent out for missing training on account of continued illness), who was discharged as being found unfit to become a soldier. On detailed examination of documents, it is found that the recruit is illegally discharged as he had not missed all his chances for mandatory tests. He therefore is in fact eligible to make a claim for re-instatement. Since he failed to include re-instatement as a relief, on dismissal of this claim for disability pension, he is barred to ask for re-instatement subsequently. In practice however, the Tribunal Bench members may, in such cases reveal their mind to the applicant and persuade him to withdraw the initial restricted claim and prefer a fresh claim so as to include all possible reliefs, eg, re-instatement/ rehabilitation/any pension and consequent benefits. The mantra is to seek for a broad range of possible

Armed Forces Law Journal 2012 (1) 3 reliefs, since natural justice will get the litigant all his dues, should he be deserving of the same!

Scrutiny of Counter/Reply Statement of Respondents and Submission of Rejoinder

48. Counter/Reply statement of the respondents is the KEY to resolving the issue(s) rose by the applicant and provides the clinching arguments both on facts and on points of law and must therefore be studied by the applicant/his counsel minutely. I can, without any hesitation, say that cases before the AFT have in the main been decided by the facts stated in the counter and accompanying documents in the Respondents’ counter statement. In fact I would largely credit the military system of systematic and efficient record keeping as coming to the assistance of the petitioners before us. We’ve found that in most cases of retired personnel, the prayer/ relief sought in the pleadings is at variance with the facts as stated by the Respondent. This is perhaps because the applicants invariably recount incidents from memory and are at best able to substantiate their case with only a few supporting documents apart from the impugned letter(s).These documents are the only ones which the applicant has had access to and therefore not being a complete and coherent record of the facts purported to support his case, his case is either flawed or tends to be based more on conjecture or half-truths and more emotional in content rather than factual. Two examples I would adduce to bring home this extremely important point. Disability pension cases are the most glaring ones, particularly prior to 2006 when the petitioner was not given a copy of his own Release/Invalid Board proceedings, AFMSF-16.His reliance on his claim was only based on what the concerned Record officer told him, which in turn was based on what the PCDA (Pensions), Allahabad , decided on perusal of the AFMSF-16.Once the initial claim is rejected, the same is routinely challenged twice more by the applicants, the final time to what is called the Defence Minister’s committee of Final Appeal but sadly without the applicant being furnished a copy of his own medical Board proceedings. His challenge unfortunately never gets value added, because on the misplaced grounds of confidentiality, his own medical board proceedings are not given to him[since 2005 this situation has thankfully been redressed (see earlier paragraph 21(c),Chapter4,supra].It is only when the Tribunals asked 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 aware of the remarks of the specialist and the board of doctors’ opinion. That the applicant stood vindicated in most cases is testimony to the important aspect of seeing the respondents’ reply statement with all connected documents and altering the final argument supported by case laws to justify the plea made. 2 Armed Forces Law Journal 2012 (1) . 49. Another common instance wherein examination of documents enclosed with the respondents’ counter statement, may necessitate change of the plea itself, is the reason assigned in the discharge certificate .We’ve found that the discharge certificate, inadvertently misplaced by the applicant but produced along with the respondents’ counter statement mentions the reason for discharge as being under Army rule 13(3)III(iv), viz., as being unfit for continuation in service, but the legal requirements of serving a show cause notice at the level of a Brigadier/equivalent rank officer and due consideration of the same are not met, making the discharge itself invalid. The applicant in such cases unless he has prayed for a broad redressal, is required to amend his prayer in light of facts hitherto not known to him.

50. There have also been cases where the respondents have discharged the applicant on medical grounds without holding an invaliding or a release medical board, against relevant provisions of Army rule, thus rendering the discharge technically invalid. This fact only comes to light when the respondent is unable to produce the medical board proceedings, to support the reason for discharge in this case mentioned as ‘due to medical reasons, Army rule 13(3), III (iii)’.

51. The importance of perusing the counter with 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 Navy, wherein dismissals awarded are under challenge. Unfortunately, the appellant has only a few documents that too disjointed, in his possession. The reason is obvious. In the Navy’s case, being a summary disposal on a warrant form, the Navy does not even consider obliged legally to give the warrant and details thereof to the appellant. In the case of the Army, while it is enshrined in the Army Act to give a copy of the summary court martial proceedings as also the preceding summary of evidence, the Unit level atmosphere of shunning a person implicated in a trial invariably results in an unhelpful attitude resulting in miscarriage of the rights of a person accused and/or convicted thereby resulting in the person dismissed without having the benefits of all the documents he is supposed to be given by the respondents. The glaring omissions and aberrations that can give rise to a cause of action against dismissals awarded by a summary court martial in the case of the Army or a summary disposal by the CO in the case of the Navy have already been covered earlier in Chapter 4, paragraphs 40 and 41respectively (supra).What is important is for the appellant to call for and peruse minutely the proceedings of the summary court martial/summary disposal including the summary of evidence and prepare his defence cogently.

Armed Forces Law Journal 2012 (1) 3 52. A rejoinder prepared by the applicant/appellant after perusal of the counter with all connected documents and placed before the tribunal along with reported case laws and established dictums, preferably of the Hon’ble Supreme Court, duly indexed, would go miles in justification of the relief sought. It is my experience that since the Members prepare themselves fully before the final hearing date, having read and assimilated the rejoinder, the oral arguments during final hearing, when kept to the point would greatly assist the applicant’s case, for the simple reason that the burden of proof will be on the respondent to deny the applicant the relief sought, which is based on the infirmities evident on the face of records furnished by the respondents themselves. A well prepared rejoinder after a careful scrutiny of the respondents’ counter and supported by appropriate case laws, therefore, not only holds the key to justify the prayer made, but in case of a faulty prayer, gives an opportunity for the applicant to consider withdrawing the case and seek the Tribunal’s indulgence to plead afresh on a different cause of action.

Publications, Books, Case Laws, Reported Citations, Government Notifications

53. With the operationalisation of the AFT Benches in 2009, nearly two and a half years have gone by since the Principal Bench at New Delhi delivered its first judgment, in Aug of the same year. With 12/13 of the 15 Tribunal Benches functioning routinely since then and well over 4000 cases disposed of, there is today no dearth of reported judgments on military related subjects. In fact the march of law had its effect in military jurisprudence, since early 2000 AD onwards, when The Hon’ble Supreme court driven perhaps by the pro-active judgments of Hon’ble Delhi and Punjab& Haryana High Courts in the main, passed certain landmark dictums related to disability pension cases. These set the trend so to say for the AFT tribunals to follow suit, soon after coming into being. With the AFT judgments, available on the net and the Hon’ble Supreme Court dismissing or disposing of in good time a number of SLPs 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 Government post the recommendations of the 5th Central Pay Commission (CPC) and carried forward post 6th CPC, which are also available for access in Government web sites.

54. Standard publications on Acts, Rules and Regulations. Following is a list of publications that we have relied on as reference at the AFT:- a) The Armed Forces Tribunal Act, 2007 (55of2007) along with (Procedure) Rules,( Practice) Rules by Universal Law Publishing Co Pvt.Ltd,C-FF-1A, Dilkush Industrial Estate, GT Karnal Road, Delhi-110033 2 Armed Forces Law Journal 2012 (1) . b) The Army Act 1950 (46 of 1950) along with The Army Rules 1954, by Universal Law Pub. Pvt. Ltd. c) The Air Force Act 1950 (45 of 1950) along with The Air Force Rules 1950, by Universal Law Pub. Pvt. Ltd d) The Navy Act 1957 (62 of 1957) as amended by The Navy (Amendment) Act 2005 (23 of 2005), by Universal Law Pub. Pvt. Ltd. e) The Regulations for the Navy (Regs Navy), Part II, Statutory by Government of India, Min of Defence1965. f) The Territorial Army Act, 1948, by Government of India, Min of Defence. g) The Territorial Army Rules, 1948, by Government of India, Min of Defence. h) (The Indian) Military Nursing Service Ordinance,1943, by Government of India, Min of Defence. i) Military Nursing Services (India) Rules,1944,by Government of India, Min of Defence. j) Pension Regulations for the Army, Part1, 1961, by Government of India, Min of Defence. k) Pension Regulations for the Air Force, Part1,1961, by Government of India, Min of Defence 55. Books: There are also certain books written and compiled by certain experts on matters related to military law, relied upon by the respondents, and these contain apart from case laws important Government letters on the subject of pension including disability pensions and other monetary awards. Books, written/compiled by the following authors, are useful study material and are recommended to be consulted:- a) Law Relating to the Armed Forces in India, Fourth Ed, 2005, by Maj Gen Nilender Kumar (then serving as JAG, Army-now retired) and Rekha Chaturvedi, by Universal Law Pub Co (supra). b) Courts on Military Law, by Col GK Sharma &Col MS Jaswal, by Deep & Deep Publishers Pvt. Ltd, F-159,Rajauri Garden,NDelhi-110027. c) Pension in the Defence Services by Maj Navdeep Singh, practicing advocate in Punjab & Haryana High Court and AFT, Regional Bench Chandigarh published by Shree Ram Law House,71-73,Sector 17-C,1st Floor,Chandigarh,Ph:0172- 2709277.

Armed Forces Law Journal 2012 (1) 3 56. Citations and Notifications. Some of the important citations, briefly highlighting applicable dictums/case laws and Government notifications relied upon by the AFT tribunals and not referred to in the superscripts so far in this handbook, are listed below, categorized broadly into major reliefs being sought by the applicants/appellants:-. a) Disability Pension:

(i) SCC 2010 (4) Part 4 – SC 563 , 2010 (4) SLR 523 (SC) Union of India Vs C S Sidhu- Entire period of service up to the date of discharge / disability is to be counted as qualifying service for disability pension. The Apex Court has ruled that service for the purpose of award of disability pension will include the entire service till the individual is discharged / retired and not to be counted only till the date of disability . (ii) Order in CWP No.6083/2006 in the Hon’ble High Court of P&H in ex-Sepoy Karan Singh vs. Union of India & others . The petitioner is to be continued to be granted service element of disability pension even after the reduction of percentage of disability to less than 20% in a subsequent re-survey medical board. Minimum laid down qualified service stipulation of ten years existing prior to 1 March, 1968 and five years of service after that date and up to 31 December, 1972 was held to be violative of Articles 14 & 16 of the Constitution. The order when challenged by the Union of India by way of SLP was dismissed by the Hon’ble Apex Court on 30.07.2010. (iii) AIR 2004 SC 1235 Union of India Vs. Neki Ram: In a rare case, disability pension was allowed contrary to official medical opinion by a Single Judge and subsequently the order was upheld by a Division Bench and when contested by Union of India, the same was dismissed by Hon’ble Apex Court. The Hon’ble Judges based purely on the circumstances of the illness decided against the opinion of the medical board. However, in view of a slew of judgments by the Hon’ble Apex from 2008 onwards holding the primacy of the medical board as unassailable the ratio of decision in this judgment is albeit lessened. (iv) MLJ 2007 SC 133 Union of India Vs. Keshar Singh: In allowing the appeal of UoI, Hon’ble Apex Court rejected the case of grant of disability pension in a case of schizophrenia. (v) SLR 2010(4) Pg 368 Union of India vs. Ajay Wahi (DoJ : 06.07.2010) : In allowing the appeal of Union of India, the Hon’ble Apex Court upheld the rule position under Regulations 50 of Pension Regulation, 1961 Part I wherein an officer seeking voluntary retirement is not entitled to disability pension, holding it to be non-discriminatory as per Article 14 of the Constitution. In the process, the Hon’ble 2 Armed Forces Law Journal 2012 (1) . Apex Court overturned the earlier grant of disability pension by the High Court. The officer however had not faced a release medical board and the Court was also not informed that the Regulation 50 had been abrogated with effect from 01 Jan 2006. (vi) CWP 5551/2006 RK Dhingra Vs. UOI (decided on 20.08.2008) allowed by Hon’ble High Court of P&H and resultant appeal by Union of India in SLP (C ) CC 14858/10 (decided on 01.10.2010) was dismissed by the Hon’ble Apex Court. Both the orders clearly held the medical boards opinion being unassailable and not subject to any review or modification by CDA (Pension). It was also held that the disease of Hypertension was to be declared as caused due to service since it was listed in the Appendix to the Pension Regulations as a disability affected by stress and strain of military service. b) Pension other than disability pension. i) CA No 5566/2008 as SLP(Civil) No 12357/2006 in UOI vs. SPS Vains (Retd) and ors. In dismissing the appeal filed by the UOI, against the respondents Maj Gen SC Suri (Retd) and 67 others similarly placed, and allowing the order of Hon’ble Punjab & Haryana court directing “the writ petition is allowed and the respondents (UOI),are directed to fix minimum pay scale of the Maj Gen above that of the Brig and grant pay above that of a Brig as has been done in the case of post 1996 retirees and consequently fix the pension and family pension accordingly”, the Hon’ble Apex Court relied on its earlier dictum in DS Nakara and ors vs UOI 1983 AIR130, to restore to retired Maj Gens & Eqvt their rightful pension denied as a consequence of an anomaly in the 4th Central Pay Commission. ii) 1983 AIR 130 1983 SCR (2) 165, 1983 SCC (1) 305, 1982 SCALE (2)1213. In the historic constitutional Bench judgment rendered on 17-12-1982,in the case of DS Nakara & ors vs. UOI, the Bench while allowing the plea of the retired Central Government servants and of the Armed Forces personnel, held that the cut-off date of 31 Mar 1979 for making the liberalized formula for computation of pension in accordance with the 3rd Central Pay Commission recommendation effective only to those who retired on or after the date of notification, as notified by the Central Government to be violative of Article 14 of the Constitution and in its order pronounced that benefits of any liberalized scheme would be equally applicable for the same class of people to whom it was proposed to benefit, meaning in the case in point to the petitioners , except that such benefits would only be available prospectively from the date specified or the date of notification. c) Court martial awards. I) JT 2010 (3) - SC 677, AIR 2010 SC 3116. The dictum of the Hon’ble Supreme Court in UOI vs. VN Singh holds that the commencement date for calculating the

Armed Forces Law Journal 2012 (1) 3 three years period of limitation stipulated in sec 122 of the Army Act 1950, would be the date on which the officer competent to initiate action comes to know of the offence. Holding that the second part of sec 122, i.e. sec 122 (1) (b) would apply in the case of the Government being the aggrieved party, the Apex Court in the instant case decreed this to be the date on which the GOC-in-C of Western Command directed initiation of disciplinary proceedings against the delinquent, when the recommendations of the GOC, Delhi Area was put up to him. ii) 2010 (5) SLR SC, pg 199. In a similar case as above in JS Sekhon vs. UOI, the Apex Court rejected the appellant’s case, seeking shelter under sec 122 of the Army Act 1950, interpreting the convening officer of the GCM as the ‘ initiating officer’ for the purpose of identity of the accused. iii) 2010(4) SLR,pg385,AIR2010 SC 2462.Both the Hon’ble High Court and Supreme Court have upheld the sentence of dismissal on two charges, viz secs 52(f) & 45 on a Major on grounds of moral rectitude, even if the amount involved was small. iv) (2010) 9 SCC 496, Kranti Associates Pvt Ltd and anr vs Masood Ahmed Khan and ors. Hon’ble Apex Court has observed that in case of Courts martial, reasons are not required to be recorded for an order confirming the findings and sentence of Courts martial. Court martial proceedings are dealt with differently as is clear from Articles 33, 136(2) and 227(4) of the Constitution. d) Summary court martial awards of the Army.

Hon’ble Apex Court has held the sentence of dismissals in the following cases as totally disproportionate to the charge leveled and modified the same to ‘discharge’ in all three cases:- i) 1987 AIR 2386, 1988 SCR (1) 512, Ranjit Thakur vs. UOI, sec 41(2) of the Army Act 1950. ii) (2008) MLJ, Sheel Kumar Roy vs. Secretary MOD, sec 39 (a) of the Army Act 1950. Iii) 1992 AIR 417, 1991 SCR (2)676, 1991 SCC (3), Ex Nk Sardar Singh vs. UOI, sec 63 of the Army Act 1950. e) Administrative Dismissal/Discharge. i) INSC 1913 (7-11-2008), UOI and ors vs. Rajpal Singh followed by Hon’ble Delhi High Court order of 20-11-2008. In dismissing a slew of SLPs against an earlier Delhi High Court, Division Bench order of holding compulsory discharge of 2 Armed Forces Law Journal 2012 (1) . low medical category (LMC) personnel of the Army without subjecting them to an Invalid medical board, as mandated in relevant provisions of Army Rule 13 as ultra vires, the Apex Court directed the Delhi High Court to follow up with detailed instructions for the respondent to comply. ii) AIR 1996, Supreme Court (1368),1996 SCC(3) 65, JT 1996 (3) 310, 1996 SCALE (2) 394, UOI and ors vs. Cpl AK Bakshi and ors. The Apex Court in allowing the appeal of the UOI, overturned the earlier Divisional Bench order of High Court. By this dictum the Apex Court upheld the policy of the Air Force of compulsory discharge under Air Force rule 15, of a habitual offender, as valid in law. Under this policy, airmen incurring more red ink entries than stipulated in the policy, are discharged following due procedure as laid down in the Air Force rule15. The Apex Court also clearly distinguished such a discharge from administrative removal for misconduct, under sec 20 of the Air force Act read with rule18 of the Air Force rules. iii) AIR 2010 Supreme Court 462 in UOI and ors vs. Dipak Kumar Santra. The apex Court upheld the order of single Judge and overturned the Division Bench order in allowing the writ petition holding discharge of a recruit on grounds of ‘unlikely to become an efficient soldier’ as per Army rule 13(3), perfectly legal. iv) AIR 2001 SC 1772,JT 2001(4) SC 597,2001 Labi C 1707. in UOI vs. Harjeet Singh Sandhu Etc (dt of Judgment-11-4-2001).In a landmark judgment a three Judges Bench headed by the CJ, laid out the dictum that, resort to Administrative dismissal under Army Act sec 20, once the authorities have not been able to proceed against a delinquent by way of Court martial, due to period of limitation under sec 122 having been crossed or for any other reason, is well within the statute. In the process, the Apex Court relying on a similar judgment in the case of Union of India vs. Dharm Pal Kukreti, observed and overturned the judgment given by the Apex Court in the case of Maj Radhakrishnan vs. UoI wherein the earlier judgment in the case of UoI vs. Kukreti was not brought to the notice of the Bench. f) Miscellaneous citations: i) 1997 (3) SCC 261, AIR 1997 SC 1125, 1997 (1) BLJR 745 in L Chandrakumar vs. UOI and others. A Constitution Bench settled finitely the issue of Administrative Tribunals, mainly the CAT, (enacted under the provisions of Art 332A of the Constitution), also having writ jurisdiction to hear petitions challenging Government notifications and orders, as a Court of first instance. ii) CA No5151-5152/2008(Arising out of SLP (C) Nos 3820-3821/2008),UOI vs. Tarsem Singh, 2008(8) SCC 648, Hon’ble Apex Court has laid down the dictum that non-payment of pension is a continuing wrong. In such cases of service related

Armed Forces Law Journal 2012 (1) 3 claim for pension, relief based on a continuing wrong can be granted even if there is a long delay in seeking remedy. However with regard to payment of arrears, the Apex Court restricted the same to a period of three years preceding the date of filing of the application or writ, following the principle applied for recovery of recurring successive wrongs. iii) (1994)2SCC521,(1994)1SCR700,ShyamBabuVerma vs. UoI. Apex Court has ruled that payment made by way of salary or pension/remuneration paid in excess due to whatever reason wherein the employee is not at fault, cannot be recovered once the error is detected. iv) (2006) 2 MLJ 61, Recruit Madurai Veeran vs. UOI The Madurai Bench of the Madras High Court has held that a cause of action is maintainable as long as any part of the said cause is within the territorial jurisdiction of the Tribunal/Court. v) 2010 (4) KLT 61, Josy Varghse vs. Armed Forces. In its order on WP(C) 30160/10(T), delivered on 12-10-10, Hon’ble Kerala High Court has, in its interpretation of Secs 30 and 31 0f the AFT Act, held that the orders of the AFT Benches can be challenged in the High Court. vi) Similar to the above, Hon’ble Delhi High Court in an order in WP(C)13360/2009,ColADNargolkar vs UoI and a slew of writ petitions challenging the order of AFT, Principal Bench, has in its judgment interpreted Secs 30 and 31 of the AFT act, in its own way to place the superintendence of the AFT on the High Courts. Both the above orders are under challenge at the Hon’ble Supreme Court. vii) AIR 1986(SC) 1060,1986 Cri LJ 848,Virendar Kumar through his wife vs The Chairman Bar Council of India. The Hon’ble Apex Court in deciding on the particular case related to a different matter ruled that ‘desertion’ is differentiated from ‘absence without leave’ by the simple question of the intention of the accused in not wanting to return to service. g) Government notifications: (i) Delegation of Administrative Powers. In pursuance of V CPC recommendations and in keeping with decision to delegate administrative powers, the MoD vide letter No.4684/DIR (PEN)/2001 dated 14th August, 2001 has delegated powers to service headquarters in a variety of pension related subjects which include division of family pension between eligible family members, payment of dues to NOK of deserters, condonation of shortfall in qualifying service in respect of PBOR up to 12 months, etc. The letter has subsequently been amended vide MOD ID No. 12 (2) /04 / (Pen/Sers) dated 21.07.2004 to provide for retrospective effect to the provision of condonation of shortfall of one year in service for pension 2 Armed Forces Law Journal 2012 (1) . contained in the ibid letter. Subsequently in the year 2011, the MOD has also relaxed the minimum qualifying service required for invalid pension to 9 years and 9 months. The letters are extracted in Appendix. 32 (ii) MoD letter No. 8/39042/AG/PS-4 (a&c) /1331/c/d (Pension/Sers) dated 29.12.2000. Grant of ex-gratia payment of Rs.600/- p.m. plus DA to Reservists prior to 01.04.1968 who had not opted for grant of pension and had also not availed of any rehabilitation assistance at the time of release from service. (iii) GoI Ministry of Defence No.1/1(3)/2007-E(Pen/Policy) dated 25.10.2007. The letter removes the bar of 25 years of age for drawal of family pension in respect of unmarried / divorced eligible daughters. (iv) MoD letter No16(6)/2008(2)/D(Pension/Policy)dt4May2009. Separate rates in grant of disability pension to officers and PBOR replaced with grant of disability pension as a percentage of last pay drawn. (v) MoD letter No10(01)/D(Pension/Policy)/2009/Vol.IIdt19.1,2010.Extends the benefit of broad banding of percentages of disability pension granted in paragrapgh7.2 of GOI letter of 31.1.2001 also to pre1996 cases but only with effect from 1.7.2009. ------

CHAPTER 6 - RECOMMENDATIONS FOR CONSIDERATION OF THE MINISTRY OF DEFENCE (MOD) AND THE SERVICES MOD

57. Need to reach out to Disabled soldiers/seamen/air warriors, discharged without pension. Nearly 30% of the cases transferred from High Courts to AFT tribunals pertained to claim for disability pension. Of these again 30% roughly pertain to those that are discharged as recruits or within two to three years as young soldiers due to invaliding disease as being neither attributed to nor aggravated by military service. These young men coming from a poor background are unable to take discharge in their stride, by preparing for another vocation, since they (or their parents) had perhaps set everything in store to get enrolled and make a career in the Army/Navy/Air Force and consequent to invalidment at a tender age are unable to

Armed Forces Law Journal 2012 (1) 3 re-start a new career. These young men unlike their peers who join any other Government service are also deprived of the benefits of sec 4711 of the People with Disabilities Act, which guarantees alternate employment till superannuation to such cases who are invalided out from Government service other than Armed Forces, on account of the Armed Forces of the Union being exempt, (for good reasons), from the provisions 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, we’ve found it extremely hard to convince the appellants of the morality of dismissal of the suit, while legally they have no leg to stand on. In a few cases along with my learned brother Hon’ble Justice ACA Adityan, we’ve succeeded in getting the Rajya Sainik Boards of Tamil Nadu and Andhra Pradesh to come to the succor of some really pitiable cases, by including in our judgment a recommendation seeking their largesse in alleviating the penury and poor medical condition of the applicant by way of ex-gratia grants at their disposal. We are thankful for their positive attitude. But the sad part is that in spite of having 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 requirement of eligibility of being an ex-serviceman, to be considered for any financial assistance at their disposal. The single most important consideration to get any assistance from Kendriya/ Rajya Sainik Board is for the recipient to be an EX-SERVICEMAN. By definition, an ex-serviceman is one who draws any type of service pension, be it a regular pension or Family pension or disability pension. Since these young men are invalided out on account of a disability not having any service attributability or not having been aggravated by service conditions they are not in receipt of disability pension. And, since the Armed Forces personnel are exempt from the provisions of PWD act, these personnel are virtually on the streets. It is this moral/ethical issue that I would beseech the MOD to address. Very simply put, the MOD which lays down the policy for the Kendriya and Rajya Sainik Boards, in making ex-gratia financial awards, be it an annuity or a cash grant, can make a single exception by waiving the eligibility of being an Ex-serviceman in case of such of those military persons, with less than 10 years of service who’ve been invalided out without disability pension on production of proof of such an invalidment, which a discharge certificate will easily fulfill. The 10 years cut-off is because, in cases of non attributability to/non aggravation by service conditions, a serviceman will in any case be eligible for Invalid pension, which meets the ends of equity.

All Three Services

58. Inclusion of ‘Compulsory discharge’ in the case of Personnel below officer rank(PBOR) and ‘compulsory retirement’ in case of Officers in the scale of 2 Armed Forces Law Journal 2012 (1) . punishments awardable by courts martial in the case of Army/Navy/Air Force and in the powers of warrant punishment of COs in the case of Navy alone. The number of appeal cases, pertaining to seeking setting aside dismissals, particularly of appellants who had completed pensionable service and were first time offenders of a purely military type of offence, such as absent from or over-stayal of leave or use of criminal force etc, are very large and the reason is not far to seek. I remember as a CO I was very comfortable and confident of being able to come to grips with any case of indiscipline, particularly if I wanted to set an example of dealing with a habitual offender or a bad hat, by invoking the power of award of dismissal vested in me by way of a trial by summary court martial. All I wanted to see was the back of such a man before his bad influence has a detrimental effect on my Unit’s discipline. Little did I realize then, that I would, without knowing or being consciously aware of, be depriving a family of its only source of livelihood? In any case I had no choice because of my need to maintain discipline at all costs. Today, in all humility, when I am sitting in the position of a Judge and along with my learned brother we are looking at the award of such dismissals as dis-proportionate to the offence and in our reasoned judgment with the help of the Hon’ble Apex Court ‘s dictum on the subject are able to belatedly modify the award of dismissal to that of discharge, permitting the dispersal of locked up retrial benefits to the appellant or his family, I strongly feel in hindsight, if I had a choice of awarding compulsory discharge if enshrined in the table of punishments in Army Act, sec 71, Air Force Act sec 73 and Navy Act, sec 81,in most cases I would have settled for the same, since all I wanted was to see the man out of the Army. I would therefore request the Heads of the three Services in conjunction with the MOD, to consider inclusion of a new sentence of punishment of ‘compulsory discharge/retirement’, below ‘dismissal’ in the table of punishments awardable by courts martial in the Army/Navy/Air Force.

59. Separating periods of Imprisonment into “less than three months” and “ exceeding three months” As another gesture towards a more humane approach towards punishing an errant serviceman, and at the same time, not financially harming his family members ( who would have had no part to play) in the committal of cognizable offences of relatively less severe nature, it is recommended that all three Services consider modifying the existing listing of ‘Imprisonment, either rigorous or simple, for any period not exceeding fourteen years’ occurring immediately below ‘transportation for life’ in the scale of punishments awardable by courts martial, as referred to above, to that of ‘Imprisonment, either rigorous or simple for any period exceeding three months and not exceeding fourteen years’ and introducing a new punishment serial below ‘Dismissal’, and new sub-clause

Armed Forces Law Journal 2012 (1) 3 suggested above of Compulsory retirement/ Discharge, to read as ‘imprisonment for a period of up to three months to be undergone in military custody’.

60. The above two recommendations of bringing in changes to the table of punishments awardable by courts-martial in respective Army/Navy and Air Force Acts, for consideration of the three Services, in consultation with MOD, if favourably considered, can be effected as under:- a) Reword sub-clause 71(c) of the Army Act/sub clause 81(b) of the Navy Act/73(c) of the Air Force Act to read as ”Imprisonment, either rigorous or simple, for any period exceeding three months and not exceeding fourteen years. b) Introduce new sub clauses (f)and(g), below existing sub clause on “Dismissal from the service” occurring at Army act 71(e)/Navy act 81(e) and new sub clauses(g)and(h) below Air Force Act sec 73(f) respectively, to read as follows:- i) Compulsorily retired (in the case of commissioned officers)/Discharged in the case of Warrant officers/JCOs, NCOs and other ranks. ii) Imprisonment for a period of up to three months to be undergone in military custody. c) Re-number existing sub-clauses sequentially thereafter in the respective tables set out in Army Act sec71/Navy Act sec 81/ Air Force Act sec 73.

Navy Only 61. Procedure of Hearing of Charge. As has been brought out earlier in Chapter 4, Paragraph 41, existing provisions of the Navy Act as put into practice, do not permit an accused in a trial and in front of his CO, to cross examine witnesses who have deposed against him on a charge under the Navy Act, and there is also no express provision for recording of the summary of evidence, in the presence of the accused throughout, at the recording of such evidence, with liberty to cross examine witnesses, prior to trial. Resultant punishment of dismissal at the summary trial, (though with the approval of the CNS), is decidedly against principles of natural justice and liable to be challenged at every instance in court. The argument put forward in front of the Tribunal Bench, that such a procedure is not contemplated in the Navy Act is difficult to be accepted or justified. I have, with the consent of my learned brother, who delivered the judgment in TA No197/2010, in the case of RK Mishra/Neelam Mishra vs. UOI, invited the attention of the Naval hierarchy, to 2 Armed Forces Law Journal 2012 (1) . remedy this major lacuna in not providing for an accused to be heard, a violation of the maxim Audi Al Teram Partem-‘No man should be condemned unheard’. Unfortunately, this, obvious and basic infirmity of natural justice has not come to light, even more than 64 years after independence, or 54 years after Navy Act 1957 came into being, and prior to the AFT tribunals coming into force, because I feel in the pre-AFT days, the Hon’ble High Courts in routinely admitting an appeal against conviction, and in the midst of mounting pendency of cases in the courts, have not been sensitized to this flaw, because none of these cases seem to have been heard at all. I would strongly urge the Naval authorities to expeditiously, and on an emergent basis examine this recommendation and set right the malady by bringing in necessary amendments to the Navy Act and the Statutory Regulations Part II in quick time. The upholding of the order of re-trial passed by AFT, Chennai Bench by the Hon’ble Apex Court in TA164/2010 in Parida vs. UOI (superscription 25 in Appendix refers) could be relied upon to bring about the necessary amendment. ------

CHAPTER 7- GREY AREAS IN FERMENT AND WHICH MAY INVOLVE APEX COURT’S INTERVENTION/RULING Questions of Superintendence and Writ Jurisdiction

62. Background. There is no doubt that the framers of the AFT Act, in the main, the officials/experts in the MOD and the Law Ministry could not have visualized and catered for every contingency in laying down the law, that will be seamlessly interpreted towards achieving the main object of cutting down the litigation time for the aggrieved serviceman or his kin. The AFT Act, though modeled on the Central Administrative Tribunals (CAT) Act, has three distinct differences. Firstly, it has been enacted to remedy a long pending redressal, articulated by the Hon’ble Apex Court in the case of Priti Pal Singh Bedi vs. UOI, AIR 1982, SC 1413, to provide for a forum of appeal as a Court of first instance for the members of Armed Forces and their next of kin (NOK),the emphasis to be noted is on appeal jurisdiction, meaning on disciplinary/court martial proceedings, rather on administrative matters which is the USP of CAT. Secondly, and precisely for the reason that the Service component of the nature of cases likely to come up for adjudication in the AFT may outweigh cases normally associated with writ jurisdiction and to permit the AFT tribunals to concentrate on adjudicating on Service matters empowering them with extraordinary powers especially in the area of appeal jurisdiction, the writ jurisdiction vested in the Hon’ble Supreme Court and High Courts under articles 226 and 227 of the Constitution, has been expressly made de hors to AFT tribunals vide sec 14(1) of the Act which reads as ”Save as otherwise expressly provided in this Act, the

Armed Forces Law Journal 2012 (1) 3 Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority, exercisable immediately prior to that day by all courts(except the Supreme Court or a High Court exercising jurisdiction under article 226 and 227 of the constitution) in relation to all service matters.” This is a distinct departure from the jurisdiction of CAT, established under the provisions of Article 323A of the Constitution, which has been conferred with the powers as a court of first instance, as a result of the dictum laid down by the Hon’ble Apex Court in L. Chandra Kumar vs. UOI (supra) and re-emphasised in SP Sampath Kumar vs. UOI, AIR 1987 SC 386 (1987), 1 SCC (1984).The third distinctive difference from that of the CAT is that whereas an appeal against the order of a CAT tribunal lies with that of a High Court, the appeal against the order of the AFT, will lie only with the Hon’ble Supreme Court, sanctified by the express provision in sec 30(1) of the AFT Act, which reads as “Subject to the provisions of sec 31(which is on leave to appeal), an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under sec 19(which is on criminal contempt).” Unfortunately, perhaps inevitably, given the nature of our legal practice of keeping litigation alive, these three differences with the CAT, which form the crux of a speedy resolution to the woes of servicemen forced to knock at the doors of courts, have been turned into litigious debates, by attempting to derail the smooth and optimally fast pace of closure of cases dealt by the AFT tribunals. I shall explain the status of these nascent attempts at creating hurdles to the smooth functioning of the AFT.

63. Hon’ble High Courts of Kerala and Delhi have held, on hearing of appeal petitions in WP(C)No. 30160/2010(T), Josy Varghese vs. UOI on30 Sep 2010 and in WP(C) 13360/2009 26th Apr 2011 respectively that, the High courts have jurisdiction over the final orders of the AFT, totally contrary to the provisions of sec 30(1) of the AFT Act(supra). They have unfortunately used a glaring limitation of the AFT Act, i.e., lack of a civil contempt provision, in giving to themselves this power of appeal , which it is fervently hoped the Hon’ble Apex Court will soon set right as can be discerned , from its order to the MOD, while hearing the case of Fayaz Khan vs. UOI and Ors in CA No 2145/2011 on 4 Apr 2011-, to quickly come up with an ordinance, followed by a suitable amendment, to bring in the provision of civil contempt into the AFT Act.

64. While the above measure already lying at the doorstep of the Hon’ble Apex court will hopefully settle the issue related to superintendence, buttressing the provision of sec 30(a) of the AFT Act, the other issue of the AFT barred from entertaining writ jurisdiction unlike CAT, as per a plain reading of sec 14(1) of the AFT Act (supra), is likely to be dragged into a longer debate. This is so because 2 Armed Forces Law Journal 2012 (1) . already Hon’ble Madras High Court, while hearing WP No 23735 of 2010, challenging the Chennai AFT tribunal order of referring a case challenging the vires of Government policies to it, has in its order chosen to set aside the order of the Chennai AFT, asking the Tribunal to re-hear the case. The Division Bench while leaning heavily on the dictum laid in Chandra kumar vs. UOI case (supra) has also relied on a recent Apex Court judgment in Rajeev Kumar and anr vs. Hemraj Singh Chauhan and ors (2010) 4 SCC 554, paragraph 11, which is extracted from the order of the Hon’ble Madras High Court as “On a proper reading of the above quoted two sentences, it is clear: a) The tribunals will function as the only court of first instance in respect of the above areas of law for which they have been constituted. b) Even where any challenge is made to the vires of legislation excepting the legislation under which tribunal has been set up, in such cases also, litigants will not be able to directly approach the High Court” overlooking the jurisdiction of the tribunal”. 65. Unfortunately, Tribunals referred to above are constituted under Art 323A of the constitution and the AFT cannot be clubbed with all ‘Tribunals’ for this reason. Since a section of the legal community, the judiciary and the Bar wants to apply the same rules as for CAT to the AFT, this debate it is hoped will soon be set right by the Hon’ble Apex Court. ------

CHAPTER 8 - FOOD FOR THOUGHT

Is the Uniformed Services’ Viewpoint Getting Projected Correctly in Courts of Law?

66. Office of Legal Advisor in MOD: As per the rules of Allocation of Business in the Ministries/Departments of Government of India, the office of Legal Advisor in MOD, is tenanted by an officer of requisite authority and experience, from the Ministry of Law and Justice. He is assisted by an officer from the Services (usually Army) belonging to the JAG’s branch.

67. By custom and practice, being attached offices / Headquarters of the MOD, individual Services have either eschewed representing their cases as separate respondents while contesting cases in Courts/Tribunals or have been proscribed to do so, by the MOD. By MOD, it has generally meant the MOD bureaucracy, with

Armed Forces Law Journal 2012 (1) 3 the Defence Secretary as its head. The question that arises therefore is, has at any point in time, any of the three Service Chiefs, individually or collectively as the Chiefs of Staff Committee represented to the Hon’ble Raksha Mantri their viewpoint for representing their stand on a matter which is different to what they are required to fall in line with, when going along with the Legal Advisor’s view? The answer seems to be in the negative; at least I am not aware of any case where any Service Chief has sought the intervention of the Defence Minister to project his service’s views in a court, which is contrary to the one projected as MOD’s official standpoint.

68. The case of Maj. AK Dhanapalan vs. UOI, was decided in favour of the officer in WP No. 2448/1996, by Hon’ble Kerala High Court on 5-10-1998, resulting in correct fixation of the officer’s pay taking into consideration the rank pay as authorised in the Government notification on implementation of the recommendations of the 4th CPC and payment of resultant arrears thereof. A Division Bench of the Hon’ble Kerala High Court upheld this judgment on 4-7- 2003, when challenged by the UOI in Writ Appeal no 518/99. This triggered a surge of demand by scores of similarly placed officers, on the Government of India to pay them the arrears of rank pay and resultant benefits to them in accordance with the judgment of the Hon’ble Kerala High Court. The Government of India however declined to pay them the same citing administrative reasons. This resulted in a slew of petitions by a large number of officers in a number of High Courts and also in the Hon’ble Supreme Court. The Hon’ble Supreme Court, after ordering transfer of all such writ petitions to itself and hearing these writ petitions on challenge, in a common order on 8-3-2010 upheld the order of the High Court and asked the Government of India to comply with the order in respect of all affected officers. The Government has however filed a review application in the case.

69. I’ve read somewhere during the pleadings the litigant officers have also attached a copy of an inter office note (ION) from the office of the Chiefs of Staff Committee to the MOD that the Services strongly feel that the correct position is not being projected by the MOD on the denial of a rightful claim to a large section of officers. Therefore, the point I would like to be addressed by the senior hierarchy of the Services is that while disciplined that we are and ought to be, doesn’t this issue call for at least apprising the Hon’ble Raksha Mantri and seek a discussion on the need for the office of Director Legal to be more transparent and responsive to the Services’ views as put forward by the Services , rather than imposing a `party line’ decided by the very bureaucrats who are seldom willing to accept the dictum ”to err is human”? 2 Armed Forces Law Journal 2012 (1) . 70. Sadly, this point of the office of the Legal Advisor in MOD, apparently being insensitive to Services’ Headquarters viewpoint, is a relic of our system wherein the three Services are integrated with MOD only in name. It is time to seriously carry forward the agenda of true integration on the path enshrined twice in the past, viz. recommendation of the Kargil Review Committee and specifically by the Arun Singh Committee. There is in fact a Standing Committee chaired by the Defence Secretary, on reviewing the detailed steps agreed to and approved by the Hon’ble Raksha Mantri for effecting purposeful integration to improve synergy between the MOD and the Services. I would appeal to the Service Chiefs to, in turn request the Hon’ble Raksha Mantri, for a direction to use the forum of the members of this committee to review the functioning of the office of Legal Advisor, MOD and bring forward needed re-structuring so as to be in unison with the Service Headquarters, on all legal issues that come up for litigation in Courts and Tribunals.

Bringing Gentlemen/Lady cadets under the Army/Navy/Air Force Act(s)

71. Since the coming into being of the AFT, one case of a withdrawn cadet from NDA on medical grounds (OA No 103/2009 in Principal Bench, New Delhi, Reported in 2011 (1) AFTLJ 104), one pertaining to a withdrawn Gentleman cadet from OTA on disciplinary grounds (TA No. 96/2009 in Regional Bench Lucknow) and one pertaining to a withdrawn cadet from OTA on medical grounds (OA No. 44/2010 in Regional Bench Chennai) have all been dismissed on grounds of lack of jurisdiction. Sec2 33 of the AFT Act on applicability stands in the way of these GCs/LCs since it recognizes persons subject to the Army/Navy/Air Force Act(s).Only an enrolled person (as it applies to a soldier/seaman/air warrior) or a commissioned officer are subject to the Army / Navy / Air Force Act(s) as per Sec234 of the respective Army/Navy/Air Force Act(s). The discharge of all these cadets/GCS/LCs, though not covered de jure under the provisions of service rules/regulations, has actually been effected de facto by taking recourse to existing military procedures and the very same modus operandi such as invalid medical board(s) etc as are applicable to the persons subject to service Act(s), who are found unfit for whatever reason to become an efficient soldier.

72. The above three cases are already delayed by more than a year, from the point of view of the unfortunate litigant cadet/GCs, in getting the dismissal orders from the AFT. If pursued in either a High Court or in the Apex Court it will take at least a few more years for finalization and by that time the young boy or girl in their late teens or early 20s will be nearing 30 years plus seeking re-instatement or disability pension. It is a point to ponder whether having reduced drastically the litigation time for young recruits to a few months by way of enacting and operational sing the AFT

Armed Forces Law Journal 2012 (1) 3 Act, the framers of the legislation should leave out similarly placed officer cadets (who are truly the nation’s future!) from its purview?

73. I would recommend that cadets/GCs/LCs in all the three services Academies, who are undergoing training to become commissioned officers are included in Sec2 of the respective Army/Navy/Air Force Act(s)as being subject to the respective Acts for the limited purpose of effecting discharge forced by circumstances, when it is felt that the cadet will not be able to qualify to be an officer. A suitable sub-clause to sec 2 is recommended to be framed and incorporated in the respective Acts.

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REFLECTIONS ON IMPACT OF COMING INTO FORCE OF ARMED FORCES TRIBUNAT (AFT) ACT, 2007

APPENDIX Extracts of letters and citations referred to in the book and numbered as superscripts

Superscript Item reference (b) (a) 1 Sec 26 ,The Army Act, 1950

Text/Extract ( c )

2 Armed Forces Law Journal 2012 (1) . Remedy of aggrieved persons other than officers (1) Any person subject to this Act other than an officer who deems himself wronged by any superior or other officer may, if not attached to a troop or company, complain to the officer under whose command or orders he is serving; and may, if attached to a troop or company, complain to the officer commanding the same. (2)When the officer complained against is the officer to whom any complaint should, under sub-section (1), be preferred, the aggrieved person may complain to such officer’s next superior officer. (3)Every officer receiving any such complaint shall make as complete an investigation into it as may be possible for giving full redress to the complainant; or, when necessary, refer the complaint to superior authority. (4)Every such complaint shall be preferred in such manner as may from time to time be specified by the proper authority. (5)The Central Government may revise any decision by 1 (the Chief of the Army Staff) under sub-section (2), but, subject thereto, the decision of 1(the Chief of the Army Staff) shall be final. 1 Subs. by Act 19 of 1955, sec 2 and Sch., for “the Commander-in- Chief”.

Superscript Item reference (b) (a) 1 Sec 27, The Army Act, 1950

Text/Extract ( c ) Remedy of aggrieved officers : Any officer who deems himself wronged by his commanding officer or any superior officer and who on due application made to his commanding officer does not receive the redress to which he considers himself entitled, may complain to the Central Government in such manner as may from time to time be specified by the proper authority.

Armed Forces Law Journal 2012 (1) 3 Superscript Item reference (b) (a) 1 Para 364, Regulations for Army,1962

Text/Extract ( c ) Complaints - General (a) Complaints may be of two kinds – (i) Statutory Complaints : These are made under the provisions of Army Act Sections 26 and 27 by the following: (aa) Any person subject to the Army Act other than an officer who deems himself wronged by any superior or other officer. (ab) Any officer who deems himself wronged by his commanding officer or any other superior officer. (ii)Non Statutory Complaints – These can be made under the authority of the Army Order on the subject when the complainant considers himself wronged by any authority other than those mentioned in sub-sub-para(i) above and is not covered under Army Act Sections 26 and 27. Statutory Complaints – (b) Number and Extent -: An officer has the right to complain to the Central Government. JCOs and OR can complain to the COAS in the first instance. In case they are not satisfied with the decision of COAS, they may complain to the Central Government whose decision shall be final. This right can be exercised only once. A second complaint to these authorities will be allowed only if fresh facts and circumstances have come to light necessitating reconsideration of the case. Procedure for submission and channel to be followed: (c ) Statutory complaints will be addressed to the following authorities :- (i) Central Government by officers. (ii) COAS by JCOs, WOs and OR in the first instance and thereafter to the Central Government. (d) All statutory complaints will be made through proper channel as given in sub-para (e) below and copies will not be forwarded direct to higher authorities. If the final 2 Armed Forces Law Journal 2012 (1) . decision on the statutory complain is not taken within a period of six months from the date such a complaint is submitted to the immediate superior, the applicant will have a right to represent direct to Army Headquarters or the Central Government as the case may be after informing his commanding officer. (e) The following channels will be followed while forwarding statutory complaints :- (i) Company Commander or other immediate superior. (ii) Commanding Officer. (ii) Brigade Commander or Sub-Area Commander. (iv) Divisional Commander or Area Commander. (v) GOC Corps where applicable. (vi) GOC-in-C Command. (vii) COAS. (viii)Central Government. (f) Statutory complaints from officers of AMC and ADC and from all JCOs, WOs and OR which pertain to matters relating to promotion, appointment, posting, release and discharge, will be processed through departmental channels. Layout of Complaints : (g) The general layout of complaints will be as per the specimen reproduced at Appendix ‘P’. The essentials of a complaint are as follows:- (i) An introduction which would state whether the complaint is statutory or non- statutory and the provisions of the Statute or Rules under which it is made. In the case of statutory complaints, this para will not be stated as the authority under which the complaint is being made. (ii) Background of the case, if required. (iii) Facts of the case set out briefly in logical and chronological order, giving specific grievances. (iv)A conclusion containing the specific redress sought for by the complainant (h) It will be ensured that the complaint is couched in respectful and proper language. A complaint containing a false statement or a false accusation would render the complainant liable for disciplinary action under the Army Act. If a complaint contains accusations or allegations the complainant will render a certificate as under which will annexed to the complaint :

Armed Forces Law Journal 2012 (1) 3 “ I understand that any false statement or false accusation made by me in this complaint will render me liable for disciplinary action.” Action by the Intermediary Authorities: (j) An intermediary authority will examine the grievance set forth by the complainant and will either grant the redress sought for in the complaint or forward the complaint to the next higher authority along with his comments and recommendations. The immediate superior authority in chain will, in addition, also offer his detailed para wise comments on the complaint. He will also ensure that the stipulation made in sub-para (h) above has been complied with. In case any of the conditions mentioned below is not satisfied, he will withhold the complaint and inform the next superior authority and the complainant the reasons for withholding the complaint:- (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. (k) If an intermediary authority grants the redressal asked for, the complainant will be informed and the case closed under intimation to higher authorities in chain. Before forwarding the complaint to the next higher authority, the immediate superior authority of the aggrieved individual will endeavour to interview the complainant and make such investigations as he considers necessary. He will then forward the complaint, his detailed parawise comments and recommendations to the next superior intermediary authority. While forwarding the statutory complaint to the next higher authority, concerned formation headquarters shall invariably inform Army Headquarters about the progress of the case and also inform the complainant through his commanding officer. Time-frame for processing of complaints : (l) All complaints will be dealt with expeditiously at all levels. The following time schedule will be strictly followed : (i) Time taken to reach Army Headquarters (including transit period) : (aa)Unit : : 20 days (where para wise comments are required to be forwarded) (ab) Bde or Sub Area : 15 days (ac) Div or Area : 15 days (ad )Corp HQ : 20 days (ae) Command H.Q. : 20 days ------Total : 90 days 2 Armed Forces Law Journal 2012 (1) . ------Note: During the period of collective training or where the complaint pertains to a period more than two years earlier, an additional period of 30 to 45 days will be permissible for the complaint to reach Army Headquarters. (ii)Time taken at Army HQ : 45 days (m) In case of delay, a report explaining in detail the reasons for delay will be forwarded to the next higher authority. (n) Final Disposal of Complaints - Orders of the authority competent to finally dispose of the complaint will be communicated to the complainant through normal channels. (o) Non-Statutory Complaints – Non-statutory complaints will only be addressed to the immediate superior, company commander or the commanding officer as the case may be. Such complaints will neither be addressed direct to higher authorities other than those mentioned in this paragraph nor will copies be endorsed to such authorities. Where the authority addressed considers action by higher authorities necessary, he may forward the complaint, along with his recommendations, to the next superior authority. (p) Non-statutory complaints will also be dealt with expeditiously. Sub-paras (g), (h) and (n) above will also apply to non-statutory complaints.

Superscript Item reference (a) (b) 2 Sec 23, The Navy Act, 1957

Text/Extract ( c ) Remedy of aggrieved persons : (1) If an officer or sailor thinks that he has suffered any personal, oppression, injustice or other ill-treatment at the hands of any superior officer, he may make a complaint in accordance with the regulations made under this Act.

(2) The regulations referred to in sub-section (1) shall provide for the complaint to be forwarded to the Central Government for its consideration if the complainant is not satisfied with the decision on his complaint.

Armed Forces Law Journal 2012 (1) 3 Superscript Item reference (b) (a) 2 Regulations 236, 237, 238, 239 of Navy, Part II, Statutory Text/Extract ( c ) 236. To Whom the Complaint shall be Made : (1) If the complainant be a Commanding Officer of an Indian Naval Ship, his complaint shall be in writing and addressed to his immediate superior.

(2) If the complainant be an officer serving in one of the Indian Naval Ship, his complaint shall be made orally to the Commanding Officer, in accordance with the Service custom whereby a complainant is to make an oral request to see the Commanding Officer for that purpose. If the complainant is an officer below the rank of Captain, such request shall be made through the Executive Officer, and if the complainant is not the Head of Department, the request shall be made in the first place to the Head of the Department.

(3) If the complainant is serving in a Naval establishment not commissioned as a ship and not under the command of a Commanding Officer of one of Indian Naval Ship, the complaint shall be made orally to his immediate superior.

EXPLANATION : For the purpose of this regulation, the terms “Naval Establishment” shall, in addition to Naval Head Quarters and Naval Dockyard, include offices of Administrative Authorities, Naval Officer-in-Charge and Resident Naval Officers of Ports and Naval Advisers to Indian Missions abroad.

(4) If the complainant is an officer who is not serving in a naval establishment, he shall submit his complaint to his immediate superior, either orally or in writing as may be practicable.

(5)If the complainant is a sailor, his complaint shall be made orally to the Commanding Officer. A request to see the Commanding Officer shall be made to the Executive Officer through the complainant’s Divisional Officer and Head of the Department. A sailor detached from his ship or establishment shall make his complaint to the officer under whose command he may be at this time.

237.Assistant to Complainant : If the complainant be an officer of Junior rank or a sailor, he may request any officer in his to advise and assist him in the statement 2 Armed Forces Law Journal 2012 (1) . of his case at all stages. If no such request is made, it shall be the duty of the Divisional Officer or such other officer as the Commanding Officer may detail, to give his assistance. Such officer shall point out to the complainant the rules to be observed under regulation 238.

238. Rules to be Observed by the Complainant : (1) Complainant shall be confined to a statement of facts complained of and to the alleged consequences to the complainant himself. (2) Joint complaints by two or more persons are not allowed; each individual shall make his own complaint. (3) It shall be an offence against good order and Naval discipline to make a complaint, either oral or written, which includes a statement of fact which is untrue to the knowledge of the complainant. (4) It shall be an offence against good order and Naval discipline to make a complaint in terms, which comprise language or comments that are disrespectful or insubordinate or subversive of discipline, except in so far as such language or comments are necessary for an adequate state of the facts.

239.How the Complaint shall be Dealt with : (1) On receipt of any complaint, the Commanding Officer or other officer receiving the same shall satisfy himself that the complaint is made in accordance with these Regulations. He shall then deal with it in the exercise of his discretion as may seem to him right, and cause the complainant to be informed of his decision. (2) If the Commanding Officer or the other officer receiving the complaint refuses or is unable to remedy the complaint so made, the complainant may respectfully ask that he may be allowed to make his complaint in writing, and on receiving such request, the Commanding Officer or the other officer shall give the complainant 24 hours to reconsider the matter. The complainant, while still having the assistance of the officer referred to in Regulation 237, may then address his complaint to the Commanding Officer or the other Officer in writing, who shall then forward the complaint to his next superior officer, together with his own remarks thereon, to be dealt with in accordance with sub-regulation (1) (3) If the complainant is not satisfied with the decision on his complaint, or if he does not get the redress asked for within a period of one month from the date of submission of his complaint or the date of its dispatch to the next superior authority, as the case may be, he may request that his complaint be forwarded to the next superior authority and so on to the Chief of the Naval Staff to be dealt with in accordance with sub-regulation (1) and (2) and finally to the Government and all such requests shall be complied with. The complainant shall be justified in appealing direct to the next superior authority if he does not receive the final reply

Armed Forces Law Journal 2012 (1) 3 within a period of six months from the date of submission of his complaint. (4) No officer or sailor shall be penalized for having made a complaint in accordance with these regulations.

Superscript Item reference (a) (b) 3 Sec 27, The Air Force Act, 1950

Text/Extract (c ) Remedy of aggrieved officers – Any officer who deems himself wronged by his commanding officer or any superior officer and who on due application made to this commanding officer does not receive the redress to which he considers himself entitled, may complain to the central Government in such manner as may from time to time be specified by the proper authority Superscript Item reference (b) (a) 3 Sec 26, The Air Force Act, 1950

Text/Extract (c )

Remedy of aggrieved airman – (1) Any airman who deems himself wronged by any superior or other officer may, if not attached to a unit or detachment, complain to the officer under whose command or orders he is service; and may, if attached to a unit or detachment, complain to the officer commanding the same.

(2) When the officer complained against is the officer to whom any complaint should, under sub-section (1) be preferred, the aggrieved airman may complain to such officer’s next superior officer, and if he thinks himself wronged by such superior officer, he may complain to 1(the Chief of the Air Staff).

(3) Every officer receiving any such complaint shall make as complete an investigation into it as may be possible for giving full redress to the complainant; or, when necessary, refer, the complaint to superior authority.

(4) Every such complaint shall be preferred in such manner as may from time to time be specified by the proper authority. 2 Armed Forces Law Journal 2012 (1) . (5) The Central Government may revise any decision by 1(the Chief of the Air Staff) shall be final.

1 Subs. by Act 19 of 1955, sec.2 and Sch., for “the Commander-in-Chief”.

Superscript Item reference (b) (a) 4 Sec 15, The AFT Act, 2007

Text/Extract (c ) Jurisdiction, Powers and authority in matters of appeal against court martial – (1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a court-martial or any matter connected therewith or incidental thereto. (2)Any person aggrieved by an order, decision, finding or sentence passed by a court-martial may prefer an appeal in such form, manner and within such time as may be prescribed. (3) The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it considers necessary: Provided that no accused person shall be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. (4) The Tribunal shall allow an appeal against conviction by a court-martial where – (a) the finding of the court-martial is legally not sustainable due to any reason whatsoever; or (b)the finding involves wrong decision on a question of law; or (c)there was a material irregularity in the course of the trial resulting in miscarriage of justice, but, in any other case, may dismiss the appeal where the Tribunal considers that

Armed Forces Law Journal 2012 (1) 3 no miscarriage of justice is likely to be caused or has actually resulted to the appellant; Provided that no order dismissing the appeal by the Tribunal shall be passed unless such order is made after recording reasons therefore in writing. (5) The Tribunal may allow an appeal against conviction, and pass appropriate order thereon. (6) Notwithstanding anything contained in the foregoing provisions of this section, the Tribunal shall have the power to – (a)substitute for the findings of the court-martial, a finding of guilty for any other offence for which the offender could have been lawfully found guilty by the court-martial and pass a sentence afresh for the offence specified or involved in such findings under the provisions of the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950 (45 of 1950), as the case may be; or (b)if sentence is found to be excessive, illegal or unjust, the Tribunal may – (i) remit the whole or any part of the sentence, with or without conditions; (ii)mitigate the punishment awarded; (iii)commute such punishment to any lesser punishment or punishments mentioned in the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950), as the case may be; (c ) enhance the sentence awarded by a court-martial: Provided that no such sentence shall be enhanced unless the appellant has been given an opportunity of being heard. (d) release the appellant, if sentenced to imprisonment, on parole with or without conditions; (e) suspend a sentence of imprisonment; (f) pass any other order as it may think appropriate. 7. Notwithstanding any other provisions in this Act, for the purposes of this section, the Tribunal shall be deemed to be a criminal court for the purposes of sections 175, 178, 179, 180, 193, 195, 196 or 228 of the Indian Penal Code (45 of 1860) and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). Comments: As per Notes on Clauses of the Bill, This section specifies the jurisdiction, powers and authority to be exercised by the Tribunal in relation to matters of appeal against any order, decision, finding or sentence passed by a court martial or any matter connected therewith or incidental thereto. Sub- section (2) specifies the right to any aggrieved person to prefer an appeal against 2 Armed Forces Law Journal 2012 (1) . an order, decision, finding or sentence passed by a court- martial. Sub-section (3) provides that the Tribunal shall have powers to grant bail except in an offence punishable with death or imprisonment for life. Sub-section (7) provides that the Tribunal shall be deemed to be a criminal court for the purposes of section 175, 178, 179, 180, 193, 195, 196 or 228 of the Indian Penal Code and Chapter XXVI of the Code of Criminal Procedure, 1973.

Superscript Item reference (b) (a) 5 Sec 21, The AFT Act, 2007 Text/Extract ( c ) Application not to be admitted unless other remedies exhausted – (1) The Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of the remedies available to him under the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950 (45 of 1950), as the case may be, and respective rules and regulations made there-under. (2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950 (45 of 1950), and respective rules and regulations - (a)if a final order has been made by the Central Government or other authority or officer or other person competent to pass such order under the said Acts, rules and regulations, rejecting any petition preferred or representation made by such person; (b)where no final order has been made by the Central Government or other authority or officer or other person competent to pass such order with regard to the petition preferred or representation made by such person, if a period of six months from the date on which such petition was preferred or representation was made has expired. Comments: As per Notes on Clauses of the Bill This section specifies the condition for not admitting an application unless other available remedies are exhausted. It also specifies the remedies available and the time limit for preferring the petition or representation.

Superscript Item

Armed Forces Law Journal 2012 (1) 3 reference (b) (a) 5 Sec 22, The AFT Act,2007 Text/Extract (c ) Limitation – (1) The Tribunal shall not admit an application – (a)in case where a final order such as is mentioned in clause (a) of sub-section (2) of section 21 has been made unless the application is made within six months from the date on which such final order has been made; (b)in case where a petition or a representation such as is mentioned in clause (b) of sub-section (2) of section 21 has been made and the period of six months has expired thereafter without such final order having been made; (c )in a case where the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which jurisdiction, powers and authority of the Tribunal became exercisable under this Act, in respect of the matter to which such order relates and no proceedings for the redressal of such grievance had been commenced before the said date before the High Court. (2)Notwithstanding anything contained in sub-section (1), the Tribunal may admit an application after the period of six months referred to in clause (a) or clause (b) of sub-section (1), as the case may be, or prior to the period of three years specified in clause (c ), if the Tribunal is satisfied that the applicant had sufficient cause for not making the application within such period.

Comments As per Notes on Clauses of the Bill This section specifies the period of limitation for admitting or otherwise of an application and also to condone the limitation provided under this section.

Superscript Item reference (b) (a) 6 Para 368, Regulations for the Army Text/Extract ( c ) Petitions by ex-Soldiers – The procedure to be observed for the submission of petitions to the military authorities by persons who have been but are no longer in military employ (including reservists), or their relatives, on matters relating to their military service is as under : 2 Armed Forces Law Journal 2012 (1) . (a) in the first instance the person who wishes to submit a petition should, whenever possible, consult the nearest member of his Zila Sainik Board. (b)When necessary a petition will subsequent be addressed to the OC of the petitioner’s late unit or in the case of disbanded units to the authority indicated on the discharge certificate and where possible, the remarks of the member of the Zila Sainik Board concerned will be endorsed thereon. (c )Petitions should in no case be sent direct to the Central Government, the Chief of the Army Staff, or to officers at Army H. Q’s. Petitions so addressed involve further delay in examining the petitioners request as it is invariably necessary to refer to the OC of the petitioner’s unit before any reply can be given. (d)COs will, only after careful consideration, refer to higher authority, petitions which they are unable to dispose of themselves or on which it is desirable that the orders of higher authority should be passed. Any petition so referred will be accompanied by full particulars and where possible, a definite recommendation. (e) COs will ensure that these orders are understood by all persons in military employ at the time of their transfer to reserve or discharge.

Superscript Item reference (b) (a) 6 Para 369, Regulations for the Army Text/Extract ( c ) Petitions Submitted to Military Formations – Petitions, especially those submitted by ex-soldiers or their relatives, will be replied to inclear and sympathetic language and, as far as possible, will be answered in the language in which they are written and also in the language in vogue for correspondence for the benefit of touring officers. In cases where a petitioner’s request cannot be granted, the reasons for rejection should be sympathetically explained. Paras of regulations or instructions will not be referred to, as in the majority of cases they convey no meaning to these petitioners

Superscript Item reference (b) (a) 7 Sec 14(1), The AFT Act, 2007

Armed Forces Law Journal 2012 (1) 3 Text/Extract ( c ) Jurisdiction, powers and authority in service matters – (1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority, exercisable immediately before that day by all courts (except the Supreme Court or a High Court exercising jurisdiction under article 226 and 227 of the Constitution) in relation to all service matters.

Superscript Item reference (b) (a) 8 Sec 30, The AFT Act,2007

Text/Extract ( c )

Appeal to the Supreme Court – (1) Subject to the provisions of section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19): Provided that such appeal is preferred within a period of ninety days of the said decision or order; Provided further that there shall be no appeal against an interlocutory order of the Tribunal. (2) An appeal shall lie to the Supreme Court as of right from any order or decision of the Tribunal in the exercise of its jurisdiction to punish for contempt; Provided that an appeal under this sub-section shall be filed in the Supreme Court within sixty days from the date of the order appealed against. (3) Pending any appeal under sub-section (2) the Supreme court may order that - (a) the execution of the punishment or the order appealed against be suspended; or (b)if the appellant is in confinement, he be released on bail; Provided that where an appellant satisfies the Tribunal that he intends to prefer an appeal, the Tribunal may also exercise any of the powers conferred under clause (a) or clause (b), as the case may be.

Comments As per Notes on Clauses of the Bill 2 Armed Forces Law Journal 2012 (1) . This section provides that an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19).

Superscript Item reference (b) (a) 9 Dismissal of SLP by Apex Court in UoI Vs Gurmit Singh Butter : 2005 (5) SLR 597 Text/Extract ( c ) SUPREME COURT OF INDIA RECORD OF PROCEEDINGS Civil Appeal No.5356 of 2002 Union of India & Ors …………………….. Appellant(s) Versus Gurmit Singh Butter ………………………Respondent (with office report) Date: 01.04.2009 This Appeal was called on for hearing today.

Coram : Hon’ble Mr. Justice B N Agrawal Hon’ble Mr. Justice G S Singhvi

For Appellant(s): Mr A Sharan, ASG, Gp Capt K S Bhati, Adv., Mr B V Balaram Das, Adv.

For Respondent(s): Ms. Saahila Lamba, Adv, Mr. Sudhir Nandrajog, Adv.

Upon hearing counsel the court made the following

Heard learned counsel for the parties. In the facts and circumstances of the case, we are not inclined to interfere with the impugned order. The civil appeal is, accordingly, dismissed.

Armed Forces Law Journal 2012 (1) 3 No costs.

(B N Agrawal) …………….J (G S Singhvi) ……………..J (signed order is placed on the file) IN THE SUPREME COURT OF INDIA

Superscript Item reference (b) (a) 9 Punjab & Haryana Court Order in Gurmit Singh Butter Vs UoI 2000(3) RSJ Text/Extract ( c ) PUNJAB AND HARYANA HIGH COURT R L Anand, J. Civil Writ Petition No.15774 of 1997 Decided on 10th July, 2000 Gurmit Singh Butter …………………………………..Petitioner Versus Union of India & Ors. …………………………………Respondents

For the Petitioner : Mr. B S Sehgal, Advocate For the Respondents: Ms. Ranjana Shahi, Advocate

Pension Regulation for the Army, 1961, Regulation 173 – Disability pension – Disability on account of accident in which petitioner suffered compound fracture of Tibia and Fabula while on annual leave – Disability pension rejected on the ground that accident not attributable to military service – contention of the respondent that an Army personnel when on long leave suffers disability that disability is not attributable to the Army Service repelled – direction given to release disability pension to the petitioners.

JUDGMENT R L Anand, J (Oral) – Ex-sepoy Gurmit Singh Butter has filed the present writ petition under Article 226 of the Constitution of India for quashing the orders Annexures P2 and P7 vide which his disability pension was rejected. Further, the prayer made by the petitioner is that direction be given to the respondents to release him disability pension w.e.f. 1.4.1994.

2. Some facts can be noticed in the following manner : 2 Armed Forces Law Journal 2012 (1) . The petitioner was born on 3.3.1967. He joined the Indian Army on 3.4.1987. He met with an accident in the year 1989 when he was on annual leave and was going to purchase some items from the military canteen. He suffered compound fracture of Tibia and Fabula. He applied for disability pension which was rejected vide letter dated 28.07.1995. He also filed an appeal which was also rejected on 14.11.1996. In this manner the present petition. The notice of the writ petition was given to the respondents, who filed the reply and denied the averments of the writ petition. According to the respondents, the petitioner was on annual leave and in these circumstances the accident is not attributable to the military service. The extent of damage, however, has been admitted by the respondent -authorities.

3. The sole point which survives for determination is when an army personnel is on annual/casual leave and suffers an accident, whether such accident can be attributable to the army service or not. The learned counsel appearing on behalf of the respondents invites my attention to a judgment rendered in CWP No.4507 of 1998 titled Kulwant Singh Vs. Union of India and others and submitted that if an Army personnel suffers disability on account of an accident while on annual leave, such disability is not attributable to the Army service. On the contrary, the learned counsel for the petitioner relies upon a judgment of the Hon’ble Division Bench in Siri Krishan Vs Union of India, 1997(1) SLR 607 and another judgment ex-Sepoy Balwant Singh Vs Union of India, 1999 (3) Service Cases Today 55 and submits that even when an Army personnel is on a long leave or casual leave, such person is entitled to the benefit of disability pension irrespective of the fact that he suffers the disability while on annual leave or casual leave. Me Sehgal even submits that in CWP No 9376 of 1994 Swaran Singh vs. Union of India, decided on 18.12.1998, it was observed that if an Army personnel is on furlough and suffers an accident/disability, he is still entitled to the disability pension.

4. After considering the rival contentions of the parties, I am of the considered opinion that the submissions raised by the counsel for the respondents is devoid of any merit. In the opinion of this Court, casual leaves, annual leave, furlough or medical leave, etc. are the incidents of service and these types of leaves are permissible to the Government employees. In these circumstances, the defence of the respondents appears to be without any basis when it was argued by the learned counsel for the respondents that the petitioner suffered the injury / disability when he was on annual leave. While on annual leave the petitioner has never severed his relationship with his employer, who granted the annual leave to the petitioner according to rules. The leave will remain as a leave and casual leave, long leave,

Armed Forces Law Journal 2012 (1) 3 medical leave and furlough are the different branches of leave. This view of this Court can be looked into from other angle. Supposing an Army personnel while on long leave/casual leave/furlough commits and offence, is it not governed by Army rules? The answer is in the affirmative Supposing after availing annual leave such employee does not return to his unit, can be not be prosecuted departmentally? Again the answer is in the affirmative. If such situations are there, how it can be said that an Army personnel when on long leave suffers disability that disability is not attributable to the Army service.

5. Resultantly, I allow this petition and by quashing the orders Annexures P2 and P7 give the directions to the respondents to release the disability pension to the petitioner within three months from the receipt of the copy of this order. The petitioner, however directed to appear before the Re-Survey Medical Board, if called by the respondents-authorities. No order as to costs. Petition allowed.

Superscript Item reference (b) (a) 10 Dictum of Hon’ble Apex Court as Primacy of opinion of duly constituted Medical Boards in determining award of Disability Pension – UoI Vs Damodaran AV (Dead) through LRs, Reported in- (2009) 8 MLJ 1475 SC & 2011 (1) AFTLJ 27 Text/Extract ( c ) (2009) 8 MLJ 1475 (SC) & 2011 (1) AFTLJ 27 IN THE SUPREME COURT OF INDIA

Present: Dalveer Bhandari and Dr. Mukundakam Sharma, J.J.

CA No. 5678 of 2009 on 20th August, 2009

Secretary, Ministry of Defence and others ………………... Appellants Versus Damodaran A V (Dead) through LRs, and others ……………….Respondents

Advocates Appeared : Ms Indra Jai Singh, ASG, Ms Kiran Bhardwaj, B Krishna Prasad for Appellants Jogy Scaria, for Respondents. 2 Armed Forces Law Journal 2012 (1) .

Army Act, 1950 & Regulation 173 of Pension Regulations for the Army, 1961 – Disability Pension - A. V. Damodaran was enrolled in Indian Army on 28th Nov 1979 as Sapper - in 1984 he was diagnosed as Schizophenia (295) – invalided out of service on 17th Jan 1985 with 60% disability – disability pension was denied as Medical Board opined that the disability was not attributable to the military service nor it has aggravated thereby as Schizophrenia is a constitutional disease – High Court single judge allowed the disability pension and appeal before High Court Division Bench got dismissed – Supreme Court Held, the Medical Board is an expert body and its opinion is entitled to due weight, value and credence and relevant factor which is required to be noted is that the report of the Medical Board is not under challenge, Respondent was not entitled to any disability pension, however, paid disability pension may not be recovered – Appeal allowed.

Superscript Item reference (b) (a) 10 Dictum of Hon’ble Apex Court as Primacy of opinion of duly constituted Medical Boards in determining award of Disability Pension – Reported in AIR 2010 SUPREME COURT 3557 and 2012 (1) AFLJ 80 Om Prakash Singh Vs. Union of India & Ors. Text/Extract ( c ) IN THE SUPREME COURT OF INDIA

Civil Appeal No.5655 of 2010 (arising out of SLP (C ) No.21998 of 2009) d/20.07.10

Om Prakash Singh ……………………….Appellant Vs. Union of India & Ors. ………………….Respondents

Counsel for the Appellant: Rameshwar Prasad Goyal, Advocate, Counsel for Respondents: Mrs. Anil Katiyar, Advocate

The Army Act, 1950, Regulation 173 of the Pension Regulations for the Army 1961, Rules 5, 9, 14 & 15 the Entitlement Rules, 1982 - Disability Pension - the Appellant was enrolled in the Territorial Army as a Sepoy - the

Armed Forces Law Journal 2012 (1) 3 appellant had contacted the disease known as “Unspecified Psychosis” and invalided out from service with assessed disability as 40% - disability pension denied as Medical Board opined the disease was neither attributable to nor aggravated by the military service - High Court dismissed the Writ Petition.

Held, - We are clearly of the view that the Medical Board is an expert body and they take into consideration all relevant factors and essential practice before arriving at any opinion and its opinion is entitled to be given due weight, merit credence and value - the Medical Board has given unanimous opinion that the disease of the appellant was neither attributable to nor aggravated by the military service - in our considered opinion, no interference is called for, the Appellant is not entitled to the disability pension - the Appeal is dismissed.

Superscript Item reference (b) (a) 11 Section 47 of PWD Act, 1995 (The Persons With Disabilities [Equal Opportunities, Protection of Rights and Full Participation] Act, 1995)

Text/Extract ( c ) Published in Part II Section 1 of the Extraordinary Gazette of India Ministry of Law, Justice and Company Affairs (Legislative Department) New Delhi, the 1st January, 1996/Pausa 11, 1917 (Saka) Section 47

47(1) No establishment shall dispense with or reduce in rank, an employee who acquired a disability during his service.

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits.

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his 2 Armed Forces Law Journal 2012 (1) . disability;

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

Superscript Item reference (b) (a) 11 (i) Notification w.r.t. exemption of Armed Forces Personnel from provisions of Persons with Disability Act, 1995 Text/Extract ( c ) EXTRACT FROM THE GAZETTE OF INDIA PART II, SECTION 3 SUB- SECTION

(ii) Appearing on page Nos.3489-3490 date 13.4.2002.

Ministry of Social Justice and Empowerment Notifications New Delhi, the 28th March, 2002

S.O.1179-In exercise of the powers conferred by proviso to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1995 (1 of 1996) the Central Government having regard to the type of work carried on hereby exempt all categories of posts of combatant personnel on the Armed Forces from the provision of the said section.

(No.16-27/2001-NI.I) Smt.Rajwant Sandhu, Jt Secy.

Superscript Item reference (b) (a)

Armed Forces Law Journal 2012 (1) 3 12 Apex Court judgment on applicability of grant of Disability Pension to persons retiring voluntarily at par with those invalided out - Paramjit Singh v Union of India - P&H High Court & SLA (Civil) ...../2011 CC 5450-5451/2011 Union of India V Paramjit Singh Text/Extract (c ) Civil Writ Petition No.67 of 2007 In the High Court for the States of Punjab & Haryana at Chandigarh = Date of decision: February 12, 2008 Paramjit Singh …………………………………………….... Petitioner Versus UOI & others ………………………………………….. Respondents

Coram: Hon’ble Mr. Justice Hemant Gupta & Hon;ble Mr. Justice Mohinder Pal Brief facts of the case are that the petitioner was enrolled in the Indian Army on October 16, 1984 in Corps of Engineers. On March 25, 1998, he was posted in a field area in Jammu & Kashmir and while performing duties at insurgency prone area, sustained injuries due to IED blast generated by the suspected anti-national elements/terrorists. He was treated as a case of Pott’s fracture left ankle and was subsequently placed in low medical category (BEE Permanent). The Government treated the operation of the petitioner’s Unit as a full-fledged war. The petitioner was known as a case of Battle Casualty. He was operated for his injury on left ankle and a rod was inserted. It has been averred in the petition that disability of the petitioner was assessed at over 50 % by the Medical Board. After the operation, the petitioner found it difficult to do his duties efficiently and gave his unwillingness for two years’ extension in service. A Release Medical Board was ordered and the petitioner was recommended to be discharged from the Army. He was discharged from the Army on October 31, 2004 after rendering service of 20 years and 16 days. However, percentage of disability of the petitioner was reduced to 20 % He is getting service pension as well as disability pension at the rate of 20 %

The claim of the petitioner is that even though percentage of his disability is considered 20 %, yet he is entitled to be paid disability pension at the rate of 50 % in view of the letter dated February 03, 2000 (Annexure P-1) issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Pension & Pensioners’ Welfare New Delhi. The petitioner has also claimed that he is entitled to Disability Benefit Cover under the Army Group 2 Armed Forces Law Journal 2012 (1) . Insurance Fund for his disability. The claim of the petitioner has been contested by the respondents mainly on the ground that rounding off disability under the provisions of para 7.2 of Government of India, Ministry of Defence New Delhi letter No.1 (2)/97/D (Pen-C) dated January 31, 2001 is applicable to the individuals who were invalided out of service on medical grounds. As the petitioner was discharged on completion of terms of engagement and not invalided out from service, the relief sought for by him cannot be granted to him. It has been further averred that the petitioner is not entitled to Disability Benefit Cover under the Army Group Insurance Fund as he was discharged from service. It has also been pleaded that this Court has not territorial jurisdiction to adjudicate upon the matter.

In the replication filed by the petitioner, the averments made in the writ petition have been reiterated besides pleading that he is being paid service pension and disability pension in the State of Punjab and thus, the cause of action regarding grant of pension/full pension occurs to him at the place where he is being paid pension. As such, this Court has territorial jurisdiction to entertain the writ petition.

We have heard Mr Sandeep Bansal, Advocate appearing for the petitioner and Mr I S Saggu, Advocate appearing for the respondents and have gone through the records of the case.

The respondents have denied the benefit of 50 % disability pension and Disability Benefit Cover under the Army Group Insurance Fund to the petitioner only on the ground that he was discharged from service on completion of terms of engagement and was not invalided out from service. Thus, the only question involved in this petition is – whether the petitioner is entitled to benefits which are admissible to army personnel who are invalided out of service or not.

For answering this question, a resume’ of facts is necessary. The petitioner joined the Indian Army on October 16, 1984. On Marcy, 25, 1988, while he was performing his duties in the insurgency-prone area in Jammu & Kashmir, he sustained injuries in a blast suspected to be the handiwork of anti-national elements/terrorists. He was operated upon for his injury on left ankle and a rod was inserted. He was placed in the category of BEE Permanent. As he was unable to perform his duties efficiently after his surgery, he gave his unwillingness for two years’ extension in service. Thereafter, the Release Medical Board recommended the petitioner to be discharged from service. Thus, he was discharged from the Army on October 31, 2004 after he had rendered more than

Armed Forces Law Journal 2012 (1) 3 twenty years of service. At this stage, reference to Regulation 179 of the Army Pension Regulations, 1961 (hereinafter referred to as ‘the Pension Regulations’) is necessary and the same reads as under :-

“179. An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalidated out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 per cent or more, and service element if the degree of disability is less than 20 per cent. The service pension / service gratuity, if already sanctioned and paid, shall be adjusted against the disability pension / service element, as the case may be.

2. The disability element referred to in clause (1) above shall be assessed on the accepted degree of disablement at the time f retirement / discharge on the basis of the rank held on the date on which the wound / injury was sustained or in the case of disease on the date of first removal from duty on account of that disease.

NOTE: In the case of an individual discharged on fulfilling the terms of his retirement, his unwillingness to continue in service beyond the period of his engagement should not effect his title to the disability element under the provision of the above regulation”

A perusal of the above provisions of Regulation 179 of Pension Regulations leaves o room for doubt that the petitioner was invalidated out of service. The petitioner sustained injury/disability during service, which was attributable to and aggravated by military service and recorded by Service Medical Authorities. The NOTE below Regulation 179 makes it clear that in the case of an individual discharged on fulfilling the terms of his retirement, his unwillingness to continue in service beyond the period of his engagement, as was given by the petitioner in the present case, should not effect his title to the disability element under Regulation 179 of the Pension Regulations. In this view of the matter, we have no hesitation in holding that the petitioner will be deemed to have been invalidated out of service and is entitled to disability pension as is admissible to defence personnel who are invalidated out of service.

The letter dated February 03, 2000 (Annexure P-1), relied upon by the petitioner, so far as relevant, reads as under :- 2 Armed Forces Law Journal 2012 (1) .

“ Subject : Special benefits in cases of death and Disability in service- payment of disability Pension /family pension – recommendation of The Central Pay Commission.

The undersigned is directed to say that the Fifth Central Pay Commission, inter alia, recommended that for determining the compensation payable for death or disability under different circumstances, the cases could be broadly categorized in five distinct categories as under :- Cateogry A XX XX XX Category B XX XX XX Category C XX XX XX Category D XX XX XX Category E Death or disability arising as a result of (a) attack by or during action against extremists, anti-social element, etc. and (b) enemy action in international war or border skirmishes and warlike situations, including cases which are attributable to (i) extremists acts, exploding mines, etc. while on way to an operational area (ii) kidnapping by extremists; and (iii) battle inoculation as part of training exercises with live ammunition.

2. The fifth Central Pay Commission recommended various relief packages for the above categories, in modification of the existing provisions on the subject.

V. Disability Pension – for cases covered under category E : 1. XX XX XX 2. XX XX XX 3. XX XX XX 4. XX XX XX 5. The Fifth Central Pay Commission also suggested certain procedural changes. These have also been considered by the Government. The President is now pleased to decide as under :-

Percentage of Percentage to be recokoned Disability assessed for computation Of disability pension ------Less than 50 50 Between 50 and 75 75 Between 76 and 100 100”

In view of the letter (Annexure P-1) quoted above, the petitioner having been unable to continue in military service because of the injury suffered by him due to IED blast generated by the suspected anti-national elements/terrorists while performing duties at insurgency prone area in Jammu & Kashmir, he would be deemed to have been invalidated out of service and is entitled to be given 50 % disability pension. As we have held that the petitioner would be deemed to have been invalidated out of service, the objection of the respondents that rounding off the disability pension under the provisions of para 7.2 of Government of India, Ministry of Defence, New Delhi letter No.1 (2)/97/D(Pen-C) dated January 31, 2001 is applicable to the individuals who were invalidated out of service on medical grounds, no more holds the field. Para 7.2 of the letter dated January 31, 2001, prescribes that where an Army Forces Personnel is invalidated our of service due to acts of violence / attack by terrorists, anti-social elements, etc. and if the percentage of disability as assessed by Invalidating Medical Board is less than 50 %, the percentage to be reckoned for computing of disability element would be 50 per cent.

For the aforesaid reasons, this petition is allowed and the petitioner is held entitled to 50 % disability pension and to Disability Benefit Cover under the Army Group Insurance Fund for his disability. The disability pension at the rate of 50 % with all consequential benefits will be paid to him from the date of his retirement. The respondents shall pay all the arrears to the petitioner within two months from the date of receipt of a copy of order, failing which the petitioner will be entitled to interest at the rate of nine per cent annum.

Sd/- Sd/- (Hemant Gupta) (Mohinder Pal) Judge Judge “

Supreme Court of India Record of Proceedings

Petition(s) for Special Leave to Appeal (Civil)…/2011 CC 5450-5451/2011

(From the judgment and order dated 12/02./2008 in CWP No.67/2007 & judgment and order dated 15.5.2009 in RA No.208 of 2008 in CWP No.67 of 2007 of The High Court of Punjab & Haryana at Chandigarh) 2 Armed Forces Law Journal 2012 (1) .

Union of India & Ors. ……………………... Petitioner (s) Versus Paramjit Singh …………………… .. Respondent(s)

With IA 1-2 (c/delay in filing SLP and office report)

Date: 04/04/2011 These petitions were called on for hearing today.

CORAM Hon’ble Mr. Justice V S Sirpurkar Hon’ble Mr.Justice T S Thakur

Upon hearing counsel the Court made the following

ORDER We are not inclined to interfere with the impugned order in exercise of our discretion under Article 136 of the Constitution.

The Special Leave Petitions are, accordingly, dismissed on the ground of delay as well as on merits.

Sd/- Sd/-

Superscript Item reference (b) (a) 13 Apex Court judgment on compulsory discharge of Low Medical Category (LMC) personnel under The Army Act, 13A ultra vires - SC order – INSC 1913 (dt 07.11.2008) (RAJPAL SINGH) Text/Extract (c ) IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6587 OF 2008 (Arising out of S.L.P. (C) No. 6037 of 2007)

UNION OF INDIA & ORS. ……………….. APPELLANT (S) VERSUS

Armed Forces Law Journal 2012 (1) 3 RAJPAL SINGH ………………….. RESPONDENT (S)

WITH: [SLP (C) NOS. 14338-14339 OF 2008 AND SLP (C) NO.15430 OF 2008] JUDGMENT

D.K. JAIN, J.:

Leave granted in SLP (C) No. 6037 of 2007.

2. This appeal raises a short question whether the holding of an "Invalidating Board" is a condition precedent for discharge of a Junior Commissioned Officer (JCO) on account of low medical category?

3. For the determination of the issue aforesaid, it is unnecessary to delve deeply into the facts of the case and only a few material facts would suffice. These are: The respondent, a Junior Commissioned Officer (JCO) was enrolled in the Army on 9th March, 1980. While serving 20 JAT Regiment, on 31st July, 2000, he fell ill; was admitted to the military hospital and was discharged after treatment on 7th November, 2000, but was placed in low medical category S1H1A1P2E1 with effect from 6th November, 2000 for six months. On account of disability, namely, Ischaemic heart disease, again in May, 2001, he was continued in low medical category for another six months. Later, he was brought for review and was then placed in low medical category (permanent) for a period of two years from October, 2001.

4. However, before the expiry of the said period of two years, a show cause notice was served on the respondent on 27th February, 2002, stating that since he was placed in permanent low medical category, why he should not be discharged from service as no sheltered appointment was available and his unit was deployed in a field area. It was also stated that his retention in service was not in public interest. For the sake of ready reference, the notice is extracted below:

"20 JAT C/O 99 APO 2062/A/ February, 2002

JC 48893 IX Mb Sub Rajpal Singh 20 JAT C/o 99 APO SHOW CAUSE NOTICE

1. During re-categorization board held at 178 Army Hospital on 24.10.2001, as per AF MSF-15A you have been declared in permanent low medical category. 2. Because the unit is deployed in field area, there is no sheltered appointment. As a 2 Armed Forces Law Journal 2012 (1) . result of the above, show cause as to why you should not be discharged from service because your retention in service is not in public interest. 3. Please send reply of the show cause notice by 10.3.2002.

Sd/- xxxx (Rajesh Ahuja) Colonel Commanding Officer"

5. In his reply to the said notice, the respondent pleaded that on doctor's advice he could perform light duties and expressed his willingness to continue in service. A `Release Medical Board' was constituted, which recommended his discharge. Accordingly, by an order passed by the Officer In-charge (OIC) of 20 JAT Regiment, the respondent was discharged from service with effect from 31st August, 2002.

6. Being aggrieved, the respondent challenged his discharge by preferring a writ petition under Article 226 of the Constitution in the High Court of Delhi at New Delhi. Before the High Court the plea of the respondent was that:- (i) as a JCO he could be discharged for low medical category under Army Rule 13 (3) (I) (ii) by the Commanding Officer after obtaining the opinion of an "Invalidating Board" and not under Rule 13 (3) (I) (iii) (c) read with Rule 13 (2A) which had been applied in his case and since the opinion of the Invalidating Board had not been obtained, his discharge was contrary to the rules; (ii) as per the mandate of the afore-noted Army Rule, the recommendation of the Invalidating Board is to precede the decision for discharge and a "Release Medical Board" cannot replace the requirement of "Invalidating Board"; (iii) as per the policy directive issued by the Government on 15th March, 2000, Army Rule 13 (3) (I) (iii) (c), he could be discharged only by the Chief of Army Staff and not by OIC, 20 JAT Regiment even though under Rule 13 (2A), such power could be delegated to the commanding officer but in the present case no such decision had been taken; (iv) there was no adverse report against him either from his CO or any of the superior officers' regarding performance of his duties and general behaviour and, therefore, his continuation in service could not be said to be against public interest; (v) the OIC (Records) order of his discharge without providing an opportunity of hearing is violative of the principles of natural justice and (vi) a number of similarly situated JCOs had been retained in service and, therefore, he had been discriminated against.

7. The stand of the Government before the High Court was that retention of low medical category personnel is always subject to the availability of suitable sheltered

Armed Forces Law Journal 2012 (1) 3 appointment, commensurate with their medical category and since no suitable sheltered appointment was available with the unit due to deployment in field area, the respondent had to be discharged from service. It was also urged that since the respondent's disability had already been assessed by the Release Medical Board, he was discharged under Army Rule 13 (3) (I) (iii) (c) read with Rule 13 (2A) and Army Order 46/80 in public interest.

8. The High Court, by a well reasoned order, concluded that the discharge of the respondent without holding an "Invalidating Board" in terms of Rule 13 (3) (I) (ii) was illegal. As regards the applicability of Army Order 46 of 1980, which contemplates that the employment of permanent low medical category personnel at all times is subject to availability of suitable sheltered appointment, commensurate to their medical category, the High Court held that before the opinion is formed as to whether a person is to be retained or not on medical grounds, there has to be an opinion of the Invalidating Board to the effect that further retention in service on medical ground is not possible. The question of suitable sheltered appointment commensurating the medical category will be relevant only thereafter. According to the High Court, there is no rule stipulating that as soon as a person is placed in permanent low medical category, it will be presumed that he is unfit for further service. Consequently, the High Court allowed the writ petition; quashed the order of discharge and directed the appellants herein to reinstate the respondent in service.

9. Aggrieved by the said order, the appellants filed a Review Petition along with a number of other miscellaneous applications for interim relief. The Review Petition as well as the applications were dismissed on merits as well as on the ground of limitation. The main order dated 7th October, 2005 as well as the order in Review Petition dated 25th January, 2007 are under challenge in this appeal.

10. It was strenuously urged by Mr. Vikas Singh, learned Additional Solicitor General, that since the respondent was in low medical category, he was discharged under Army Order 46 of 1980 read with Rule 13 (3) (I) (ii) (c) of the Army Rules, 1954 (for short `the Rules') whereunder there is no requirement for convening an Invalidating Board. It was submitted that the source of power of discharge of the respondent was Sub-rule (2A) of Rule 13, which creates a special provision for discharge, notwithstanding anything to the contrary contained in Rule 13. It was contended that the meaning of the expression `unfit for further service' as used in clause (ii) of Rule 13 (3) (I) is very clear and unambiguous and, therefore, "Invalidating Board" as contemplated under the said Rule is meant only for those 2 Armed Forces Law Journal 2012 (1) . army personnel who are found medically `unfit for further service' by the Review Medical Board not for those who are placed in `low medical category (permanent)', as is the case here. In support of the proposition that when the words of the statute are clear, plain and unambiguous then the courts are bound to give effect to that meaning, irrespective of the consequences, reliance is placed on the decisions of this Court in Gurudevdatta Vksss Maryadit & Ors. Vs.State of Maharashtra & Ors.1 and Jitender Tyagi Vs. Delhi Administration & Anr.2. Reference is also made to Shailendra Dania & Ors. Vs. S.P. Dubey & Ors.3 to contend that a long past practice followed by the department is also a valid factor in seeking a particular interpretation.

11. Per contra, Mr. P. P. Rao, learned senior counsel appearing for the respondent, vehemently contended that in terms of Sub-rule (3) of Rule 13 which specifies the category of officers, competent to discharge; the grounds of discharge, and the manner of discharge, a JCO like the respondent, who had been placed in low medical category (permanent) for a period of two years, could be discharged from service only if he had been found "medically unfit for further service" on the recommendation of the Invalidating Board. According to the learned counsel, though in the order of discharge the respondent has been found to be in "low medical category (permanent)" but in effect, for the purpose of discharge, he has been found medically "unfit for further service", and, therefore, his case would clearly fall within the ambit of clause (ii) of Rule 13 (3) (I). In support of the proposition that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden, reliance was placed on the decision in Nazir Ahmad Vs. The King Emperor4, followed in State of Uttar Pradesh Vs. Singhara Singh & Ors.5. Learned counsel argued that the requirement of recommendation of Invalidating Board is a safeguard against arbitrary curtailment of statutory tenure and being a benevolent provision, requires to be liberally construed. The stand of the respondent is that the Rules relating to discharge do not make any differentiation between categorisation of the personnel on the basis of their health status and as long as a person is discharged on medical grounds as being unfit for further service, provision of Rule 13 (3) (I) (ii) would apply, irrespective of categorisation. In so far as Army Order 46 of 1980 is concerned, the learned counsel submitted that it cannot override the statutory rule. Placing reliance on the decision of this Court in Capt. Virendra Kumar Vs. Union of India6, learned counsel urged that the appellants having failed to follow the prescribed statutory procedure, the termination of service of the respondent was illegal and, therefore, the High Court was fully justified in

Armed Forces Law Journal 2012 (1) 3 setting aside the same.

12. Having examined the issue in the light of the statutory provisions, we are of the opinion that answer to the question posed has to be in the affirmative.

13.It needs little emphasis that fitness of the personnel of Armed Forces at all levels is of paramount consideration and there cannot be any compromise on that score. It is with this object in view, the Legislature has enacted the Army Act, 1950; the Armed Forces Medical Services Act, 1983 and framed the Rules. Army Orders are also issued from time to time in order to give effect to these statutory provisions in letter and spirit. As per the procedure detailed in the written submissions, filed on behalf of the appellants, annual or periodic medical examination of the army personnel is done on certain specific norms. The medical status of an army personnel is fixed on the basis of these norms, containing five components viz. (a) psychology (b) hearing (c) appendarist (d) physical and (e) eye -- which is collectively known as SHAPE. The medical status SHAPE is again characterised in five components known as:-- SHAPE I--physically fit for all purposes. SHAPE II & SHAPE III--not fit for certain duties and are required not to undertake strain. SHAPE IV--those who are in hospital for certain ailments and SHAPE V--unfit for further service of the Army.

14.It is pointed out that army personnel are put in the aforementioned medical categories i.e. SHAPE on the basis of a periodical Medical Board which is held for an individual after the age of 35 years and thereafter at an interval of every 5 years. If the army personnel is in SHAPE I, he is not required to undergo further Medical Board except annual medical examination. However, the army personnel who is placed in SHAPE II and SHAPE III on the annual medical examination, he is placed in low medical category (temporary) for a period of six months. After six months, he is placed before the Review Medical Board and if at the end of six months, his category remains unchanged, that category is awarded to him on permanent basis and he is placed in "low medical category (permanent)". After award of low medical category (permanent), the army personnel is placed before the Review Medical Board after every two years. In Review Medical Board, the medical category of the personnel may be changed keeping in view the change in any component of SHAPE. Thus, SHAPE II or SHAPE III may be placed in SHAPE I also and vice versa. It is the say of the appellants that the release of certain medical category (permanent) personnel is regulated by Army Order No.46 of 1980, which contemplates that the army personnel, who is placed in low medical category (permanent), is to be retained in service for a minimum period of 15 years (for Sepoy) and 20 years (for JCO) and during this period he is entitled to all promotions 2 Armed Forces Law Journal 2012 (1) . as per the rules; the discharge of low medical category is regulated as per the above- mentioned Army Order and before the discharge, the personnel is placed before the "Release Medical Board" for a mandatory examination before the order of discharge is passed. An army personnel who is categorized as SHAPE V is considered to be not fit for further service of the Army and on placing such a personnel in SHAPE V he is mandatorily brought before Invalidating Board in terms of Rule 13 (3), whereas an army personnel who is in SHAPE II or in SHAPE III, is to undergo different Medical Boards apart from annual medical examination. The said personnel are not totally unfit but at the same time they are not fit for all the army duties and, therefore, they are retained for 15 years or 20 years, as the case may be, on the sheltered post mandatorily.

15. Having noticed the basic parameters which are applied for categorisation of the physical status of the army personnel, it will be useful to briefly refer to relevant statutory provisions.

16. Chapter IV of the Army Act, 1950 (for short `the Act') deals with the conditions of service of the army personnel. Section 18 of the Act provides that every person subject to the Act shall hold office during the pleasure of the President. Section 19 clothes the Central Government with the power of dismissal or removal from service any person covered under the Act subject to the provisions of the Act and the Rules and Regulations made thereunder. Section 20 provides for dismissal, removal or reduction by the Chief of the Army Staff and by other officers. Section 22 of the Act provides for retirement, release or discharge from the service by such authority and in such manner as may be prescribed. Sub-Section (xix) of Section 3 of the Act states that `prescribed' means prescribed by rules made under the Act. Section 191 empowers the Central Government to make rules as regards removal, retirement, release or discharge from the service of persons subject to the Act. Pursuant to and in furtherance of the power conferred on the Central Government under Section 191 of the Act, the Central Government framed the Rules.

17. Rule 13 which is the pivotal provision reads thus: "13. Authorities empowered to authorise discharge.--(1) Each of the authorities specified in column 3 of the Table below, shall be the competent authority to discharge from service person subject to the Act specified in column 1 thereof on the grounds specified in column 2. (2) Any power conferred by this rule on any of the aforesaid authorities shall also be exercisable by any other authority superior to it. [(2A) Where the Central Government or the Chief of the Army Staff decides that any person or class or persons subject to the Act should be discharged from service, either unconditionally

Armed Forces Law Journal 2012 (1) 3 or on the fulfillment of certain specified conditions, then, notwithstanding anything contained in this rule, the Commanding Officer shall also be the competent authority to discharge from service such person or any person belonging to such class in accordance with the said decision.] (3) In this table "commanding officer" means the officer commanding the corps or department to which the person to be discharged belongs except that in the case of junior commissioned officers and warrant officers of the Special Medical Section of the Army Medical Corps, the "commanding officer" means the Director of the Medical Services, Army, and in the case of junior commissioned officer and warrant officers of Remounts, Veterinary and Farms, Corps, the "Commanding Officer" means the Director Remounts, Veterinary and Farms.

TABLE Category Grounds of Discharge Competent Manner of authority to Discharge authorize discharge 1 2 3 4 Junior I.(i)(a) On completion of the Commanding Commissioned prescribed period of service or Officer Officers tenure specified in the Regulations for his rank or appointment, are on reaching the age limit whichever is earlier, unless trainee on the active list of further specified period with the sanction of the Chief of the Army Staff or on becoming eligible for release under the Regulations.

(b) At his own request on transfer to the pension Commanding establishment Officer To be carried out (ii) Having been found only on the medically unfit for further Commanding Officer recommendation service. of an Invaliding Board (iii) All other classes of (a) In the case of discharge Junior Commissioned If the discharge is not at the request Officers granted of the Junior direct 2 Armed Forces Law Journal 2012 (1) .

commissions Commissioned during the 1st 12 Officer the months service competent Area /Divisional authority before Commander. sanctioning the discharge shall, if the circumstances of the case permit, give the JCO concerned an opportunity to show cause against the order of discharge. (b) In the case of JCOs, not covered by (a), serving in any Army or Command the General Officer Commanding-in- Chief of that Army or command if not below the rank of Lieutenant General.

(c ) In any other case, the Chief of the Army Staff.

18. The afore-extracted Rule 13 (1) clearly enumerates the authorities competent to discharge from service, the specified person; the grounds of discharge and the manner of discharge. It is manifest that when in terms of this Rule an army personnel is discharged on completion of service or tenure or at the request of the person concerned, no specific manner of discharge is prescribed. Naturally, the Regulations or Army Orders will take care of the field not covered by the Rules. However, for discharge on other grounds, specified in Column (2) of the Table, appended to the Rule, the manner of discharge is clearly laid out. It is plain that a discharge on the ground of having been found "medically unfit for further service" is specifically dealt with in Column (I) (ii) of the Table, which stipulates that discharge in such a case is to be carried out only on the recommendation of the Invalidating Board. It is a cardinal principle of interpretation of a Statute that only

Armed Forces Law Journal 2012 (1) 3 those cases or situations can be covered under a residual head, which are not covered under a specific head. It is, therefore, clear that only those cases of discharge would fall within the ambit of the residual head, viz. I (iii) which are not covered under the preceding specific heads. In other words, if a JCO is to be discharged from the service on the ground of "medically unfit for further service", irrespective of the fact whether he is or was in a low medical category, his order of discharge can be made only on the recommendation of an Invalidating Board. The said rule being clear and unambiguous is capable of only this interpretation and no other.

19. Having reached the said conclusion, we feel that the appellants were bound to follow Rule 13 (3) (I) (ii), more so having placed the respondent in low medical category (permanent) for a period of two years from October, 2001 he was discharged from service on 31st August, 2002, relying on the recommendation of the Re-categorisation Board held on 24th October, 2001. As noted in the show cause notice, extracted above, the said Board had placed the respondent in "permanent low medical category". Be that as it may, the main ground of discharge being medical unfitness for further service, the appellants was bound to follow the prescribed rule. 20. It is well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Justice Frankfurter in Viteralli Vs. Saton7, where the learned Judge said:

359 U.S. 535 : Law Ed (Second series) 1012 20

"An executive agency must be rigorously held to the standards by which it professes its action to be judged... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed...This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword."

21. The afore-extracted observations were approved and followed in Sukhdev Singh & Ors. Vs. Bhagatram Sardar Singh Raghuvanshi & Anr.8 and then again in Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab & Ors.9 wherein, speaking for a three-Judge Bench, P.N. Bhagwati, J. had observed that though the above view was not based on the equality clause of the United States Constitution and it was 2 Armed Forces Law Journal 2012 (1) . evolved as a rule of administrative law but the principle remains the same, namely, that arbitrariness should be eliminated in a State action. (Also see: Ramana Dayaram Shetty Vs. International Airport Authority of India & Ors.10).

22. In view of the foregoing interpretation of the relevant rule, we are in complete agreement with the High Court that where a JCO is sought to be discharged on the ground of medical unfitness for further service, his case has to be dealt with strictly in accordance with the procedure contemplated in Clause I (ii) in Column 2 of the Table appended to Rule 13. The Rule prescribes a particular procedure for discharge of a JCO on account of medical unfitness, which must be followed and, therefore, any order of discharge passed without subjecting him to Invalidating Board would fall foul of the said statutory rule.

23.In the present case, it is evident from Column 9 of the order of discharge that respondent has been discharged on account of his having been placed in a low medical category (permanent) by the Re-categorisation Board. As noted above, he was not discharged immediately and was apparently detailed for sheltered appointment. However, suddenly within a few months of his evaluation by the "Re- categorisation Board", he was served with a show cause notice, seeking to discharge him on the aforementioned grounds. We are convinced that although the discharge is purportedly shown to be also on account of non-availability of a sheltered appointment, the main ground for discharge was undoubtedly on account of permanent low medical category i.e. medical unfitness. In that view of the matter, the order of discharge of the respondent would not fall under the residual ground, namely, I (iii) in Column 2 of the Table.

24. That takes us to the next question whether the case of the respondent for discharge could be dealt with in accordance with Army Order 46 of 1980, de hors Rule 13, as contended by the appellants.

25.Relevant portion of the said order reads as follows: "AO 46/80 Disposal of Permanent Low Medical Category Personnel other than Officers Aim

1. The aim of this Army Order is to lay down implementation instructions for the disposal of permanent low medical category JCOs/OR in terms of Min of Def Letter No. A/32395/VIII/Org 2 (MP) (c)/713-S/A/D (AG) dated 10 May, 77 as amended vide Corrigendum No. A/32395/X/Org 2 (MP) (c)/7167/A/D (AG) dated 26 Nov 79, reproduced as Appendice `A' and `B' respectively to this order.

Retention

2. General Principles (a) The employment of permanent low medical category personnel, at all times, is subject to the availability of suitable alternative appointments commensurate with their medical category and also to the proviso that this can be justified in the public interest, and that their retention will not exceed the sanctioned strength of the regiment/corps. When such an appointment is not available or when their retention is either not considered necessary in the interest of the service or it exceeds the sanctioned strength of the regiment/corps, they will be discharged irrespective of the service put in by them.

(b) Ordinarily, permanent low medical category personnel will be retained in service till completion of 15 years service in the case of JCOs and 10 years in the case of OR (including NCOs). However, such personnel may continue to be retained in service beyond the above period until they become due for discharge in the normal manner subject to their willingness and the fulfilment of the stipulation laid in Sub Para (a) above.

3. All personnel retained in service in terms of Para 2 above will, under all circumstances, be discharged on completion of their engagement periods/retiring service limits. For this purpose, NCOs and JCOs will be treated as under:- (a) NCOs will be discharged on completion of the retiring service limits appropriate to ranks as opposed to the extended limits laid down in AO 13/77. However, their retention beyond the contractual period of engagement will be regulated under the provisions of Paras 144 to 147 of Regulations for the Army 1962.

(b) JCOs will be discharged on completion of the normal retiring service limits as opposed to the extended limits laid down in AO 13/77.

4. Personnel suffering from pulmonary tuberculosis, including those who may be cured of the disease, will be disposed of in accordance with the provisions of Min of Def letter No. 22679/DGAFMS/DG-3A/2721/D(ME:- dated 18 Jul 74 (reproduced in AO 150/75), as amended/amplified from time to time.

5. Cases of all permanent low medical category personnel will be reviewed by all concerned accordingly. In the case of those personnel who become due for discharge as per the instructions contained in the preceding paragraphs, immediate action will be taken in the normal manner to carry of their discharge, as 2 Armed Forces Law Journal 2012 (1) . expeditiously as possible.

6. This order only lays down the general policy and procedure with regard to the disposal of permanent low medical category personnel. The actual discharge will, however, be carried out in accordance with the provisions of Min of Def letter No. A/32395/VIII/Org 2 (MP) (c)/713-S/a/D (AG) dated 10 May 77, as amended vide Corrigendum No. A/32395/X/Org (MP) (c)/ 7167/A/D (AG) dated 26 Nov 79 (reproduced as Appendices `A' and `B' respectively) and this HQ letter No. 8861/AG/PS 2 (c) dated 18 Aug 64, read with letter No 8861/AG/PS 2(c) dated 26 Mar/1 Apr 70.

7. Cases of permanent low medical category personnel already decided under the existing provisions, will not be re-opened.

8. This supersedes all previous instructions on the subject. A/32395/X/Org 2(MP)"

26. It is manifest that the said Army Order has been issued for disposal of permanent low medical category personnel and merely contemplates that the employment of permanent low medical category personnel at all times, is subject to the availability of suitable alternative appointments commensurate with their medical categories and also subject to the conditions that such a sheltered appointment can be justified in the public interest. A plain reading of the Army Order shows that it comes into operation after an opinion has been formed as to whether a particular personnel is to be retained in service or not, if so for what period. If a person is to be retained in service despite his low medical category for a particular period as stipulated in the Army Order 46 of 1980, the question of subjecting him to Invalidating Board may not arise. However, if a person is to be discharged on the ground of medical unfitness, at that stage of his tenure of service or extended service within the meaning of the Army Order, he has to be discharged as per the procedure laid down in Clause I (ii) in Column 2 of the said Table. Similarly, Sub-rule (2A) of Rule 13, heavily relied upon by the appellants does not carry the case of the appellants any further. It is only an enabling provision to authorise the commanding officer to discharge from service a person or a class of persons in respect whereof a decision has been taken by the Central Government or the Chief of Army Staff to discharge him from service either unconditionally or on the fulfillment of certain specified conditions. The said provision is not in any way in conflict with the scope of the remaining part of Rule 13, so as to give it an overriding effect, being a non obstante provision.

27. For the foregoing reasons, we wholly agree with the reasoning and the conclusion of the High Court that the discharge of the respondent was not in accordance with the prescribed procedure and was, therefore, illegal. We do not find any illegality or infirmity in the impugned judgment/order, warranting our interference. The appeal, being devoid of any merit, is dismissed accordingly with costs.

28. These tagged special leave petitions have been preferred against the orders passed by the High Court, declining to grant interim relief to the writ petitioners. Since the main issue now stands decided, there is no point in entertaining these petitions. All the petitions are dismissed accordingly without observing anything on merits. It will be open to the High Court to now take up the main writ petitions for disposal in accordance with law...... J. (C. K. THAKKER) ...... J. (D.K. JAIN) NEW DELHI; NOVEMBER 7, 2008.

Superscript Item reference (b) (a) 14 Policy letter post-V CPC, on pensionary benefits on death/disability in attributable / aggravated cases - MoD ltr No.1(2)/97/D(Pen-C) dated 31.01.2001 including broad-banding and at par VI CPC, Most Important Circular No. 410 of office of the PCDA (Pensions), Allahabad, dated:13.05.2009. Text/Extract (c ) Reproduction of Government of India, Ministry of Defence Letter No.1(2)/97/I/D(Pen-C) dated 31 st January 2001 {Derivative of Ministry of Personnel, Public Grievances & Pension, D/o Pension & Pensioners’ Welfare OM of 03.02.2000}

“Sub : Implementation of the Government decisions on the recommendations of the Fifth Central Pay Commission regarding disability pension / war injury pension / special family pension / liberalised family pension / dependent pension / liberalised dependent family pension for the armed forces officers and personnel below officer rank retiring, invaliding or dying in harness on or after 1-1-96. Sir, 2 Armed Forces Law Journal 2012 (1) . The undersigned is directed to state that in pursuance of Government decisions on the recommendations of the Fifth Central Pay Commission, sanction of the President is hereby accorded to the modification, to the extent specified int his letter, in the rules / regulations concerning above mentioned pensionary benefits of the Commissioned Officers (including MNS) and Personnel Below Officer Rank (PBOR) including NCs (E) of the three Services, Defence Security Corps and the Territorial Army (here in after collectively referred to as Armed Forces Personnel.)

1.2 The provision of the Pension Regulations of the three Services and various Service instructions / Government orders which are not affected by the provisions of this letter, will remain unchanged.

Part I – Date of effect and definitions

2.1 The provisions of this letter shall apply to the Armed Forces personnel who were in service on 1.1.1996 or joined /join service thereafter unless otherwise specified in this letter.

2.2 Where pension has already been sanctioned provisionally or otherwise in cases occurring on or after 1.1.1996 the same would be revised in terms of these orders. In cases where pension has been finally sanctioned under the pre revised orders and if it happens to be more beneficial than the pension becoming due under, these orders, the pension already sanctioned shall not be revised to the disadvantage of the pensioners.

Definitions :- 3.1 Unless otherwise specified in this letter, the term ‘Reckonable Emoluments” shall mean –

a) For Officers : Pay including Rank Pay, non-practising Allowance, Stagnation Increment, if any, last drawn by the officer (Ref SAI 2/S/98, SNI 2/S/98 and SAFI 1/S/98).

b) For Personnel Below Officer Rank (PBOR) : Pay including Classification allowances, Stagnation increment, if any, last drawn by the individual . (Ref SAI 1/S/98, SNI 1/S/98 and SAFI 1/S/98).

3.2 In the case of individuals who opt/opted to continue to draw pay in the pre-

Armed Forces Law Journal 2012 (1) 3 revised scales beyond 31.12.95 and remain / remained in that scale till retirement / discharge / invalidment / death in harness pension / family pension and retirement / death gratuity shall be regulated in terms of Para 3.3 and 3.4 of Ministry of Defence letter No.1(6)/98/D(Pen/Ser) dated 03 Feb, 98.

Part II – Pensionary Benefits on Death / Disability in Attributable / Aggravated cases 4.1 For determining the pensionary benefits for death or disability under different circumstances due to attributable / aggravated causes, the cases will be broadly categorized as follows :-

Category A Death or disability due to natural causes neither attributable to nor aggravated by military service as determined by the competent medical authorities. Examples would be ailments of nature of constitutional diseases as assessed by medical authorities, chronic ailments like heart and renal diseases, prolonged illness, accidents while not on duty.

Category B Death or disability due to causes which are accepted as attributable to or aggravated by military service as determined by the competent medical authorities. Diseases contracted because of continued exposure to a hostile work environment, subject to extreme weather conditions or occupational hazards resulting in death or disability would be examples.

Category C Death or disability due to accidents in the performance of duties such as :- (i) Accidents while travelling on duty in Government vehicles or public / private transport (ii) Accidents during air journeys (iii) Mishaps at sea while on duty (iv) Electrocution while on duty, etc. (v) Accidents during participation in organized sports events/adventure activations/expeditions/training.

Category D Death or disability due to acts of violence / attack by terrorists, anti social elements, etc whether on duty other than operational duty or even when not on duty. Bomb blasts in public places or transport, indiscriminate shooting incidents in public, etc. would be covered under this category, besides death / disability 2 Armed Forces Law Journal 2012 (1) . occurring while employed in the aid of civil power in dealing with natural calamities.

Category E Death or disability arising as a result of :- (a) enemy action in international war; (b) action during deployment with a peace keeping mission abroad; (c) border skirmishes (d) during laying or clearance of mines including enemy mines as also minesweeping operation; (e) on account of accidental explosions of mines while laying operationally oriented mine-field or lifting or negotiating minefield laid by enemy or own forces in operational areas near international borders or the line of control.

(f) War like situations, including cases which are attributable to/aggravated by :- (i) extremists acts, exploding mines, etc. while on way to operational area; (ii) battle inoculation training exercises or demonstration with live ammunition (iii) kidnapping by extremists while on operational duty (b) An act of violence / attack / extremists, anti-social elements, etc. (c) Action against extremists, antisocial elements, etc. Death / disability while employed in the aid of civil power in quelling agitation, riots or revolt by demonstrators will be covered under this category. (d) Operations specially notified by the Govt. from time to time.

4.2 Cases covered under category ‘A’ would be dealt with in accordance with the provisions contained in the Ministry of Defence letter No.1(6)/98/D (Pen/Services) dated 3.2.98 and cases under category ‘B’ to ‘E’ will be dealt with under the provisions of this letter.

Notes :- i) The illustrations given in each category are not exhaustive. Cases not covered under these categories will be dealt with as per Entitlement Rules to Casualty Pensionary awards in vogue. ii) The question whether a death / disability is attributable to or aggravated by military service will be determined as per provisions of the Pension Regulations for the Armed Forces and the Entitlement Rules in vogue as amended from time to time.

Armed Forces Law Journal 2012 (1) 3 iii) In case of death while in service which is not accepted as attributable to or aggravated by Military Service or death after retirement/ discharge/invalidment, Ordinary Family Pension shall be admissible as specified in Min of Def letter No. 1(6)/98/D(Pen/Ser) dated 03 Feb 98 as modified vide Ministry of Defence letter No.1(1)/99/D(Pen/Ser) dated 7.6.99. iv) Where an Armed Forces personnel is invalided out of service due to non-attributable/non-aggravated causes, Invalid pension/gratuity shall be paid in terms of para 9 of Ministry of Defence letter No.1(6)/98/D(Pen/Ser) dated 03 Feb 98 as amended / modified vide Ministry of Defence letter No.1(1)/99/D(Pen/Ser) dated 07.06.99.

Para III – Family Pensionary Benefits in Attributable / Aggravated cases

5. Special Family Pension (SFP) 5.1 In cases of death of an Armed Forces Personnel under the circumstances mentioned in category “B” or “C” of para 4 above, Special Family Pension shall continue to be admissible to the families of such personnel under the same conditions as in force hithertofore. There shall be no condition of minimum service on the date of death for grant of Special Family Pension.

5.2 The Special Family Pension shall be calculated at the uniform rate of 60 % of Reckonable Emoluments as defined in para 3 above subject to a minimum of Rs.2550/- irrespective of whether widow has child(ren) or not. There shall be no maximum ceiling on Special Family Pension Ministry of Defence order No.F.PC1(2)/97/D(Pen-C) dated 22.9.99 stands amended accordingly.

5.3 In case the children become the beneficiary, the Special Family Pension at same rate (i.e., 60% of Reckonable Emoluments) shall be admissible to the senior most eligible child till he/she attains the age of 25 years or up to the date of his/her marriage whichever is earlier. Thereafter Special Family pension shall pass on to next eligible child.

Notes: (1) Widowed/divorced daughters up to the age of 25 years or marriage whichever is earlier shall also be included in the definition of family for the purpose of Special Family Pension.

(2) In case the eligible child is physically or mentally handicapped and unable to earn a livelihood, the Special Family Pension would be admissible for life to such 2 Armed Forces Law Journal 2012 (1) . a child subject to same conditions as in force hitherto fore.

5.4 In case of personnel below officer rank, the existing provisions of nominating anyone from the eligible members of the family (except dependent brothers/sisters) for the first life award of Special Family Pension and of transferring the same in full to the widow regardless of her financial position in the event of death of parents, where they were nominated as the original awardees, shall continue.

5.5 Families of SSCOs and ECOs who die under circumstances mentioned in category ‘B’ & ‘C’ of para 4.1 above shall also be entitled to Special Family Pension as per para 5.1 above.

5.6 Dependent Pension in respect of Officers (including MNS Officers, IA officers & ECOs/SSCOs): Dependent pension shall be admissible to the parent(s)/eligible brothers and sisters (in the absence of parents) of the deceased officers,who die under circumstances as mentioned in para 5.1 above as a bachelor or widower without children, at a rate equal to 50 % of notional Special Family Pension that would have been admissible as per para 5.2 above.

Notes: (1) Condition as laid down in para 5.3 above regarding age limit and marriage shall equally apply to dependant brothers/sisters for grant of dependent pension which shall be paid to the senior most eligible brother/sister at a time.

(2) The condition regarding means limit was dispensed with vide MOD letter No.1(5)/87/D(Pen/Ser)dt 30.10.87. Status-quo-ante will continue.

5.7 Second Life award in respect of PBOR including NCs(E) Second Life Awards (Special Family Pension) shall be admissible to the parent(s) of the deceased irrespective of single or both and in the absence of the parents, to the eligible brothers and sisters of the deceased, at the rates specified in para 5.6 above and the condition specified in the note there under.

5.8 Special Family Pension on Remarriage of widow : Special Family Pension on remarriage of widow, shall be regulated as follows : a)Commissioned Officers :- (i) If she has child(ren)

Armed Forces Law Journal 2012 (1) 3 (a.a) If she continues to support children after remarriage: Full Special Family Pension to continue to widow. (a.b) If she does not support children after remarriage: Ordinary Family Pension (OFP) equal to 30 % emoluments last drawn to the remarried widow. (ii) If widow has no children: Full Special Family Pension to continue to widow. b) PBOR :- (i) If Special Family Pension is sanctioned to the widow: Same provisions as applicable to Officers. (ii) Where first life award is sanctioned to parents: (a.a)If widow continues to support children after Remarriage or has no issues: 50 % of SFP to parents, 50 % of SFP to widow. (a.b)If widow does not support children after re-marriage but the children are support by the parents: Full SFP to parents and Ordinary Family Pension to widow. (a.c) If children are not supported either by the Re-married widow or the parents: 50 % of SFP to parents, 50 % of SFP to eligible children and Ordinary Family Pension to widow. (a.d) On death or disqualification of parents and the widow supports the children or has no issues: Full SFP to widow (a.e) On death or disqualification of parents and the Widow does not support the children: Full SFP to eligible children & Ordinary Family Pension to widow.

6. Liberalised Family Pension (LFP) :- 6.1 In case of death of an Armed Forces Personnel under the circumstances mentioned in category “D” & “E” of para 4.1 above, the eligible member of the family shall be entitled to Liberalised Family Pension equal to reckonable emoluments last drawn as defined in para 3.1 above, both for officers and PBOR. Liberalized Family Pension at this rate shall be admissible to the widow in the case of officers and to the nominated heir in the case of PBOR until death or disqualification.

6.2 If the Armed Forces personnel is not survived by widow but is survived by child/children only, all children together shall be eligible for Liberalized Family Pension at the rate equal to 60 % reckonable emoluments as defined in para 5.2. Liberalised Family Pension shall be payable to the child/children for the period during which they would have been eligible as in the case of Special Family 2 Armed Forces Law Journal 2012 (1) . pension. The Liberalized Family pension shall be paid to the senior most eligible child at a time. On his/her death/disqualification it will pass on to next eligible child. The provision of Para 5.3 (except rates) will be applicable here also.

Note: In view of the rationalization of Liberalized Family Pension and provisions on re-marriage of widow, Children Allowance will not be payable in addition to Liberalized Family Pension.

6.3 Families of SSCOs and ECOs who die under circumstances mentioned in category “D” and “E” of para 4.1 above shall also be entitled to Liberalised Family Pension as per para 6.1 above.

6.4 Dependent pension (Liberalized) in respect of Commissioned Offiers (including MNS Officers, TA Officers and ECOs/SSCOs) :- Where an officer dies as a bachelor or as a widower without children under the circumstances mentioned in para 4.1 “D” & “E” above. Dependent Pension (Liberalised) shall be admissible to parents without reference to their pecuniary circumstances at the rate of 75 % of Liberalised Family pension for both parents and at the rate of 60 % of Liberalized Family pension for single parent. Ond the death of one parent, dependent pension at the latter rate shall be admissible to the surviving parent. In the absence of parents, dependent pension shall be admissible to dependent brother(s) / sister(s) if otherwise eligible at the rate of 60 % of LFP.

Note:- Condition as laid down in Para 5.3 above regarding age limit and marriage shall equally apply to dependent brother/sister for grant of dependant pension which shall be paid to the senior most eligible brother/sister at a time.

6.5 Second Life award (Liberalized Family Pension) in respect of PBOR including NCs(E) :- Second Life Award in respect of personnel below officer rank who die under the circumstances mentioned in para 4.1 “D” & “E” above shall be regulated as under :-

(a) If the first recipient (other than the parents) of the family pensionary award dies / is disqualified earlier than 7 years (counting from the date of casualty), the award will be continued at the same rate to the parents as second life award, if still alive, for the balance of 7 years without any reduction. After the initial period of 7 years, the second life award will be continued at the rate of 60 % of the Liberalised Family Pension. (b) Where the first life award was given to a parent and the widow remarries, the Liberalised Family Pension shall be regulated depending upon the period of

Armed Forces Law Journal 2012 (1) 3 widow’s remarriage as follows :-

(i) If widow continues to support the children or has no children : Widow will get family pension equal to Special Family Pension (i.e., 60 % of liberalized family pension or reckonable emoluments) from the date of remarriage and the parents will also get family pension at the rate of 60 % of liberalized family pension for the balance of 7 years if the remarriage of widow takes place during 7 years of casualty. After the period of seven years or where remarriage of widow took place after seven years, widow will get family pension @ 60 % liberalized family pension and parents will get family pension at the rate of 30 % of liberalised family pension. On death or disqualification of parents, widow will get family pension equal to the liberalized family pension for life.

(ii) If widow does not support the children : Widow will get Ordinary Family Pension (i.e., 30 % of reckonable emoluments) for life from the date of remarriage and the parents will continue to get first life award at the same rate (i.e., full liberalized family pension) for balance of seven years where remarriage takes place within 7 years of casualty, provided they support the children. Otherwise, the entitlement of parents will be equally divided between the parents and children. After the period of 7 years or where remarriage of widow takes place after seven years of casualty, parents will get family pension at the rate of 60 % of liberalized family pension provided they support the children, otherwise it will be divided equally between the parents and the children. On death / disqualification of parents of deceased service personnel, the senior most eligible child will get family pension at the rate of 60 % of liberalized family pension.

NOTE : Wherever children become beneficiary, the award will be continued for a period and subject to conditions as applicable for grant of Special Family Pension. Provisions of para 5.3 above shall also apply.

6.6 Liberalised Family Pension on re-marriage of widow :- Liberalized Family Pension on remarriage of widow, shall be regulated as follows :-

(a) Commissioned Officers :-

(i) If she has children :- (a.a) If she continues to support children after remarriage: Full Liberalized Family Pension to continue to widow 2 Armed Forces Law Journal 2012 (1) . (a.b) If she does not support children after remarriage: Ordinary Family Pension at 30 % to widow & Special Family Pension at 60 % to eligible children (ii) If widow has no children : Full Liberalised Family Pension to continue to widow.

(b) PBOR :-

(i) If Liberalised Family Pension is sanctioned as first life award to the widow :- Same provisions as at (a) above shall be applicable. (ii) Where first life award is sanctioned to parents :- The admissibility of Liberalised Family Pension in such cases would be regulated as mentioned in para 6.5 (b) above.

Part IV – Disability / War injury Pensionary Awards

7. Disability Pension on invalidment :- 7.1 Where an Armed Forces Personnel is invalided out of service under circumstances mentioned in category “B” & “C” of para 4.1 above which is accepted as attributable to or aggravated by Military service, he/she shall be entitled to disability pension consisting of service element and disability element as follows :-

(i)Service Element :-

(i) Commissioned Officers :- The amount of service element shall be equal to the retiring pension determined as per para 6.1(c ) of this Ministry’s letter No.1(6)/98/D(Pen/Ser) dated 03 Feb 98. For this purpose the reckonable qualifying service shall mean the actual service rendered by the officer plus the full weightage appropriate to the rank held at the time of invalidment (except in the case of TA officers) as given in para 5(b) of the Ministry’s above said letter dated 03 Feb 98. There shall be no condition of minimum qualifying service having been actually rendered for earning this element, if otherwise due.

(ii) PBOR :Service element will be determined as follows :-

Length of actual qualifying Entitlement of Service Element service rendered (without

Armed Forces Law Journal 2012 (1) 3 weightage) 15 years or more (20 years or more Equal to normal service pension relevant in the case of NCs(E) to the length of qualifying service actually rendered plus weightage of service as given in para 5 and 6 of Ministry’s letter dated 03 Feb 98 ibid. Less than 15 years (20 years in case Equal to service pension as determined as of NCs(E) per Para 6.2 (b) of Ministry’s letter dated 03 Feb 98 but it shall in no case be less than 2/3 rd of the minimum service pension admissible to the rank/pay group. Note: The existing provisions in the case of PBOR regarding grant of service element equal to minimum service pension appropriate to the rank and pay group in case where service is less than 15 years (20 years in the case of NCs(E)) and the disability is sustained in flying / Parachute jumping duty or while being carried on duty in an aircraft under proper authority shall continue.

(ii) (a) Disability Element :- The rate of Disability element for 100 % disability for various ranks shall be as follows :- Rank Amount p.m. (i) Commissioned Officers and Hony Rs. 2600/- Commissioned Officers of the three Services, MNS, TA and DSC (ii) Junior Commissioned offices and equivalent Rs.1900/- ranks of the three services, TA and DSC (iii) Other ranks of the three services, TA and Rs.1550/- DSC

(b) Disability lower than 100 % shall be reduced with reference to percentages as laid down in Para 7.2 below. Provided that where permanent disability is not less than 60 %, the disability pension (i.e., total of service element plus disability element) shall not be less than 60 % of the reckonable emoluments last drawn.

7.2 Where an Armed Forces personnel is invalided out under circumstances mentioned in para 4.1 above, the extent of disability or functional incapacity shall be determined in the following manner for the purposes of computing the disability element :- Percentage of disability as assessed by Percentage to be reckoned for invaliding medical board computing of disability element 2 Armed Forces Law Journal 2012 (1) . Less than 50 50 Between 50 and 75 75 Between 76 and 100 100

8. Disability Element on retirement / discharge :- 8.1 Where an Armed Forces personnel is retained in service despite disability arising / sustained under the circumstances mentioned under category “B” & “C” in para 4.1 above and is subsequently retired / discharged on attaining age of retirement or on completion of tenure, he/she shall be entitled to disability element at the rates prescribed at para 7.1.II(a) above for 100 % disablement.

8.2 For disabilities less than 100 % but not less than 20 % the above rates shall be proportionately reduced . No disability element shall be payable for disabilities less than 20 % Provisions contained in prara 7.2 above shall not be applicable for computing disability element. Disability actually assessed by the duly approved Release Medical Board / Invaliding Medical Board as accepted by the Pension Sanctioning Authority, shall reckon for computing disability element.

8.3 Retiring / Service pension or Retiring Service Gratuity as admissible as per Ministry of Defence letter No.1(6)/98/D(Pen/Ser) dated 03 Feb 93 shall be payable in addition to disability element from the date of retirement / discharge.

Note: An Armed Forces personnel who retires voluntarily / or seek discharge on request shall not be eligible for any award on account of disability. Provided that Armed Forces personnel who is due for retirement / discharge on completion of tenure, or on completion of service limits or on completion of terms of engagement or on attaining the prescribed age of retirement, and who seeks pre- mature retirement / discharge on request for the purpose of getting higher commutation value of pension shall remain eligible for disability element.

9. Lumpsum Compensation in lieu of Disability Element :- 9.1 In case a person belonging to the Armed Forces is found to have a disability which is sustained under the circumstances mentioned under category “B” & “C” in para 4.1 above which is assessed at 20 % or more for life but the individual is retained in service despite such disability, he / she shall be paid a compensation in lump sum (in lieu of disability element) equal to the capitalised value of disability element on the basis of disability actually assessed (i.e., provisions of para 7.2 above shall not apply). The rates of disability element for calculating capitalized value shall be as laid down in para 7.1 (II) (a). The above rates shall be proportionately reduced for lesser percentage of disability. The age next birthday

Armed Forces Law Journal 2012 (1) 3 will be reckoned with reference to the date of onset of disability with loading of age, if any, recommended by the Disability Compensation Medical Board. Once a compensation has been paid in lieu of the disability element, there shall be no further entitlement to the disability element for the same disability under the provisions of para 8 above. Such disability shall also not qualify for grant of any pensionary benefits or relief subsequently.

9.2 The provision contained in para 9.1 above shall be applicable to casualties on or after 01 Jan 96.

10. War Injury Pension on Invalidment :- 10.1 Where an Armed Forces personnel is invalided out of service on account of disabilities sustained under circumstances mentioned in category “E” of para 4.1 above, he/she shall be entitled to War Injury Pension consisting of Service element and War Injury element as follows :-

(a) Service Element :- Equal to Retiring / Service Pension to which he / she would have been entitled on the basis of his / her pay on the date of invalidment but counting service upto the date on which he / she would have retired in that rank in normal course including weightage as admissible. Provisions of para 6 of Ministry of Defence letter No.1(6)/98/D(Pen/Ser) dated 03.02.98 shall apply of calculating Retiring / Service Pension. There shall be no condition of minimum qualifying service for earning this element.

(b) War Injury Element:- Equal to reckonable emoluments last drawn for 100 % disablement. However, in no case the aggregate of Service Element and War Injury element should exceed last pay drawn. For lower percentage of disablement, War Injury element shall be proportionately reduced.

10.2 Provisions contained in para 7.2 shall equally apply to individuals invalided out under the circumstances mentioned in category “D” and “E” of para 4.1 above for calculating War Injury element of War Injury Pension. 10.3 Retirement gratuity admissible on invalidment due to war injury shall be calculated on the basis of reckonable emoluments on the date of invalidment but counting service up to the date on which he / she would have normally retired in that rank plus weightage as applicable (total not exceeding 33 years). Other provisions of Retirement Gratuity contained in 2 Armed Forces Law Journal 2012 (1) . Para 12.1 of Ministry of Defence letter No.1(6)/98/D(Pen/Ser) dated 03 Feb 98 shall equally apply.

11. War Injury Pension on Retention in Service :- 11.1 Armed Forces personnel who are retained in service despite the disability due to war injury sustained under circumstances mentioned in Category “E” of para 4.1 above, and retire subsequently will have an option as follows to be exercised with in a period as prescribed by the Government from time to time:- (a) to draw lump sum compensation in lieu of War Injury element foregoing war injury element at the time of subsequent retirement / discharge, or (b) to draw war injury element at the time of retirement in addition to retiring / service pension admissible o retirement / discharge foregoing lump sum compensation.

11.2 Lump sum Compensation in lieu of War Injury Pension :- In case an Armed Forces personnel is found to have a disability which is sustained under the circumstances mentioned in category “E” in para 4.1 above which is assessed at 20 % or more for life but the individual is retained in service despite disability and opts for lump sum compensation, he shall be paid the lump sum compensation in lieu of war injury element. The rates for calculation of lump sum compensation in lieu of war injury element for 100 % disability for life will be as under :-

(a) Commissioned Officers and Hony Commissioned Officers of Rs.5200/- the three Services, MNS, TA & DSC (b) JCOs and equivalent ranks of the Air Force, Navy, TA and Rs.3800/- DSC (c) Other ranks / NCs(E) and equivalent rank of Air Force, Navy, Rs.3100/- TA and DSC

For disability due to war injury of less than 100 % the rates shall be proportionately reduced. The one time compensation in lump sum in lieu of War Injury element will be equal to the capitalized value of war Injury element which shall be calculated in accordance with Regulation 344 of the Pension Regulations for the Army (and similar corresponding provisions in the Pension Regulations for the Air Force and the Navy) and will be equal to the capitalized value of war injury element for the actual percentage of the disability at the appropriate rate mentioned in para 11.2 above. For this purpose, the rank shall be the rank held at the time of injury sustained by the individual due to war. Age next birthday will be reckoned with reference to the date of onset of disability with loading to age if any, recommended by the competent Medical Board.

Compensation in lieu of war injury element will be payable provided the degree of disablement is equal to or more than 20 % Once the compensation in lieu of war injury element due to disability for life has been paid, there shall be no further entitlement on account of such a disability at the time of retirement / discharge from the Armed Forces. Since this is one time payment on account of compensation, no restoration will be permitted.

11.3The provision contained in para 11.2 above shall be applicable to casualties occurring on or after 01 Jan 96.

11.4War Injury Element on subsequent retirement: Where an Armed Forces personnel is retained in service despite injury / disability sustained under the circumstances mentioned in category “E of para 4.1 above and does not opt for lump sum compensation in lieu of war injury, he/ she shall be entitled to the payment of war injury element on a monthly basis at the rates prescribed under para 11.2 above on subsequent retirement / discharge or on completion of the term of engagement.

11.5 For disabilities less than 100 % but not less than 20 % the above rates shall be proportionately reduced. No war injury element shall be payable for disabilities less than 20 % Provisions contained in para 7.2 above shall not be applicable for computing war injury element. Disability actually assessed by the duly approved Release Medical Board / Invaliding Medical Board shall reckon for computing war injury element.

11.6 Retiring / Service pension or Retiring / Service Gratuity as admissible as per Ministry of Defence letter No.1(6)/98/D(Pen/Ser) dated 03 Feb 98 shall be payable in addition to war injury element from the date of retirement / discharge.

Note: An Armed Forces personnel who retires voluntarily / or seek discharge on request shall not be eligible for any award on account of disability. Provided that Armed Forces personnel who is due for retirement / discharge on completion of tenure, or on completion of service limits or on completion of the terms of engagement, or on attaining the prescribed age of retirement, and who seeks pre- mature retirement / discharge on request for the purpose of getting higher commutation value of pension, shall remain eligible for disability element.

12. Liberalized Disability Pension in respect of Armed Forces Personnel sustaining disability under the circumstances mentioned in Category “D” of 2 Armed Forces Law Journal 2012 (1) . para 4.1 above :- Armed Forces Personnel sustaining disability under the circumstances mentioned in category “D” of para 4.1 above shall be entitled to same pensionary benefits as admissible to war injury cases on invalidment / retirement / discharge including lump sum compensation in lieu of disability as mentioned in para 10 and 11 above. However, on invalidment they shall be entitled to disability element instead of war injury element in addition to service element. The service element will be equal to retiring / service pension to which he / she would have been entitled on the basis of his / her pay on the date of invalidment but counting service up to that date on which he would have retired in that rank in the normal course including weightage as admissible. Provisions of para 6 of Ministry of Defence letter No.1(6)/98/D(Pen/Ser) dated 3.2.98 shall apply for calculating retiring / service pension. There shall be no condition of minimum qualifying service pension. There shall be no condition of minimum qualifying service for earning this element. This disability element would be admissible as laid down in para 7.1 (II) (a) above. For lower percentage of disablement, this amount shall be proportionately reduced. However, in no case aggregate of service element and disability element shall be less than 80 % of reckonable emoluments last drawn.

Note:- Armed Forces personnel sustaining disability under the circumstances mentioned in Category “D” of para 4.1 above shall not be treated as War Disabled. Hence, they will not be entitled to any special concessions / dispensation otherwise available to war disabled.

Constant Attendance Allowance :- 13. Constant Attendance Allowance shall continue to be admissible under the conditions as hitherto fore. However, it shall be admissible at a uniform rate of Rs.600/- p.m., irrespective of the rank.

GENERAL – Part V

Rounding off of Pensionary Awards :- 14. The amount of various pensionary awards admissible as per this letter shall be rounded off to the next higher rupee by the Pension Sanctioning Authorities. Minimum / Maximum Pension :- 15. If the amount of any monthly pension (excluding Constant Attendance Allowance) admissible under the provisions of this letter works out to less than Rs.1275/- p.m., it shall be stepped up to Rs.1275/- pm and authorized for payment at this rate. Disability element shall not be taken into account for the purposes of

Armed Forces Law Journal 2012 (1) 3 stepping up of service element to the minimum level of Rs.1275/- p.m. In cases where disability element is paid in isolation, it shall not be stepped up to the minimum level of Rs.1275/- pm. There will be no maximum ceiling on the amount of pension.

Dearness Relief :- 16. Dearness Relief shall be admissible only beyond average CPI 1510 on the revised pattern introduced vide Ministry of Personnel, Public Grievances and pension, Department of pension and pensioners’ Welfare Office Memorandum No.42/2/97-P&PW(G) dated 27 Oct 97 on various types of pension / family pension admissible under the provisions of this letter.

Procedure for sanction of Revised Pension in respect of those who already retired:- 17. The procedure for revision of pensionary awards as per provisions of this letter, in respect of those who have already retired on or after 1.1.96 and in whose cases pensionary benefits at pre-revised rate have already been notified will be prescribed by the Pension Sanctioning Authority and intimated to service Headquarters and Record Offices.

18. Pension Regulations of the three Services will be amended in due course.

19. This issue with the concurrence of the Finance Division of this Ministry vide their U.I.No.299/Pen/2001 dated 31.1.2001.

20. Hindi version will follow. Yours faithfully, Sd/- (SUDHAKER SHUKLA) DIRECTOR (PENSIONS)

At Par VI CPC MOST IMPORTANT CIRCULAR OFFICE OF THE PCDA (PENSIONS), DRAUPADI GHAT ALLAHABAD Circular No. 410 Dated: 13.05.2009. To 01 . The Chief Accountant, RBI, Deptt. of Govt. Bank Recount Central Office, C-7 llnd Floor Bandre Kurla Complex, P.B. No. 8143 Bandre East, 2 Armed Forces Law Journal 2012 (1) . Mumbai-400051. 02. All CMDs of Public Sector Banks 03. CMD of ICICI Bank 04. CMD of IDBI Bank 05. CMD of Axis Bank 06. CMD of HDFC Bank 07. Military and Air Attache, Indian Embassy Kathmandu Nepal. 08. The Defence Pension Disbursing Officers. 09. The Treasury officers. 10. The Pay and Accounts Office. 11. Pay and Accounts Office, Government of Maharashtra, Mumbai. 12. The Post Master Kathua (J & K), Camp Bell Bay (Andaman and Nicobar)

Subject:- Implementation of Govt, decision on the recommendations of the Sixth Central Pay Commission - Rationalization of casualty Pensionary Awards for the Armed Forces Officers and Personnel below Officer Rank(PBOR) including DSC and Territorial Army Personnel retiring /discharged /invalided out from service prior to 01.01.2006.

Reference:- Government of India, Ministry of Defence letter No.16(6)/2008/ (1) /D(Pension/Policy) dated 04.05.2009 and GOI, MOD letter No. No. 17(4)/2008(1)/D (Pen/Policy) dated 11.11.2008 and this Office Circulars No. 397,398 dated 18.11.2008.No.401 dated 18,12.2008, No. 403 dated 02.02.2009.

(Available on the Website of this office www. pedapension. nic.in) A copy of Government of India, Ministry of Defence letter No. 16 (6)/2008/(1) /D(Pension/Policy) dated 04.05.2009 regarding Implementation of Govt, decision on the recommendations of the Sixth Central Pay Commission - Rationalization of casualty Pensionary Awards for the Armed Forces Officers and Personnel below Officer Rank (PBOR) retiring /discharged /invalided out from service prior to 01.01.2006 is forwarded herewith for implementation. These orders have also been put on this office web site www.pcdapension.nic.in .

2. The following further clarifications/instructions are issued for smooth implementation of Ministry of Defence letter on the subject:-

3. General Guidelines: Implementation of its provisions regarding revision of various elements of pension may be done keeping in view the following general guidelines:

Armed Forces Law Journal 2012 (1) 3 (i) Applicability: These Orders are applicable to all Pre-2006 Armed Forces Family/Disability/War Injury Pensioners who were/are in receipt of Special Family Pension/Liberalized Family Pension / Dependent / Disability / War Injury Pension as on 01.01.2006. (ii) Non Applicability: The provisions of this letter do not apply in the following cases: - (a) Gallantry Awards, such as Param Vir Chakra/Ashok Chakra etc. amount of Gallantry Awards sanctioned or notified either separately or with special family pension/liberalized family pension will not be taken into account for revision of Special Family Pension/Liberalized Family pension under these orders. (b) UK/HKSRA pensioners/family pensioners. (c) KCIOs who are in receipt of pension in Pound or Sterling as on 01.1.1996. (d) Persons in receipt of Compassionate Allowance/Guzara/Reservists Allowance or any other allowance on which relief is not payable. (e) Ex-gratia family pension @ Rs. 605/- p.m. wef 01.11.1997 to the families of the deceased reservist under MOD letter No. B/40029/AG/PS- 4(d)/1/B/D Pen/Sers dated 07.01.1999. (f) Family Pensioners of Armed Forces Pensioners who are in receipt of Ordinary Family Pension. (iii) No Revision where Pre-revised Pension is more beneficial: In cases where pension has been finally sanctioned under the pre-revised orders and if it happens to be more beneficial than the pension becoming due under these orders, the pension already sanctioned shall not be revised to the disadvantage of the pensioners. (iv) Elements to be revised by PDAs: (a) Special Family Pension(SFP) (b) Liberalized Family Pension (LFP) (c) Dependent Pension (SFP) (d) Dependent Pension (Liberalized) (e) Special Family Pension/Liberalized Family Pension on remarriage of widow where PPO has already been notified. However, fresh remarriage cases may be referred to the PSA for notification. (f) Second life award (Special Family Pension) and second life award (Liberalized Family Pension) (g) Disability Pension and disability element paid in addition to retiring/service pension. (h) War Injury Pension and War Injury element paid in addition to retiring/service pension. 2 Armed Forces Law Journal 2012 (1) . (i) Constant Attendance Allowance.

4. Guidelines for Revision of Specific Elements: 4.1 (i) Service Element of Disability Pension and War Injury Pension Service Element of disability pension and war injury pension has already been consolidated in terms of Para 4.1 of GOI, MOD letter No. 17(4)/2008(1)/D (Pension/Policy) dated 11.11.2008 circulated vide this office circular No. 397 dated 18.11.22009 (No. Gts/Tech/0165/V dated 18.1.2008). Where consolidation / revision of service element of disability pension and war injury pension have not been carried out, the same may be done as indicated in Para 4.1 and Para 5 of MOD letter 11.11.2008. (ii) Disability element of Disability / Liberalized Disability Pension: For pensioners in receipt of disability element of disability pension or disability element paid in addition to retiring/service pension as on 01.01.2006, the rates of disability element for 100% disability in non-battle casualty cases shall be as under: RANK Amount per month of Disability Element for 100% Disability (i) Commissioned Officer and Honey, Commissioned Officer of Army, Navy and Air Force including MNS, TA and DSC Rs.5880 (ii) Junior Commissioned Officers of Army and equivalent ranks of Navy and Air Force including TA and DSC Rs. 4300/- (iii) Other ranks of three services including TA and DSC Rs.3510/- Where the disability of a pensioner is less than 100%, the rates of disability element shall be proportionately reduced. Please refer to Annexure I for the proportionate reduction table in this regard. Note When only disability element is drawn in isolation (not in addition of retiring/service pension), the above rates will not be applicable and such cases will be regulated in terms of Para 9.1 of MOD letter dated 11.11.2008 circulated vide this office Circular No. 397 dated 18.12.2009. (iii) War injury element of War Injury Pension: For pensioners in receipt of War Injury Element of War Injury Pension or War Injury elements paid in addition to retiring/service pension as on 01.01.2006,

Armed Forces Law Journal 2012 (1) 3 the rates of war injury element for 100% disability cases shall be as under: RANK Amount per month of war injury Element for 100% Disability (i) Commissioned Officer and Honey, Commissioned Officer of Army, Navy and Air Force including MNS, TA and DSC Rs.11,760/- (ii) Junior Commissioned Officers of Army and equivalent ranks of Navy and Air Force including TA and DSC Rs. 8,600/- (iii) Other ranks of three services including TA and DSC Rs. 7,020/-

Where the disability of a pensioner is less than 100%, the rates of war injury element shall be proportionately reduced. Please refer to Annexure II for the proportionate reduction of War injury element. Where the War injury element revised in terms of Para 9 read with Para 4.1 of MOD letter dated 11.11.2008,is higher than the amount of War Injury Element as calculated above, the same (higher consolidated amount) will be treated as revised War Injury Element with effect from 01.01.2006. (iv) The percentage of disability which the pensioner is in receipt of disability pension / disability element/War Injury element / war injury pension shall be taken from the relevant PPOs notifying the award for the period from 1.1.2006 onwards. Note:- The amount of disability element already commuted out of pre-revised disability element should be deducted from the revised disability element till restoration of commuted portion of pension. (v) Constant Attendance Allowance: With effect from 01.01.2006, Constant Attendance Allowance, in all eligible battle/non battle casualty case shall be paid at the revised rate of Rs.3000/- p.m., irrespective of the rank. Further this rate to increase by 25% every time the dearness allowance payable on revised pay band goes up by 50%

4.2 Special/Liberalized Family Pension/ dependent pension (Special)/ dependent pension (liberalized) in respect of PBOR and Commissioned Officers: Special Family Pension/Liberalized Family Pension (LFP) has already been consolidated in terms of Para 4.1 of GOI, MOD letter No. 17(4)/2008(1)/D (Pension/Policy) dated 11.11.2008 circulated vide this office circular No. 397 2 Armed Forces Law Journal 2012 (1) . dated 18.11.2009 (No.Gts/Tech/0165/V dated 18.1.2008). The Special Family Pension, so consolidated, irrespective of the date of the award shall not be less than 7000/-pm. Where consolidated / revised Special/Liberalized Family Pension/ dependent pension (Special)/ dependent pension (liberalized) in respect of PBOR and Commissioned Officers have not been carried out, the same may be done as per MOD letter 11.11.2008.

Note:- In case of Special Family Pension/Liberalized Family Pension, where the pension has been divided due to re-marriage of widow or dispute in family between two or more eligible members of the family, revised special family pension/liberalized family pension worked out as above shall be divided in the same ratio in which it was initially divided. The sum total of divided parts of pension shall not exceed the basic pension so consolidated.

5. Dearness Relief: Dearness Relief shall be admissible on the revised rates commencing from 01.07.2006 at the rates sanctioned from time to time vide Ministry of Personnel, Public Grievances and Pension (Deptt. of Pension and Pensioners’ Welfare) Office memorandum No. 42/2/2008-P&PW(G) dated 12.9.2008. While calculating dearness relief on disability pension, service element and disability element, both will be taken together.

6. Clarification on doubtful cases. In cases where the PDAs are in doubt regarding the revision in individual cases, the concrete cases with full details of pensioners and PPO number may be referred to the concerned Pension Sanctioning Authorities as given below:- (i) Pr. CDA (P) Allahabad: (a) Cases pertaining to Commissioned Officers and PBOR of the Army. (b) Cases pertaining the Commissioned Officers and PBOR of the Navy who died in service or who retired prior to 01.11.1985 and in whose case the pension being revised was notified by Pr. CDA (P). (c) Cases pertaining to the Commissioned Officers and PBOR of the Air Force who died in Service or who retired prior to 01.11.1985 and in whose case the pension being revised, was notified by Pr. CDA (P).

Name of the nominated officers to whom the cases are to be referred:- Commissioned Officers (d) Such cases may be referred to Shri C.K, Bhatjiwale, SAO, Gl/Military Section of Commissioned Officers.

Armed Forces Law Journal 2012 (1) 3 PBOR (e) The doubtful cases of PBOR of disability /War Injury pension may be referred to Shri K K Pandey, Accounts Officer, Grants Revision Cell. (f) The doubtful cases of PBOR of Special Family Pension/Liberalised Family Pension may be referred to Shri S K Pandey, Accounts Officer, Grants Revision Cell.

(ii) PCDA (Navy), Mumbai: Cases pertaining to the Commissioned Officer and PBOR of the Navy who died in service or who retired on or after 01.11.1985.

(iii) COA (AF), New Delhi: Cases pertaining to the Commissioned Officer and PBOR of the Air Force who died in service or who retired on or after 01.11.1985.

Calculation Sheet 7. Calculation sheet (as per specimen attached as Annexure-lll in respect of pension revised under these orders may please be sent to Ol/C Audit/Coordination Section of this Office separately for further necessary action. A copy of this Annexure -III may also be given to the pensioner.

8. Miscellaneous Instructions: 8.1 Life Time Arrears (LTA) (i) If a pensioner/family pensioner to whom benefit accrues under the provisions of this letter, has already died before receiving the payment of arrears, the LTA will be disbursed in the following manner: - (ii) If the claimant is already in receipt of Family Pension or happens to be the person in whose favour Family Pension already stands notified and the awardee has not become ineligible for any reason, the LTA under the provisions of this letter should be paid to such a claimant by the PDAs on their own. (iii) If the claimant has already received LTA in the past in respect of the deceased to whom the benefit would have accrued the LTA under the provisions of this letter should also be paid to such a claimant by the PDAs on their own. (iv) If the claimant is a person other than the one mentioned at (i) & (ii) above, payment of LTA will be made to the legal heir/heirs as per extant Government Orders.

8.2 No additional Commutation No commutation will be admissible for the additional amount of pension 2 Armed Forces Law Journal 2012 (1) . accruing as a result of this revision. The existing amount of pension commuted, if any, would continue to be deducted from the consolidated pension while making monthly disbursements.

8.3 Retirement Gratuity/Death Gratuity not affected Updation of pension/family pension under these orders will not affect the amount of Retirement Gratuity/Death Gratuity already determined and paid to the pensioners/family pensioners with reference to rules in force at the time of discharge/death.

8.4 Recovery of Over payments. Any overpayment of pension coming to the notice or under process of recovery shall be adjusted in full by the Pension Disbursing Agencies against arrears becoming due on revision of pension on the basis of these orders.

8.5 Due/Drawn Statements: All the payments already made wef 01.01.2006 shall be adjusted by preparing due and drawn statements. A suitable entry regarding revised Special Family pension/Liberalized Family Pension/Disability Pension should be made in check register/payment register/pension payment scroll/pension certificate etc.

8.6 Payment of Arrears (i) 40% of the arrears for the period of 01.01.2006 to 31.08.2008 on account of updation of pension/family pension under these orders will be paid immediately and remaining 60% of arrears shall be payable in the year 2009-2010 on receipt of Government Orders. (ii) It is considered desirable that the benefit of these orders should reach the pensioners as expeditiously as possible. To achieve this objective, it is desired that all Pension Disbursing Agencies should ensure that the revised pension and the first instalment of arrears due to the pensioners in terms of these orders is paid to the pensioners or credited to their account immediately. Instructions regarding release of second instalment of arrears will be issued in due course. (Sd) .. .. (R.K. SAROJ) Dr. C.d.A. (P) No. Gts/Tech/0165-XII Dated 13.05.2008

Copy to:

Armed Forces Law Journal 2012 (1) 3 1. The Dy. Secretary, Govt, of India, Ministry of PPG & P (Deptt. of P & PW), Lok Nayak Bhawan, New Delhi. 2. Director (Pensions), Govt, of India, Ministry of Defence D(Pen/Sers), Sena Bhawan, Wing ‘A’ New Delhi. 3. Army HQrs AG’s Branch, PS-4(b) DHQ, PO New Delhi - 110011. 4. AHQ GS Branch, TA Directorate, DHQ PO New Delhi - 110011. 5. Naval HQrs, PP & A, DHQ PO New Delhi. 6. DPA, Vayu Bhawan, New Delhi-11. 7. Air HQrs Ad PP & P - 3, West Block-VI, R. K. Puram, New Delhi - 110066. 8. Shri A. K. JENA, IDAS, Sr. Dy. CGDA(AT-II), O/O the CGDA, West Block-V, R. K. Puram, New Delhi - 110066. With reference to his No.5698/AT-PA/l CPC/Def/Vol-IV dated 11.05.2009. 9. PCDA(Navy) No.-1, Cooperage Road, Mumbai - 400039. 10. CDA(AF), West Block-V, R. K. Puram, New Delhi - 110066. 11. JCDA(AG) Subroto Park, New Delhi - 110010. 12. Director of Audit, Defence Service, New Delhi , 13. All Record Offices/Regiment. Corp. 14. Bureau of Sailors, Cheetah Camp, Mumbai. 15. Air Force Record, Dhaula Kunwa, Delhi Cantt. 16. All Addl CsDA/Jt. CsDA in Main Office. 17. All GOs in Main Office. 18. The Ol/C, G-1 (M), AT(ORs)-Tech. & G-1 /Civil (Tech.) 19. All SAOs/AOs/AAOs/SOs(A) in Gts/Ors Complex. 20. The Ol/C, EDP Manual. 21. The Ol/C, EDP Centre. 22. Defence Pension Liaison Cell. 23. All Sections in Main Office. 24. Spare copies in file No. Gts/Tech/0148, 148, 0162 & 0158' 25. OIC.G -2 Section 26. Ol/C, G - 3 Section. 27. Ol/C, G - 4 Section. 28. Ol/C O&M Cell 29. Ol/C Complaint Cell 30. The Ol/C, Reception Centre 31. The Ol/C, EDP Centre (Website) 32. The Ol/C, DPTI Cell 33. Spare 2 Armed Forces Law Journal 2012 (1) .

(Sd.) .. .. … (R.K. SARO/J) Dy. C.D.A. (P)

Superscript Item reference (b) (a) 15 Government order on Family Pension to families of missing persons – (i) MoD Letter No.12(16)/86/D(Pension /Service) dated 03.06.88 (ii)MoD letter No.12 (16)/85/D (Pension/Service) dated26.08.93 (iii) MoD letter No.1(1)/2010/D(Pen/Pol) dated 15.02.2011 Text/Extract (c ) (i) “Reproduction of Government of India, Ministry of Defence, Letter No. 12(16)/86/D(Pension /Service) dated 3rd June, 1988.

Sub : Release of DCRG, leave Encashment and Family Pension in respect of Armed Forces personnel who are missing. Sir, A number of cases have been referred to this Ministry for grant of terminal and other pensionary benefits to the families of service personnel who have suddenly disappeared while in operational and non-operational service and whose whereabouts are not known. At present all such cases are considered on merits. In the normal course unless a period of 7 years has elapsed from the date of disappearance of the employee, he cannot be deemed to be dead and therefore the retirement benefits cannot be paid to the family. This principle is based on Section 108 of the Indian Evidence Act which provides that when the question is whether the man is alive or dead and it is proved that he had not been heard of for 7 years by those who would naturally have heard of him had he been alive, the burden of proving that he is alive is shifted to the person who affirms it. This has resulted in grant hardship and distress to the families who have to wait for 7 years before any terminal benefits could be paid to them.

2. The President is therefore pleased to decided that when a member of the ‘Indian Armed’ Forces is declared missing while in service, the family will be paid the following benefits subject to adjustment of outstanding dues in respect of the missing personnel, if any :- a) Immediately after the date of declaration of disappearance:

The amount of salary due, leave encashment due and DSOF/AFPP Fund amount subject to nomination made by the missing personnel. b) After the lapse of one year from the date of declaration of disappearance / presumption of death :

Family pension / DCRG etc. as admissible in normal conditions.

3. The above benefits may be sanctioned after observing following formalities :- i) The family must lodge a report with the concerned Police Station and obtain a report that the employee has not been traced after all efforts had been made by the police. ii) The claimant will be required to furnish an indemnity bond with two solvent sureties to the effect all payments thus made will be recovered from the amount due to the person if he/she reappears and make any claims.

4. The family can apply to the concerned authority for grant of family pension and DCR Gratuity after one year from the date of declaration of disappearance of the service personnel in accordance with the procedure for sanction of family pension and DCR Gratuity. In case the disbursement of DCR Gratuity is not effected within 3 months of the date of application, the interest shall be paid at the rates applicable and responsibility for the delay fixed.

5. In the case of officers, the respective Branch / Dte at Service HQrs and in the case of JCOs/OR and equivalent in Navy and Air Force, their respective Records Offices will process such cases with CDA (O)/PAO/ CDA(P)/ CDA(Navy) /CDA(Air Force).

6. The provisions of this letter take effect from 29th August, 1986. 2 Armed Forces Law Journal 2012 (1) .

7. This issues with the concurrence of the Finance Division of this Ministry vide their U.O. No. 802-Pen of 1988. Yours faithfully, Sd/- (Y K Talwar) Desk Officer”

(ii) Reproduction of Government of India, Ministry of Defence, Letter No.12 (16)/85/D (Pension/Service) dated 26 th August, 1993.

“Sub : Grant of Family Pension and gratuity to the families of Armed Forces personnel / pensioners who disappear suddenly and whose whereabouts are not known. Sir, I am directed to refer to this Ministry’s letter of even number dated 23rd March, 1992 on the above subject and to say that in accordance with the provisions contained therein the date of disappearance of the serving Armed Forces personnel / pensioners is reckoned from the date the First Information Report is lodge with the police by the family and the period of one year after which the benefits of Family pension and Gratuity are be sanctioned, is reckoned from this date. At present the Family Pension is sanctioned and paid to the eligible member of the family one year after the date of lodging the FIR with the police and no Family Pension is paid for the intervening period of one year from the date the FIR is lodged to the date the family pension can be sanctioned.

2. The above practice is causing hardship to the families. It has, therefore, been decided that the Family Pension, which in pursuance of the earlier orders, will continue to be sanctioned and paid one year after the date of lodging the FIR will accrue from the date of lodging the FIR or expiry of leave of the service personnel who has disappeared whichever is later. At the time of issue of sanction of family pension, the payment of pension from the date of accrual will be authorized. The usual procedure of obtaining the Indemnity Bond etc., will continue to be followed while sanctioning payment of family pension as laid down in Govt. letter of even number dated 23rd March, 1992. It will be ensured by the concerned authorities that Family Pension is not authorised for any period during which payment of pay and allowances in respect of the disappeared service personnel has been made.

Armed Forces Law Journal 2012 (1) 3 3. The provisions of this letter take effect from 18th February, 1993, based on Deptt. Of Pension & Pensioners Welfare OM No.1/17/P&PW/nE dated 18 th February, 1993.

4. This issues with the concurrence of Finance Division of this Ministry vide their U.O.No.1793/Pen-93 dated 25.8.93. Yours faithfully, Sd/- (Diwan Chand) Desk Officer” (iii) Reproduction of Government of India, Ministry of Defence, Letter No.1(1)/2010/D(Pen/Pol) dated 15 th February, 2011 “To The Chief of the Army Staff The Chief of the Naval Staff The Chief of the Air Staff

Sub: Grant of Family Pension and gratuity to the families of Forces personnel/pensioners who disappear suddenly and whose whereabouts are not known. ************ Sir, The undersigned is directed to refer this Ministry’s letter No.12(16)/86/D(Pen/Ser) dated 3rd June, 1988 as amended vide letters of even no. dated 20th March, 1990 dated 23rd March, 1992 and dated 26th August, 1993, concerning grant of Family Pension to the eligible family members of the Armed Forces personnel / pensioners who have suddenly disappeared and whose whereabouts are not known, after one year from the date of lodging FIR or expiry of authorized leave of the Armed Force personnel who has disappeared whichever is later.

2. While considering the demand of Staff Side of the National Council (JCM) concerning withdrawal of the mandatory condition of one year prescribed in regard to sanction of family pension to the eligible family member of the civilian Government servant / pensioners, Ministry of Personnel, Public Grievances & Pension, Department of Pension & Pensoner’s Welfare, New Delhi vide their OM No.1/28/04-P&PW(E) dated 2nd July 2010 has decided in consultation with the Ministry of Finance (Department of Expenditure) that the Family Pension / 2 Armed Forces Law Journal 2012 (1) . retirement or death gratuity to the eligible family members of a Government servant / pensioner reported missing and whose whereabouts are not known, may be sanctioned after a period of six months from the date of registration of an FIR with the Police subject to fulfillment of other conditions.

3. The provisions of Ministry of Personnel, Public Grievances & Pension, Department of Pension & Pensioners’ Welfare, New Delhi above said OM dated 2nd July, 2010 shall mutatis mutandis apply to Armed Forces Personnel.

4. This issues with the concurrence of Finance Division of this Ministry vide their U.O. No.172/F/P/2011 dated 14.2.11. Hindi version will follow. Yours faithfully Sd/- Malathi Narayanan Under Secretary to the Government of India

Coy to : Recognized Associations as per standard distribution list.”

Superscript Item reference (b) (a) 16 Rule 54 – sub-rule 13 (b) & 24 of the CCS (Pension) Rules, 1972. Text/Extract (c ) Rule 54. Family Pension, 1964 :

(13-B) Family Pension admissible under this rule shall not be granted to a person who is already in receipt of Family Pension or is eligible there for under any other rules of the Central Government or a State Government and / or Public Sector Undertaking / Autonomous Body / Local Fund under the Central or a State Government.

Provided that a person who is otherwise eligible for family pension under this rule may opt to receive family pension under this rule if he forgoes family pension admissible from any other source.

Armed Forces Law Journal 2012 (1) 3 1[Provided further that family pension admissible under the Employees Pension Scheme, 1995 and the Family Pension Scheme, 1971, shall, however, be allowed in addition to the family pension admissible under these rules.]

(24) Family pension under the Employees’ Pension Scheme is admissible in addition to family pension under Rule 54 of the CCS (Pension) Rules, 1972 - Sub-rule 13 (b) of Rule 54 of CCS (Pension) Rules, 1972 was amended by notification, dated the 27th July, 2001 by insertion of the following proviso after the first proviso :- “ Provided further that family pension admissible under the Employees’ Pension Scheme, 1995 and the Family Pension Scheme, 1971, shall however, be allowed in addition to the family pension admissible under these rules.”

(2) The said amendment has come into force from the date of publication of the said Notification, i.e., the 27th July, 2001. Clarification has, however, been sought by some Ministries/Departments as to (i) whether the said Notification is applicable only in respect of those persons who retired on or after 27.07.2001; (ii) whether the Notification would also apply in cases of family pensions which arose prior to 27.07.2001 i.e., where retirement/death of a re-employed pensioner occurred before 27.07.2001; and (iii) in the event of the benefit being admissible in cases where retirement / death of a re-employed pensioner occurred before 27.07.2001, whether the benefit is to be given with effect from 27.07.2001 only, i.e., the date from which the said Notification came into force.

(3) It is clarified that the benefit of family pension under Family Pension Scheme, 1971 and Employees’ Pension Scheme, 1995, in addition to the Family Pension under Rule 54 of the Central Civil Services (Pension) Rules, 1972 will be admissible in those cases also where retirement/death of a re-employed pensioner, who was covered by the Family Pension Scheme, 1971 or the Employees’ Pension Scheme, 1995, took place prior to 27.07.2001, besides covering those cases where retirement / death of such a re-employed pensioner took place on or after 27.07.2001. The benefit of second family pension in cases of retirement / death prior to 27.07.2001 of the re-employed pensioner covered by the Family Pension Scheme, 1971 or Employees’ Pension Scheme, 1995, will, however, be admissible only with effect from 27.07.2001, i.e., the date from whch the said Notification came into force.

{G.I., Dept of P & P.W. O.M.No.1/19/96-P&PW (E) dated the 10th July, 2002 - 2 Armed Forces Law Journal 2012 (1) . Extracted below}

The above instructions are also applicable to the Central Government pensioners who got permanently absorbed in the PSU/Autonomous Body and were compulsorily governed by FPS,1971/EPS,1995.

{G.I., Dept of P & P.W., O.M.No.4/10/2006-P&PW(D) dated the 14th May, 2007}

(A) Copy of Government of India, Ministry of Defence letter No.2/CC/B/D/(Pen)/Services)/2001 dated 28 th August, 2001.

Sub : Grant of Family Pension under the Employees Pension Scheme 1995 and Family Pension Scheme 1971 in addition to Family Pension from military side, Sir, I am directed to forward a copy of DP&PW’s Office Notification No.1/19/96/P&PW(E) dated 27.07.2001. This will be applicable mutatis mutandis to Armed Forces Personnel who were re-employed in the Organisations / Establishments where Employees Pension Scheme, 1995 and Family Pension Scheme, 1971 are in force. This will come into force on the date the ibid notificagtion dated 27.07.2001 of DP & PW is published in the Official Gazette, i.e., 27.07.2001 (Copy reproduced below).

2. Corresponding regulations of Pension Regulations for Army / Air Force / Navy will be amended accordingly in due course.

This has concurrence of Defence (Fin/Pension). Sd/-xxxxx (S R SHARMA) Under Secretary to the Government of India

(B ) Copy of Government of India, Ministry of Personnel, Public Grievances & Pension, Deptt of Pension and Pensioners’ Welfare Notification No.1/19/96- P&PW(E) dated 27 th July, 2001.

NOTIFICATION

S.O.______)E) In exercise of the powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution and after consultation

Armed Forces Law Journal 2012 (1) 3 with the Comptroller and Auditor General of India in relation to persons serving in the Indian Audit and Accounts Department, the President hereby makes the following rules further to amend the Central Civil Services (Pension) Rules, 1972, namely :-

(a) These rules may be called the Central Civil Services (Pension) Amendment Rules, 2001 (b) They shall come into force on the date of their publication in the Official Gazette

2. In the Central Civil Services (Pension) Rules, 1972 in rule 54 sub rule 13 (B), after the first proviso, the following proviso shall be inserted namely:-

“Provided further that family pension admissible under the Employees Pension Scheme, 1995 and the Family Pension Scheme, 1971, shall, however, be allowed in addition to the family pension admissible under these rules.”

Sd/- xxxxxxxxxx (P K Brahma) (C ) No.1/19/96-P&PW(E) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Pension and Pensioners’ Welfare Third Floor, Lok Nayak Bhawan Khan Market New Delhi 110 003 Dated 10/19th July, 2002

OFFICE MEMORANDUM

Subject: Grant of Family Pension under the Employees Pension Scheme, 1995 and the Family Pension Scheme, 1971 in addition to family pension under Rule 54 of the CCS (Pension) Rules, 1972.

The undersigned is directed to refer to this Department’s Notification No.1/19/96- P&PW(E) dated the 27th July, 2001 published in the Gazette of India (Extraordinary) dated 27th July, 2001 by which sub-rule (13-B) of Rule 54 of the Central Civil Services (Pension) Rules, 1972 was amended by insertion of the 2 Armed Forces Law Journal 2012 (1) . following proviso after the first proviso :

“ Provided further that family pension admissible under the Employees Pension Scheme, 1995 and the Family Pension Scheme, 1971, shall, however, be allowed in addition to family pension admissible under these rules.

2. The said amendment has come into force from the date of publication of the said notification i.e., 27th July, 2001. Clarification has, however been sought by some Ministries / Departments as to (i) whether the said Notification is applicable only in respect of those persons who retired on or after 27.07.2001 (ii) whether the Notification would also apply in cases of family pension which arose prior to 27.07.2001, i.e., where retirement / death of a re-employed pensioner occurred before 27.07.2001; and (iii) in the event if the benefit being admissible in cases where retirement / death of a re-employed pensioner occurred before 27.07.2001, whether the benefit is to be given w.e.f. 27.07.2001 only, i.e., the date from which the said Notification came into force.

3 It is clarified that the benefit of Family Pension under Family Pension Scheme, 1971 and Employees Pension Scheme, 1995, in addition to the family pension under Rule 54 of the Central Civil Services (Pension) Rules, 1972, will be admissible in those cases also where Retirement / Death of re-employed pensioner, who was covered by the family pension scheme, 1971, or the Employees Pension Scheme, 1995, took place prior to 27.07.2001, besides covering those cases where retirement / death of such a re-employed pensioner took place on or after 27.07.2001. The benefit of second family pension in cases of retirement / death prior to 27.07.2001 of the re-employed pension covered by the Family Pension Scheme, 1971, or the Employees Pension Scheme, 1995, will however, be admissible only w.e.f. 27.07.2001, i.e., the date from which the said Notification came into force. Sd/-xxxx (Sujit Dutta) Director

16 A UoI & Ors Vs. Lt Gen R S Kadyan & Anr – Reported in

Armed Forces Law Journal 2012 (1) 3 (2000) 6 SCC 69 and 2011 (1) AFTLJ 1

Army Act, 1950 & Special Army Order 3 / S / 1989 – Promotion – the 1st Respondent is the seniormost eligible Lt. Gen. to be appointed to the post of Army Commander, Eastern Command – but the 2nd Respondent was appointed or promoted to that said post – filed Writ Petition and prayed to prevent unnecessary and avoidable aberration with regard to appointment / promotion of senior officers in the Army and keeping in view the long term interest of the Army and the country so as to avoid politicization of the crucial posts in the Army – High Court said the senior person unless unfit should get the promotion automatically and seniority ought to have been given preponderating weight, the posts of Lieutenant to Major are automatic promotion post on passing exams, posts from Major to Lt. General are all selection posts but from Lt. General (Corps Commander) to Army Commander is a non-selection posts, where promotion is subject to fitness in all respects (though the rank remains the same). From Army Commander to the Chief of the Army Staff by promotion.

Held, Army Commander is a selection post, fitness in all respects mean fit to be chosen, usually the seniormost officer is selected but the Chief of the Army Staff is not debar to select any other person. ACR is not the sole factor for promotion, since, selection involves comparative assessment of the officers, where the entire service profile of the officers considered by the authorities concerned, court cannot substitute its own view to that authorities, judicial review is permissible only to the extent of finding whether the process in reaching decision has been observed correctly and not the decision as such, no justification for the High Court to have interfered with the order made by the Government – Appeals allowed.

Superscript Item reference (b) (a) 16 B Lakhwinder Singh Vs UoI & Ors (2008) 7 SCC Text/Extract ( c ) IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. 8501 OF 2007 Altamas Kabir and V.S. Sirpurkar, J. J. Dated: July 10,2008 2 Armed Forces Law Journal 2012 (1) . Lakhwinder Singh ……………………………..... Petitioner Vs. Union of India & Ors. ……………………………....Respondents

J U D G M E N T ALTAMAS KABIR, J.

1. This Special Leave Petition is directed against the judgment and order dated 22nd March, 2007 passed by the Delhi High Court dismissing Writ Petition No. 899 of 2006 filed by the petitioner herein challenging the decision of the Central Government, to reject the recommendation made by two Special Selection Boards for promoting the petitioner to the rank of Lieutenant General.

2. The petitioner, who was commissioned as a Second Lieutenant in the Indian Army on 16th December, 1967, was promoted to the rank of Major General in the year 2001. Two successive Special Selection Boards of the Indian Army recommended the petitioner for promotion to the rank of Lt. General, but the Central Government did not approve the said recommendations. General. The said decision of the Central Government was challenged by the petitioner in the aforesaid Writ Petition on the ground that such denial of promotion to the petitioner to the rank of Lt. General was arbitrary, discriminatory, whimsical and in violation of the rules and the established procedure of selection and it also offended the principles laid down in various judicial pronouncements both by the High Courts as well as this Court.

3. According to the case made out by the petitioner, he was engaged in active combat at Dera Baba Nanek in the Punjab Sector during the Indo-Pakistan War and was recommended for Vir Chakra award. He also took part in various operations, including operations relating to counter-insurgency, such as operation Blue Star, in Punjab in 1984. In 1999, he was posted to command an Artillery Brigade in the active insurgency area in Kashmir. The Brigade under the petitioner's command was mobilized to fight the Kargil War/Operation Vijay in Drass-Kargil Sector in 1999. For the petitioner's participation in the Kargil War he was awarded the Yudh Sewa Medal in August, 1999. 4. On account of his service profile, the petitioner was promoted to the rank of Major General and was posted as General Officer Commanding 40 Artillery Division, which was the only Artillery Division of the Indian Army at the relevant time and he led

Armed Forces Law Journal 2012 (1) 3 Operation Parakram in 2002. In 2003 he was posted to the Northern Command and participated in the Operational Command, which was responsible for the insurgency-affected Jammu and Kashmir Sector. 5. It is the further case of the petitioner that all promotions above the rank of Colonel are made not on the length of service put in by an officer but on the basis of selection. It is the petitioner's case that he was promoted on first consideration right from the rank of Colonel to Major General on a competitive basis. For selection, from the rank of Major General to Lt. General, a Special Selection Board is constituted by the Chief of the Army Staff, hereinafter referred to as "COAS", under powers delegated to him under the authority of the President. The said Board comprises the Chief of Army Staff, the Vice- Chief of Army Staff and the six senior-most Lt. Generals, who make recommendations for promotion to the rank of Lt. General and appointments are made after the recommendations are approved by the Ministryof Defence and other competent authorities. 6. It is the petitioner's case that the Special Selection Boards are expert bodies which consist of the COAS, the Vice-Chief of Army Staff and the six Corp-Commanders representing different fields/ branches of the Army, including officers from technical and non- technical fields. According to the petitioner, a person who has been recommended by the Special Selection Board can hardly be ignored by the Government for promotion. 7. As far as the petitioner is concerned, the first Board for Selection was held on 27th of February, 2004, in which four names were unanimously recommended, including the name of the petitioner. Before promotions could be given in terms of the recommendations made, one of the four candidates superannuated on 31st August, 2004 and one of the others expired on 3rd September, 2004. According tothe petitioner, without, however, applying its mind to the aforesaid facts, the Government returned the recommendations of the Board on the ground that four names had been recommended when there were only three vacancies, though, at the relevant time, there were only two officers left against three vacancies. Despite the above, only one of the recommended candidates, Major General A. Vasudeva was promoted to the post of Lt. General by the Central Government but the petitioner's case for promotion was rejected and the said decision was declared after a period of 10 months. The petitioner has contended that he was the only officer amongst the General Officers recommended for 2 Armed Forces Law Journal 2012 (1) . promotion as Lt. General in the Staff Stream. 8. Aggrieved by his non-selection to the post of Lt. General, the petitioner filed a non- statutory complaint with the COAS on 17 th January, 2005. The same remained unattended to and ultimately on 1st April, 2005, a second Board was held. Once again, the Board recommended the name of the petitioner for promotion to the rank of Lt. General. It has been emphasised by the petitioner that both the Boards were headed by the functioning Chiefs of Army Staff. In the list recommending the names of five officers for promotion to the rank of Lt. General, the petitioner's name was shown at serial No.1. When the result of the second Board was declared on 30th June, 2005, the petitioner found that he had once again been superseded and the recommendation of the second Board, as far as he was concerned, was not approved by the Central Government. 9. It is also the case of the petitioner that two of the recommended candidates, Major General Utpal Bhattacharya and Major General A.K. Saini, were to superannuate on 1st July, 2005 and 31st August, 2005, respectively, and consequently in the vacancy arising on 1st February, 2006 only two officers, namely, the petitioner and Major General Y.K.Jain should have been promoted. However, on 29th/30th July, 2005, two vacancies were created and just before the retirement of Major General U. Bhattacharya, the rank of Lt. General was conferred on them. 10. Aggrieved by the aforesaid action of the respondent, the petitioner filed another statutory complaint on 29th August, 2005 with the Ministry of Defence challenging his supersession, but the same was rejected by a cryptic order on 29th December, 2005. It is the petitioner's case that although there were vacancies in the rank of Lt. General to which the petitioner was entitled to be promoted, the respondents did not fill up the available vacancies as the petitioner was due to retire on 31st May, 2006. 11. The grievance made out by the petitioner in his Writ Petition is that despite his excellent service profile and unblemished service for a period of 38 years and two successive recommendations for promotion, he was denied promotion to the rank of Lt. General in an arbitrary and high- handed manner. 12. Appearing for the petitioner, learned senior counsel, Mr. Patwalia, repeated and reiterated the case made out by the petitioner in his Writ Petition and

Armed Forces Law Journal 2012 (1) 3 emphasised the fact that despite the recommendation of two Special Selection Boards, consisting of the COAS, the Vice-Chief of Army Staff and the six senior Lt. Colonels in the Army, the Central Government had wrongly withheld promotion to the petitioner from the rank of Major General to the rank of Lt. General. Mr. Patwalia submitted that the senior-most officers of the Indian Army, who were acquainted with the qualities of the officers under consideration, had made the recommendations for promotion of the petitioner to the post of Lt. General, and accordingly, such recommendation by two successive Boards, should not have been rejected. It was submitted that except for indicating that in comparison to the other recommended candidates, the petitioner had a weak profile, no other satisfactory reason had been given by the respondents for rejecting the recommendation made by the Special Selection Boards in the petitioner's favour. 13. Mr. Patwalia urged that while the petitioner may not have obtained the grading of 9 in the box grading, for the purpose of promotion, of the recommendees, he was the only officer who had seen active combat during the Kargil War and had been decorated for the same. Mr. Patwalia urged that despite the fact that the petitioner did not possess any Box Grading of "9", the Special Selection Boards still recommended him for promotion to the rank of Lt. General, not once, but on two occasions, which surely reflected the fact that Box Grading of "9" was not of such significance as to deny promotion to the petitioner to the rank of Lt. General. Referring to the criteria/factors, which are considered for selection to the post of Lt. General, in terms of the policy devised by the Central Government, Mr. Patwalia submitted that only the Annual Confidential Report profile of the officer appears to have been taken into consideration while rejecting therecommendation of the Special Selection Boardto promote the petitioner to the rank of Lt.General. He pointed out that one of the criteria was consistent recommendations for promotion to the next higher rank. It wassubmitted that such criteria appears to havenot been given due importance by the CentralGovernment while rejecting the successiverecommendations made in the petitioner'sfavour. Although, no case of malafides hadbeen made out on behalf of the petitionereither before the High Court or before thisCourt, it was submitted that despite the fact hat the petitioner's case for promotion was rejected, two posts were created toaccommodate two officers as a special favourto promote them to the rank of Lt. General just 2 Armed Forces Law Journal 2012 (1) . before they retired from service. Accepting the position that promotion was not a matter of right, Mr. Patwalia concluded by urging that an officer who had been selected by the Special Selection Board consisting of the highest officers in the Indian Army was entitled to request the Court to look into the records to ascertain the reason for such rejection. 14. Appearing for the respondents, learned senior counsel, Mr. Doabia, submitted that the petitioner was first recommended for promotion to the rank of Lt. General, along with three other officers, by the Special Selection Board on 27th February, 2004, but when the said recommendation was taken up for consideration by the Central Government, it was discovered that the Special Selection Board had presumed four vacancies when only three vacancies were available. Thereafter, on a comparison of the profiles of all the officers, the petitioner was found to have the weakest profile and was graded "unfit" for promotion. Even when thesecond recommendation was made by the SpecialSelection Board on 1st April, 2005, on acomparison of the profiles of the officersrecommended, the petitioner was once again found to have the weakest profile and accordingly graded "unfit". It was submittedthat such consideration to hold the petitioner"unfit" in comparison to the others recommended officer, was a decision taken notby the COAS alone, in his individual capacity,but by the Ministry of Defence in a representive capacity, which also included the COAS. In fact, it was submitted that as names of five officers had been recommended against three vacancies, the cases of all the officers wee considered on a comparative basis and since the petitioner was found to have the weakest profile amongst all the officers recommended, he was once again graded as "unfit". It was submitted that no undue preference had been shown or given to any of the concerned officers, but since from the records the petitioner was found to have the weakest profile, he had been graded as "unfit" since only three vacancies were availablewhile five names had been recommended for promotion.

15. It was lastly submitted that Para 108 of the Regulations for the Army, 1987, which provides for the constitution and duties of Selection Boards, clearly indicates that the assessment of the Selection Board shall be recommendatory in nature and not binding until approved by the Competent Authority namely, the COAS or the Central Government as the case may be. The said Regulation also provides that both the Central Government and the COAS have an inherent power to modify, renew, approve with variation or repeal

Armed Forces Law Journal 2012 (1) 3 the recommendations of the Selection. It was urged that it was, therefore, evident that the recommendation of the Special Selection Board was not binding and had to be approved by the Central Government or the Chief of the Army Staff. In support of his aforesaid submission learned counsel referred to the decision of this Court in Union of India and Ors. Vs. Lt. General Rajinder Singh Kadyan [2000 (6) SCC 698] in which this Court, inter alia, held as follows:- "Of course, considering the nature of rigorous standards adopted in the matter of selection of officers from the stage of Lt. Colonel onwards up to the stage of Lt. General, in the usual course it may be that the senior-most officer is selected as the Army Commander. But that does not debar the Chief of the Army Staff or the Union of India from making the selection of any other person for good reasons who fulfils the necessary criteria." 16. Reliance was also placed on another decision of the Delhi High Court in the case of Union of India vs. Col. Shyam Kumar, 1982 (3) DRJ225, in which it was held that the assessment of the Selection Board is purely recommendatory in character and that the power of the appointing authority to accept or even vary the recommendation of the Selection Board is implicit. 17. It was urged that since the petitioner's case had been considered at the highest level of the appointing body, in which the COAS was also present, no interference was called for with the decision either of the said authority or the High Court. 18. Having considered the submissions made on behalf of the respective parties, we are not inclined to interfere with the decision of the High Court impugned in this proceeding. 19. It is no doubt true, that the name of the petitioner had been recommended on two occasions by two successive Special Selection Boards for promotion to the post of Lt. General, but on each occasion, he was declared unfit, on account of the fact that there were lesser number of vacancies available than the number of candidates recommended and it was found on a comparative assessment that of all the recommended officers, he had the weakest profile. It is also no doubt true that the Special Selection Board consists of the highest-ranking officers of the Indian Army ,but its suggestions are only recommendatory in nature and under the Army Regulations, can be varied or interfered with by the Appointing Authority, as has been done in the instant case. It is unfortunate that the recommendations were made in excess of the vacancies available which necessitated a comparison to be made of the profiles of the recommended candidates in which process the petitioner got eliminated, but 2 Armed Forces Law Journal 2012 (1) . having gone through the official records, which were produced before us, we find that the entire question was considered and dealt with by the Central Government in a manner which was completely free from bias and based on the service records of the different officers.The active service of an officer during War and Battle Awards and Honours earned during such action, is one of the several factors to be taken into consideration by the Special Selection Board in recommending promotion from the post of Major General to Lt. General. While the petitioner may have better records in the said category, the Board has also to take into consideration various other categories which have been set out in the judgment of the High Court impugned in this Special Leave Petition. It is only on an overall assessment that the profile of an officer is prepared and had been so prepared in the instant case where a comparison had to be made in filling up the available vacancies. 20. Apart from the two decisions referred to hereinabove which support the case of the respondents, various other decisions were also referred to on behalf of the parties, but the same are not really relevant for a decision in this case, having regard to the view taken by us on the basis of the materials available to us. 21. In the circumstances indicated hereinabove, no interference is called for with the impugned judgment of the High Court and the Special Leave Petition is, accordingly, dismissed. 22. There will be no order as to costs.

Superscript Item reference (b) (a) 16 C Regulations for the Army, 1986 – Reg 108 : Constitution and Duties of Selection Boards. Text/Extract ( c ) 108. Constitution and Duties of Selection Boards : Selection Boards (for officer other than Army Medical Corps, Army Dental Corps and Military Nursing Service) are constituted as required under the order of the Chief of the Army Staff. Their composition and duties are given below :- (a) xxxxxxxx (b) xxxxxxxx (c ) xxxxxxxx

(d) The assessment of the Selection Board shall be recommendatory in nature and not binding until approved by the competent authority viz., the COAS or the Central Govt. as the case may be.

(e) The Central Government or COAS have the inherent power to modify, review, approve with variation or repeal recommendation of the Selection Boards.

16 D Surinder Shukla Vs UoI & Ors reported in (2008) 2 SCC 649 and 2011 (1) AFTLJ 206 Text/Extract ( c ) THE SUPREME COURT OF INDIA CASE NO.: Appeal (civil) 250 of 2008 [Arising out of SLP (Civil) No. 8303 of 2007] BENCH: S. B. Sinha & Harjit Singh Bedi, J. J. DATE OF JUDGMENT: 09/01/2008

Surinder Shukla ………………………………Appellant Vs. Union of India & Ors. ………………………………Respondents Army Act, 1950 & Special Army Order 3 / S / 1989 – Promotion – the Appellant was commissioned in Indian Army and holding the post of Lt. Colonel – for the promotion to the rank of Colonel the Appellant was considered but he was not found fit – filed statutory complaint - statutory complaint rejected by the Respondents as untenable – inter alia submitted that the Appellant has better records than his batch mates, adverse remarks if any was not communicated -

Held, Colonel post is a selection post, a large number of factors are required to be taken into consideration, viz. ACR, war report, battle awards, honours, courses, achievements, appointments held, disciplinary background etc. etc., recommendations of the Selection Board approved by the Chief of the Army Staff, not alleged any mala fide against the members of the Selection Board and also the selected candidates were not impleaded as parties, no merit in this Appeal - Appeal dismissed.

Superscript Item 2 Armed Forces Law Journal 2012 (1) . reference (b) (a) 17 Order of acquittal by Principal Bench in case of an accused serving term for an offence under Sec 69 of the Army Act r/w IPC Sec 302 in TA 147/09 Text/Extract ( c )

IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH NEW DELHI

T.A. NO.147 OF 2009 (ARISING OUT OF WP © No.18682 of 2004 OF DELHI HIGH COURT) 19th November, 2009.

Mulk Raj Singh … Petitioner Versus Union of India and Anr. … Respondent

For the Petitioner : Mr. V D Sharma For the Respondents : Capt Alifa Akbar, Advocate

CORAM : Hon’ble Mr Justice A K Mathur, Chairperson Hon’ble Lt Gen M L Naidu, Administrative Member

JUDGMENT

1. The petitioner by filing this Writ Petition in Delhi High Court challenged the Summary General Court Martial proceedings dated 29th April, 2003, whereby the petitioner was sentenced for life imprisonment and dismissed from service. On formation of this Armed Forces Tribunal this case has been transferred to this Tribunal for disposal.

2. Under Section 15 of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as ‘Act, 2007’) appeal lies against any order, decision, finding or sentence passed by a Court Martial or any matter connected therewith or incidental thereto.

3. Sub Section 2 of Section 15 of Act, 2007 further provides that any person aggrieved by an order, decision, finding or sentence passed by a court-martial may

Armed Forces Law Journal 2012 (1) 3 prefer an appeal in such form, manner and within such time as may be prescribed.

4. Sub Section 3 of Section 15 of Act, 2007 further contemplates that the Tribunal shall have full power to grant bail to any person, with or without condition.

5. Sub Section 4 of Section 15 of Act, 2007 says that Tribunal shall allow on appeal against the order of conviction passed by the Court Martial can set aside that finding which is not sustainable for reasons recorded, the finding involves a wrong decision on a question of law or there is material irregularity in the course of the trial resulting in miscarriage of justice.

6. Sub Section 5 of Section 15 of Act, 2007 further says that the Tribunal may allow an appeal against conviction and pass appropriate order.

7. Sub Section 6 of Act, 2007 also says that notwithstanding anything contained in foregoing provisions the Tribunal have power to substitute findings of the court- martial finding of guilty for any other offence for which the offender would have been lawfully found guilty by the court-martial and pass a sentence afresh for the offence specified or involved in such findings under the provisions of the Army Act, 1950 or the Navy Act, 1957 or the Air Force Act, 1950.

8. It further says that sentence can also be reduced, if it is found to be excessive, illegal or unjust The Tribunal shall have the power to remit the whole or any part of sentence, with or without condition. Mitigate the punishment awarded, commutes such sentence to lesser punishment. It has also power to enhance the sentence awarded by Court-Martial. But shall be done only with an opportunity of being heard to the petitioner. It can release the appellant, if sentence of imprisonment on parole, with or without condition. It can suspend a sentence of imprisonment or pass any order as it may think appropriate.

9. Sub Section further says that notwithstanding anything contained in this Act, the Tribunal shall be deemed to be a criminal court for the purposes of Sections 175, 178, 179, 180, 193, 195, 196 or 228 of the Indian Penal Code and Chapter XXVI of the Code of Criminal Procedure, 1973.

10. Therefore, by virtue of Section 15 the Tribunal has full appellate power against the order of the court-martial, like a court of appeal.

11. Since in this case the petitioner challenged the conviction by the court-martial 2 Armed Forces Law Journal 2012 (1) . by filing a Writ Petition, which has been remitted to this Tribunal, on its formation. This Tribunal has converted this writ petition into an appeal under Section 15 of the Act, 2007.

12. We have heard the learned counsel for the parties and perused the record.

13.Brief facts which are necessary for disposal of this appeal are that the petitioner/appellant was charged for committing a murder of Havildar/Upol Gulzar Singh of 7015 Electronics Electronics and Mechanical Engineers Battalion (150 Field Workshop Electronics and Mechanical Engineers). It is alleged that the accused Mulkraj Singh, who belong to Unit 7015 Electronics and Mechanical Engineers Battalion (150 Field Workshop Electronics and Mechanical Engineers) was on guard duty.

14. It is alleged that on 4th March, 2002 at about 1800 hours Sepoy/Driver (Mechanical Transport) A K Verma (PW 2) of 7015 Electronics and Mechanical Engineers) went to collect food from the cook house and came back at 1930 hrs. Thereafter, he and Sepoy / Driver (Mechanical Transport) Jamshed Ali had food. After having dinner PW 2 went to the Main Post for guard duty along with Sepoy/Driver Jamshed Ali around 2000 hrs. He was detailed for the second shift guard duty. At about 2155 hours he went to wake-up Sepoy/Driver (Mechanical Transport) Mulkraj Singh (accused) and Cfn AK Singh as they were next to stand on the guard duty. It is alleged that he told the accused that it is his turn for guard duty and also woke up Cfn AK Singh, though Cfn AK Singh did not respond, but the accused Mulkraj Singh told him that they will come shortly. For some time nobody turned-up, then, again he asked Sepoy/Driver (Mechanical Transport) Jamshed Ali to find out why both of them are not coming to Main Post. Before Jamshed Ali could go to Guard Room, he saw that accused and Cfn AK Singh walking towards the Main Post. Accused, on reaching the Main Post, told both to leave, they reached guard room and both accused and Cfn AK Singh took over the charge.

15. It is further alleged that at about 2230 hrs rifle shots were heard, therefore, PW 2 immediately got up from his guard room, took bullet proof jacket, Patka and his rifle and rushed to the Main Post, alongwith Jamshed Ali. Soon thereafter somebody came from behind and wanted to know how and from where this firing has taken place. But someone from main post answered that Guard Command has been hit. Thereafter, he rushed to that place where a person lying on the ground. Some officer also reached on the Post and it was Lieutenant Sugandha. Lieutenant

Armed Forces Law Journal 2012 (1) 3 Sugandha ordered :’Pick up the Guard Commander’ and he identified that it was Guard Commander, Havildar/Uphol Gulzar Singh. They picked up the body of the Guard Commander, thereafter it was told to leave Cfn AK Singh from the Main Post. He also alleged that a 100 watt bulb was glowing on Main Post on the fateful day.

16. On the basis of this incident a FIR was also lodged, thereafter, a request was made to the Magistrate to transfer this case to the Army for court-martial proceedings Accordingly the court-martial proceedings were initiated against accused Mulkraj Singh.

17. The prosecution in support of this case has examined as many as 19 witnesses and given full opportunity to the accused to defend himself.

18. In this case there is one eye witness of the incident. The admitted facts which emerge that on the fatful day the accused and one Cfn AK Singh were on guard duty and at about 2230 hrs shots were fired and hit the Guard Commander and he died on the spot.

19. Prosecution has relied on the testimony of PW-16 (Cfn/Turner AK Singh of 7015 Electronics and Mechanical Engineers Battalion) main witness and PW-2 (Sepoy/Driver AK Verma) of 7015 Electronics and Mechanical Engineers Battalion, and other witnesses who had come on the scheme subsequently like Major DR Senwal and others.

20. The plea of the accused was that deceased approached wearing coat with hood covering his head. Accused gave a caution ‘Tham’and identify with pass word three times, but he did not respond. Therefore, he had no option but to shoot. Thereafter, it is found that he was none other than Guard Commander.

21. The lone witness at the relevant time was PW -16 (Cfn/Turner AK Singh of 7015 Electronics and Mechanical Engineers Battalion), who was also on duty along with the accused. He has also admitted that at the relevant time he and accused was relieved by PW-2 (Sepoy/Driver AK Verma) and PW-3 (Sepoy/Driver Janshed Ali). He has deposed that after they were asked to takeover the post from AK Verma (PW-2) and Jamshed Ali (PW-3) they took over the post on guard duty. The accused Mulkraj Singh proceeded two minutes before him to the post. At the Main Post the accused went and stood at Sentry No.2. The butt number of his SLR was 74 and the accused had SLR bearing butt number 81. He 2 Armed Forces Law Journal 2012 (1) . deposed that he saw the accused hanging his rifle on the Sling which was already hanging from the roof of the Main Post at the position of Sentry No.1. He also put his rifle on the Sling that was already hanging at the position of Sentry No.2. After about twenty minutes he told the accused that he wanted to interchange his position as he was feeling cold and the accused was standing closed to the Bhukari. Both of them changed their position. They did not carry their rifles. After about 5 to 7 minutes accused called ‘Tham’ (Halt). On this caution of the accused, he presumed that one of Unit Officers or the Duty Officer might have come to check the guard personnel on duty. The accused again called out ‘Tham’ for the second time. He then asked the accused as to who was coming and from which direction. The accused told him ‘Picchae sae koi Aa raha hai’ (someone is coming from the rear). On hearing this he looked towards his front and back but did not see anyone. The accused then took out rifle which had butt No.74 from the Sling. The accused told ‘Password bata de, ya to ruk ja bhai’ (Tell the password or stop brother). When the accused called out ‘Tham twice it was loud enough for the other posts to hear it, but when he heard other words telling some to stop, his voice was normal. The accused, thereafter, cocked the rifle and fired a single round. As soon as the accused had fired the round, he jumped out of the Main Post and ran out towards the electric pole. After about 2 to 3 seconds the accused fire two more rounds. Since the firing was coming from the Main Post, he immediately took out his rifle bearing butt number 81 and came out and took the position between the Main post and the adjoining wall. After about 6 to 7 seconds, the accused fired two more rounds from his rifle. Both these rounds were fired towards the entrance of the Main Post. Thereafter accused told him ‘Dekh kon geera hai; koi harkat to nai kar raha’ (see who is fallen; is he doing any activity). On hearing this he stood up. The accused again told him ‘kahan dekh raha hai, woh deewar ke picchae Side ,mein geera hai’ (Where are you looking; he has fallen on the backside of the wall). Then he deposed that he went down from the Main Post and after getting down he saw a body lying on the ground. He then went closer to the body and saw that head of the body was covered with the hood of the coat. He lifted the head of the body and removed the hood of the coat in order to see the face of the person and he saw that the person lying there was his Guard Commander-Havildar/Uphol Gulzar Singh. Then he shouted ‘Yaar, yeh kya kar diya; yeh to hamara Guard Commander hai’ (friend, what have you done; he is our Guard Commander). The accused replied that ‘Hamne Tham pukara, password puccha, yeh nahi bataya; humhe shak hua; maine usko shoot kiya’ (I called out halt; asked the password; he did not tell; I got suspicious; I shot him). This statement given by the PW-16 (Cfn/Turner AK Singh) who was on the

Armed Forces Law Journal 2012 (1) 3 spot and the lone eye witness had supported the version of the accused in toto.

22. More or less, this version given by PW-16 was repeated by the accused before PW-12 (NM/VM (MV) Ramesh Kumar of 7015 Electionics and Mechanical Engineers Battalion), who was on the fateful night on the third shift duty at Single Sentry Post and he corroborated. He also corroborated that he heard the caution ‘Tham, kon aata hai’ (Halt who comes there). Thereafter he heard the firing of shot. Same version was given by the accused to the other officers who came on the site. From other witnesses, who were subsequently examined, by and large, supported this story. Doctor who conducted post mortem has deposed that death has taken place by fire arm injury.

23. We need not to multiply the statement of various witnesses but suffice it to say that defence put by the accused that he called out to identify the intruder but the intruder did not respond nor did he disclose his name nor did he give out password. Since he was on sentry duty and had no choice but to shoot. This fact has been fully corroborated by his another colleague on the post i.e., PW-16 (Cfn/Turner AK Singh). This also supported by another witness PW- 12(NM/VM(MV) Ramesh Kumar), who was also on guard duty at some distance. He heard sound from Sentry Post calling the intruder to disclose his identity and there was no response. Therefore, in this background, the question arises that what offence is made out. In normal course, a case could have been made out for murder, but in the background of the Army and the place like Army School in Srinagar, where the insurgency is on its heights, we have to appreciate the testimony of the witnesses in that background. One has to be very vigilant and cautious on sentry duty in the night. A small slip can prove fatal. Therefore, persons on guard duty, especially when they are guarding Army School, Srinagar, cannot take any chance.

24. In this connection, learned counsel for the appellant has submitted that petitioner cannot be held guilty under Section 302 and strongly submitted that the case is covered by Section 79 of the Indian Penal Code, which reads as under :

“79. Act done by a person justified, or by mistake of fact believing himself justified by law – Nothing is an offence, which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.” 2 Armed Forces Law Journal 2012 (1) . The illustration under Section 79 is an example which reads as under :

“A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment, exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the fact, seizes Z, in order to bring Z before proper authorities. A has committed no offence, though it may turn out that Z was acting in self defence.”

25. Learned counsel for the appellant submitted that given the background of Srinagar and the petitioner doing a guard duty in the night, he bona fidely acted that when a person who is coming to the premises of the protected area and guard calls out him that he should stop and disclose the password, but if he doesn’t do it he has no choice except to resort to offensive so as to protect and guard the post. Therefore, the accused is fully justified in his action.

26. In order to appreciate that what are the necessary conditions for invoking Section 79 are : a) The state of things believed to exist would, if true, have justified the act done; b) the mistake must be reasonable; and c) the mistake must relate to fact and not to law.

The classic case which is available on the subject is Levet’s Case (1 Hale P.C.42). Levet was indicted for the death of Frances Freeman, the case was that William Levet being in bed and asleep in the night. His servant hired Frances Freeman to help her to do her work. At 12.00 of the clock in the night, the servant Frances though she heard thieves breaking open the door. She immediately rushed to her master and informed him that she thought thieves were breaking open the door The master rising suddenly and taking a rapier ran down suddently. In the meanwhile Frances hid herself in the buttery lest she should be discovered. Meanwhile Levet’s wife also cried out to her husband. Levet runs into the buttery in the dark, not knowing Frances but thinking her to be a thief and hit her with rapier. Frances died instantly. It was resolved that neither it is murder nor manslaughter for felony.

27. The ratio is that the offender shall be deemed to have acted under that state of facts which he believed in good faith and on a reasonable ground belief such act cannot be treated to be a murder under Section 302 of IPC.

Armed Forces Law Journal 2012 (1) 3 28. Similarly, sentinel strikes, or shoots other person, taking him to be an enemy his ignorance of the person is excuseth his offence. The examples can be multiplied that where a man thinks that burglar is hiding and kills him, but in fact, it happens to be a member of his family. It has been held that no such offence was committed.

29. Hon’ble Supreme Court in the case of Stat of Orissa v. Bhagaban Barik (AIR 1987 SC 1265) observed that under Section 79 of the Indian Penal Code the onus to establish the facts to sustain the plea of mistake of facts lay on the accused and he had to establish his plea of reasonable probability or, in other words, on preponderance of probability either by adducing evidence or by cross-examining the prosecution witnesses, if it is established, then, in given facts and circumstances the benefit of Section 79 of the Indian Penal Code can be extended to the accused. That is acted under mistake of fact, i..e., “an honest and reasonable belief in the existence of circumstances” which, if proved, would make the act for which the accused is indicted an innocent act. Their Lordships’ also held that good faith requires not logical infallibility but due care and attention. The question of good faith is always a question of fact to be determined in accordance with the proved facts and circumstances of each case. Their Lordships’ quoted from ‘Ratanlal and Dhirajlal’s Law of Crimes, 23rd edn. P.199 observed that “ ‘Mistake’ is not mere forgetfulness. It is a slip ‘made, not by design, but by mischance’….” Their Lordships further quoted from ‘Russel on Crime Vol.1 P.76 that the concept of mistake of fact is tersely stated thus:

“When a person is ignorant of the existence of relevant facts or mistaken as to them, his conduct may produce harmful results which he neither intended nor foresaw.”

The law has been stated by the Russel on Crime is : “Mistake can be admitted as a defence provided (1) that the state of things believed to exist would, if true, have justified the act done, and (2) the mistake must be reasonable, and (3) that the mistake relates to fact and not to law.”

30. Therefore, in this background of the state of legal position it transpires that, in fact, the petitioner under the bona fide mistake of law believed that the intruder is person non grata .He called out to identify, but he did not do so, later realizing that he happened to be his Guard Commander. Therefore, his bona fide plea, on his part that he is under duty to caution from the Post, it was not with any malice. 2 Armed Forces Law Journal 2012 (1) . It was a bona fide exercise in good faith for the benefit of security which was entrusted to him. This was bona fide mistake of fact and petitioner cannot be hauled-up or charged for murder of his Guard Commander.

31. As mentioned above, from the background that incident took place in Army School, at Srinagar, where the conditions are hostile and in such hostile condition no one can take chance. It was observed in the order of the Court-Martial that there was a light and he could have identified the deceased. He fired five shots and he did not show any repentance. These are all factors which had been taken into consideration by coming to the conclusion that the accused is guilty. It is that there was light of bulb, but it was not sufficient light to identify the deceased at distance. Secondly, the incumbent had covered his head by the hood of the coat. Therefore, it was not possible for the accused to identify him. Since it was a very sensitive area, the petitioner could not have taken any chance. When gave a caution and asked the intruder to identify by his password, but, still there was no response. No witness has been produced by the prosecution to show that at the relevant time when caution was given by the accused from the post there was response from the Guard Commander or Havildar/Uphol Gulzar Singh (deceased). Had there been some evidence to show that at the relevant time when the caution was given by the accused the deceased responded. Had he responded things would have been different. But no evidence had been led by the prosecution to show that after the caution given by the accused any response was made by the deceased. There is ample evidence to establish that the accused did in good faith. What is expected by him to give caution to the intruder by twice calling “tham” and third time asking the intruder to disclose his password. He had taken care but despite this there was no response. Therefore, the action of the accused was fully justified and covered by the general exception under Section 79 of the Indian Penal Code.

32. In Raj Kapoor v. Laxman (AIR 1980 SC 605) Hon;bls Supreme Court observed as under :- “jurisprudentially viewed, an act may be an offence, definitionally speaking but a forbidden act may not spell inevitable guilt if the law itself declares that in certain special circumstances it is not to be regarded as an offence. The chapter on General Exceptions operates in this province. Section 79 of Penal Code makes an offence a non-offence. When? Ony when the offending act is actually justified by law or is bona fide beliefed by mistake of fact to be so justified……………”

33. In the case of Bhawoo Jiva ji v. Mulji Dayal (ILR 1888 (Vol.12 Bombay page

Armed Forces Law Journal 2012 (1) 3 377) it was observed that a police constable was on duty near the Arthur Crawford Market. He saw the complainant carrying under his arm three pieces of cloth. Suspecting that the cloth was stolen property, he went up to the complainant and questioned him. Complainant stated that the cloth was made in England. The acused, noticing that each piece bore Gujarathi marks and not knowing that such marks are placed on English-made goods, concluded that this statement was false and had been stolen. He took hold of one of the pieces of the cloth in order to examine closely. There was a scuffle between them for the possession of the cloth. The accused arrested the complainant and took him to a European Inspector. He arrested the complainant because he had assaulted him. The complainant lodged a complaint before the Presidency Magistrate, charging the accused with wrongful confinement, offences punishable under Sections 341 and 342 of the Indian Penal Code. The defence was that the complainant had assalted the accused, therefore, he arrested and kept in confinement. Magistrate found no justification and convicted the accused. High Court held that the conviction is wrong and observed that there was honest suspicion that the cloth in the possession of the complainant was stolen property, was justified in putting questions to the complainant the answers were not, in his opinion, to be satisfactory. Therefore, he acted bona fidely in justifying in detaining the accused.

34. In Waryam Singh V Emperor (AIR 1926 Lahore Page No.554) the accused assaulted a man believing him to be a ghost and the assault proved fatal. Their Lordships held that it is neither guilty under Section 302 nor Section 304 nor Section 304 A and gave them a benefit of mistake of fact.

35. in Bonda Kui v. Emperor [AIR (30) 1943 Patna 64] High Court held that accused at time of assault believing in good faith that person assaulted was ghost and not living human being. Fatal injuries caused resulting in death. Their Lordaships extended the benefit of Section 79.

36. In State of Orissa v. Khra Ghasi [1978 Crl. L. J 1305] Orissa High Court observed that death caused by shooting arrow under bona fide belief that objet aimed at was animal, whereas, it was a man. Their Lordships extended the benefit of Section 79 of IPC to the accused and acquitted him from all offences.

37. In Chirangi v. State [AIR 1952 Nagpur 282] it was observed that the accused in delusion killed his own son believing him to be tiger. It was held that he is entitled to benefit of Section 79 of the IPC. 2 Armed Forces Law Journal 2012 (1) . 38. Therefore, in this background of the position of law, the matter is crystal clear that incumbent fired on fateful night while discharging his duties as manning the post and acted bonafidely in state of facts. He has taken sufficient care and caution to warn the victim, still victim did not respond, therefore the accused was fully justified in firing, which proved fatal. Hence, he cannot be convicted under Section 302 or Section 304. He is neither guilty of murder nor acted in rash and negligent manner. In the place like Army School at Srinagar, in height of insurgency, if proper care and caution is not taken, it could cause havoc. It is unfortunate that victim happens to be his colleague Guard Commander. Therefore, the accused cannot be held under Section 302 and accordingly we allow this petition/appeal and set aside the conviction of the accused and acquitted him of alls the charges.

39. The accused may be released forthwith, if not required in any other case. The Writ Petition / Appeal allowed.

Superscript Item reference (b) (a) 17 (i) Order of re-instatement by Principal Bench of an officer tried under Sec 60 of the AA r./w Explosive Substances Act, 1908 in TA 246/09 - Reported in 2011 (2) AFTLJ 182 Text/Extract (c ) IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH NEW DELHI. T.A. No. 246 of 2009 [Arising out of WP(C) No. 2649 of 1989 of Delhi High Court] 01st April, 2010

HON’BLE MR. JUSTICE A. K. MATHUR, CHAIRPERSON HON’BLE LT. GEN. M. L. NAIDU, ADMINISTRATIVE MEMBER

Major S.S. Chillar ………………………..…Petitioner Versus Union of India & Ors. …..…………………..Respondents

Armed Forces Law Journal 2012 (1) 3 Sec 3 (v), 4, 69 of the Army Act, 1950, Rules 22, 23, 24, 180 of the Army Rules, 1954, Sec 5 of the Explosive Substance Act, 1908 & Regulation 409 of Defence Regulations - General Court Martial - Petitioner was charged u/s 69 of AA and in Court Martial he was found guilty - dismissed from service. Held: -- The gravamen of charge is possession of a particular explosive substance, when the details of the explosive substance is not found in Charge Sheet or established, the whole charge fails on the face of it. This goes to the root of the matter and the whole prosecution fails on this account - finding guilty of the accused by the Court Martial authorities is totally illegal and unsustainable in law. We have seen number of Court Martial cases, which have come before this Tribunal and most of the elementary mistakes were committed in conduct of the criminal trials under Court Martial proceedings. Now a proper appeal lies against the court martial proceedings before this Tribunal, the Tribunal has to examine all the procedure as well as substance of the criminal trial like in Court of Appeal, including appreciation of the evidence and our experience is that the trials in the Court Martial proceedings relating to civil offence like murder or other penal code offences or offences under the other acts are not properly conducted like a regular criminal trial. The result is that they will turn into acquittal. Therefore, now in changed situation, when the Court Martial proceedings are amenable to regular appeal under the Act, the authorities have to undertake the overall review of conducting Court Martial trials by a competent prosecutor, who has experience of trial as well as the Presiding Officer should also be a trained person. We find that charge has not been brought home against the accused, therefore, he is entitled to be acquitted - Application Allowed.

Superscript Item reference (b) (a) 18 Army Rule 34 (1)

Text/Extract (c ) Warning of accused for trial : (1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that, on his giving the names of witnesses or whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall 2 Armed Forces Law Journal 2012 (1) . be taken accordingly. The interval between his being so informed and his arraignment shall not be less than ninety-six hours or where the accused person is on active service less than twenty-four hours. Superscript Item reference (b) (a) 19 Apex Court sets aside Army Court Martial procedure since 96 hours had not elapsed after issuance of charge sheet - CA No.6181/2002

Text/Extract ( c ) IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6181 OF 2002 BN Agrawal, Aftab Alam and R M Lodha, J. J. September 16, 2009

Union of India & Ors. …………………………………..….Appellants Versus A K Pandey ………………………………….. Respondent

JUDGMENT R M LODHA, J

The question which falls to be determined in this appeal by special leave is : Is the provision in Rule 34 of the Army Rules, 1954 that the interval between the accused being informed of charge for which he is to be tried and his arraignment shall not be less than ninety-six hours mandatory?

2. Mr. A K Pandey – respondent – was enrolled in Army on September 18, 1987. Subsequently, he was posted to 12 Corps Signal Regiment (AREN) Unit on August 21, 1994 at Jodhpur. The respondent remained on casual leave for thirteen days from September 5, 1995 to September 17, 1995. When he resumed his duty on September 23, 1995 he brought with him one country made pistol and one round of small ammunition to the unit which he sold to signalman J N Natasimlu of the same unit. J N Narasimlu while leaving the unit was caught by the regimental police carrying the above weapon and one round of small ammunition in one bag. On being questioned, J N Narasimlu told that he had purchased the weapon and one round of small ammunition from the respondent. The respondent

Armed Forces Law Journal 2012 (1) 3 and J N Narasimlu were placed in closed arrest with effect from September 23, 1995. Summary of evidence against both the persons is said to have been recorded by Major Sudhir Handa of 12 Corps Signal Regiment.

3. The respondent was charged vide charge-sheet dated October 26, 1995 which was served upon him on November 2, 1995 at 1800 hours. He was informed that he would be tried by General Court Martial on November 6, 1995 at 1130 hrs.

4. On November 6, 1995, General Court Martial commenced its proceedings at 1010 hours wherein the respondent is said to have pleaded guilty of both the charges. Based on that, the respondent was awarded punishments: (i) to suffer rigorous imprisonment for three years and (ii) dismissal from service.

5. The respondent aggrieved thereby submitted a petition under Section 164 (2) of the Army Act, 1950 before the Chief of the Army Staff for setting aside the findings and sentence of the General Court Martial held on November 6, 1995.

6. The Chief of Army Staff rejected the petition submitted by the respondent on December 23, 1996 and the respondent was informed of the said decision on December 31, 1996.

7. The respondent then approached the High Court of Judicature for Rajasthan at Jodhpur praying therein for issuance of appropriate writ, order or direction to quash the General Court Martial Proceedings dated November 6, 1995 and the punishments awarded to him and to reinstate him in service with effect from November 6, 1995 with all consequential benefits.

8. The present appellants contested the writ petition by filing a counter in opposition before the High Court.

9. The Learned Single Judge allowed the writ petition on December 1999 and quashed and set aside General Court Martial proceedings held on November 6, 1995 as well as the order of punishment,

10. The present appellants preferred intra court appeal which was found devoid of any merit and came to be dismissed on April 11, 2001. Hence the present appeal by special leave.

11. Mr. Mohan Jain, Learned Additional Solicitor General strenuously urged that 2 Armed Forces Law Journal 2012 (1) . the interval of ninety-six hours provided in Rule 34 is directory and, in ay case, the respondent having pleaded guilty of both the charges, no prejudice can be said to have been caused to him by non-compliance of the time provided therein. In support of his submissions, he heavily relied upon a decision of this Court in the case of State Bank of Patiala and Others v S K Sharma 1

12. Rule 34of the Army Rules, 1954 with which we are concerned reads as follows :

“ 34. Warning of Accused for Trial:- (1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that, on his giving the names of witnesses or whom he desired to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall be taken accordingly. The interval between his being so informed and his arraignment shall not be less than ninety-six hours or where the accused person is on active service less than twenty four hours. (2) The officer at the time of so informing the accused shall give him a copy of the charge sheet and shall if necessary, read and explain to him the charges brought against him. If the accused desires to have it in a language which he understands, a translation thereof shall also be given to him. (3) The officer shall also deliver to the accused a list of the names, rank and corps (if any) of the officers who are to form the court and where officers in waiting are names, also of those officers in courts-martial other than summary courts-martial. (4) If it appears to the court that the accused is liable to be prejudiced at his trial by any non-compliance with this rule, the court shall take steps and if necessary, adjourn to avoid the accused being so prejudiced.”

13. The key words used in Rule 34 from which the intendment is to be found are “shall not be less than ninety-six hours”. As the respondent was not in active service at the relevant time, we are not concerned with the later part of that rule which provides for interval of twenty four hours for the accused in active service. 1 (1996) 3 SCC 364

14. In his classic work, “Principles of Statutory Interpretation” (seventh edition), Justice G P Singh has quoted passage of Lord Campbell in Liverpool Borough Bank V Turner 2 that read :”no universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory whether implied nullification for disobedience. It is the duty of Courts of justice to try to

Armed Forces Law Journal 2012 (1) 3 get at the real intention of Legislature by carefully attending to the whole scope of the statute to be considered.”

15. In Crawford’s Statutory Construction (1989 reprint), the following excerpt from People v. Sutcliffe 3 is quoted : “It is a rule of statutory construction that where a statute is framed in terms of command, and there is no indication from the nature or wording of the act or the surrounding circumstances that it is to receive a permissive interpretation, it will be construed as pre-emptory.”

16. In his discussion on the subject, “Mandatory and Directory or Permissive Words” Crawford in the afore-noticed treatise says : “ Ordinarily the words ‘shall’ and ‘must’ are mandatory and the work ‘may’ is directory, although they are often used inter- changeably in legislation. This use without regard to their literal meaning generally makes it necessary f or the courts to resort to construction in order to discover the real intention of the legislature. Nevertheless, it will always be presumed by the court that the legislature intended to use the words in their usual and natural meaning. If such a meaning, however, leads to absurdity, or great inconvenience, or for some other reason is clearly contrary to the obvious intention of the legislature, then words which ordinarily are mandatory in their nature will be construed as directory, or vice versa. In other words, if the language of the statute, considered as a whole and with due regard to its nature and object, reveals that the legislature intended the words ‘shall’ and ‘must’ to be directory, they should be given that meaning. Similarly, under the same circumstances, the word ‘may’ should be given a mandatory meaning, and especially where the statute concerns the rights and interest of the public, or where third persons have a claim de jure that a power shall be exercised, or whenever something is directed to be done for the sake of justice or the public good, or is necessary to sustain the statute’s constitutionality.

Yet, the construction of mandatory words as directory and directory words as mandatory should not be lightly adopted. The opposite meaning should be unequivocally evidenced before it is accepted as the true meaning; otherwise, there is considerable danger that the legislative intent will be wholly or partially defeated.”

17. Crawford further says in his treatise that prohibitive or negative words can rarely, if ever, be directory …..Negative, prohibitory and exclusive words or terms are indicative of the legislative intent that the statute is to be mandatory. 2 Armed Forces Law Journal 2012 (1) .

18. In Thomson vs Stimpson 4 , Lord Parker C J (Queen’s Bench Division) while dealing with the wording of Section 16 of the Rent Act, 1957 which provided that no notice by a landlord or a tenant to quit any premises let (whether before or after the commence of the Act) as a dwelling shall be valid unless it is given not less than four weeks before the date of which it is to take effect held that four weeks’ notice contemplated in Section 16 should be construed as four clear weeks. This is what Lord Parker, CJ observed :

“….. Parliament here, however, has gone further and used the words which have been interpreted in the past as providing for four clear weeks. Like Bennett, J., in Re Hector Whaling, Ltd (1935) All E.R.303, I think that there ought to be certainty on this matter, and I prefer the view that the word should be construed as four clear weeks.”

19. A Constitution Bench of this Court in M Pentiah and others V Muddala Veeramallappa and others 5 construed the expression, ‘not less than two-third of the whole number of members” in Section 77 of Hyderabad District Municipalities Act, 1956 as follows : “This section confers on the Committee an express power couched in a negative form. Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative. If the section is recast in an affirmative form, it reads to the effect that the Committee shall have power to transfer any immovable property, if the conditions laid down under the section are complied with.”

20. In Lachmi Narain and Others V. Union of India and Others 6 this Court construed the expression, “not less than three months’ notice” in Section 6 (2) of Delhi Laws Act and held : “68. Section 6(2), as it stood immediately before the impugned notification, requires the State Government to give by notification in the Official Gazette “not less than 3 months’ notice” of its intention to add to or omit from or otherwise amend the Second Schedule. The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law-maker as expressed in the law itself. The reason behind the provision may be a further aid to the ascertainment of that intention. If the legislative intent is expressed clearly and strongly in imperative words, such as the use of “must” instead of “shall”, that will itself be sufficient to hold the provision to be mandatory and it will not be necessary to pursue the enquiry further. If the

Armed Forces Law Journal 2012 (1) 3 provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory. (Crawford, The Construction of Statutes, pp 523-24). Here the language of sub-section (2) of Section 6 is emphatically prohibitive, it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than three months.

69. In fixing this period of notice in mandatory terms, the legislature had, it seems taken into consideration several factors. According to the scheme of the Bengal Act, the tax is quantified and assessed on the quarterly turnover. The period of not less than three months’ notice conforms to that scheme and is intended to ensure that imposition of a new burden or exemption from tax causes least dislocation and inconvenience to the dealer in collecting the tax for the Government, keeping accounts and filing a proper return, and to the Revenue in assessing and collecting the same. Another object of this provision is that the public at large and the purchasers on whom the incidence of the tax really falls, should have adequate notice of taxable items. The third object seems to be that the dealers and others likely to be affected by an amendment of the second Schedule may get sufficient time and opportunity for making representations, objections or suggestions in respect of the intended amendment.. The dealers have also been ensured adequate time to arrange their sales, adjust their affairs and to get themselves registered or get their licenses amended and brought in accord with the new imposition or exemption. 70. Taking into consideration all these matters, the legislature has, in its judgment solemnly incorporated in the statute, fixed the period of the requisite notice as “not less than three months” and willed this obligation to be absolute. The span of notice was thus the essence of the legislative mandate. The necessity of notice and the span of notice both are integral to the scheme of the provision. The sub-section cannot therefore be split up into essential and non-essential components, the whole of it being mandatory. The rule in Raza Buland Sugar Co.”s case (supra) has therefore no application.”

21. In Mannalal Khetan and Others v. Kedar Nath Khetan and Others 7 while dealing with Section 108 of the Companies Act, 1956 a three Judge Bench of this Court held :

“17. In Raza Buland Sugar Co. Ltd. V Municipal Board, Rampur [(1965) 1 2 Armed Forces Law Journal 2012 (1) . SCR 970] this Court referred to various tests for finding out when a provision is mandatory or directory. The purpose for which the provision has been made, its nature, the intention of the legislature in making the provision, the general inconvenience or injustice which may result to the person from reading the provision one way or the other, the relation of the particular provision to other provisions dealing with the same subject and the language of the provision are all to be considered. Prohibition and negative words can rarely be directory. It has been aptly stated that there is one way to obey the command and that is completely to refrain from doing the forbidden act. Therefore, negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory. (See Maxwell on Interpretation of Statutes, 11th Edn., p. 362 seq.: Crawford: statutory Construction, Interpretation of Laws, p.523 and Seth Bikhraj Jaipuria v. Union of India [(1962) 2 SCR 880, 893-894].

18. The High Court said that the provisions contained in Section 108 of the Act are directory because non-compliance with Section 108 of the Act is notdeclared an offence/ The reason given by the High Court is that when the law does not prescribe the consequences or does not lay down penalty for non compliance with the provision contained in Section 108 of the Act , the provision is to be considered as directory. The High Court failed to consider the provision contained in Section 629(A) of the Act. Section 629(A) of the Act prescribed the penalty where no specific penalty is provided elsewhere in the Act. It is a question of construction in each case whether the legislature intended to prohibit the doing of the act altogether, or merely to make the person who did it liable to pay the penalty.

19. Where a contract express or implied, is expressly or by implication forbidden by statute, no court will lend its assistance to give it effect. (See Mellis v. Shirley L.B.[(1885) 16 QBD 446)]. A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void because such a penalty implies a prohibition. The penalty may be imposed with intent merely to deter persons from entering into the contract or for the purposes of revenue or that the contract shall not be entered into so as to be valid at law. A distinction is sometimes made between contracts entered into with the object of committing an illegal act and contracts expressly or impliedly prohibited by statute. The distinction is that in the former class one has to look and see what acts the statute prohibits; it does not matter whether or not it prohibits a contract; if a contract is made to do a prohibited act, that

Armed Forces Law Journal 2012 (1) 3 contract will be unenforceable. In the latter class, one has to consider not what act the statute prohibits, but what contracts it prohibits. One is not concerned at all with the intent of the parties, irf the parties enter into a prohibited contract, that contract is unenforceable. (See St.John Shipping Corporation v. Joseph Rank [(1957) 1 QB 267) (See also Halsbury’s Laws of England, Third Edn., Vol,.8.p 141.)

20. It is well established that a contract which involves inits fulfilment the doing of an act prohibited by statute is void. The legal maxim A pactis privatorum publico juri non derogatur means that private agreements cannot alter the general law. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. (See Mellis vs. Shirley L.B.) What is done in contravention of the provisions f an Act of the legislature cannot be made the subject of an action. 2 1861 30LJ Ch 379 3 7 N.Y.S.(2) 431 4 (1960) 3 All E.R. 500 5 AIR 1961 SC 1107 6 (1976) 2 SCC 953 7 (1977)2 SCC 424

21.If anything is against law though it is not prohibited in the statute but only a penalty is annexed the agreement is void. In every case, where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful, because it is not intended that a statute would inflict a penalty for a lawful act.

22. Penalties are imposed by statute for two distinct purposes : (1) for the protection of the public against fraud, or for some other object of public policy; (2) for the purpose of securing certain sources of revenue either to the State or to certain public bodies. If it is clear that a penalty is imposed by statute for the purpose of preventing something from being done on some ground of public policy, the thing prohibited, if done, will be treated as void, even though the penalty if imposed is not enforceable.

23. The provisions contained in Section 108 of the Act are for the reasons indicated earlier mandatory. The High Court erred in holding that the provisions are directory.” 2 Armed Forces Law Journal 2012 (1) . 22. The principle seems to be fairly well settled that prohibitive or negative words are ordinarily indicative of mandatory nature of the provision; although not conclusive. The Court has to examine carefully the purpose of such provision and the consequences that may follow from non-observance thereof. If the context does not show nor demands otherwise, the text of a statutory provision couched in a negative form ordinarily has to be read in the form of command. When the word “shall” is followed by prohibitive or negative words, the legislative intention of making the provision absolute, peremptory and imperative becomes loud and clear and ordinarily has to be inferred as such. There being nothing in the context otherwise, in our judgment, there has to be clear ninety-six hours interval between the accused being charged for which he is to be tried and his arraignment and interval time in Rule 34 must be read absolute. There is a purpose behind this provision; that purpose is that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety-six hours. A trial before General Court Martial entails grave consequences. The accused may be sentenced to suffer imprisonment. He may be dismissed from service. The consequences that may follow from non-observance of the time interval provided in Rule 34 being grave and severe, we hold, as it must be, that the said provision is absolute and mandatory. If the interval period provided in Rule 34 is held to be directory and its strict observance is not insisted upon, in a given case, an accused may be called upon for trial before General Court Martial no sooner charge/charges for which he is to be tried are served. Surely, that is not the intention; the timeframe provided in Rule 34 has definite purpose and object and must be strictly observed. Its non-observance vitiates the entire proceedings.

23. The Learned Additional Solicitor General heavily relied upon a decision of this Court in State Bank of Patiala wherein this Court summaries the legal position relating to disciplinary proceedings and orders of punishment thus :

“33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee): (1) An order passed imposing a punishment on an employee consequent upon a disciplinary / departmental enquiry in violation of the rules/regulations/statutory

Armed Forces Law Journal 2012 (1) 3 provisions governing such enquiries should not be set aside automatically. The Court of the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under –“no notice”, “no opportunity” and “no hearing” categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefore, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of violation of a procedural provision which is of a mandatory 2 Armed Forces Law Journal 2012 (1) . character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation, If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment) keeping in mind the approach adopted by the Constitution Bench in B Karunakar [(1993) 4 SCC 727]. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice – or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action – the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment . In other words, a distinction must be made between “no opportunity” and “no adequate opportunity” i.e., between “no notice”/”no hearing” and “no fair hearing”. (a) In the case of former, the order passed would undoubtedly be invalid (one may call it ‘void’ or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram parterm) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No.5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7). There may be situations where the interest of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the

Armed Forces Law Journal 2012 (1) 3 Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.”

24. The judgment of this Court in State Bank of Patiala hardly helps the appellants. We have already held that the provision contained in Rule 34 regarding interval of ninety-six hours from the service of the charge/charges for which an accused is to be tried and his arraignment is mandatory. This situation would be covered by sub-para 4(b) of para 33 as aforequoted.

25. That the respondent was informed of the charges for which he was to be tried by General Court Martial on November 2, 1995 at 1800 hours is not in dispute. Although the respondent was informed that he would be tried by General Court Martial on November 6, 1995 at 11 30 hours but the proceedings of the General Court Martial clearly show that the trial commenced at 1010 hors. That interval between the respondent having been informed of the charges for which he was to be tried and his arraignment was less than ninety-six hours is an admitted position. Merely because the respondent pleaded guilty is immaterial. The mandatory provision contained in Rule 34 having been breached, the Division Bench cannot be said to have erred in affirming the order of the Single Judge setting aside the proceedings of the General Court Martial.

26. In the result, the appeal must fail and is dismissed with no order as to costs.

Superscript Item reference (b) (a) 20 Hon’ble Apex Court’s ruling on disproportionate punishment modification of sentence from ‘dismissal’ to ‘discharge’ - EX. NAIK SARDAR SINGH Vs.UNION OF INDIA AND OTHERS

Text/Extract (c ) Reddy, K. .Jayachandra (j) and Pandian, S. R. (j) date of Judgment: 03/05/1991

EX. NAIK SARDAR SINGH Vs. UNION OF INDIA AND OTHERS

N.N. Gupta and Rajiv Dutta for the Appellant. 2 Armed Forces Law Journal 2012 (1) . J.D. Jain, Maninder Singh and Ms. Sushma Suri for the Respondents.

CITATION: 1992 AIR 417, 1991 SCR (2) 676, 1991 SCC (3) 213, JT 1991 (3) 1 , 1991 SCALE (1) 899 ACT: Army Act, 1950: Sections 63, 71 and 72-Summary Court-Martial- Punishment-Award of-To be commensurate with nature and degree of offence- Army Jawan carrying extra liquor bottles without permit while proceeding on leave-Award of punishment of 3 months' R.I. and dismissal from service- Whether arbitrary and excessive.

HEADNOTE: The appellant, who had put in 10 years of service as Jawan in the Army, was sentenced to 3 months' R.I. and dismissed from service by the Summary Court-Martial, on the charge that his action in carrying 12 bottles of liquor while proceeding on leave to his home town was contrary to the orders on the subject. The appeal preferred by the appellant, pointing out the irregularities committed in the summary trial, and pleading that he had unblemished record of service, was also rejected by the higher authority. The writ Petition filed by the appellant was also summarily rejected by the High Court. In the appeal before this Court, on behalf of the appellant it was contended that the summary trial was vitiated on account of several irregularities committed in conducting the trial, and the sentence awarded to him was wholly disproportionate to the offence committed by him. Disposing of the appeal, and remanding the case to the Summary Court Martial on the question of sentence, this Court HELD 1. The trial is not vitiated and no prejudice has been caused to the appellant, inasmuch as from the records it is found that the evidence has been duly recorded and, admittedly, the appellant was carrying extra seven bottles of liquor without the necessary permit. However, there is an element of arbitrariness in awarding severe punishments and, therefore, an interference is called for and the matter has to be remanded on the question of awarding any of the lesser punishments provided in the Army Act. [679E. 683G-H] 677

2.1 Section 72 of the Army Act, 1950 provides that the court-martial may, on convicting a person subject to the Act, of any offences specified in Sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the

Armed Forces Law Journal 2012 (1) 3 punishments lower in the scale set out in Section 71, regard being had to the nature and degree of offence. [680C-D]

2.2 In the instant case, in the charge sheet it is merely stated that the action of the appellant in carrying 12 bottles of liquor when he was proceeding to home town was against the orders on the subject. But in the counter affidavit it is stated that such an act of the appellant came within the meaning of Section 63 of the Act. This Section may cover various types of misconducts committed by way of an act or omission. It also provides for awarding any other lesser punishment mentioned in the Act. Therefore, much depends on the nature of the act or omission of which the person is found guilty. [680B,E]

2.3 Admittedly, the appellant was granted leavewhen he was proceeding to his home town. Enroute he had to pass through a place where prohibition was in force. He had a valid permit to carry 5 bottles of liquor and the extra 7 bottles purchased from the Army Canteen itself. Unless he had some permits or chits given by some higher authorities, he could not have purchased these extra bottles from the Canteen. He was taking this liquor to his home town to celebrate his brother-in-law's marriage, but the local Civil Police checked his baggage and confiscated the bottles as he had no valid permit to carry the extra bottles. [679G-H, 680A]

2.4 Assuming that the offence committed by the appellant is covered by the residuary Section 63, but in awarding the punishment, court-martial has to keep in view the spirit behind Section 72 and it has to give due regard to the nature and degree of the offence. Section 63 provides for awarding of any of the lesser punishments enumerated in Section 71. In view of these provisions of law and having regard to the nature and degree of the offence, the punishments awarded to the appellant, namely, three months' R.I. and dismissal from service are severe and are also violative of Section 72. Ends of justice will be sufficiently met if a lesser punishment as provided under Section 71(f) is awarded to the appellant. [682E-F, 684F].

2.5 Accordingly, the punishments are set aside and the matter remanded to the court-martial which shall award any of the lesser 678 punishments having due regard to the nature and circumstances of the case. Any detention suffered by the appellant after the orders of the court-martial will not be treated as a disqualification for being rein-stated into service. [648B] 2 Armed Forces Law Journal 2012 (1) . Ranjit Thakur v. Union of India and Others, [1987] 4 SCC 611 and Bhagat Ram v. State of Himachal Pradesh, [1983] 2 SCC 442, relied on. Council of Civil Service Unions v. Minister for the Civil Service, [1984]3 AII ER 935, 950, referred to JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 67 of 1991. From the Judgment and Order dated 27.11.1987 of the Delhi High Court in Crl. W. No. 527 of 1987. The Judgment of the Court was delivered: K. JAYACHANDRA REDDY, J.

This appeal, pursuant to the special leave granted, is directed against the order of the High Court of Delhi dismissing the writ petition filed by the appellant summarily. The appellant was serving as a Jawan in t he Indian Army. On 17th September, 1985, he applied for leave and it was granted. He was going to his home town, a village in Rajasthan. He purchased 11 bottles of sealed rum and one bottle of brandy from his Unit Canteen as he required the same to celebrate the marriage of one of his close relations at his home town. Admittedly, the appellant was entitled to carry 4 bottles of rum and one bottle of brandy as per the Unit Regulations/leave certificate when he was proceeding on leave. According to the appellant, the remaining 7 bottles of rum he was able to purchase from the Unit Canteen over and above his entitlement on the orders of its Company Commander and Commanding Officer on compassionate grounds and that there was a written order to that effect which was retained by the Salesman of the Unit Canteen at the time of delivery of the extra 7 bottles of rum. Enroute to his home 679 town he had to pass through Surendra Nagar which was under prohibition. The local Civil Police at Surendra Nagar intercepted him and confiscated the bottles of liquor and handed over the appellant alongwith the liquor bottles to the City Police Station, Surendra Nagar. The City Police in turn handed over him to his Unit authorities for action. The 6th respo ndent, the Officer Commanding, 98 Field Regiment, ordered a summary court-martial during which the witnesses including the Civil, Police Officer of Surendra Nagar were examined. Ultimately the summary court- martial sentenced the appellant to three months' R.I. and dismissed him from service with effect from 9th October, 1985 by which time the appellant had already put in 10 years of service. His plea throughout has been that he had purchased the liquor for the marriage of his brother-in-law on the basis of the permit issued to him and the chits issued by his superiors enabling him to draw the extra 7 bottles of rum and that he had no other bad intention in carrying the

Armed Forces Law Journal 2012 (1) 3 liquor bottles. He preferred an appeal to the Army Commander mentioning several irregularities in the summary trial. He also pleaded that he was having unblemished record of service in the Army, but his appeal was rejected. Thereafter he filed a writ petition in the Delhi High Court which was summarily rejected In this appeal the learned counsel for the appellant submitted that several irregularities have been committed in conducting the summary trial. But from the records we find that the evidence has been duly recorded and further it is an admitted fact that the appellant was carrying extra 7 bottles of rum without the necessary permit. Therefore we are unable to agree with the counsel that the trial is vitiated and we are of the view that no prejudice has been caused. The main submission and perhaps the only submission, if we may say so, in this appeal is that the sentence awarded to the appellant is wholly disproportionate to the offence committed by him. According to the learned counsel the extreme punishment of imprisonment for 3 months and dismissal from the service under the circumstances is uncalled for. We find considerable force in this submission. Admittedly the appellant was granted leave when he was proceeding to his home town and unfortunately enroute to his home town he had to pass through Surendra Nagar where there was prohibition in force. However, he had a valid permit to carry 5 bottles, the extra 7 bottles of rum, according to the appellant, were purchased from the Army Canteen itself and there is no dispute about the same. Unless he had some permits or chits given by some higher authorities permitting him to purchase these bottles, he could not have purchased the same from the Canteen 680 over and above the bottles for which he had a valid permit. He was taking this liquor to his home town to celebrate his brother-in-law's marriage, but to his bad luck, the Civil Police of Surendra Nagar checked his baggage and confiscated the bottles as he had no valid permit to carry the extra bottles. Under these circumstances the question is whether such a severe penalty is called for. In the charge-sheet it is merely stated that the action of the appellant in carrying 11 bottles of sealed rum and one bottle of sealed brandy when he was proceeding to his home town is "contrary to the existing orders on the subject". In the counter-affidavit it is stated that such an act of the appellant comes within the meaning of Section 63 of Chapter VI of the Army Act, 1950 (`Act' for short) which enumerates various types of offences. Section 63 lays down as under:

"63. Violation of good order and discipline-Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court-martial, be 2 Armed Forces Law Journal 2012 (1) . liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this act mentioned". The Section may cover various types of misconducts committed by a person by way of an act or omission. This Section also provides for awarding any other lesser punishment mentioned in the Act. Therefore such depends on the nature of the act or omission of which the person is found guilty. The provisions in Chapter VII enumerate various punishments that can be awarded. Section 71 of the Act deals with punishments awardable by court-martial and reads as under:

"71. Punishments awardable by courts-martial Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by courts-martial, according to the scale following, that is to say- (a) death; (b) transportation for life or for any period not less than seven years; (c) imprisonment, either rigorous or simple, for any period not exceeding fourteen years; (d) cashiering, in case of officers; (e) dismissal from the service; (f) reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers.; and reduction to the ranks or to a lower rank or grade, in the case of non-commissioned officer; Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy; (g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officers; and forfeiture of all or any part of their service for the purpose of promotion, in the case of any of them whose promotion depends upon length of service; (h) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; (i) severe reprimand or reprimand, in the case of officers, junior commissioned officer, warrant officers and non commissioned officers; (j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service; (k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal; (l) stoppage of pay and allowances until any proved loss or damage

Armed Forces Law Journal 2012 (1) 3 occasioned by the offence of which he is convicted is made good."

It can be seen that Sections 71(a) to 71(e) and Section 71(k) provide for extreme punishments and are severe in nature. Sections 71(f) to 71(j) and Section 71(l) provide for comparatively lesser punishments. Section 72 of the Act is the next relevant Section which reads as under:

"72. Alternative punishments awardable by court- martial-Subject to the provisions of this Act, a Court-Martial may, on convicting a person subject to this Act to any of the offences specified in Sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lower in the scale set out in Section 71, regard being had to the nature and degree of the Offence." (emphasis supplied) Section 73 of the Act deals with combination of punishments and it reads as under:

"73. Combination of punishments-A sentence of a court-martial may award in addition to, or without any one other punishment, the punishment specified in clause (d) or clause (e) of Section 71 and any one or more of the Punishments specified in clauses (f) to (l) of that section."

It can be seen that under Section 73 of the Act, the court- martial may award more than one punishments as mentioned therein. In the instant case Section 63 also is not mentioned in the charge sheet. Assuming that the offence committed by the appellant is covered by the residuary Section 63 but in awarding the punishment the court-martial has to keep in view the spirit behind Section 72 of the Act and it has to give due regard to the nature and degree of the offence. It can be seen that Section 63 provides for awarding any of the lesser punishments enumerated in Section 71 of the Act. In view of these provisions of law and having regard to the nature and degree of the offence, we are firmly of the view that the punishments awarded to the appellant namely, three months' R.I.and dismissal from service are severe and are also violative of Section 72. In Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All ER 935, 950 Lord Diplock said:

"Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 2 Armed Forces Law Journal 2012 (1) . `illegality', the second `irrationality' and the third 'procedural impropriety ! This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the Eurpoean Economic mmunity,....." This principle was followed in Ranjit Thakur v. Union of India and Others, [1987] 4 SCC 611 where this Court considered the question of doctrine of proportionality in the matter of awarding punishment under the Army Act and it was observed thus: "The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction Irrationality and perversity are recognised grounds of judicial review."

In Bhagat Ram v. State of Himachal Pradesh, [1983] 2 SCC 442 this Court held as under: "It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution."

Applying these principles to the instant case, We are also constrained to say that there is an element of arbitrariness in awarding these severe punishments to the appellant. We have heard both the learned counsel on this aspect elaborately and we are satisfied that an interference is called for and the matter has to be remanded on the question of awarding any of the lesser punishments. Having given our earnest consideration to the 684 facts and circumstances of this case and in view of the submissions made by both the counsel, we feel that ends of justice will sufficiently be met if a lesser punishment as provided under Section 71(f) is awarded to the appellant. Accordingly, we set aside the punishments of three months' R.I. and dismissal from service and remand the matter to the court martial which shall award any of the lesser punishments having due regard to the nature and circumstances

Armed Forces Law Journal 2012 (1) 3 of the case and in the light of the above observations made by us. Since we are setting aside the sentence of three months' R.I. any detention suffered by the appellant after the orders of the court-martial shall not be treated as a disqualification for being reinstated into service which shall, however, be subject to any of the minor punishments to be awarded by the court-martial. Already much time has lapsed, therefore, we hope the court-martial would dispose of the matter as expeditiously as possible preferably within three months. The appeal is thus disposed of subject to the above directions. N.P.V. Appeal disposed of.

Superscript Item reference (b) (a) 21 Sec 71 of The Army Act, 1950

Text/Extract ( c ) Punishments awardable by courts-martial – Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by courts-martial, according to the scale following, that is to say – (a)death; (b)transportation for life or for any period not less than seven years; (c)imprisonment either rigorous or simple, for any period not exceeding fourteen years; (d)cashiering, in the case of officers; (e)dismissal from service; (f)reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers; and reduction to the ranks or to a lower rank or grade, in the case of non-commissioner officers; Provided that a warrant officer reduced to the ranks shall not be required to service in the ranks as a sepoy; (g)forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officers; and forfeiture of all or any part of their service for the purpose of promotion, in the case of any of them whose promotion depends upon length of service; (h)forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; (i)severe reprimand or reprimand, in the case of officers, junior commissioned 2 Armed Forces Law Journal 2012 (1) . officers, warrant officers and non-commissioned officers; (j)forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service; (k)forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal; (l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.

Superscript Item reference (b) (a) 22 Form for use at Summary Court Martial in Appendix III, Part I (c ) of Army Rules Text/Extract ( c ) FORM OF PROCEEDING OF A SUMMARY COURT-MARTIAL

Proceedings of a Summary Court-Martial held at ………… on the ……………day of ………..20….. by ……….. Commanding the …….. for the trial of all such accused persons as he may duly have brought before him.

PRESENT ……………………………………………………………………………………… ……………………………… ……………………………………………………………………………………… ……………………………..... Commanding the ……………………… Attending the trial ……………………………………………………………………………………… ……………………………… ……………………………………………………………………………………… …………………………… Friend of the Accused ……………………………………………………………………………………… ……………………………… Interpreter ……………………………………………………………………………………… (1) The officers* and Junior Commissioned Officers assemble at the ………………. And the trial commences at ………hrs.

Armed Forces Law Journal 2012 (1) 3 The accused No. …………….. of the ………………………. is brought (“called” if a non-commissioned officer) into Court, ………………………………………………………………………., the court is duly sworn (affirmed). Is duly sworn (affirmed) as interpreter. (Instructions: If the CO of the accused (i.e., the Court) acts as interpreter, he must take the interpreter’s oath in addition to the oath prescribed for the Court.) All witnesses are directed to withdraw from the Court.

The charge-sheet is read, (translated) and explained to the accused marked “B- 2”, signed by the Court and attached to the proceedings. {Instructions: The sanction of superior authority for trial by SCM should be entered with the date and signature of that authority, or of a staff officer on his behalf, at the foot of the charge-sheet, when such sanction is necessary. See Army Act Section 120(2).} ARRAIGNMENT

By the Court – How say you are guilty or not guilty of the ………………. Charge preferred against you?

(Set out) Are you guilty or not guilty of the ………………..charge preferred against you? (Set out) The accused having pleaded guilty to ……….. charge(s), the provisions of Army Rule 115 (2) are here complied with. Note : If the accused pleads guilty to any charge the provisions of Army Rule 115 (2) must be complied with. * strike out if inapplicable

(Instructions : (1) If the accused pleads “Guilty”, adopt (2) and omit (3), (4) and (5); if he pleads “Not Guilty”, adopt (3) and (4) or (5) and omit (2); if he pleads “guilty” to some charge of charges and “Not guilty” to other (not alternative), adopt (3), (4) or (5) and (2).

(2) The questions are to be numbered throughout consecutively in a single 2 Armed Forces Law Journal 2012 (1) . series.)

C ** PROCEEDINGS ON A PLEA OF GUILTY

(2) The accused (No……………… Rank……………….., Name…………………………., Regiment……………………) is found guilty of the charge (all the charges)

Or is found guilty of the ……………………………. Charge, and is found not guilty of the ………………… charge. {Instructions :- If the trial proceeds upon any charge to which there is a plea of “not guilty” , the court will not proceed upon the record of the plea of “Guilty” until after the finding on those other charges; and in that case the charge on which the record is “Guilty” must be read to the accused again. (Army Rule 116(1) refers).}

The summary of evidence is read (translated), explained, marked ………….. signed by the Court and attached to the proceedings. {Instructions : If there is no summary of sufficient evidence to enable the Court to determine the sentence and to enable the reviewing officer to ‘know all the circumstances connected with the case will be taken as in paragraph (3). No address will be allowed. (Army Rule 116 (2) refers.)}

VARIATION The Court being satisfied from the statement of the accused (or the summary of evidence, or otherwise) that the accused did not understand the effect of the plea of “Guilty” alters the record and enters a plea of “Not guilty”. {Instructions : The Court will then proceed in respect of this charge as in paragraph (3) .}

Do you wish to make any statement in reference to the charge or in mitigation of punishment? (Set out)

Do you wish to call any witness as to character?

Armed Forces Law Journal 2012 (1) 3 (Set out) {Instructions (1) The examination of witnesses as to character will proceed as in paragraph (3).} (2) Evidence as to character and particulars of service will be taken as in paragraph (6)}

D** PROCEEDIGS ON A PLEA OF NOT GUILTY

PROSECUTION

(3) ##……………………….. being sworn (affirmed) is examined by the Court. Cross-examined by the accused. Re-examined by the Court. {Instructions : (1) The fact that Army Rule 141 (2), (3) and (4) has been complied with must be recorded at the conclusion of the evidence of each witness. (2) If the accused declines to cross-examine a witness the fact must be recorded.}

** Fresh page

## (a) Here insert No., Rank, Name and Unit or other description.

(b) Religion to be recorded, (Hindus and musalmans should be affirmed. Sikhs and Christians should be sworn.) VARIATION POSTPONEMENT OF CROSS-EXAMINATION (Army Rule 135) The Court, at the request of the accused, allow the cross examination of the witness to be postponed. E* The prosecution is closed. Do you intend to call any witness in your defence (Set out) DEFENCE The accused is called upon for his defence and states – Questions (if any) by the Court under Army Rule 118. {Instructions to the Court : 1. The accused is to be questioned only to afford him an opportunity of offering an explanation, if he so wishes where absence of such explanation would affect him adversely. 2. Questions put to the accused should be such as will enable him to explain any circumstances appearing against him which if unexplained may lead to a conviction. 2 Armed Forces Law Journal 2012 (1) . 3. Questions must not be put to the accused in order to supplement the case for the prosecution. 4. Questions to the accused and his answers both will be recorded verbatim as far as possible. 5. No oath shall be administered to the accused.} @ F *………………… being duly sworn (affirmed) is examined by the accused. Cross-examined by the Court. Re-examined by the accused. {Instructions – The fact that Army Rule 141 (2), (3) and (4) has been complied with must be recorded at the conclusion of the evidence of each witness.} The defence is closed. @@ G REPLY **……………… being duly sworn (affirmed) is examined by the Court. * H +

VERDICT OF THE COURT Acquittal on all charges. (4) I am of the opinion on the evidence before me that the accused No…………. of the ………..is not guilty of the charge, (or all the charges). The verdict is read out and the accused released. He is to return to his duty.

Signed at ……………. this ………. day of ……………20………….. Commanding the ………………. holding the trial. The trial closes at …………. Hrs. $ I VERDICT OF THE COURT

Acquittal on some but not on all charges (5) I am of opinion on the evidence before me that the accused No……….. of the …………. is not guilty of the ………………………… charge(s) but is guilty of the …………………….. charge (s).

Conviction on all charges

@ Fresh Page. Defence 1st witness

Armed Forces Law Journal 2012 (1) 3 * (a) Here, insert No., Rank, Name, Unit and other descriptions (b) Relligion to be recorded. (Hindus and Musalmans should be affirmed. Sikhs and Christians should be sworn). @@ Fresh Page, Reply of 1st Witness ** (a) Here, insert No., Rank, Name and Unit and other descriptions (b) Religion to be recorded. (Hindus and Musalmans should be affirmed. Sikhs and Christians should be sworn). + Fresh Page $ Fresh Page.

I am of opinion on the evidence before me that the accused No……………. of …………. is guilty of the charge (all charges). Special Findings (Army Act, Section 139 and Army Rule 121)

I am of opinion on the evidence before me that the accused No………………. of the …………. Charge(s) and guilty of the ……………… charge with the exception of words (set out) is not guilty of (deserting the service) but is guilty of (absenting himself without leave).

PROCEEDINGS BEFORE SENTENCE (6) The following minutes by the Court are read and explained. {Instructions : If the Court does not record the accused person’s convictions and character of its own knowledge, evidence as to these matters will be taken as in the Form of Proceedings for a GCM or DCM.(Army Rule 123 refers)}

It is within my own knowledge from the records of the ……….. that the accused has ……… been previously convicted by Court Martial or Criminal Court. (A separate statement giving full particulars of and previous conviction to be annexed when necessary.) *

That the following is a fair and true summary of the entries in his defaulter sheet exclusive of convictions by a Court-Martial or a Criminal Court.

Within last 12 months £ Since enrolment

For ………….. times …………. times 2 Armed Forces Law Journal 2012 (1) . For ………….. times ………….times

That he is at present undergoing ……………………………… sentence. That irrespective of this trial, his general character has been ……………………. @ That his age is ………………… his service is ……………… and his rank is, …………… That he has been in arrest (confinement) for …………………………….. days . That he is in possession of or entitled to the following military decorations and rewards :- NOTE : Any recognised acts of gallantry or distinguished conduct should also be entered here @@J SENTENCE BY THE COURT

Taking all these matters into consideration, I now sentence the accused No…………, Rank…………., Name……………….. of the ………………… (a) ** to suffer rigorous (simple) imprisonment for ….. (and I direct that the sentence of rigorous/simple imprisonment shall be carried out by confinement in military custody / military prison / civil prison). + (The Accused is recommended for Division ‘A’ (or I) or ‘B’ (or II) or ‘C’ (or III) while undergoing sentence in the civil prison. If there are only two divisions of prisoners, the accused is recommended Division ‘A’ (or I) or ‘B’ (or II) . {Instructions : Sentences of imprisonment, unless for one or more years exactly should if for one month or upwards, be recorded in months. Sentence consisting partly of months and partly of days should be recorded in months and days.}

(b) to be dismissed from the service.

(c ) (if on active service) to suffer field punishment No…………….. for ……………….

* strike out if inapplicable £ The offence during the last 12 months must be included under this heading. @ Character to be assessed in accordance with Regs Army para 171. @@ Fresh page ** inapplicable words to be struck out and initialled by the Court. + Inapplicable in case the accused is sentenced to imprisonment in military custody/military prison.

(d) (if non-commissioned officer) – (1) to be reduced to the ranks, or (2) to be reduced to (a lower rank). Or

(1) to take rank and precedence as if his appointment to the rank of …………… bore date …………………… (2) to forfeit …………. Service for the purpose of promotion.

{Instructions : This applies only in the case of a non-commissioned officer whose promotion depends upon length of service.}

(e) to forfeit………….. past service for the purpose of ………………

(f) to be severely reprimanded (or reprimanded)

(g) (if on active service) to forfeit pay and allowances for a period of ………………….

(h) to forfeit all arrears of pay and allowances and other public money due to him at the time of his dismissal;

(j) to be put under stoppage of pay and allowances until he has made good the sum of ……………. In respect of ………….. or (and) until he has made good the value of the following articles, viz.,…….. value………. Etc

Signed at ……………. this………… day of ……………… 20….. Commanding the ………………… holding the trial The trial closed at ………….. hrs.

Superscript Item reference (a) (b) 23 Memoranda for guidance of officers (CO) placed at the end of Appendix III to Army Rules. Text/Extract 2 Armed Forces Law Journal 2012 (1) . ( c ) MEMORANDA FOR THE GUIDANCE OF OFFICERS CONCERNED WITH COURTS MARTIAL

The following memoranda as to courts-martial are intended for the guidance of commanding and convening officers and others with a view to securing uniformity of practice and to avoiding some common mistakes.

These memoranda do not for part of the Appendices to the Army Rules, 1954.

SUMMARY OF EVIDENCE

1. The officer detailed to record a summary of evidence should - (a) ……………. (b) …………… (c )……………

2. Evidence in special cases - (a) ……………. (b) …………… (c )……………. (d)……………. (e) …………… 3…………….. COMMANDING OFFICERS

5. A CO will take care that an accused person is not detained in custody beyond 48 hours without the charge, being investigated, unless investigation is impracticable, in which case a report will be made to the officer to whom application to convene a GCM or DCM would be made (Army Act, Section 102).

6. Before applying for the trial of an offender a CO should satisfy himself --

(a) That the accused is subject to the Army Act, and is charged with an offence which is an offence against that Act; (b) That the offender is not exempt from trial under the provisions of Army Act, Section 122; (c) That the offence is not one which he should dispose of himself summarily

Armed Forces Law Journal 2012 (1) 3 or one which he should and can try by SCM (Regulations Army, para 447) without reference (Army Act, Section 120 (2)) or, if it is one of those offences, that from its gravity, or from the previous character of the accused, he ought not to deal with it on account of the inadequacy of his powers of punishment; (d) That the summary of evidence is properly recorded (see paras 1 and 2 ante); (e) That the evidence justifies the trial of the offender on the charge; (f) That the charge is properly framed under appropriate section (see Army Rules 28 to 30 ) (g) That an officer has given the accused a copy of the summary (or abstract) of evidence as soon as practicable after he had been remanded for trial and that his rights as to preparing his defence and of being assigned or represented at the trial have been explained to him by that officer {Army Rule 33 (7)}.

7. When making application for the trial of the offender the CO should satisfy himself that the following provisions are complied with :-

(a) The application for trial (IAFD-937) must be accompanied by all necessary documents as therein specified; and the medical officer’s certificate at the foot completed; (b) The convening officer must be informed whether or not the accused desires to have a defending officer assigned to represent him at the trial;

(c) The information required as to officers who have investigated the case; or sat on a court of inquiry, must be given with great care; (d) The charge-sheet must be signed by the officer in actual command of the unit to which the accused belongs or is attached and should state the place and date of signature; (e) Sufficient space be left at the foot of the charge-sheet for the orders of the convening officer, or officer sanctioning trial under Army Act, section 120 (2), to be entered. The place and date should be entered by the officer signing such orders; (f) The section of the Army Act under which each charge is framed should be entered in the margin, opposite the charge to which it refers; (g) When it is intended to prove any facts in respect of which any deduction from the pay and allowances (i.e., stoppages) of the accused can be awarded in consequence of the offence charged, those facts must be 2 Armed Forces Law Journal 2012 (1) . clearly shown in the particulars of the charge and the sum of the loss or damage it is intended to charge (see para 2(g) above); (h) IAFD-905 by whomsoever produced, is to be signed by the officer having custody of the books from which it is compiled; custody includes temporary custody for the purpose of the trial. In preparing this form, minor offences may be grouped as “miscellaneous” offences of the same class as that being charged should be shown in a separate group.

8. After trial has been ordered the CO should satisfy himself that the following provisions are complied with :-

a) The accused be warned for trial not less than 96 hours (24 hours where he is on active service) before the court assembles, must be informed by an officer of every charge on which he is to be tried, must be given a copy of the charge-sheet and a vernacular translation of the same and of the summary (or abstract) or evidence, and notice of the intention to call witnesses whose evidence is not contained in the summary (or abstract) and an abstract of their evidence, and must be informed of the ranks, names and units of the officers who are to form the court as well as of any waiting members (Army Rule 34). b) The accused must be informed that on his giving the names of any witnesses for the defence, reasonable steps will be taken to procure their attendance; c) The accused must be afforded proper opportunity for preparing his defence; d) The CO must not detail as a member of the court an officer who is ineligible or disqualified to serve under the provisions of Army Rule 39; e) The accused must be seen by a medical officer on the morning of each day the court is sitting for his trial and the medical officer’s report should be produced by the prosecutor to the court immediately after it opens; f) In a case of a joint trial, the accused persons should be informed of the intention to try them together and of their right under Army Rule 35 (4) to claim separate trials if the nature of the charge admits of it.

9. After confirmation (or refusal thereof), the CO must see that the following provisions are complied with :-

a) The proceedings must be promulgated as laid down in Regulations Army,

Armed Forces Law Journal 2012 (1) 3 para 472; b) The record of the promulgation must be entered on the proceedings in form shown on page ………….. and, if the proceedings have been confirmed, extracts recorded in the Regimental books; c) After promulgation the proceedings must be forwarded without delay to DJAG of the Command direct. Regulations Army, para 477 refers.

Superscript Item reference (b) (a) 24 Para 448 of Regulation for the Army

Text/Extract ( c ) Scale of Punishments Awardable by Summary Court-Martial – The following general instructions are issued for the guidance of officers holding summary courts-martial in passing sentence, but nothing contained in them will be construed as limiting the discretion of the court to pass any legal sentence, whether in accordance with these instructions or not, if in its opinion, there is good reason for doing so:- (a)When passing sentence, courts will have regard not only to the nature and degree of the offence and the previous character of the accused but also to his status and rank and to the legal consequences of the sentence proposed to be awarded. A punishment which is suitable or even lenient in the case of a young sepoy may have an extremely sever effect in the case of a NCO of some years’ service who has earned a pension. (b)Imprisonment for any term exceeding three months will be undergone in a civil or military prison(Army Act, Section 169). In practice this entails dismissal, or discharge, from service, as it is usually inexpedient for a man who has been the inmate of a civil jail to return to the service. Three months rigorous imprisonment or less to be undergone in military custody, should therefore be looked upon as the normal punishment for most first offences and for most purely military offences except those of a grave nature or where the offender already has a bad character. A sentence of imprisonment combined with dismissal should be carried out in a civil prison. (c) The award of imprisonment in a civil jail coupled with dismissal from the service must never be used merely as a means of getting rid of a man from the service but should be imposed only when the offence by itself, or the offence 2 Armed Forces Law Journal 2012 (1) . and the man’s previous record taken together, actually merits such a punishment. In other cases in which removal is considered desirable in the interest of the service, the discharge of the individual under the appropriate item of Army Rule 13 should be applied for by the CO and authorised by the brigade or superior commander. (d)In the table of normal punishments shown below, offences which cannot be tried by a summary court-martial, except after reference under Army Act, Section 120 (2) and the less common offences not been included. Such offences if tried by summary court-martial must be dealt with according to the merits of each case.

Table of Punishments (i) Normal punishment – Rigorous imprisonment for three months or less to be undergone in military custody. Offences :- Disobedience, not of a grave nature. Insubordination, not of a grave nature. First desertion or fraudulent enrolment. Absence without leave or overstaying leave. Failing to appear at parade. Quitting parade, guard, etc. without leave. Absence from camp or after tattoo. Intoxication. Releasing or suffering prisoner to escape. Escaping from custody. Losing by neglect, arms, etc. False answer on enrolment. Minor contempt of court-martial. Neglect of orders. Act prejudicial, etc. not of a grave nature. Sentry plundering, etc. not of a grave nature. Sentry sleeping on or quitting post in peace time. Use of force to superior, not of a grave nature. Failing to rejoin for active service, not of a grave nature. Making away with, under Army Act, Sec 54(a), other than arms and ammunition. False accusations and complaints, not of a grave nature. Striking or ill-treating a subordinate, not of a grave nature. First offences not of a grave nature.

Armed Forces Law Journal 2012 (1) 3 (ii) Normal Punishment – Rigorous imprisonment for six months or less and dismissal from the service. Offences :- Disobedience of a grave nature or studies insubordination. Malingering, feigning or producing disease. Use of force to superior, grave cases. Contempt of court-martial, grave cases. Giving false evidence. Ordinary theft. Frauds. Indecency or cruelty. Act prejudicial, etc., of a grave nature than under (i) above.

(iii) Normal Punishment – Rigorous imprisonment for one year and dismissal from service. Offences : - Making away with arms or ammunition. Repeated disobedience or insubordination. Desertion, grave cases and second or subsequent convictions. Thefts, grave cases. Frauds, grave cases. Causing hurt to render unfit for service. Unnatural offences. Failing to rejoin for active service of grave and deliberate nature. Act prejudicial, etc. of a grave nature.

Note: A copy of para 448 will be kept in every court-martial box.

Superscript Item reference (a) (b) 25 Gist of Orders in r/o cases of Navy personnel dismissed by way of summary trials. Text/Extract ( c ) GIST OF ORDERS ON NAVAL CASES 2 Armed Forces Law Journal 2012 (1) . 1. TA 171/2010 – R S Singh Vs UoI : Date of Order : 22.10.201 Order: Allowed. Ordered de-novo trial

2. TA 148/2010 – K K Sah Vs UoI : Date of Order : 02.03.2011 Order: Withdraws after consultations. R-2 to consider favourably granting Discharge to the Petitioner.

3. TA 183/2010 – B Ramu Vs UoI : Date of Order : 09.12.2010 Order : Allowed. Ordered De-novo trial.

4. TA 164/2010 - P K Parida Vs UoI : Date of Order : 17.09.2010 Order: Allowed. Re-trial ordered under Sec 30 (c ), appeal by UOI was dismissed by Hon’ble Apex Court.

5. TA 197/2010 – R.K. Mishra / Neelam Mishra Vs UoI: Date of Order : 29.04.2011 Order: Partly Allowed. Dismissal modified to discharge. Widow to get Family Pension from date of death of sailor.

Superscript Item reference (a) (b) 26 Army Rules 22, 23 Text/Extract ( c ) Power of Commanding Officers 1 [22.Hearing of Charge –(1) Every Charge against a person subject to the Act, shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence:

Provided that where the charge against the accused arises as a result of investigation by a Court of inquiry, wherein the provisions of rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in sub-rule(1).

(2) The commanding officer shall dismiss a charge brought before him if, in his opinion, the evidence does not show that an offence under the Act has been

Armed Forces Law Journal 2012 (1) 3 committed, and may do so if, he is satisfied that the charge ought not to be proceeded with:

Provided that the commanding officer shall not dismiss a charge which he is debarred to try under sub-section (2) of Sec.120 without reference to superior authority as specified therein.

(3) After compliance of sub-rule(1), if the commanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time - (a) dispose of the case under section 80 in accordance with the manner and form in Appendix III; or (b)refer the case to the proper superior military authority; or © adjourn the case for the purpose of having the evidence reduced to writing; or (d) if the accused is below the rank of warrant officer, order his trial by a summary court-martial:

Provided that the commanding officer shall not order trial by a summary court- martial without a reference to the officer empowered to convene a district court- martial or on active service a summary general court-martial for the trial of the alleged offender unless –

(a)the offence is one which he can try by a summary court-martial without any reference to that officer; or (b)he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline.

(4)Where the evidence taken in accordance with sub-rule(3) of this rule discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge(s) on the basis of the evidence so taken as well as the investigation of the original charge.]

23. Procedure for taking down the summary of evidence – (1) Where the case is adjourned for the purpose of having the evidence reduced to writing, at the adjourned hearing evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs. 1 Subs. by S.R.O. 17(E), dated 6th December, 1993. 2 Armed Forces Law Journal 2012 (1) .

Superscript Item reference (b) (a) 27 Air Force Rule 24 Text/Extract (c ) Disposal of the charge or adjournment for taking down the summary of evidence – (1) Every charge against a person subject to the Act shall be heard in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call any witnesses and make any statement in his defence.

(2) The commanding officer shall dismiss a charge brought before him if, in his opinion, the evidence does not show that some offence under the Act has been committed, and may do so if, in his discretion, he thinks the charge ought not to be proceeded with.

(3) At the conclusion of the hearing of a charge, if the commanding officer is of opinion that the charge ought to be proceeded with, he shall, without unnecessary delay, either :-

(a)dispose of the case summarily; or (b)1[refer the case to the proper superior air force authority for sanction under section 83; or] (c )adjourn the case for the purpose of having the evidence reduced to writing.

(4)Where the case is adjourned for the purpose of having the evidence reduced in writing, at the adjourned hearing the evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs.

(5)The accused may put questions in cross-examination to any witness, and the questions with the answers shall be added in writing to the evidence taken down.

(6)The evidence of each witness when taken down, as provided in sub-rules (4) and (5), shall be read over to him, and shall be signed by him, or if he cannot write his name, shall be attested by his mark and witnessed. Any statement of the

Armed Forces Law Journal 2012 (1) 3 accused 2[***] shall be added in writing and read over to him

(7) The evidence of the witnesses and the statement, if any, of the accused shall be recorded in the English language. If the witness or accused, as the case may be, does not understand English the evidence or statement, as recorded, shall be interpreted to him in a language which he understands.

(8) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot, in the opinion of the commanding officer or the officer taking the summary (to be certified in writing by the commanding officer or such officer), be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence. \ 3[(9)(a) Any witness who is not subject to the air force law may be summoned by order under the hand of the Commanding Officer of the accused to attend the hearing of the charge under sub-rule (1) or to attend the adjourned hearing for the purpose of having the evidence reduced to writing under sub-rule (4).

(b) The summons shall be in FormC-1 as provided in the Third Schedule.]

1 Subs. by S.R.O.24(E) dated 16th August, 1974.

2 The words “material to his defence” omitted by S.R.O. 24(E) , dated 16th August, 1974.

3. Subs. by S.R.O. 5(E) dated 8th November, 1990

Superscript Item reference (b) (a) 28 Sec 93 (2) of Navy Act

Text/Extract (c) 93. Power of court-martial and commanding officers to try offences –

(2) An offence not capital which is triable under this Act and which is committed by a person other than an officer (and in cases by this Act expressly provided for when committed by an officer), may, subject to regulations made under this Act be summarily tried and punished by the Commanding officer of the ship to which 2 Armed Forces Law Journal 2012 (1) . the offender belongs at the time either of the commission or of the trial of the offence, subject to the restriction that the commanding officer shall not have power to award imprisonment or detention for more than three months, or to award dismissal with disgrace from the naval service; Provided that no sentence of imprisonment or dismissal shall be carried into effect until approved by the prescribed authorities.

Superscript Item reference (b) (a) 29 Regs 27, 28, 29 of Regulations for the Navy, Part II Statutory Text/Extract (c) 27. Procedure at Investigation in General (1) At all investigations the evidence in support of the charge shall be heard first.

(2) Immediately after the charge has been read out, the investigating officer shall warn the accused that he should not make any statement or given any evidence on his own behalf until all the evidence against him has been heard.

(3) On conclusion of the evidence in support of the charge, the investigating officer shall decide whether a case has been made out against the accused.

(4) If there is no case, the investigating officer shall either dismiss the case or, if further evidence is likely to become available, stand it over and if there is a prima facie case, and it is a simple one with which the investigating officer thinks he can deal with himself, he shall ask the accused if he admits the charge.

(5) If the accused does not admit the charge and the matter is one within the investigating officer’s powers of punishment, he shall inform the accused that he will proceed to try the case, giving him an opportunity of making a statement and calling witnesses.

28. Investigation by the Officer of the Watch, the Officer of the Day, or the Executive Officer – (1) If, after hearing the evidence in support of the charge, the Officer of the Watch, the Officer of the Day or the Executive Officer is of opinion that the charge, if proved, would be beyond his power to punish, he must bear in mind that a confession made before him by the accused will not be admissible in

Armed Forces Law Journal 2012 (1) 3 evidence at any further proceedings unless the accused has been cautioned, before he speaks, that he is not obliged to say any thing unless he wishes to do so, and that any statement he may make may be given in evidence. Care should be taken to avoid any suggestion that the accused’s answers can only be used in evidence against him, as this may discourage an innocent person from making a statement which might help to clear him of the charge. The investigating officer must also bear in mind that in case beyond his power of punishment his functions are to see whether there is prima facie case, to collect evidence when it is important that evidence be collected immediately, and, to give the accused a chance to make a statement. If the alleged offence is one which is likely in itself to lead at least to a warrant punishment (as distinct from one which may lead to a warrant punishment because it is the culminating offence in a series of minor offences), the investigating officer should address the accused in the following words after hearing the evidence in support of the charges :-

“Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so; but what ever you say will be taken down in writing and may be given in evidence.”

(1) The Officer of the Watch or Officer of the Day need not use these words unless he decides to hear the defence before sending the case to the Executive Officer.

(3)If the accused makes a statement, it should be taken down in writing. On conclusion of this statement the investigating officer should not ask any question save to point out any ambiguity and ask if the accused wishes to clear it up or to point out that no reference has been made to some charge and ask if the accused wishes to say any thing about it. In particular, nothing must be said which indicates that the accused is expected to make any further statement.

(4)If he has not already done so, the investigating officer must then make up his mind whether the case against the accused has been made out. If he decides that no case has been made out, he is to dismiss the charge.

(5)If the investigating officer decides to refer the case to higher authority, the accused is to be informed accordingly, the customary terminology “Commander’s report” or “Captain’s report” as the case may be, being used.

29. Investigation by the Commanding Officer (1) The investigation of any offence 2 Armed Forces Law Journal 2012 (1) . by the Commanding Officer shall also be regulated so far as may be by the preceding regulation.

(2)If, after hearing the evidence in support of the charge, the Commanding Officer is of opinion that there is a Prima facie case and that the charge, if proved, would be within his power to punish, he shall proceed to try the case.

(3) If the Commanding Officer decides to apply for trial by court-martial, or to give a warrant punishment, the accused shall be told that the case is “remanded”.

(4)If the punishment to be awarded is like to be a warrant punishment requiring approval of superior authority, a Summary of Evidence given by the witnesses shall be recorded.

Superscript Item reference (b) (a) 30 Section 11 Res Judicata (Part I, Suits in General; CPC, Act V/1908 Text/Extract (c ) No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

Explanation I : The expression ‘former suit’ shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II: For the purposes of this section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court.

Explanation III: The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV : Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V: Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI : Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons so litigating.

Explanation VII: The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that degree.

Explanation VIII : An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such subsequent suit or the suit in which such issue has been subsequently raised.

Superscript Item reference (b) (a) 31 Order2(Frame of Suit).Rule2,The First Schedule, CPC, Act V/1908 Text/Extract (c) Rule 2 :Suit to include the whole claim (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.

(2)Relinquishment of part of claim : Where the plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards 2 Armed Forces Law Journal 2012 (1) . sue in respect of the portion so omitted or relinquished.

(3)Omission to sue for one of several reliefs : A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation : For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute, but one cause of action.

Illustration : A lets a house to B at a yearly rent of Rs.1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.

Superscript Item reference (b) (a) 32 (i) MoD letter No.4684/DIR(PEN)/2001 dated 14th August, 2001; (ii) MOD ID No.12(2)/04/(Pen/Sers) dated 21.07.2004 : &(iii) Integrated HQ of MoD(Army) AG’s Branch letter No.B/39022/Misc/AG/PS-4(L)/BC dated 04.0.2011 delegating powers to Service headquarters in a variety of pension related subjects.

Armed Forces Law Journal 2012 (1) 3 Text/Extract (c) (i) No.4684/DIR(PEN)/2001. Government of India, Ministry of Defence Deptt of Defence New Delhi, the 14th August, 2001 ORDER

Sanction is hereby accorded in pursuance of MOD ID No.34(3)/2001/D(O&M) dated 3.8.2001 for delegation of administrative powers with the approval of Raksha Mantri to the Service HQrs in respect of the subjects indicated below :-

(a) (i) Division of family pension between eligible family members (ii) Initial cases for award of Special Family Pension and ex-gratia for officers (iii)Recovery from pensionary benefits first charge being Public Fund dues thereafter Non-Public Fund dues from the residual benefits. (iv) Payment of dues to NOK of Deserters (v) Condonation of shortfall in qualifying service for grant of pension in respect of PBOR beyond six months and upto 12 months.*(see clarification note below) (vi)Time bar sanction for filing appeals for Ordinary Family Pension, Special Family Pension, disability pension, etc. in respect of officers and PBOR beyond 12 months. (vii) Grant of ex-gratia award to Cadets on death / disability within the Govt. approved terms and conditions (viii)Pensionary award to officers dismissed from Service otherwise than with disgrace/cashiered. (ix)Pensionary award to officers who are discharged, called upon to resign or are retired. (x) Grant of pension to PBOR dismissed from service. (xi)Grant of Disability Pension to officers. (xii)First appeal against rejection of Ordinary Family Pension, Special Family Pension, Disability Penison/ex-gratia award etc. to officers and PBOR. (xiii)First claim for pension and gratuity submitted after 12 months from due date where pension Sanctioning Authority is not satisfied with reasons for delay. 2 Armed Forces Law Journal 2012 (1) . (xiv) Implementation of judgments delivered by various Courts/CATs, including those with financial implications where further appeal is not contemplated. (b) Approving Authority in the Service HQrs in respect of the above subjects will be AG/COP/AOP/AOA as the case may be. Any further re- delegation of these powers will require prior approval of the Ministry of Defence. (c) Authenticative Authorities for authenticating of orders / documents will be the authorities as specified in Ministry of Home Affairs SO No.2297 dated 3.11.1958. further, the plaints/written statement in suits in any court of civil jurisdiction or in writ proceedings by / or against the Central Government, shall be signed by the authorities indicated in the Ministry of Law’s Notification dated 14.2.1990 Any further devolution of powers in this regard will require approval of MHA and Ministry of Law respectively. Proposal for this purpose, if need be, may be initiated by the Service HQrs. And be referred to these Ministries for issue ofnecessary corrigendum through D (O&M) Section of this Ministry. (d) Concurrence of Integrated Finance shall continue to be obtained wherever required as hithertofor without involving this Ministry.

2. The relevant Regulation (s) of Pension Regulation for the Army/Navy/Air Force shall stand amended accordingly. Formal amendments to Pension Regulation will, however, be issued in due course of time.

3. In case Pension Regulations and any other Govt. orders / instructions are required to be amended, necessary proposals in this regard will be initiated by the Service HQs.

4. Cases for RM’s approval will be submitted, wherever required by the Service HQrs after approval of AG/COP/AOP/AOA. Whenever required such cases should be routed through the Pension branch of this Ministry.

5. As regards to composition of First Appellate Committee (FAC), the Chairperson of the Committee shall be the AG/COP/AOP in respective Service HQrs, in place of Director/Dy.Secretary in charge of Pension Division in the Ministry of Defence. The other members of the Committee shall continue to be the same. The composition of the Second Appellate Committee headed by RM/RRM will remain unchanged. However, the cases shall be submitted for recommendations of the Members of the Committee and approval of RM/RRM

Armed Forces Law Journal 2012 (1) 3 direct by the Service HQrs.

6. These orders will take effect from the date of issue.

7. This issues with the concurrence of Defence (Finance) vide their U.O.No.1539/Addl.FA(B) dated 13th August, 2001.

sd/- xxxxxxxxxxxxx (SUDHAKER SHUKLA) DIRECTOR (PENSIONS) To

Chief of the Army Staff Chief of the Air Staff Chief of the Naval Staff

Copy to :

1.President Secretariat 2.Vice President Secretariat 3.Prime Minister’s Office 4.Cabinet Sectt.(Dte of Public Grievances) 5.The Controller General of Defence Accounts 6.The Principal Controller of Defence Accounts (Pensions), Allahabad 7.Controller of Defence Accounts (Pension, Disbursement), New Delhi 8.Controller of Defence Accounts (Navy), Mumbai

*(Clarification, refers to sub paragraph 1(a), of above letter)

(ii) Ministry of Defence

Sub : Condonation of shortfall in qualifying service for grant of pensionary benefits in respect of personnel below officer ranks beyond six months and up to twelve months – clarification regarding. Kindly refer to CGDA ID Note No.5669/ATP/Contempt/R.H.Ghatak dated 16.07.2004 on the subject cited above and to state that the matter has been 2 Armed Forces Law Journal 2012 (1) . considered in consultation with FA (Def) in the Ministry of Defence. It is clarified that the services HQrs are empowered to exercise the powers delegated to them vide order No.4684 / Dir(Pen) / 2001 dated 14.08.2001 even to the cases which were pending prior to issue of the orders. However, they are required to exercise the power in the interest of justice, equity and fair play.

As discussed on telephone on 21.07.2004, CGDA / PCDA (P), Allahabad is requested to take further necessary action in the light of above clarification.

HARBANS SINGH DIR (Pen) MOD ID No.12(2)/04/(Pen/Sers) dated -21.07.2004.

Tele 233-35048 23013560 Addl Dte Gen Personnel Services Adjutant General’s Branch Room No.438, ‘B’ Wing, 4th floor, Integrated HQ of MoD (Army) DHGQ PO, New Delhi 110 011

B.39022/Misc/AG/PS-4(L)/BC 04 May, 2011

HQ NORTHERN COMMAND (A) HQ SOUTHERN COMMAND (A) HQ EASTERN COMMAND (A) HQ WESTERN COMMAND (A) HQ CENTRAL COMMAND (A) HQ SOUTH WEST COMMAND (A) HQ ARMY TRAINING COMMAND (A) HQ A & N COMMAND (A) HQ STRATEGIC FORCES COMMAND (A) REDUCTION OF COURT CASES : CONDONATION OF SHORTFALL IN SERVICE FOR INVALID

Armed Forces Law Journal 2012 (1) 3 PENSION

Brief Background

1. As per Regulation 197 of PRA (Part I), Invalid Pension is granted to an individual whois invalided out from service with ten years or more but less than fifteen years qualifying service. After fifteen yrs or more service individual would have qualified for service pension. Hence the provision of Invalid Pension exists for those individuals who are unable tocomplete pensionable service.

2. Hithrtofore, Reg 197 has ben strictly applied and no condonation in shortfall in service was granted even if individual hadalmostten years service with a shortfall of only a few days in some cases.

3. The matter was considered in depth at this office and it was felt that although there are numerousinstances where individuals are invalided out with less than ten years service with a shortfall of hardly a few days, neither the administrative nor the medical authorities intended to deny him the benefit of Invalid Pension which the affected individual would have been entitled to, had he had completed ten yrs of service after merely a few days. Hence, it is felt that such individuals have suffered due to ignorance of the provisions of the provisions of Reg 197 at all levels.

4. Further, an allied issue in this matter is that it has been noticed with concern that certain Record Offices are also contesting cases where an individual has been Invalided Out with disease / injury(neither attributable nor aggravated by military service), whereas a persons’s eligibility for Invalid Pension (those who have completed ten yrs or more of service) is NOT dependent upon disease / injury to be attributable / aggravated.

Clarifications on Invalid Pension by MoD and Deptt of Pension and Pension Welfare

5. Of late, we had been approaching the MoD for reconsideration of the policy not to condone shortfall in service in respect of those individual who were invalided out with almost ten years of service.

6. Now the MoD in consultation with Deptt of Pension and Pension Welfare have clarified that in such cases nine years and nine months of service can be 2 Armed Forces Law Journal 2012 (1) . rounded off to ten yrs.

Reduction of Court Cases on Invalid Pension

7. Apropos, it is hereby directed that all Line Dtes/Record Offices to unconditionally withdraw from such cases, notwithstanding the stage they might have reached in Hon’ble Courts across the country where :-

a) An individual has served for almost ten years before he was invalided out. Consequent to MoD’s clarifications all those cases where individuals have served for nine yrs and nine months an above will be rounded off to ten yrs qualifying service for eligibility towards Invalid Pension. b) To be eligible for Invalid Pension, an individual need not have been invalided out with attributable / aggravated ailment. Hence even NANA cases are entitled to Invalid Pension, provide they have served for ten years an above but less than fifteen yrs. (now effectively nine yrs and nine months). c) Reg 197 also stipulates no condition of minimum percentage in such cases for Invalid Pension. d) Even those cases, where an LMC individual is retired / discharged from service for lack of alternative employment compatible with his LMC are eligible for Invalid Pension

8. Line Dtes/Record Offices are requested to effect withdrawal in cass by UoI diligently and with utmost care so that only those cases where an individual was invalided out with almost ten yrs of service are withdrawn. These directions are only for Invalid Pension cases under Reg 197and not for those cases where individuals are seeking Disability Pension for having been invalided out with much less service. Contents of this letter effect only those individuals who were invalided out with ALMOST TEN YRS OF SERVICE.

9. All HQ Comds are requested to sensitize the environment that individuals NOT be recommended for invalidment by Cos/OCs in service bracket of almost sten yrs to avoid litigations on the aspect and losses to the service personnel unless otherwise unavoidable for administrative reasons.

10. In case of any clarification, matters may be referred to this office on tele / FAX(35048 (ARMY) / 23335048(CIVIL) to prevent any further losses to UoI//

Armed Forces Law Journal 2012 (1) 3 petitioners in infructuous litigations.

11. This has the approval of the Adjutant General.

Sd/- XXXXXXXXX (Ajai Sharma) Col Dir, AG/PS-4(Legal) For Adjutant General Copy to : MoD (Pen/Policy) } With a request for issuance of a Govt letter as per clarification issued by your office vide note 23 dt } 08 Feb 2011 on case file of Ex-Sep Gurbaj Singh TA No.20/2099 against CWP No.13861/08 filed MoD /D(Pen/Legal) } by ex Sep Gurbaj Singh so that such cases are treated as normal cases and admitted by PCDA (P) } directly on cases taken up by Record Offices. PCDA (P) - Post clarification by Deptt of Pension & Pension Welfare on CCS (Pension) Rule, 1972, you are Requested to admit claims forwarded by Record Offices. (Photocopies of relevant nothings are Enclosed for ready reference). DDG (Pens) - Your office is requested to consider issuing directions / guidelines to medical officers to avoid invalidment out of individuals with almost ten yrs of service. It has been observed that individuals with almost ten yrs are invalided out which denies such individuals benefit of Invalid Pension and leads to litigations on the matter. JAG Deptt - for info pl AG/PS-5 - Pl take up case to expedite required appropriate amendment by MoD (Pen/Policy) AG/PS-4(Imp) - May consider appeals on the issue in light of the CCS (Pension) Rules, 1972. (Copies of relevant noting are

Superscript Item reference (b) (a) 33 Section 2, The AFT Act, 2007 2 Armed Forces Law Journal 2012 (1) . 2. Applicability of the Act – (1) The provisions of this Act shall apply to all persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950). (2) This Act shall also apply to retired personnel subject to the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950 (45 of 1950), including their dependants, heirs and successors, in so far as it relates to their service matters.

Superscript Item reference (b) (a) 34 (i)Section 2, The Army Act,1950 (ii)Section 2 of The Air Force Act,1950 (iii)Section 2 of The Navy act, 1957

(i) The Army Act, 1950 : “2. Persons subject to this Act – (1)The following persons shall be subject to this Act wherever they may be, namely :- (a) officers, junior commissioned officers and warrant officers of the regular Army; (b) persons enrolled under this Act; (c ) persons belonging to the Indian Reserve Forces; (d)persons belonging to the Indian Supplementary Reserve Forces when called out for service or when carrying out the annual test; (e)officers of the Territorial Army, when doing duty as such officers, and enrolled persons of the Said Army when called out or embodied or attached to any regular forces, subject to such adaptations and modifications as may be made in the application of this Act to such persons under sub-section (1) of section 9 of the Territorial Army Act, 1948 (56 of 1948); (f)persons holding commissions in the Army in India Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces; (g)officers appointed to the Indian Regular Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces; (h) ** (i)persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the Service of, or are followers of, or accompany any portion of, the regular Army. (2) Every person subject to this Act under clauses (a) to (g) # of sub-section (1)

Armed Forces Law Journal 2012 (1) 3 shall remain so subject until duly retired, discharged, released, removed, dismissed or cashiered from the service. ** Clause (h) omitted by the Adaptation of Laws (No.3) Order, 1956 #Substituted by the Adaptation of Laws (No.3) Order, 1956 for “(b)”

(ii)The Air Force Act, 1950 : “2. Persons subject to this Act.- The following persons shall be subject to this Act wherever they may be, namely :- (a)officers and warrant officers of the Air Force; (b)persons enrolled under this Act; &{(c ) persons belonging to the Regular Air Force Reserve or the Air Defence Reserve or the Auxiliary Air Force, in the circumstances specified in section 26 of the Reserve and Auxiliary Air Forces Act, 1952 (62 of 1952);}

(d)persons not otherwise subject to Air Force law, who, on active service, in camp, on the march, or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the Air Force. & - substituted by Act 62 of 1952, sec 35, for clause (c )

(iii)The Navy Act, 1957 :2 “Persons subject to naval law.- (1) The following persons shall be subject to naval law wherever they may be, namely:- (a)every person belonging t the Indian Navy during the time that he is liable for service under this Act; (b) every person belonging to the Indian Naval Reserve Forces when he is – (i) on active service, or (ii) in or on any property of the naval service including naval establishments, ships and other vessels, aircraft, vehicles and armouries, or (iii)called up for training or undergoing training in pursuance of regulations made under this Act, until he is duly released from his training, or (iv)called up into actual service in the Indian Navy in pursuance of regulations made under Act, until he is duly released therefrom, or (v)in uniform; (c )members of the regular Army and the Air Force when embarked on board any ship or aircraft of the Indian Navy, to such extent and subject to such conditions as may be prescribed; (d)every person not otherwise subject to naval law, who enters into an engagement with the Central Government under Section 6; (e)every person belonging any auxiliary forces raised under this Act, to such 2 Armed Forces Law Journal 2012 (1) . extent and subject to such conditions as may be prescribed; and (f)every person who, although he would not otherwise be subject to naval law, is by any other Act or during active serve by regulations made under this Act in this behalf made subject to naval law, to such extent and subject to such conditions as may be prescribed. (2) The following persons shall be deemed to be persons subject to naval law, namely:- (a)every person ordered to be received, or being a passenger, on board any ship or aircraft of the Indian Navy, to such extent and subject to such conditions as may be prescribed; (b)every person sentenced under this Act to imprisonment or detention, during the term of his sentence, notwithstanding that he is discharged or dismissed with or without disgrace from the naval service or would otherwise but for this provision cease to be subject to naval law.

Armed Forces Law Journal 2012 (1) 3 EPILOGUE

1. At the end, I wish to record my sincere gratitude, chronologically, to those who made this exhilarating journey possible.

2. Maj (Territorial Army-TA) Navdeep Singh, a practicing lawyer in the Hon’ble High Court of Punjab & Haryana and AFT, Regional Bench, Chandigarh, has been not only the very raison’d’etre for my initially applying to be considered for being appointed as Member (Administrative), but has indeed been the principal source of strength for me throughout my tenure as a Member of the AFT. Our association, beginning with my time as the GOC-in-C in Western Command of the Army in 2005 has grown immensely ever since. Recipient of eight commendations from the Army and the Air Force, for instant and high quality back-office legal/institutional- knowhow support that he provides to the Services, I consider Navdeep to be the foremost contemporary authority on matters relating to pay and pensions of all categories of personnel of the three Services. Just as he enriched and continuously kept me updated on all relevant orders and judgments on case laws, he has also kindly agreed to edit this Handbook, to which I stand indebted.

3. Hon’ble Justice A K Mathur, retired Judge of the Supreme Court and Chairperson of the AFT, was the next on the scene of this journey of mine when he as part of the selection committee of the Members of the AFT had interviewed us all, individually in late 2008, prior to confirmation of our appointments in Jun2009. I salute him with awe and respect for his dynamism and unflagging energy that has been singularly responsible for operationalising all the 15 Benches of the AFT, in the face of numerous bureaucratic hurdles. He is an inspiring leader and one single trait that we have come to admire is his decision making ability; he puts to shame most of us Generals in this regard!

4. Hon’ble Justice A. C. Arumugaperumal Adityan, retired Judge of the Madras High Court and my colleague ‘brother’ and Member (Judicial), has been an admirable companion and my judicial mentor for these two and a half years. Punctilious to the word, a great disciplinarian and an implicit follower of the written word, he indeed made it a pleasurable and an unforgettable experience to look forward to ‘more work’ every Monday of each of these more than 130 weeks gone by!

5. I owe a lot to Mrs. Radha Sridharan, who came to work on deputation from the PM’s Office as my PPS. Starting with typing and transcription work of the dictated judgments, very soon she became an able judicial assistant and built up the value 2 Armed Forces Law Journal 2012 (1) . additions in the form of organizing all the reference material (made up of related case laws, dictums, Government orders/notifications) into a readily usable force multiplier.

6. Lastly, I would like to compliment and record my appreciation to my fellow founder Members in other Benches, the Principal Registrar of the Principal Bench at New Delhi, the Registrar & Dy Registrar of the Chennai Bench, the small but dedicated heterogenous staff of ex-Army and retired civil government personnel of the Chennai Bench and above all the Advocates who practiced in the Chennai Bench and who are now organized as a Bar Association. It was great feeling to be part of a team that delivers all the time.

Jai Hind!

Chennai, Lt. Gen (Retd) S. Pattabhiraman 15th Feb 2012