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FLG Issue-1 1
FORCES LAW GAZETTE
(Dec 2011) ISSUE – 1 Available for free download and distribution from www . lawgazette . net
Published quarterly by Major Navdeep Singh, Advocate, Punjab & Haryana High Court, for free online distribution and non-commercial usage. Informal and meant more for general reading than use in Courts, this Gazette reflects pro bono public service and is a tribute to the men & women (serving & former) in uniform around the world, irrespective of service or nationality. Queries for information more than what is published, or for full text of judgements, would not be entertained please.
Honorary Editorial Board : Maj Navdeep Singh Advocate, Chetan Gupta Advocate
Contributors : Michelle Lindo McCluer Former Judge Advocate US Air Force & Former Executive Director National Institute of Military Justice, Capt Sandeep Bansal Advocate, Col MS Jaswal (Retd) Advocate, Maj Gen Raj Mehta (Retd)
Introduction :
Being published towards the end of 2011 and being the first volume, this issue of the FLG would
cover the entire 2011 and also some important developments of 2009 and 2010. Subsequent
issues of the Gazette would be published at the frequency of three months and would continue to
remain available for free download and distribution in pdf format. The FLG would consist of
three broad sections : (1) Law Related to Uniformed Services, (2) Developments and
Miscellaneous, and (3) Contributions & Articles. The disclaimer with other important
information is provided on the last page. The ‘Contributions & Articles’ section would not be
limited to the uniformed services and could include write-ups on other legal or topical
administrative issues as well. I would be failing in my duty if I do not express my thanks to the
contributors of material to the debut issue. I would also like to whole heartedly thank Mr Eugene
R Fidell, co-founder and former President of the National Institute of Military Justice (US), for
inspiration, ideas and inputs. Will not waste further space for ceremonial talk and we hope to
continue providing you material in this arena which we feel would be worthwhile for a whole
array of readers.
LAW RELATED TO UNIFORMED
SERVICES:
Pension:
Petitioner suffered injury in operations and
declared battle casualty. Discharged as
inefficient soldier with endorsement
‘services no longer required’ on account of
red ink and black ink entries. Denied
disability pension on the pretext of Army
HQrs policy stating that disability pension
would not be given to such cases and to
cases of voluntary discharge. Held that
person given disability pension for
attributable / aggravated disabilities –
persons who acquire disability to be given
disability pension and that is the spirit of
law. Differentiation suggested by UOI held
to be unreasonable, injudicious, arbitrary
FLG Issue-1 2
and illogical. Claim for disability pension is
de hors the administrative discharge.
Petition allowed (Jaggar Singh Vs UOI,
Punjab & Haryana HC, 11th
May 2009)
Question whether findings of medical board
can be ignored ?, Held - Medical Board is an
expert body, findings must be given due
weight and credence – personal and family
history of Respondent revealed that he was
forced to leave education and join army.
Possibility of disability due to family stress
and pressure not ruled out. Respondent did
not assail the opinion or validity of medical
board and on the contrary, Respondent
placed reliance on medical board.
Respondent held not entitled to disability
pension (Secretary, MoD Vs Damodaran
AV, Supreme Court, 20th
Aug 2009)
Question examined whether a person is
entitled to disability pension on seeking
voluntary retirement. Whether counter
affidavit required in cases involving settled
legal position ? Held : Yes – Respondents
acting against settled legal position.
Petitioners being compelled to approach
Courts, there was unnecessary resistance to
writ petition and counter affidavit not
required. No basis for Respondents’ attitude
in forcing individuals to resort to litigation
once position is settled. Attitude almost
contemptuous apart from unnecessarily
burdening dockets of Courts. Costs allowed
to Petitioner @ Rs 25,000 to be recovered
from officer who took stand inconsistent
with settled legal position (Singheswar
Singh Vs UOI, Delhi HC, 28th
Aug 2009)
Whether there could be any distinction made
between a widow of a person, who died by
reason attributable to or aggravated by
military service (Special Family Pension)
and a person who had died just in service
(Ordinary Family Pension), since the
problem faced by both the widows are
identical ? Held that wife who lives a
common life and continues to support the
other living eligible heirs, the entitlement
to claim family pension could not be
denied - various judgements discussed -
claim of the petitioner upheld and to be
given the benefit of the family pension
as provided under the Family Pension
Scheme, 1964 (Tej Kaur Vs UOI, Punjab &
Haryana HC, 21st Dec 2009)
Normally Court does not interfere with
declaration of medical board, however Court
can see whether medical board conformed to
rules and regulations or not. Case law of SC
and HCs discussed. IHD mentioned in rules
as a disease which is affected by stress and
strain of service. Opinion of medical board
is not in conformity of rules and regulations
– SC cases distinguished. Petitioner held
entitled to disability pension with 12%
interest. Costs of Rs 5000 awarded. Petition
Allowed. (Waryam Chand Vs UOI,
Chandigarh AFT, 01st Jan 2010)
Disability pension is to be calculated based
on the rank held on retirement / discharge
and not on the basis of the lower rank held
on the date of injury / disease. Pension
Regulation 180 discussed. Petition allowed
with interest (AR Chandran KR Vs UOI,
Chandigarh AFT, 02nd
Feb 2010)
Husband of Petitioner who was in low
medical category with neither attributable /
nor aggravated disability, was released after
more than 10 years of service so as to enable
him to earn invalid pension. Later it was
discovered that Respondents had counted
service incorrectly and he fell short of 10
years for earning invalid pension. Later he
died. Held that husband of Petitioner entitled
to invalid pension and Petitioner entitled to
ordinary family pension from date of death
since she could not be penalised for any
mistake or error in calculation on the part of
the Respondents (Krishna Devi Vs UOI,
Chandigarh AFT, 03rd
Mar 2010)
FLG Issue-1 3
Point determined whether family of a
missing soldier is entitled to family pension
? Held, Yes, husband of the Petitioner
missing till date. Various government
circulars discussed. Petitioner held entitled
to family pension from 1992 with 6%
interest. Application allowed (Parvati Devi
Vs UOI, Jaipur AFT, 10th
Nov 2009, also
held by the same Bench in Munni Devi Vs
UOI and by the Chennai AFT in Sarbjeet
Kaur Vs UOI 04th
Mar 2010)
Congenital diseases, though not defects, may
be service connected, if they are aggravated
by service. Defects are stationary in nature,
while diseases may progress or improve.
Remanded for determination whether
appellant had a disease or defect and
consequent finding as to aggravation. Unless
there is clear and unmistakable evidence to
the contrary, it must be presumed that a
person enters service in sound shape except
or defects, injuries or diseases expressly
noted or where it shown that his condition
existed before service and was not
aggravated by service. (Regis M Quirin Vs
Erin K Shinseki, US Court of Appeals for
Veterans Claims, 10th
Mar 2010)
Person in low medical category at the time
of release is to be treated as invalided out of
service for the purposes of disability
pension. Granting disability pension to post-
2006 voluntary retirees but refusing the
same to pre-2006 retirees is not proper (A
Shihabudeen Vs PCDA, Kochi AFT, 22nd
Mar 2010)
During medical board a statement was given
by Applicant that injury on eye was suffered
while firing blank ammunition in military
exercise. This was supported by opinion of
Commanding Officer. Delay of no
consequence since Applicant had been
regularly agitating claim. Disability pension
granted from 1971 with 6% interest.
Application allowed (Kishore Singh Vs
UOI, Jaipur AFT, 04th
May 2010)
Point determined that if there is conflict
between two medical boards on
attributability or aggravation then which
board is to prevail ? It was held that when
there are contrary opinions expressed by two
bodies of experts then beneficial opinion
prevails. Application allowed. Disability
pension granted from date of discharge in
1998 (Lachhman Singh Vs UOI, Jaipur
AFT, 07th
May 2010)
Whether family of a person who dies during
desertion is entitled to family pension when
a person died before dismissal from service
in 1987 when actually the dismissal (after 10
years of desertion) was to be actually
effectuated under the rules in 1984 which
was delayed by the authorities ? It was held
that the soldier deserted in 1974 and order of
dismissal passed on 02-05-1987, hence
soldier died before dismissal on 10-04-1987.
Desertion before dismissal did not lead to
cessation of service. Late mother of
Petitioner held entitled to family pension
from date of death of the soldier with 12 %
interest (G Yesupadam Vs Madras Engineer
Group, Chennai AFT, 18th
Jun 2010)
Disability pension formula for pre-2006
retirees should be same as post-2006
retirees. Cut-off date of 01 Jan 2006 struck
down. Case law discussed and distinguished
(PK Kapur Vs UOI, Principal Bench AFT,
30th
Jun 2010)
Bilateral Hearing Loss incurred due to
mortar firing on Line of Control. Claim for
war injury pension rejected on the ground
that there was no documentary proof. Held
that there were enough documents to show
the incident and in fact the unit had
internally accepted the disability to be a
battle casualty. Petitioner to be granted
disability pension and to be treated as
FLG Issue-1 4
invalided out (Paramjit Singh Vs UOI,
Chandigarh AFT, 13th
Jul 2010)
Second family pension in this case is from a
trust fund and not from a government
source. Similar case allowed by High Court
and affirmed by Supreme Court. Petitioner
entitled to family pension from army as well
as from bank. Petition allowed (Radhamony
Amma Vs UOI, Kochi AFT, 28th
Jul 2010)
Ordinary family pension made admissible on
re-marriage for post-2006 cases only, pre-
2006 cases remarried widows not made
eligible for continuance of pension on re-
marriage. No such cut-off date prescribed
for Special Family Pension. Cut-off date
held to be artificial and struck down. Held
that such conditions should not be imposed
for policies related to emancipation of
women (Saroj Devi Vs UOI, Principal
Bench AFT, 04th
Aug 2010)
Court examined whether a handicapped
child is entitled to ordinary family pension
from the Army after the death of his parents
and after attaining majority even if he is
married. It was concluded that such a right
cannot be taken away by the Govt
administratively through a circular since it
had been allowed by a Presidential sanction
(Vinod Kumar Vs UOI, Chandigarh AFT,
01st Oct 2010)
It is an admitted fact that the disability of the
appellant was assessed as more than 20%.
Moreover, it is not the case of the
respondents that the appellant/plaintiff
received injury as a result of his negligence.
The accident took place under the
circumstances which were not under his
control. Therefore, in our view, the injury
inflicted as a result of accident should be
deemed to be attributable to military service.
Apart from it, the injury was sustained by
the appellant in the year 1969, whereas he
was discharged in ‘Low Medical Category’
after 10 years of the accident for the same
disability. Under the circumstances, it is also
deemed to be aggravated as a result of
military service (Kartar Singh Vs UOI,
Chandigarh AFT, 01st Oct 2010)
Medical board opinion vague regarding
schizophrenia. Entitlement Rules 18 to 20
discussed. Delhi High Court judgement
relied upon in which held that unless there is
family history of an illness normally it is
assumed as attributable / aggravated. Delhi
HC judgement affirmed by Supreme Court –
in absence of justified reasons by Medical
Board the disability to be taken as
attributable / aggravated by military service.
Petition allowed (Krishna Singh Vs UOI,
Principal Bench AFT, 01st Oct 2010)
Condonation for grant of service pension for
second spell of service in DSC refused on
the basis of an Army HQ letter issued by
Adjutant General in 1962 which provides
condonation not to be given for second spell.
Held that Adjutant General is persona non
grata and not competent to alter Pension
Regulations which contain no stipulation
disallowing condonation for second spell.
Rejection quashed. Orders issued to condone
the shortfall (Shamsher Singh Vs UOI,
Chandigarh AFT, 11th
Nov 2010)
No reason given whatsoever by medical
board for reaching conclusion as to why
disability not connected with service.
Disability assessed at 15-19% - admitted by
respondents that now even in cases where
disability is assessed at 1% disability
pension is admissible. Petition allowed
(Uday Kumar Vs UOI, Kochi AFT 07th
Dec
2010)
Petitioner, a short service commissioned
officer with previous service in ranks not
granted pension on the pretext that he was 5
FLG Issue-1 5
days short of qualifying service. His
terminal leave period not counted as
qualifying service. Held that all kinds of
leave are to be counted as qualifying service
for pension in accordance with Regulation
26 of Air Force Pension Regulations. Also
with effect from 1983, service of 3 months
or more is to be treated as 6 months for
purposes of qualifying service. Petition
allowed (NS Kadian Vs UOI, Chandigarh
AFT, 11th
Dec 2010)
Is a soldier entitled to disability pension in
case he suffers injury while on annual leave.
Conflicting Judgements : Held No (Jagtar
Singh Vs UOI, Chandigarh Bench, 02nd
Nov
2010), Held Yes (Raj Pal Vs UOI,
Chandigarh AFT, 15th
Dec 2010)
Petitioner approached the Court after 33
years but documents destroyed earlier than
due by Respondents. Disability of ‘Pleuri
syc effusion’ can safely be concluded as
related to military service since it is listed in
list of diseases affected by service in the
entitlement rules. Since no proof of
disability percentage is available, Petitioner
entitled to service element with effect from
1971 with 6% interest (Rafiq Ahmed Vs
UOI, Jaipur AFT, 03rd
Jan 2011)
Board must provide statement of reasons or
basis of its conclusion related to disability
(Frank E Buczynski Vs Eric K Shinseki,
Secretary Veteran Affairs, US Court of
Appeals for Veteran Claims, 06th
Jan 2011)
Special Family Pension policy only provides
continuance to remarried widows in cases
occurring after 01-01-1996. Cut-off date of
01-01-1996 held discriminatory (Shanti
Devi Vs UOI, Jaipur AFT, 13th
Jan 2011)
Injury while handling a weapon is definitely
attributable to military service. Single Bench
rightly granted disability pension. Appeal
(LPA) dismissed (UOI Vs Kuldeep Singh,
Punjab & Haryana HC, 21st Jan 2011)
Petitioner faced a parade of administrative
miseries. Disability compensation benefits
granted from a back date. Red-tapism
discussed and Petitioner allowed costs and
fee of $11,715.49 (Cleveland D Harvey Vs
Eric K Shinseki, US Court of Appeals for
Veteran Claims, 25th
Jan 2011)
Medical Board must provide proper reasons
for rejecting claim of attributability to
service or aggravation by service. Otherwise
presumption shall be in favour of the
claimant. Declaration of disability ‘neither
attributable, nor aggravated’ by service by
the Medical Board rejected. Supreme Court
decisions distinguished. Disability Pension
allowed (Idrish Khan Vs UOI, Jaipur AFT,
03rd
Feb 2011)
Officer died while on duty during admission
period in Military Hospital due to sudden
cardiac arrest. Death is attributable to
service, hence Special Family Pension
directed to be released (Shamim Begum Vs
UOI, Jaipur AFT, 03rd
Feb 2011)
Is gratuity or pension forfeited in the event
of retirement of a Commissioned Officer ?
Held, No. Gratuity or pension as admissible
to be released to an officer who has resigned
his commission (Salil Singh, Chandigarh
AFT, 08th
Feb 2011)
Soldier electrocuted while on duty. Family
entitled to ex-gratia compensation of Rs Ten
Lacs as per existing policy (M Parvathi Vs
UOI, Chennai AFT, 24th
March 2011)
Disabled personnel who superannuate or are
released on completion of terms of
engagement are also entitled to broad-
banding / rounding-off of disability or war
injury element (Vijay Oberoi Vs UOI,
Chandigarh AFT, 04th
Aug 2010 and KJS
Buttar Vs UOI, Supreme Court, 31st Mar
2011, UOI Vs Paramjit Singh, Supreme
Court, 04th
Apr 2011)
FLG Issue-1 6
Rounding off / Broad-banding of disability
element of disability pension. Policy
introduced for post-1996 retirees with effect
from 01 Jan 1996 but extended to pre-1996
retirees with effect from 01 July 2009. Cut-
off date and various qualifications
prescribed for post-1996 retirees set-aside.
Case law discussed (Balbir Singh Vs UOI,
Chandigarh AFT, 31st Mar 2011)
Can disability pension be denied to
commissioned officers who retire
voluntarily after completing pensionable
terms of engagement ? Held that disability
pension cannot be denied to voluntary
retirees of the commissioned officer
category, especially those commissioned
officers who have sought retirement after
completing pensionable terms. Judgment of
the Supreme Court in ‘UOI Vs Ajay Wahi’
distinguished (SS Ahluwalia Vs UOI,
Chandigarh AFT, 20th
Dec 2010 and AC
Prem Vs UOI, Chandigarh AFT, 31st Mar
2011)
Husband served in operational areas despite
being diagnosed with cancer. Later invalided
from the Army while in a delicate state from
the Military Hospital directly and died 9
days later. Widow held entitled to Special
Family Pension since the disease is to be
deemed as attributable / aggravated since it
fulfils such conditions in light of the Guide
to Medical Officers – Military Pensions
(Nirmala Devi Vs UOI, Chandigarh AFT,
13th
Apr 2011)
Unchecked competence of (US) Department
of Veterans Administration has gone long
unchecked. Veterans should not be
compelled to perish while govt fails to
perform obligations. Suicides amongst
veterans higher than general public.
Veterans suffering and dying heedlessly and
needlessly. Held that Constitution confers
just and timely adjudication of disability
claims (Veterans for Common Sense Vs
Department of Veterans’ Administration, US
Court of Appeals, 11th
May 2011)
Appeal Medical Board has no jurisdiction to
go into attributability or aggravation once
the Release Medical Board has declared a
disability as attributable or aggravated (Bali
Ram Vs UOI, Chandigarh AFT, 27th
Jul
2011)
AFT restricted arrears of Special Family
Pension to a widow to 3 years preceding
filing of Petition. No proof that rejection
order by appellate authority was ever served
upon her in 2000. Widow pursuing her claim
within her limited means. Restriction of
arrears held not proper. Arrears to be
released within 12 weeks (Kamla Devi Vs
UOI, Delhi HC, 02nd
Sep 2011)
Soldier died due to illness in a notified
operational area in Siachen (OP Meghdoot).
Family is entitled to liberalised family
pension in terms of Category E of Govt of
India letter dated 31st Jan 2001. Also entitled
to ex-gratia payment (Hellan Sagayamony
Vs UOI, Chennai AFT, 05th
Sep 2011)
Diabetes declared neither attributable nor
aggravated by service by medical board.
Held to be improper and direction issued to
grant disability pension. Late husband of the
claimant was in the Navy and in absence of
reasoning by the board and presumption
being in favour of the late sailor, he was to
be given the benefit of attributability. Rules
and medical guidelines discussed (Subhash
Chand Vs UOI, Principal Bench AFT, 21st
Sep 2011)
Petitioner who was serving in the Air Force
invalided out on account of schizophrenia
which was declared not connected with
service by authorities on the ground that the
disability was incurred in Naliya (Gujarat)
which was a peace station. Held that Naliya
has been declared modified field area and
the fact is also recorded in the medical
FLG Issue-1 7
board. Rules discussed, Petition allowed and
Petitioner held entitled to disability pension
(JP Yadav Vs UOI, Chandigarh AFT, 30th
Sep 2011)
Grant of pension of Regular Naib Subedars
to Honorary Naib Subedars – cut off date of
admissibility only to post-2006 retirees held
to be discriminatory in Virender Singh Vs
UOI by Chandigarh AFT. SLP dismissed.
However in another similar case, while
dismissing UOI’s SLP, it was observed by
the SC that the benefits shall be admissible
to those Havildars who were granted rank of
Honorary Naib Subedar prior to retirement.
Held that the Honorary rank of Naib
Subedar is only granted after retirement
according to regulations and hence the
observation of the SC without referring to
regulations was not a binding precedent.
Moreover, SC had affirmed orders of
Chandigarh AFT in all SLPs. Case law
discussed (Bhagwan Singh Vs UOI,
Chandigarh AFT, 18th
Oct 2011)
ACR & Promotion:
ACR initiated before finalisation of
disciplinary case. Respondents stated that
ACR was initiated after finalisation of Court
of Inquiry. Held that the term finalisation
used in the relevant orders referred to
finalisation or closure of the entire case and
not merely conclusion of Inquiry. A
Confidential Report also not communicated
to Petitioner and kept on record without
Officer’s signatures or authentication, Held
not proper. Respondents also took plea of
case being time barred. Held that petition
was directed towards the very topical
inclusion of an invalid report in a recently
held promotion board hence the claim was
not time barred. Held that passage of time
would not legitimize patently illegal action
of Respondents and they cannot take benefit
of their own wrongs. The Courts cannot
close their eyes to a wrong. Rejection order
set aside, Petitioner directed to be
considered afresh for the rank of full
Colonel (SD Pokhriyal Vs UOI, Chandigarh
AFT, 12th
Jul 2010)
Permanent Aviation corps cadre formed. No
other Major General could have been
brought in to the post of ADG Aviation
which was to be legally manned by an
officer of the Aviation Corps. Petitioner who
was a Brigadier was entitled to the rank of
Major General in Aviation Corps (UOI Vs
Narinderjit Singh Sidhu, Supreme Court,
29th
Sep 2010)
Adverse report provided for period beyond
the one covered by the ACR. Quashed.
Petitioner to be considered afresh for
promotion (AK Singh Vs UOI, Principal
Bench AFT, 16th
Dec 2010)
Since order of discharge was illegal and re-
instatement had been ordered, Petitioner
ordered to be considered for notional
promotion (Jaswant Singh Vs UOI, Principal
Bench AFT, 04th
Jan 2011)
Annual Confidential Report written at a
particular point of time cannot be reviewed
based on a fresh policy. Expunging remarks
of one officer in order to enable him to steal
a march in promotion over another, held not
proper (Pradeep Bhargava Vs UOI, Principal
Bench AFT, 20th
Jan 2011)
Officer inducted in DGQA and assured
consideration for higher promotions. Later
policy changed retrospectively and
Petitioner informed that he was not eligible
for higher promotions. Though Respondents
can alter policy, they cannot do it
retrospectively to the detriment of the
Petitioner and the same can only be done
prospectively. Petitioner to be considered for
further promotions as per policy applicable
to him prior to implementation of new
policy which shall only operate
FLG Issue-1 8
prospectively (GS Grewal Vs UOI,
Chandigarh AFT, 15th
Apr 2011)
ACR quashed being biased and subjective.
Officer given 6 show cause notices while he
was in ICU. This shows how he was treated
by IO and RO. Petition allowed (Subodh
Shukla Vs UOI, Principal Bench AFT, 02nd
May 2011)
Petitioner who was commanding an SSB
Battalion asked to command two battalions
1200 kms apart. On his pointing out the
practical difficulties supported by chain of
command, the DG directed adverse entry in
his ACR. Held that the term ‘operational
performance not upto mark’ was totally
subjective and not supported by objective
facts. Subjective satisfaction cannot be
whimsical. Also held that though the DIG
resisted the subjectivity, the IG was not a
man of steel and buckled under the pressure
of DG. Adverse remarks quashed and costs
awarded (Upendra Prakash Balodi Vs UOI,
Delhi HC, 24th
Feb 2011 and UOI Vs
Upendra Prakash Balodi, Supreme Court,
06th
Jul 2011)
Discipline & Court Martial :
Held that provision of Section 34 of Army
Act is mandatory and there had to be an
interval of 96 hours between information of
charge to accused and his arraignment. The
rule is absolute. Pleading of ‘guilty’ by
accused is immaterial. Court Martial
proceedings vitiated. High Court had rightly
set aside the Court Martial (UOI Vs AK
Pandey, Supreme Court, 16th
Sep 2009)
Court of Appeals for the Armed Forces
(CAAF) and the Navy-Marine Corps Court
of Criminal Appeals (NMCCA), courts of
limited jurisdiction have statutory subject-
matter jurisdiction over a foreign service-
member’s writ of error coram nobis, even if
the service-member had been discharged
many years before seeking the writ. both
Courts could determine belated challenge to
ineffective assistance when averred that the
accused would not have pleaded guilty to
charges had he known that pleading guilty
would result in deportation proceedings
(United States Vs Denedo, US Supreme
Court, 08th
June 2009)
Provisions requiring reasons in support of
District Court Martial verdict missing in Air
Force Rules but available in Army Rules.
This anomaly requires immediate attention
of Ministry of Defence (Deepak Kumar Das
Vs UOI, Kolkata AFT, 20th
Apr 2010)
Question examined whether in view of the
provisions of Sections 160 and 161 of the
Navy Act which provide for review of a
court marital by the JAG of the Navy, the
AFT’s jurisdiction could be said to be
excluded save where there is perversity or an
error of jurisdiction? And whether the
AFT’s powers of review qua the Navy are
identical to the powers of the HC under Art.
226 and similarly confined? Held, No, the
objects of the AFT Act make clear that it is
meant to provide a forum with a judicial
member to review the findings of the Govt.
The AFT Act being a special Act would also
override the prior general provisions of the
Navy Act, particularly in view of Section 39
of the AFT Act which gives the Act
overriding effect. No, the AFT is entitled to
review evidence and findings of fact. The
AFT Act makes this clear and no further
external aid is required on this point
(Vikrampal Singh Vs UOI, Principal Bench
AFT, 26th
Apr 2010)
Officer’s dismissal ordered when Court
Martial failed on technical grounds of
limitation. Respondents took a plea that in
view of SC decision in Harjeet Singh
Sandhu’s case, order under Section 19 of
FLG Issue-1 9
Army Act was justified. Held that right of
Respondents is not unfettered and Petitioner
was not responsible for delay in initiation of
disciplinary proceedings. It was inaction of
the Respondents which was responsible for
the delay. Termination under such
circumstances amounted to colourable
exercise of power and abuse of provisions.
Also held that dismissal order was not
genuine and was actually brought into
existence after superannuation of Petitioner
and was ante-dated. Petitioner ordered to be
reinstated and deemingly superannuated (SL
Sharma Vs UOI, Chandigarh AFT, 29th
Apr
2010)
Admitted position is that the deceased had
misbehaved with the wife of one Officer
and he was taken by the accused persons for
interrogation. He made an attempt to run
away, in which he was caught. Again he was
taken in the gypsy vehicle, from which he
jumped off. The prosecution has been able
to establish only the fact that the deceased
was seen in the company of the appellant-
accused and other co-accused. No overt act
was attributed to the appellant-accused. In
the absence of evidence, the case against the
appellant-accused cannot stand. Appeal
allowed. GCM set aside (MS Mandher Vs
UOI, Principal Bench AFT, 14th
May 2010)
Point determined whether administrative
termination after GCM amounted to double
jeopardy ? Held : GCM of the Petitioner
held, reprimand awarded. Revision ordered
by confirming authority, not confirmed –
Show Cause Notice issued for administrative
dismissal for sexual harassment.
Respondents claimed that charges were
different. Held that charges essentially the
same – earlier GCM proceedings not placed
before COAS or COAS did not apply mind.
Executive authority cannot disregard GCM
with the stroke of a pen. Show Cause Notice
set aside and quashed. Respondents
restrained from taking any action on basis of
the show cause notice. Petition allowed
(Debashis Mitra Vs UOI, Kolkata AFT, 20th
Jul 2010)
Whether a person can be discharged on the
basis of departmental enquiry (Court of
Inquiry) when later acquitted by a Court of
Law for the criminal offence ? Held Yes.
Petitioner not discharged purely on the basis
of criminal case but on the basis of domestic
enquiry – rules and procedures were
followed. Petition dismissed (SC Pardhan
Vs UOI, Chandigarh AFT, 26th
Jul 2010)
Whether the discharge of an individual from
Indian Air Force on the ground that his
wife accepted employment in a hospital
abroad is legal and proper ? Held, Yes (Binu
Augustine Vs UOI, Kochi AFT, 20th
Aug
2010)
Petitioner helping brother in his sinking
business. Petitioner not himself indulging in
business – violation of Air Force Order
alleged but not examined by Court of
Inquiry or Summary of Evidence. Nothing
on record to show allegation of Petitioner
being potential security threat. Seems
proceedings initiated with predetermined
mind. Decision of Court Martial suddenly
dispensed with and Petitioner dismissed
administratively. Cheque bouncing does not
amount to moral turpitude. Dismissal order
set aside, dismissal converted into voluntary
discharge with all consequential benefits.
Petition allowed (George Mathew Vs UOI,
Kochi AFT, 30th
Sep 2010)
Petitioner was a medical officer charged
with outraging modesty of patients.
Procedural lapses at pre trial stage would not
vitiate trial. Touching of breasts necessary
during the particular examination –
allegation of touching of private parts came
in at a subsequent stage and mitigated the
offence. Punishment of cashiering not only
disproportionate but also impermissible.
Conviction converted into discharge with a
FLG Issue-1 10
fine of Rs 50000 (SS Bedi Vs UOI,
Principal Bench AFT, 01st Oct 2010)
Whether the disallowance of certain
questions in cross examination and the
requirement that questions be put in writing
to witnesses amounted to a violation of
Army Rule 180 with respect to a Court of
Inquiry (CoI) and whether it was permissible
for the Army to annex additional documents
as annexures to the report of the CoI without
giving the Petitioner access to the same
during the course of the CoI? Held- No, a
large volume of evidence was recorded and
the Presiding Officer was within his rights in
curtailing the length of the inquiry by
requiring questions to be submitted in
writing. Also held - No, an additional CoI
was directed to be convened giving the
Applicant the opportunity to cross examine
witnesses on the basis oft these additional
documents as the CoI is a fact finding body,
the observations of which could prejudice
the future trial of the officer (Sanjay Jethi Vs
UOI, Principal Bench AFT, 08th
Oct 2010)
Question considered whether Court of
Inquiry, constitution of which was contrary
to Rule 177(3) of Army Rules, 1954 and in
violation of the provisions of Para 518 of the
Regulations for the Army, 1987, can be
sustained ? Held, No – the whole
proceedings are illegal and unsustainable.
Court of Inquiry proceedings against a Lt
Gen and all further proceedings thereto set-
aside (Gurjit Singh Dhillon Vs UOI, Kochi
AFT, 26th
Nov 2010)
Shown that Court of Inquiry proceedings not
attached with show cause notice. Authorities
ought to have given him the documents. Non
furnishing court of inquiry fatal. Dismissal
set aside and converted into discharge with
full benefits. Appeal allowed (RN Panday
Vs UOI, Principal Bench AFT, 01st Dec
2010)
Confession while under custody was not
voluntary. Such confessional statement,
which was subsequently retracted by him,
cannot form the sole basis for the charges
levelled against him. Merely convicting him
on the basis of the extra judicial confession
does not inspire confidence and the
appellant cannot be held guilty. Appeal
allowed. Appellant deemed to have been
discharged from service from the date of the
impugned order and entitled to all
pensionary benefits from the date of his
discharge (Jai Prakash Rana Vs UOI,
Principal Bench AFT, 01st Dec 2010)
Not signing plea of guilt but stating that a
person does not want to serve the Army
cannot be taken as a substitute of plea of
guilt. In the circumstances plea of guilt
should have been converted into plea of not
guilty resulting in full fledged trial – SCM
set aside. Appellant deemed to be in service
till minimum pensionable service. Appeal
allowed (Naresh Chand Vs UOI, Principal
Bench AFT, 08th
Dec 2010)
Officer being investigated for Malegaon
Blast case. Petitioner not granted full
opportunity of examination of witnesses.
Army Rule 180 violated. Additional CoI
ordered. (Prasad Purohit Vs UOI, Jaipur
AFT, 09th
Mar 2011)
Jawans deserting en-route and abandoning
goods entrusted to them is a serious matter
and punishment of compulsory retirement
was not disproportionate (Dinesh Kumar
Atri Vs UOI, Delhi HC, 10th
Mar 2011)
Penalty of dismissal by BSF authorities not
shocking since Petitioner had already been
punished 8 times before in service, moreover
the offence was during duty at Border
Outpost (Jagraj Singh Vs UOI, Delhi HC,
15th
Mar 2011)
FLG Issue-1 11
Appeal against Summary Court Martial
(SCM) filed after 23 years. Highly belated
hence dismissed. Case law discussed (KS
Tiwari Vs UOI, Delhi HC, 01st Apr 2011)
Petitioner dismissed by Summary Trial.
Navy did not provide opportunity to opt for
court martial. Once besides other
punishments, the CO had come to the
conclusion that reduction of rank had to be
effectuated, accused had to be given
opportunity of court martial under Naval
Statutory Regulation 30 (c). procedure not
followed. Punishment set aside, Petition
allowed (PK Parida Vs UOI, Chennai AFT,
17th
Sep 2010 and UOI Vs PK Parida,
Supreme Court, 07th
Jul 2011)
Railway Protection Force personnel inflicted
with 2 major and 5 minor penalties in the
force. Was incorrigible. Past conduct also
needs to be seen. Petition dismissed (Raman
Bihari Lal Vs UOI, Delhi HC, 28th
Apr
2011)
CRPF staffer attempted to commit suicide
due to a ‘broken heart’. Plea for re-induction
refused but penalty of dismissal from service
watered down to removal (Sachin Kumar Vs
UOI, Delhi HC, 25th
March 2011)
Procedural lapses in dealing with
disciplinary action against CISF staffer.
Inquiry officer or disciplinary authority did
not apply mind. Dismissal set aside,
reinstatement ordered (Onkar Singh Vs UOI,
Delhi HC, 17th
Mar 2011)
Deputy Commandant of BSF in Insurgency
affected area charged with accepting gifts
assessed at a higher side @ Rs 980.
Petitioner was expected to be friendly with
locals and to win their confidence. Charges
quashed. To be considered for promotion
consequentially even though he has retired
(HD Chakraborty Vs UOI, Delhi HC, 21st
Mar 2011)
Air Force officer held guilty of theft and
other related charges. Enough evidence
available, witnesses support the charges.
Court of Inquiry was not mandatory.
Petition dismissed (S Pandey, Principal
Bench AFT, 01st Apr 2011)
Displeasure expressed over callous manner
in filing submissions in the Court by CRPF.
DG CRPF directed to take steps to
strengthen the legal department of the force
(Kishor Kumar, Delhi High Court, 04th
April
2011)
Person serving in the BSF convicted by
Force Court for intoxication. Admitted being
intoxicated. Cannot be granted relief on
merits (Jandel Singh Vs UOI, Delhi HC, 08th
Apr 2011)
Role of appellant being overall controlling
officer was limited. Punishment of dismissal
was shockingly disproportionate for his
interpretation of a particular rule and for the
lapses of his junior officer and breach
committed by the contractor. Dismissal set-
aside and replaced by 8 years’ loss of
service for pension and severe reprimand
(Bodupalli Gopalaswami Vs UOI, Supreme
Court, 12th
Sep 2011)
Officer terminated from service and pension
forfeited. Court of Inquiry was carried out to
enquire into allegations of misappropriation
of canteen funds. Army Rule 180 not
invoked against the Petitioner but Show
Cause Notice issued for termination of
services after CoI. Held that it was admitted
that Army Rule 180 not complied with
despite observation to the effect by
convening authority, Petitioner punished
totally on the basis of the CoI. Judgements
quoted by the Respondents that
shortcomings in CoI will not vitiate trial as
long as the accused gets opportunity of
defence, distinguished. Held that in this case
the accused did not face a trial but faced
FLG Issue-1 12
administrative action based solely on CoI.
Termination and forfeiture of pension set
aside (BK Mall Vs UOI, Principal Bench
AFT, 22nd
Sep 2011)
Petitioner court martialled for charge under
Army Act Section 38(1) that he had failed to
rejoin on expiry of leave and voluntarily
surrendered thereafter. Held that if the
Petitioner had re-joined voluntarily then he
ought to have proceeded against under
Section 39 and not under Section 38(1) (S
Sakthivel Vs Commanding Officer, Chennai
AFT, 05th
Dec 2011)
Policy, Benefits and Others:
Totally irrational to grant preference to
wards over defence personnel themselves.
Ex-servicemen cannot be placed at a
disadvantageous position than wards.
Petition allowed (Harsh Vivek Singh Vs
State of Punjab, Punjab & Haryana HC, 23rd
Jul 2009)
Question examined whether defence Union
Territory pool quota can be pooled together
with All India quota ? Clubbing of quota
held to be entirely incorrect. Incongruous
parts of prospectus set aside and held
unconstitutional. Petition allowed (Avnit
Hira Vs UT Administration, Punjab &
Haryana HC, 07th
Aug 2009)
Service in UP Power Corporation to be
treated as Group A service for the purposes
of determining promotion etc in the BSF.
Reference to Group A, B etc only denotes
particular responsibility. Pay scale held
earlier was even higher than BSF. Petition
allowed (Lalit Kumar Jain Vs UOI, Delhi
HC, 19th
Jan 2010)
Superintending Engineers of General
Reserve Engineering Force (GREF) have not
been equated with Colonels of Army for
status but only for disciplinary powers. The
apprehension of the Petitioner, a Colonel of
the Army, are misplaced (Nagendra Singh
Vs UOI, Delhi HC, 22nd
Jan 2010)
Question before Tribunal whether retiral
benefits could be withheld from the
Petitioner on account of Discipline
Vigilance (DV) ban imposed on him? It was
found that DV ban against the Petitioner had
been lifted and therefore he was entitled to
all retiral benefits with 12% interest. While
Rule 3-B of the Pension Regulations for the
Army, 1961, Part-I empowers the
respondents to reserve their right to withhold
or reduce the pension of a personnel against
whom any departmental or judicial
proceedings are pending or instituted after
retirement in respect of an event which took
place not more than 4 years before such
institution, no action has been pursued
against the Petitioner (Narender Kumar
Yadav Vs COAS, Principal Bench AFT, 12th
Mar 2010)
Whether a non-commissioned officer
serving in the Assam Rifles, who was the
recipient of a Sena Medal, could be denied
the one time cash award to be awarded to all
‘defence personnel’ who were recipients of
such medals? Held, No. The Petitioner is
subject to the Army Act subject to
modifications, and serves in a para-military
force. The Respondents cannot be allowed to
prevaricate and quibble about the definition
of ‘defence personnel’ and make the
Petitioner, who is a gallant soldier, chase
after them for policy clarifications. Benefit
directed to be released within 4 weeks
(Jasbir Singh Vs UOI, Punjab & Haryana
HC, 19th
Mar 2010)
FLG Issue-1 13
Applicant got himself treated in a Private
Hospital being the member of ECHS -
Emergency and type of disease will not wait
for empanelled hospital and it is only the
treatment, which is to be given priority-
Applicant held entitled for reimbursement of
medical bills given at the time of his
treatment (Om Prakash Yadav Vs UOI,
Jaipur AFT, 18th
May 2010)
Petitioner a 100% disabled soldier suffered
injury in Kargil area during operational
movement in a jeep accident. Ex-gratia
payment (Haryana Govt) refused on the
ground that Petitioner had not suffered
injury in a heroic act but in a motor accident
in operational area. Held that heroism is a
wrongly exaggerated expression and there is
no requirement of a person actually placing
his finger on the trigger to be entitled to
payment. Policy covers battle casualties and
Army has declared the said casualty as
Battle Casualty. Petitioner held entitled to
the amount (Arvind Kumar Suhag Vs State
of Haryana, Punjab & Haryana HC, 24th
May 2010)
Commanding Officer not competent to
discharge. Discharge order passed in 1998
held to be illegal. Discharge order directed
to be modified to discharge in 2004 rather
than 1998 so as to enable Petitioner to earn
pension by completing pensionable service
(Badri Koteshwar Rao Vs UOI, Chennai
AFT, 23rd
Jun 2010)
Army units located in Jammu & Kashmir are
also amenable to the RTI Act passed by the
Central Govt though the Act does not apply
to J&K (UOI Vs Veena Kohli, Delhi HC,
28th
Jul 2010)
Non-Pensioner ex-servicemen refused
limited medical treatment in Military
Hospitals and Medical Entitlement Cards
issued to them not honoured. Held, not
proper. Rules and regulations cover
entitlement of non-pensioners in Military
Hospitals and there is a provision for re-
imbursement of medical expenses of non-
pensioners by Kendriya Sainik Board,
whereas pensioners are fully covered by Ex-
Servicemen Contributory Health Scheme
(ECHS). Difference of opinion between
administrative and medical authorities -
Medical facilities being an essential service
often critical in making difference between
life and death should not be allowed to
degenerate into whimsical personality-based
interpretation. Non-Pensioner ESM continue
to be entitled to medical facilities (AN
Chopra Vs UOI, Chandigarh AFT, 17th
Sep
2010)
Average entries were to be conveyed to the
JCO/NCO concerned even though the policy
laying down the same was promulgated
later, since the reasons behind the said
policy was pre-existing (Ghanshyam Jha Vs
UOI, Lucknow AFT, 28th
Sept 2010)
Petitioner discharged with only 5 years +
service in 1953. Petitioner discharged by
authority not competent to discharge and
without referring to invaliding Medical
Board as per rules. Discharge of the
Petitioner null and void. Petitioner
notionally to be discharged on completion of
15 years of service. Arrears restricted to 3
years prior to filing of Petition. Petition
allowed (N Subbaiah Vs UOI, Chennai
AFT, 08th
Oct 2010)
Petitioner due to retire on 30.6.2009, two
years prior to the date of superannuation, the
Government changed the policy for giving
extension of two years’ service. Words 'past
case' means that persons who had already
retired would not be entitled to seek re-
opening of their case. Respondents had
enough time to reconsider the case of the
petitioner and take a decision before his
retirement. Petitioners eligibility is to be
considered again within a period of one
month (BC Barua Vs UOI, Kochi AFT, 29th
Oct 2010)
FLG Issue-1 14
Forces cannot divorce themselves from
National AIDS Control Policy. Discharged
person to be re-examined in view of the
policy and re-instated if falling within
acceptable limits (Jagdish Singh Mahara Vs
UOI, Lucknow Bench AFT, 02nd
Nov 2010)
Units should have been more diligent in
publishing occurrence reports, even
cancellation of discharge on withdrawal of
request of discharge was illegally denied.
Applicant’s statement that he shall not
withdraw request of discharge is of no
consequence since there is no estoppel
against statutory provisions which permit
such withdrawal – delay of 6 years
immaterial since Applicant had been
regularly representing. Application disposed
with direction to take corrective measures of
granting relief to the Applicant (Lavhate
Sharad Baran Vs UOI and others, Kochi
AFT, 09th
Nov 2010)
Consider pre-mature retirement request of
IAF officer despite not being finally
superseded (Sharan Choudhri Vs UOI,
Principal Bench AFT, 07th
Jan 2011)
Petitioner entitled to, and to be paid foreign
allowance with interest at par with First
Secretary (KM Sreedharan, Chennai AFT,
13th
Jan 2011)
Can ECHS re-imbursement be denied in
case of a medical emergency happening
outside India ? Held No. In case of such an
emergency, the pensioner concerned would
have to be re-imbursed at Indian rates.
Medical reimbursement held akin to Right to
life (TS Sekhon Vs UOI, Chandigarh AFT,
28th
Feb 2011)
Bank could not insist on the same level of
qualifying marks as general quota for the
reservation quota for ex-servicemen
candidates. Petition allowed (Dayal Chand
Vs Oriental Bank of Commerce, Punjab &
Haryana HC, 03rd
March 2011)
Concealment of information regarding
minor criminal case in enrolment form for
Delhi Police. Candidature cancelled.
Selection restored by Supreme Court. Held
that lenient view should be taken since it
may not have been disclosed by the
candidate thinking that his candidature may
be cancelled. Youth often commit
indiscretions, should be condoned
(Commissioner of Police Vs Sandeep
Kumar, Supreme Court, 17th
March 2011)
Discharge of Petitioners, staffers of various
para-military forces, on account of colour
blindness set aside. Cut-off date in policy
also set aside. Historical evidence of colour
blind soldiers being used to the benefit of
the army in special ways discussed. Relief
granted. (Sudesh Kumar Vs UOI, Delhi HC,
22nd
March 2011)
Officer denied pay and allowances of Lt Col
for about 7 years and decision on
administrative action also delayed
inordinately. Repeated queries did not elicit
any response. DV ban allowed to remain in
force for an unduly long period. Held that
gross injustice had been done and Petitioner
allowed costs of Rs 50,000 and 10% on
interest of pay and allowances. Army HQ
directed to investigate matter and initiate
action against officers responsible for the
lapses (GS Josan Vs UOI, Chandigarh AFT,
30th
Mar 2011)
Removal of naval officer from Aviation
cadre held not proper. Petitioner directed to
be reinstated to a non-flying post in the
aviation cadre and also to restore the
Observer’s Badge (Anup Kumar Vs UOI,
Kochi AFT, 31st Mar 2011)
Regimental Commissioned Officers not
allowed change in retirement age or terms of
FLG Issue-1 15
engagement in line with the promotion
policy applicable to rest of the Army.
Authorities had shown laxity and did not
take proposal to logical conclusion.
Petitioners entitled to notional benefits of
promotion to the rank of Lt Col (Rabindra
Singh Vs UOI, Kolkata AFT, 04th
Apr 2011)
Can Counter Insurgency allowance as
admissible to Regular Army personnel be
denied or recovered from those Regular
Army personnel who are posted to Border
Roads Organisation (BRO) units?. Held that
the military pay and allowances of Army
personnel are protected under Regulation 18
when they are posted to BRO. Moreover,
bullets of militants do not discriminate
between Army personnel posted in BRO in
counter-insurgency areas vis-à-vis those
posted to other army establishments (AK
Bhutani Vs UOI, Chandigarh AFT, 04th
Apr
2011)
Held that cadre of administrative officers of
Border Roads Organisation should be
granted formal encadrement. Special Pay /
HQ Allowance also to be released to
Petitioners (KL Noatay Vs UOI, Delhi HC,
26th
Apr 2011)
Decisions rendered by AFT would be
amenable to writ jurisdiction of the High
Court. Case law discussed. Other examples
discussed. AFT not truly a judicial body
(AD Nargolkar Vs UOI, Delhi HC, 26th
Apr
2011)
Notification by Delhi Govt allowing Army
College of Medical Sciences the benefit of
100% admission for wards of Army
personnel held to be ultra vires of the
Constitution of India. (Indian Medical
Association Vs Army College of Medical
Sciences, Supreme Court, 12th
May 2011)
Ministry of Defence has not implemented
Dynamic Assured Career Progression
(DACP) Scheme for Army doctors despite
the fact that govt order was issued 3 years
back. This is clearly detrimental to the
interests of AMC officers. Respondents
directed to implement scheme (Sanjeev
Sehgal Vs UOI, Chandigarh AFT, 18th
Jul
2011)
IPS officer challenging cadre allotment to
candidate lower in merit in 2001 while the
allotment was made a few years back. High
Court correct in holding that such review of
cadre allotment at a belated stage may not be
conducive to public interest (G Srinivas Rao
Vs UOI, Supreme Court, 19th
Jul 2011)
Bank is amenable to the jurisdiction of AFT.
Bank is the agent of the Army and hence the
Army is vicariously liable. Despatching the
Pension Payment Order to the Bank but not
ensuring payment would not be a discharge
of duty by the employer. AFT decision
holding Bank not liable, quashed.
Application allowed, Petitioner to be paid
12% interest (IS Roperia Vs UOI, Delhi HC,
09th
Aug 2011)
Delhi High Court had ordered reinstatement
of Women officers who were released on
completion of short service commission
terms. UOI challenged the judgement before
the Supreme Court which issued notice in
the matter and stayed the contempt
proceedings. Officers however not re-
instated. Application filed by officers before
Supreme Court – Held that only contempt
proceedings before High Court were stayed
and not the judgement and the officers were
entitled to reinstatement in terms of the High
Court order and hence directed to be
reinstated (Secretary Ministry of Defence Vs
Babita Puniya & others, Supreme Court,
02nd
Sep 2011)
There was evidence that a person declared a
deserter intended to join back but was not
allowed. Desertion and dismissal set aside.
Petitioner directed to be taken back by
treating him notionally in service (Anup
FLG Issue-1 16
Kumar Pradhan Vs UOI, Principal Bench
AFT, 06th
Sep 2011)
Husband of Petitioner, a mentally ill soldier,
wandered out of unit and held safely by
Govt Railway Police. Military authorities
kept writing to each another but did not
collect him from GRP authorities. Shown on
leave from a back date. Found dead in a
Well. Court of Inquiry held after 11 years.
Held that authorities acted callously and
negligently. In view of SC decision in
Charanjit Kaur’s case, widow held entitled
to Special Family Pension and exemplary
costs. Special Family Pension ordered with
interest and Rs 10,00,000 compensation
(Navindra Devi Vs UOI, Chandigarh AFT,
08th
Dec 2011)
DEVELOPMENTS AND
MISCELLANEOUS :
New pension scales issued for personnel
from the rank of Sepoy to Subedar Major
(MoD, 08th
Mar 2010)
New Rules issued for ex-servicemen re-
employed in civil capacity with regard to
fixation of pay (DoPT, 05th
Apr 2010)
Policy issued for revision of rules regarding
stay in Hotel by govt employees (MoF, 11th
Jun 2010)
Orders issued for regulating the pension of
govt employees on extraordinary leave,
suspension and unauthorised absence as on
01 Jan 2006 and who retired or died
thereafter without joining duty (DoPPW,
15th
Jun 2010)
Clarification of inclusion of NPA for
pension purposes issued (MoD, 16th
Mar
2010)
More categories added for the purposes of
ex-gratia payment @ Rs 15 lacs (MoD, 04th
Jun 2010)
Clarifications issued with regard to Child
Care Leave (DoPT, 30th
Dec 2010)
Revised pensionary orders issued for TA
and EC/SSC officers who retired between 01
Jan 1996 and 31 Dec 2005 (18 Jan 2011)
Revised letter issued for grant of casualty
awards such as Disability / Special Family
and Liberalised Family Pension etc for pre-
2006 retirees based on 6th
CPC post-2006
scales (15th
Feb 2011)
Monetary allowance attached to gallantry
awards enhanced (MoD, 04th
Mar 2011)
Rule 11(a) of the Leave Rules for the Army
amended (Apr 2011)
Gratuity recovered on account of abrogation
of weightage system in respect of officer
who retired after 01 Jan 2006 to be paid
back to affected personnel (MoD, 27th
Jun
2011)
Orders issued regarding encashment of
accumulated leave (MoD, 12th
Apr 2010 and
18th
Jul 2011)
Orders issued that family pension being
released to a person would not be included
as income to calculated dependency criterion
for grant of family pension (DoPPW, 30th
Nov 2011)
FLG Issue-1 17
CONTRIBUTIONS AND ARTICLES :
To Prove Consent or Not - Is that an Element?
The United States Military’s New Sexual Assault Statute Problems
Michelle Lindo McCluer
On October 1, 2007, the sexual offenses previously scattered throughout the Uniform
Code of Military Justice (UCMJ), the basis for United States military jurisdiction over service
members, were consolidated into fourteen offenses under a new Article 120. This new approach
to sexual offenses in the military was the result of Congress’ mandate that the Department of
Defense (DoD) submit ideas for modernizing its sexual assault code. DoD’s response to
Congress can be summarized as “Thanks for asking, but our system is doing just fine without
any changes.” Given the lack of input from those who would prosecute and defend the new
statute, Congress drafted its own convoluted sex crimes code to replace the old one,
incorporating offenses that had not previously been enumerated and changing the elements
needed for convictions of others.
Perhaps most notably, the new Article 120 deleted “consent” from the list of elements the
United States must prove for most sexual offenses. In doing so, Congress followed a broader,
civilian trend of shifting the focus of sexual assault cases from the complainant’s behavior to that
of the accused.
One of the new offenses has caused quite a bit of litigation since its implementation.
Before 2007, the offense of aggravated sexual assault, per se, didn’t exist in the Uniform Code of
Military Justice, although the underlying behavior could have been punished anyway. Article
120(c)(2), UCMJ, now defines aggravated sexual assault as follows:
Any person who engages in a sexual act with another person of any age if that
other person is substantially incapacitated or substantially incapable of—
(A) appraising the nature of the sexual act;
(B) declining participation in the sexual act; or
(C) communicating unwillingness to engage in the sexual act; is guilty of
aggravated sexual assault and shall be punished as a court-martial may direct.
Article 120(r), UCMJ, lists aggravated sexual assault as an offense for which consent can
be an affirmative defense. Subsection (t) of Article 120 lists the definitions for “consent” and
“affirmative defense.” Notably, Article 120(t)(14)(B)(ii)(I) states “A person cannot consent to
sexual activity if substantially incapable of appraising the nature of the sexual conduct at issue
due to mental impairment or unconsciousness resulting from consumption of alcohol...” A
physical inability to decline to participate in the sexual activity or a physical inability to
communicate such unwillingness to engage in the sexual activity also precludes consent. Article
120(t)(14)(B)(ii) and (iii).
FLG Issue-1 18
In American criminal trials, including courts-martial, the government has the burden
under the Due Process Clause of the Fifth Amendment to the Constitution of proving beyond a
reasonable doubt every element of a crime. However, the law may require an accused to
shoulder the burden of persuasion on affirmative defenses. Even so, defense counsel, trial
counsel, and military judges at the trial level have all struggled with the double-burden shift that
accompanies the new Article 120 provisions.
The definition of “affirmative defense” in Article 120(t)(16) assigns the burden of
proving the defense on the accused. The accused must prove consent by a preponderance of the
evidence, and then the prosecution must disprove the affirmative defense beyond a reasonable
doubt. As the current statute reads, under Article 120(t)(16), the government would still have the
opportunity to prove an accused’s guilt after the defense proved the affirmative defense by a
preponderance of the evidence. However, this requires the impossible. How can the finder of
fact find the accused guilty of taking sexual advantage of an incapacitated individual after
determining that the defense proved consent (which requires the capacity to do so)? Cases
raising these issues are now making their way through the military appellate courts, where the
highest United States military court, the Court of Appeals for the Armed Forces (CAAF),
recently noted the impossibility described above with regard to the double burden shift.
Defense counsel have also argued that placing on the accused the burden of proving
consent unconstitutionally shifted the burden of proving the element of force to the defense
because “consent” is the other side of the “force” coin. That is because, while “consent” is no
longer an element of most sexual assault offenses under the revised Article 120, it is undeniable
that “consent” is related to the element of “force,” which is still part of the statutory framework
of sexual offenses. This is particularly true when “constructive force” comes into play, as it does
in cases such as those arising under Article 120(c)(2). In those aggravated sexual assault fact
patterns, the “force” element necessary to convict is supplied by the sexual act itself.
The language of the “incapacity” section of the revised Article 120 emphasizes the
integral nature of “consent” to proving the elements of the crime by including the requirement
that the complainant be unable to communicate “unwillingness to engage in” or be incapable of
“physically declining participation in” the charged sexual activity. That consent is completely
incompatible with proving the “substantially incapable” element of the offense is made clear
through the use of the phrase “A person cannot consent to sexual activity if substantially
incapable...” By putting the burden of proving such consent on the accused, he must, of
necessity, prove that the complainant was substantially capable of verbally, physically, or
otherwise manifesting her unwillingness to engage in the sexual activity. Recognizing the
problems, some military judges have chosen to instruct court members using instructions from
the previous version of the statute as an attempt to save the statute from its self.
That is the second constitutional deficiency inherent in Article 120(c)(2). There is simply
no way to read Article 120(c)(2) in conjunction with the applicable portions of Article 120(t) as
valid allocations of the burden of proving the elements of the offense of aggravated sexual
assault. Because Article 120(c)(2), read in conjunction with the applicable defenses and
definitions, shifts the burden of proof of an element of the offense of aggravated sexual assault to
the accused, this portion of the new Article 120 is facially unconstitutional. While the plain
language of the same recent CAAF case that struck down the double burden shift did not find a
facially deficient Article 120, it came close in declaring that the interwoven provisions of it
FLG Issue-1 19
unconstitutionally shift the burden of proving an element to the accused in an aggravated sexual
assault case in which capacity to consent was an issue.
Even before CAAF’s most recent decision, the last session of Congress saw an attempt to
remedy some of the defects of the new Article 120. Unfortunately, the legislature chose not to
implement new provisions. For now, we are stuck with the deficient language; however, another
attempt to cure the defects is in the works in the current Congress.
Michelle Lindo McCluer is on the board of Advisors of the National Institute of Military Justice
(NIMJ) and is also its former Executive Director
- - - - - - - - - -
AFSPA : Its removal is currently unthinkable
Thoughtful reflection needed instead
Maj Gen Raj Mehta (Retd)
The ongoing “remove Armed Forces Special Powers Act (AFSPA) from Kashmir Valley
selectively” campaign is, in reality, a no-holds-barred “war on the minds” of the Kashmiri
awaam, politicians, media experts, academics and human rights activists which has driven
India’s governance in Kashmir and Delhi to virtual paralysis. The methodology used reeks of
skilled extrapolation of the age old techniques of deception and propaganda. Deliberately left
untended, unexplained and unimproved is the real issue of indifferent governance; gross
Institutional neglect to take a call on development and growth; and a genetic reneging (since
1953) on Government promises made but never or notionally kept.
In all fairness, two left handed compliments need to be paid with reference to the AFSPA
conundrum: Firstly, to the astonishing success of the separatist agenda of driving India to the
point of marginalizing its last bastion of sovereignty and nationhood – the Armed Forces – by
seriously contemplating withdrawal of the protective shield of AFSPA in part or in full from
them. Over three brief months of stone throwing, the separatists succeeded in making it the sole
state agenda and made Delhi grimly reflect on its options in this regard. Emotions ran high to the
extent that people forgot that the Army, which is the key beneficiary of AFSPA protection was
nowhere near the confrontation which the intezamia had with the stone pelters and did not
therefore fire on any stone thrower simply because town management (except partly in Sopore)
is not its charter, nor did the State Government indent for its employment.
Secondly, by failing to create the right political environment that would, itself, have
ensured automatic removal of the “disturbed area” tag from Kashmir, successive governments at
centre and state levels have unwittingly provided the enabling circumstances for the separatist
agenda to succeed. To add fuel to the separatist engineered fire, it is, ironically the state
government itself that has pressed the self-destruct button by demanding the selective removal of
AFSPA and/or watering down of its “draconian” provisions.
FLG Issue-1 20
There is no coherent effort to explain to the Army and the country at large as to whose
responsibility it will be if Army convoys passing through districts where AFSPA has been lifted
(such as Srinagar) get targeted while carrying warlike materials such as ammunition. The
responsibility for the carnage and destruction that would follow from such an attack has not been
thought through. Two issues are relevant here. Srinagar and Budgam; the two districts that are
sought to be cleared of the Army, also house bases and communication hubs of strategic
importance. These include the Air Bases, International Airport, the Corps Headquarters, and the
Logistics Depots that sustain the military. If the State police Chief says (on 12 December 2011)
that he will need additional training and an increment of force of 20,000 more police personnel,
whose case is it to hand over these districts to a force that has honestly stated it isn’t prepared,
trained or equipped just yet to take over? The recent attack in Srinagar on a senior ranking
Cabinet Minister in which one of his entourage died due to terrorist attack clearly indicates that
“all is not well” as has been surmised. Blaming such an attack on the military as has been
suggested by a senior ruling party functionary is a puerile lie that has no takers even in the
Valley, leave along elsewhere in the country.
This article has spoken of deception and propaganda. Deception is the art of propagating
beliefs that are either not true, or are not the whole truth. Its connected sub set; Crowd
Manipulation, is the skilled use of propaganda principles such as addressing appeals to the
masses, not intelligentsia; targeting emotions; keeping the message simple; preparing audiences
for worst-case scenarios; and, finally, repeating the message constantly. Crowd manipulation
thus creates a rhetorical “battle space” in which activists employ words, images, and sounds—
rather than physical force—to promote their agenda, as well as instigating the use of force both
by crowds as well as by those in authority. Even a casual Kashmir watcher would agree that the
separatists have skillfully employed both deception and crowd manipulation while governance
has watched helplessly or reacted with excessive force, leaving the instigators rubbing their
hands with glee.
What does AFSPA actually do? Once the Government publishes a gazette declaring an
area to be “disturbed”, the act allows Army officers to take punitive action under Sections 4 and
5 of the Act. This includes the right to open fire, arrest suspected criminals and enter and search
without warrant. Section 6 states that legal proceedings against such officers can only be
instituted after previous sanction of the Central Government. By implication, therefore, a soldier
who has acted in the national interest is protected by law from the consequences of his actions.
The separatists, however, see these powers as strong enough to cripple their malevolent designs.
They therefore, desperately want its revocation/dilution/selective lifting at all costs.
The oft repeated issue of AFSPA misuse by the Army arises and begs honest answers.
Yes, there have been times when the Army has been at fault. These instances are well
documented and severely punished. For instance, in the Major Rehman Hussain case, in 2005,
the officer was promptly tried by a military court and cashiered for proven misdemeanours. That
notwithstanding, pending cases of misuse of the Act must be fast tracked and dealt with as per
the law of the land.
The need for improving the pre-induction, on induction as well as on-the-job training and
education of all ranks and its correct ground implementation is something the Army is working
on. However, what remains off the radar is that the same soldiers, who sometimes have to fire,
FLG Issue-1 21
also spend quality time in doing Sadbhavna or development activities which have added quality
to the lives of villagers in remote areas where the civil administration rarely visits due to risk to
life and poor access. Such activities bring in an element of humanity in the soldier that has to be
seen to be believed.
In conclusion, the writer feels that, in order to unravel the extremely complex Kashmiri
Gordian knot, you actually need the AFSPA, not surrender it because some elements legislate
that you should. Ayn Rand’s take: You can avoid reality, but you cannot avoid the consequences
of avoiding reality is apt. Instead of disturbing the AFSPA, the focus should shift instead, to the
main issue; uplifting the Kashmiri masses and keeping promises made earlier, by dint of better,
hands-on governance.
That Omar Abdullah has, as of 14 December 2011, accepted that the lifting of AFSPA
cannot any longer be placed on a timeline is a positive development which indicates that the
reality of lifting it prematurely and the consequences thereof have come home to roost and have
registered fully in the psyche of Governance at the State and Centre both. This should allow the
Army the much needed respite and Institutional support it needs to consolidate its gains from
what has been a very successful year in controlling terrorism in the valley and replacing it with
continuing to work in concert with other Government agencies for State and national good; in
line with the expectations of the awaam that is praying for peace, prosperity and a return to the
Golden Age of Budshah Zain Ul Abidin, when Kashmir was a truly role model state in India.
Maj Gen Raj Mehta (Retd) is a former Armoured Corps officer who has commanded a Division
and a Rashtriya Rifles Sector in the State of Jammu & Kashmir
- - - - - - - - -
Abbreviations used in the Gazette : AFT – Armed Forces Tribunal, CAAF - Court of Appeals for
the Armed Forces, CoI – Court of Inquiry, DCM – District Court Martial, DoPPW – Department
of Pension and Pensioners’ Welfare, DoPT – Department of Personnel & Training, GCM –
General Court Martial, HC – High Court, MoD – Ministry of Defence, SC – Supreme Court,
SCM – Summary Court Martial, SGCM – Summary General Court Martial, , UOI – Union of
India, US – United States
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judgments or policies mentioned in the Gazette, or those related to legal work linked with information published in the
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www . indianmilitary . info for updates. Thank You – The Editorial Team.
FLG Issue-1 22
NOTES
