ADJUDICATION OF SERVICE DISPUTES RELATING TO

DEFENCE IN INDIA

Presentation by

Maj. Gen. Nilendra KumarDirector

Amity Law School, Noidaat

IIPA, New Delhi

on 6 September 2012

SERVICE DISPUTE

The term ‘service dispute’ has no

statutory definition.

However, this has been taken for the purpose

of this presentation, to refer to all disputes,

whether related individually, jointly or by the

Service itself against a service or the Union

Government.

In a democratic republic, disputes are meant

to be settled by a dialogue; and failing which,

in accordance with following rule of law

concept in a legal manner.

CONTOURS

1. Nature of disputes

2. Causes of disputes

3. Number of disputes and size of problem

4. Framework and resources for settlement

5. Appraisal of the system

6. Recommendations

CATEGORY OF DISPUTES

1. Individual or personal

2. Non military individuals V the State

3. Group (e.g. Major Dhanapalan’s case or Maj. Gen. pension matter) V the State

4. Corporate

5. State V Union of India e.g. AFSPA

6. PIL

7. Foreign Corporates

The Union of India could be the target of

the dispute i.e. as a respondent; or in

some cases could be the initiator of the

legal dispute.

NATURE OF DISPUTES COULD RELATE TO

1. Service conditions

2. Disciplinary awards

3. Procurement processes

4. Land matters

5. Human Rights violations

SERVICE CONDITIONS MAINLY RELATE TO

Promotion ACR Seniority Adverse Remarks Posting or tenures Change of Arms/Service Courses Retirement/resignation/release Accommodation Pay and allowances Leave

CAUSES

1. Old and antiquated laws

2. Nature of service where decisions often do not exhibit application of mind

3. Lack of flexibility amongst the decision matters

4. Frequent and arbitrary changes in policy

5. Lack of awareness of military ethos on the part of judges & lawyers

6. Corruption

NATURE OF SERVICE

1. Demand for implicit obedience

2. Liability to serve anywhere on land, sea and air

3. Pyramidical structure showing limited scope for career progression

4. Primacy to arms & fliers

5. Early separation by way of retirement

CPCSECTION 80

Notice

No suit shall be instituted against the

Government or against a public officer in

respect of any act purporting to be done by

such public officer in his official capacity until

the expiration of two months next after

notice in writing has been delivered to or left

at the office of a Secretary to that Government

EXAMPLE OF OLD AND ANTIQUATED LAWS

1. Explosives Act, 1884

2. Indian Tolls (Army and Air Force) Act, 1901

3. Works of Defence Act, 1903

4. Explosive Substances Act, 1908

5. Official Secrets Act, 1923

6. Manoeuvres, Field Firing and Artillery Practice Act, 1938

These laws have not changed over the decades

Army Act, 1950, Army Rules, 1952

and DSR (RA), 1987 have also remained

unchanged over the decades

Despite five years having elapsed after

enactment of the Armed Forces Tribunal

Act, 2007, it finds no mention in the Army

Act and Army Rules.

REGULATIONS FOR THE ARMY (DSR), 1987

Silent on

1. Right to Information

2. Induction of Women Officers

3. Information Technology

4. Human Rights

5. War against terror or AFSPA

6. Tri Service Commands

7. Environmental Protection

Thus the laws are not in tune with times,

and may be said to be outdated

Further, last two decade has seen involvement of senior officers, incidents of moral turpitude and sharp erosion in ethical standards.

There have been prosecutions for staging

fake encounters and attempts to procure

gallantry awards undeservedly.

Allegations about misuse of secret

funds of military intelligence.

ERA OF SCAMS IN LAST TWO DECADES

1. Adarsh

2. Sukna land

3. Pune land matter involving the then Army Commander

4. Bungalow grab in Lucknow cantonment by an Army Commander

5. Tehelka

6. Procurement of rations (meat, dals & eggs etc.) leading to conviction of a Lt. General

The list appears to be endless

SCAMS GALORE

1. Divisional Commander in sexual harassment case

2. Procurement for peace keepers

3. Tent scam

4. Booz Brigadier

5. Ketchup Colonel

6. Sale of non service pattern of weapons

7. Sex for food

8. NDA job scam

Yet another matter that had continued to

occupy centre space for months

CHANGE IN DATE OF BIRTH CONTROVERSY

1. Politicisation, MPs met the PM

2. Repeated representations

3. Keeping the decision to move Court secret

4. Abortive attempt to progress a PIL

5. AFT and High Court by passed

6. Supreme Court moved straightaway

7. Decision to withdraw and yet expression of dissatisfaction at Court decision

A clear example of unresolved dispute

between MS Branch and AG’s Branch on

one hand; and between Army HQ and MoD

on the other.

Further, rank and file appear to have

been left confused (and amazed)!

ORGANISATIONAL BIAS OR CLASS ACTION

1. Technical officers of Air Force

2. Grievances of Military Nursing

Service Officers

3. Non grant of permanent

Commission to women officers

4. Agitation against officers by

other ranks in Northern

Command & Samba

5. Class action litigation against

continuation of AFSPA in J&K

and North East

ADR MODES

1. Arbitration

2. Mediation

3. Reconciliation

Alternative Dispute Resolution (ADR)

process ignored.

Government is the largest litigator

Thus every dispute finally ends into a

litigation

Agreements and contracts are invariably

one sided

Reflective of rigidity and arbitrariness

attitude of decision makers

WEAKNESS IN STATE CASE

1. Contracts are not drafted with care

2. Abnormal delays in formulating and filing of responses

3. Change of officials and at times of arbitrators

4. Careless and indifferent defence of cases when matters reach courts of law

EXISTING PRACTICE

Responsibility

1. Legal Cells - Set up at the seat of

major High Courts or at the location of AFT

benches

2. Station HQ

3. NCC Unit

RESOURCES

IX Officer

IX Clerk

REMARKS1. Legal Cell function mostly under the

Static HQ

2. Where higher field formations co-exist Legal Cells operate under static HQ e.g. at Allahabad or Secunderabad.

3. Very often MS (Legal) or DV representatives approach Legal Cells directly and JAG Department is not in picture

There is no authentic data about total

number of pending cases relating to

MOD

DIFFERENT RESPONSIBILITIES OF BRANCHES

GS - Training, Courses, AFSPA AG - Disciplinary cases, pay &

allowances MS - Officer cadre QMG’s - Accommodation, ration, travel

and canteens E in C - Rent & allied charges Medical - Disability, medical boards ST - Supply contracts

FORUMS WHERE LITIGATION TAKES PLACE

1. Courts Martial

2. Judiciary

3. Tribunals (AFT and CAT)

4. RTI

5. NHRC

6. Arbitrations

Consequently no data or study available

about :

Trend of increase or decrease Trend about outcome of cases What type of cases are increasing Which Government counsel wins/loses Reasons leading to adverse decisions

No branch would have the data about

total pendency of court cases

Applicable Constitutional and legal regime

are designed to best protect military

disputes settlement mechanism.

CONSTITUTION OF INDIA

Article 33

Power of Parliament to modify the

rights conferred by this Part in their

application etc.

Parliament may, by law, determine to

what extent any of the rights conferred

by this Part shall, in their application to:-

(a)the members of the Armed Forces; or

(b) xxxx

(c) xxxx

(d) xxxx

be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Thus restrictions on fundamental rights

constitutionally are permissible.

RESTRICTIONS IN THE ROLE OF HIGHER JUDICIARY

Article 136

Special leave to appeal by the Supreme Court

1. Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

2. Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

POWERS OF HIGH COURTS

Article 227 (4)

Power of Superintendence over all courts by

the High Court

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) xx

(3) xx

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.

PROVISIONS ON

SECURITY OF TENURE

OF

MILITARY PERSONNEL

Article 311

Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State

(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed

A step to cut down Military cases being

taken to High Courts

Setting up of Armed Forces Tribunal

The Armed Forces Tribunal Act, 2007

However, the move itself had certain deficiencies right at the stage of inception.

RESTRICTED JURISDICTION OF AFT

1. Transfer postings

2. Leave

3. Summary Courts Martial and Summary Trial

The appraisal so far is suggestive of

negligible gains

WHY AFT IS NOT ABLE TO FULLY MEET MILITARY ASPIRATIONS

1. Lack of infrastructure

2. Shortages in members and staff

3. Want of authority to enforce (contempt powers)

4. Poor quality of judgments

Another major development

DELHI HIGH COURT

Justice Pradeep Nandrajog’s decision

dated 26 April 2011

in

Colonel A.D. Nargolkar’s case

Writ Petition No. 13367/2009

GIST OF ORDER

1. AFT cannot be said to be truly a judicial review forum

as a substitute to High Courts.

2. The power of judicial review under Articles 226 and

227 is unaffected by the constitution of AFT.

3. Article 227 (4) takes away only the administrative

supervisory jurisdiction of High Court over judicial

supervisory jurisdiction over AFT.

4. Decisions by the AFT would be amenable

to judicial review by High Court under Articles 226 as also under 227 of the Constitution.

MEDIA PERCEPTION

Poor media image about credibility and

effectiveness of in-house tribunals and forums

of the military

Absence of a single agency with requisite

reference resources, library, seniority and

Accountability is a critical deficiency.

COMPARTMENTALISATION OF JAG RESOURCES BY HAVING SEPARATE

OFFICES

1. Judge Advocate General’s Department

2. Military Secretary Legal

3. Disciplinary and Vigilance

DEFENCE OF COURT CASES

APPLICABLE POLICY

SPECIAL ARMY ORDER

5/S/2003/JAG

No rules, regulations or instructions

formulated so far to introduce a system to

deal with cases filed in Armed Forces

Tribunal or with RTI or other tribunals.

No efforts made to re-visit the applicable

policy after 2003.

Lack of familiarity of Legal Advisor (Defence)

about military matters

RECOMMENDATIONS

1. Defence of court cases should be a command function rather than a duty for the staff

2. Thorough overhaul of laws

3. Framing of a Uniform Code of Military Justice to achieve uniformity of Rules

4. Integration of JAG Resources of three services for better management of litigation

5. Augmentation of JAG Department to create better manpower to deal with court cases

6. Creation of a separate pool of lawyers for military

As a matter of policy all laws, Acts, rules,

regulations, instructions and orders

should be brought for review at regular

Intervals.

CONCLUSION

An inadequate and ineffective

machinery for settlement of service

disputes would shake and erode

confidence in military leadership. It

would also be wasteful in time and

resources.

Any Questions