Monthly Archives: September 2016

NON AVAILBLITY OF JUICIAL MEMBERS IN ARMED FORCES TRIBUNALS SERIOUSLY IMPACTING ADMINSTRATION OF JUSTICE AND HITHERTO DISCRIMINATORY PROVISIONS OF THE ARMED FORCES TRIBUNAL ACT 2007

IESL/509/2016 dt 22 Sep 2016

Shri Ravi Shankar Prasad

Hon’ble Cabinet Minister

Ministry of Law & Justice

4th Floor, ‘A’ Wing, Shastri Bhawan

Rajendra Prasad Road, New Delhi- 110001

 

NON AVAILBLITY OF JUICIAL MEMBERS IN ARMED FORCES TRIBUNALS SERIOUSLY IMPACTING ADMINSTRATION OF JUSTICE AND HITHERTO DISCRIMINATORY PROVISIONS OF THE ARMED FORCES TRIBUNAL ACT 2007

 I have the honour to state the following to seek your kind attention and domain indulgence in resolving the impasse which is seriously affecting the administration of justice to the Military personnel and their dependents through Armed Forces Tribunals. The same has presently arisen due to non-availability of Judicial Members in the said Tribunals.

  1. It is submitted that out of the 17 Benches in the country only five (5) are at present functional. The Armed Forces Tribunal (Principal Bench) at R K Puram New Delhi with its Chairperson is authorised three Benches. Presently the organisation is headless as ideally much desired Chairperson with two other Judicial Members are not posted. Make shift arrangements of calling judicial members from distant benches of the said Tribunals to hold court at the Principal bench at Delhi has not been able to cope up the piling up of cases satisfactorily.
  1. A large number of cases relating to service matters of the members of the Armed Forces of the Union of India are pending for a long time. A matter filed on 23 Aug 2016 with prayer for interim relief by an aggrieved member of the Armed forces and listed thrice since then could not be heard as the concerned Bench has been non-functional due to non-availability of the Judicial member on the last three dates of hearing when the said matter was listed. Imagine the frustration of an aggrieved petitioner whose prayer for interim relief since 23 Aug 2016 has been in vain due to no fault on his part. The very object of constituting these independent adjudicatory forums for the defence personnel to ensure speedy deliverance of justice has thus come to a naught. The aforesaid situation has resulted in denial of timely justice to serving service personnel, ex-servicemen, disabled soldiers and war widows. The existing system of administration of justice in the Armed Forces provides for submission of statutory complaints against grievance relating to service matters and pre and post confirmation petitions to the prescribed competent authorities against the findings and sentences of court martial. The nature of grievances is such that unless resolved in a time bound manner their essence and consequent relief is rendered ineffective. Timely relief therefore is of paramount importance.
  1. I, being a responsible member of the Supreme court and High court bars also take this opportunity to bring to your kind notice another very serious anomaly which has crept in the form of lack of an effective remedy of judicial review over the orders passed by the Armed Forces Tribunals thereby making it the first and the last court of appeal for litigants. Though an appeal on “points of law” or “of general public importance” or on matters which the Supreme Court considers so exceptional that the Apex court of the land ought to hear them, has been provided in the form of Section 31 of the AFT Act, 2007. It was reasonably expected that all other issues could be challenged before the High court in view of the facts that the powers of the High Court under Article 226 and 227 were preserved by Section 14 of the AFT Act, 2007. The Parliamentary Committee which has examined Section 31 of the AFT Act, 2007 has itself recommended Judicial Review by high Courts (Para 90 of Parliamentary standing committee on defence, 18 report, Lok Sabha, 2012-2013 refers). The same was also in line with the law laid down by the constitutional bench of the Supreme court in L Chander Kumar versus U.O.I. and Ors, (1997) 3 SCC 261 and the three Judge Bench in Colombia Sportswear Company versus DIT, (2012) 1 SCC 224. In any case 99.9% of the cases before AFT are matter personal to the litigants and seldom of general public importance. Whereas the High Court’s continued to entertain the writs against the AFT order, the situation changed after a plea to the effect filed by the Ministry of Defence which was later allowed. The same has potentially left litigants without cost effective remedy. On one hand there is minimal scope of appeal in Supreme court on the other Hand it is well known that defence personal, Ex-Servicemen, disabled soldiers and their families can hardly afford to approach the Supreme court from remote places thereby not only making justice inaccessible and unaffordable, but also reducing the Supreme court into the first appellate court for such routine and mundane service matters as specifically deprecated in L Chander Shekar’s case. The central government has thus completely ignored the recommendations of the Parliamentary Standing Committee on Defence, 18 report, Lok Sabha, 2012-2013 made in Para 90 which itself had approved Section 31 with a Caveat that challenges would still lie before the High Court as per L Chander Shaker’s case and also has not yet acted upon a similar recommendation contained in Para 7.14 of the report of the high level committee of experts on litigation constituted by Ministry of Defence (2015) which has also favoured jurisdiction with the High Court. It may also be recalled that while for the defence community, the AFT is the first and the last court, their exactly similarly placed counterparts can conveniently challenge the orders of the Central Administrative Tribunal before the High Court’s within their own states and then also approach the Supreme court in case they are dissatisfied. It is ironical to expact a disabled soldier or a widow in Kerala or Manipur to approach the Supreme court concerning his or her case involving meagre sums and then try to prove that the case involves a point of law of general public importance. It may therefore be seen that whereas the civilians get a three tier system of justice and judicial review, the Military counterparts are encumbered with only the AFT which is practically the court of first as also the last resort.
  1. Finally, I would like to bring to your notice that in the month of Sep 2016 no court in AFT (PB) 1, 2 and 3 is fully functional. Cause list of Court No. 1, 2 and 3 for the whole month says in the beginning “This Bench will not Assemble Today”, the pending cases as well as cases for admissions are adjourned indefinitely. As a responsible member of the bar as well as holding an office of trust in the service of ex-servicemen, it is my solemn duty to bring this to your kind notice that if the appointment of the Judicial Members is kept pending for long, it will perpetuate injustice. The Petitioners will continue to suffer with no hope of redressal of their grievance. I, therefore respectfully appeal to you to safeguard the Soldier’s interest by providing timely remedy. This would be possible if your august office takes stock of the situation and steps in immediately to resuscitate the comatose AFT by appointing Judicial Members without any further delay. In the facts and circumstances submitted herein above a rethink and reconsideration of Section 31 of the AFT Act is also strongly recommended to provide equal opportunity of judicial review to the members of the Armed Forces.

Yours sincerely,

Lt Gen (Dr) Balbir Singh, PVSM, VSM** (Retd)

NON AVAILBLITY OF JUICIAL MEMBERS IN ARMED FORCES TRIBUNALS SERIOUSLY IMPACTING ADMINSTRATION OF JUSTICE AND HITHERTO DISCRIMINATORY PROVISIONS OF THE ARMED FORCES TRIBUNAL ACT 2007

 

IESL/509/2016                                                          22        Sep 2016

Hon’ble Justice Mr. T S Thakur

Chief Justice of India

Supreme Court of India

New Delhi

NON AVAILBLITY OF JUICIAL MEMBERS IN ARMED FORCES TRIBUNALS SERIOUSLY IMPACTING ADMINSTRATION OF JUSTICE AND HITHERTO DISCRIMINATORY PROVISIONS OF THE ARMED FORCES TRIBUNAL ACT 2007

 

  1. I have the honour to state the following to seek your kind attention and hierarchical indulgence in resolving the impasse which is seriously affecting the administration of justice to the Military personnel and their dependents through Armed Forces Tribunals. The same has presently arisen due to non-availability of Judicial Members in the said Tribunals.
  2. It is submitted that out of the 17 Benches in the country only five (5) are at present functional. The Armed Forces Tribunal (Principal Bench) at R K Puram New Delhi with its Chairperson is authorised three Benches. Presently the organisation is headless as ideally much desired Chairperson with two other Judicial Members are not posted.

3 A large number of cases relating to service matters of the members of the Armed Forces of the Union of India are pending for a long time. A matter filed on 23 Aug 2016 with prayer for interim relief by an aggrieved member of the Armed forces and listed thrice since then could not be heard as the concerned Bench has been non-functional due to non-availability of the Judicial member on the last three dates of hearing when the said matter was listed. Imagine the frustration of an aggrieved petitioner whose prayer for interim relief since 23Aug 2016 has been in vain due to no fault on his part. The very object of constituting these independent adjudicatory forums for the defence personnel to ensure speedy deliverance of justice has thus come to naught. The aforesaid situation has resulted in denial of timely justice to serving service personnel, ex-servicemen, disabled soldiers and war widows. The existing system of administration of justice in the Armed Forces provides for submission of statutory complaints against grievance relating to service matters and pre and post confirmation petitions to the prescribed competent authorities against the findings and sentences of court martial. The nature of grievances is such that unless resolved in a time bound manner their essence and consequent relief is rendered ineffective. Timely relief therefore is of paramount importance.

4, being a responsible member of the Supreme court bar also take this opportunity to bring to your kind notice another very serious anomaly which has crept in the form of lack of an effective remedy of judicial review over the orders passed by the Armed Forces Tribunals thereby making it the first and the last court of appeal for litigants. Though an appeal on “points of law” or “of general public importance” or on matters which the Supreme Court considers so exceptional that the Apex court of the land ought to hear them, has been provided in the form of Section 31 of the AFT Act, 2007. It was reasonably expected that all other issues could be challenged before the High court in view of the facts that the powers of the High Court under Article 226 and 227 were preserved by Section 14 of the AFT Act, 2007. The Parliamentary Committee which has examined Section 31 of the AFT Act, 2007 has itself recommended Judicial Review by high Courts (Para 90 of Parliamentary standing committee on defence, 18 report, Lok Sabha, 2012-2013 refers). The same was also in line with the law laid down by the constitutional bench of the Supreme court in L Chander Kumar versus U.O.I. and Ors, (1997) 3 SCC 261 and the three Judge Bench in Colombia Sportswear Company versus DIT, (2012) 1 SCC 224. In any case 99.9% of the cases before AFT are matter personal to the litigants and seldom of general public importance. Whereas the High Court’s continued to entertain the writs against the AFT order, the situation changed after a plea to the effect filed by the Ministry of Defence which was later allowed. The same has potentially left litigants without cost effective remedy. On one hand there is minimal scope of appeal in Supreme court on the other Hand it is well known that defence personal, Ex-Servicemen, disabled soldiers and their families can hardly afford to approach the Supreme court from remote places thereby not only making justice inaccessible and unaffordable, but also reducing the Supreme court into the first appellate court for such routine and mundane service matters as specifically deprecated in L Chander Shekar’s case. The central government has thus completely ignored the recommendations of the Parliamentary Standing Committee on Defence, 18 report, Lok Sabha, 2012-2013 made in Para 90 which itself had approved Section 31 with a Caveat that challenges would still lie before the High Court as per L Chander Shaker’s case and also has not yet acted upon a similar recommendation contained in Para 7.14 of the report of the high level committee of experts on litigation constituted by Ministry of Defence (2015) which has also favoured jurisdiction with the High Court. It may also be recalled that while for the defence community, the AFT is the first and the last court, there exactly similarly placed counterparts can conveniently challenge the orders of the Central Administrative Tribunal before the High Court’s within their own states and then also approach the Supreme court in case they are dissatisfied. It is ironical to imagine a disabled soldier or a widow in Kerala or Manipur to approach the Supreme Court concerning his or her case involving meagre sums and then try to prove that the case involves a point of law of general public importance. It may therefore be seen that whereas the civilians get a three tier system of justice and judicial review, the Military counterparts are encumbered with only the AFT which is practically the court of first as also the last resort.

5 Finally, I would like to bring to your notice that in the month of Sep 2016 no court in AFT (PB) 1, 2and 3 is fully functional. Cause list of Court No. 1, 2 and 3 for the whole month says in the beginning “This Bench will not Assemble Today”, the pending cases as well as cases for admissions are adjourned indefinitely. As a responsible member of the bar as well as holding an office of trust in the service of ex-servicemen, it is my solemn duty to bring this to your kind notice that if the appointment of the Judicial Members is kept pending, it will perpetuate injustice. The Petitioners will continue to suffer with no hope of redressal of their grievance. I, therefore respectfully appeal to you to safeguard the Soldier’s interest by providing timely remedy. This would be possible if your august office prevails upon the powers

that be to take necessary steps to resuscitate the comatose AFT by urging the Govt. to appoint Judicial Members without any further delay. In the facts and circumstances submitted herein above a rethink and reconsideration of Section 31 of the AFT Act is also mandated.

Yours sincerely,

Lt Gen (Dr) Balbir Singh, PVSM, VSM** (Retd)

 

 

Meeting With Chief Of Air Staff

 

 

1.         Delegation of IESL led by  Lt  Gen Balbir Singh, PVSM,VSM** President Indian Ex-Services League,

2.         Comprising of the following called on  Air Chief Marshal Arup Raha, PVSM,AVSM,VM,ADC Chief of the Air Staff, and Chairman Joint Chief of |Staff Committee on 26 Sep 2016 on the occasion of Ex-Servicemen Week:-

Lt Gen R C Chaturvedi, PVSM,AVSM,SM

AVM R P Mishra

Vice Admiral Paras Nath, AVSM,VSM

Brig Kartar Singh

3.         The following important issues were discussed:-

a)       NFU (Non-Functional Up gradation)

b)      MSP (Military Service Pay).  MSP for JCO’s should be enhanced as they         perform higher leadership     roles and are a link between officers and men. Recommend JCO’s MSP as Rs 10,500/-. The MSP for MNS may be raised to Rs 11,500/-. MSP should be applicable to all ranks including Generals.

c).         Disparity in allocation per capita – CGHS vis a vis ECHS & Disability Pension.

d)         Reservists pension be increased equal to Sepoy of 15 years service.

e)         Lateral placement of JCOs and ORs on retirement.

f)          Fixation of pension after OROP  at 2.57.

g)        Financial benefits and concessions to Police Gallantry Medal are higher than SM/NM/VM (Gallantry).  Though Police Medal is lower in precedence.

h)          Stoppage of liquor quota to BIHAR ex-servicemen by State Govt.

 

4.         Chairman Chiefs of Staff Committee conveyed felicitations on the occasion and assured the Delegation that the issues would be progressed

 

 

 

K S Yadav

Col

Gen Secy

Meeting With Chief of the Naval Staff

1.         Delegation of IESL led by  Lt  Gen Balbir Singh, PVSM,VSM** President Indian Ex-Services League,

2.         Comprising of the following called on  Admiral Sunil lanba,PVSM,AVSM,ADC Chief of the Naval Staff, on 26 Sep 2016 on the occasion of Ex-Servicemen Week:-

Lt Gen R C Chaturvedi, PVSM,AVSM,SM

AVM R P Mishra

Vice Admiral Paras Nath, AVSM,VSM

Brig Kartar Singh

3.         The following important issues were discussed:-

a)       NFU (Non-Functional Up gradation)

b)      MSP (Military Service Pay).  MSP for JCO’s should be enhanced as they         perform higher leadership     roles and are a link between officers and men. Recommend JCO’s MSP as Rs 10,500/-. The MSP for MNS may be raised to Rs 11,500/-. MSP should be applicable to all ranks including Generals.

c).         Disparity in allocation per capita – CGHS vis a vis ECHS & Disability Pension.

d)         Reservists pension be increased equal to Sepoy of 15 years service.

e)         Lateral placement of JCOs and ORs on retirement.

f)          Fixation of pension after OROP  at 2.57.

g)        Financial benefits and concessions to Police Gallantry Medal are higher than SM/NM/VM (Gallantry).  Though Police Medal is lower in precedence.

h)          Stoppage of liquor quota to BIHAR ex-servicemen by State Govt.

 

4.         The Chief of the Naval Staff  conveyed felicitation  on the occasion of Ex-Servicemen Week and assured the Delegation of progressing the  above issues

 

 

 

Fixation of Pension of Defence Pensioners Post 7th CPC

Letter No.IESL/OROP/2016 dt 14 Sep 2016 address to Shri Narendra Modi Ji, Hon’ble Prime Minster of India :-

 

Shri Narendra Modi Ji

Hon’ble Prime Minister of India

PMO South Block New Delhi

FIXATION OF PENSION OF DEFENCE PENSIONERS POST 7TH CPC

  1. I am approaching you on behalf of all the Ex-Servicemen (ESM) for an issue which is of utmost importance and affects the population which is most dearest to you.
  2. Let me at the outset, convey my sincere thanks to you Sir, for grant of OROP to the Defence Forces and thus giving them redress for the injustice done to them for over 40 years.  There are a few issues which are still left, and I am sure the One Man Judicial Commission (OMJC) appointed by the Govt will resolve these also.
  3. As for the fixation of pension for Defence Veterans, it is learnt that the view for transition of Pensioners (Post OROP) in the Govt is that the Pension as on 01 Jan 2006 (duly corrected to Sept 2012 less OROP) will be multiplied by the factor of 2.57 (as recommended by 7th CPC) to arrive at the pension of Defence Personnel post 7th CPC.  This will result in a major anomaly as it will be less than the pension post OROP and will amount to no benefit to most of the ESM.  This is not fair as the benefit of OROP, given by your Govt as a major benefit will not be passed on to the Veterans.
  4. The Veterans look upto you and the leadership of your Govt to intervene and ensure that the benefit of OROP are also passed on to the ESM post 7th CPC award.  This implies that pension post OROP be multiplied by the factor of 2.57 to arrive at the new pension in 7th CPC.
  5. Since presently, the equalization is to take place in OROP implementation, after five years, the next equalization may thereafter take place on 01 Jan 2021 (i.e. after five years of implementation of 7th CPC).  This will resolve the issue for ever as the CPC dates (after 10 Years) shall always coincide with the OROP implementation date in future.  This will go a long way to assuage the feelings of all the veterans.
  6. Sir, this is a very serious issue which is a cause of serious concern for all the ESM, as presently the feeling and perception is that they are not getting the benefit of 7th CPC award.  This perception needs to be corrected, for which all the Veterans look upto their most revered Prime Minister for resolution and justice.  The intention of 7th CPC was also the same as can be seen from the illustration given at Paras 10.2.89 and 10.2.90 of the 7th CPC Report.  The OROP is an additional benefit given to the Defence Veterans to redress the injustice done in 1973 and therefore, must be passed on alongwith 7th CPC Award.  I am more than confident that you will give your valued consideration to this important issue and ensure that the OROP pension is multiplied by the accepted factor of 2.57 in case of ESM, till such time the Committee of Secretaries headed by Finance Secretary gives its recommendations for implementing the incremental method of fixation of pension as recommended by 7th CPC.
  7. May I request the Hon’ble Prime Minister for a confirmation/announcement for the above?  This will set at rest the rising speculations and consternation amongst the Veterans.

Lt Gen (Dr) Balbir Singh, PVSM, VSM**

President Indian Ex-Services League

NOO

Copy to

Shri Manohar Parrikar Ji- For perusal please.

Hon’ble Raksha Mantri

Govt of India

South Block

New Delhi

Gen (Dr) VK Singh, PVSM, UYSM, AVSM- For perusal please.

Hon’ble Minister of State

External Affairs Ministery

Govt of India

South Block, New Delhi