Transcript LECTURE No. 1 - Nilendra Kumar

ADJUDICATION OF SERVICE
DISPUTES RELATING TO
DEFENCE IN INDIA
Presentation
by
Maj. Gen. Nilendra Kumar
Director
Amity Law School, Noida
at
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
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
1.
CATEGORY OF DISPUTES
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
1.
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.
2.
3.
4.
5.
Service conditions
Disciplinary awards
Procurement processes
Land matters
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.
2.
3.
4.
5.
6.
Old and antiquated laws
Nature of service where decisions often do
not exhibit application of mind
Lack of flexibility amongst the decision
matters
Frequent and arbitrary changes in policy
Lack of awareness of military ethos on the
part of judges & lawyers
Corruption
NATURE OF SERVICE
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
1.
CPC
SECTION 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.
2.
3.
4.
5.
6.
Explosives Act, 1884
Indian Tolls (Army and Air Force) Act, 1901
Works of Defence Act, 1903
Explosive Substances Act, 1908
Official Secrets Act, 1923
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.
2.
3.
4.
5.
6.
Adarsh
Sukna land
Pune land matter involving the then Army
Commander
Bungalow grab in Lucknow cantonment by an
Army Commander
Tehelka
Procurement of rations (meat, dals & eggs etc.)
leading to conviction of a Lt. General
The list appears to be endless
SCAMS GALORE
1.
2.
3.
4.
5.
6.
7.
8.
Divisional Commander
in sexual harassment
case
Procurement for peace
keepers
Tent scam
Booz Brigadier
Ketchup Colonel
Sale of non service
pattern of weapons
Sex for food
NDA job scam
Yet another matter that had continued to
occupy centre space for months
CHANGE IN DATE OF BIRTH CONTROVERSY
1.
2.
3.
4.
5.
6.
7.
Politicisation, MPs met the
PM
Repeated representations
Keeping the decision to move
Court secret
Abortive attempt to progress
a PIL
AFT and High Court by
passed
Supreme Court moved
straightaway
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
Arbitration
2. Mediation
3. Reconciliation
1.
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.
2.
3.
4.
Contracts are not drafted with care
Abnormal delays in formulating and filing of
responses
Change of officials and at times of
arbitrators
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
REMARKS
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.
1.
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
 AG

-
MS
 QMG’s 
E in C  Medical  ST

Training, Courses, AFSPA
Disciplinary cases, pay &
allowances
Officer cadre
Accommodation, ration, travel
and canteens
Rent & allied charges
Disability, medical boards
Supply contracts
FORUMS WHERE LITIGATION TAKES PLACE
Courts Martial
2. Judiciary
3. Tribunals (AFT and CAT)
4. RTI
5. NHRC
6. Arbitrations
1.
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.
2.
3.
Transfer postings
Leave
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
Lack of infrastructure
2. Shortages in members and staff
3. Want of authority to enforce (contempt
powers)
4. Poor quality of judgments
1.
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
Judge Advocate General’s Department
2. Military Secretary Legal
3. Disciplinary and Vigilance
1.
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.
2.
3.
4.
5.
6.
Defence of court cases should be a command
function rather than a duty for the staff
Thorough overhaul of laws
Framing of a Uniform Code of Military Justice to
achieve uniformity of Rules
Integration of JAG Resources of three services
for better management of litigation
Augmentation of JAG Department to create
better manpower to deal with court cases
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