FORCES LAW GAZETTE

(December 2012) ISSUE 3 Available for free download and distribution from www . lawgazette . net Published half yearly 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 : Eugene R Fidell, Former President, National Institute of Military Justice, Col MS Jaswal (Retd) Advocate
Introduction to Issue-3: The end of the year is here. Squeezing out time for an edition after every three months proved to be a difficult proposition. We have hence decided to come up with only two issues each year, contingent upon the availability of time, but roughly after about six months. We are continuing with our earlier 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. This issue carries two contributed articles, one written by me and the other by Col MS Jaswal (Retd), a regular contributor and a former JAG officer and now a lawyer. My gratitude again to those who helped us in this. Thank You. - Navdeep LAW RELATED TO UNIFORMED SERVICES: Pension: AFT Principal Bench dismissed Application filed by Petitioner for grant of disability pension. Held, AFT has committed jurisdictional error, order set aside, petition remanded back to be heard by AFT on merits. (Sri Chand Vs UOI, WP(C) 148/2012, Delhi High Court, 09th January 2012) Petitioner granted pension of a Sergeant and not of a Warrant Officer on the pretext that he had not served for 10 months as a Warrant Officer. Petitioner challenged the stipulation on the basis of the decision of the Honble Supreme Court in DS Nakaras case since there is no such stipulation imposed on post-2006 retirees whereas the said
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stipulation has been imposed on pre-2006 retirees even after 2006. Held, pension to be calculated on the basis of the rank last held and not the rank held for 10 months prior to retirement. (TD Sharma Vs UOI, OA 32/2011, Chandigarh AFT, 23rd January 2012) Petitioner retired with a heart disease from a field area. Disease declared neither attributable to, nor aggravated by service by the release medical board. Held that the medical board has not discussed reasons for its conclusion and its report is not as per rules. Petitioner held entitled to disability pension by the AFT. Appeal filed before the Supreme Court by the Union of India dismissed. (UOI Vs S P Malik, Civil Appeal D 40853/2011, Supreme Court, 21st Feb 2012) Petitioner met with an accident while on leave while going to the railway station. No injury report raised, no inquiry conducted but injury declared neither attributable to, nor aggravated by service. In absence of any such document, the statement given by the Petitioner to the medical board and at the time of admission in the hospital is to be relied upon, benefit of doubt of causal connection to be given since the individual may have gone to the railway station to get his return reservation done. (Akhila Bihari Singh Vs UOI, TA 134/2010, Kolkata AFT, 07th March 2012) Petitioner not granted war injury pension as due and instead undertaking taken from him that his arrears would be restricted for 3 years if granted by the Govt. Case of wrong documentation, Petitioner cannot be made to suffer. Full arrears from 1977 to be granted with 12% interest. Petition allowed. (Suk Bahadur Gurung Vs UOI, OA 543/2011, Principal Bench AFT, 23rd May 2012) No reasons given by Release Medical Board as to how the disability of hypertension was not aggravated by service. Simply writing that disease was detected in peace area or was constitutional is a misnomer. Disability to be held aggravated and disability pension directed to be released. (Chandra Shekhar Vs UOI, OA 212/2011, Principal Bench AFT, 24th May 2012) Petitioners husband was in receipt of disability pension which was discontinued in 1974 when his disability fell below 20%. He later died in 1993. Held, Petitioners husband entitled to service element from 1973 to date of death and Petitioner entitled to family pension thereafter with full arrears and 12% interest. Petition allowed (Baldev Kaur Vs UOI, OA 1354 of 2012, Chandigarh AFT, 18th May 2012) A servicemember is presumed to be sound on entry into service. A simple unexplained X by the medical board cannot rebut the burden of soundness. The burden of proof on rebuttal is with the government and the claimant need not present any proof of aggravation. The evidence of rebuttal is to be presented by the government. Even in preexisting conditions the burden of proof is on government. The appellant had a preexisting disability as analyzed by the board but the board failed to recognize that it was the government which had to show lack of aggravation of preexisting disability. There is no analysis or explanation as to why the preexisting disability could not be aggravated by service. Appeal allowed. Disability aggravated by military service (Dale S
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Horn Vs Secretary Veteran Affairs, US Court of Appeals for Veteran Claims, Case 100853, 21st June 2012) Disability benefits granted from 2004 rather than 1988. Court to adjudicate the timely adherence to procedural requirements. Appellant atleast 7 times attempted to know the status of decision but neither given a proper explanation nor hearing by decision maker. Held that the Court cannot tolerate a similarly opaque, obfuscatory revision process in this case merely because government saw fit to confine its conduct to the agency of original jurisdiction. Decision reversed. (Ivan R Sellers Vs Secretary Veteran Affairs, US Court of Appeals for Veteran Claims, Case 08-1758, 26th June 2012) Conflict between two Supreme Court decisions on rounding off of disability element of pension. View taken in subsequent judgement in KJS Buttars case followed. Claims covered by the said judgement, Petition allowed with full arrears as held in earlier judgment of AFT in Labh Singhs case (Ved Prakash Vs UOI, OA 1960/2012, Chandigarh AFT, 03rd August 2012) Armed Forces Tribunal dismissed the prayer for grant of disability pension on delay. Tribunal clearly wrong in recording the finding of no merits. Pension gives rise to recurring cause of action and at best the arrears could have been restricted to three years. Petition allowed, order of AFT set aside (Yadhu Nath Singh Vs UOI, WP (C) 4857/2012, 09th August 2012) Petitioner had claimed that while serving in Vietnam, a friend had died by drowning. He identified him as Butch and later clarified his full name. Records confirmed the death due to drowning in operational area. Disability benefits were granted w.e.f 2000 and ultimately on several representations, from 1999 whereas original claim based on origin was 1993. Held that proper effective date is to be determined irrespective of the date when the Appellant had provided full information. (Phillip G Cline Vs Secretary Veteran Affairs, Case 10-3543, US Court of Appeals for Veteran Claims, 16th August 2012) AFT ordered that arrears of special family pension would be paid to Petitioner only from date of filing petition. Order of AFT modified and arrears directed to be released from the date of Release Medical Board and not from date of filing petition. Petition allowed (Anusua Roy Vs UOI, WP(C) 9088/2011, Delhi High Court, 22nd August 2012) Petitioners disability granted by medical boards reduced by PCDA(P) repeatedly. Though his claim is belated, he is entitled to full disability pension with full arrears and 12% interest since he has been appearing before medical boards time and again. (Rakesh Kumar Vs UOI, OA 491/2012, Principal Bench AFT, 23 rd August 2012) Reservists promised reservist pension after service of 9 years in colours and 6 years in reserves. However before completion of reserve service for 6 years, they were discharged as Service No Longer Required. Held entitled to reservist pension by deeming them as having completed reserve service of 6 years. Petition allowed but arrears restricted to 3 years prior to filing of petition (Bhatt Jagdish Vs UOI, OA 77/2011, Kochi AFT, 10th October 2012)

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Petitioners husband died due to capsizing of boat in operational area. Initially the widow was awarded liberalized family pension but the same was later cancelled and converted into special family pension by the office of PCDA(P). Held that death is clearly a battle casualty and also entitled to liberalized family pension under the relevant govt order (Sajitha S Vs UOI, TA 139/2010, Kochi AFT, 11th October 2012) Stipulation in Govt of India letters denying the system of pensionary weightages to Territorial Army Officers quashed. TA officers held to be at par with Regular Officers for pension (SD Singh Vs UOI, OA 165/2010, Principal Bench AFT, 19 th October 2012)

ACR & Promotion: Petitioner not granted promotion and stand taken by Respondents that records had been destroyed. Petition was filed in 2003 in the High Court and it pertained to a case of 2001 and hence it was inconceivable that records had been destroyed. Adverse inference taken and presumption taken that Petitioner was fit for promotion. Deemed promotion to the rank of Naib Subedar granted. (Harish Chandra Joshi Vs UOI, TA 75/2010, Principal Bench AFT, 24th Feb 2012) Petitioner was sentenced to cashiering by GCM which was set aside and orders were upheld till the SC. Delhi HC had directed the Army to consider the Petitioner for promotion to the rank of Brig with his batch of 1962, the said order was also challenged by the UOI till the SC but it was upheld. Petitioner later informed under RTI Act that his documents had been destroyed. Held that there had been a long litigating history and since now the Respondents had retrieved some record, they should consider his case for promotion with reference to the officer with the lowest marks who was approved to the rank of Brigadier. (HC Goswami Vs UOI, OA 27/201, Principal Bench AFT, 23 rd April 2012) Revision of promotion policy had not been legally undertaken. Petitioner entitled to be considered by the promotion policy of 2008 and 2009 which were applicable as on 0912-2009, also entitled to consequential benefits. Petition partly allowed. (VSS Goudar Vs UOI, OA 130/2011, Principal Bench AFT, 23rd April 2012) Points Involved- 1. Whether the Petitioner was wrongly denied promotion in DPC from Assistant Commandant to Deputy Commandant on account of the displeasure awarded to him by the DG, BSF? Held- 1. Yes, the Respondents erred in considering the displeasure as it was not within the zone of consideration for the DPC in question. Alleged warnings and adverse remarks not communicated to the Petitioner could also not have been considered by the DPC. Review DPC directed to be held, and if found suitable, Petitioner to be promoted w.e.f. date of promotion of immediate junior. Displeasure and warnings to Petitioner quashed. (Sumer Singh Vs UOI, WP (C) 558/1994, Delhi High Court, 09th May 2012)

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Petitioner was eligible for promotion earlier but was not granted the same due to a punishment which was later set aside by Respondents themselves being illegal. Taking all issues into account, Petitioner granted financial compensation of Rs 50000 in light of lapses by the respondents. (Vinod Kumar Vs UOI, OA 639/2010, Principal Bench AFT, 10th May 2012) Petitioner dismissed on conviction under NDPS Act. Later acquitted. On a separate writ petition, ordered to be reinstated by the High Court. Consequently reinstated and then retired on completion of terms on account of age. Denied promotion since he lacked the ACR criterion etc due to being out of service. Held that the promotion of the Petitioner may be considered alongwith his juniors as directed by the High Court. (Balam Singh Vs UOI, TA 82/2010, Principal Bench AFT, 22nd August 2012) Promotion orders issued but later cancelled since he met with an accident in the interim and medically downgraded. Promotion later granted but revoked after his retirement. Respondents took the action referring to a policy clarification. Held that it was Respondents mistake if any, and such action is belated and harsh and against natural principles of justice. Revocation quashed, Petition allowed and Petitioner be released all benefits (Ram Kumar Vs UOI, OA 488/2011, Principal Bench AFT, 22nd August 2012) Petitioner averred that her Reviewing officer was a civilian scientist who was not much aware of procedures. Respondents declared ACRs as invalid due to lack of knowledge of clarificatory circulars. Petition allowed in view of clarifications and Petitioner directed to be considered as a fresh case for promotion to the rank of Colonel with consequential benefits. (G Himashree Vs UOI, OA 651/2010, Principal Bench AFT, 23 rd August 2012) The Petitioner, an inspector, has been graded well in all years except 2007 and the remarks for the said year were a complete mismatch. For example, the trait of power of expression is not a trait that is acquired and then lost overnight. Petition allowed, impugned order set aside. (Krishna Rajak Vs UOI, WP (C) 5288/2012, Delhi High Court, 28th August 2012) Petitioner was asked by CO to withdraw his DO letter in which he had put forth his views of substituting an original document with copies of it. Held that this seems to have annoyed the CO who has given average assessment which in comparison to other ACRs is lower. Petition partly allowed, impugned ACR of the period set aside (YS Pathania Vs UOI, TA 230/2010, Principal Bench AFT, 04th September 2012) Petitioners promotion approved but the assumption of rank refused on the ground that he was facing Court of Inquiry at the time of assumption of rank. Held that promotion cannot be denied unless due cognizance of inquiry taken or charge sheet issued. Applicable policy discussed, SC judgement in Janakiramans case discussed. Petition allowed (Sandeep Kumar Tiwari Vs UOI, OA 1037/2011, Chandigarh AFT, 06 th September 2012) Petitioner could not attend Promotion cadre due to the fact that he was on Extra Regimental Employment duties (ERE). Petitioner later qualified. Held that since
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Petitioner is not to be blamed, his seniority should be protected. Petition allowed (Manoj Kumar Vs UOI, OA 461/2011, Principal Bench AFT, 20th September 2012) Respondents raised objection in delay in challenging ACRs, however held that normally when a person is not promoted then in ordinary course he is bound to have reasons that some ACRs may have been spoilt and in such situations delay is bound to occur. Delay not fatal since issue has been examined on merits also. Delay not held fatal but Petition dismissed on merits (VR Ballewar Vs UOI, OA 338/2010, Principal Bench AFT, 05 th October 2012) Short Service Commissioned officers entitled to promotions to the rank of Capt, Maj and Lt Col at par with permanent commissioned officers as per gazette notification issued by the Govt of India under authority of Army Act. Even Raksha Mantri made the said statement in Parliament. Executive policy does not override or amend the gazette notification. Short Service Commissioned and Women officers cannot be denied the said benefit. (Nishant Gupta Vs UOI, OA 330/2011, Principal Bench AFT, 14 th March 2012, Jasreen Dhillon Vs UOI, OA 1175/2011, Chandigarh AFT, 10th Oct 2012) Petitioner, a short service commissioned officer, awarded censure for irregularities in canteen. Petitioner challenged an ACR in which negative statements were made against him. Held that the ACR was inconsistent, and Initiating Officer had become biased. ACR quashed, Petitioner directed to be again assessed for extension in service or permanent commission (Vipin Kumar Vs UOI, TA 186/2009, Principal Bench AFT, 19th October 2012) The appointment process of the Petitioner was delayed due to delay in selection process on account of medical examinations, as a result Petitioner became junior to peers. He also missed out on the old pension scheme which was abolished by the time he was appointed. Petition allowed, Petitioners seniority directed to be re-fixed without backwages and Petitioner directed to be entitled to old pension scheme (Naveen Kumar Jha Vs UOI, WP (C) 3827/2012, Delhi High Court, 02nd November 2012)

Discipline & Court Martial: Once Court of Inquiry was quashed by AFT, there was no justification in keeping a person attached for a long period of time. Now since a fresh Inquiry has been held, Respondents directed to provide all documents related to the fresh Inquiry and the disciplinary action against the Petitioner to the Petitioner within 2 months. (Ved Prakash Vs UOI, OA 223/2011, Principal Bench AFT, 12th March 2012) Petitioner was granted relief by Bombay High Court on the basis of SC judgement in Charanjit Gills case since the JAG officer was of junior rank than the accused. UOI took up the plea that concluding paragraph of Gills case would come to their rescue since it saved actions held prior to the judgement and that in the instant case promulgation was done prior to the judgement in Gills case. UOIs claim repelled and held that Section 164 (1) and (2) provided for representation against the sentence and hence the case could not be considered as closed on promulgation. An order can only be held to be
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final when it cannot be interfered with by any other authority. No legal infirmity in order of High Court, appeal filed by UOI dismissed. Order of HC to be implemented within 2 months. (Presiding Officer Vs Sunil Issar, Civil Appeal 3144/2012, Supreme Court, 15 th March 2012) Petitioner sentenced under Section 302 RPC for murder. GCM observed that the Petitioner had intentionally caused death but no reasons at all recorded as to how this conclusion was reached. Intention, motive or mens rea not at all shown by prosecution. GCM of 1995 set aside to the extent. (Balinder Pandey Vs UOI, TA 432/2010, Principal Bench AFT, 16th March 2012) Petitioner declared a deserter but not allowed to join the unit though he tried to join. Petitioner later dismissed. Order of dismissal set aside. Respondents directed to take him on roll and proceed with disciplinary action. (GJ Rama Subba Reddy Vs UOI, TA 119/2009, Chennai AFT, 19th March 2012) No action taken against the actual defaulting parties and Petitioner made a scapegoat. People more or equally responsible let off and one person singled out. Order of punishment of reduction of ranks set aside with consequential benefits. (Lalan Kumar Vs UOI, TA 42/2010, Lucknow AFT, 19th March 2012) Petitioner overstayed leave and was ultimately declared deserter and dismissed from service with reduction in ranks by a SCM. Since he had 17 years of service, the dismissal converted into reduction in rank only without any right of reinstatement so as to enable him to earn pension. Held that mercy required in view of his long service. (Manoj Kumar Mishra Vs UOI, OA 146/2011, Principal Bench AFT, 21st March 2012) Petitioner convicted under Bombay Prohibition Act for possession of Indian Made Foreign Liquor and ultimately dismissed from service by a GCM. Independent witnesses examined, even testimony of police witness was reliable. No grounds to interfere in Court Martial. Petition dismissed. (Raju Guide Vs Chief of Air Staff, Principal Bench AFT, 21st March 2012) Petitioner discharged on the basis of red ink entries. Held that there was no requirement of Court of Inquiry as averred since decision was taken on the basis of his past record. However since he had a total combined service of about 14 years, Respondents directed to condone the shortfall by 1 year to entitle him for pension. (Chhatar Pal Vs UOI, TA 550/2009, Principal Bench AFT, 04th April 2012) Petitioner alleged that he was discharged by Commanding Officer and not the Brigade Commander in pursuance of red-ink entries. However record reveals that actual show cause notice and discharge was ordered by the Brigade Commander only and conveyed by the CO through a ministerial act. Petition dismissed. (Sita Ram Vs UOI, OA 642/2010, Principal Bench AFT, 18th April 2012) Officer awarded 9 years forfeiture of service for pension by the GCM. Held that the essence of the charge was creation of false board proceedings which had ultimately been proved. Held that loss of service for falsification of records was not
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disproportionate or harsh. Petition dismissed. (Rajinder Singh Vs UOI, TA 422/2009, Principal Bench AFT, 19th April 2012) Appellant appealed against decision of a military court on the ground that the communications that served as basis of conviction were privileged communications made to the psychiatrist and that the evidence was legally and factually insufficient and unsustainable. Held that Yes, evidence was both legally and factually unsustainable for upholding conviction and under such circumstances there was no requirement of even going into the question of privileged communication. (United States of America Vs Andrew L Gean, Case No Army Misc 20100499, US Army Court of Criminal Appeals, 30th April 2012) Points Involved- 1. Whether any interference was called for with the disciplinary proceedings resulting in the dismissal of the Petitioner from the BSF on allegations of having accepted a bribe to have someone's son employed in the Delhi Metro? Held- 1. (2006) 5 SCC 88, M.V.Bijlani Vs Union of India & ors. Relied on- Judicial review is of decision making process and not of re-appreciation of evidence. There was no denial of a reasonable opportunity to the Petitioner, nor were the principles of natural justice violated. S. 47 of the BSF Act does not prevent the summary trial of the Petitioner as that s. deals only with heinous offences such as culpable homicide and bars them from being tried summarily. Dismissal accordingly upheld- no mercy could be shown on account of the petitioner having 20 years of service as his prior record was not clean either. (Som Dutt Vs UOI, WP (C) 4882/2008, Delhi High Court, 04th May 2012) Points Involved- 1. Whether the Petitioner was rightly dismissed from service from the BSF for having allegedly misconducted himself with the Post Commander whom he had accused of corruption? 2. Whether the trial was in compliance with BSF Rules? Held- 1 and 2. No, the entire trial appears to have been concocted and a plea of guilty falsely recorded without the signature of the Petitioner on a cyclostyled form. Thus, no real compliance with Rules 142 and 143 of the BSF Rules. The plea of guilty by the accused has to be signed in the SSFC proceedings of the BSF and other Forces including the Army, as the rules of BSF are pari materia with the rules of Army in this regard. Uma Shankar Pathak v. Union of India & Ors., 1989 (3) SLR 405 DB judgment of Allahabad HC relied on. Prior judgments of Delhi HC in Kalu Ram's and Chokha Ram's Cases which held to the contrary distinguished. Petitioner cannot be tried again in view of s. 75 of the BSF Act. Directed to be reinstated with full consequential benefits. (Rajinder Singh Vs UOI, WP 2715/2000, Delhi High Court, 04th May 2012) Petitioner challenged the award of censure on the ground that the authority concerned did not have jurisdiction. Held that Severe Reprimand by GOC UB Area valid since the unit of the Petitioner was under Meerut Sub Area which was under the said GOC. Petition dismissed (Bodh Raj Sharma Vs UOI, OA 248/2011, Principal Bench AFT, 09 th May 2012)
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Point Involved- whether the orders dismissing the Petitioner from the BSF were valid on ground of absence despite his having provided a medical certificate? Held- 1. No, in contravention of Rule 85 of the BSF Rules, 1969 the Petitioner was not presented with additional evidence given by the medical officer against him. Further there was no reason to doubt the OPD cards produced by the Petitioner. Respondents have not examined the witnesses required to rebut the Petitioner's case. The trial is set aside and s. 75 of the BSF Act forbids a second trial. B.C. Chaturvedi Vs Union of India, AIR 1996 SC 484 in para 18 and 22; and U.P. State Road Transport Corporation and Ors. v. Mahesh Kumar Mishra and Ors., (2000) ILLJ SC 1113 relied on. Banwari Lal Yadav v. Union of India, 134 (2006) DLT 353 cited-difference between cases where there is no jurisdiction and where trial is ipso facto unsatisfactory. In latter cases no retrial possible. Petitioner to be reinstated with all consequential benefits. (Vipin Kumar Vs UOI, WP (C) 7312/2011, Delhi High Court, 17th May 2012) Point involved whether the Petitioner was rightly dismissed from service from the CISF for being a deserter though he claimed his absence was justified on medical grounds? Held- No, the Respondents had ignored the medical advice and certificates categorically placed on record by the Petitioner. No reasonable person could be said to reach the conclusion which the authorities reached. Fact that Petitioner ultimately treated for sciatica irrelevant as this was related to the leg injury he had suffered and on the basis of which he claimed absence. The punishment is also disproportionate in view of the Petitioner's 16 years of clean service. B.C. Chaturvedi Vs Union of India, AIR 1996 SC 484 in para 18 and 22; and U.P. State Road Transport Corporation and Ors. v. Mahesh Kumar Mishra and Ors., (2000) ILLJ SC 1113 relied on. Petitioner to be reinstated with 50% back wages, and with all consequential benefits (Ashok Kumar Vs UOI, WP (C) 7098/1999, Delhi High Court, 24th May 2012) Petitioner, a Maj Gen, found guilty by GCM on 7 charges and acquitted on 11. Awarded forfeiture of 3 years of pension and severe reprimand. Held that there was no ground to interfere in view of the evidence. (KTG Nambiar Vs UOI, TA 412/2010, Principal Bench AFT, 29th May 2012) Plea of guilt not signed by Petitioner. Held that entire trial in SCM vitiated. SCM set aside, Petitioner held to be discharged instead of dismissed with full pensionary benefits. (Rohtas Vs UOI, TA 01/2011, Principal Bench AFT, 30th May 2012) Though statement of prosecutrix has to be granted due weightage, it cannot be taken as gospel truth as a thumb rule and some corroboration would be required otherwise there shall be complete chaos. In instant case it seems unnatural that the offence of rape could be committed in an area where there were conjoined quarters separated only by curtains. The victim did not even complain to her brother in law who visited her immediately after the alleged offence. Did not even shout for help or call naval police. Her silence from 15th May to 08th June is also unexplained. Sexual assault seems

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doubtful. Appeal allowed. Both accused acquitted. (Manoj Nehra Vs UOI, TA 56/2009, Principal Bench AFT, 30th May 2012) Procedure of discharge due to red ink entries followed. Petitioner had not challenged earlier punishments and had also given a reply that he does not want to file a representation. In this light, order of the AFT dismissing the petition challenging administrative discharge for red ink entries upheld (Om Lat Vs UOI, WP (C) 5747/2011, Delhi High Court, 02nd July 2012) Petitioner tried for not firing at miscreants thereby resulting in cowardice wherein a colleague died in Bangladeshi territory. Court observed the mismatch in the versions of the respondents. Court also observed that there is no evidence which supports the plea of guilt. Proceedings set aside, Petitioner ordered to be reinstated with full consequential benefits (Subhash Singh Vs UOI, WP (C) 6920/1999, 09 th August 2012) Petitioner, a BSF constable, was deployed on a border out post (BOP). Petitioner charged for helping smugglers for illegal gratification. Petitioner dismissed by Summary Security Force Court (SSFC) after he pleaded guilty. Petitioner denied pleading guilty. Typed copy produced and original not produced in court on the grounds that those were weeded out. Held there were mistakes in the typed copy which assumes importance since such errors do occur when ante-date documents are prepared. Petition allowed, SSFC set aside, Petitioner to be reinstated. Due to passage of time, no re-trial ordered. (Umesh Prashad Vs UOI, WP (C) 4099/2000, Delhi High Court, 23rd August 2012) Contradictory extra judicial statements. Such statements can only be relied upon if there is corroboration. Petitioner granted benefit of doubt and hence acquitted under Section 302 RPC however convicted under Section 201 read with 34 RPC. Ordered to be released from prison since he had already undergone more than 5 years of Imprisonment (Amarjit Singh Vs UOI, TA 189/2009, Principal Bench AFT, 27 th August 2012) Financial misappropriation by juniors and Petitioner, an Assistant Commandant, punished harshly. Held that negligence in supervision not such a grave offence to result in grave misconduct under Rule 9 of CCS (Pension) Rules. Penalty set aside. Petition allowed (Bishamber Nath Vs UOI, WP (C) 6614/1998, Delhi High Court, 28 th August 2012) Appellant, facing deportation, sought issuance of writ on the ground that he received insufficient assistance from counsel who failed to inform him that he could be deported if he pleaded guilty while relying upon case law laid down in Padilla Vs Kentucky decided in the year 2010 by the US Supreme Court. Held that relief was not available to Appellant since Padillas case had established new law which was not retrospectively applicable since Appellant was convicted in 2006 and his sentence was affirmed in 2007 in appeal and no further appeal was filed by him and the order was finally executed in October 2007 itself (Reinel Casa Garcia Vs United States of America, Case No Army Misc 20111047, US Army Court of Criminal Appeals, 28th August 2012)

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Petitioner compulsorily retired for not informing department of his arrest in a case. The offence not so grave so as to invite cessation of service. Petitioner directed to be reinstated with directions to impose a lesser penalty. (SN Singh Vs UOI, WP (C) 5337/2012, Delhi High Court, 29th August 2012) Petitioner charged with assaulting superior officer by pointing out a loaded weapon at him and saying hum kuch bhi kar sakte hain and dismissed from service by a Summary Court Martial. Petitioner alleged that the entire evidence and proceedings were fabricated and the summary of evidence was also recorded in one hour only. Pointed out that all proceedings were conducted with undue haste and even the weapon was not examined or produced as exhibit. Held material witnesses not examined leading to suspicion of trial, weapon not produced, incident not corroborated by a witness, provisions of Army Rule 116(4) not complied with. Held that there was doubt in the credibility of the happening of such an event, Petition allowed, SCM set aside, Petitioner directed to be reinstated (R Nasik Raja Vs UOI, OA 100/2011, Kolkata AFT, 30th August 2012) Total of 19 prosecution witnesses were examined and Petitioner was not present during the examination-in-chief of only 3 and that too with his consent. All other personnel involved were punished in some manner and hence Petitioner cannot absolve himself of this responsibility. Sentence upheld. However on humanitarian grounds, held that no useful purpose would be served by asking the Petitioner to undergo the balance 2 months of imprisonment (Kulwant Singh Vs UOI, TA 174/2010,11 th September 2012) Petitioner was dismissed from service by way of a SCM while he was recruit on the basis of a police report that he was not residing at the address mentioned by him. An identical person dismissed alongwith him was later reinstated by the Army when he presented proof of residence but the proof submitted by Petitioner not accepted. On documents produced by the Petitioner in Court a forensic examination was ordered which revealed that the overwriting did not alter what was originally written. Examination reexamined by AFT and it was found that all Prosecution witnesses simply relied upon the verification roll by the police and had no personal knowledge of the residence of the Petitioner. Statement of any police personnel not recorded by the SCM. Petitioner has produced a ration card which reinforces that he was staying at the residence and the said ration card has been testified by the forensic lab. A similar person reinstated but Petitioners case not considered. Petition allowed. Petitioner reinstated. (Rajender Vs UOI, TA 527/2009, Principal Bench AFT, 19th September 2012) Petitioner awarded red ink entry during extended service for refusing to obey referees decision during a sporting event. Petitioner discharged by CO and not Brigade Commander. Held that show cause notice is not an empty formality and neither is a discharge automatic. Show cause notice issued by Brigade Commander but discharge authorized by CO. Discharge held illegal, Petitioner deemed to have continued in extended service with all consequential benefits. Petition allowed (RS Vishwakarma Vs Chief of Army Staff, TA 897/2010, Lucknow AFT, 26th September 2012)

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A military judge convicted the Appellant who was deployed in Iraq for possession of child pornography which was challenged on the ground that the evidence was illegally derived from a non-authorized search of the hard drive of the Appellant. It was alleged that the military judge abused his position by admitting illegal evidence. Held that the military judge erred when he concluded that the search was private in nature however held that the Appellant was not prejudiced by this since the evidence would have been inevitably legally discovered and his own confession was also corroborated by the search. (United States of America Vs Michael S Spiess, Case No Army Misc 20100229, US Army Court of Criminal Appeals, 28th September 2012) Respondent was charged with hazing, housebreaking and sexual assault. During pretrial, based on speedy-trial rule violation, the charges were dismissed. A military judge later reversed the decision but then a second military judge assigned to the case again dismissed the charges. US Army went into appeal. Respondent contended that the first military judge had no authority to reverse the decision. Held, that the first military judge had authority to reverse the decision. Case remanded back (United States of America Vs Benjamin C Hill, Case No Army Misc 20120755, US Army Court of Criminal Appeals, 19th October 2012) Petitioner convicted by Summary Court Martial. Challenged the fact that it was the Commanding Officer who had served the charge sheet and hence could not court martial the person. Held that there was nothing in the rules to suggest that the situation was improper, in fact, the CO can only sit in an SCM according to Army Act Section 116. Appeal filed by UOI allowed, judgement of High Court set aside (UOI Vs Dinesh Prashad, Civil Appeal 1961/2010, Supreme Court, 30th October 2012)

Policy, Benefits & Others: Petitioner alleged that he was made to sign blank papers for discharge at own request. Petitioner failed to explain why he signed on blank papers, he has also not alleged any malice towards a higher officer and also did not raise the issue while completing documentation of discharge. No show cause notice is required for discharge at own request. Petition dismissed (Angrej Singh Vs COAS, TA 322/2010, Principal Bench AFT, 24th Feb 2012) Change of cadre of personnel posted to Military Engineering Services (MES) back to military units affecting seniority and promotions. Held that it would be discriminatory and unconstitutional for them to serve under juniors. Respondents promised to duly take care of the interests of such personnel and protect their seniority. Respondents also directed to consider service in MES as regimental report if they are lacking the same. Petition allowed. (Pratap Chandra Sahu Vs UOI, OA 191/2011, Principal Bench, 19 th March 2012)

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Parties cannot approach the Supreme Court directly without seeking leave to appeal from the Armed Forces Tribunal. AFT Act discussed. (UOI Vs Brig PS Gill, Criminal Appeal 564/2012, Supreme Court, 23th March 2012) Date of effect of new policy for grant of extension of Low Medical Category (LMC) personnel. Letter issued in Sept 2010 made effective from April 2011. Since the Petitioner faced screening board in July 2011 and his extension was due from January 2012, both dates go beyond April 2011 and he was entitled to benefit of new policy. Petitioner to be granted extension of 2 years with all consequential financial benefits. (Gulab Rao Vs UOI, OA 513/2011, Principal Bench AFT, 04th April 2012) Petitioner was screened for extension of service but later a communication was received stating that he was not granted extension and was ultimately locally discharged. Held that no evidence was shown by Govt that any review medical board had been conducted and even otherwise the disability of hernia is not of permanent nature. Petitioner directed to be notionally reinstated with all consequential benefits. (MJ Joseph Vs UOI, TA 20/2011, Principal Bench AFT, 24th April 2012) Petitioners Sena Medal categorized as Sena Medal (Distinguished Service) rather than Sena Medal (Gallantry) by the respondents. Held that the medal was awarded for bravery and moreover another person who was in the same operation was granted SM (Gallantry) while Petitioner was not. Held illogical. Respondents directed to reconsider matter (Balwinder Singh Kohli Vs UOI, OA 376/2011, Principal Bench AFT, 26th April 2012) Petitioner, a Major, met with an accident while on duty. Ordered to be invalided out on 20-02-2002 with effect from 01-03-2002. At that time, the Persons with Disabilities Act, 1995, was in force and defence services were exempted with effect from the said Act vide a notification issued on 28-03-2002. Invalidation set aside with consequential benefits. Petition allowed. (Maj Mahesh Bisht Vs UOI, TA 766/2009, Principal Bench AFT, 22nd May 2012) Petitioner a Short Service Commissioned Officer of the Army Medical Corps was granted one-time waiver by the Respondents due to a mistake in the advertisement. Cannot seek more chances as a matter of right. (Prabhat Chaturvedi Vs UOI, OA 314/2011, Principal Bench AFT, 28th May 2012) Petitioners results for the examination of Sub Inspector were withheld without reason and queries not responded to. When she approached the Delhi High Court the result was declared and it was stated that requisite action was not taken since her case remained unattended due to voluminous work. Once the Court directed the presence of regional director of the commission to appear, within 10 hours the administrative machinery declared the results. Respondents directed to issue appointment letter within 24 hours, Petitioner also entitled to costs of Rs one lac to be recovered from responsible officials after enquiry. (Sunita Vs UOI, WP (C) 4845/2012, Delhi High Court, 17th August 2012)

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Petitioner, an airman in the Air Force was selected as an Assistant Commandant in the central paramilitary forces through the UPSC but his representation for release was rejected by air force authorities that he had not taken permission prior to applying for the post and that he had not completed 7 years as an airman prior to applying for the post as provided by policy. Held that by this time he has completed 7 years and though admittedly he had made a wrong statement of having informed his employer about his application, declarations related to eligibility, character etc stand on a different footing than declarations related to procedure. Held aspirations of youth from humble origins need to be nurtured and protected. Petition allowed, Air Force directed to issue discharge certificate to Petitioner and release him within one week (Sandeep Kumar Vs UOI, WP(C) 4864/2012, Delhi High Court, 21st August 2012) Petitioner while undergoing Basic Young Officers Course returned to unit twice on medical grounds. Later on he applied for transfer to other arm/service which was not acted upon. Then a notice was issued calling upon him to resign since he did not complete the course. He filed a statutory complaint but in the meantime another notice was issued to him asking why he should not be compulsorily retired since he had refused to resign. Petitioner pointed out the relevant provisions which provided that such officers could be transferred to other arms in such circumstances. Held that the Petitioner never hesitated from attending the course. He never failed the course but could not attend it. On one hand the Army is facing a shortage of officers and on the other such actions were being taken. Petition allowed, Respondents directed either to allow the Petitioner to complete the course or to transfer him to another arm/service (Sumit Ranjan Vs UOI, OA 28/2011, Lucknow Bench AFT, 29th August 2012) Rank Pay illegally deducted from the salary of Commissioned Officers of defence services as on 01-01-1986. Directed to refix pay, pension and other benefits with arrears w.e.f 01-01-1986 but interest component modified from the earlier order and now ordered to be paid w.e.f 01-01-2006 @ 6%. (UOI Vs NK Nair, IA 09/2010 in TA(C) 56/2007, Supreme Court, 04th September 2012) Petitioner was recruited in a higher group (Y) but it was later realized that according to the age limits he was not eligible for the same and hence was reverted to Group Z. Held that even if due to some mistake he was recruited, he could not be reverted back now that he had served for so many years in the Group Y, also he has passed all applicable examinations. Reversal set aside. Petition allowed (Rajveer Singh Vs UOI, OA 365/201, Principal Bench AFT, 05th September 2012) Review Petition dismissed by AFT without assigning any reasons. Held that the order was cryptic and the AFT needed to record as to how inspite of a fact brought forth by the Petitioner, the Petition was to be dismissed without reasons. Order of AFT set aside, AFT directed to record reasons while disposing the Petition (Surat Singh Vs UOI, WP (C) 548/2012, Delhi High Court, 5th September 2012) Petitioner dismissed from service on conviction. Later acquitted by the High Court. Order was passed by the Govt ultimately reinstating him notionally till the age of retirement, however no order for payment of pension was passed. Records Office also sent the case for payment of pay and arrears of intervening period directly to Pay and
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Accounts Office without taking sanction of Ministry of Defence. Papers for regularization of period kept hanging fire. Petition allowed, entire period to be respected and implemented for regularization for service benefits including pension within 3 months otherwise amount shall carry interest @ 10% per annum (Mohinder Singh Vs UOI, OA 317/2011, Principal Bench AFT, 12th September 2012) Petition adjourned four times and IG directed to sympathetically look into the matter. Court informed that the IG was not prepared to have a relook. IG (personnel) took a stand that the Petitioner had suppressed the fact of his posting but this is in teeth of the recommendations in which this fact was clearly recorded. Held that ego of the officer is coming in his way and having committed an error he feels its below his dignity to rectify the error. Held that committing an error is not wrong but perpetuating it is wrong. Petition allowed with costs of Rs 11000 (Jai Singh Vs UOI. WP (C) 5378/2012, 19 th September 2012) Petitioner had acquired disability prior to coming into force of People with Disabilities Act, 1995 and even his services were terminated prior to the Act. In such a scenario, he could not avail the benefit of Section 47 of the Act (Tejender Kumar Vs UOI, WP (C) 2636/99, Delhi High Court, 25th September 2012) Petitioner averred that earlier dismissal by SC was in limine and hence not a binding precedent. Held that though disposal in limine cannot possibly bar future litigation but does inhibit discretion of Court and normally SC would be disinclined to hear entertain or to hear further petitions on similar points. It is against public policy and well defined principles of judicial discretion to entertain or hear petitions relating to same subject matter where the matter was heard and dismissed on an earlier occasion. (Bar Council of India Vs UOI, Writ Petition (C) 666/2002, Supreme Court, 03nd August 2012) Petitioner, a reemployed officer, denied extension of service till the age of 58 on the ground of change of policy on 01 March 2012 whereby it was provided that a person had to apply for extension within a period of one year of initial reemployment. Petitioner reemployed on 27 Feb 2011 and hence his initial one year expired on 27 Feb 2012, that is, a date earlier than the coming into force of new policy. Petitioner held entitled to extension based on earlier existing policy and the new policy held neither implementable not applicable on the Petitioner. Petition allowed (GC Sharma Vs UOI, OA 1076/2012, Chandigarh AFT, 07th September 2012) Petitioners non-statutory complaint decided by Central Govt rather than Chief of Army Staff thereby depriving him of one stage of appeal since his statutory complaint could not now be considered by the central govt since the same authority had decided the non-statutory complaint. Directions issued to govt to decide the statutory complaint and liberty provided to Petition to approach the Tribunal in case the complaint is not decided. (Jagmohan Singh Vs UOI, OA 694 of 2012, Chandigarh AFT, 30 th October 2012) Petitioner despite having been granted notional promotion was not granted pay and allowances in terms of the promotion with effect from 2000. Juniors had been promoted
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prior to him and granted higher allowances. Matter not resolved despite several complaints and representations. Petition allowed and Respondents directed to release all arrears of pay and allowances within 90 days failing which interest of 12% allowed from the date the amounts were due. (TJ Davies Vs UOI, OA 134/2009, Principal Bench AFT, 29th October 2012)

DEVELOPMENTS & MISCELLANEOUS: Anomaly of higher ranks getting pension lower than subordinate ranks removed. (Ministry of Defence Letter dated 27th March 2012) Interest to be paid on late release of retiral benefits (Department of Pension & Pensioners welfare letter dated 01st May 2012) Employees who were to get increment between Feb 2006 and June 2006 to be given benefit of increment in pre-revised scale on 01 Jan 2006 as a one-time measure (Ministry of Defence letter dated 01st August 2012) Majors who were granted the pay scale of a Lt Col to be granted the pension of a Lt Col based on Pay Band-4 with effect from 01 Jan 2006 (Ministry of Defence letter dated 24 th September 2012) Modalities of stepping up of pay vis--vis upgradations under ACP scheme promulgated (Department of Personnel & Training letter dated 04th October 2012) More clarification on Modified ACP issued (Department of Personnel & Training Letter dated 04th October 2012)

CONTRIBUTIONS AND ARTICLES:

Motor Accidents : Law, Procedure, and vicarious liability including that of the Government Colonel MS Jaswal (Retd)

1.

The question of liability for and recovery of compensation for death or injury in motor accidents was originally governed by the law of torts. In case of death, the Maxim ACTIO PERSONAL'S MORITUR CUM PERSONA was applicable, which meant that a personal right of action dies with the parties to the cause of action. An action for tort had to begun in the joint life time of the wrong doer and the person injured. In order to get over the rule that the cause of action for recovery of damages for the death of a person caused by the wrongful act of
16

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another parson did not survive the death of that person and for compensating the families of persons killed in accidents, the Fatal Accidents Act, 1855 was passed which enabled the filing of a suit for damages for the death of a person. Prior to 1914, there were as many as six separate enactments of law relating to Motor vehicles. In 1939, the Motor vehicles Act was passed by the Central Legislature which too was amended from time to time and finally Motor vehicles Act 1988 was brought into effect. 2. After the enactment of the provisions in the Motor vehicles Act providing for decision of claims arising out of motor accidents by claims Tribunals set up under the Act some High Courts took the view that a claim application was governed by the substantive provisions of the law of Torts and of the Fatal Accidents Act 1855 and the Motor vehicles Act merely provided for the procedure for the entertainment and disposal of such claims. The Supreme Court, however, approved the view that such a claim for compensation is governed exclusively by the provisions of the Motor vehicles Act and the principles laid down in the Fatal Accidents Act need not be followed. It further held that the Motor vehicles Act provides the substantive as well as the procedural law in respect of claims arising out of motor accidents. The whole purpose of setting up claims Tribunal was to substitute the rather tardy procedure of the ordinary civil courts with expeditious and summary procedure before claims Tribunals with regard to the urgent claims of compensation by the victims of motor vehicle accidents. The Tribunal is deemed to be a civil Court. An appeal against its order can be made to the High Court. The current approach of the courts is to propagate the idea that damages should not only be awarded according to the injury inflicted but 'the sanctity of human personality' on which the increasing accent of both, the Municipal and International Law in recent time is becoming apparent.

VICARIOUS LIABILITY OF STATE FOR TORT COMMITTED BY SERVANTS

3. Every person is liable for his own tortuous acts. There are however, certain cases in which another person may be held responsible for a wrongdoers act even though such person may for a wrong doer's tortuous acts even though such person may not have been guilty of either intentional or unintentional wrong. An employer is responsible because of "master and servant' relationship for torts committed by his employee while the employee is acting within the scope of his employment. However, the liability of master for his servant's wrong does not suppress the personal liability of the servant himself. Hence, both are liable. The injured party usually presses his claim against the employer because of the employer's presumable better financial position. The question which has assumed a considerable importance in this era is whether and how far, the State is vicariously liable as a master for the torts committed by its servants.
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4. The law relating to Government liability is enunciated in Article 300 of the Constitution of India. Article 300(1) consists of three parts. The first part deals with the question about the form and the cause title for a suit intended to be filed by or against the Government of India or the Government of a State. The second part provides, interalia, that the Union of India or a State may sue or be sued in relation to its affairs in cases like those in which the Dominion of India or a corresponding Province or an Indian State as the case may be might have sued or been sued if the constitution had not been enacted. The third part provides that it would be competent to the Parliament or Legislature of a State to make appropriate provisions in regard to the topic covered by Article 300(1). The first part of Article 300 prescribes the way in which suits and proceedings by or against the Government may be instituted. It enacts that the Government of India may sue and be sued by the name of State. There is a difference between the 'Government of India' and the 'Union of India'. The Government of India is not a legal entity; the Union of India is a legal entity a corporate body which possesses rights and obligations. Although the Union of India and the State Government can sue and be sued, the circumstances under which that can be done have not been mentioned under Article 300. The Union of India and States are recognised as juristic parsons fort the purpose of suits or proceeding The position prevailing before the commencement of the Constitution remains unchanged. The position as regards the liability of the State for torts committed by its servant in the pre Constitution era is indicated in Section 176(i) of the Government of India Act; 1935 the provisions of which are substantially the same as those of Article 300(1). Section 176(i) refers back to the legal position as it obtained prior to the enactment of the Act that is to say as it emerged on enactment of section 32 of the Government of India Act, 1915. Sub-section (2) of this section 32 has special reference to remedies and has provided that the remedies against the Secretary of State in Council shall be the same as they existed against the East India Company before the passing of the Government of India Act, 1915. Thus the matter is further referred back to the Government or India Act, 1858, section 55 of which provided that the Secretary of State in Council shall and may sue and be sued as well in India as in England by the name or the Secretary of State in Council as a body corporate, and may have and take same suits, remedies and proceedings, legal and equitable against the secretary of State in Council of India as they could have done against the East India Company, Therefore, in order to find out whether or not the state is liable in India for a particular wrong, the study of the position of the East India Company becomes essential. The question of delictual liability of State came before various High Courts and was decided by them by their own notions, but following the principles of law laid down by the English Courts. The main questions to be decided by the Courts were :-

(a) (b) (c)

not?
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Can the state as a master be sued or not? If at all the State can be sued, what is the extant or its liability? Whether every function of the state is a sovereign function or
18

Or Which functions of the State are Sovereign functions?

5. The High Courts gave nearly the same answers following the principles of law laid down in the case Peninsular and Oriental Steam Navigation Company Js Secretary of State for India(186) 5 Bom HC Rep, App,1, p1) . The facts of this case were that the plaintiff's servant was travelling in a horse driven carriage and was passing by the Kidderpore Dockyard, which was government property. On account of the negligence of the servants of the defendant a heavy piece of iron which they were carrying for the repairing of a steamer, fell and its clang frightened the horse. The horse rushed forward against the iron and was injured. The plaintiff filed a suit against the Secretary of State for India in Council for damage caused due to the negligence of the servants employed by the East India Company. The East India Company claimed immunity from being sued, It was held that if the act was done in the exercise of sovereign functions, the East India Company could not have been liable, but if the function was at non-sovereign one, the Company could have been held liable. It was observed by Chief Justice Peacock that the East India Company to whom sovereign powers were delegated; the Company traded on their own account and for their own benefit and were engaged in transactions partly for the purpose of Government and partly on their own account the commercial functions of the Company were without any delegation of sovereign powers, i:e which could have been performed by a private individual without any delegation of power by the Government; and the exercise of powers which are usually called sovereign powers are those powers which cannot be lawfully exercised by sovereign or private individuals delegated by a sovereign to exercise them. 6. The question of liability of Sate for the acts dons by its servants during the course of their business or during their employment came before the Supreme Court in the case State of Rajasthan Vs Smt Vidyawati and Others (AIR 1962 Supreme Court 933) In his case the driver of a Government jeep while carrying the jeep back from a workshop knocked down one Jagdish Lal. The plaintiff who were the widow and the minor daughter of the deceased sued the said driver and the State of' Rajasthan for damages in torts, The trial court dismissed the claim for compensation as against the State of Rajasthan, while passing a decree against driver only. On appeal, the High Court of Rajasthan passed a decree in favour of the plaintiffs, allowing compensation against the State of Rajasthan also. The State or Rajasthan, therefore, preferred an appeal against the judgement and decree of the Rajasthan High Court to the Supreme Court. The first point that required decision of the Supreme Court was whether under Article 300 of the Constitution of India the state of Rajasthan can be sued ? It was held that Article 300 of the Constitution refers back to certain legislations and according to those legislations the position of the State is similar to that of East India Company', It was further held that had the Constitution of India not been passed, the State could have been sued, and so presently the State of Rajasthan can be sued. The second point raised before the Supreme Court was that the jeep, the rash and negligent driving of which led to the claim in the suit, was being maintained in exercise or sovereign powers. Hence the
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State could not be held liable for the tortuous acts of its servants, which were committed while such servants ware engaged in activities connected with the affairs of the state. It was observed by the Court in this case that the Constitution of India aim at, establishing a welfare state in India, whose functions are not confined only to maintaining law and order, but the State today pervades every aspect of human life and extends to engaging in all activities including industry, public transport, State trading, etc So the State activities involve not only the use of sovereign power: but also its powers as employer. Being the largest employer it is too much for the State to claim immunity from the tortuous acts of its employees committed in the course of their employment. The Court, therefore, held the State liable just like any ordinary employer. The Supreme Court further observed that, "in this respect the present set up of the Governments is analogous to the position the East India company, which functioned not only as Government with sovereign powers as a delegate of the British Government but also carried on trade and commerce, as also public transport like railways post and telegraphs and road transport business It use concluded that the act of the driver while driving the jeep back from the workshop, was not an act done in the exorcise of a sovereign function. 7. This verdict was further strengthened in Union of India and another Vs Ladulal Jain (AIR 1963 Supreme Court 1681). In this case Supreme Court held that even the running of railways is not a sovereign function. It was laid down that where the employment in the course of which a tortuous act is committed is of such a nature that any private individual can engage in it, then such functions are not in the exercise of sovereign powers. 8. This distinction of sovereign and non-sovereign functions was followed in Shyam Sunder Lai and others Vs State or Rajasthan (AIR 1974 Supreme Court 690) In this case the deceased was proceeding in connection with the famine relief work undertaken by the Public works Department in a truck owned by the department. After having travelled for 4 miles the engine of the truck caught fire. The driver cautioned the occupants to jump out of the truck. While so doing, the deceased struck against a stone lying by the side or the road and diet, instantaneously His widow brought an action against the State of Rajasthan for damages under the Fatal Accidents Act, 1855. It was contended on behalf of the plaintiff that it was on account of the negligence of the driver that the truck which was not roadworthy was put on the road and that it caught fire which led to the death and that the State was liable for the negligence of it s employee in the course of his employment. It was argued on behalf of the State, defendant, that it was engaged in performing a function appertaining to its character as sovereign as the driver was acting in the course of his employment in connection with famine relief work, and therefore, even if the driver was negligent, the State would not be held liable for damage. This argument was refuted by the Supreme Court on the ground that the famine relief work is a welfare work because it is for the betterment of the people. Since such a work can be conducted by any ordinary parson or a group of such persons, it is not a sovereign function. Prior to this decision, the Bombay High Court held in the case State of Mysore Vs Ramchandre (AIR 1972 Bombay 93) that construction of a reservoirs for the supply of drinking water to the villagers is not a sovereign function, but only a welfare act.
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9. Another interesting and important case on the point which came before the supreme Court is Kasturilal Vs State of Uttar Pradesh (AIR 1965 Supreme Court 1039). In this case appellant Ms Kasturilal Raliaram Jain was partnership firm. A quantity of gold was recovered by the police officer from Raliaram on suspicion that it was stolen property. The gold was kept at the Police Malkhana in the custody of Head Constable who, however, misappropriated the gold and fled to Pakistan. It was alleged by the plaintiffs that the loss was caused by the negligence of officers in not taking proper care of the attached property and it was found that the police officers failed to observe the provisions of the Uttar Pradesh Police Regulations in taking care of the gold seized. The main question was whether the act of police officer was in the exercise or sovereign powers. Reliance on the decision of the Bombay High Court in the case Shivabhajan Durgaprasad Vs Secretary of State for India (ILR 28 Bom. 314) wherein it was observed that, "the chief constable seized the goods not in obedience to an order of the Executive Government but in performance of a statutory power vested in him by the legislature. It is the will of law and not the will of the employing agent. The employer is not liable for the wrong done by the agent in such employment". So in this case it was observed that, "the act of negligence was committed by the policy officer while dealing with the property of Raliram which they had seized in exercise of their statutory powers. Now the power to arrest a person, to search him and to seize property found with him, are powers conferred on the specified officers by the statute." In other words, it is a work which a private person cannot do. For such work which the State only can perform, there is immunity for the State to be sued. 10. Again the problem is whether all the works which only the State can perform are sovereign functions. It can be concluded that any act which a private person can do is not a sovereign function, and any act done under the statutory powers is a sovereign act. The Supreme Court has settled many controversies about the functions of the State and its liability for the acts done by employees during the course of their employment. The three-fold functions of the State are :-

(a) (b) (c)

To protect the State from external aggression. To maintain law and order within the State ; and

To carry on other activities like trade, business, commercial undertakings and socialistic activities or welfare activities.

Out of these three functions, the Supreme Court has given its verdict on the last two kinds. Whether or not the functions relating to the defence of the State are sovereign Functions - this question has so far not been before the Supreme Court. However, the various High Courts in India had occasion to deal with this question time and again. Their unanimous opinion is that if such function, could be done by a private Person it is not a sovereign function. In the case of Union
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of India Vs Harbans Singh (AIR 1959 Pun, 39) it was observed by the Punjab High Court that native defence works are sovereign functions. Any act done during war time, during active training etc are held to be sovereign acts and in those cases the State is immune from being sued for the acts of its employees.

11. In view or the uncertainty generated by the conflicting decisions, the then President of India Dr Rajendra Prasad moved the Government to refer the matter to the Law Commission for consideration and report. The Law Commission of India submitted its first report on the liability of the State in tort to the Government. The Government in their turn introduced a bill in the Lok Sabha on 31 Aug 1965. (Bill No 54 of 1965). Than the bill was re-introduced in 1964 by the Joint Committee of the Parliament. However, the bill having bean lapsed, could not see the light of the day. Thus, the uncertainty in the sphere or tort remains unresolved. 12. The principles which emerge out of the study of the decisions of various Courts discussed above may be summarised as follows:(a) The Union of India and the States have the same liability for being sued in tort committed by their servants as was of that of the East India Company.

(b) (c)

The State is not liable for tort committed by its se rvants if the act was done in exercise of sovereign powers. The Union as well as the States are liable for damages for injuries caused by their employees if such injuries would render a private employer liable. (d) The State consists of three organs, namely, legislature, judiciary and the executive. The functions of the first two, i.e., the legislative business and the pronouncement of judgement are the sovereign power and for such functions the State has immunity. But every function of the executive is not a sovereign function. (e) The executive functions relating to trade, business and commercial undertaking and other welfare activities or socialistic activities do not come within the purview of delegated sovereign authority.

(f)

The sovereign functions of the executive include maintenance of the army, various departments of the Government, maintenance of law and order and proper administration of the country.

(g)

Such functions, in which private individuals can engage, are not sovereign functions. In determining whether the immunity extends to the State or not, the nature of the act the transaction in the course of which it was committed, the circumstances under which, it was committed and the nature of the employment, all are to be considered.

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Col M S Jaswal (Retd) is a former Infantry Officer who was later transferred to the Judge Advocate Generals department. Also an author, he has held many important legal and judicial appointments while in the Army and is currently practicing at the Punjab & Haryana High Court and the Armed Forces Tribunal at Chandigarh.

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Alarm Bells that fail to wake us up

Major Navdeep Singh

The officialdom is unfair and insensitive to disabled personnel

Why are you after disabled military personnel ? was the query of a Division Bench of the Honble Punjab & Haryana High Court in 2010 while dismissing a Letter Patents Appeal (LPA) filed by the Union of India against a Single Bench decision awarding disability pension to an old veteran. In reply, the Central Govt Counsel very fairly informed the Honble Court that though legal advice was tendered against filing of an appeal and the issue involved was a covered matter, the authorities still insisted on challenging the decision.

The topical remarks about the same time by the Supreme Court that defence personnel were being treated unfairly by the government hence did not come as a surprise to me at all. It is time to tame these legal pundits in Delhi who are acting like raging bulls and filing mindless appeals against verdicts rendered in pensionary matters in favour of disabled veterans. These scheming legal minds work in a simple and rudimentary fashion file appeals in almost all cases, take the cases to the Honble Supreme Court take a chance and in case of even one single verdict in favour of the govt, the same would be flaunted all over to introduce impediments in the system of grant of benefits to released and retired service-members. These old hands in the legal advisory system clearly know that poor veterans would not be able to (afford and) represent themselves properly before the Apex Court which situation in turn gives them a free hand to twist legal issues while articulating them before Courts sometimes resulting in decisions that can hardly be labelled well-rounded. Two examples that come to mind are Lt Col PK
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Kapurs case where the govt faultily, incorrectly and misleadingly informed the Apex Court that rounding-off/broad-banding of disability percentage for calculating disability element was introduced as a benefit to cater for decreased service tenure of invalided personnel and hence was not applicable to personnel who retired on completion of terms of engagement or superannuation. The retired officer concerned, who was arguing in person without proper legal assistance, could not rebut the contention leading to a verdict against him. Needless to say, broad-banding/rounding-off was actually introduced to counter medical subjectivity and mistakes & disagreements of medical boards and not to cater for shortened tenures on invalidation. In yet another case, the govt appealed to the Supreme Court against grant of disability pension for an injury sustained while on leave and contended that the verdict of the High Court was untenable since the person did not have the requisite length of service to earn a disability pension, again there was no proper assistance rendered to the Court and the decision of the High Court was reversed. But the decision of the High Court was reversed on the basis of a false statement again by the Union of India, since in reality, there is no minimum service requirement for earning a disability pension and disability pension in fact is even admissible to recruits under Regulation 181 of the Pension Regulations. Fortunately this false statement of the Union of India which was not rebutted by the poor veterans counsel (if there was any) is recorded in the order of the Apex Court and shall ultimately prove to be an albatross around the Unions legal neck, sooner or later, mark my words.

In cases involving disability pension, the central govt has been getting away by informing the Honble Apex Court that medical opinion regarding attributability/aggravation is supreme and that High Courts cannot brush aside medical opinion. There have been decisions by the Apex Court endorsing this view, but Honble High Courts and the Benches of the Armed Forces Tribunal have subtly distinguished such Apex Court decisions by ruling that in order to have primacy, the medical opinion must be within the four corners of the rules, and that perverse opinion in contravention of rules and regulations would have no value in the eyes of law. For the uninitiated, for a person to be entitled for disability pension, a disability needs to be declared as either attributable to, or aggravated by service. The Honble Apex Court has never been informed by the Union of India that attributability / aggravation is legally not to be determined by the Medical Board but by the Entitlement Rules (1982) and the same is clearly codified in Regulations 48 & 173 of the Pension Regulations which provide that attributability/aggravation shall be determined under the Entitlement Rules which form a part of the Pension Regulations under Appendix II. The medical board has to work within the rules and is not a body above law. Rule 5(b) of the said rules clearly provides that there would be a presumption of attributability in case the disease occurs in service and Rule 9 further provides that service-members shall receive the benefit of doubt and would not be called upon to prove entitlement. Rule 15 read with Annexure III of the
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rules lists out diseases which are usually affected by stress and strain of service, but still, military medical boards routinely declare even such scheduled diseases as constitutional or idiopathic and not connected with service. Now having said that, Rule 18 further points out that even if there is a constitutional disposition, still the disease can be attributable to service. Rule 19 clearly says that if any disease is at a worsened stage at the time of discharge, aggravation is to be accepted which in fact covers almost every single member of the military who is discharged as an LMC. Rule 20 (a) also points out that if nothing is known of a disease then attributability is to be conceded unless it is rebutted by evidence. The medical boards of the defence services are functioning without an iota of proper application of mind on the entitlement rules. Relationship of disabilities with service is not purely a medical dispensation but also involves interpretation and application of the Entitlement Rules. While military boards have been time and again rejecting diseases such as schizophrenia, psychosis and neurosis being constitutional in nature, the same diseases are routinely being correctly held as aggravated by service conditions by medical boards of the para-military forces (now known as the Central Armed Police Forces). Moreover, military medical boards and adjudicating authorities have been rejecting claims of psychiatric diseases or even heart diseases by stating that the onset was in peace area hence the disease is not connected with service. Even a child could tell that such diseases manifest over a long period of time and merely since these are discovered in a peace area would mean nothing. There are official letters written by the office of Director General Armed Forces Medical Services (DGAFMS) which, in utter contravention of rules, direct medical boards not to grant aggravation if the onset of disability is in peace areas, whereas the rules do not pose any such prohibition. Even otherwise, there may be instances wherein the stress and strain in a peace area may be much higher than in a particular field area, can there by a mathematical formula to determine attributability / aggravation as the office of DGAFMS would want us to believe? Research shows that post-traumatic stress disorders can arise even after a period of 5 five years or more (delayed onset) of the stressor / triggering event. Again, there is no such problem being faced by paramilitary personnel in medical boards convened by Home Ministry. Same diseases, similar service conditions but different opinion on attributability / aggravation? Does the medical science differ for the Central Police Organisations? One would rarely find an appeal before the Honble Supreme Court filed by the Ministry of Home Affairs against decisions of High Courts granting disability pension to paramilitary personnel, but the Ministry of Defence continues to ruthlessly do so with impunity and without sensitivity. The Honble Courts in the US have also since settled the law and held that medical opinion cannot be granted primacy if it is against legal principles or settled law. In Wagner Vs Principi (2004), the US Court of Appeal for the Federal Circuit clearly opined the following :

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When no pre-existing condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veterans disability was both pre-existing and not aggravated by service

The natural parallel of the above with the Entitlement Rules as applicable to the Indian defence services seems strangely surreal. It has been hence held both by Indian and American Courts that to rebut the presumption of attributability / aggravation, the medical board has to present proper evidence and reasons backed with credible medical and pathological basis concerning the aetiology of the disease. Merely stating that the disease is constitutional or not connected with service is not enough. In yet another landmark decision (Jones Vs Secretary), the US Court of Veterans Appeals has re-iterated that while dealing with service related disabilities medical evidence that is too speculative to establish nexus is also insufficient to establish a lack of nexus and that the absence of actual evidence is not substantive negative evidence. These decisions of the US Courts are in fact reflective of what the Honble Delhi High Court had held in cases such as SS Gautam Vs UOI and Naveen Chandra Vs UOI rendered by a Division Bench which had as its senior member Justice Swatantar Kumar, now a Judge of the Supreme Court. The decisions also seem to have found a sounding board in the order rendered by the Principal Bench of the AFT in Nakhat Bharti Vs UOI and the decisions of Chandigarh Bench of the AFT in a series of recent judgements. The Courts have time and again distinguished decisions of the Supreme Court in Damodaran and Balachandran Nair cases based on the doctrine of sub-silentio since it has been authoritatively held, as explained in the preceding paragraphs, that medical opinion shall only be binding if rendered as per rules. A decision of the Supreme Court on any issue is anyway not binding on other Courts if a particular argument has not been discussed or deliberated in the said judgement [Raipur Ruda Meha Vs State of Gujarat (AIR 1980 SC 1707)]. While dealing with disabilities of military personnel, the much argued comparison with an ordinary person on the street by medical authorities is also incomprehensible. There are times when it is remarked that such a disease may also have arisen had the particular person not been in the Army and that the Army is one of the most stress-free organisations in the country. The question arises that here is a person who is 24 hours / 365 days on call, sometimes under the shadow of gun, mostly away from his family, in a strictly regimented routine, can he or she be simplistically compared with say a civilian employee who goes to office at 9 in the morning returns at 5, only five days a week, lives with his family, in his hometown, enjoys his gazetted holidays, retires at 60?. It wont take an expert to reply in the negative. Wouldnt common ailments such as hypertension or IHD or minor psychiatric illnesses or psycho-somatic disorders get
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aggravated by even seemingly insignificant incidents at the home front such as nonperformance of children in school, property disputes, sarkari red-tapism in other spheres, family problems etc? The answer would be in the positive. To top this, the provisions of Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 are not applicable to the armed forces the direct implication of this is that if a civilian employee gets disabled whether on duty or off duty, whether due to service or otherwise, whether due to his own negligence or not, in whichever circumstance, his or her service is protected under the ibid Act and if the said employee is not able to work, still he or she is to be kept on supernumerary strength and paid all pay and allowances till the age of 60. While on the other hand, if similarly placed service-members get disabled, then what to talk of full pay and allowances or even pension, it is ensured by the system that most are discharged on medical grounds without even a disability pension. The very nonapplicability of Section 47 of the Act should have ideally resulted in liberalising the rules or liberalising the approach in determining attributability and aggravation but with the current mindset of internal and external bureaucracy, the same seems unlikely and the Honble judicial fora seem to be the only saving grace in this myriad imagery of officiallysponsored (paper) violence. The rules are being interpreted literally and not liberally, the letter is being followed by dumping the spirit. The concerned authorities defend their decisions of jumping on to the appeal bandwagon saying that the rule-position does not allow them to disburse such benefits, but instead of appealing, why dont we change these morbid, restrictive and otiose rules themselves? Rather than putting up a noting sheet recommending appeal by saying how a particular High Court or Tribunal has erred in interpreting law, why cant a noting sheet be moved to amend the particular rule which has given rise to a plethora of litigation? There are no winners in this vicious circle of obstinacies. It is common knowledge that sometimes even legal advice rendered by the office of Solicitor General asking the MoD not to file appeals has been brushed under the carpet by lower level officers of the Ministry. The Army HQ has in fact pointed out in certain specific instances that the govt is defending cases in Honble Courts despite fully being aware of the settled position of law in favour of disabled soldiers. In such actions, it is not just perversity but also sadism at play because anyone who opts to go in for his or her constitutional remedies by approaching Honble Courts is viewed as an enemy of the system . The buck stops there, at Delhi, at the offices of the Legal Advisor (Defence), the Director (Pensions) and to an extent the Director PS-4 (Legal). Mr Antony should instil a sense of judiciousness in these authorities. By filing frivolous and mindless appeals and by tacitly misleading Honble Courts, they are not showing any loyalty to the Indian State or the Auditors but on the contrary are displaying a sense of insensitivity and disregard to this great nation and its even greater protectors. The disparaging remark of
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the Honble Supreme Court about the unfair treatment meted out to defence personnel is landmark in the sense that it signifies that from now on frivolities may not be accepted. There is a requirement of a shriller alarm bell, I see it coming round the corner, but would we still wake up?

The above work authored by Major Navdeep Singh was www.indianmilitary.info and also in The Alpha Stories magazine.

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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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NOTES

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