ADJUDICATION OF SERVICE DISPUTES RELATING TO DEFENCE IN INDIA

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• ADJUDICATION OF SERVICE DISPUTES RELATING TO
  DEFENCE IN INDIA

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• Presentation
• by
• Maj. Gen. Nilendra Kumar
• Director
• Amity Law School, Noida
• at
• IIPA, New Delhi
• on 6 September 2012

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• SERVICE DISPUTE
• The term service dispute has no
• statutory definition.

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• 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.

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• 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.

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CONTOURS

1. Nature of disputes
2. Causes of disputes
3. Number of disputes and size of problem
4. Framework and resources for settlement
5. Appraisal of the system
6. Recommendations

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CATEGORY OF DISPUTES

1. Individual or personal
2. Non military individuals V the State
3. Group (e.g. Major Dhanapalans 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

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• 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.

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NATURE OF DISPUTES COULD RELATE TO

1. Service conditions
2. Disciplinary awards
3. Procurement processes
4. Land matters
5. Human Rights violations

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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

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CAUSES

1. Old and antiquated laws
2. Nature of service where decisions often do not
   exhibit application of mind
3. Lack of flexibility amongst the decision matters
4. Frequent and arbitrary changes in policy
5. Lack of awareness of military ethos on the part
   of judges lawyers
6. Corruption

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NATURE OF SERVICE

1. Demand for implicit obedience
2. Liability to serve anywhere on land, sea and air
3. Pyramidical structure showing limited scope for
   career progression
4. Primacy to arms fliers
5. Early separation by way of retirement

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CPCSECTION 80

• Notice
• No suit shall be instituted against the
• Government or against a public officer in
• respect of any act purporting to be done by
• such public officer in his official capacity
  until
• the expiration of two months next after
• notice in writing has been delivered to or left
• at the office of a Secretary to that Government

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EXAMPLE OF OLD AND ANTIQUATED LAWS

1. Explosives Act, 1884
2. Indian Tolls (Army and Air Force) Act, 1901
3. Works of Defence Act, 1903
4. Explosive Substances Act, 1908
5. Official Secrets Act, 1923
6. Manoeuvres, Field Firing and Artillery Practice
   Act, 1938

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• These laws have not changed over the decades

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• 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.

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REGULATIONS FOR THE ARMY (DSR), 1987

• Silent on
• Right to Information
• Induction of Women Officers
• Information Technology
• Human Rights
• War against terror or AFSPA
• Tri Service Commands
• Environmental Protection

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• Thus the laws are not in tune with times,
• and may be said to be outdated

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

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• There have been prosecutions for staging
• fake encounters and attempts to procure
• gallantry awards undeservedly.

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• Allegations about misuse of secret
• funds of military intelligence.

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ERA OF SCAMS IN LAST TWO DECADES

1. Adarsh
2. Sukna land
3. Pune land matter involving the then Army
   Commander
4. Bungalow grab in Lucknow cantonment by an Army
   Commander
5. Tehelka
6. Procurement of rations (meat, dals eggs etc.)
   leading to conviction of a Lt. General

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• The list appears to be endless

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SCAMS GALORE

1. Divisional Commander in sexual harassment case
2. Procurement for peace keepers
3. Tent scam
4. Booz Brigadier
5. Ketchup Colonel
6. Sale of non service pattern of weapons
7. Sex for food
8. NDA job scam

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• Yet another matter that had continued to
• occupy centre space for months

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CHANGE IN DATE OF BIRTH CONTROVERSY

• 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

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• A clear example of unresolved dispute
• between MS Branch and AGs Branch on
• one hand and between Army HQ and MoD
• on the other.

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• Further, rank and file appear to have
• been left confused (and amazed)!

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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 JK and North East

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ADR MODES

1. Arbitration
2. Mediation
3. Reconciliation

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• Alternative Dispute Resolution (ADR)
• process ignored.

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• Government is the largest litigator

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• Thus every dispute finally ends into a
• litigation

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• Agreements and contracts are invariably
• one sided
• Reflective of rigidity and arbitrariness
• attitude of decision makers

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WEAKNESS IN STATE CASE

1. Contracts are not drafted with care
2. Abnormal delays in formulating and filing of
   responses
3. Change of officials and at times of arbitrators
4. Careless and indifferent defence of cases when
   matters reach courts of law

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EXISTING PRACTICE

• Responsibility
• Legal Cells - Set up at the seat of
• major High Courts or
  at the location of AFT
• benches
• 2. Station HQ
• 3. NCC Unit

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• RESOURCES
• IX Officer
• IX Clerk

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• REMARKS
• Legal Cell function mostly under the Static HQ
• Where higher field formations co-exist Legal
  Cells operate under static HQ e.g. at Allahabad
  or Secunderabad.

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

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• There is no authentic data about total
• number of pending cases relating to
• MOD

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DIFFERENT RESPONSIBILITIES OF BRANCHES

• GS - Training, Courses, AFSPA
• AG - Disciplinary cases, pay allowances
• MS - Officer cadre
• QMGs - Accommodation, ration, travel
• and canteens
• E in C - Rent allied charges
• Medical - Disability, medical boards
• ST - Supply contracts

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FORUMS WHERE LITIGATION TAKES PLACE

1. Courts Martial
2. Judiciary
3. Tribunals (AFT and CAT)
4. RTI
5. NHRC
6. Arbitrations

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• 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

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• No branch would have the data about
• total pendency of court cases

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• Applicable Constitutional and legal regime
• are designed to best protect military
• disputes settlement mechanism.

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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-
• the members of the Armed Forces or
• xxxx

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• (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.

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• Thus restrictions on fundamental rights
• constitutionally are permissible.

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RESTRICTIONS IN THE ROLE OF HIGHER JUDICIARY

• Article 136
• Special leave to appeal by the Supreme Court
• 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.

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• 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.

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• POWERS OF HIGH COURTS
• Article 227 (4)
• Power of Superintendence over all courts by
• the High Court
• Every High Court shall have superintendence over
  all courts and tribunals throughout the
  territories in relation to which it exercises
  jurisdiction.
• xx
• xx

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• (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.

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• PROVISIONS ON
• SECURITY OF TENURE
• OF
• MILITARY PERSONNEL

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• 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

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• A step to cut down Military cases being
• taken to High Courts

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• Setting up of Armed Forces Tribunal
• The Armed Forces Tribunal Act, 2007

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

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RESTRICTED JURISDICTION OF AFT

1. Transfer postings
2. Leave
3. Summary Courts Martial and Summary Trial

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• The appraisal so far is suggestive of
• negligible gains

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WHY AFT IS NOT ABLE TO FULLY MEET MILITARY
ASPIRATIONS

1. Lack of infrastructure
2. Shortages in members and staff
3. Want of authority to enforce (contempt powers)
4. Poor quality of judgments

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• Another major development

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• DELHI HIGH COURT
• Justice Pradeep Nandrajogs decision
• dated 26 April 2011
• in
• Colonel A.D. Nargolkars case
• Writ Petition No. 13367/2009

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• GIST OF ORDER
• AFT cannot be said to be truly a judicial review
  forum as a substitute to High Courts.
• The power of judicial review under Articles 226
  and 227 is unaffected by the constitution of AFT.
• Article 227 (4) takes away only the
  administrative supervisory jurisdiction of High
  Court over judicial supervisory jurisdiction over
  AFT.

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• 4. Decisions by the AFT would be amenable
• to judicial review by High Court under Articles
  226 as also under 227 of the Constitution.

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• MEDIA PERCEPTION
• Poor media image about credibility and
• effectiveness of in-house tribunals and forums
• of the military

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• Absence of a single agency with requisite
• reference resources, library, seniority and
• Accountability is a critical deficiency.

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COMPARTMENTALISATION OF JAG RESOURCES BY HAVING
SEPARATE OFFICES

1. Judge Advocate Generals Department
2. Military Secretary Legal
3. Disciplinary and Vigilance

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• DEFENCE OF COURT CASES
• APPLICABLE POLICY
• SPECIAL ARMY ORDER
• 5/S/2003/JAG

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• 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.

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• No efforts made to re-visit the applicable
• policy after 2003.

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• Lack of familiarity of Legal Advisor (Defence)
• about military matters

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RECOMMENDATIONS

1. Defence of court cases should be a command
   function rather than a duty for the staff
2. Thorough overhaul of laws
3. Framing of a Uniform Code of Military Justice to
   achieve uniformity of Rules
4. Integration of JAG Resources of three services
   for better management of litigation
5. Augmentation of JAG Department to create better
   manpower to deal with court cases
6. Creation of a separate pool of lawyers for
   military

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• As a matter of policy all laws, Acts, rules,
• regulations, instructions and orders
• should be brought for review at regular
• Intervals.

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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.

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• Any Questions