More, Contd....

The blog-post on Fourth of April on mindless appeals being filed to counter the rightful claims of disabled veterans and the misleading nature of pleadings articulated by the govt before Courts evoked some strong (positive) reactions on the blog and elsewhere, and rightly so.

This makes me want to write something more on another disturbing trend in the legal arena.

There is an inherent trust between the Bench and the Bar in legal systems all over the world. Written and oral pleadings and statements by lawyers are usually taken on face value by the Courts and mostly such pleadings are in the correct spirit and rendered to assist the Court in arriving at justice. The overall force being that we as lawyers are not standing at the bar to ‘win’ or ‘lose’ a case, but as stated above, to assist the Court in arriving at justice. The problem however happens when the govt misleads its own counsel and does not even disclose the complete facts, policy and law even to the lawyer representing its (the Govt’s) case before a Court. And this is invariably done to have an upper hand, by hook or crook. I have given two glaring examples in my earlier blog, of cases wherein the Union of India before the Supreme Court clearly stated an incorrect position of fact and law which remained unrebutted from the other side ultimately leading to decisions which could have been different had the govt played it fair. Now comes another example where probably the Central Govt Counsel was made to state a patently untrue statement before the Tribunal by his client, the Union of India, in Karan Singh Vs Union of India decided on 28 March 2010 by the Jaipur Bench of the AFT, and thankfully it has yet again been fully recorded in the decision :

“…Learned counsel for the non-applicants (Respondents) pleaded that Army is a different set up and an individual is employed therein as a combatant, who is required to deal with the arms, weapons etc. and fight with the enemies as and when necessary or the occasion arises. He has submitted that Army is the only Department or Institution of the Govt of India where disability pension is provided to the Armed Personnel, if the disability suffered by him/them is attributable to military service. No other Department or the Institution of the Govt of India provides for grant of disability pension and so, it cannot be said that the Armed Personnel are thrown out of job, if they suffered disability.”

What a blatantly incorrect statement !. All provisions of disability pension are applicable to all civilian central govt employees under the Central Civil Services (Extra-ordinary Pension) Rules, popularly known as CCS (EOP) Rules in short. The provisions of disability pension contained in the ibid rules are para-materia to the provisions of the Pension Regulations of the defence services which deal with disability pension. Even State Govt services have a concept of disability pension which is sometimes called ‘wound pension’. In fact, the rules were so much skewed in favour of civil servants till recently that prior to 2006, the Cabinet Secretary if injured by tripping in his office was entitled to a maximum disability element of Rs 9,000 while his military counterpart, the Chief of the Army Staff, was entitled to a disability element of only Rs 2600 if he suffered the same amount of disability on account of a properly attributable disability in operational service conditions. A pre-2006 retired Cabinet Secretary is today entitled to a maximum disability element of Rs 27,000 while his military counterpart is entitled to a maximum of Rs 5,880. And here we have a statement that ‘the Army is the only organisation that pays disability pension to its employees’. In fact, civilians are paid full pay and allowances till the age of superannuation even in cases of ‘non-attributable and non-aggravated’ disabilities while the payment of a paltry disability pension is made out to be such a big deal by the govt by twisting facts and figures before Hon’ble Courts.

False statements are made by the Union of India by misleading their own counsel and then unethical appeals are filed if the case still goes against the Govt. The observations of the Hon’ble Supreme Court in Urban Improvement Trust Bikaner Vs Mohan Lal on 30 October 2009 were apt :

“It is a matter of concern that such frivolous and unjust litigation by governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers are brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected. This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice”

Even way back in 1973, the Hon’ble Supreme Court had this to say in Dilbagh Jarry Vs UOI while quoting the Kerala High Court :

“The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State’s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.”

That was 1973, this is 2010, but sadly, the story remains the same. Mr Moily, are you there ???