Update on the issue of illegal withdrawal of Toll Tax Exemption from serving defence personnel

Just to update all of you, in continuance of my detailed letter to Mr Nitin Gadkari, I have received a communication from the Ministry of Road Transport & Highways inter alia conveying therein that they are open to re-examining the issue of the (illegal) withdrawal of toll tax exemption to serving defence personnel and that they have sought comments of the Ministry of Defence/Army HQ on the same. Further action shall follow once the comments are received.

I have already requested the Services HQ to fast-track the matter and ensure that the impugned illegal letter is withdrawn at the earliest.

I hope and wish that due seriousness is shown on the subject by the Services. I have already expressed my sentiments on the duty of the Services HQ of standing behind their men and women in uniform on such issues.

Will keep readers updated on the subject.

A few developments and then some....

I just thought of updating readers on a few issues.

The current Raksha Mantri has admirably made a statement of ‘not pursuing’ approximately four to five thousand appeals filed by the Ministry of Defence against disabled soldiers. Though the Ministry had no other choice in wake of the decision of the Supreme Court dismissing more than 800 such appeals on 10 December 2014, the move is still welcome and reflects a change for the better in the way political leadership perceives such issues. It remains to be seen however as to how the ensconced mandarins in the Department of Ex-Servicemen Welfare (DESW) of the Ministry and the Personnel Services Directorate (PS Directorate) of the Army HQ would be tamed. With a sensitive political leadership and a proactive Adjutant General currently in chair, things appear positive.

Mr Derek O’Brien and Ms Smriti Z Irani were two MPs who had shown concern in the Parliament about disabled soldiers and the litigation unleashed on them by the Ministry of Defence and also about the injustice to them even by military medical boards. Mr O’Brien has penned a short opinion on the subject in which he has graciously mentioned Ms Irani too- readers may like to peruse it by clicking here.

Lot of noise has been made with many veterans writing letters to the current Raksha Mantri condemning his move and thought-process of basing OROP on the number of years spent in the retiring rank. This assumption and perception is incorrect and imaginary. As far as I know, there is NO MOVE of calculating OROP based on the length of service in the last rank. What the Minister, and later Col Rathore, were trying to convey was that personnel retiring with similar service in the same rank were today superannuating at varied stages of pay (and hence pension) and efforts were on to harmonize the situation and arrive at a figure of OROP for each rank. Yes, there are elements in the bureaucracy who would not like to see the actual definition of OROP through, but I am sure they are not having such a free run in the current dispensation. The proof of the pudding however, of course, is in the eating. 

OROP, Col Rathore’s op-ed and needless hairsplitting

While I agree with most of the points raised by veteran organisations on One Rank One Pension (OROP) and I also agree that it has been unduly delayed because of exaggerated figures and overstated fears propelled by the Defence Accounts Department, I fail to understand why Col Rajyavardhan Rathore’s recent write-up has been perceived by some as a dampener.

It was not. And actually it was reassuring.

While writing the op-ed, perhaps what he wanted to convey was the predicament that the political set-up was facing at arriving at exact figures constituting OROP for each rank. When he said that people spending different lengths of time in each rank were not getting equal pensions because of varied salaries at the time of retirement, he was not attempting to dilute the concept of OROP but only stating a fact which we need to address. For example, today, two officers of the same rank commissioned and superannuating on the same date may not be retiring with the same last drawn pay and hence not receiving exactly the same pension, and then which of the two figures would constitute OROP for past retirees is perhaps the very real question that is engaging the political executive. But this poser was also qualified by the Colonel by stating that they were committed to harmonize this situation without ‘penalizing’ anyone. This itself should be comforting that a solution is being searched for this issue and not the perpetuation of the problem. Take it on a scale of positivity and not with a pinch of salt.

The answer perhaps would be to find an agreeable figure of pension for retirees of each rank by keeping 2014 as the base year of retirement- upgrade those who are below that figure and protect those who are above that figure and then pass the said benefit to all pre-2014 retirees with a yearly review with all past retirees retiring in similar rank receiving the pension of current retirees of the same rank with same length of service. However all of this has to be done within the four corners of definition mentioned in the Parliament, without dilution.

Whatever be the outcome, whatever be the ultimate solution, in a democracy we would be free to disagree or agree with what is proposed or implemented, but my idea of putting these few words above is that I did not see anything negative or objectionable in Col Rathore’s oped, in fact, I found it desirable in light of the undue delay. I also do not blame veteran organisations in being skeptical since their cynicism is not without reason. I just request that we should not get into a hairsplitting exercise or search for negativity even where it does not live. 

To wake us up, pearls of wisdom from our Constitutional Courts over the ages- for our military personnel, veterans and their families

Despite the pitfalls, we should be grateful for living in a democracy and a vibrant one at that. I have often said so on this blog and elsewhere that more than any other institution, it is our Constitutional Courts that have stood like a rock behind the rights of our men and women in uniform and military veterans.

For the benefit of readers, I just thought of compiling some pearls of wisdom from our Constitutional Courts- speaking for those who do not have a voice. My only request to you is, read this slowly, and carefully. And imbibe positivity in your daily dealings with your own.

Of course, the system is still sleeping.

The Supreme Court in Union of India Vs Capt CS Sidhu (2010):

....Before parting with this case, we regret to say that the army officers and army men in our country are being treated in a shabby manner by the government...The army personnel are bravely defending the country even at the cost of their lives and we feel that they should be treated in a better and more humane manner by the governmental authorities, particularly, in respect of their emoluments, pension and other benefits....

The Supreme Court in Sukhwinder Singh Vs Union of India (2014):

....We, just as every other citizen of India, would be extremely disturbed if the Authorities are perceived as being impervious or unsympathetic towards members of the Armed Forces who have suffered disabilities, without receiving any form of recompense or source of sustenance, since these are inextricably germane to their source of livelihood.

....Secondly, the morale of the Armed Forces requires absolute and undiluted protection and if an injury leads to loss of service without any recompense, this morale would be severely undermined...

The Supreme Court in Charanjit Kaur Vs Union of India (1994):

....This case is a glaring example of gross negligence and callousness on the part of the authorities and the consequent indescribable mental torment and physical and financial hardship caused to the widow and two minor children of an Army Officer. The apathy and the extremely casual attitude adopted by the officers concerned travelled even to the proceedings in this Court and are writ large on the affidavit-in-reply which they have filed in response to the petition...

The Punjab & Haryana High Court in Barkat Masih Vs Union of India (2014) while dealing with the stand of the Government denying disability benefits to soldiers suffering injuries while on authorized leave:

....We find that grant of such leave has dual purpose. Firstly, to give time to the personnel of the Armed Forces to attend to their domestic chores which in their absence while on active service, family members may not be in position to handle. The second is that after arduous nature of duties, some time is required to rejuvenate the Armed Forces Personnel while they are in touch with the civil society. It prepares them for further active duty. In the absence of leave which is necessary for maintaining mental equilibrium, the grant of leave is necessary for discharge of their duties in an efficient manner. With these dual objectives in mind, leave is granted to all Armed Forces Personnel be it the officers or the other ranks. The grant of leave is a necessity to keep the personnel of the Armed Forces in good mental shape. The personnel of the Armed Forces are entitled to periodical breaks to provide mental stimulus, and psychological upliftment. Therefore, without grant of leave, one cannot imagine that somebody can discharge duties continuously 24 x 7 x 365 days of a year. In fact the leave is basic human right even recognized by the United Nations “Universal Declaration of Human Rights 1948” to which India is signatory. Article 24 of such declaration is that “Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay”. In CESC Ltd. vs Subhash Chandra Bose (1992) 1 SCC 441, the Supreme Court examined international covenants and held that the health and strength of a worker is an integral facet of right to life. Though the said case pertains to workers in an industrial establishment and that the applicability of the fundamental rights to the Armed Forces can be restricted in terms of Article 33 of the Constitution but we find that the personnel of the Armed Forces are entitled to rest and leisure as a basic human right....

....It is also not disputed that during leave, the personnel of Armed Forces are liable to maintain discipline and are governed by the provisions of the Army Act, 1950 or the Rules framed there under and in a case of any misconduct, liable to be proceeded against. If the personnel of the Armed Forces are entitled to discipline and control of the Army Act 1950, the corresponding duty of the Armed Forces is to take care of their personnel when on leave. It is necessary commitment of the Army....

The Delhi High Court in Maj Arvind Kumar Suhag Vs Union of India (2013):

....It seems that the military bureaucracy in this case or someone within it felt that since injuries were described more specifically as “accidents” while travelling on duty in government vehicles” – in category (C) of the letter/policy dated 31.01.2011, the petitioner was disentitled to war injury pension. The Tribunal’s bland acceptance of these decisions has regrettably resulted in denial of justice to the petitioner. This Court is, therefore, of the opinion that the impugned order of the Tribunal cannot be sustained. The petitioner’s claim for grant of war injury pension in terms of Clause 4.1(E)(i) has to succeed….

....In parting, this Court cannot resist observing that when individuals place their lives on peril in the line of duty, the sacrifices that they are called upon to make cannot ever be lost sight of through a process of abstract rationalisation as appears to have prevailed with the respondents and with the Tribunal….

....He, like any other personnel, operated under extremely trying circumstances unimaginable to those not acquainted with such situations. The cavalier manner in which his claim for war injury pension was rejected by the respondents, who failed to give any explanation except adopt a textual interpretation of Clauses (C) and (E), is deplorable. In these circumstances, the petitioner deserves to succeed….

The Punjab & Haryana High Court in Maj Arvind Kumar Suhag Vs State of Haryana (2010):

.…Ex-gratia payment is not always, paradoxically, an act of charity....The act of heroism which the statement claims that the petitioner's act did not evoke, is in some sense a wrongly exaggerated expression. I do not see from the terms of the policy that the person must have been there actually placing his fingers on the trigger of a gun or hurling a bomb in military action to be entitled to the promised payment. A person, who is in the place of action in the Army and who suffers an injury in the manner contemplated in the policy, which includes an accident in an operational area that is not due to negligence of the person, could well make a successful claim....

....If we must give the expression battle casualty any meaning, I would understand it to mean to a situation where a person while actively involved in the military service in an area, which is a battle zone suffers an injury, then it shall be a battle casualty....

....If there is, therefore, a certificate that the petitioner has suffered a battle casualty (see para 1 above), to take a different view and stonewall the claim of the petitioner from obtaining a benefit of the policy will make meaningless the beneficient and lofty objective which the policy proffers....

The Punjab & Haryana High Court in Daljeet Kaur Vs Union of India (2004):

....Love of a mother for her children has, since time immemorial, been placed at the highest pedestal. When a mother loses a hale and hearty child in some unfortunate accident, she suffers a tragedy which is personal to her and is of such magnitude that it defies description in mere words. The love of the mother is akin to the love of the earth for its inhabitants. It is perhaps this boundless love which prompts and compels the entire mankind to revere this planet as the "MOTHER-EARTH". It is well known that the mother-earth keeps replenishing its natural resources to support the humanity, inspite of the mindless plunder committed upon it by us. We are of the opinion that keeping such like sentiments in view, the Union of India has been promulgating various schemes to give special benefits in cases of death and disability in service benefits in cases of death and disability in service including the payment of ex-gratia lump sum compensation….

....Alas even these provisions will, at best, go only a little way towards assuaging the feeling of utter devastation of the mother who loses a son, whilst performing his patriotic duties for the protection of the Nation. Can the benefits sought to be given to the unfortunate legal heir of a deceased military personnel whose case falls clearly within these instructions, be permitted to be negated by a bureaucratic army officer sitting in his Ivory Tower by sheer mis-interpretation of the instructions, is the significant question of law which arises in this petition. We are constrained to give a preface to this judgment with the aforesaid remarks, due to the peculiar facts and circumstances of this case, which we now notice….

Other democracies:

Even the Supreme Court of the United States in Henderson Vs Shinseki (2010) has commented that the Government should act in a non-adversarial manner in benefits of veterans:

....The solicitude of Congress for veterans is of longstanding.... laws place a thumb on the scale in the veteran’s favour in the course of administrative and judicial review of VA decisions... We have long applied the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor....

In Holton Vs Shinseki (2009), the US Court for Federal Circuit held:

....A veteran “need not show that his injury occurred while he was performing service related duties or acting within the course and scope of his employment in order to receive disability benefits; for purposes of disability compensation, a service member’s workday never ends....

In 2015, let us confer a solid salute again to our Constitutional Courts.

Jai Hind.