Navdeep
Singh
This
might be the oddest and the longest opinion piece I have penned, and therefore
it is in two parts, albeit being published simultaneously. And again, like many
times before, I must forewarn, this is written to encourage discussion and
introspection, not to cause commotion, disparage any entity or provide leverage
to pessimistic sentiment.
In
the late 1990s/early 2000s, as per the then existing roster of the Punjab &
Haryana High Court, litigation related to service matters of Union of India was
being allotted to Justice RL Anand, a
strong but humane and sensitive Judge. While hearing a matter of an old
military widow, an observation he made in open Court, not in jest, but in all
seriousness, got stuck in my mind. He said, that if a litigant files a writ
petition stating therein that the sun rises in the east, the Ministry of
Defence (MoD) and the Army would surely file a written statement opposing the
plea and saying that it rises in the west. The Judge was of course referring to
the blind opposition put forth by the defence establishment in all cases with
the singular aim of defeating the other side, sometimes fairly, and at other
times by attempting to play smart. Of
course, during those days litigation used to end at the High Court,
about a decade later things came to such a pass that the MoD, in its avatar of
an insensitive raging bull, ensured by 2014 that more than 90% of its
litigation in the highest Court of the land comprised appeals filed against
disability benefits to its own maimed and disabled soldiers, at times involving
amounts as little as a few hundred rupees, in matters already well settled by
law.
While
the Army commands utmost respect in our society, and deservedly so, and rightly
remains one of the most venerable institutions in all facets, the track record
of the MoD in litigation shows utter lack of grace and total absence of moral
courage in admitting a fault. The objective solely remains to prove a litigant
wrong and wear him or her out by contesting each and every claim, even if
covered by existing decisions of Constitutional Courts or by the Government’s
own policy, and at times also to subtly inject wrong information in Court
proceedings or attempt to colour or influence the proceedings with one-way
information by keeping it hidden from the litigant. Litigation is treated
highly adversarial as if it is some kind of war being raged against petty
employees which has to be won at any cost! Most of the pleas are opposed out of
ego and most of the appeals are filed out of prestige. So much so, that this hook or crook attitude to ‘win’ cases
has, in the past decade or so, assumed alarming proportions, with patently
false information being projected right till the Supreme Court.
The
dogged persistence to resist judicial dicta was again visible earlier this week
in Lt
Gen Manomoy Ganguly Vs Union of India [Writ Petition (Civil) 980/2018
decided on 29-10-2018] wherein the officer, of the rank of Lieutenant General,
was made to undergo four to five rounds of litigation to get what he could have
been granted in the first go. It is now that the Supreme Court has put an end
to his agony.
Some recorded instances of
unethical stands in Courts
Even
off hand, many cases come to mind where incorrect submissions are, thankfully,
recorded in the judgments, for posterity, though this is only a minuscule part
of the malaise.
In PK
Kapur Vs Union of India (Civil Appeal 4356/2006 decided on 01-02-2007),
where the litigant was appearing in person for extension of certain pensionary
benefits as provided to post-1996 retirees to pre-1996 retirees also, the
Ministry of Defence put across the plea of an Office Memorandum (OM) issued on 3rd
February 2000 which restricted the benefits only to post-1996 retirees.
However, the MoD deliberately did not inform the Court that the Department of
Pensions & Pensioners’ Welfare had already extended the benefit of the post-1996
OM dated 3rd February 2000 to pre-1996 retirees vide a fresh OM
issued on 9th Sept 2001. The litigant lost his case and it was only
years later in KJS Buttar vs Union of India (Civil Appeal 5591/2006 decided on
31-03-2011) that the correct law was affirmed by the Supreme Court. The MoD
however still chose to carry on appealing in cases which were disposed by
various Courts and Tribunals citing the decision in KJS Buttar’s case and ultimately it was a Three Judge Bench in Union
of India Vs Ram Avtar (Civil Appeal 418/2012 decided on 10-12-2014) which
settled the law. It is yet another sad story that the MoD has again filed a
similar appeal in the already well settled subject as recently as in July 2018.
In Secretary
MoD Vs Ajeet Singh Vs Union of India (Civil Appeal 16/2003 decided on
06-05-2009) the MoD informed the Supreme Court, which is again recorded in the
order, that a minimum of ten years of service is required to earn a disability
pension, while the truth is that there is no minimum qualifying service
required for the said pension and a disabled soldier with even a single day of
service is entitled to the same.
In Bhola
Singh Vs Union of India (Civil Appeal 4486/2002 decided on 10-10-2010),
the MoD informed the Supreme Court that there is a requirement of minimum 15
years of service to earn the “Service Element” of Disability Pension. While
doing so, it projected outdated Regulations before the Court and also wrongly
cited the regulation for “Service Pension” rather than “Service Element of
Disability Pension” while in reality the minimum service requirement for
Service Element stood abrogated from 1st January 1973. The same
trick by citing Bhola Singh’s
decision was sought to be applied in another bunch matter being heard by the
same presiding Judge in Union of India Vs Sinchetty Satyanarayan
(Special Leave Petition 20868/2009 decided on 23-02-2012) but since this time there
were multiple lawyers available to rebut the untruth, the MoD quietly withdrew
its appeals and conceded the matter when caught on the wrong foot in the
Supreme Court.
In Union
of India Vs Karan Singh (Special Leave Petition 37928/2012 decided on
10-02-2014), the MoD filed an appeal in a particular matter of a disabled
soldier when the Defence Minister had already directed the withdrawal of such
appeals through an explicit instruction. When this was pointed out in the Court
by the counsel for the disabled soldier, the appeal was quietly withdrawn by
the MoD.
In Air
Vice Marshal Harish Masand Vs Union of India [119 (2005) DLT 152 decided
on 08-11-2004] wherein the Delhi High Court was dealing with the promotion of
senior officers of the Air Force, there was a crude attempt to mislead and
misguide the judicial process by filing false affidavits. The Delhi High Court
thus observed:
“If one carefully goes through the note,
the least we can observe is that at such highest level instead of placing the
truth, ways and means were devised by XXXXX and others who were present in the
meeting to conceal the truth. If this could happen at that level, how the rule
of law and faith of the Court in the affidavits filed by the Government would
survive. We are shocked that ways and means were devised by an officer of the
rank of Air Marshal to hide from the Court what was against the Air
Headquarters. It was a fit case where we would have ordered appropriate actions
to be taken against XXXXX, however, we were told that he has retired in
September this year. Therefore, we do not contemplate any action”.
Further observing the machinations, the Court recorded:
“What affidavit to be filed in the High Court in
the present case, how Court should be misled, how truth should not come before
the Court, ingenuity on the part of Air Headquarters to deny justice to the
petitioner would not have been unrevealed but for a note recorded by XXXXX,
Joint Secretary, Ministry of Defence”.
Of course, such attempts have since been made
multiple times, especially in cases involving promotions of officers, and have
not been appreciated by Courts and tribunals.
In Amar
Chand Suhag Vs Union of India (Civil Writ Petition 5041/2004 decided on
11-08-2006), the MoD again projected an outdated regulation to deny benefits to
a disabled soldier. When the Court was apprised of the reality, the MoD was
fined by the Punjab & Haryana High Court which also recorded the following
in the order-
“But we are constrained to observe that the
respondents while reproducing the relevant legal provision pertaining to the
assessment of disability pension have concealed the Regulations”.
Needless to state,
the concealment in this case was not by the MoD per se but by the Regimental Records Office of the Army.
In
yet another shocking case of Lt Col RK Rai Vs Union of India
(Civil Appeal 3101/2015 decided on 16-02-2018), the MoD chose to contest a case
against grant of disability benefits to a disabled officer who had sought
premature retirement from the Army despite the fact that the Govt itself had
issued a letter on 19-05-2017 authorising disability pension to such voluntary retirees.
Though the said letter is fully discussed in the final order of the Court, it
is beyond comprehension why the same was contested and not conceded at the
outset or even declared infructuous when it was now fully covered by Government’s
own policy.
In Union
of India Vs Balbir Singh (Civil Appeal D 4893/2018 decided on
09-03-2018), the MoD appealed in matters concerning soldiers of the lower ranks
which had already been decided by the Supreme Court and the High Courts. The Supreme
Court imposed costs of Rs One Lac and observed-
“This appeal was filed well after several similar matters were dismissed
by this Court. We cannot appreciate the conduct of the Union of India in this regard
of filing civil appeals/special leave petitions after the issue has been
concluded by this Court. This is unnecessarily adding to the burden of the
Justice Delivery Systems for which the Union of India must take full
responsibility.”
Yet
again, recently, in Union of India Vs Prithvi Singh (Civil Appeal D 8754/2018
decided on 25-04-2018), the Supreme Court imposed a fine of Rupees One Lac on
the Union of India for repeatedly filing appeals in matters finally settled by
the High Court and affirmed thereafter by the Supreme Court. The Apex Court
observed-
“The
couldn’t-care-less and insouciant attitude of the Union of India with regard to
litigation, particularly in the Supreme Court, has gone a little too far as
this case illustrates....The Union of India must appreciate that by pursuing
frivolous or infructuous cases, it is adding to the burden of this Court and
collaterally harming other litigants by delaying hearing of their cases through
the sheer volume of numbers. If the Union of India cares little for the justice
delivery system, it should at least display some concern for litigants, many of
whom have to spend a small fortune in litigating in the Supreme Court...To make
matters worse, in this appeal, the Union of India has engaged 10 lawyers,
including an Additional Solicitor General and a Senior Advocate! This is as per
the appearance slip submitted to the Registry of this Court. In other words,
the Union of India has created a huge financial liability by engaging so many
lawyers for an appeal whose fate can be easily imagined on the basis of
existing orders of dismissal in similar cases. Yet the Union of India is
increasing its liability and asking the taxpayers to bear an avoidable
financial burden for the misadventure...To say the least, this is an extremely
unfortunate situation of unnecessary and avoidable burdening of this Court
through frivolous litigation which calls for yet another reminder through the
imposition of costs on the Union of India while dismissing this appeal. We hope
that someday some sense, if not better sense, will prevail on the Union of
India with regard to the formulation of a realistic and meaningful National
Litigation Policy and what it calls ‘ease of doing business’, which can, if
faithfully implemented benefit litigants across the country.”
Attitudinal Problem, putting
pressure on officers dealing with litigation and getting personally involved
with cases
In a
Committee of Experts constituted by the Raksha Mantri in 2015 on sentiment
expressed by none less than the Prime Minister to reduce litigation, especially
appeals filed by the Government, of which even this author was a member, we
were perplexed when many officers came to us with presentations portraying the methods
of filing ‘faster appeals’ rather than methods to reduce appeals. Of course,
this militated against the very reason why the Committee was constituted. We
had to repeatedly question and counsel many officers, while recording in so
many words, that litigation was not a war or a sport that they had to score a ‘win’.
We also had to regrettably record in the Report as to how contemptuous language
was used against the judiciary by certain elements and how suggestions were
made to overreach Courts. All this reflects a strange kind of arrogance which
is unacceptable in a democracy. Shockingly, proposals were made before the
Committee that members of the judiciary dealing with matters of the Armed
Forces should be ‘sensitised’ and there should be a consultative mechanism
between the executive authorities and Members of the judiciary. Such statements
clearly point out to the lack of basic understanding of the concept of
separation of powers and that persons in key appointments feel that judiciary
functions like some sarkari office
where things are done by hobnobbing, interaction, liaison and overreach. It is
not even understood by the system, it seems, that within a courtroom, both
parties are to present their cases and the bench is supposed to render decision
as per law.
As
stated in the beginning, it is also very frightening to see the total lack of
grace in accepting a wrong in Courts. While officers of many departments
including the Ministry of Home Affairs in parallel litigation, have no qualms
in conceding when a particular case is covered by existing case law or even
admitting any wrong committed, this trait is rarely seen in the case of MoD or
the defence services though lot is said about the virtue of ‘moral courage’ in
the military milieu. So much so that even senior officers get personally involved
in innocuous litigation putting pressure on young officers, including those of
the Judge Advocate General’s Branch (JAG) with phone calls, signals and what
not! Undue pressure is exerted to ‘win cases’ and officers are questioned when
a case is ‘lost’, not realising that in every litigation, one party has to win
and the other has to lose and this is an everyday affair in Courts all over the
nation.
This
undue pressure also encourages young officers dealing with litigation to show
over-enthusiasm and at times, over-smartness, which might help in the short run
but not in the longer race. Does it behove senior appointments in the military
set-up getting intimately intertwined with proceedings of matters on
promotions, pensions, minor disciplinary issues, welfare polices etc? Is that
the official mandate? Should that be the focus? Aren’t there other real
‘military’ issues to look after? No real battles to fight? While legal officers
of other departments including the uniformed services of the Home Ministry act
in an autonomous manner in their functioning with full authority to take a
stand or decision on behalf of the system, the representatives of the military,
on the other hand, are always terrified of their chain of command. The Government and its entities are supposed
to be faceless organisations and there is no reason to get personally involved
or individually entangled in cases out of administrative egotism. This fleeting
happiness of winning a point by over-smartness such as maintaining ‘shadow
files’ or ante-dating documents, creating documents or asking counsel to change
legal opinions also might earn one some brownie points and impress certain
bosses but the damage caused by these stunts to the institution, its reputation
and the morale of soldiers, veterans and military widows is permanent and
irreparable. You never know when the shoe shifts to the other foot!
In
fact, the attitude of the system in decrying litigants and using accusatory
language was very nicely preserved by the Delhi High Court in one of the cases,
wherein it observed:
“...It is also necessary to record here, with
some regret, that the pleadings of the Army, in this case, were combative and
adversarial. References to the petitioner and XXXXX more often than not had an
accusatory note. At no point of time does the Army appear to have thought it
appropriate, as an institution, to extend sympathy...Would it then have
mattered if the Army had officially said "Sorry". It is time for all
of everyone to move forward- beyond egos, beyond perceptions of
"propriety" (whatever that means in such cases) and as institutions,
to reach out to those with hurt feelings. Doing that shows humaneness and
courage; stony silence is not machismo. It is hoped that this is a wake-up call
for the Army to take remedial measures in such cases...”
Trying to override judiciousness
by creating an unreal noise in the name of ‘national security’
A strange kind of behaviour
in litigation is also displayed in routine matters such as promotions when
officers representing the establishment try to overawe the Court and the litigant
by behaving as if they are dealing with nuclear secrets of the State. This
attitude, which was never found acceptable in the High Courts, has increased
after the inception of the Armed Forces Tribunal (AFT). Officers in uniform,
representing the establishment, try to pass on papers in ‘sealed covers’ to the
bench to provide a one-sided story to any litigation. Sadly, while the High
Courts tend to rebuke such behaviour, this practice has become routine in some
of the benches of the Armed Forces Tribunal. In fact, the aim of this practice
is very simple, that is, to steal a march over the litigant by overplaying
certain documents while underplaying others, since the litigant then has no possible
way to rebut what has been placed before a bench. There have been moments
wherein in the open Courtroom, officers in uniform have walked up to the bench
literally to show documents at the back of the litigant. What image or
perception would this project to the litigant or others present in the Court?
In the judicial system of a democracy, the petitioner is the dominus litis, but it seems it’s the
other way round in military litigation.
What is brazenly incorrect
in encouragement of this system also is that while transparency laws are now
all encompassing with even cabinet notes open to public scrutiny, here it is
attempted to convey to the judicial system as if heavens would fall if a
particular case is decided in favour of a particular individual. Noting this
behaviour, the Chandigarh Bench of the AFT in Brig Dinkar Adeeb Vs Union of
India (OA 2948/2013 decided on 30-08-2013, later upheld by the Supreme
Court) had deprecated the conduct of the Military Secretary’s branch in trying
to pass on a file to the bench without showing the same to the Petitioner after
the case had been argued, and it was stated by the bench that “no such attempt
should have been made”. It is not understood as to how can administrative or
promotion matters be shrouded in secrecy? At best, the names of other officers
in such proceedings can be blurred or blocked and the rest of the papers can be
placed on record.
Courts usually only accept
documents in sealed cover wherein the security of the nation is involved or if
it’s a case with ramifications on relations with foreign powers or an issue
involving fiduciary relationship such as contracts etc. This attitude also recently
found disfavour with the Supreme Court in Hav Sham Dass D Vs Union of India
(Criminal Appeal D 14045/2018 decided on 12-07-2018) wherein the soldier’s
services were terminated however he was not allowed to peruse the documents
related to his termination on the pretext of ‘national security’. This is what
the Supreme Court observed on the matter:
“We
may only clarify that every single relevant document pertaining to the
appellant’s termination will be allowed to be inspected as per the Rule. We
make it clear that no document shall be
allowed to be denied to the appellant on the so-called ground of national security.”
Strangely
despite multiple decisions by the Central Information Commission and the High
Courts, the ‘opinion and findings’ rendered against delinquent employees are
not passed on them in the name of confidentiality. Meaning thereby, the
employee must not know what has been found against him/her and on what basis
thereby leaving the employee defenceless and groping in the dark.
Interestingly, basing disciplinary action on such a faux cloak of secrecy was
shattered by the Supreme Court last week in Union of India Vs Col AD
Nargolkar (Civil Appeal 10686/2018 decided on 24-10-2018) wherein the
Supreme Court noted-
“To top it all,
while giving the aforesaid findings, Court of Inquiry (COI) has referred to the
'discreet inquiry' which had found the allegations to be correct. At the same
time, this discreet inquiry was not proved before the COI. We fail to
understand as to how it could become the basis of findings of the COI when no
opportunity was given to the Officer to meet the same.”
Clearly from the
looks of what has been in vogue, Courts should be extremely slow in taking the
word of certain instrumentalities of the State on face value. It must however
be emphatically stated that it is not the Counsel representing the Union who
might be at fault, since the lawyers too, mostly, are kept in dark of the
reality of it all. In my personal opinion, such transgressions should not be
let off lightly by Courts and tribunals merely because the other side presents
itself to be hallowed since it deals with national security. Absolutely not.
Organisations dealing with the defence of the nation must be held to even
greater probity and judiciousness since injustice itself is the anti-thesis of
discipline. No entity must be allowed to get away with the thought that certain
organisations hold a right to some special privilege, much less the privilege
to misguide.
Incorrect litigation data to
Ministry of Law and Justice
Interestingly,
the jugglery is not restricted to own rank and file, elements of the MoD even
have the propensity to confuse their own political bosses and also other
ministries. In data provided to the Law Ministry, the MoD reported pendency of
only 3433 cases relating to the said ministry, the MoD also reported zero
contempt matters. The Data is still available on the official Law Ministry
website, See
Slide No 6. The truth however is that more than 15000 cases were pending
in the AFT alone which can
be seen on Page 21 of a Parliamentary Committee Report. Moreover,
as on 01-07-2015, about 4390 applications for contempt or execution of orders
were pending in the Chandigarh Bench of the AFT alone and the number of
contempt or execution applications in other benches, the High Courts and the
Supreme Court would be in addition. The data of pendency in the Armed Forces
Tribunal in July 2018 was about 17000. Hence, if even the Ministry of Law &
Justice can be at the receiving end of manipulation by some mandarins of MoD,
what can a common litigant expect? While the Ministry of Law & Justice
lists the MoD as the fifth highest litigant based upon the imperfect data
provided by it, the fact remains that in service matters, it is in reality the
highest litigant since Ministries of Finance and Railways are burdened by tax
related litigation/appeals and accident claims respectively over which they
have no control. Moreover, while the MoD is known to file appeals in the Supreme
Court in matters involving even a few thousand of rupees (if not hundreds), the
Ministry of Finance admirably does not appeal unless the matter is worth Rupees
One Crore.
While
the Supreme Court has called for the government and its instrumentalities
always to be responsible litigants, and there is change in the last decade or
so as far as many central government departments are concerned, the same has
had no effect on military litigation. The attitude is a reminder of the
following words on litigation induced by government agencies by the Supreme
Court in Urban Improvement Trust, Bikaner Vs Mohan Lal (2010) 1 SCC 512:
“4...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 is 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.
5. 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....
6. Unwarranted litigation by
governments and statutory authorities basically stem from the two general
baseless assumptions by their officers. They are:
(i) All claims against the
government/statutory authorities should be viewed as illegal and should be
resisted and fought up to the highest court of the land.
(ii) If taking a decision on an issue
could be avoided, then it is prudent not to decide the issue and let the
aggrieved party approach the Court and secures a decision....”
The Government has a huge task at hand. It
must not trust what is put up to the political executive by way of file notings
from below, blindly. Notes are prepared so as to create a bias in the minds of
the competent authorities thereby making wise decision-making an uphill task.
The only way to resolve this quandary is to ensure a well-rounded system of
consultation with all stake-holders and selected affected parties. In absence
of the same, the decision-makers would continue to remain trapped in
echo-chambers.
While we, the ones dealing with military litigation,
shall remain, waiting for Godot!
Original links @ Bar and Bench:
Major
Navdeep Singh is a practicing lawyer at the Punjab & Haryana High Court,
the founding President of the Armed Forces Tribunal Bar Association at
Chandigarh, Member of the International Society for
Military Law and the Law of War at Brussels and author of ‘Maimed by the System’.
