The men in uniform, those retired/ released from service or their next of kin need to be suitably sensitized about the remedies available to them for their grievances redressal. This presentation aims at that.

1. ADJUDICATION OF SERVICE
DISPUTES RELATING TO
DEFENCE IN INDIA

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

3. SERVICE DISPUTE
The term ‘service dispute’ has no
statutory definition.

4. 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.

5. 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.

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

7. CATEGORY OF DISPUTES
1.
2.
3.
4.
5.
6.
7.
Individual or personal
Non military individuals V the State
Group (e.g. Major Dhanapalan’s case or
Maj. Gen. pension matter) V the State
Corporate
State V Union of India e.g. AFSPA
PIL
Foreign Corporates

8. 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.

9. NATURE OF DISPUTES
COULD RELATE TO
1.
2.
3.
4.
5.
Service conditions
Disciplinary awards
Procurement processes
Land matters
Human Rights violations

10. 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

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

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

13. CPC
SECTION 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

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

15. These laws have not changed over the
decades

16. 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.

17. REGULATIONS FOR THE ARMY (DSR),
1987
Silent on
1. Right to Information
2. Induction of Women Officers
3. Information Technology
4. Human Rights
5. War against terror or AFSPA
6. Tri Service Commands
7. Environmental Protection

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

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

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

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

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

23. The list appears to be endless

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

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

26. CHANGE IN DATE OF BIRTH
CONTROVERSY
1.
2.
3.
4.
5.
6.
7.
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

27. A clear example of unresolved dispute
between MS Branch and AG’s Branch on
one hand; and between Army HQ and MoD
on the other.

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

29. 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 J&K
and North East

30. ADR MODES
1.
2.
3.
Arbitration
Mediation
Reconciliation

31. Alternative Dispute Resolution (ADR)
process ignored.

32. Government is the largest litigator

33. Thus every dispute finally ends into a
litigation

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

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

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

37. RESOURCES
IX Officer
IX Clerk

38. REMARKS
1.
2.
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.

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

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

41. DIFFERENT RESPONSIBILITIES OF
BRANCHES







GS - Training, Courses, AFSPA
AG - Disciplinary cases, pay &
allowances
MS - Officer cadre
QMG’s - Accommodation, ration, travel
and canteens
E in C - Rent & allied charges
Medical - Disability, medical boards
ST- Supply contracts

42. FORUMS WHERE LITIGATION TAKES
PLACE
1.
2.
3.
4.
5.
6.
Courts Martial
Judiciary
Tribunals (AFT and CAT)
RTI
NHRC
Arbitrations

43. 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

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

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

46. 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:(a)
the
members of the Armed Forces; or
(b)xxxx

47. (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.

48. Thus restrictions on fundamental rights
constitutionally are permissible.

49. RESTRICTIONS IN THE ROLE OF
HIGHER JUDICIARY
Article 136
Special leave to appeal by the Supreme Court
1.
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.

50. 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.

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

52. (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.

53. PROVISIONS ON
SECURITY OF TENURE
OF
MILITARY PERSONNEL

54. 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

55. A step to cut down Military cases being
taken to High Courts

56. Setting up of Armed Forces Tribunal
The Armed Forces Tribunal Act, 2007

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

58. RESTRICTED JURISDICTION OF AFT
1.
2.
3.
Transfer postings
Leave
Summary Courts Martial and Summary Trial

59. The appraisal so far is suggestive of
negligible gains

60. WHY AFT IS NOT ABLE TO FULLY MEET
MILITARY ASPIRATIONS
1.
2.
3.
4.
Lack of infrastructure
Shortages in members and staff
Want of authority to enforce (contempt
powers)
Poor quality of judgments

61. Another major development

62. DELHI HIGH COURT
Justice Pradeep Nandrajog’s decision
dated 26 April 2011
in
Colonel A.D. Nargolkar’s case
Writ Petition No. 13367/2009

63. GIST OF ORDER
1.
AFT cannot be said to be truly a judicial review forum
as a substitute to High Courts.
2.
The power of judicial review under Articles 226 and
227 is unaffected by the constitution of AFT.
3.
Article 227 (4) takes away only the administrative
supervisory jurisdiction of High Court over judicial
supervisory jurisdiction over AFT.

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

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

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

67. COMPARTMENTALISATION OF JAG
RESOURCES BY HAVING SEPARATE
OFFICES
1.
2.
3.
Judge Advocate General’s Department
Military Secretary Legal
Disciplinary and Vigilance

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

69. 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.

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

71. Lack of familiarity of Legal Advisor (Defence)
about military matters

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

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

74. 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.

75. Any Questions