ADJUDICATION OF SERVICE
DISPUTES RELATING TO
DEFENCE IN INDIA
Presentation
by
Maj. Gen. Nilendra Kumar
Director
Amity Law School, Noida
at
IIPA, New Delhi
on 6 September 2012
SERVICE DISPUTE

The term ‘service dispute’ has no
statutory definition.
However, this has been taken for the purpose
of this presentation, to refer to all disputes,
whether related individually,...
In a democratic republic, disputes are meant
to be settled by a dialogue; and failing which,
in accordance with following ...
CONTOURS
1.
2.
3.
4.
5.
6.

Nature of disputes
Causes of disputes
Number of disputes and size of problem
Framework and res...
CATEGORY OF DISPUTES
1.
2.
3.
4.
5.
6.
7.

Individual or personal
Non military individuals V the State
Group (e.g. Major D...
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...
NATURE OF DISPUTES
COULD RELATE TO

1.
2.
3.
4.
5.

Service conditions
Disciplinary awards
Procurement processes
Land matt...
SERVICE CONDITIONS MAINLY RELATE
TO












Promotion
ACR
Seniority
Adverse Remarks
Posting or tenures
Chan...
CAUSES
1.
2.
3.
4.
5.
6.

Old and antiquated laws
Nature of service where decisions often do
not exhibit application of mi...
NATURE OF SERVICE
1.
2.
3.
4.
5.

Demand for implicit obedience
Liability to serve anywhere on land, sea
and air
Pyramidic...
CPC
SECTION 80
Notice
No suit shall be instituted against the
Government or against a public officer in
respect of any act...
EXAMPLE OF OLD AND ANTIQUATED
LAWS
1.
2.
3.
4.
5.
6.

Explosives Act, 1884
Indian Tolls (Army and Air Force) Act, 1901
Wor...
These laws have not changed over the
decades
Army Act, 1950, Army Rules, 1952
and DSR (RA), 1987 have also remained
unchanged over the decades
Despite five years havin...
REGULATIONS FOR THE ARMY (DSR),
1987
Silent on
1. Right to Information
2. Induction of Women Officers
3. Information Techn...
Thus the laws are not in tune with times,
and may be said to be outdated
Further, last two decade has seen involvement
of senior officers, incidents of moral turpitude
and sharp erosion in ethica...
There have been prosecutions for staging
fake encounters and attempts to procure
gallantry awards undeservedly.
Allegations about misuse of secret
funds of military intelligence.
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
...
The list appears to be endless
SCAMS GALORE
1.
2.
3.
4.
5.
6.
7.
8.

Divisional Commander in
sexual harassment case
Procurement for peace
keepers
Tent sc...
Yet another matter that had continued to
occupy centre space for months
CHANGE IN DATE OF BIRTH
CONTROVERSY
1.
2.
3.
4.
5.
6.
7.

Politicisation, MPs met the PM
Repeated representations
Keeping ...
A clear example of unresolved dispute
between MS Branch and AG’s Branch on
one hand; and between Army HQ and MoD
on the ot...
Further, rank and file appear to have
been left confused (and amazed)!
ORGANISATIONAL BIAS OR CLASS
ACTION
1.

Technical officers of Air Force

2.

Grievances of Military Nursing
Service Office...
ADR MODES

1.
2.
3.

Arbitration
Mediation
Reconciliation
Alternative Dispute Resolution (ADR)
process ignored.
Government is the largest litigator
Thus every dispute finally ends into a
litigation
Agreements and contracts are invariably
one sided
Reflective of rigidity and arbitrariness
attitude of decision makers
WEAKNESS IN STATE CASE
1.
2.
3.
4.

Contracts are not drafted with care
Abnormal delays in formulating and filing of
respo...
EXISTING PRACTICE
Responsibility
1. Legal Cells - Set up at the seat of
major High Courts or
at the location of AFT
benche...
RESOURCES
IX Officer
IX Clerk
REMARKS
1.
2.

Legal Cell function mostly under the
Static HQ
Where higher field formations co-exist
Legal Cells operate u...
3. Very often MS (Legal) or DV
representatives approach Legal Cells
directly and JAG Department is not in
picture
There is no authentic data about total
number of pending cases relating to
MOD
DIFFERENT RESPONSIBILITIES OF
BRANCHES









GS - Training, Courses, AFSPA
AG - Disciplinary cases, pay &
allowa...
FORUMS WHERE LITIGATION TAKES
PLACE
1.
2.
3.
4.
5.
6.

Courts Martial
Judiciary
Tribunals (AFT and CAT)
RTI
NHRC
Arbitrati...
Consequently no data or study available
about :






Trend of increase or decrease
Trend about outcome of cases
What...
No branch would have the data about
total pendency of court cases
Applicable Constitutional and legal regime
are designed to best protect military
disputes settlement mechanism.
CONSTITUTION OF INDIA
Article 33
Power of Parliament to modify the rights
conferred by this Part in their application
etc....
(c) xxxx
(d) xxxx
be restricted or abrogated so as to ensure the
proper discharge of their duties and the
maintenance of d...
Thus restrictions on fundamental rights
constitutionally are permissible.
RESTRICTIONS IN THE ROLE OF
HIGHER JUDICIARY
Article 136
Special leave to appeal by the Supreme Court
1.

Notwithstanding ...
2. Nothing in clause (1) shall apply to any
judgment, determination, sentence or
order passed or made by any court or
trib...
POWERS OF HIGH COURTS
Article 227 (4)
Power of Superintendence over all courts by
the High Court
(1) Every High Court shal...
(4) Nothing in this article shall be deemed to
confer on a High Court powers of
superintendence over any court or tribunal...
PROVISIONS ON
SECURITY OF TENURE
OF
MILITARY PERSONNEL
Article 311
Dismissal, removal or reduction in rank of
persons employed in civil capacities under the
Union or a State
(1)...
A step to cut down Military cases being
taken to High Courts
Setting up of Armed Forces Tribunal
The Armed Forces Tribunal Act, 2007
However, the move itself had certain
deficiencies right at the stage of inception.
RESTRICTED JURISDICTION OF AFT

1.
2.
3.

Transfer postings
Leave
Summary Courts Martial and Summary Trial
The appraisal so far is suggestive of
negligible gains
WHY AFT IS NOT ABLE TO FULLY MEET
MILITARY ASPIRATIONS

1.
2.
3.
4.

Lack of infrastructure
Shortages in members and staff...
Another major development
DELHI HIGH COURT

Justice Pradeep Nandrajog’s decision
dated 26 April 2011
in
Colonel A.D. Nargolkar’s case
Writ Petition ...
GIST OF ORDER

1.

AFT cannot be said to be truly a judicial review forum
as a substitute to High Courts.

2.

The power o...
4. Decisions by the AFT would be amenable
to judicial review by High Court under
Articles 226 as also under 227 of the
Con...
MEDIA PERCEPTION

Poor media image about credibility and
effectiveness of in-house tribunals and forums
of the military
Absence of a single agency with requisite
reference resources, library, seniority and
Accountability is a critical deficie...
COMPARTMENTALISATION OF JAG
RESOURCES BY HAVING SEPARATE
OFFICES
1.
2.
3.

Judge Advocate General’s Department
Military Se...
DEFENCE OF COURT CASES
APPLICABLE POLICY
SPECIAL ARMY ORDER
5/S/2003/JAG
No rules, regulations or instructions
formulated so far to introduce a system to
deal with cases filed in Armed Forces
Tri...
No efforts made to re-visit the applicable
policy after 2003.
Lack of familiarity of Legal Advisor (Defence)
about military matters
RECOMMENDATIONS
1.
2.
3.
4.
5.
6.

Defence of court cases should be a command
function rather than a duty for the staff
Th...
As a matter of policy all laws, Acts, rules,
regulations, instructions and orders
should be brought for review at regular
...
CONCLUSION
An inadequate and ineffective
machinery for settlement of service
disputes would shake and erode
confidence in ...
Any Questions
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Adjudication of Service Disputes Relating to Defence in India

  1. 1. ADJUDICATION OF SERVICE DISPUTES RELATING TO DEFENCE IN INDIA
  2. 2. Presentation by Maj. Gen. Nilendra Kumar Director Amity Law School, Noida at IIPA, New Delhi on 6 September 2012
  3. 3. SERVICE DISPUTE The term ‘service dispute’ has no statutory definition.
  4. 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. 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. 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. 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. 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. 9. NATURE OF DISPUTES COULD RELATE TO 1. 2. 3. 4. 5. Service conditions Disciplinary awards Procurement processes Land matters Human Rights violations
  10. 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. 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. 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. 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. 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. 15. These laws have not changed over the decades
  16. 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. 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. 18. Thus the laws are not in tune with times, and may be said to be outdated
  19. 19. Further, last two decade has seen involvement of senior officers, incidents of moral turpitude and sharp erosion in ethical standards.
  20. 20. There have been prosecutions for staging fake encounters and attempts to procure gallantry awards undeservedly.
  21. 21. Allegations about misuse of secret funds of military intelligence.
  22. 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. 23. The list appears to be endless
  24. 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. 25. Yet another matter that had continued to occupy centre space for months
  26. 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. 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. 28. Further, rank and file appear to have been left confused (and amazed)!
  29. 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. 30. ADR MODES 1. 2. 3. Arbitration Mediation Reconciliation
  31. 31. Alternative Dispute Resolution (ADR) process ignored.
  32. 32. Government is the largest litigator
  33. 33. Thus every dispute finally ends into a litigation
  34. 34. Agreements and contracts are invariably one sided Reflective of rigidity and arbitrariness attitude of decision makers
  35. 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. 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. 37. RESOURCES IX Officer IX Clerk
  38. 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. 39. 3. Very often MS (Legal) or DV representatives approach Legal Cells directly and JAG Department is not in picture
  40. 40. There is no authentic data about total number of pending cases relating to MOD
  41. 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. 42. FORUMS WHERE LITIGATION TAKES PLACE 1. 2. 3. 4. 5. 6. Courts Martial Judiciary Tribunals (AFT and CAT) RTI NHRC Arbitrations
  43. 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. 44. No branch would have the data about total pendency of court cases
  45. 45. Applicable Constitutional and legal regime are designed to best protect military disputes settlement mechanism.
  46. 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. 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. 48. Thus restrictions on fundamental rights constitutionally are permissible.
  49. 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. 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. 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. 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. 53. PROVISIONS ON SECURITY OF TENURE OF MILITARY PERSONNEL
  54. 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. 55. A step to cut down Military cases being taken to High Courts
  56. 56. Setting up of Armed Forces Tribunal The Armed Forces Tribunal Act, 2007
  57. 57. However, the move itself had certain deficiencies right at the stage of inception.
  58. 58. RESTRICTED JURISDICTION OF AFT 1. 2. 3. Transfer postings Leave Summary Courts Martial and Summary Trial
  59. 59. The appraisal so far is suggestive of negligible gains
  60. 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. 61. Another major development
  62. 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. 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. 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. 65. MEDIA PERCEPTION Poor media image about credibility and effectiveness of in-house tribunals and forums of the military
  66. 66. Absence of a single agency with requisite reference resources, library, seniority and Accountability is a critical deficiency.
  67. 67. COMPARTMENTALISATION OF JAG RESOURCES BY HAVING SEPARATE OFFICES 1. 2. 3. Judge Advocate General’s Department Military Secretary Legal Disciplinary and Vigilance
  68. 68. DEFENCE OF COURT CASES APPLICABLE POLICY SPECIAL ARMY ORDER 5/S/2003/JAG
  69. 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. 70. No efforts made to re-visit the applicable policy after 2003.
  71. 71. Lack of familiarity of Legal Advisor (Defence) about military matters
  72. 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. 73. As a matter of policy all laws, Acts, rules, regulations, instructions and orders should be brought for review at regular Intervals.
  74. 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. 75. Any Questions

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