FORCES LAW GAZETTE

(March 2012) ISSUE 2 Available for free download and distribution from www . lawgazette . net Published quarterly by Major Navdeep Singh, Advocate, Punjab & Haryana High Court, for free online distribution and non-commercial usage. Informal and meant more for general reading than use in Courts, this Gazette reflects pro bono public service and is a tribute to the men & women (serving & former) in uniform around the world, irrespective of service or nationality. Queries for information more than what is published, or for full text of judgements, would not be entertained please. Honorary Editorial Board : Maj Navdeep Singh Advocate, Chetan Gupta Advocate Contributors : Eugene R Fidell, Former President, National Institute of Military Justice, Col MS Jaswal (Retd) Advocate
Introduction to Issue-2: So here we are in 2012, and Ive kept the promise of publishing the gazette on a quarterly basis. I am extremely thankful for the kind words on the first issue, the editorial team hopes to remain in the service of those interested in this very exciting field. As earlier, this issue of FLG would also consist of three broad sections: (1) Law Related to Uniformed Services, (2) Developments and Miscellaneous, and (3) Contributions & Articles. The disclaimer with other important information is provided on the last page. The Contributions & Articles section would not be limited to the uniformed services and could include write-ups on other legal or topical administrative issues as well. I am changing the layout from a two-column structure to single column as per the feedback received on the first issue. Readers would definitely find it easy on the eye, especially those who view this on the computer. I am also adding Case Numbers of all cases cited in the gazette. This issue carries contributed articles by Mr Eugene R Fidell, former (and founding) President of the National Institute of Military Justice of the US, and my prime motivator in this project, and Col MS Jaswal (Retd), a notable former JAG officer and now a lawyer. Once again, I would like to express gratitude to everyone who provided help and inputs to this project, especially colleagues like Chetan Gupta, more so since they did it altruistically without any advantage or gain. Thank You. - Navdeep LAW RELATED TO UNIFORMED SERVICES: Pension: Petitioner served in DSC after serving the Regular Army. Medical specialist recorded that onset of his psychiatric disability was when his wife became bed-ridden. Respondents averred that Petitioner was not entitled to disability pension in view of SC judgements stating that medical board shall have primacy. The case of the Petitioner
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fully covered by entitlement rules and the board was supposed to record reasons for reaching a negative conclusion. Petitioner held entitled to disability pension (Hukmichand Vs UOI, Jaipur AFT, OA 177/2010, 11th Oct 2011) Medical board provided no reasons of non attributability / non aggravation and merely filled up the columns with Yes and No for disabilities of asthma and diabetes. Held that medical board has to be specific in order to rebut presumption in favour of claimant. Medical boards have to give evidence in support of findings. That Petitioner was discharged on own request is of no consequence since entitlement rules specifically provide that a person who is low medical category at the time of discharge is to be treated as invalided out. Petition allowed, disability pension granted (Mahipal Singh Yadav Vs UOI, Jaipur AFT, TA 90/2010, 13th Oct 2011) Petitioner invalided from service after more than 20 years with disability of psychomotor epilepsy. No reasons recorded in the attributability/aggravation column by the medical board. He continued serving for 9 years after detection of disability which leads to a conclusion of aggravation by service. Case fully covered by entitlement rules. Petition allowed. Disability pension granted (Bhanwar Lal Vs UOI, Jaipur AFT, TA 223/2009, 15th Nov 2011) Disability in Siachen Glacier (Operation Meghdoot). Though not injury but covered under Category E of Govt of India Letter dated 31st January 2001 hence entitled to War Injury Pension and not regular Disability Pension. Petition allowed Appeal of UOI dismissed by Supreme Court (UOI Vs Harjinder Singh, Supreme Court, SLP Civil CC 19992/2011, 5th Dec 2011) Case remanded by the Delhi High Court to the AFT for adjudication. Husband of the Petitioner had died while on casual leave while travelling from Saharanpur to Meerut. Case earlier filed before the High Court which was disposed with direction to decide the representation in case filed by the Petitioner if she gets hold of any material to substantiate the claim. The Petitioner came across a document issued by the Adjutant General of the year 1962 which stated that the death was attributable to service. Held that once death had been declared attributable to service, the Petitioner was entitled to grant of Special Family Pension. Petition allowed (Chander Lekha Vs UOI, Principal Bench AFT, OA 429/10, 13th Dec 2011) Petitioner invalided out with 100% disability for paraplegia and granted Constant Attendance Allowance. On re-survey medical board, despite the disability remaining the same and having attained surgical finality, the allowance discontinued on the pretext that re-survey medical board had not recommended it. Held that when the first Release Medical Board itself had recommended the requirement of attendant for life, it was not open to discontinue it. Petition allowed (Avtar Singh Vs UOI, Chandigarh AFT, OA 1532/2011, 16th Dec 2011) Petitioners husband served on active duty from 1943 to 1944 and granted attributability at the time for Psychoneuroses. Board of Veteran Appeals denied entitlement for Bipolar Disorder and Alzheimers disease and for Special Monthly Compensation by refusing to consider Veterans Agency Medical Records and those of a private nursing
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home records. Held that the records were to be considered even if not physically placed on file (Margreit Castellano Vs Eric K Shinseki, Secretary of Veteran Affairs, United States Court of Appeals for Veterans Claims, Case No 03-3386, 22nd Dec 2011) Surviving spouse of a World War II veteran filed a claim for a previously denied claim for disability benefits which was refused by the Board of Veteran Appeals on the ground finally decided claims could not be reopened after one year of the decision. Held that there is no legal bar to reopen a claim if new issues are presented. The decision of the Board set aside (Peggy L Quattlebaum Vs Secretary of Veteran Affairs, US Court of Appeals for Veteran Claims, Case No 09-3557, 05th Jan 2012) Petitioner discharged as services no longer required on the basis of red ink entries. However, Petitioners disability for seizures declared aggravated by service but later the aggravation part cut-out by one member of the medical board at the back of the Petitioner. Even Respondents copy of the medical board shows that disability had been declared aggravated by service. Held that cutting out of the board was illegal. Petitioners disability indeed aggravated by service. Administrative discharged on red ink entries cannot be a ground to refuse disability pension. SC law discussed. Petitioner held entitled to disability pension. Petition allowed (Mandeep Sigh Vs UOI, Chandigarh AFT, OA 1403/2011, 24th Jan 2012) Short-Service Commissioned released with aggravated disability but officer granted only disability element of disability pension without the service element. Govt letter discriminates between attributable vis--vis aggravated disabilities and provides that officers released with attributable disabilities to be granted service element irrespective of date of release while those with aggravated disabilities only to be granted service element if the date of release is after 30th August 2006. Held that the offending portion of the policy has already been struk down by the Principal Bench. Petitioner entitled to same relief (Sukhtar Singh Vs UOI, Chandigarh AFT, OA 664/2011, 24th Jan 2012) Petitioner granted ordinary family pension but the same discontinued on her marriage. Later amendment issued by the Govt to continue family pension even on remarriage but restricted to only post-2006 cases. Petitioner being pre-2006 remarriage case not granted the said relief. Held that matter has been settled that pre-2006 cases also entitled to continuation of family pension on remarriage. Petition allowed (Amarjit Kaur Vs UOI, Chandigarh AFT, OA 247/2012, 01st Feb 2012) Petitioner discharged in 1957 on medical grounds with 10 years 03 months of service including Boy service. Not granted disability pension since disability declared neither attributable to, nor aggravated by service. Also not granted invalid pension on the ground that boy service was not to be added into qualifying service. Held that after SC and HC decisions on the subject, Boys service was to be taken as qualifying service. Also Govt itself had now issued guidelines that boys service was to be included for pension. Pension Regulations 1961 are applicable with effect from 1953 and hence Petitioner entitled for grant of invalid pension under Regulation 197(a) read with 198. Petition allowed (Gursham Singh Randhawa Vs UOI, Chandigarh AFT, TA 214/2011, 01st Feb 2012)

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Disability Pension allowed by the Govt to post-2006 voluntary retirees of the Commissioned Officer category but not to pre-2006 voluntary retirees. In case of other ranks, everyone authorised to disability pension irrespective of date of retirement. Plea of financial constraints explodes in light of the fact that Commissioned Officers are much fewer in number. Cut-off date is an artificial distinction without any reasonable basis, hence struck-down (Rajesh Kumar Bhardwaj Vs UOI, Principal Bench AFT, OA 336/2011, 07th Feb 2012) Petitioner was to serve for 9 years in the colours and 6 years in the reserves thereby entitling him to reservist pension from the Air Force. However he was not allowed to complete his 6 years in the reserves and was discharged earlier unilaterally on the grounds of services no longer required. Held that the Petitioner had not sought discharge and was not at all responsible for his release prior to completion of reserve service. Similar case allowed by Principal Bench AFT. Petition allowed, rejection orders set aside (M Vijayan Unni Vs UOI, Chennai AFT, OA 15/2011, 09th Feb 2012) Petitioners husbands tank transporter caught fire while in operational area during Operation Prakaram. Granted Special Family Pension and not Liberalized Family Pension on the pretext that her husband had died on military duty in a vehicle accident in a peace area. Held Strange that the Respondents have not produced Court of Inquiry proceedings. The death covered under Category E of Govt of India MoD Letter dated 31 Jan 2001. Petition allowed, the death declared battle casualty with consequential benefits (Charubala Rath Vs UOI, Kolkata Bench, TA 168/2010, 17th Feb 2012)

ACR & Promotion: Petitioner was direct entry Havildar in Army Education Corps. The grading of Average in the profile of the person who had always been awarded Above Average or High Average was clearly an aberration. The Reviewing Officer had downgraded the person without any warning or observation in the pen picture. Aberration expunged, the Petitioner to be considered for promotion (Syed Athar Javed Vs UOI, TA 718/2009, Principal Bench AFT, 07th Dec 2011) Initiating Officers portion in Annual Confidential Report (ACR) erased. Respondents relied on policy which granted them right to efface ACR in cases of inflationary/deflationary/subjective reports. Held to be arbitrary and illegal. Observed that this kind of illegality would not have come to light had the Tribunal not been constituted. Petition allowed, remarks expunged. Respondents directed to pin-point who had played foul. (VG Gole Vs UOI, Principal Bench AFT, OA 377/2011, 15 th Dec 2011) Challenge to retrospective application of promotion policy. Respondents went beyond rules while approving promotions and then sent the result for ratification of the government. Promotions not held as per policy in vogue at that point of time. Action of committee in considering the Petitioner by following the policy of extrapolation was totally unauthorised. Petitioner should be considered again in consonance with rules as

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were in vogue. Petition allowed (SKH Johnson Vs UOI, Principal Bench AFT, OA 79/2011, 21st Dec 2011) Alleged that ACRs were inconsistent with overall profile. Held that the challenge to ACRs was barred by time. Also held that ratings were consistent with profile and at one place the marking of 7 had been expunged by the Army HQ. The late initiation of ACR was also due to the fact that papers were submitted late by the Petitioner. There is no aberration and even the pen picture is matching with the profile. Matter does not call for interference. Petition dismissed (GS Bhullar Vs UOI, Chennai AFT, OA 49/2011, 04th Jan 2012) Petitioner discharged from service on ground of conviction and then reinstated after being acquitted with back wages. Petitioner claimed seniority and promotions with his batchmates. Petitioner was acquitted and promoted as a Naik in 2000 and then filed a statutory complaint in 2003, he did not even approach the Court at the time. Petition dismissed on ground of delay and for not impleading affected parties (Deshpal Singh Vs UOI, Principal Bench AFT, OA 74/2011, 09th Jan 2012) Applicant due to his medical condition and subsequent processing was ultimately granted a waiver but promoted late to the rank of Air Vice Marshall. Sought waiver of service for next promotion based on similar dispensation granted to others. Also questioned the holding of promotion board in December though the policy stated it would normally be held between January and March. Respondents however demonstrated that traditionally too the boards were being held in December. Held that boards cannot be undertaken to suit individual requirements and there was no malafide on the part of the Respondents. Also held that waiver granted to others was on a different footing since they had a shortfall of 4 to 25 days while the Petitioner had a shortfall of over 6 months. The others also had a report in the rank of Air Vice Marshall which the Petitioner did not. Petition dismissed (NM Vaishnavi Vs UOI, Principal Bench AFT, OA 300/2011, 23rd Jan 2012) Petitioner not promoted as Inspector in CRPF since he had not done the mandatory 2 years tenure in a Duty Battalion. Juniors accordingly promoted. Petitioner had missed out on the tenure since he had been posted as an Instructor in a Training Academy. The Home Ministry had earlier issued instructions for one-time exception for granting waivers and had also stated that from then onwards only those would be posted to training institutes who had undergone the mandatory Duty Battalion tenure. The policy was a good piece of law, a person has no say in his transfer or postings. Petitioner to be considered by a DPC and if he achieves the benchmark, he would be promoted with effect from the date juniors were promoted. SLP filed against Delhi High Court order dismissed (UOI Vs S Arul Raj, Supreme Court, Special Leave to Appeal Civil CC 2919/2012, 17th Feb 2012)

Discipline & Court Martial: Petitioner was convicted by Australian Military Court and awarded punishment. The said Military Court declared unconstitutional by the High Court of Australia. Parliament
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passed Military Justice (Interim Measures) Act, 2009, to validate punishments by Courts Martial as if imposed properly by a Court Martial. High Court examined whether the said Act amounted to usurpation of judicial functions and whether Schedule I of the said interim measures Act a valid law of the Commonwealth Parliament. Held Yes it is a valid law and that the said Act also provided lawful authority justifying detention of the Petitioner (Joseph Anthony Peter Haskins Vs The Commonwealth of Australia, High Court of Australia, Case No S8/2011, 10th Aug 2011) Respondents well within their rights to try the Petitioner under Army Act Section 69 read with Sections 376 and 511 of IPC and the exclusion clause of Section 70 of the Army Act would not come in the way. PW-8 recorded her evidence and she was 11 years old. Evidence well corroborated. Verdict of GCM upheld (Ram Kishan Vs UOI, Principal Bench AFT, TA 579/2011, 23rd Nov 2011) Petitioner discharged due to pendency of criminal case against him. After discussing relevant rules and case law, held that though departmental proceedings can run independently of judicial / criminal proceedings, misconduct has to be independently established too. In the instant case, no independent proceedings conducted but the person merely discharged since he was in prison for 6 months and that he may have come into contact with anti-national persons. Petition partly allowed, Petitioner to be reinstated in service although under suspension and with subsistence allowance (Rajesh Kumar Vs UOI, OA 329/2010, Principal Bench AFT, 14th Nov 2011) Appellant, a Staff Sergeant, and his wife, a Second Lieutenant, had an argument at their residence. His wife called Military Police and the Appellant stated Ive killed people before, Its nothing for me to kill a few f***ing MPs. GCM found the Appellant guilty of failing to obey a Non-Commissioned Officer, simple assault and communicating a threat. Challenged sentence on the ground that he had acted in self-defence. Appellant postulated a theory that due to the fast paced happenings he could not ascertain the identity of the MPs. Held that Appellants grounds were untenable since his wife had told him that the MPs were coming and they were also wearing distinctive MP attire including badges and even the Appellant stated that it was nothing for him to kill a few MPs (Thomas J Schumacher Vs United States, United States Court of Appeals for the Armed Forces, Case No 11-257, 07th Dec 2011) Appellant was found guilty by a Court Martial for attempting to communicate indecent language to person under 16 years of age and possession of material of what appears to be sexual content involving minors. Appellant sentenced to bad-conduct discharge, reduction in rank, confinement for 2 years and forfeiture of all pay and allowances. Question examined whether the option of trial by a military judge was based on misadvise by counsel on maximum punishment possible. Also examined if resentencing was required. Held, that though the Appellant was not advised properly, there was a knowing and voluntary election of a trial by a military judge alone. However, while findings upheld, the decision reversed regarding the sentence since sentencing of what appears to be explicit content could not be granted a sentence at par with actual possession. Record returned for re-sentencing (United States Vs William J St Blanc Jr, US Court for Appeals for the Armed Forces, Criminal Appeal 37206, 10th Jan 2012)

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Appellant convicted for gang initiation offence, besides others, challenged his trial on law points. It was alleged that the Military Judge had misapplied law. Appellant alongwith others was a member of the gang Gangster Disciples. He and others drove another solider to a remote location for gang initiation. 9 men surrounded the victim and beat him up continuously for 6 minutes. He later died. Ultimately after investigation Appellant was informed that he was suspected of criminal acts and was informed of his rights which he waived. Appellant changed statement and later reiterated the statement. Appellant hinted at self-incrimination. After and before immunity law discussed. Held that nobody could be compelled to self-incriminate but this privilege was neither absolute nor inviolate. Held that there was no compelled testimony in the case. Government not only relied on the Appellants evidence in prosecution but also on other corroborative statements. Military judge did not abuse process of law and his findings on facts were not erroneous United States Vs Bobby D Morrissette, United States Court of Appeals for the Armed Forces, Case No 11-282, 24th Jan 2012) Whether the Petitioner could be reinstated in service in CISF after having been removed for having stolen a mobile phone from a passenger while on duty at the airport? Held that there is sufficient evidence against the Petitioner, which it is not the task of the HC to re-appreciate. This cannot be said to be a case of no evidence. State of Rajasthan v. Om Prakash, (2007) 12 SCC 381; State of U.P. v. M.K.Anthony, (1985) 1 SCC 505; State v. Sarvanan (2008) 2 SCC 587; Sohrab v. State of M.P., (1972) 3 SCC 751 and State of U.P. v. Santosh Kumar, (2009) 9 SCC 626 relied on to hold that minor discrepancies ought not to result in rejection of evidence. Petition accordingly dismissed (Kishan Pal Singh Vs UOI, Delhi HC, WP 11925/2009, 30th Jan 2012) Whether the Petitioner was rightly dismissed from service for being absent without leave on account of bad health? Held- Yes, the Petitioner has taken contradictory stands with respect to health. Under Section 11 of the BSF Act, 1968 read with Rule 177 of the BSF Rule, 1969 the respondents were entitled to pass the dismissal order, not because of the misconduct of the absence without leave, but because his further continuance in the service was held to be undesirable. The procedure as prescribed under Rule 20 of the BSF Rules, 1969, for termination of service for unauthorized absence had been duly complied with by the Competent Authority. In the notice dated 10th December, 1995, it was stipulated that the petitioner had absented himself without leave from 24th August, 1995, thereby satisfying Sub Rule 3 of Rule 20. Also the petitioner was given 15 days time to represent against the allegations framed against him, thereby satisfying Sub Rule 6 (Sanjay Singh Vs UOI, Delhi HC, WP 5831/1999, 09th Feb 2012) Offence came to knowledge of competent authority in May 2007 while orders for convening the Court Martial issued in August 2010. Clearly hit by the bar of Army Act Section 122. Earlier Supreme Court decisions in VN Singhs case and JS Sekhons case distinguished. Order for convening Court Martial quashed, AFT Lucknow Benchs decision set-aside. Appeal allowed (Rajvir Singh Vs UOI, Supreme Court, CA 2107/2012, 15th Feb 2012)

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Whether the orders removing the Petitioner from the Railway Protection Force were justified and proportional given the Petitioners past misconduct? Whether evidence of drunkenness could be founded on doctors statement without any medical tests? Held, the grounds of review available are illegality, procedural impropriety, and irrationality. No such grounds have been made out by the petitioner as has been supplied with the charge and given an opportunity to make representations at each stage. The evidence produced is believable. The punishment awarded is proportional in view of past misconduct and failure to reform (Davender Kumar Kaushik Vs UOI, Delhi HC, WP 1080/2012, 24th Feb 2012)

Policy, Benefits & Others: Haryana Governments rule granting ex-serviceman dependant certificate to married sons of ex-servicemen but refusing the same to married daughters, challenged. Held to be discriminatory and married daughters without any independent means of income should be considered equal to married sons. Offending clause stuck down and held ultra vires of Constitution of India (Jai Narain Jakhar Vs UOI, Punjab & Haryana HC, CWP 18110/2009, 19th Oct 2011) Territorial Army Officer in low medical category for psychiatric disability submitted resignation of commission. Later withdrew the application. No action taken on withdrawal but officer informed that competent authority had accepted resignation. Held that the officer had withdrawn his resignation prior to the effective date of release. Order of release from service quashed (Rajib Phukan Vs UOI, Principal Bench AFT, TA 320/2009, 09th Nov 2011) Brigadier nominated to National Defence College (NDC) Course on the basis of his performance. Diagnosed with cancer while attending course hence medically withdrawn. Not considered for next course being low medical category. Pleaded that there was nothing in the policy to debar low medical category cases. Later officer upgraded. Ambiguity in policy regarding second look. Held that situation being beyond control, the Petitioner deserved second look for NDC in larger interest of the organisation. Petition partly allowed (Stephen Jude Gracias Vs UOI, Principal Bench AFT, OA 350/2011, 22nd Nov 2011) Mix-up in mentioning the trade of the Petitioner while medically examining him. The Petitioner had been enrolled as a driver and it was discovered on examination that he was not fit for his trade because of defective vision. Could not be kept in service and could also not be granted disability pension since his disability was pre-existing (Haribeer Singh Vs UOI, Jaipur AFT, OA 18/2010, 12th Dec 2011) Petitioner applied for Pre-Mature retirement on account of illness of mother. Respondents rejected the same. Second application also rejected. Petitioner then went absent without leave. Petitioner a deserter till date and hence her request for retirement could not be acceded to by the Respondents (Sunu Rachel Koshy Vs UOI, Principal Bench AFT, TA 397/2010, 19th Dec 2011)
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Petitioner discharged because of being low medical category during extended tenure of service. Petitioner had challenged the same before the AFT on the ground of the judgement of the SC in which it was ruled that such individuals could not be released without holding an Invaliding Medical Board (IMB). The petition was dismissed by the AFT on the ground that there is no provision of IMB during extended service. The Delhi HC however overturned the judgement and directed the AFT to reconsider whether an Invaliding Medical Board was required or not. Held that indeed an IMB was required in the case at hand and it was reflected in the judgement of the SC also. Petition allowed with pay and allowances. The Honorary Commission granted to him earlier after retirement also deemed to have been granted in active service with financial benefits since his discharge has been held to be illegal (Kiran Pal Singh, Principal Bench AFT, TA 714/2009, 22nd Dec 2011) Petitioners extension of service cancelled on the ground that he did not meet the discipline criterion. Petitioner was screened by a board and granted extension and was later denied the same on the basis of a clarification by the Army HQ. New policy was issued while the Petitioner was in service and vide which he was eligible since his disciplinary entry was while he was a Sepoy. Petitioner deserved benefit of the new policy. Petition allowed without pay and allowances but with pensionary benefits (Baidaya Nath Ghosh Vs UOI, Jaipur AFT, TA 81/2009, 10th Jan 2012) Petitioner joined as a Sepoy, promoted as a JCO and later Commissioned as an officer of the Army. Petitioner was court martialled and dismissed from service. Petitioner had more than 20 years of pensionable service. The Delhi High Court directed the Respondents to consider his request for pension sympathetically. However the Respondents rejected his claim since only 2/3 of service below commissioned rank was to be counted for pension and hence he did not complete 20 years required for pension. It was ironical that the Petitioner would have been entitled to pension had he not been an officer since then he had 15 years of service. Respondents directed to consider his request for pension as a JCO sympathetically keeping in view the fact that he had rendered 15 years of service required for a JCO (Ajit Singh Vs UOI, Principal Bench AFT, OA 136/2009, 13th Jan 2012) Decision of the Chandigarh Bench of the AFT directing the payment of Counter Insurgency Allowance to regular Army personnel posted in Border Roads Organisation upheld by the Supreme Court. No infirmity in directions of the AFT. Appeal dismissed both on limitation and merits (UOI Vs AK Bhutani, Civil Appeal D No 37898/2011, 16th Jan 2012) Had husband of Petitioner been given proper treatment in time, his life could have been saved. Negligence evident though it may not have been criminal. Held that action may be taken against erring doctors, Petitioner to be granted compensation of Rs Five lacs (Rs 500,000/-) on account of the death of her young husband (Tanuja Dod Vs UOI, Principal Bench AFT, OA 148/2011, 20th Jan 2012) Petitioner recruited in 1995 but the recruitments of 402 persons including the Petitioner cancelled later on the pretext of some illegality based on a complaint. Special board for
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recruitment again carried out in which the Petitioner found medically unfit and Petitioner discharged. Petitioner cannot be reinstated but Respondents directed to consider his case sympathetically for sheltered appointment in view of his service for 8 years. Petition disposed (Rajesh Singh Vs UOI, Principal Bench AFT, TA 162/2010, 24 th Jan 2012) Petitioner argued that maintenance given to an illegitimate child and that his wife is living in adultery and hence cannot be paid maintenance by the Army. Held that a child is a child and there it can never be illegitimate. The question of adultery would be decided by the civil court which is examining the case for divorce. Petition for cancellation of maintenance granted by the Army dismissed (Ravindra Singh Vs UOI, Principal Bench AFT, OA 305/2010, 24th Jan 2012) Whether the Petitioner could be invalidated from service on medical grounds without holding an Invalidating Medical Board in terms of Rule 13 of the Army Rules, 1954 particularly when he was in Shape P2 and not P5? The AFT had rejected the petition on grounds of delay. Held that the petition suffers from a delay of more than three years which was rightly not condoned by the AFT in terms of Section 22 of the AFT Act. In terms of Balakrishna Savalram Pujari Waghmare vs Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798 in Para 31, there is no continuing wrong done to the Petitioner which gives him a continuing cause of action. There is no illegality, irregularity or perversity in the order of the tribunal (Ram Bahadur Thapa Vs UOI, Delhi HC, WP 586/2012, 30th Jan 2012) Petitioner applied for voluntary discharge due to distressing state of his family and was discharged but with shortfall of 7 months 26 days for pension. Respondents rejected request for condonation on the ground that it is not applicable to voluntary retirees. Held that Govt letter provides condonation power upto one year and it is not as if the Respondents do not have power to condone shortfall. Sometimes human obligations become dominant leading to loss of balance in life. Authorities directed to consider request of the Petitioner sympathetically (Anadi Nandan Mukhopadhyay Vs UOI, Principal Bench AFT, OA 311/2011, 02nd Feb 2012) Petition earlier dismissed by the AFT but remanded back by the Delhi High Court for fresh consideration. Petitioner prayed for quashing of order whereby his request for premature retirement was rejected. Petitioner stated that not acceding to request amounted to denial of fundamental rights. Case law discussed. Respondents alleged that all grounds put forth by the Petitioner were false. Held that officer who has time and again put in requests for PMR may not even otherwise fully motivated to serve, in such a situation, it would be appropriate for Respondents to consider the officers request with an open mind. Even officers are surplus in Electrical Engineering area and hence the Petitioner does not come in the category of critical deficiency. On perusing the rejection, while each ground taken by the Officer may seem unsubstantiated to the Respondents, the cumulative effect can become a serious issue for an affected officer. Fit case for beign remanded back. OA partially allowed (Hardeep Sandhu Vs UOI, Principal Bench AFT, OA 15/2011, 03rd Feb 2012)
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Whether the action of the Respondents in excluding the Petitioner from a UN mission on account of his being on short service commission was discriminatory? Held-The Petitioner himself did not opt for permanent commission. In terms of government policy since the maximum tenure of a short service commission is 14 years, only those who have a permanent commission are allowed to go on such missions if they have crossed 10 years in short service commission. This is because a 5 year bon of service is required post the foreign mission. The policy cannot be interfered with under Art 226 (Gaurav Negi Vs UOI, Delhi HC, WP 774/2012, 07th Feb 2012) Whether the Petitioner could rely on the provisions of The Persons With Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 to challenge being boarded out of the CRPF on grounds of physical disability? Held- No, the 10 September 2002 Notification issued by the Central Government exempts the CRPF and other para military forces from the purview of Section 14 of the said Act. On account of the Petitioner having 75% disability he was rightly boarded out. The fact that the Petitioner was appointed as a Constable (General Duty) cannot be used to argue that he was a non-combatant who should be given the benefit of the said Act (Sandeep Singh Vs UOI, Delhi HC, WP 254/2012, 22nd Feb 2012) Whether it could be said that there was any impropriety in rejecting the Petitioner on the basis of her having failed to qualify the Physical Endurance Test for the Central Police Organisations?, Held- No, even though the result and overwritten, it cannot be said there was any impropriety. There is no allegation of mala fides also. The Petitioner ought to have appealed to the appellate officer under Para 7 of the relevant instructions which has not been done. No interference called for under Article 226 (Monica Goswami Vs UOI, Delhi HC, WP 1148/2012, 27th Feb 2012)

DEVELOPMENTS & MISCELLANEOUS: Policy issued for grant of Rs 9 lacs to invalided personnel as ex-gratia lumpsum amount in addition to other benefits. The amount is for 100% disability and is to be proportionately reduced for lesser disability (MoD, 01st Dec 2011) In cases of missing personnel or pensioners, family pension to be granted to eligible members of family other than wives too (DoPPW, 02nd Jan 2012) Regrouping of certain trades initiated and clarification issued on the same (PCDA Pensions, 13th Feb 2012) In view of budgetary constraints leading to prohibition of sales of Cars by the Canteen Stores Department, letter issued detailing the procedure to be followed for special case by case sanctions (Canteen Services Directorate, 22nd Feb 2012)

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Orders issued for conceding cases involving rounding-off/broad-banding to pre-1996 retirees with effect from 01 Jan 1996 (Personnel Services Directorate, 29th Feb 2012) Orders issued for conceding cases involving grant of pension bases on scales of Naib Subedar for pre-2006 retiree Honorary Naib Subedars also, with effect from 01 Jan 2006 (Personnel Services Directorate, 29th Feb 2012) Orders issued for grant of service element with effect from 01 Jan 1973 to pre-1973 disability pensioners whose service element had been discontinued on disability percentage falling below 20% (Personnel Services Directorate, 29th Feb 2012) Notification issued by UPSC for Limited Competitive Examination to the Indian Police Service (IPS) for Captains / Majors and equivalents (UPSC, 06th Mar 2012)

CONTRIBUTIONS AND ARTICLES:

National Institute of Military Justice

Eugene R Fidell

The publication of this Gazette is an exciting event, for which Navdeep Singh and those with whom he has worked deserve enormous credit. As the course is charted for this venture, perhaps a few words on where the path may lead are in order. In the nature of things, military justice is a national matter, since military force is a classic attribute of sovereignty. Hence, systems have historically tended to grow and evolve according to their own logic. Their roots may, in many countries, be traceable to earlier imperial or colonial times, and this is certainly true of countries in the Common Law tradition. Later on, as bonds of empire fray, the differences grow, and they do so at differing paces from country to country. Plainly this is so in lands once in the British Empire including of course both India and the United States. At times, this can lead to ironic or at least curious juxtapositions. Reform efforts may move at a faster pace in the mother country than in countries once affiliated with it. Certainly this is true of the United States and the United Kingdom, whose military justice system has seen dramatic reform under the none-too-gentle ministrations of the European Court of Human Rights. As constitutional arrangements evolve, moreover, the paths of countries with common legal roots may diverge, sometimes dramatically. To see the truth of this one need look no further than the current state of affairs with respect to the administration of military justice in common law countries such as Australia, Canada, and the United

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States. The appetite for change may vary widely, and, as the Australian experience over recent years suggests, may not be entirely smooth sailing. At present there are unresolved fundamental tensions in how countries approach military justice. What makes sense for a country that has embraced a narrow view of its role in world affairs may make none at all for a country that, rightly or not, sees itself in a world or regional leadership role. Shrinking government resources and burgeoning sovereign debt may dramatically effect military capabilities, and with it, the significance of the proper administration of military justice. A country that conducts solo or coalition military operations may well have a different set of priorities than one whose only external operational responsibilities are played out under the auspices of the United States. One that relies on conscription is quite likely to encounter a different set of issues, or perhaps the same issues in a different register, than one that fields only volunteer forces. A country with a weak civil society and a strong military tradition is likely to see key civil-military legal and policy issues play out in very different ways that one with a robust democratic tradition and a strong history of civilian control of the military. Jurisdictional issues may well be resolved differently in a country with a history of human rights violations than in one with a different national experience. To make matters worse, military justice change may well be driven by internal constitutional considerations rather than anything intrinsic to the national defense function. There is, in short, ample reason to see the world of military justice as a collection of one-off national arrangements, largely resistant to global appraisal or transnational doctrinal influence. The temptation to write the field off as a Tower of Babel utterly resistant to rationalization or harmonization should be resisted, despite the challenges. Notwithstanding the factors that stand in the way of transnational analysis, there is a great deal on the other side of the ledger. For example, over the last several decades, a growing body of military-related jurisprudence has developed through international bodies such as the European Court of Human Rights and its counterparts in Latin America and Africa. The Human Rights Committee has also played a role in development this body of law through its interpretations of the International Covenant on Civil and Political Rights. Although these bodies of jurisprudence are not perfectly harmonious and perhaps never will be, the trend is in that direction. Scholars recognize these bodies of law as parts of a larger organic whole. In this respect, the work of Prof. Emmanuel Decaux of the University of Paris on UN Draft Principles Governing Trials By Military Tribunals is worthy of special note. The 2006 draft the latest one has not yet received final approval. Should it? Is further work called for, to meet changing needs or to accommodate concerns expressed by knowledgeable persons? I believe it is incumbent, as the world moves further into this no-longer-new 21st Century, that those who concern themselves with military justice redouble their efforts at improving the administration of justice through these specialized courts in those countries that continue to rely on them. The constructive work of the International Society for Military Law and the Law of War, of which all readers of this new Journal should become members, as well as the availability of the internet are enormously helpful. For the first time one can glean a global sense of developments in the field,
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recognizing, as one must, the tremendous frustrations of language barriers. With that caveat, we are better off in this regard than ever before. There are two sides to the coin of reform. First, national authorities must embrace the value of transparency. Statutes and subsidiary legislation should not be developed behind closed doors and for all practical purposes insulated from the view of the public and the bar. Conversely, it is incumbent on the private bar not only to seek opportunities to participate in the process of evaluation and, where warranted, reform, but to sue those opportunities energetically. Coins have only two sides, but I will add a third. The universities must step forward and offer formal instruction in military justice. Only in this way can a democratic society ensure that the military does not enjoy a monopoly over learning in this field. Twenty years ago, the National Institute of Military Justice was established, following a meeting of a handful of friends over lunch at the Army-Navy Club in Washington, D.C. Since then, it has grown to include many of the countrys leading military law scholars and practitioners. As the Digital Era progressed, a website and blog have followed. NIMJ has filed many amicus curiae briefs in civilian and military courts in cases concerning military justice. Its officers, directors and advisors have been asked to testify before a variety of congressional committees. The organization publishes definitive works on military appeals and regularly sends observers to monitor the military commission trials at Guantanamo Bay, Cuba. NIMJ continues to evolve. In 2010, the board voted to create a Global Military Justice Initiative, one aspect of which is to encourage our opposite numbers in other countries to form their own institutes of military justice. Such an institute is likely to be quite different from one country to the next, for all the reasons noted above. And yet, it does seem that the basic idea of an institute whatever the specifics merits discussion and action in virtually any country with a standing army. Whether the present Journal will be part of a larger process that culminates in the creation of an Indian Institute of Military Justice is an open question and not one I can answer in any event. But establishment of the Journal is a major achievement in itself. For myself, I hope the Journal does have that larger effect, and that Indian lawyers who concern themselves with such matters, whether as teachers or as practitioners, will give the idea careful consideration.

Mr Eugene R Fidell was the President of the National Institute of Military Justice from 1991 to 2011. He graduated from the Harvard Law School in 1968 and is a former JAG officer of the United States Coast Guard. He teaches at Yale Law School.

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Subjection to both Civil and Military Laws The Constitutional arrangement

Colonel M S Jaswal (Retd)

Introduction A soldier, a person subject to military law stands on a twofold relation in the society; firstly, as citizen towards other fellow citizens and secondly as a soldier towards other soldiers and his superiors in the Army. Therefore, he has duties and liabilities in both capacities, he is a citizen at arms and is in defense of his nations integrity, he is duty bound and oath bound to obey all lawful orders of his superior officers given to him in the course of service in the army. A soldier or an officer by virtue of being enrolled or commissioned in the army undertakes many obligations in addition to the duties incumbent upon a civilian but thereby he does not escape from or be absolved of any of the duties and liabilities of a civilian citizen. In all democratic countries, where 'Rule of Law' exists, a soldier is subject to same criminal and civil liability as an ordinary citizen. The need or the supremacy of the law of the land needs no elucidation. Equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts is one of the cornerstones of democracy and Rule of Law. Such a conception of Rule of Law should exclude the idea of any exemption of any officers or others like soldiers from the obedience to the law of the land, or from the jurisdiction of the civil courts. Equality before law and equal protection of law to every citizen within the country has been made a fundamental right under article 14 of the Constitution of India. Therefore the very idea of administration of justice by special courts or under special laws to any class of citizens with a view to give preferential or harsh treatment is repugnant to the very fundamental Rule of Law, democracy and the principles enshrined in the Constitution and the fundamental rights guaranteed therein. Yet, due to the very nature and circumstances of the task and duties that are to be performed by the members of the Armed Forces a special set of laws and courts have become an additional necessity so that the arduous functioning of the armed Forces is not made more so by the slow and soft process of the ordinary laws of the country. Such an additional requirement for special laws and courts had been recognized and accepted in Great Britain, the very country where current parliamentary system of democracy got evolved. Thus in all the mutiny Acts and finally the Army Act passed by the British Parliament, such a special process of administration of justice had been incorporated. At the same time the supremacy of the ordinary civil laws of the land was never eroded by those special laws. In India also this pattern or process of dual liability was followed in the matter of making laws for the governance of the Army both during the colonial period and subsequently after independences. Thus the Army Act 1950 and Army Rules1954, the substantive and procedural law governing the administration of justice in our army contain provisions recognizing, incorporating
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and implementing the vital aspects of dual liability, and jurisdiction of both civil courts and courts martial over persons subject to Army Act.

Military Offences and Civil Offences Sections 34 to 68 of the Army Act stipulate punishments for offences. Most of them are offences that could be committed only by persons subject to Army Act and hence purely military. Section 69 makes all offences under the common law that could be committed by ordinary citizens also punishable under the army act, when committed by persons subject to Army Act. This section, in one sweep brings all offences punishable as per the ordinary law of the land, under the ambit of the Army Act, so as to be charged under it. Three offences exempted from its operation, that too only when committed on civilians under certain conditions are given in Sec 70. With the exception of these three offences that too under certain circumstances only, all others could be charged under Army Act and tried in accordance with procedure laid down in Army Rules. Those civil offenses are 'deemed to be offences under the Army Act by virtue of Sec 69, the scope of which has been judicially termed as a legal fiction. This legal fiction indeed creates a plethora of offences under one Section, and is often used against offenders in combination with relevant penal provisions of various enactments under the common law, like IPC, Official Secrets Act and so on. Constitutional Provisions Regarding Dual Liability - Article 33 in Action Under Army Act Section 21, the Parliament has given power to the Central Government to make rules to restrict to such extent and in such manner as may be necessary, the rights of any person subject to Army Act to associate himself with political activities, and restrict or deny freedom of expression in certain manner. Pursuant to this power given, the Central Government has made Army Rules 19, 20 and 21 curtailing such rights which can be seen to be within the ambit of Article 33 and Section 21 of the Army Act. In addition Army Rule 96 & 129 put certain restrictions on the right to be defended by a legal practitioner of the choice of the accused at his trial otherwise available under Article 22(1). Apart from these patent restrictions on the fundamental rights, the Army Act, Army Rules by virtue of their very scheme and effect of being put into force, bring in many other restrictions indirectly or in a latent manner. Thus an offender subject to army Act, by reason of being so is denied several liberties and procedures enjoyed by his counterpart in civil who is proceeded against under the CrPC. For example the arrest provisions as given in Army Act Section 101 are such restrictions on personal liberty which are peculiar to persons subject to Army Act. Can it be said that these arrest provisions or other procedural matters connected with progressing of a disciplinary matter under the Army Act and Rules are violative of Art -14 of the Constitution? Certainly not, because these are the special provisions the Parliament has deliberately enacted for the governance of the Army, keeping in view their peculiar role, state of discipline and system of working. In Ram Sarup's case the Supreme Court held that each and every provision of the Army Act is a law made by the Parliament and that if any such provision tends to affect the fundamental rights under Part, III of the Constitution, that provision does not on that account become void, as it must be taken
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that Parliament has thereby in the exercise of its powers under Art 33 of the Constitution made the requisite modification to affect the respective fundamental rights. In the light of this general observation, the Supreme Court further held that Sec 125 of the Army Act does not in any way violate art 14 of the Constitution (Sec 125 of the Army Act, when read with Sec 69 thereof can be seen to permit or bring in dual liability of a soldier both under civil law and military law) as long as any restrictions or abrogation of fundamental rights (be it as a result of express provisions or incidental to any special provisions contained in the Army Act or Rules) are seen to be within the framework of the limits laid down in Art 33, i,e. "so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them", they cannot be violative of the Constitution, which indeed is the guarantor of personal liberty and natural justice to every citizen including a soldier. Such restrictions and abrogations are always subject to judicial scrutiny and the Supreme Court or any of the High Courts in India have so far not found any thing in the military law overstepping those limits laid down by the founding fathers of our Constitution. It is to the credit of our Parliamentarians and national leaders that while they have the eagerness to keep our Army the most efficient and disciplined among all the Armies of the world, they have also had the farsightedness and wisdom to ensure that our soldiers are not made mere mercenaries or robots, but remain selfrespecting citizens who have voluntarily chosen a career dedicated to the cause of national defence; and whose personal liberty and other fundamental rights are as precious as those of any other citizen. Dual Liability and Jurisdiction positively asserted under the Army Act Sec 126 of the Army Act positively states that a magistrate when satisfied of the requirement of bringing a soldier offender to trial before himself may take steps to issue notice to military authorities to stay proceedings under military law and deliver over the offender to him. Parallel provisions bringing in and recognising dual liability and jurisdiction with regard to a soldier are enshrined in Sec 125 of Army Act , Sec 473 of the CrPC 1973 (Act 11 of 1974) and the Rules made thereunder. Corresponding provisions governing Air Force and BSF personnel are to be found in Sections 124, 125 and 126 of the, Air Force Act, 1950 and Secs 46, 80, 81 of the Border Security Force Act 1968 respectively. However, the Navy Act 1957 does not expressly state those provisions as in the aforesaid Acts. At the same time it also does not expressly or impliedly bar the jurisdiction of the criminal courts in respect of acts punishable both under the ordinary criminal law and the Navy Act and thus recognises dual liability and jurisdiction in a silent manner. Conclusion It is significant to note that the service conditions of the army personnel are governed in terms of the provisions of the Army Act, 1950. It is a self-contained Code in itself and in the event of there being any act or complaint or grievance against any of the officers, the Army Act itself provides the remedy. The Army, Navy and Air Force of the country cannot but be attributed to be the most disciplined services of the country. As such, Courts will have to proceed with proper circumspection while dealing with the personnel governed under the special legislations in that direction. The Army Act being one such, judicial review is permissible on any action in the event the same is not in accordance with law. But the same is not an unbridled power conferred on Constitutional Courts in
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the exercise of jurisdiction under Article 226 of the Constitution. It has its limitations and the Court must exercise the same within limitations and not de hors the same. Use of restraint in the matter of interference is the hallmark of judicial control over administrative action, more so when Courts would be dealing with the members of disciplined forces. The decision of the Supreme Court in the case of Tata Cellular v. Union of India, (AIR 1996 SC 11) lends support to the observations noted above. Special emphasis ought also to be made as regards the dealing with the matter of personnel covered under the Special Acts like the Army Act. The Supreme Court in one of the pronouncements (Union of India v. Major A Hussain, 1998 (1) SCC 537) in no uncertain terms observed that in the event of there being a Court Martial, which has been convened in a proper manner and there is no challenge to its composition and the proceedings followed are in accordance with the procedure prescribed, the High Court ought not to interfere in such a state of affairs and must stay its hands. Col M S Jaswal (Retd) is a former Infantry Officer who was later transferred to the Judge Advocate Generals department. Also an author, he has held many important legal and judicial appointments while in the Army and is currently practicing at the Punjab & Haryana High Court and the Armed Forces Tribunal at Chandigarh.

--------Abbreviations used in the Gazette : AFT Armed Forces Tribunal, CAAF - Court of Appeals for the Armed Forces, CoI Court of Inquiry, DCM District Court Martial, DoPPW Department of Pension and Pensioners Welfare, DoPT Department of Personnel & Training, GCM General Court Martial, HC High Court, MoD Ministry of Defence, SC Supreme Court, SCM Summary Court Martial, SGCM Summary General Court Martial, , UOI Union of India, US United States

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NOTES

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