Armed Forces Law Journal 2012 (1)

REFLECTIONS - I !ACT OF CO IN" INTO FORCE OF AR E# FORCES TRI$%NAL (AFT) ACT& 200' $() L*+ "en (Re*d) S+ !a**a,-.raman
1. At the end of my tenure as a founder Member of the Armed Forces Tribunal Regional Bench Chennai, I thought it appropriate to lea e behind an immediate after action report !ith mainly the ser icemen litigants in mind, on the impact of coming into force of these Tribunals spread across the country and functioning in nine of the country"s ma#or metros$cities since August %&&'. %. (ince then these 1) Tribunal Benches ha e replaced *igh Courts and lo!er courts as the courts of first appeal in relation to all ser ice matters pertaining to both ser ing and retired personnel of the three !ings of the Armed Forces, i+. Army, ,a y and Air Force. Furthermore, the ad#udicated #udgments of these Tribunals, made up of a Bench of a retired #udge of a *igh Court -!ith one e.ception notably of the Chairperson, !ho is a retired (upreme Court #udge/ and a retired senior (er ice officer, are challengeable by !ay of appeal only at the *on"ble (upreme Court as per current pro isions of the Act. 0. The report in the form of a *andout is primarily aimed at pro iding at a glance to any of the affected ser ing officers$soldiers and$or retired ser icemen$ne.t of 1in !ho may be forced into see1ing remedy -beyond the ser ice/, a reference material as to ho! best to go about doing so. To that e.tent it is more of a 234s 5 34,"Ts6 guide, !ith e.amples based on my e.hilarating e.perience of these past t!o and a half years. 7. I call this e.perience as e.hilarating because I consider myself as one of the common species of the Indian Army !ho, till retirement on 01 3ec %&&8 and till e en later until appointed to this appointment, !as led to belie e that a ser ing person is seldom in need of ta1ing recourse to Ci il Courts and it is only superannuated $ retired personnel and senior ser ing officers that too !hen denied promotions !ho approach *igh Courts by !ay of 9rit :etitions challenging the ;o ernment. 4n assuming the appointment as Member -Administrati e/, in the Chennai Regional Bench, this belief !as shattered !hen confronted !ith the transferred cases from the *on"ble *igh Courts of Madras and *yderabad, !hich apart from being on an a erage < to 1& years old, pertained largely to recruits and young soldiers sent out on discharge on account of either disability or on grounds of unli1ely to ma1e the grade to =ualify to be a soldier, !ho had challenged these

2 Armed Forces Law Journal 2012 (1) + discharge orders in Courts. The bureaucratic manner of treating such cases of recruits, as also aberrations apparent in some of the badly handled cases of dismissals and disproportionate a!ards on account of courts martial ha e besides being been eye>openers spurred me on to pen my reflections before the in1 dries up. ). The *andout, I ha e aimed at, is to be primarily of use to the prospecti e litigants, !ho ha e no! been pro ided !ith, statutorily, an opportunity both affordable and close at hand, hitherto considered not so, to be able to address percei ed !rongs in a finite time of not more than a fe! months. 8. It is to the credit of the hierarchy of the three (er ices *ead=uarters, their Records offices, the offices of the :C3A -:ensions/ and the M43, that they ha e responded !ith alacrity to the o er!helming demands made on them e er since the AFT !as operationalised, !hich has made it possible for the stupendous success achie ed in disposing of record numbers of cases and bringing do!n the pendency of military litigation from o er 1%&&& to a fe! hundreds? To!ards the end of the *andout, I ha e also placed for consideration of the (er ices hierarchy at the top, recommendations for consideration !ith the M43 to!ards effecting a fe! reforms to!ards rendering greater e=uity, at pace !ith march of la!. @. In the end I am than1ful to Mr. M. A. (i1dar, Ad ocate, Madras *igh Court 5 AFT Regional Bench, Chennai 5 Chief Bditor of the Armed Forces Ca! Dournal and to Ma# ,a deep (ingh, Ad ocate, :un#ab 5 *aryana *igh Court 5 AFT Regional Bench, Chandigarh 5 :ublisher of the online Forces Ca! ;a+ette for incorporating the handout in their respecti e forthcoming issues. C-enna.& 1/*- Fe, 2012 Sd0L*+ "en (Re*d) S+ !a**a,-.raman A1-SunCity Apartments 9 Santhome High Road Mylappore , Chennai 600 004.

Armed Forces Law Journal 2012 (1)

REFLECTIONS ON I !ACT OF CO IN" INTO FORCE OF AR E# FORCES TRI$%NAT (AFT) ACT& 200' IN#E2
1. Introduction !a3e Nos+ 1

C-a4*er I
%. E5-aus*.on o6 a7a.la,le remed.es (ser7.n3 4ersonnel) Types of Remedies Time (tipulation 0 0 0 7

C-a4*er II
0. E5-aus*.on o6 remed.es-re*.red o66.cers0!$OR and *-e.r 8.n

C-a4*er III
7. Cause o6 ac*.on) A44roac-.n3 *-e r.3-* 6orum (9.3- Cour*0Su4reme Cour*) (alient 3ifferences !ith Central Administrati e Tribunal -CAT/ :olicy Matter s. :ersonal or :ersonnel Issue Cause of Action 7 > ) 7 ) 7 8 > 17 8 ' 11 1% 10 17

C-a4*er I:
/+ a;or causes 3.7.n3 r.se *o rel.e6s ,e.n3 sou3-* and su33es*ed l.ne o6 a44roac3isability :ension Claims 3ischarge !ithout :ensionary Benefits 3enial of Family :ension to 9ido!s$,e.t of Ain -,4A/ of Missing (er icemen Bntitlement of (econd Family :ension 3enial of :romotion Appeal against (entence of 3ismissal5$Eerdict of Courts Martial

C-a4*er :
8. F.l.n3 o6 a44eal0a44l.ca*.on and 4resen*a*.on o6 4a4ers& scru*.n( o6 coun*er0re4l( s*a*emen* o6 *-e res4onden*s and su,m.ss.on o6 4o.n* ,( 4o.n* re;o.nder *o *-e same& re6erence ,oo8s& 4lac.n3 4er*.nen* c.*a*.ons o6 pari material case laws0es*a,l.s-ed d.c*ums03o7ernmen* no*.6.ca*.ons Filing :rocedure :resentation of :apers (crutiny of Counter$Reply (tatement of Respondents and 1<>%<

1< 1' %&

Armed Forces Law Journal 2012 (1) (ubmission of Re#oinder :ublications, Boo1s, Case Ca!s, Reported Citations, ;o ernment ,otifications

+ %%

C-a4*er :I
@+ Recommenda*.ons 6or cons.dera*.on o6 *-e m.n.s*r( o6 de6ence (mod) %' > 01 and *-e ser7.ces M43 %' All Three (er ices 0& ,a y 4nly 01

C-a4*er :II
<+ "re( areas .n 6ermen* and w-.c- ma( .n7ol7e A4e5 Cour*<s .n*er7en*.on0rul.n3 Fuestions of (uperintendence and 9rit Durisdiction 12 0%

C-a4*er :III
'+ Food 6or *-ou3-* Is the Gniformed (er ices" Eie!point ;etting :ro#ected Correctly in Courts of Ca!H -------------------------00 > 0) 00

A!!EN#I2
Su4erscr.4* Re6+ I*em !a3e Nos+ (ec %8, The Army Act, 1')& 08 (ec %@, The Army Act, 1')& 0@ :ara 087, Regulations for Army, 1'8% 0@ (ec %0, The ,a y Act, 1')@ 71 Regulations %08, %0@, %0<, %0' of ,a y, :art II, (tatutory 7% (ec %@, The Air Force Act, 1')& 77 (ec %8, The Air Force Act, 1')& 77 (ec 1), The AFT Act, %&&@ 7) (ec %1, The AFT Act, %&&@ 7@ (ec %%, The AFT Act, %&&@ 7< :ara 08<, Regulations for the Army 7< :ara 08', Regulations for the Army 7' (ec 17-1/, The AFT Act, %&&@ )& (ec 0&, The AFT Act, %&&@ )& 3ismissal of (C: by Ape. Court in GoI Es. ;urmit (ingh Butter )1 :un#ab 5 *aryana Court 4rder in ;urmit (ingh Butter Es. GoI )0

1. %. 0. 7. ). 8. @. <. '. 1&. 11. 1%. 10. 17. 1). 18.

1@. 1<. 1'. %&. %1.

%%. %0. %7. %). %8. %@. %<. %'. 0&. 01. 0%. 00. 07. 0). 08. 0@. 0<. 0'.

Armed Forces Law Journal 2012 (1) 1 3ictum of *on"ble Ape. Court >> :rimacy of Medical opinion )) GoI Es. 3amodaran AE -3ead/ through CRs 3ictum of *on"ble Ape. Court >> :rimacy of Medical opinion 87 4m :ra1ash (ingh Es. Gnion of India 5 4rs. (ection 7@, The :ersons 9ith 3isabilities IB=ual 4pportunities, @% :rotection of Rights and Full :articipationJ Act, 1'') 11 -i/ ,otification !.r.t. e.emption of AF :ersonnel from @0 pro isions of :ersons !ith 3isability Act, 1'') :un#ab 5 *aryana *igh Court #udgment on grant of 3isability @7 :ension as affirmed by the (upreme Court K applicability of broad>banding to those !ho are released on completion of terms K Gnion of India Es. :aram#it (ingh Ape. Court #udgment on compulsory discharge of CMC personnel> @' GoI Es. Ra#pal (ingh Mo3 :olicy letter post> E C:C, on pensionary benefits including <@ broad>banding. ;o ernment order on Family :ension to families of missing persons 1&1 Rule )7 K sub>rule 10 -b/ 5 %7 of the CC( -:ension/ Rules, 1'@% 1&8 GoI 5 4rs Es. Ct ;en R ( Aadyan 5 Anr K -%&&&/ 8 (CC 8' 11& Ca1h!inder (ingh Es. GoI 5 4rs -%&&</ @ (CC 11< Regulations for the Army, 1'<8 K Reg 1&< L Constitution and 1%% 3uties of (election Boards. (urinder (hu1la Es. GoI 5 4rs -%&&</ % (CC 87' 1%% 4rder of ac=uittal in a case of an accused ser ing term for an 1%) offence by :rincipal Bench. 4rder of re>instatement of an officer tried under (ec 8& of the AA 100 by :rincipal Bench. Army Rule 07 -1/ 10' Ape. Court sets aside Army Court Martial procedure -'8 hours 10' had not elapsed after issuance of charge sheet /> CA ,o.81<1$&% Ape. Court"s ruling on disproportionate punishment K 17< BM. ,ai1 (ardar (ingh Es. GoI 5 4rs. (ec @1 of the Army Act, 1')& 1)7 Form for use at (ummary Court Martial in Appendi. III, 1)) :art I -c / of Army Rules Memoranda for guidance of officers -C4/ placed at the end of 18) Appendi. III to Army Rules :ara 77< of Regulation for the Army 188 ;ist of 4rders in r$o cases of ,a y personnel dismissed by 18'

2 7&. 71. 7%. 70. 77. 7). 78. 7@. 7<.

Armed Forces Law Journal 2012 (1) + !ay of (ummary Trials Army Rules %%, %0 1@& Air Force Rule %7 1@% (ec '0 -%/ of ,a y Act 1@0 Regs %@, %<, %' of Regulations for the ,a y, :art II (tatutory 1@7 (ection 11 Res Judicata (Part I), (uits in ;eneralN C:C,ActE$1'&< 1@8 4rder % -Frame of (uit/ Rule %, the First (chedule, C:C,Act E$1'&< 1@@ Mo3 letters of August, %&&1, Duly %&&7 5 May %&11 > delegating 1@< po!ers to (er ice head=uarters in a ariety of pension related sub#ects. (ection %, The AFT Act, %&&@ 1<8 -i/ (ection %, The Army Act,1')& O 1<8 -ii/ (ection %, The Air Force Act,1')& O -iii/(ection %, The ,a y act, 1')@ O >>>>>>>>>>>>>>>>>>>>

REFLECTIONS ON - I !ACT OF CO IN" INTO FORCE OF AR E# FORCES TRI$%NAL (AFT) ACT& 200' In*roduc*.on
1. 4n < Aug, %&&', *er B.cellency (mt. :ratibha 3e i (ingh :atil inaugurated in the hallo!ed precincts of Eigyan Bha an, ,e! 3elhi, the :rincipal Bench of the AFT in accordance !ith the pro isions of the AFT Act enacted by the :arliament in %&&@. %. It !as a truly historic occasion !herein the desire for an independent ad#udicatory forum for the 3efence personnel of the three !ings of the Armed Forces en isioned first by the *on"ble (upreme Court in its remar1s !hile ad#udicating the case of :riti :al (ingh Bedi s. G4I in 1'<% and later ta1en up by successi e Central ;o ernments !as met, !hen the Founder Chairperson *on"ble Dustice A.A. Mathur along !ith eight Dudicial Members -retired *igh Court Dudges/ and fifteen Administrati e Members -17 retired Ct ;ens and a retired ,a al Commodore !ho !as DA;, ,a y/ formally too1 up assignments in the duly constituted 1) Benches of the AFT, regionally distributed at ,e! 3elhi > 0 Benches, Chandigarh > 0 Benches, Cuc1no! > 0Benches and a Bench each at Daipur, Aol1ata, Mumbai, Chennai, ;u!ahati and Aochi. 0. The opening of the :rincipal Bench at ,e! 3elhi in Aug %&&' !as follo!ed up !ithin months by the opening of other se en Regional Benches barring the one at Mumbai -!hich due to administrati e reasons could be opened only on &' Dun

Armed Forces Law Journal 2012 (1) 1 %&11/. Today, t!o years plus do!n the road, it can be stated !ith a great deal of assurance and pride that there is practically no pendency of cases inherited from -mostly/ *igh Courts !hich !ere o er appro.imately 1&,&&&, going bac1!ards to on an a erage of eight to ten years of pending litigation if not more in certain cases. 7. That the AFT, ha ing disposed of most of the transferred>legacy cases, is only dealing !ith current cases no! and disposing them in a matter of an a erage of si. to eight months from filing of the petition$appeal to deli ery of #udgment, -!hich currently can only be contested in the *on"ble (upreme Court as per the AFT Act/, by itself =ualifies to be ran1ed as an unparalleled feat of success in independent India. The contours of this success story, more importantly its long>term implications for the three (er ices, both ser ing and the larger beneficiaries i.e., the retirees$ eterans, call for a detailed analysis in the nature of a management e.ercise. I !ould ho!e er, ha ing been fortunately part of this stupendous enture as one of the founder members, li1e to lea e behind my immediate report>card as short term recommendations for those !ho are li1ely to be associated !ith dealing !ith cases in the AFT in any capacity. ). This handboo1 more in the nature of an aide memoire cum helpline for the prospecti e litigants and recommendations for consideration of the respondents, i+., the M43 and the three (er ices, is laid out for con enience into chapters titled as underL> a/ Chapter 1> In>house A ailable Remedies to a (er ing 4fficers$ :ersonnel belo! officer ran1 -:B4R/ !hen aggrie ed and before e.haustion of !hich they cannot approach AFT. b/ Chapter %> B.haustion of A ailable Remedies to a Retired 4fficer$ B.> (er iceman$ ,e.t of Ain$ Cegal *eirs. c/ Chapter 0> Cause of Action and approaching the correct forum, AFT$ *igh Court$(upreme CourtH d/ Chapter 7> Categorisation of ma#or causes of dissatisfaction, the li1ely causes gi ing rise to the same and the line of approach. e/ Chapter )> Filing of Application$Appeal and :resentation of material papers. (crutiny of Counter$Reply statement of the Respondents and submission of a :oint by :oint Re#oinder, Reference Boo1s and pertinent citations of $ parimateria case la!s$ established 3ictums.

2 Armed Forces Law Journal 2012 (1) + f/ Chapter 8> Bntreaty to the Respondents, i+., the Ministry of 3efence and the three (er ices. g/ Chapter @> ;rey areas in ferment and that may need the Ape. Court"s rulings. h/ Chapter <> Food for Thought. i/ Appendi. > B.tracted citations and :olicy letters referred to in the body of the *andboo1. >>>>>>>>>>>>>>>>>>>>>>>>>>

C9A!TER =I -E29A%STION OF A:AILA$LE RE E#IES (SER:IN" !ERSONNEL) T(4es o6 Remed.es

8. There are primarily t!o classes of remedies that the AFT recogni+es of ha ing been e.hausted by an aggrie ed person, the first by !ay of a statutory complaint to the M43 or to an authority delegated by the ;o ernment as such, in the Army$,a y$Air Force Acts and the second by !ay of appeals against disciplinary or other a!ards to authorities outlined in Acts or Rules or Regulations. @. (tatutory Complaint L In any issue gi ing rise to a cause of action see1ing remedy, eg., pertaining to promotion, seniority, tenure curtailment or !rong>doing affecting career prospects etc, the applicant, prior to 1noc1ing at the doors of the AFT ideally should ha e petitioned the M43 as per rele ant pro ision of the Army Act1 -(ec %8 for :B4R 5 (ec %@ for 4fficers, read !ith :ara 087, Regs for the Army/, ,a y Act% -(ec %0 for both 4fficers 5 (ailors read !ith Regulations %08 to %0' of The Regulations for the ,a y, :art II, (tatutory/, or Air Force Act 0 -(ec %@ for 4fficers 5 (ec %8 for Airmen/. <. Appeal against A!ardsL These can be di ided under t!o classes, i+. 3isciplinary a!ards by !ay of Court Martial or ,on>grant of 3isability :ension by !ay of constituted Boards of (pecialists for the purpose of grant of such a!ards. In the former case, pro isions e.ist in the Army$,a y$Air Force Acts for a person !ho has been tried and sentenced, to appeal by !ay of pre and post confirmation petition to authorities specified in the respecti e Acts. *o!e er it has been e.perienced that the aggrie ed persons, particularly Army jawans of a lo!er educational bac1ground ha e not been careful in cogently retaining documents pro ided by the authorities, such as copies of court martial proceedings, thus putting them at a handicap resulting in either an incomplete$ incoherent appeal or a much delayed appeal or no

Armed Forces Law Journal 2012 (1) 1 appeal at all. Coming as a relief to them, the AFT Act, as enacted deals !ith such an appeal against court>martial a!ards under (ec 1) 7 of the Act as an or.3.nal a44eal and therefore it is immaterial !hether a person has e.hausted the remedy open to him under the rele ant Army$,a y $Air Force Act prior to see1ing relief by !ay of an appeal against disciplinary a!ards. T.me S*.4ula*.on '. As per sections %1) and %%) of the AFT Act, any person !ho has not got a remedy !ithin si. months of his complaint$appeal against a!ards to the M43, can file petition before the Bench of the AFT, !ithin !hose #urisdiction his $ her case falls. *e$ she can also file petition against an unsatisfactory reply to his statutory complaint$ appeal against a!ard, !ithin si. months of such a reply ha ing been recei ed. ,ot!ithstanding the si. months stipulation as mentioned in complaints$ appeals, either not replied to or reply recei ed unsatisfactorily, should a person ha e a grie ance !hich has arisen three years prior to the operationalisation of the AFT Act, he can ha e his petition entertained , if he can satisfy the Tribunal Bench that there !as sufficient cause for the delay. In the case of the :rincipal Bench in ,e! 3elhi this date of rec1oning !ould be @ Aug %&&', the date of notification in the official ga+ette and in the case of the Chennai Regional Bench, the date !ould be %1 4ct %&&', and so on in respect to other Benches as and !hen they !ere notified. >>>>>>>>>>>>>>>>>>>>>>>>>>

C9A!TER 2 - E2A%STION OF RE E#IES - RETIRE# OFFICERS0!$OR AN# T9EIR >IN

1&. Record 4ffices in the case of Army :B4R and A;"s branch in the case of officers is the nodal agency for approaching on any matter concerning pensionary benefits and ser ice matters of a personal nature. Ideally, a person should !rite to such authorities before approaching the Tribunal. In fact Regulations 08< 8 5 08'8 of the Regs for the Army can be referred to !herein necessary pro ision has been made for retired personnel to formally see1 clarifications through the offices of the Ra#ya (aini1 Boards$ and see1 relief thereby, prior to approaching the AFT. Central Record 4ffices at 3elhi and Mumbai respecti ely can be approached in the case of Air Force and ,a y :B4R and their personnel branches at ,e! 3elhi for officers. 11. 4nce again, li1e in the case of ser ing personnel, should there be no satisfactory remedy pro ided !ithin si. months of ha ing made the re=uest$plea, retired personnel ha e the doors of the AFT open to gi e ent to their plea in the prescribed format of an application. 3ue care must ho!e er be ta1en to send their pleas to the

2 Armed Forces Law Journal 2012 (1) + authorities at the correct addresses and by !ay of registered post and proof of deli ery$ac1no!ledgement must be a ailable to confirm its receipt by the respondent-s/ and thereby #ustify e.haustion of the remedy. >>>>>>>>>>>>>>>>>>>>>>>

C9A!TER 1-CA%SE OF ACTION) A!!ROAC9IN" T9E RI"9T FOR% (9I"9 CO%RT0S%!RE E CO%RT)
Sal.en* #.66erences w.*- Cen*ral Adm.n.s*ra*.7e Tr.,unal (CAT) 1%. The AFT Act, by an e.press pro ision in sec 17 -1/ @ of the Act, confers on the AFT e.ercise of all the po!ers, e.ercisable in relation to (er ice matters -itself defined in sec 0 -o/ of the AFT Act/, hitherto e.ercised by any Court in the country, e.cept the !rit #urisdiction !hich continues to be ested in the (upreme Court and *igh Courts under articles %%8 and %%@ of the Constitution. 10. The abo e pro ision, !hen read !ith sec 0& < of the AFT Act, !hich lays do!n the appeal pro ision against any order of the AFT only at the doorstep of the *on"ble Ape. Court, speeds up the litigation time by placing its superintendence only at one le el abo e, that of the *on"ble Ape. Court. 17. 4ther!ise modeled on an already !ell established similar forum, i+. CAT, the abo e pro isions ho!e er built into the legislati e frame!or1 of the AFT Act, frees AFT from the burden of the former, in !hich no early end to the litigation chain is in sight, !hen, despite CAT ha ing been empo!ered !ith #urisdiction as a court of first instance, on the basis of the famous dictum in C. Chandra1umar s. G4I, 1''@ -0/ (CC %81> its decisions are challenged at *igh Courts and subse=uently are challengeable at (upreme Court. 1). 9ith regard to challenging policy letters of the ;o ernment, the Chennai Regional Bench has held the ie! that despite the #udgment of *on"ble Ape. Court in C. Chandra1umar s. G4I -supra/, the specific reference to e.clusion of !rit #urisdiction e.ercisable by *igh Courts under Art. %%8, as built into (ec17 of the AFT act, categorically forbid the AFT Bench to admit such challenges. This ie! has ho!e er not been follo!ed in a number of #udgments rendered by some other Benches of the AFT including the :rincipal Bench and it is hoped that march of la! !ith perhaps a reference to and$interference by the *on"ble Ape. Court !ould clarify the issue in course of time. 18. The AFT is en#oined to ad#udicate on and interpret e.isting policy frame!or1 to!ards ensuring e=uity and fair>play !ithout discrimination on the part of the

Armed Forces Law Journal 2012 (1) 1 implementers of such policies. (ec 17 -)/ of the AFT Act empo!ers the Benches of the AFT !ith ery !ide po!ers, in specifically mandating the AFT Bench to decide both =uestions of la! and facts that may be raised before it. Cause o6 Ac*.on 1@. In therefore, deciding to approach a Bench of the AFT, ha ing e.hausted a ailable departmental$institutional remedy open to him$her, an applicant$appellant, ha ing made sure that his$her case is not hit by limitation of time, must be clear that he has a personal issue at sta1e and should feel aggrie ed by a faulty or a s1e!ed interpretation of e.isting order-s/ on the rele ant issue that has led to a complaint$hurt$monetary loss etc, needing alle iation$ redressal either not pro ided for or unfairly re#ected by the authorities $ respondent-s/. This dissatisfaction $ discrimination !ould pro ide the necessary cause of action. A case can be legitimately made out e.pressed as relief-s/ being sought -:ara < of the standard Appeal$Application format/. 1<. 4n the other hand, !e at the Chennai Regional Bench ha e held that, should a policy letter or a rule position e.pressed as a letter or an instruction or an order be applicable to a class of persons as a !hole eg., :romotion policy for ,C4s and CR, 3iscipline criteria contained say in an Army order or an Air Force regulation or a ,a y instruction stand in the !ay of an applicant and not its implementation by the authorities to the personal disad antage of the applicant-s/, it cannot form the basis of a cause of action before the AFT but may be challenged in a *igh Court or the (upreme Court, !hich under the !rit #urisdiction ested in them under the Constitution and after e.amination of the case can pass suitable orders for either amending$modifying the impugned policy$instruction or to stri1e it do!n on grounds say of discrimination or bias. Though, other Benches of the AFT ha e held that the Tribunal is fully competent to e.amine the legality of policy matters also. >>>>>>>>>>>>>>>>>>>>>>>>>>

C9A!TER ? - AJOR CA%SES "I:IN" RISE TO RELIEFS $EIN" SO%"9T AN# S%""ESTE# LINE OF A!!ROAC9 #.sa,.l.*( !ens.on Cla.ms
1'. Gndoubtedly the single biggest reason of dissatisfaction relating to all three (er ices is the mechanical and unsympathetic treatment at the hands of authorities dealing !ith processing of claims arising out of non>grant of disability pension on grounds of non>attributability to ser ice life$conditions or in reducing the

2 Armed Forces Law Journal 2012 (1) + percentages of disability belo! acceptable -erst!hile %&P/ percentages that =ualify for grant of such a pension. 4ut of o er ))& cases disposed of by the Chennai Regional Bench -prior to 1& 3ec %&11/, <8 cases pertain to a!ards on account of disability pension and of these decided cases, %< -Q 1 In alid :ension/ stand allo!ed in fa our of the petitioners. %&. B er since the operationalisation of the AFT, and in fact as a result of certain scathing remar1s by *on"ble *igh Courts, notably 3elhi and :un#ab 5 *aryana *igh Courts and the Ape. Court !hich coincidentally preceded the formation of the AFT, the Ministry of 3efence -M43/ has been forced to introspect its orders and procedures so as to reduce substantially the lingering trauma faced by scores of litigants in see1ing to literally stri e for a life of dignity as opposed to e1ing out a life of subsistence? As a result it may not be useful to d!ell on past cases !hich stand decided or maybe are in the last leg of litigation at the doorstep of the Ape. Court. I shall therefore only enumerate the current state of this Rcause of action" !hich !ill remain foremost on account of unfortunate but ine itable discharges that !ould continue to occur on account of e.acting physical standards re=uired of a ser iceman not only at the entry stage, in the initial period of training prior to commissioning as an officer or ta1ing oath as a soldier but also subse=uently in ser ice, physical fitness being de>rigueur to ser ice life. %1. The current status of and rule position relied upon by the M43 and the (er ices !hich are the respondents in defending claims for denying disability pension as suitably interpreted by recent de elopments on the grant of disability pension a!ards are as underL> a/ Initial medical screening at the time of recruitment as soldier$air !arrior$seaman at best can be general and unli1ely to detect the presence$ infliction of constitutional diseases, such as occurrence of fits or hallucination etc. In the case of officer entry cadets these medical e.aminations are more detailed and yet it may not be possible to conclusi ely put the officer trainee cadet through all the specialists. In the e ent therefore, during training, should the in alidment of an indi idual be as a result of failing to measure up medically, by lac1 of re=uisite attendance and$or passing of mandatory physical proficiency tests, during the permitted period of pre>oath ta1ing or commissioning -despite grace periods/ or, due to prolonged sic1ness then the indi idual is discharged as not being able to ma1e an efficient soldier in accordance !ith statutory pro isions by !ay of rele ant Army Rule$Air Force Rule$ ,a al regulation. b/ 4n the other hand, attributability to or aggra ation by ser ice conditions, being a necessary pre>re=uisite to grant of disability pension is generally granted to

Armed Forces Law Journal 2012 (1) 1 bonafide in#ury related cases. In#ury reports and Court of In=uiry proceedings are particularly relied upon to attribute in#ury to ser ice conditions, if the in#ury is sustained !hile in performance of officially sanctioned duties, such as organi+ed physical or recreational acti ity. There has been a long held ie! that a ser iceman !hen on casual lea e, !hich as per lea e regulations is treated a1in to being on duty for certain documentation purposes, should automatically get the benefit of attributability and a!arded the recommended disability pension and on the flip side of interpreting this regulation, a person on annual lea e stands ineligible to be considered as being on duty and hence denied disability pension, e en if the in#ury !as purely accidental !hile being on authori+ed and sanctioned annual lea e. 4 er a period of time !ith march of la!, and based on fa ourable #udgments from certain Courts, the authorities had gi en the benefit of doubt of attributability in cases that had a direct continuing causal connection !ith tra el to and return from lea e, eg., an in#ury sustained due to a fall from a train !hile returning from lea e !as treated as =ualifying for the grant of disability pension. The go ernment apart from considering the limited e.tension of interpretation of duty as mentioned, has ho!e er been loath to concede to a plethora of fa ourable #udgments passed by arious *igh Courts in fa our of in#ured ser icemen !hile being on annual and casual lea e and a number of (pecial Cea e :etitions -(C:s/ are pending in the *on"ble Ape. Court against these #udgments. Recently -on1>7>%&&'/ the *on"ble Ape. Court' in dismissing a Ci il Appeal in G4I s. ;urmit (ingh Butter has upheld a landmar1 #udgment passed by *on"ble :un#ab 5 *aryana Court ' in ;urmit (ingh Butter s. G4I, %&&& -0/ R(D, that a ser ice personnel on lea e of absence of any 1ind, be it annual lea e or casual lea e or furlough is to be considered on duty. *o!e er this landmar1 #udgment !ould stand superseded by the #udgment rendered on 1)>@>%&11 by the *on"ble Ape. Court in CA ,o. 7%<1$%&&8, G4I s. Du#har (ingh, !hen it o erturned an earlier #udgment granting disability pension for in#ury sustained during annual lea e by *on"ble :un#ab 5 *aryana Court on 7>1>%&&% !hile dismissing G4I"s C:A,o)$%&&% on the sub#ect. It is felt that the *on"ble Ape. Court !as not informed of its o!n earlier dismissal of the Appeal in the case of G4I s. ;urmit (ingh -supra/ and also other cases such as Madan (ingh (he1ha!at Es. G4I and Doginder (ingh Es. G4I. Further the respondent in the latter case had earned a ser ice pension on superannuation and !as claiming a disability pension in addition, for the in#ury sustained !hile in ser ice during a spell of annual lea e, !hereas in the case of ;urmit (ingh he !as in alided out !ithout any pensionary benefits. c/ The medical in alidment by a duly constituted medical board and called an In aliding medical board or a release medical board, depending on !hether a person is being retired$discharged pre>maturely or is being retired$discharged as a lo!

2 Armed Forces Law Journal 2012 (1) + medical category, is a pre>re=uisite for grant of a disability pension. AFM(F>18, the form used for the purpose has been modified by a ne!er form called Eersion>%&&%. A copy of this form on completion of the board is being gi en to the person sub#ected to the board soon after its completion since %&&8 and this modified practice of gi ing to the affected person the result of his board has in a single stro1e contributed to drastically reducing in fructuous litigious paper !or1 on account of repeated claims being preferred and mostly re#ected, !hen the affected person including officers remained blissfully ignorant of the medical $specialist officer"s opinion on the disability under !hich he is being sent home and !hether it has been opined as being attributed to or aggra ated by ser ice conditions and the percentage of disability and for ho! long recommended by the board -generally for %$) years or for life/. d/ The single most important authority relied upon by the (er ices in ad#udicating on disability pension claims is the Bntitlement Rules for casualty pensionary a!ards ,1'<%, superseded by Bntitlement rules %&&<, referred to as Appendi. II to the :ension Regulations. B.tracts from this Appendi. supplemented by the guidelines contained in ;uide to Medical 4fficers -Military :ension/, %&&<, ha e been =uoted at length in a plethora of #udgments both for and against the fundamental =uestion of !hether a disease resulting in in alidment has come about, as a result of the same ha ing been ac=uired in ser ice or !hether the stress and strain of ser ice conditions ha e contributed to the !orsening of the disease or is it constitutional !hich !ould ha e happened any!ay eg., heart attac1 or cancer and the ser ice condition has no role to play. A simplistic and a plain reading of the Appendi. II pro isions !ould suggest and =uite rightly so that after the initial period of pre>commission $ pre>oath ta1ing training any occurrence of a disease !ould be on account of ser ice conditions, bait due to en ironmental factors or climatic conditions or !or1ing conditions. In fact the benefit of doubt, if any on account of assigning attributability to ser ice conditions, citing causal -this !ord is confused !ith casual by most people including at times in a number of #udgments rendered, that it is the most confused !ord in the le.icon of all those dealing !ith the sub#ect/, connection to ser ice !or1$!or1place$ ser ice routine etc, is mentioned in the Appendi. as to be gi en to the affected ser iceman, more so if the disability had surfaced$occurred in Field ser ice conditions. This liberal interpretation of the benefit of assigning attributability of in aliding disease to ser ice conditions, as contained in the Appendi. II to Bntitlement rules for :ensionary a!ards, is on the other hand sought to be negated by the concerned authorities by institutionali+ing a procedure !hereby the office of :C3A -:/, Allahabad, is nominated as the sole arbiter of deciding on the opinion of the medical board including o erturning attributability to negati e and reducing recommended percentages and duration of

Armed Forces Law Journal 2012 (1) 1 disability. The coming into effect of the AFT , dictums laid do!n by the *on"ble Ape. Court1& on the primacy of the opinion of the medical boards on the a!ard of disability pension in, G4I s. 3amodaran AE -3ead/ through CRs -%&&'/ < MCD, %&11 -1/ AFTCD %@, 17@) (C, and in 4m :ra1ash (ingh s. G4I, AIR %&1&, (C 0))@ and a number of liberali+ation measures announced by the ;o ernment, post recommendations of the )th C:C ha e reduced substantially the bac1log of pending cases related to disability pension a!ards and !ith the ma1ing a ailable of the medical board proceedings in the form of an e.tract, to affected person on conclusion of the board itself and replacing the ad#udicatory authority on the opinion of the medical board, from that of the :C3A -:/ !ith that of the A; -for officers/$Record 4ffice -for :B4R/ $e=ui alents in ,a y$Air Force, the system has become transparent and !ould contribute greatly to!ards remo ing any doubts on arbitrariness and thereby remo e the ma#or cause of action against hitherto Runseen" a!ards. e/ ,ot!ithstanding !hat is stated abo e, particularly relating to recruits and young soldiers prior to completing 1& years of ser ice -!hich entitles a ser iceman to In alid pension/ and !ho are in alidated out on account of diseases considered as being neither attributed to nor aggra ated by ser ice, conditions and labeled as being constitutional in nature, !e ha e a social problem !hich re=uires addressing. In our country a young man thro!n out of the Army$,a y$Air Force !ithout pension at ages arying from %& to 0& years, needs some safeguards from the organi+ation that legally cannot gainfully employ him. The Armed Forces personnel are also e.empt from being legally pro ided !ith guaranteed employment by the employer since the pro isions of sec 7@ 11 of the :rotection of :ersons !ith 3isability Act does not apply to the Armed Forces by notification 11-i/ of the ;o ernment . f/ Another problem pertaining to denial of disability pension to such persons !ho oluntarily ta1e retirement or discharge has been set right by a (upreme Court ruling1% !hich has rubbished the miscued interpretation of the official authorities by ruling that any lo! medical category -CMC/ person !ho oluntarily retires from ser ice of his o!n olition and is placed in a medical category lo!er than that !hen he #oined the ser ice, must be put through a duly constituted medical board-In aliding$release medical board/ and he !ill on discharge be entitled to the disability pension at par !ith those !ho are forced out. g/ The Ape. Court has also in a landmar1 #udgement 10 Ra#pal (ingh s. G4I, dt. &@> 11>%&&<, I,(C 1'10, ruled that e.ercise of po!ers under Army Act 10 by the C4A(, empo!ering C4s to !eed out lo! medical category personnel is ultra vires

2 Armed Forces Law Journal 2012 (1) + the Constitutional rights of an Indian citi+en !hen done through a Release Medical Board. As a result, apart from recalling a large number of CMC personnel discharged post>4peration :ARAARAM the Army as also the other t!o (er ices ha e formulated a comprehensi e policy of rehabilitating CMC personnel till they attain pensionable ser ice. h/ As has been mentioned earlier, passage of time, march of la! and the ;o ernment"s o!n introspection coupled !ith amelioratory measures incorporated in successi e :ay commission a!ards ha e all resulted in issuance of :olicy 17 ,o 1-%/$'@$3-:en>C/, dt. 01>&1>%&&1, !hich, apart from simplifying approach to grant of any type of disability pension has remo ed the minimum re=uired %&P and broadly di ided the percentages as up to )&P, )1>@)P and @8>1&&P.

#.sc-ar3e w.*-ou* !ens.onar( $ene6.*s

%%. Cause of action arising out of non>receipt of pension on completion of sufficiently long years of ser ice-as per applicant"s understanding/ yet falling short of the mandatory =ualifying ser ice of 1) years is another ma#or reason for litigation at the AFT. :ost )th C:C, the go ernment in Aug %&&1, has increased the period of condonation of lac1 of =ualifying ser ice to earn ser ice pension, to one year from that of the earlier 8 months -see sub>paragraph )8-g/,Chapter ) 5 Appendi., for letter reference/. ;o ernment orders pro iding for 0 months rounding>off in respect of In alid pension -no! entitled after ' years and nine months of =ualifying ser ice instead of 1& years, in case of non attributable cases/ha e also since been issued in %&11 -see sub>paragraph )8-g/, Chapter)5Appendi.0%,for details/. 9hile these measures !ill help mitigate a fe! past cases, the circumstances under !hich a soldier pre>maturely get discharged either oluntarily !ithout comprehending the later effects of ha ing to sustain a family !ithout pension, or is sent out by an insensiti e establishment or a commanding officer see1ing to Rsort out a man" !ill continue to pre ail and such instances do pro ide for a #ustifiable cause of action. %0. In ariably it is seen that, certain errant young soldiers !ithout a care so to say, being mostly unmarried do not understand the implications of accumulating red in1 entries conse=uent to getting summary punishments mostly on account of either being 4(C or A9C, in iting punishment for offences under sec 0' of the Army and Air Force Acts and sec )1 of the ,a y Act or at times desertion under sec 0< of the Army$Air Force Acts and sec 7' of the ,a y Act. *a ing collected more than 7 red in1 entries$ e=ui alent criterion in the Air force$,a y, the person, no! classified as a habitual offender ma1es him self liable to be sent out administrati ely after ser ice of a sho! cause notice at the le el of an officer of the ran1 of a Brigadier$ e=ui alent. There are an increasing number of *R guidelines$:olicies for C4s to

Armed Forces Law Journal 2012 (1) 1 follo! to sho! compassion, particularly to those habitual offenders !ho ha e not got any punishment on account of being dealt !ith for offences dealing !ith moral turpitude or criminal negligence. ,ot!ithstanding such internal orders and guidelines, there !ill al!ays be cases sufficient in number, !ho !ould challenge their Administrati e discharge orders at the AFT, because it is not the Scouldn"t care less delin=uent" soldier !ho is 1noc1ing the doors of the AFT but his poor !ife or parents !ith a large unsupported family that see1 some form of financial support, as #ust payment for the ser ices rendered by their husband or son. %7. (o, in such cases !hat should be the line of approach of the person or his$ her counselH There !ill be ery little to dispute in the facts on record. In fact the respondents in their methodical and systematic manner of maintaining records !ill furnish a true picture of the circumstances of discharge, !hich !e ha e found can be turned to the ad antage of the petitioner !hose o!n plea is more emotional than factual. 9e ha e in the Chennai Bench, disposed of a number of cases, on grounds of infringement of rele ant pro isions of la! and thereby granting relief by allo!ing the petitions or suitably modifying a!ards in fa our of the petitioners .9e ha e found that, there are cases that ha e not been disposed of !ith clean hands, by the respondents, due to a ariety of human failings. B en the paper!or1 !hich should conform to la! and principles of natural #ustice is found !anting and therein lies the panacea for the aggrie ed litigant. (ome of the commonly committed errors, that standout in such R bad discharges" are as follo!sL> a/ (ho! cause notice, is either not issued by the officer empo!ered to do so, or the discharge is effected !ithout due consideration of the reply by the person !ho issued the sho! cause notice. b/ Reason for discharge as mentioned in the discharge certificate aries from that of the sanction, eg, sanction obtained to discharge on grounds of Sinefficient soldier" after getting reply to a sho! cause notice, gets reflected in the discharge as against medical grounds, !hich renders it illegal because the latter !ould re=uire an opinion of an In alid$ Release medical board to support discharge. c/ (adly, it has been found that in cases of desertion, !herein a person has oluntarily re>#oined his Gnit, he has been charge>sheeted for desertion, !hich is against la!, as it is !ell understood that desertion is distinguished from absent !ithout lea e -A9C/ only on account of the moti e and once a person !ho may ha e run a!ay to a oid duty, oluntarily re#oins, irrespecti e of duration of absence, as opposed to being arrested or apprehended, he should ha e been dealt !ith for A9C$4(C, under sec 0' of the Army$Air Force Act and not sec 0<. The damaging effect of being !rongly dealt !ith for desertion as against absent !ithout lea e is

2 Armed Forces Law Journal 2012 (1) + that on notification of the punishment in official records, this resultantly gets manifested in a brea1 in ser ice and ser ice put in prior to desertion does not count for =ualifying ser ice for pension, unless the person thereafter ser es in an e.emplary manner, incurring no red in1 entry for at least three full years The litigant remains ignorant of this record in his conduct sheet, and it gets to be 1no!n only and after he has been furnished a copy of the counter !hich the tribunal calls for after the initial notice is issued. In such cases therefore, the litigant ser iceman has a fair chance of redressal if he !ere to call for records pertaining to punishment entries that led to the issuance of a sho! cause notice as a precursor to e entual discharge.

#en.al o6 Fam.l( !ens.on *o @.dows0Ne5* o6 >.n (NO>) o6 Ser7.cemen

.ss.n3

%). A number of cases of !ido!s or grie ing mothers of soldiers declared deserters initially, and after the mandatory period of three years, notified as dismissed, ha e got the benefit of ad#udication by the AFT in their fa our by !ay of grant of Family pension, due to them. %8. The problem arises !hen ha ing declared a person as a deserter his Gnit fails to chec1 !ith the person"s home !hether his absence is 1no!n to and ac1no!ledged by the ,4A. 9e found in most cases, despite unambiguous instructions, apprehension roll declaring a person deserter is not sent to his home properly !ith ac1no!ledgement recei ed of the deli ery of this report of a husband or son missing. The local police also o er a period of time ha e gro!n indifferent to carrying out an in estigation into such reported absence, by failing to physically isit the family of the soldier. The case thereafter gets to be treated mechanically by follo!ing the mandatory holding of in=uiry after 0& clear days and declaring the indi idual as deemed to ha e deserted. The impersonal nature of handling such cases by the ser ices is e ident from the conclusi e opinion of such courts of in=uiry held to in estigate desertion$A9C$4(C, !hich routinely declares the indi idual as a deserter, instead of declaring him as 2a deemed deserter $ missing6. %@. As per ;o ernment orders on the sub#ect 1),entitlement of Family :ension in cases of such persons declared missing, is to be gi en from the date of a FIR registered at the home or nearest police station or the date declared as missing - a deserter/, !hiche er is later. (ince the ,4A at home is ne er properly informed of the desertion they remain ignorant till an an.ious =uery is raised by the ,4A !ith the Gnit. This =uery follo!ed by more and more desperate re=uests are replied by the Record 4ffice$ unit in a standard monologue to say that he has failed to turn up

Armed Forces Law Journal 2012 (1) 1 and he is accordingly declared a deserter. The sad part is that at no stage does either the Record 4ffice or the Gnit tell the ,4A to register a FIR !ith the local police and follo! up !ith the police on ascertaining the !hereabouts of the missing soldier. Three years later, the person is struc1 off the rolls as dismissed and !hate er running balance is in his ledger account, is sent to the ,4A saying under :ension Regulations a dismissed person is not entitled to :ension. The rigid, bureaucratic and heartless attitude coupled !ith lac1 of 1no!ledge of e.isting instructions, of registering a FIR !ith police as a pre>re=uisite for processing claim for Family pension at all le els of administration and a real>time dis>connect bet!een a unit and its parent Record office results in ,4 one ad ising the !ife or the parent of the reportedly deserted person to ;4 A,3 FICB A FIR , and !ith a copy of the FIR after a reasonable period of !ait and after re>chec1ing !ith the police, approach the Record office to claim family pension as per entitlement. 4f course the same !hen granted in ol es ta1ing a guarantee of return of the amount paid, should the missing ser iceman re>surface. %<. In all such cases of missing persons, a cause of action for the ,4A to claim family pension !ould automatically arise but the litigant !ido!$parent is ad ised to file a complaint !ith the local police the moment they suspect of something being amiss. :lacing trust only on the Army to trace out and more importantly grant due entitlement due to the ,4A is found to be misplaced since the (er ices unfortunately do not recogni+e that a person could ha e gone missing unless in !ar or !hile ser ing on the border. *a ing declared a person deserter, the ser ices simply !ash their hands off in a mechanical and statistical manner. (o, the cause of action must be bac1ed by reporting of the absence !ith the police by !ay of a FIR, in order to ha e a good case at the AFT.

En*.*lemen* o6 Second Fam.l( !ens.on

%'. C3A -:/, Allahabad, has interpreted pro isions contained in the :ension Regulations lin1ed to Rule )7 18 of the CC( -:ension/ Rules, 1'@%, as amended to stop payment of military pension to !ido!s of (er ice personnel !ho are re> employed in the ci il after retirement on the demise of the pensioner$re>employed husband in case a pension is dra!n from the ci il go ernment source. 0&. There is no barber se on dra!al of t!o pensions by a ser iceman but dra!al of the second pension by the family of a ;o ernment ser ant has been disallo!ed under the pro isions of rule )7 of the CC( -:ension/ Rules 1'@% abo e !ith only one e.ception. The e.ception adduced as sub>rule %7 18 to Rule )7 says that if the second pension from that of the late husband"s re>employer is part of BmployeesS :ension (cheme 1'@1 or 1''), -!hich are more in the nature of employee

2 Armed Forces Law Journal 2012 (1) + :ro ident Fund scheme/, then the !ido! is entitled to military family pension as also the pension from the re>employer. The applicability of this beneficial measure in the go ernment notification has ho!e er been made prospecti e from (ep %&&1, the date !hen this !as made effecti e from. 01. Tribunals ha e pronounced a number of fa ourable #udgments to !ido!s !ho fall into the abo e e.ception !ith the re>employer gi ing an appropriate certificate to the effect that the Family pension from the re>employer is as per the abo e e.ception pro ided for in sub>rule %7 to rule )7 of the CC( -:ension/ Rules 1'@%. It has been interpreted that if the second pension is from a contributory source, then it is admissible in addition to the family pension from go ernment source.

#en.al o6 !romo*.on
0%. 4ne of the common causes of action pertains to denial of the ne.t selection grade ran1 and conse=uent benefits thereof of additional$enhanced ser ice, bac1 !ages and enhanced pensions. The respondents rely on a !ell tested system of assessing a person !ith his peers of the same batch !ith application of common policy rules and guidelines relating to criteria in discipline, medical standards and annual confidential reports -ACRs/. 00. ,ot much can be distinguished in the arguments ad anced by litigants, bet!een officer related cases or of personnel belo! officers ran1 -:B4R/. In either case the petitioner approaches the Tribunal only after a final re#ection of his statutory complaint. These arguments in all cases ha e rested on being biased and sub#ecti e by reporting officers in the chain of CR reporting, starting from the Initiating officer, to the re ie!ing officer, to superior reporting 4fficer and in certain cases to ne.t superior Reporting 4fficer. 07. (cope of #udicial re ie! in cases of re#ection of statutory complaints related to non>empanelment is generally limited. *on"ble Ape. Court has normally declined to interfere !ith the selection process of the Army so long as there is no apparent bias. In G4I and ors s. Ct. ;en. R ( Aadyan and another, -%&&&/ 8 (CC 8'< 18A, the Ape. Court !hile re#ecting the plea of Ct. ;en R ( Aadyan for consideration for Army Commander has at great length del ed into the differing interpretation of the principle of merit>seniority>selection in its application to different selection boards ie. (B>1, (B>%,(B>0,((B and to the Army Cdrs. In re#ecting the plea of Ma# ;en Ca1h!inder (ingh for promotion e en though recommended fa ourably by the collegiums consisting of the C4A( and EC4A($Army Cdrs, in Ca1h!inder (ingh s. GoI and ors, -%&&</ @ (CC 87< 18B, the Ape. Court has said that under sub> paragraphs, 1&< -d/ and 1&< -e/, 18C for the Regs for the Army 1'<8, there

Armed Forces Law Journal 2012 (1) 1 commendations of selection boards are not binding on the appro ing authority, i+. C4A($the Central ;o ernment. In the case of (urinder (hu1la s. G4I and ors, -%&&</ % (CC 87'183, the Ape. Court !hile reiterating the limited po!ers of #udicial re ie! in promotion related cases has also held that unless contemporaries alleged to ran1 lo!er in merit -and selected in the impugned board/,are impleaded in the main petition as respondents , the case of the petitioner !ill not stand #udicial scrutiny. 0). There has been a noticeable shift to!ards meaningful relief no! a ailable to a petitioner, after the AFT replacing the *on"ble *igh Courts as the court of first ad#udication, in case an apparent aberration or a patent inconsistency is seen in the pattern of reporting in the impugned CRs. This is so because the AFT Act empo!ers the Tribunals to loo1 at and ad#udicate on facts in addition to e.amination from the point of la! alone. The AFT cannot ho!e er, on the basis of aberrations apparent in the e.amination of the CRs order any promotion but can direct the respondents to sub#ect the petitioner to a fresh process of selection after setting aside aberrations,as stated such in the #udgment of the tribunal. 08. The calling for the rele ant CRs after e.hausting of statutory remedy and see1ing their e.amination for inconsistency$bias $sub#ecti ity, should form the basis of a petition see1ing redressal on account of non grant of promotion$non empanelment. ;rounds could also arise on account of a faulty interpretation of an e.isting policy, in !hich case any apparent resultant discrimination could be highlighted including impleading similarly placed persons !ho ha e apparently been the beneficiaries -as a result of the impugned policy/ as parties in the application

A44eal a3a.ns* Sen*ence o6 #.sm.ssal A 0 :erd.c* o6 Cour*s

ar*.al

0@. ,e.t only in numbers to the disposal of cases see1ing disability pension, the AFT has perhaps disposed of the ma.imum cases pertaining to appeal against erdicts of courts martial and in the case of the ,a y against summary trial a!ards !herein dismissal has been a!arded as a punishment. 4ne of the distinguishing features of the pro isions of the AFT Act has been the o erriding po!ers ested in the tribunals against any infirmity or illegality found in the conduct of the trial at courts martial and summary trials -in ol ing a!ard of dismissal only/. Cac1 of such po!ers !ith *on"ble *igh Courts and (upreme Court, of mitigating the sentence or ordering re>trial, and from interfering !ith the court martial process at any stage, !hen hither>to>fore, similar appeals !ere being made to such forums, but under the !rit #urisdiction, had unfortunately placed the august courts in a difficult situation of not being able to render immediate relief to deser ing litigants, but instead to refer

2 Armed Forces Law Journal 2012 (1) + the cases bac1 to the respondents for re>consideration after pointing out the illegalities in ol ed. 0<. In a large Army such as the Indian Army, as also in a comparati ely larger Air force and ,a y, !hen compared to the !orld militaries, the number of litigants appealing against in#ustices done, in courts martial, can be considered insignificant, thereby gi ing comfort in the !ell oiled military system of e=uitable dispensation of #ustice being the hallmar1 of Indian Armed Forces, ho!e er, the aberrations noticed in some of the cases dealt !ith by tribunals of the AFT, do call for a serious introspection and a fe! correcti e actions on the part of the (er ices in such cases !herein natural #ustice has been compromised. I shall co er these in the form of recommendations later in Chapter>8 of this boo1 and confine myself herein only to the method of approaching the AFT, !ith an appeal against such erdicts in ol ing dismissals. The cases coming up for ad#udication can be loo1ed at from three categories for ease of understanding and therefore of dealing !ith them. 0'. :roceedings of ;eneral and 3istrict Courts MartialL These proceedings, -the latter applicable only to the Army and Air Force/, are generally free from procedural irregularities as also from any deliberate and mala fide bias. (itting alongside my learned and astly e.perienced brother *on"ble Dustice A.C. Arumugaperumal Adityan in the Tribunal, I cannot ho!e er say the same !hen it comes to arri ing at findings based on the case of the prosecution !hich is meant to pro e beyond any reasonable doubt the charges framed against an accused, on the !eight of the e idence brought for!ard at the trial, !hich is the litmus test in all criminal trials. The Indian B idence Act 1<@%, applies mutatis mutandis to military trials. It is my obser ation that the !or1 ethics of the ser ices in relation to dealing !ith disciplinary cases in ol es firstly in speedily bringing an accused to trial and thereafter to conclude the trial !ith least amount of delay. 9hile speed is essential, the ser ices need also to ensure that the conduct$proceedings of the courts martial are free from any attempt to deny full opportunity to the accused to present his case and the procedure adopted does not in ol e ta1ing recourse to any short cut particularly in garnering and presenting as much corroborati e e idence as is possible so as to ha e an ironclad prosecution case. In some of the cases that ha e been ad#udicated by the AFT unfortunately, these t!o aspects ha e been found !anting. In a case resulting in the ac=uittal of a soldier undergoing sentence of imprisonment in a ci il #ail on a charge of murder as per Army Act, sec 8' read !ith sec 0&% of the I:C, before the :rincipal Bench of the AFT, in TA ,&.17@$&' 1@, Mul1 Ra# (ingh s. G4I, *on"ble Dustice A.A. Mathur, Chairperson of the AFT, !hile deli ering the #udgment has inter alia obser ed at these shortcomings to be as a result of, inherent lac1 of training in recei ing and e.amining e idence on the part

Armed Forces Law Journal 2012 (1) 1 of officers assigned to ser e as :residing 4fficers or Members of Courts Martial. In yet another landmar1 #udgment in Ct Col (( Bedi s. G4I, in TA ,o%78$&' 1@-i/, by the :rincipal Bench, AFT, *on"ble Dustice A.A. Mathur had to ac=uit a dismissed officer charged under sec 8& of the Arms Act read !ith B.plosi e (ubstances Act, 1'&<, for !ant of corroborati e e idence. (ome of the shortcomings therefore, that could be loo1ed at for pro iding reasons for appeal are as follo!sL> a/ Eerdict based only on the alleged confessional statement of the accused pro ides reasonable ground for appeal. The respondents in typical military style in their eagerness to =uic1ly put an end to an ongoing case, are li1ely to fall prey to a ailing the first opportunity of either e.tracting a confessional statement so called oluntarily or coerce the accused to accepting their ersion, not out of any malafide intent but !ith the eagerness to sho! progress in dealing !ith a disciplinary case !ith alacrity, considered a military irtue. This leads to iolating the cardinal principle of gi ing a chance to the accused to be heard properly, by treating him as not guilty, once he is to be sub#ected for a trial. There is no room for any short cut in a trial since the erdict and resultant sentence is not a mere admonishment but a #udicial indictment !hich is sub#ect to #udicial scrutiny. In any case e en from the point of ie! of passing muster, no confessional statement ta1en !ith !hate er amount of transparency, unless it is ta1en in the presence of a ci ilian #udicial magistrate !ill be admissible as e idence in a criminal court. b/ Con iction based on non corroboratory e idence and$or circumstantial e idence alone is the other ground !hich again gi en the hurry to dispense #ustice is a not so uncommon a phenomenon in military trials. c/ The third and perhaps a less common aberration but a serious one !hich at times has gone unnoticed during the court martial is an infringement of the statutory pro ision itself eg, in Army courts martial, in terms of Army Rule 07-1/ 1<,an accused has to be gi en at least '8 hours-%7 hours on acti e ser ice/ after the charge sheet is ser ed on him and before he is arraigned in front of the court martial. Failure to comply !ith this mandatory re=uirement resulted in the *on"ble Ape. Court1' ac=uitting the respondent in the case of CA ,o.81<1$%&&%, G4I s. AA :andey. It !as also held in the same case that pleading guilty in such a situation !ould be of no conse=uence. 7&. Appeal against summary Court Martial a!ards. This is applicable only to Army personnel, there being no pro ision in Air Force and ,a y Acts for this type of a court martial. In a large Army such as the Indian Army, !herein the institution of a Commanding officer is the foundation on !hich the entire disciplinary edifice of the army is built, summary court martial or (CM as is commonly referred to empo!ers

2 Armed Forces Law Journal 2012 (1) + a C4 !ith the single most potent po!er o er his command e.cepting o er officers. The C4 is conferred !ith po!ers of dismissal and imprisonment for a period of one year against ,on commissioned officers -,C4s/ and soldiers and a!ard of se ere reprimand to Dunior Commissioned 4fficers-DC4s/.(ince a period of imprisonment of three months or more entails such imprisonment to be carried out in a ci il #ail, it is common practice to get rid of habitual offenders and bad hats on commission of a cogni+able offence by a!ard of a sentence of imprisonment for a period of three months and dismissal from ser ice. It is this punishment of dismissal a!arded by (CM !hich has gi en rise to ma.imum number of litigation on account of appeals against courts martial a!ards. This is so because, as a conse=uent result of the a!ard of dismissal a soldier is depri ed of all pensionary benefits as per pension regulations. *a ing been a C4 myself and ha ing e.perienced e ery rung of higher command appointments up to a ;4C>in>C, I can say !ith all humility, that, no! that I am re=uired to ad#udicate along !ith my learned and astly more #udicially e.perienced brother, on all such cases that ha e come up before us for relief, !e" e had no hesitation, unless the person has been charged for offences in ol ing moral turpitude, to modify the sentence of dismissal alone to that of discharge, to permit the soldier or his ,4A to get pensionary $terminal benefits for ser ice rendered. *on"ble (upreme Court%& had in B. ,ai1 (ardar (ingh s G4Iand ors, -1''1/I,(C101$1''%AIR71@$1''1(CR-%/8'8, ruled by !ay of a dictum that in cases !here the =uantum of punishment alone is found to be e.cessi e then dismissal modified to discharge !ould ser e the ends of #ustice. I shall, in subse=uent Chapter>8, re> isit this a!ard of dismissal !ith unfortunate conse=uences of denial of terminal benefits, since there is no pro ision to a!ard a more #ust a!ard of Rdischarge" in the scale of punishments a!ardable by courts martial in sec @1%1 of the Army act. Reasons stated in paragraph 0'-a/ to -c/ abo e, pro iding cause of action against percei ed illegality in con iction and a!ard of sentence of general courts martial !ould e=ually apply in the case of (CM. In addition, some of the other reasons peculiar to (CM could be as follo!sL> a/ Form used>Appendi. III, :art1 -C/%% and Memoranda%0 for the guidance of 4fficers Concerned !ith Courts MartialL (ince most con ictions are based on a plea of guilty, and the same is challenged by the litigant as ha ing been coerced into gi ing, or ta1en !ithout 1no!ing the implication, !e find that in ariably !hile challenging the vires of the (CM, non compliance of Army rule 11)-%/ is a ma#or ground for challenge. 9e also find that in most cases the litigant"s counsel is not able to pro e the infringement to la!, e en though malafide intensions may be ob ious in the facts of the case. These !ould be re ealed on a detailed e.amination of the manner of conduct of the (CM proceedings by the C4 of the accused. There are detailed guidelines and specific instructions for the C4 to follo! in the

Armed Forces Law Journal 2012 (1) 1 memoranda of instructions placed in the Army rules after the specimen form for use at summary courts martial. In the memoranda of instructions for the C4, the manner of recording of the summary of e idence is gi en in great detail. The form to be used at the (CM is a spea1ing form by itself. More often than not in typing a similar form in lieu for use at (CMs, infringements ta1e place since the C4 does not meticulously follo! the !ord by !ord instructions !hen he either uses a form in lieu, !hich may not pro ide for ade=uate space for filling up rele ant spo1en matter or types separately on a piece of paper, inad ertently omitting certain portions from the original form. The most important safeguard for an accused in a (CM, is the summary of e idence. In cases !herein the accused has pleaded guilty, apart from his signature !hich is re=uired to be ta1en by the C4, at the appropriate place on the form being used at the court martial, the C4 is re=uired to read out the full summary of e idence in the language in !hich the accused understands, !hich means in *industani or nati e language. This e.ercise in itself !ill ta1e a certain amount of time say at least one hour e en in cases !hen the summary of e idence consist only a fe! pages. From a perusal of the form, !hen one discerns that the (CM has been completed in 0& minutes, it !ould be reasonable to surmise that there has been a short cutting of the procedure, sho!ing a pre>meditated trial, and therefore a lac1 of application of mind. In such cases !herein a definite pre>meditated course of action is re ealed, chances of a disproportionate punishment being a!arded also increase and this can be used to ad ance arguments in fa our of the litigant. b/ Caution against a!ard of sentence of Imprisonment in e.cess of three months and 3ismissal. :aragraph 77<%7 of the Regulations for the Army imposes on a C4, a caution, not!ithstanding liberty to a!ard any legal punishment, in terms of restricting the punishment in a (CM to less than three months and refrain from a!arding dismissal for sa1e of getting rid of a bad hat, for most military offences and particularly in the case of first time offenders. These regulations though non statutory are ery much supplemental to the rele ant statutory pro isions !hich they amplify. Any iolation of these cautionary instructions !ill pro ide a strong case for litigants to pray for relief of setting aside a disproportionately e.cessi e punishment, if it is contrary to the guidelines for C4s holding (CM, contained in this paragraph of the Regulations for the Army, 1'8%, e en though non>statutory. 71. Appeal against (ummary trial a!ards of 3ismissal in the ,a yL The third category of cases that the AFT has been re=uired to ad#udicate on, pertains to a!ard of summary dismissals under the pro isions of the ,a y Act 1')7. For the record, AFT Regional Bench, Chennai has held the summary trial proceedings in all fi e cases%) transferred to the tribunal from the *on"ble *yderabad *igh Court, !herein sentence of dismissals ha e been a!arded, as illegal and ordered de-novo trials in

2 Armed Forces Law Journal 2012 (1) + three cases, !ithdra!al in another case !ith fa ourable indication from the respondents for grant of a discharge and allo!ed the last case !ith a notional discharge date to permit the deceased sailor"s !ife to get Family pension. In disposing of the last case TA1'@$1&, RA Mishra$,eelam Mishra s. G4I, on %'>&7> 11, in !hich my learned brother *on"ble Dustice A.C. Arumugaperumal Adityan rendered the #udgment, I obser ed that there are clearly laid out set of rules and procedure in the Army and Air Force Acts by !ay of Army Rules %% 5 %0 %8 and Air Force Rules %7%@, !ith regard to hearing of a charge in front of a C4. These ma1e it mandatory for the accused to be gi en opportunity to cross e.amine !itnesses and for the recording of a summary of e idence to be ordered by the C4. The rules spell out clearly that at the summary of e idence the accused !ill be present throughout !ith opportunity to cross e.amine !itnesses deposing against him. The corresponding pro isions that empo!er a C4 in the ,a y in accordance !ith sec '0-%/%< of the ,a y Act 1')@ and relied upon by the respondents are Regulations %@, %< 5 %'%' of the Regulations for the ,a y, :art II, (tatutory. Regulations %@ 5 %<refer to carrying out of in estigation and ta1ing do!n of e idence by officers lo!er in the command echelon to that of the C4. Regulation %', pertains to the in estigation by the C4 and Regulation %'-7/, !hich is e.tracted in the Appendi. chapter, is also e.tracted herein and reads as 2If the punishment to be a!arded is li1ely to be a !arrant punishment re=uiring appro al of a superior authority, a (ummary of B idence gi en by the !itnesses shall be recorded6. 9e found to our utter astonishment that either the preliminary in estigation stage or at the stage of in estigation by the C4, there is neither any de-jure mention of an opportunity to be pro ided for cross e.amination in the Regulation and nor de-facto it is practiced. Furthermore, the summary of e idence as understood by the respondent ,a y officials is a (GMMATI4, of pre iously recorded e idence -of course !ithout an opportunity of cross e.amination pro ided to the accused/and ,4T a summary of e idence to ha e been freshly recorded as a conse=uence of the hearing in front of the C4, as stipulated in the Regulation %'-7/ e.tracted abo e. The C,(, in confirming the a!ard of a sentence of dismissal in each of the fi e cases disposed of by the Chennai Tribunal and referred to earlier, has based his decision on e idence !hich is ultravires and against principles of natural #ustice and therefore all such dismissals are liable to be set aside.

C9A!TER / - FILIN" OF A!!EAL0A!!LICATION AN# !RESENTATION OF !A!ERS& SCR%TINB OF CO%NTER0 RE!LB STATE ENT OF T9E RES!ON#ENTS AN# S%$ ISSION OF !OINT $B !OINT REJOIN#ER TO T9E SA E& Re6erence $oo8s& !lac.n3 !er*.nen* C.*a*.ons o6 !ar. ma*er.a Case Laws0es*a,l.s-ed d.c*ums03o7ernmen* no*.6.ca*.ons

Armed Forces Law Journal 2012 (1) F.l.n3 !rocedure

7%. AFT -:rocedure/ Rules and AFT -:ractice/ Rules ha e simplified the manner of filing of an original application or an appeal as also miscellaneous applications in support of or amplification of the main application$appeal. The arious forms to be used are also easy to comprehend for a lay person and self e.planatory !ith minimum and only essential legal terminology being resorted to, !hich again is e.plained in the sections on definitions. Application can be filed in person !ith the Registrar or sent by post !ith a demand draft or a postal order for Rs.%)&$> .B en this amount can be e.empt in case a person is so indigent that he cannot afford this amount. The essential re=uirement is for the application to be made in triplicate, di ided in t!o compilations, i+. , ,o1 compilation !ith the application and the impugned order and compilation no.% !ith all the accompanying material papers !ith an inde. of documents, affida its, anne.ure etc., tied in a paper boo1 form. 70. At the end of AFT -:rocedure/ rules, there are three forms. Form>I, being the most important, is the form or the format to be used to file the application$ appeal. The 1% paragraphs against !hich an applicant has top refer his application$appeal are easy to follo!, and do not need the assistance of a counsel much unli1e a !rit petition, hither>to>for soldiers had to fill in a *igh Court as a court of first appeal. 77. %' forms placed at the end of AFT -:ractice/ Rules are mostly for the use of the Registry but a perusal of the same by the applicant is recommended so that he is reassured of the safe custody and chain of mo ement of the applicant"s case file.

!resen*a*.on o6 !a4ers
7). The language of the Tribunal is Bnglish. All papers including the application$appeal are re=uired to be typed in double space on full scale A7 si+ed papers. At the discretion of the Tribunal, ho!e er papers can be submitted in *indi !ith attested Bnglish translations. The Tribunals are also not rigid on insistence on A>7 si+ed paper, since, the practicing la!yers are used to filing petitions on legal si+e papers. 78. My e.perience of handling cases filed in the AFT after its formation !hen compared to the transferred cases from *igh Courts pertaining to the pre>AFT days, is that the simplified and formatted system in presenting an applicant"s case, as prescribed for in the AFT -:rocedure/ Rules and the AFT -:ractice/ Rules, ma1es it easier and lucid for the Members, !hile going through the pleadings, to follo! the case se=uentially and in case the applicant ta1es pains to ma1e the inde. to the

2 Armed Forces Law Journal 2012 (1) + documents placed inside in a chronological manner, it !ould ma1e for easier comprehension since follo!ing facts se=uentially and fitting them in a cogent pattern, fits in !ell !ith a reasoned #udicial process. 7@. The AFT act clearly states that the tribunals !hile deciding cases !ill be go erned by the principles of natural #ustice. ,ot!ithstanding the principle of natural #ustice being the altar on !hich the AFT #udgments !ill rest, the detailed procedures, conduct and rules shall ho!e er be go erned by the Indian B idence Act 1<@%, and be guided by the Code of Ci il :rocedure ,1'&< -C:C/, !hich is applicable to all the Indian Courts. Most ser ice personnel particularly the officers are fairly familiar !ith the basic application of la!s of e idence, since the courts> martial are also mandated to follo! the Indian B idence Act 1<@%. I !ould ho!e er li1e to highlight t!o sections of the C:C that negati ely attract litigations at the admission stage itself and may re=uire some legal ad ice so that the application or appeal is not found non>maintainable. These are e.plained as underL> a/ (ec11, C:C, Res Dudicata0&. Gnder this pro ision of la!, an issue already decided by a competent court bet!een the same parties, cannot be re>opened in another court$Tribunal, e.cept by !ay of appeal. 9hile this pro ision of la! has hit a fe! of the transferred cases in the AFT, it is not li1ely to attract fresh cases being filed , ne ertheless, it is !orth chec1ing prior to filing an appeal$ application. b/ 4rder%,Rule%,First (chedule, C:C 01. A suit filed for relief in a Court, must include the !hole of the claim that a plaintiff$applicant is entitled to ma1e in respect of the cause of action. This is an e.tremely important pro ision !hich actually is based on common !orldly !isdom to ma1e an all>inclusi e claim, rather than ma1e a narro! claim, !hich under this rule precludes an applicant from claiming for subse=uent relief for portions omitted earlier. A common e.ample is a claim by an unfortunate recruit restricted to disability pension only -since he !as sent out for missing training on account of continued illness/, !ho !as discharged as being found unfit to become a soldier. 4n detailed e.amination of documents, it is found that the recruit is illegally discharged as he had not missed all his chances for mandatory tests. *e therefore is in fact eligible to ma1e a claim for re>instatement. (ince he failed to include re>instatement as a relief, on dismissal of this claim for disability pension, he is barred to as1 for re>instatement subse=uently. In practice ho!e er, the Tribunal Bench members may, in such cases re eal their mind to the applicant and persuade him to !ithdra! the initial restricted claim and prefer a fresh claim so as to include all possible reliefs, eg, re>instatement$ rehabilitation$any pension and conse=uent benefits. The mantra is to see1 for a broad range of possible

Armed Forces Law Journal 2012 (1) 1 reliefs, since natural #ustice !ill get the litigant all his dues, should he be deser ing of the same?

Scru*.n( o6 Coun*er0Re4l( S*a*emen* o6 Res4onden*s and Su,m.ss.on o6 Re;o.nder

7<. Counter$Reply statement of the respondents is the ABT to resol ing the issue-s/ rose by the applicant and pro ides the clinching arguments both on facts and on points of la! and must therefore be studied by the applicant$his counsel minutely. I can, !ithout any hesitation, say that cases before the AFT ha e in the main been decided by the facts stated in the counter and accompanying documents in the Respondents" counter statement. In fact I !ould largely credit the military system of systematic and efficient record 1eeping as coming to the assistance of the petitioners before us. 9e" e found that in most cases of retired personnel, the prayer$ relief sought in the pleadings is at ariance !ith the facts as stated by the Respondent. This is perhaps because the applicants in ariably recount incidents from memory and are at best able to substantiate their case !ith only a fe! supporting documents apart from the impugned letter-s/.These documents are the only ones !hich the applicant has had access to and therefore not being a complete and coherent record of the facts purported to support his case, his case is either fla!ed or tends to be based more on con#ecture or half>truths and more emotional in content rather than factual. T!o e.amples I !ould adduce to bring home this e.tremely important point. 3isability pension cases are the most glaring ones, particularly prior to %&&8 !hen the petitioner !as not gi en a copy of his o!n Release$In alid Board proceedings, AFM(F>18.*is reliance on his claim !as only based on !hat the concerned Record officer told him, !hich in turn !as based on !hat the :C3A -:ensions/, Allahabad , decided on perusal of the AFM(F>18.4nce the initial claim is re#ected, the same is routinely challenged t!ice more by the applicants, the final time to !hat is called the 3efence Minister"s committee of Final Appeal but sadly !ithout the applicant being furnished a copy of his o!n medical Board proceedings. *is challenge unfortunately ne er gets alue added, because on the misplaced grounds of confidentiality, his o!n medical board proceedings are not gi en to himIsince %&&) this situation has than1fully been redressed -see earlier paragraph %1-c/,Chapter7,supraJ.It is only !hen the Tribunals as1ed the respondents to furnish copies of the medical board proceedings to the applicant and the Tribunal, before the final hearing date that the applicant became a!are of the remar1s of the specialist and the board of doctors" opinion. That the applicant stood indicated in most cases is testimony to the important aspect of seeing the respondents" reply statement !ith all connected documents and altering the final argument supported by case la!s to #ustify the plea made.

2 Armed Forces Law Journal 2012 (1) + 7'. Another common instance !herein e.amination of documents enclosed !ith the respondents" counter statement, may necessitate change of the plea itself, is the reason assigned in the discharge certificate .9e" e found that the discharge certificate, inad ertently misplaced by the applicant but produced along !ith the respondents" counter statement mentions the reason for discharge as being under Army rule 10-0/III-i /, i+., as being unfit for continuation in ser ice, but the legal re=uirements of ser ing a sho! cause notice at the le el of a Brigadier$e=ui alent ran1 officer and due consideration of the same are not met, ma1ing the discharge itself in alid. The applicant in such cases unless he has prayed for a broad redressal, is re=uired to amend his prayer in light of facts hitherto not 1no!n to him. )&. There ha e also been cases !here the respondents ha e discharged the applicant on medical grounds !ithout holding an in aliding or a release medical board, against rele ant pro isions of Army rule, thus rendering the discharge technically in alid. This fact only comes to light !hen the respondent is unable to produce the medical board proceedings, to support the reason for discharge in this case mentioned as Sdue to medical reasons, Army rule 10-0/, III -iii/". )1. The importance of perusing the counter !ith enclosed documents furnished by the respondents, is glaringly apparent in the case of summary courts martial in the case of the Army and summary disposals in the case of the ,a y, !herein dismissals a!arded are under challenge. Gnfortunately, the appellant has only a fe! documents that too dis#ointed, in his possession. The reason is ob ious. In the ,a y"s case, being a summary disposal on a !arrant form, the ,a y does not e en consider obliged legally to gi e the !arrant and details thereof to the appellant. In the case of the Army, !hile it is enshrined in the Army Act to gi e a copy of the summary court martial proceedings as also the preceding summary of e idence, the Gnit le el atmosphere of shunning a person implicated in a trial in ariably results in an unhelpful attitude resulting in miscarriage of the rights of a person accused and$or con icted thereby resulting in the person dismissed !ithout ha ing the benefits of all the documents he is supposed to be gi en by the respondents. The glaring omissions and aberrations that can gi e rise to a cause of action against dismissals a!arded by a summary court martial in the case of the Army or a summary disposal by the C4 in the case of the ,a y ha e already been co ered earlier in Chapter 7, paragraphs 7& and 71respecti ely -supra/.9hat is important is for the appellant to call for and peruse minutely the proceedings of the summary court martial$summary disposal including the summary of e idence and prepare his defence cogently.

Armed Forces Law Journal 2012 (1) 1 )%. A re#oinder prepared by the applicant$appellant after perusal of the counter !ith all connected documents and placed before the tribunal along !ith reported case la!s and established dictums, preferably of the *on"ble (upreme Court, duly inde.ed, !ould go miles in #ustification of the relief sought. It is my e.perience that since the Members prepare themsel es fully before the final hearing date, ha ing read and assimilated the re#oinder, the oral arguments during final hearing, !hen 1ept to the point !ould greatly assist the applicant"s case, for the simple reason that the burden of proof !ill be on the respondent to deny the applicant the relief sought, !hich is based on the infirmities e ident on the face of records furnished by the respondents themsel es. A !ell prepared re#oinder after a careful scrutiny of the respondents" counter and supported by appropriate case la!s, therefore, not only holds the 1ey to #ustify the prayer made, but in case of a faulty prayer, gi es an opportunity for the applicant to consider !ithdra!ing the case and see1 the Tribunal"s indulgence to plead afresh on a different cause of action.

!u,l.ca*.ons& $oo8s& Case Laws& Re4or*ed C.*a*.ons& "o7ernmen* No*.6.ca*.ons

)0. 9ith the operationalisation of the AFT Benches in %&&', nearly t!o and a half years ha e gone by since the :rincipal Bench at ,e! 3elhi deli ered its first #udgment, in Aug of the same year. 9ith 1%$10 of the 1) Tribunal Benches functioning routinely since then and !ell o er 7&&& cases disposed of, there is today no dearth of reported #udgments on military related sub#ects. In fact the march of la! had its effect in military #urisprudence, since early %&&& A3 on!ards, !hen The *on"ble (upreme court dri en perhaps by the pro>acti e #udgments of *on"ble 3elhi and :un#ab5 *aryana *igh Courts in the main, passed certain landmar1 dictums related to disability pension cases. These set the trend so to say for the AFT tribunals to follo! suit, soon after coming into being. 9ith the AFT #udgments, a ailable on the net and the *on"ble (upreme Court dismissing or disposing of in good time a number of (C:s filed by the respondents, it is increasingly becoming easier for an applicant $appellant to get appropriate dictums to support their cases. There has also been a number of ameliorator measures initiated by the ;o ernment post the recommendations of the ) th Central :ay Commission -C:C/ and carried for!ard post 8th C:C, !hich are also a ailable for access in ;o ernment !eb sites. )7. (tandard publications on Acts, Rules and Regulations. Follo!ing is a list of publications that !e ha e relied on as reference at the AFTL> a/ The Armed Forces Tribunal Act, %&&@ -))of%&&@/ along !ith -:rocedure/ Rules,:ractice/ Rules by Gni ersal Ca! :ublishing Co : t.Ctd,C>FF>1A, 3il1ush Industrial Bstate, ;T Aarnal Road, 3elhi>11&&00

2 Armed Forces Law Journal 2012 (1) + b/ The Army Act 1')& -78 of 1')&/ along !ith The Army Rules 1')7, by Gni ersal Ca! :ub. : t. Ctd. c/ The Air Force Act 1')& -7) of 1')&/ along !ith The Air Force Rules 1')&, by Gni ersal Ca! :ub. : t. Ctd d/ The ,a y Act 1')@ -8% of 1')@/ as amended by The ,a y -Amendment/ Act %&&) -%0 of %&&)/, by Gni ersal Ca! :ub. : t. Ctd. e/ The Regulations for the ,a y -Regs ,a y/, :art II, (tatutory by ;o ernment of India, Min of 3efence1'8). f/ The Territorial Army Act, 1'7<, by ;o ernment of India, Min of 3efence. g/ The Territorial Army Rules, 1'7<, by ;o ernment of India, Min of 3efence. h/ -The Indian/ Military ,ursing (er ice 4rdinance,1'70, by ;o ernment of India, Min of 3efence. i/ Military ,ursing (er ices -India/ Rules,1'77,by ;o ernment of India, Min of 3efence. #/ :ension Regulations for the Army, :art1, 1'81, by ;o ernment of India, Min of 3efence. 1/ :ension Regulations for the Air Force, :art1,1'81, by ;o ernment of India, Min of 3efence )). Boo1sL There are also certain boo1s !ritten and compiled by certain e.perts on matters related to military la!, relied upon by the respondents, and these contain apart from case la!s important ;o ernment letters on the sub#ect of pension including disability pensions and other monetary a!ards. Boo1s, !ritten$compiled by the follo!ing authors, are useful study material and are recommended to be consultedL> a/ Ca! Relating to the Armed Forces in India, Fourth Bd, %&&), by Ma# ;en ,ilender Aumar -then ser ing as DA;, Army>no! retired/ and Re1ha Chatur edi, by Gni ersal Ca! :ub Co -supra/. b/ Courts on Military Ca!, by Col ;A (harma 5Col M( Das!al, by 3eep 5 3eep :ublishers : t. Ctd, F>1)',Ra#auri ;arden,,3elhi>11&&%@. c/ :ension in the 3efence (er ices by Ma# ,a deep (ingh, practicing ad ocate in :un#ab 5 *aryana *igh Court and AFT, Regional Bench Chandigarh published by (hree Ram Ca! *ouse,@1>@0,(ector 1@>C,1 st Floor,Chandigarh,:hL&1@%> %@&'%@@.

Armed Forces Law Journal 2012 (1) 1 )8. Citations and ,otifications. (ome of the important citations, briefly highlighting applicable dictums$case la!s and ;o ernment notifications relied upon by the AFT tribunals and not referred to in the superscripts so far in this handboo1, are listed belo!, categori+ed broadly into ma#or reliefs being sought by the applicants$appellantsL>. a/ #.sa,.l.*( !ens.on) -i/ (CC %&1& -7/ :art 7 K (C )80 , %&1& -7/ (CR )%0 -(C/ Gnion of India Es C ( (idhu> Bntire period of ser ice up to the date of discharge $ disability is to be counted as =ualifying ser ice for disability pension. The Ape. Court has ruled that ser ice for the purpose of a!ard of disability pension !ill include the entire ser ice till the indi idual is discharged $ retired and not to be counted only till the date of disability . -ii/ 4rder in C9: ,o.8&<0$%&&8 in the *on"ble *igh Court of :5* in e.>(epoy Aaran (ingh s. Gnion of India 5 others + The petitioner is to be continued to be granted ser ice element of disability pension e en after the reduction of percentage of disability to less than %&P in a subse=uent re>sur ey medical board. Minimum laid do!n =ualified ser ice stipulation of ten years e.isting prior to 1 March, 1'8< and fi e years of ser ice after that date and up to 01 3ecember, 1'@% !as held to be iolati e of Articles 17 5 18 of the Constitution. The order !hen challenged by the Gnion of India by !ay of (C: !as dismissed by the *on"ble Ape. Court on 0&.&@.%&1&. -iii/ AIR %&&7 (C 1%0) Gnion of India Es. ,e1i RamL In a rare case, disability pension !as allo!ed contrary to official medical opinion by a (ingle Dudge and subse=uently the order !as upheld by a 3i ision Bench and !hen contested by Gnion of India, the same !as dismissed by *on"ble Ape. Court. The *on"ble Dudges based purely on the circumstances of the illness decided against the opinion of the medical board. *o!e er, in ie! of a sle! of #udgments by the *on"ble Ape. from %&&< on!ards holding the primacy of the medical board as unassailable the ratio of decision in this #udgment is albeit lessened. -i / MCD %&&@ (C 100 Gnion of India Es. Aeshar (inghL In allo!ing the appeal of GoI, *on"ble Ape. Court re#ected the case of grant of disability pension in a case of schi+ophrenia. - / (CR %&1&-7/ :g 08< Gnion of India s. A#ay 9ahi -3oD L &8.&@.%&1&/ ) In allo!ing the appeal of Gnion of India, the *on"ble Ape. Court upheld the rule position under Regulations )& of :ension Regulation, 1'81 :art I !herein an officer see1ing oluntary retirement is not entitled to disability pension, holding it to be non>discriminatory as per Article 17 of the Constitution. In the process, the *on"ble

2 Armed Forces Law Journal 2012 (1) + Ape. Court o erturned the earlier grant of disability pension by the *igh Court. The officer ho!e er had not faced a release medical board and the Court !as also not informed that the Regulation )& had been abrogated !ith effect from &1 Dan %&&8. - i/ C9: )))1$%&&8 RA 3hingra Es. G4I -decided on %&.&<.%&&</ allo!ed by *on"ble *igh Court of :5* and resultant appeal by Gnion of India in (C: -C / CC 17<)<$1& -decided on &1.1&.%&1&/ !as dismissed by the *on"ble Ape. Court. Both the orders clearly held the medical boards opinion being unassailable and not sub#ect to any re ie! or modification by C3A -:ension/. It !as also held that the disease of *ypertension !as to be declared as caused due to ser ice since it !as listed in the Appendi. to the :ension Regulations as a disability affected by stress and strain of military ser ice.

b/ !ens.on o*-er *-an d.sa,.l.*( 4ens.on+

i/ CA ,o ))88$%&&< as (C:-Ci il/ ,o 1%0)@$%&&8 in G4I s. (:( Eains -Retd/ and ors. In dismissing the appeal filed by the G4I, against the respondents Ma# ;en (C (uri -Retd/ and 8@ others similarly placed, and allo!ing the order of *on"ble :un#ab 5 *aryana court directing 2the !rit petition is allo!ed and the respondents -G4I/,are directed to fi. minimum pay scale of the Ma# ;en abo e that of the Brig and grant pay abo e that of a Brig as has been done in the case of post 1''8 retirees and conse=uently fi. the pension and family pension accordingly6, the *on"ble Ape. Court relied on its earlier dictum in 3( ,a1ara and ors s G4I 1'<0 AIR10&, to restore to retired Ma# ;ens 5 B= t their rightful pension denied as a conse=uence of an anomaly in the 7th Central :ay Commission. ii/ 1'<0 AIR 10& 1'<0 (CR -%/ 18), 1'<0 (CC -1/ 0&), 1'<% (CACB -%/1%10. In the historic constitutional Bench #udgment rendered on 1@>1%>1'<%,in the case of 3( ,a1ara 5 ors s. G4I, the Bench !hile allo!ing the plea of the retired Central ;o ernment ser ants and of the Armed Forces personnel, held that the cut>off date of 01 Mar 1'@' for ma1ing the liberali+ed formula for computation of pension in accordance !ith the 0rd Central :ay Commission recommendation effecti e only to those !ho retired on or after the date of notification, as notified by the Central ;o ernment to be iolati e of Article 17 of the Constitution and in its order pronounced that benefits of any liberali+ed scheme !ould be e=ually applicable for the same class of people to !hom it !as proposed to benefit, meaning in the case in point to the petitioners , e.cept that such benefits !ould only be a ailable prospecti ely from the date specified or the date of notification.

c/ Cour* mar*.al awards+

I/ DT %&1& -0/ > (C 8@@, AIR %&1& (C 0118. The dictum of the *on"ble (upreme Court in G4I s. E, (ingh holds that the commencement date for calculating the

Armed Forces Law Journal 2012 (1) 1 three years period of limitation stipulated in sec 1%% of the Army Act 1')&, !ould be the date on !hich the officer competent to initiate action comes to 1no! of the offence. *olding that the second part of sec 1%%, i.e. sec 1%% -1/ -b/ !ould apply in the case of the ;o ernment being the aggrie ed party, the Ape. Court in the instant case decreed this to be the date on !hich the ;4C>in>C of 9estern Command directed initiation of disciplinary proceedings against the delin=uent, !hen the recommendations of the ;4C, 3elhi Area !as put up to him. ii/ %&1& -)/ (CR (C, pg 1''. In a similar case as abo e in D( (e1hon s. G4I, the Ape. Court re#ected the appellant"s case, see1ing shelter under sec 1%% of the Army Act 1')&, interpreting the con ening officer of the ;CM as the S initiating officer" for the purpose of identity of the accused. iii/ %&1&-7/ (CR,pg0<),AIR%&1& (C %78%.Both the *on"ble *igh Court and (upreme Court ha e upheld the sentence of dismissal on t!o charges, i+ secs )%-f/ 5 7) on a Ma#or on grounds of moral rectitude, e en if the amount in ol ed !as small. i / -%&1&/ ' (CC 7'8, Aranti Associates : t Ctd and anr s Masood Ahmed Ahan and ors. *on"ble Ape. Court has obser ed that in case of Courts martial, reasons are not re=uired to be recorded for an order confirming the findings and sentence of Courts martial. Court martial proceedings are dealt !ith differently as is clear from Articles 00, 108-%/ and %%@-7/ of the Constitution. d/ Summar( cour* mar*.al awards o6 *-e Arm(+ *on"ble Ape. Court has held the sentence of dismissals in the follo!ing cases as totally disproportionate to the charge le eled and modified the same to Sdischarge" in all three casesL> i/ 1'<@ AIR %0<8, 1'<< (CR -1/ )1%, Ran#it Tha1ur s. G4I, sec 71-%/ of the Army Act 1')&. ii/ -%&&</ MCD, (heel Aumar Roy s. (ecretary M43, sec 0' -a/ of the Army Act 1')&. Iii/ 1''% AIR 71@, 1''1 (CR -%/8@8, 1''1 (CC -0/, B. ,1 (ardar (ingh s. G4I, sec 80 of the Army Act 1')&. e/ Adm.n.s*ra*.7e #.sm.ssal0#.sc-ar3e+ i/ I,(C 1'10 -@>11>%&&</, G4I and ors s. Ra#pal (ingh follo!ed by *on"ble 3elhi *igh Court order of %&>11>%&&<. In dismissing a sle! of (C:s against an earlier 3elhi *igh Court, 3i ision Bench order of holding compulsory discharge of

2 Armed Forces Law Journal 2012 (1) + lo! medical category -CMC/ personnel of the Army !ithout sub#ecting them to an In alid medical board, as mandated in rele ant pro isions of Army Rule 10 as ultra vires, the Ape. Court directed the 3elhi *igh Court to follo! up !ith detailed instructions for the respondent to comply. ii/ AIR 1''8, (upreme Court -108</,1''8 (CC-0/ 8), DT 1''8 -0/ 01&, 1''8 (CACB -%/ 0'7, G4I and ors s. Cpl AA Ba1shi and ors. The Ape. Court in allo!ing the appeal of the G4I, o erturned the earlier 3i isional Bench order of *igh Court. By this dictum the Ape. Court upheld the policy of the Air Force of compulsory discharge under Air Force rule 1), of a habitual offender, as alid in la!. Gnder this policy, airmen incurring more red in1 entries than stipulated in the policy, are discharged follo!ing due procedure as laid do!n in the Air Force rule1). The Ape. Court also clearly distinguished such a discharge from administrati e remo al for misconduct, under sec %& of the Air force Act read !ith rule1< of the Air Force rules. iii/ AIR %&1& (upreme Court 78% in G4I and ors s. 3ipa1 Aumar (antra. The ape. Court upheld the order of single Dudge and o erturned the 3i ision Bench order in allo!ing the !rit petition holding discharge of a recruit on grounds of Sunli1ely to become an efficient soldier" as per Army rule 10-0/, perfectly legal. i / AIR %&&1 (C 1@@%,DT %&&1-7/ (C )'@,%&&1 Cabi C 1@&@. in G4I s. *ar#eet (ingh (andhu Btc -dt of Dudgment>11>7>%&&1/.In a landmar1 #udgment a three Dudges Bench headed by the CD, laid out the dictum that, resort to Administrati e dismissal under Army Act sec %&, once the authorities ha e not been able to proceed against a delin=uent by !ay of Court martial, due to period of limitation under sec 1%% ha ing been crossed or for any other reason, is !ell !ithin the statute. In the process, the Ape. Court relying on a similar #udgment in the case of Gnion of India s. 3harm :al Au1reti, obser ed and o erturned the #udgment gi en by the Ape. Court in the case of Ma# Radha1rishnan s. GoI !herein the earlier #udgment in the case of GoI s. Au1reti !as not brought to the notice of the Bench. f/

.scellaneous c.*a*.ons)

i/ 1''@ -0/ (CC %81, AIR 1''@ (C 11%), 1''@ -1/ BCDR @7) in C Chandra1umar s. G4I and others. A Constitution Bench settled finitely the issue of Administrati e Tribunals, mainly the CAT, -enacted under the pro isions of Art 00%A of the Constitution/, also ha ing !rit #urisdiction to hear petitions challenging ;o ernment notifications and orders, as a Court of first instance. ii/ CA ,o)1)1>)1)%$%&&<-Arising out of (C: -C/ ,os 0<%&>0<%1$%&&</,G4I s. Tarsem (ingh, %&&<-</ (CC 87<, *on"ble Ape. Court has laid do!n the dictum that non>payment of pension is a continuing !rong. In such cases of ser ice related

Armed Forces Law Journal 2012 (1) 1 claim for pension, relief based on a continuing !rong can be granted e en if there is a long delay in see1ing remedy. *o!e er !ith regard to payment of arrears, the Ape. Court restricted the same to a period of three years preceding the date of filing of the application or !rit, follo!ing the principle applied for reco ery of recurring successi e !rongs. iii/ -1''7/%(CC)%1,-1''7/1(CR@&&,(hyamBabuEerma s. GoI. Ape. Court has ruled that payment made by !ay of salary or pension$remuneration paid in e.cess due to !hate er reason !herein the employee is not at fault, cannot be reco ered once the error is detected. i / -%&&8/ % MCD 81, Recruit Madurai Eeeran s. G4I The Madurai Bench of the Madras *igh Court has held that a cause of action is maintainable as long as any part of the said cause is !ithin the territorial #urisdiction of the Tribunal$Court. / %&1& -7/ ACT 81, Dosy Earghse s. Armed Forces. In its order on 9:-C/ 0&18&$1&-T/, deli ered on 1%>1&>1&, *on"ble Aerala *igh Court has, in its interpretation of (ecs 0& and 01 &f the AFT Act, held that the orders of the AFT Benches can be challenged in the *igh Court. i/ (imilar to the abo e, *on"ble 3elhi *igh Court in an order in 9:-C/1008&$%&&',ColA3,argol1ar s GoI and a sle! of !rit petitions challenging the order of AFT, :rincipal Bench, has in its #udgment interpreted (ecs 0& and 01 of the AFT act, in its o!n !ay to place the superintendence of the AFT on the *igh Courts. Both the abo e orders are under challenge at the *on"ble (upreme Court. ii/ AIR 1'<8-(C/ 1&8&,1'<8 Cri CD <7<,Eirendar Aumar through his !ife s The Chairman Bar Council of India. The *on"ble Ape. Court in deciding on the particular case related to a different matter ruled that Sdesertion" is differentiated from Sabsence !ithout lea e" by the simple =uestion of the intention of the accused in not !anting to return to ser ice. g/ "o7ernmen* no*.6.ca*.ons) -i/ 3elegation of Administrati e :o!ers. In pursuance of E C:C recommendations and in 1eeping !ith decision to delegate administrati e po!ers, the Mo3 ide letter ,o.78<7$3IR -:B,/$%&&1 dated 17th August, %&&1 has delegated po!ers to ser ice head=uarters in a ariety of pension related sub#ects !hich include di ision of family pension bet!een eligible family members, payment of dues to ,4A of deserters, condonation of shortfall in =ualifying ser ice in respect of :B4R up to 1% months, etc. The letter has subse=uently been amended ide M43 I3 ,o. 1% -%/ $&7 $ -:en$(ers/ dated %1.&@.%&&7 to pro ide for retrospecti e effect to the pro ision of condonation of shortfall of one year in ser ice for pension

2 Armed Forces Law Journal 2012 (1) + contained in the ibid letter. (ubse=uently in the year %&11, the M43 has also rela.ed the minimum =ualifying ser ice re=uired for in alid pension to ' years and ' months. The letters are e.tracted in Appendi.. 0% -ii/ Mo3 letter ,o. <$0'&7%$A;$:(>7 -a5c/ $1001$c$d -:ension$(ers/ dated %'.1%.%&&&. ;rant of e.>gratia payment of Rs.8&&$> p.m. plus 3A to Reser ists prior to &1.&7.1'8< !ho had not opted for grant of pension and had also not a ailed of any rehabilitation assistance at the time of release from ser ice. -iii/ ;oI Ministry of 3efence ,o.1$1-0/$%&&@>B-:en$:olicy/ dated %).1&.%&&@. The letter remo es the bar of %) years of age for dra!al of family pension in respect of unmarried $ di orced eligible daughters. -i / Mo3 letter ,o18-8/$%&&<-%/$3-:ension$:olicy/dt7May%&&'. (eparate rates in grant of disability pension to officers and :B4R replaced !ith grant of disability pension as a percentage of last pay dra!n. - / Mo3 letter ,o1&-&1/$3-:ension$:olicy/$%&&'$Eol.IIdt1'.1,%&1&.B.tends the benefit of broad banding of percentages of disability pension granted in paragrapgh@.% of ;4I letter of 01.1.%&&1 also to pre1''8 cases but only !ith effect from 1.@.%&&'. >>>>>>>>>>>>>>>>

C9A!TER C - RECO EN#ATIONS FOR CONSI#ERATION OF T9E INISTRB OF #EFENCE ( O#) AN# T9E SER:ICES O#
)@. ,eed to reach out to 3isabled soldiers$seamen$air !arriors, discharged !ithout pension. ,early 0&P of the cases transferred from *igh Courts to AFT tribunals pertained to claim for disability pension. 4f these again 0&P roughly pertain to those that are discharged as recruits or !ithin t!o to three years as young soldiers due to in aliding disease as being neither attributed to nor aggra ated by military ser ice. These young men coming from a poor bac1ground are unable to ta1e discharge in their stride, by preparing for another ocation, since they -or their parents/ had perhaps set e erything in store to get enrolled and ma1e a career in the Army$,a y$Air Force and conse=uent to in alidment at a tender age are unable to

Armed Forces Law Journal 2012 (1) 1 re>start a ne! career. These young men unli1e their peers !ho #oin any other ;o ernment ser ice are also depri ed of the benefits of sec 7@ 11 of the :eople !ith 3isabilities Act, !hich guarantees alternate employment till superannuation to such cases !ho are in alided out from ;o ernment ser ice other than Armed Forces, on account of the Armed Forces of the Gnion being e.empt, -for good reasons/, from the pro isions of the Act by a notification to the effect. In disposing of the cases related to disability pension in cases of such unfortunate young men, !e" e found it e.tremely hard to con ince the appellants of the morality of dismissal of the suit, !hile legally they ha e no leg to stand on. In a fe! cases along !ith my learned brother *on"ble Dustice ACA Adityan, !e" e succeeded in getting the Ra#ya (aini1 Boards of Tamil ,adu and Andhra :radesh to come to the succor of some really pitiable cases, by including in our #udgment a recommendation see1ing their largesse in alle iating the penury and poor medical condition of the applicant by !ay of e.>gratia grants at their disposal. 9e are than1ful for their positi e attitude. But the sad part is that in spite of ha ing sufficient funds at their disposal, largely made up of contributions to the Armed Forces flag day fund from the general public, they are unable to assist all such applicants, due to the mandatory re=uirement of eligibility of being an e.>ser iceman, to be considered for any financial assistance at their disposal. The single most important consideration to get any assistance from Aendriya$ Ra#ya (aini1 Board is for the recipient to be an BM>(BREICBMA,. By definition, an e.>ser iceman is one !ho dra!s any type of ser ice pension, be it a regular pension or Family pension or disability pension. (ince these young men are in alided out on account of a disability not ha ing any ser ice attributability or not ha ing been aggra ated by ser ice conditions they are not in receipt of disability pension. And, since the Armed Forces personnel are e.empt from the pro isions of :93 act, these personnel are irtually on the streets. It is this moral$ethical issue that I !ould beseech the M43 to address. Eery simply put, *-e O# !hich lays do!n the policy for the Aendriya and Ra#ya (aini1 Boards, in ma1ing e.>gratia financial a!ards, be it an annuity or a cash grant, can ma8e a s.n3le e5ce4*.on by !ai ing the eligibility of being an B.>ser iceman in case of such of those military persons, !ith less than 1& years of ser ice !ho" e been in alided out !ithout disability pension on production of proof of such an in alidment, !hich a discharge certificate !ill easily fulfill. The 1& years cut>off is because, in cases of non attributability to$non aggra ation by ser ice conditions, a ser iceman !ill in any case be eligible for In alid pension, !hich meets the ends of e=uity.

All T-ree Ser7.ces

)<. Inclusion of SCompulsory discharge" in the case of :ersonnel belo! officer ran1-:B4R/ and Scompulsory retirement" in case of 4fficers in the scale of

2 Armed Forces Law Journal 2012 (1) + punishments a!ardable by courts martial in the case of Army$,a y$Air Force and in the po!ers of !arrant punishment of C4s in the case of ,a y alone. The number of appeal cases, pertaining to see1ing setting aside dismissals, particularly of appellants !ho had completed pensionable ser ice and !ere first time offenders of a purely military type of offence, such as absent from or o er>stayal of lea e or use of criminal force etc, are ery large and the reason is not far to see1. I remember as a C4 I !as ery comfortable and confident of being able to come to grips !ith any case of indiscipline, particularly if I !anted to set an e.ample of dealing !ith a habitual offender or a bad hat, by in o1ing the po!er of a!ard of dismissal ested in me by !ay of a trial by summary court martial. All I !anted to see !as the bac1 of such a man before his bad influence has a detrimental effect on my Gnit"s discipline. Cittle did I reali+e then, that I !ould, !ithout 1no!ing or being consciously a!are of, be depri ing a family of its only source of li elihoodH In any case I had no choice because of my need to maintain discipline at all costs. Today, in all humility, !hen I am sitting in the position of a Dudge and along !ith my learned brother !e are loo1ing at the a!ard of such dismissals as dis>proportionate to the offence and in our reasoned #udgment !ith the help of the *on"ble Ape. Court Ss dictum on the sub#ect are able to belatedly modify the a!ard of dismissal to that of discharge, permitting the dispersal of loc1ed up retrial benefits to the appellant or his family, I strongly feel in hindsight, if I had a choice of a!arding compulsory discharge if enshrined in the table of punishments in Army Act, sec @1, Air Force Act sec @0 and ,a y Act, sec <1,in most cases I !ould ha e settled for the same, since all I !anted !as to see the man out of the Army. I !ould therefore re=uest the *eads of the three (er ices in con#unction !ith the M43, to consider inclusion of a ne! sentence of punishment of Scompulsory discharge$retirement", belo! Sdismissal" in the table of punishments a!ardable by courts martial in the Army$,a y$Air Force. )'. (eparating periods of Imprisonment into 2less than three months6 and 2 e.ceeding three months6 As another gesture to!ards a more humane approach to!ards punishing an errant ser iceman, and at the same time, not financially harming his family members - !ho !ould ha e had no part to play/ in the committal of cogni+able offences of relati ely less se ere nature, it is recommended that all three (er ices consider modifying the e.isting listing of SImprisonment, either rigorous or simple, for any period not e.ceeding fourteen years" occurring immediately belo! Stransportation for life" in the scale of punishments a!ardable by courts martial, as referred to abo e, to that of SImprisonment, either rigorous or simple for any period e.ceeding three months and not e.ceeding fourteen years" and introducing a ne! punishment serial belo! S3ismissal", and ne! sub>clause

Armed Forces Law Journal 2012 (1) 1 suggested abo e of Compulsory retirement$ 3ischarge, to read as Simprisonment for a period of up to three months to be undergone in military custody". 8&. The abo e t!o recommendations of bringing in changes to the table of punishments a!ardable by courts>martial in respecti e Army$,a y and Air Force Acts, for consideration of the three (er ices, in consultation !ith M43, if fa ourably considered, can be effected as underL> a/ Re!ord sub>clause @1-c/ of the Army Act$sub clause <1-b/ of the ,a y Act$@0-c/ of the Air Force Act to read as 6Imprisonment, either rigorous or simple, for any period e.ceeding three months and not e.ceeding fourteen years. b/ Introduce ne! sub clauses -f/and-g/, belo! e.isting sub clause on 23ismissal from the ser ice6 occurring at Army act @1-e/$,a y act <1-e/ and ne! sub clauses-g/and-h/ belo! Air Force Act sec @0-f/ respecti ely, to read as follo!sL> i/ Compulsorily retired -in the case of commissioned officers/$3ischarged in the case of 9arrant officers$DC4s, ,C4s and other ran1s. ii/ Imprisonment for a period of up to three months to be undergone in military custody. c/ Re>number e.isting sub>clauses se=uentially thereafter in the respecti e tables set out in Army Act sec@1$,a y Act sec <1$ Air Force Act sec @0.

Na7( Onl(
81+ :rocedure of *earing of Charge. As has been brought out earlier in Chapter 7, :aragraph 71, e.isting pro isions of the ,a y Act as put into practice, do not permit an accused in a trial and in front of his C4, to cross e.amine !itnesses !ho ha e deposed against him on a charge under the ,a y Act, and there is also no e.press pro ision for recording of the summary of e idence, in the presence of the accused throughout, at the recording of such e idence, !ith liberty to cross e.amine !itnesses, prior to trial. Resultant punishment of dismissal at the summary trial, -though !ith the appro al of the C,(/, is decidedly against principles of natural #ustice and liable to be challenged at e ery instance in court. The argument put for!ard in front of the Tribunal Bench, that such a procedure is not contemplated in the ,a y Act is difficult to be accepted or #ustified. I ha e, !ith the consent of my learned brother, !ho deli ered the #udgment in TA ,o1'@$%&1&, in the case of RA Mishra$,eelam Mishra s. G4I, in ited the attention of the ,a al hierarchy, to

2 Armed Forces Law Journal 2012 (1) + remedy this ma#or lacuna in not pro iding for an accused to be heard, a iolation of the ma.im Audi Al Teram Partem>S,o man should be condemned unheard". Gnfortunately, this, ob ious and basic infirmity of natural #ustice has not come to light, e en more than 87 years after independence, or )7 years after ,a y Act 1')@ came into being, and prior to the AFT tribunals coming into force, because I feel in the pre>AFT days, the *on"ble *igh Courts in routinely admitting an appeal against con iction, and in the midst of mounting pendency of cases in the courts, ha e not been sensiti+ed to this fla!, because none of these cases seem to ha e been heard at all. I !ould strongly urge the ,a al authorities to e.peditiously, and on an emergent basis e.amine this recommendation and set right the malady by bringing in necessary amendments to the ,a y Act and the (tatutory Regulations :art II in =uic1 time. The upholding of the order of re>trial passed by AFT, Chennai Bench by the *on"ble Ape. Court in TA187$%&1& in :arida s. G4I -superscription %) in Appendi. refers/ could be relied upon to bring about the necessary amendment. >>>>>>>>>>>> C9A!TER '- "REB AREAS IN FER ENT AN# @9IC9 AB IN:OL:E A!E2 CO%RT<S INTER:ENTION0R%LIN" Dues*.ons o6 Su4er.n*endence and @r.* Jur.sd.c*.on 8%. Bac1ground. There is no doubt that the framers of the AFT Act, in the main, the officials$e.perts in the M43 and the Ca! Ministry could not ha e isuali+ed and catered for e ery contingency in laying do!n the la!, that !ill be seamlessly interpreted to!ards achie ing the main ob#ect of cutting do!n the litigation time for the aggrie ed ser iceman or his 1in. The AFT Act, though modeled on the Central Administrati e Tribunals -CAT/ Act, has three distinct differences. Firstly, it has been enacted to remedy a long pending redressal, articulated by the *on"ble Ape. Court in the case of :riti :al (ingh Bedi s. G4I, AIR 1'<%, (C 1710, to pro ide for a forum of appeal as a Court of first instance for the members of Armed Forces and their ne.t of 1in -,4A/,the emphasis to be noted is on appeal #urisdiction, meaning on disciplinary$court martial proceedings, rather on administrati e matters !hich is the G(: of CAT. (econdly, and precisely for the reason that the (er ice component of the nature of cases li1ely to come up for ad#udication in the AFT may out!eigh cases normally associated !ith !rit #urisdiction and to permit the AFT tribunals to concentrate on ad#udicating on (er ice matters empo!ering them !ith e.traordinary po!ers especially in the area of appeal #urisdiction, the !rit #urisdiction ested in the *on"ble (upreme Court and *igh Courts under articles %%8 and %%@ of the Constitution, has been e.pressly made de hors to AFT tribunals ide sec 17-1/ of the Act !hich reads as 6(a e as other!ise e.pressly pro ided in this Act, the

Armed Forces Law Journal 2012 (1) 1 Tribunal shall e.ercise, on and from the appointed day, all the #urisdiction, po!ers and authority, e.ercisable immediately prior to that day by all courts-e.cept the (upreme Court or a *igh Court e.ercising #urisdiction under article %%8 and %%@ of the constitution/ in relation to all ser ice matters.6 This is a distinct departure from the #urisdiction of CAT, established under the pro isions of Article 0%0A of the Constitution, !hich has been conferred !ith the po!ers as a court of first instance, as a result of the dictum laid do!n by the *on"ble Ape. Court in C. Chandra Aumar s. G4I -supra/ and re>emphasised in S! Sam4a*- >umar 7s+ %OI& AIR 1EF' SC 1FC (1EF'/, 1 SCC (1EF?/.The third distincti e difference from that of the CAT is that !hereas an appeal against the order of a CAT tribunal lies !ith that of a *igh Court, the appeal against the order of the AFT, !ill lie only !ith the *on"ble (upreme Court, sanctified by the e.press pro ision in sec 0&-1/ of the AFT Act, !hich reads as 2(ub#ect to the pro isions of sec 01-!hich is on lea e to appeal/, an appeal shall lie to the (upreme Court against the final decision or order of the Tribunal -other than an order passed under sec 1'-!hich is on criminal contempt/.6 Gnfortunately, perhaps ine itably, gi en the nature of our legal practice of 1eeping litigation ali e, these three differences !ith the CAT, !hich form the cru. of a speedy resolution to the !oes of ser icemen forced to 1noc1 at the doors of courts, ha e been turned into litigious debates, by attempting to derail the smooth and optimally fast pace of closure of cases dealt by the AFT tribunals. I shall e.plain the status of these nascent attempts at creating hurdles to the smooth functioning of the AFT. 80. *on"ble *igh Courts of Aerala and 3elhi ha e held, on hearing of appeal petitions in 9:-C/,o. 0&18&$%&1&-T/, Dosy Earghese s. G4I on0& (ep %&1& and in 9:-C/ 1008&$%&&' %8th Apr %&11 respecti ely that, the *igh courts ha e #urisdiction o er the final orders of the AFT, totally contrary to the pro isions of sec 0&-1/ of the AFT Act-supra/. They ha e unfortunately used a glaring limitation of the AFT Act, i.e., lac1 of a ci il contempt pro ision, in gi ing to themsel es this po!er of appeal , !hich it is fer ently hoped the *on"ble Ape. Court !ill soon set right as can be discerned , from its order to the M43, !hile hearing the case of Faya+ Ahan s. G4I and 4rs in CA ,o %17)$%&11 on 7 Apr %&11>, to =uic1ly come up !ith an ordinance, follo!ed by a suitable amendment, to bring in the pro ision of ci il contempt into the AFT Act. 87. 9hile the abo e measure already lying at the doorstep of the *on"ble Ape. court !ill hopefully settle the issue related to superintendence, buttressing the pro ision of sec 0&-a/ of the AFT Act, the other issue of the AFT barred from entertaining !rit #urisdiction unli1e CAT, as per a plain reading of sec 17-1/ of the AFT Act -supra/, is li1ely to be dragged into a longer debate. This is so because

2 Armed Forces Law Journal 2012 (1) + already *on"ble Madras *igh Court, !hile hearing 9: ,o %0@0) of %&1&, challenging the Chennai AFT tribunal order of referring a case challenging the vires of ;o ernment policies to it, has in its order chosen to set aside the order of the Chennai AFT, as1ing the Tribunal to re>hear the case. The 3i ision Bench !hile leaning hea ily on the dictum laid in Chandra 1umar s. G4I case -supra/ has also relied on a recent Ape. Court #udgment in Ra#ee Aumar and anr s. *emra# (ingh Chauhan and ors -%&1&/ 7 (CC ))7, paragraph 11, !hich is e.tracted from the order of the *on"ble Madras *igh Court as 24n a proper reading of the abo e =uoted t!o sentences, it is clearL a/ The tribunals !ill function as the only court of first instance in respect of the abo e areas of la! for !hich they ha e been constituted. b/ B en !here any challenge is made to the vires of legislation e.cepting the legislation under !hich tribunal has been set up, in such cases also, litigants !ill not be able to directly approach the *igh Court6 o erloo1ing the #urisdiction of the tribunal6. 8). Gnfortunately, Tribunals referred to abo e are constituted under Art 0%0A of the constitution and the AFT cannot be clubbed !ith all STribunals" for this reason. (ince a section of the legal community, the #udiciary and the Bar !ants to apply the same rules as for CAT to the AFT, this debate it is hoped !ill soon be set right by the *on"ble Ape. Court. >>>>>>>>>>

C9A!TER F - FOO# FOR T9O%"9T Is *-e %n.6ormed Ser7.ces< :.ew4o.n* "e**.n3 !ro;ec*ed Correc*l( .n Cour*s o6 LawG 88. 4ffice of Cegal Ad isor in M43L As per the rules of Allocation of Business in the Ministries$3epartments of ;o ernment of India, the office of Cegal Ad isor in M43, is tenanted by an officer of re=uisite authority and e.perience, from the Ministry of Ca! and Dustice. *e is assisted by an officer from the (er ices -usually Army/ belonging to the DA;"s branch. 8@. By custom and practice, being attached offices $ *ead=uarters of the M43, indi idual (er ices ha e either esche!ed representing their cases as separate respondents !hile contesting cases in Courts$Tribunals or ha e been proscribed to do so, by the M43. By M43, it has generally meant the M43 bureaucracy, !ith the 3efence (ecretary as its head. The =uestion that arises therefore is, has at any

Armed Forces Law Journal 2012 (1) 1 point in time, any of the three (er ice Chiefs, indi idually or collecti ely as the Chiefs of (taff Committee represented to the *on"ble Ra1sha Mantri their ie!point for representing their stand on a matter !hich is different to !hat they are re=uired to fall in line !ith, !hen going along !ith the Cegal Ad isor"s ie!H The ans!er seems to be in the negati eN at least I am not a!are of any case !here any (er ice Chief has sought the inter ention of the 3efence Minister to pro#ect his ser ice"s ie!s in a court, !hich is contrary to the one pro#ected as M43"s official standpoint. 8<. The case of Ma#. AA 3hanapalan s. G4I, !as decided in fa our of the officer in 9: ,o. %77<$1''8, by *on"ble Aerala *igh Court on )>1&>1''<, resulting in correct fi.ation of the officer"s pay ta1ing into consideration the ran1 pay as authorised in the ;o ernment notification on implementation of the recommendations of the 7th C:C and payment of resultant arrears thereof. A 3i ision Bench of the *on"ble Aerala *igh Court upheld this #udgment on 7>@> %&&0, !hen challenged by the G4I in 9rit Appeal no )1<$''. This triggered a surge of demand by scores of similarly placed officers, on the ;o ernment of India to pay them the arrears of ran1 pay and resultant benefits to them in accordance !ith the #udgment of the *on"ble Aerala *igh Court. The ;o ernment of India ho!e er declined to pay them the same citing administrati e reasons. This resulted in a sle! of petitions by a large number of officers in a number of *igh Courts and also in the *on"ble (upreme Court. The *on"ble (upreme Court, after ordering transfer of all such !rit petitions to itself and hearing these !rit petitions on challenge, in a common order on <>0>%&1& upheld the order of the *igh Court and as1ed the ;o ernment of India to comply !ith the order in respect of all affected officers. The ;o ernment has ho!e er filed a re ie! application in the case. 8'. I" e read some!here during the pleadings the litigant officers ha e also attached a copy of an inter office note -I4,/ from the office of the Chiefs of (taff Committee to the M43 that the (er ices strongly feel that the correct position is not being pro#ected by the M43 on the denial of a rightful claim to a large section of officers. Therefore, the point I !ould li1e to be addressed by the senior hierarchy of the (er ices is that !hile disciplined that !e are and ought to be, doesn"t this issue call for at least apprising the *on"ble Ra1sha Mantri and see1 a discussion on the need for the office of 3irector Cegal to be more transparent and responsi e to the (er ices" ie!s as put for!ard by the (er ices , rather than imposing a Rparty line" decided by the ery bureaucrats !ho are seldom !illing to accept the dictum 6to err is human6H

2 Armed Forces Law Journal 2012 (1) + @&. (adly, this point of the office of the Cegal Ad isor in M43, apparently being insensiti e to (er ices" *ead=uarters ie!point, is a relic of our system !herein the three (er ices are integrated !ith M43 only in name. It is time to seriously carry for!ard the agenda of true integration on the path enshrined t!ice in the past, i+. recommendation of the Aargil Re ie! Committee and specifically by the Arun (ingh Committee. There is in fact a (tanding Committee chaired by the 3efence (ecretary, on re ie!ing the detailed steps agreed to and appro ed by the *on"ble Ra1sha Mantri for effecting purposeful integration to impro e synergy bet!een the M43 and the (er ices. I !ould appeal to the (er ice Chiefs to, in turn re=uest the *on"ble Ra1sha Mantri, for a direction to use the forum of the members of this committee to re ie! the functioning of the office of Cegal Ad isor, M43 and bring for!ard needed re>structuring so as to be in unison !ith the (er ice *ead=uarters, on all legal issues that come up for litigation in Courts and Tribunals. $r.n3.n3 "en*lemen0Lad( cade*s under *-e Arm(0Na7(0A.r Force Ac*(s) @1. (ince the coming into being of the AFT, one case of a !ithdra!n cadet from ,3A on medical grounds -4A ,o 1&0$%&&' in :rincipal Bench, ,e! 3elhi, Reported in %&11 -1/ AFTCD 1&7/, one pertaining to a !ithdra!n ;entleman cadet from 4TA on disciplinary grounds -TA ,o. '8$%&&' in Regional Bench Cuc1no!/ and one pertaining to a !ithdra!n cadet from 4TA on medical grounds -4A ,o. 77$%&1& in Regional Bench Chennai/ ha e all been dismissed on grounds of lac1 of #urisdiction. (ec% 00 of the AFT Act on applicability stands in the !ay of these ;Cs$CCs since it recogni+es persons sub#ect to the Army$,a y$Air Force Act-s/.4nly an enrolled person -as it applies to a soldier$seaman$air !arrior/ or a commissioned officer are sub#ect to the Army $ ,a y $ Air Force Act-s/ as per (ec%07 of the respecti e Army$,a y$Air Force Act-s/. The discharge of all these cadets$;C($CCs, though not co ered de #ure under the pro isions of ser ice rules$regulations, has actually been effected de facto by ta1ing recourse to e.isting military procedures and the ery same modus operandi such as in alid medical board-s/ etc as are applicable to the persons sub#ect to ser ice Act-s/, !ho are found unfit for !hate er reason to become an efficient soldier. @%. The abo e three cases are already delayed by more than a year, from the point of ie! of the unfortunate litigant cadet$;Cs, in getting the dismissal orders from the AFT. If pursued in either a *igh Court or in the Ape. Court it !ill ta1e at least a fe! more years for finali+ation and by that time the young boy or girl in their late teens or early %&s !ill be nearing 0& years plus see1ing re>instatement or disability pension. It is a point to ponder !hether ha ing reduced drastically the litigation time for young recruits to a fe! months by !ay of enacting and operational sing the AFT

Armed Forces Law Journal 2012 (1) 1 Act, the framers of the legislation should lea e out similarly placed officer cadets -!ho are truly the nation"s future?/ from its pur ie!H @0. I !ould recommend that cadets$;Cs$CCs in all the three ser ices Academies, !ho are undergoing training to become commissioned officers are included in (ec% of the respecti e Army$,a y$Air Force Act-s/as being sub#ect to the respecti e Acts for the limited purpose of effecting discharge forced by circumstances, !hen it is felt that the cadet !ill not be able to =ualify to be an officer. A suitable sub>clause to sec % is recommended to be framed and incorporated in the respecti e Acts. >>>>>>>>>>>>>>>

REFLECTIONS ON I !ACT OF CO IN" INTO FORCE OF AR E# FORCES TRI$%NAT (AFT) ACT& 200' A!!EN#I2
E5*rac*s o6 le**ers and c.*a*.ons re6erred *o .n *-e ,oo8 and num,ered as su4erscr.4*s Su4erscr.4* re6erence (a) 1 I*em (,) (ec %8 ,The Army Act, 1')& Te5*0E5*rac* -c/

2 Armed Forces Law Journal 2012 (1) Remed( o6 a33r.e7ed 4ersons o*-er *-an o66.cers -1/ Any person sub#ect to this Act other than an officer !ho deems himself !ronged by any superior or other officer may, if not attached to a troop or company, complain to the officer under !hose command or orders he is ser ingN and may, if attached to a troop or company, complain to the officer commanding the same. -%/9hen the officer complained against is the officer to !hom any complaint should, under sub>section -1/, be preferred, the aggrie ed person may complain to such officer"s ne.t superior officer. -0/B ery officer recei ing any such complaint shall ma1e as complete an in estigation into it as may be possible for gi ing full redress to the complainantN or, !hen necessary, refer the complaint to superior authority. -7/B ery such complaint shall be preferred in such manner as may from time to time be specified by the proper authority. -)/The Central ;o ernment may re ise any decision by 1 -the Chief of the Army (taff/ under sub>section -%/, but, sub#ect thereto, the decision of 1-the Chief of the Army (taff/ shall be final.
1

(ubs. by Act 1' of 1')), sec % and (ch., for 2the Commander>in> Chief6.

Su4erscr.4* re6erence (a) 1

I*em (,) (ec %@, The Army Act, 1')& Te5*0E5*rac* (c)

Remed( o6 a33r.e7ed o66.cers ) Any officer !ho deems himself !ronged by his commanding officer or any superior officer and !ho on due application made to his commanding officer does not recei e the redress to !hich he considers himself entitled, may complain to the Central ;o ernment in such manner as may from time to time be specified by the proper authority.

Su4erscr.4* re6erence (a) 1

Armed Forces Law Journal 2012 (1) I*em (,) :ara 087, Regulations for Army,1'8%

Te5*0E5*rac* (c) Com4la.n*s ;eneral -a/ Complaints may be of t!o 1inds K -i/ (tatutory Complaints L These are made under the pro isions of Army Act (ections %8 and %@ by the follo!ingL

-aa/ Any person sub#ect to the Army Act other than an officer !ho deems himself !ronged by any superior or other officer. -ab/ Any officer !ho deems himself !ronged by his commanding officer or any other superior officer. -ii/,on (tatutory Complaints K These can be made under the authority of the Army 4rder on the sub#ect !hen the complainant considers himself !ronged by any authority other than those mentioned in sub>sub>para-i/ abo e and is not co ered under Army Act (ections %8 and %@. (tatutory Complaints K -b/ ,umber and B.tent >L An officer has the right to complain to the Central ;o ernment. DC4s and 4R can complain to the C4A( in the first instance. In case they are not satisfied !ith the decision of C4A(, they may complain to the Central ;o ernment !hose decision shall be final. This right can be e.ercised only once. A second complaint to these authorities !ill be allo!ed only if fresh facts and circumstances ha e come to light necessitating reconsideration of the case. :rocedure for submission and channel to be follo!edL -c / (tatutory complaints !ill be addressed to the follo!ing authorities L> -i/ Central ;o ernment by officers. -ii/ C4A( by DC4s, 94s and 4R in the first instance and thereafter to the Central ;o ernment. -d/ All statutory complaints !ill be made through proper channel as gi en in sub>para -e/ belo! and copies !ill not be for!arded direct to higher authorities. If the final

2 Armed Forces Law Journal 2012 (1) + decision on the statutory complain is not ta1en !ithin a period of si. months from the date such a complaint is submitted to the immediate superior, the applicant !ill ha e a right to represent direct to Army *ead=uarters or the Central ;o ernment as the case may be after informing his commanding officer. -e/ The follo!ing channels !ill be follo!ed !hile for!arding statutory complaints L> -i/ Company Commander or other immediate superior. -ii/ Commanding 4fficer. -ii/ Brigade Commander or (ub>Area Commander.

-i / 3i isional Commander or Area Commander. - / ;4C Corps !here applicable. - i/ ;4C>in>C Command. - ii/ C4A(. - iii/Central ;o ernment. -f/ (tatutory complaints from officers of AMC and A3C and from all DC4s, 94s and 4R !hich pertain to matters relating to promotion, appointment, posting, release and discharge, !ill be processed through departmental channels. Cayout of Complaints L -g/ The general layout of complaints !ill be as per the specimen reproduced at Appendi. S:". The essentials of a complaint are as follo!sL> -i/ An introduction !hich !ould state !hether the complaint is statutory or non> statutory and the pro isions of the (tatute or Rules under !hich it is made. In the case of statutory complaints, this para !ill not be stated as the authority under !hich the complaint is being made. -ii/ Bac1ground of the case, if re=uired. -iii/ Facts of the case set out briefly in logical and chronological order, gi ing specific grie ances.

-i /A conclusion containing the specific redress sought for by the complainant -h/ It !ill be ensured that the complaint is couched in respectful and proper language. A complaint containing a false statement or a false accusation !ould render the complainant liable for disciplinary action under the Army Act. If a complaint contains accusations or allegations the complainant !ill render a certificate as under !hich !ill anne.ed to the complaint L

Armed Forces Law Journal 2012 (1) 1 2I understand that any false statement or false accusation made by me in this complaint !ill render me liable for disciplinary action.6 Action by the Intermediary AuthoritiesL -#/ An intermediary authority !ill e.amine the grie ance set forth by the complainant and !ill either grant the redress sought for in the complaint or for!ard the complaint to the ne.t higher authority along !ith his comments and recommendations. The immediate superior authority in chain !ill, in addition, also offer his detailed para !ise comments on the complaint. *e !ill also ensure that the stipulation made in sub>para -h/ abo e has been complied !ith. In case any of the conditions mentioned belo! is not satisfied, he !ill !ithhold the complaint and inform the ne.t superior authority and the complainant the reasons for !ithholding the complaintL> -i/That the complaint is complete in all respects and is in the correct form. -ii/That the complaint is not couched in a discourteous, disrespectful or improper language. -1/ If an intermediary authority grants the redressal as1ed for, the complainant !ill be informed and the case closed under intimation to higher authorities in chain. Before for!arding the complaint to the ne.t higher authority, the immediate superior authority of the aggrie ed indi idual !ill endea our to inter ie! the complainant and ma1e such in estigations as he considers necessary. *e !ill then for!ard the complaint, his detailed para!ise comments and recommendations to the ne.t superior intermediary authority. 9hile for!arding the statutory complaint to the ne.t higher authority, concerned formation head=uarters shall in ariably inform Army *ead=uarters about the progress of the case and also inform the complainant through his commanding officer. Time>frame for processing of complaints L -l/ All complaints !ill be dealt !ith e.peditiously at all le els. The follo!ing time schedule !ill be strictly follo!ed L -i/ Time ta1en to reach Army *ead=uarters -including transit period/ L -aa/Gnit L L %& days -!here para !ise comments are re=uired to be for!arded/ -ab/ Bde or (ub Area L 1) days -ac/ 3i or Area L 1) days -ad /Corp *F L %& days -ae/ Command *.F. L %& days >>>>>>>>>>> Total L '& days

Armed Forces Law Journal 2012 (1) + >>>>>>>>>> ,oteL 3uring the period of collecti e training or !here the complaint pertains to a period more than t!o years earlier, an additional period of 0& to 7) days !ill be permissible for the complaint to reach Army *ead=uarters. -ii/Time ta1en at Army *F L 7) days

-m/ In case of delay, a report e.plaining in detail the reasons for delay !ill be for!arded to the ne.t higher authority. -n/ Final 3isposal of Complaints > 4rders of the authority competent to finally dispose of the complaint !ill be communicated to the complainant through normal channels. -o/ ,on>(tatutory Complaints K ,on>statutory complaints !ill only be addressed to the immediate superior, company commander or the commanding officer as the case may be. (uch complaints !ill neither be addressed direct to higher authorities other than those mentioned in this paragraph nor !ill copies be endorsed to such authorities. 9here the authority addressed considers action by higher authorities necessary, he may for!ard the complaint, along !ith his recommendations, to the ne.t superior authority. -p/ ,on>statutory complaints !ill also be dealt !ith e.peditiously. (ub>paras -g/, -h/ and -n/ abo e !ill also apply to non>statutory complaints.

Su4erscr.4* re6erence (a) %

I*em (,) (ec %0, The ,a y Act, 1')@

Te5*0E5*rac* (c) Remedy of aggrie ed persons L -1/ If an officer or sailor thin1s that he has suffered any personal, oppression, in#ustice or other ill>treatment at the hands of any superior officer, he may ma1e a complaint in accordance !ith the regulations made under this Act. -%/ The regulations referred to in sub>section -1/ shall pro ide for the complaint to be for!arded to the Central ;o ernment for its consideration if the complainant is not satisfied !ith the decision on his complaint.

Regulations %08, %0@, %0<, %0' of ,a y, :art II, (tatutory Te5*0E5*rac* (c) 21C. To 9hom the Complaint shall be Made L -1/ If the complainant be a Commanding 4fficer of an Indian ,a al (hip, his complaint shall be in !riting and addressed to his immediate superior. -%/ If the complainant be an officer ser ing in one of the Indian ,a al (hip, his complaint shall be made orally to the Commanding 4fficer, in accordance !ith the (er ice custom !hereby a complainant is to ma1e an oral re=uest to see the Commanding 4fficer for that purpose. If the complainant is an officer belo! the ran1 of Captain, such re=uest shall be made through the B.ecuti e 4fficer, and if the complainant is not the *ead of 3epartment, the re=uest shall be made in the first place to the *ead of the 3epartment. -0/ If the complainant is ser ing in a ,a al establishment not commissioned as a ship and not under the command of a Commanding 4fficer of one of Indian ,a al (hip, the complaint shall be made orally to his immediate superior. BM:CA,ATI4, L For the purpose of this regulation, the terms 2,a al Bstablishment6 shall, in addition to ,a al *ead Fuarters and ,a al 3oc1yard, include offices of Administrati e Authorities, ,a al 4fficer>in>Charge and Resident ,a al 4fficers of :orts and ,a al Ad isers to Indian Missions abroad. -7/ If the complainant is an officer !ho is not ser ing in a na al establishment, he shall submit his complaint to his immediate superior, either orally or in !riting as may be practicable. -)/If the complainant is a sailor, his complaint shall be made orally to the Commanding 4fficer. A re=uest to see the Commanding 4fficer shall be made to the B.ecuti e 4fficer through the complainant"s 3i isional 4fficer and *ead of the 3epartment. A sailor detached from his ship or establishment shall ma1e his complaint to the officer under !hose command he may be at this time. 21'+Assistant to Complainant L If the complainant be an officer of Dunior ran1 or a sailor, he may re=uest any officer in his to ad ise and assist him in the statement

Su4erscr.4* re6erence (a) %

Armed Forces Law Journal 2012 (1) I*em (,)

2 Armed Forces Law Journal 2012 (1) of his case at all stages. If no such re=uest is made, it shall be the duty of the 3i isional 4fficer or such other officer as the Commanding 4fficer may detail, to gi e his assistance. (uch officer shall point out to the complainant the rules to be obser ed under regulation %0<. 21F. Rules to be 4bser ed by the Complainant L -1/ Complainant shall be confined to a statement of facts complained of and to the alleged conse=uences to the complainant himself. -%/ Doint complaints by t!o or more persons are not allo!edN each indi idual shall ma1e his o!n complaint. -0/ It shall be an offence against good order and ,a al discipline to ma1e a complaint, either oral or !ritten, !hich includes a statement of fact !hich is untrue to the 1no!ledge of the complainant. -7/ It shall be an offence against good order and ,a al discipline to ma1e a complaint in terms, !hich comprise language or comments that are disrespectful or insubordinate or sub ersi e of discipline, e.cept in so far as such language or comments are necessary for an ade=uate state of the facts. 21E+*o! the Complaint shall be 3ealt !ith L -1/ 4n receipt of any complaint, the Commanding 4fficer or other officer recei ing the same shall satisfy himself that the complaint is made in accordance !ith these Regulations. *e shall then deal !ith it in the e.ercise of his discretion as may seem to him right, and cause the complainant to be informed of his decision. -%/ If the Commanding 4fficer or the other officer recei ing the complaint refuses or is unable to remedy the complaint so made, the complainant may respectfully as1 that he may be allo!ed to ma1e his complaint in !riting, and on recei ing such re=uest, the Commanding 4fficer or the other officer shall gi e the complainant %7 hours to reconsider the matter. The complainant, !hile still ha ing the assistance of the officer referred to in Regulation %0@, may then address his complaint to the Commanding 4fficer or the other 4fficer in !riting, !ho shall then for!ard the complaint to his ne.t superior officer, together !ith his o!n remar1s thereon, to be dealt !ith in accordance !ith sub>regulation -1/ -0/ If the complainant is not satisfied !ith the decision on his complaint, or if he does not get the redress as1ed for !ithin a period of one month from the date of submission of his complaint or the date of its dispatch to the ne.t superior authority, as the case may be, he may re=uest that his complaint be for!arded to the ne.t superior authority and so on to the Chief of the ,a al (taff to be dealt !ith in accordance !ith sub>regulation -1/ and -%/ and finally to the ;o ernment and all such re=uests shall be complied !ith. The complainant shall be #ustified in appealing direct to the ne.t superior authority if he does not recei e the final reply

Armed Forces Law Journal 2012 (1) 1 !ithin a period of si. months from the date of submission of his complaint. -7/ ,o officer or sailor shall be penali+ed for ha ing made a complaint in accordance !ith these regulations. Su4erscr.4* re6erence (a) 0 I*em (,) (ec %@, The Air Force Act, 1')&

Te5*0E5*rac* (c ) Remedy of aggrie ed officers K Any officer !ho deems himself !ronged by his commanding officer or any superior officer and !ho on due application made to this commanding officer does not recei e the redress to !hich he considers himself entitled, may complain to the central ;o ernment in such manner as may from time to time be specified by the proper authority Su4erscr.4* re6erence (a) 0 I*em (,) (ec %8, The Air Force Act, 1')& Te5*0E5*rac* (c ) Remedy of aggrie ed airman K -1/ Any airman !ho deems himself !ronged by any superior or other officer may, if not attached to a unit or detachment, complain to the officer under !hose command or orders he is ser iceN and may, if attached to a unit or detachment, complain to the officer commanding the same. -%/ 9hen the officer complained against is the officer to !hom any complaint should, under sub>section -1/ be preferred, the aggrie ed airman may complain to such officer"s ne.t superior officer, and if he thin1s himself !ronged by such superior officer, he may complain to 1-the Chief of the Air (taff/. -0/ B ery officer recei ing any such complaint shall ma1e as complete an in estigation into it as may be possible for gi ing full redress to the complainantN or, !hen necessary, refer, the complaint to superior authority. -7/ B ery such complaint shall be preferred in such manner as may from time to time be specified by the proper authority.

2 Armed Forces Law Journal 2012 (1) -)/ The Central ;o ernment may re ise any decision by 1-the Chief of the Air (taff/ shall be final.
1

(ubs. by Act 1' of 1')), sec.% and (ch., for 2the Commander>in>Chief6.

Su4erscr.4* re6erence (a) 7

I*em (,) (ec 1), The AFT Act, %&&@

Te5*0E5*rac* (c ) Durisdiction, :o!ers and authority in matters of appeal against court martial K -1/ (a e as other!ise e.pressly pro ided in this Act, the Tribunal shall e.ercise, on and from the appointed day, all the #urisdiction, po!ers and authority e.ercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a court>martial or any matter connected there!ith or incidental thereto. -%/Any person aggrie ed by an order, decision, finding or sentence passed by a court>martial may prefer an appeal in such form, manner and !ithin such time as may be prescribed. -0/ The Tribunal shall ha e po!er to grant bail to any person accused of an offence and in military custody, !ith or !ithout any conditions !hich it considers necessaryL :ro ided that no accused person shall be so released if there appears reasonable ground for belie ing that he has been guilty of an offence punishable !ith death or imprisonment for life. -7/ The Tribunal shall allo! an appeal against con iction by a court>martial !here K -a/ the finding of the court>martial is legally not sustainable due to any reason !hatsoe erN or -b/the finding in ol es !rong decision on a =uestion of la!N or -c/there !as a material irregularity in the course of the trial resulting in miscarriage of #ustice, but, in any other case, may dismiss the appeal !here the Tribunal considers that

Armed Forces Law Journal 2012 (1) no miscarriage of #ustice is li1ely to be caused or has actually resulted to the appellantN :ro ided that no order dismissing the appeal by the Tribunal shall be passed unless such order is made after recording reasons therefore in !riting. -)/ The Tribunal may allo! an appeal against con iction, and pass appropriate order thereon. -8/ ,ot!ithstanding anything contained in the foregoing pro isions of this section, the Tribunal shall ha e the po!er to K -a/substitute for the findings of the court>martial, a finding of guilty for any other offence for !hich the offender could ha e been la!fully found guilty by the court>martial and pass a sentence afresh for the offence specified or in ol ed in such findings under the pro isions of the Army Act, 1')& -78 of 1')&/ or the ,a y Act, 1')@ -8% of 1')@/ or the Air Force Act, 1')& -7) of 1')&/, as the case may beN or -b/if sentence is found to be e.cessi e, illegal or un#ust, the Tribunal may K -i/ remit the !hole or any part of the sentence, !ith or !ithout conditionsN -ii/mitigate the punishment a!ardedN -iii/commute such punishment to any lesser punishment or punishments mentioned in the Army Act, 1')& -78 of 1')&/, the ,a y Act, 1')@ -8% of 1')@/ and the Air Force Act, 1')& -7) of 1')&/, as the case may beN -c / enhance the sentence a!arded by a court>martialL :ro ided that no such sentence shall be enhanced unless the appellant has been gi en an opportunity of being heard. -d/ release the appellant, if sentenced to imprisonment, on parole !ith or !ithout conditionsN -e/ suspend a sentence of imprisonmentN -f/ pass any other order as it may thin1 appropriate. @. ,ot!ithstanding any other pro isions in this Act, for the purposes of this section, the Tribunal shall be deemed to be a criminal court for the purposes of sections 1@), 1@<, 1@', 1<&, 1'0, 1'), 1'8 or %%< of the Indian :enal Code -7) of 1<8&/ and Chapter MMEI of the Code of Criminal :rocedure, 1'@0 -% of 1'@7/. CommentsL As per ,otes on Clauses of the Bill, This section specifies the #urisdiction, po!ers and authority to be e.ercised by the Tribunal in relation to matters of appeal against any order, decision, finding or sentence passed by a court martial or any matter connected there!ith or incidental thereto. (ub> section -%/ specifies the right to any aggrie ed person to prefer an appeal against

2 Armed Forces Law Journal 2012 (1) an order, decision, finding or sentence passed by a court> martial. (ub>section -0/ pro ides that the Tribunal shall ha e po!ers to grant bail e.cept in an offence punishable !ith death or imprisonment for life. (ub>section -@/ pro ides that the Tribunal shall be deemed to be a criminal court for the purposes of section 1@), 1@<, 1@', 1<&, 1'0, 1'), 1'8 or %%< of the Indian :enal Code and Chapter MMEI of the Code of Criminal :rocedure, 1'@0.

Su4erscr.4* re6erence (a) )

I*em (,) (ec %1, The AFT Act, %&&@

Te5*0E5*rac* (c) Application not to be admitted unless other remedies e.hausted K -1/ The Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had a ailed of the remedies a ailable to him under the Army Act, 1')& -78 of 1')&/ or the ,a y Act, 1')@ -8% of 1')@/ or the Air Force Act, 1')& -7) of 1')&/, as the case may be, and respecti e rules and regulations made there>under. -%/ For the purposes of sub>section -1/, a person shall be deemed to ha e a ailed of all the remedies a ailable to him under the Army Act, 1')& -78 of 1')&/ or the ,a y Act, 1')@ -8% of 1')@/ or the Air Force Act, 1')& -7) of 1')&/, and respecti e rules and regulations > -a/if a final order has been made by the Central ;o ernment or other authority or officer or other person competent to pass such order under the said Acts, rules and regulations, re#ecting any petition preferred or representation made by such personN -b/!here no final order has been made by the Central ;o ernment or other authority or officer or other person competent to pass such order !ith regard to the petition preferred or representation made by such person, if a period of si. months from the date on !hich such petition !as preferred or representation !as made has e.pired. CommentsL As per ,otes on Clauses of the Bill This section specifies the condition for not admitting an application unless other a ailable remedies are e.hausted. It also specifies the remedies a ailable and the time limit for preferring the petition or representation. Su4erscr.4* I*em

(ec %%, The AFT Act,%&&@ Te5*0E5*rac* (c ) Cimitation K -1/ The Tribunal shall not admit an application K -a/in case !here a final order such as is mentioned in clause -a/ of sub>section -%/ of section %1 has been made unless the application is made !ithin si. months from the date on !hich such final order has been madeN -b/in case !here a petition or a representation such as is mentioned in clause -b/ of sub>section -%/ of section %1 has been made and the period of si. months has e.pired thereafter !ithout such final order ha ing been madeN -c /in a case !here the grie ance in respect of !hich an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on !hich #urisdiction, po!ers and authority of the Tribunal became e.ercisable under this Act, in respect of the matter to !hich such order relates and no proceedings for the redressal of such grie ance had been commenced before the said date before the *igh Court. -%/,ot!ithstanding anything contained in sub>section -1/, the Tribunal may admit an application after the period of si. months referred to in clause -a/ or clause -b/ of sub>section -1/, as the case may be, or prior to the period of three years specified in clause -c /, if the Tribunal is satisfied that the applicant had sufficient cause for not ma1ing the application !ithin such period. Comments As per ,otes on Clauses of the Bill This section specifies the period of limitation for admitting or other!ise of an application and also to condone the limitation pro ided under this section.

re6erence (a) )

Armed Forces Law Journal 2012 (1) (,)

Su4erscr.4* re6erence (a) 8

I*em (,) :ara 08<, Regulations for the Army

Te5*0E5*rac* (c) :etitions by e.>(oldiers K The procedure to be obser ed for the submission of petitions to the military authorities by persons !ho ha e been but are no longer in military employ -including reser ists/, or their relati es, on matters relating to their military ser ice is as under L

2 Armed Forces Law Journal 2012 (1) -a/ in the first instance the person !ho !ishes to submit a petition should, !hene er possible, consult the nearest member of his Uila (aini1 Board. -b/9hen necessary a petition !ill subse=uent be addressed to the 4C of the petitioner"s late unit or in the case of disbanded units to the authority indicated on the discharge certificate and !here possible, the remar1s of the member of the Uila (aini1 Board concerned !ill be endorsed thereon. -c /:etitions should in no case be sent direct to the Central ;o ernment, the Chief of the Army (taff, or to officers at Army *. F"s. :etitions so addressed in ol e further delay in e.amining the petitioners re=uest as it is in ariably necessary to refer to the 4C of the petitioner"s unit before any reply can be gi en. -d/C4s !ill, only after careful consideration, refer to higher authority, petitions !hich they are unable to dispose of themsel es or on !hich it is desirable that the orders of higher authority should be passed. Any petition so referred !ill be accompanied by full particulars and !here possible, a definite recommendation. -e/ C4s !ill ensure that these orders are understood by all persons in military employ at the time of their transfer to reser e or discharge.

Su4erscr.4* re6erence (a) 8

I*em (,) :ara 08', Regulations for the Army

Te5*0E5*rac* (c) :etitions (ubmitted to Military Formations K :etitions, especially those submitted by e.>soldiers or their relati es, !ill be replied to inclear and sympathetic language and, as far as possible, !ill be ans!ered in the language in !hich they are !ritten and also in the language in ogue for correspondence for the benefit of touring officers. In cases !here a petitioner"s re=uest cannot be granted, the reasons for re#ection should be sympathetically e.plained. :aras of regulations or instructions !ill not be referred to, as in the ma#ority of cases they con ey no meaning to these petitioners

Su4erscr.4* re6erence (a) @

I*em (,) (ec 17-1/, The AFT Act, %&&@

Armed Forces Law Journal 2012 (1) 1 Te5*0E5*rac* (c) Durisdiction, po!ers and authority in ser ice matters K -1/ (a e as other!ise e.pressly pro ided in this Act, the Tribunal shall e.ercise, on and from the appointed day, all the #urisdiction, po!ers and authority, e.ercisable immediately before that day by all courts -e.cept the (upreme Court or a *igh Court e.ercising #urisdiction under article %%8 and %%@ of the Constitution/ in relation to all ser ice matters.

Su4erscr.4* re6erence (a) <

I*em (,) (ec 0&, The AFT Act,%&&@ Te5*0E5*rac* (c)

Appeal to the (upreme Court K -1/ (ub#ect to the pro isions of section 01, an appeal shall lie to the (upreme Court against the final decision or order of the Tribunal -other than an order passed under section 1'/L :ro ided that such appeal is preferred !ithin a period of ninety days of the said decision or orderN :ro ided further that there shall be no appeal against an interlocutory order of the Tribunal. -%/ An appeal shall lie to the (upreme Court as of right from any order or decision of the Tribunal in the e.ercise of its #urisdiction to punish for contemptN :ro ided that an appeal under this sub>section shall be filed in the (upreme Court !ithin si.ty days from the date of the order appealed against. -0/ :ending any appeal under sub>section -%/ the (upreme court may order that > -a/ the e.ecution of the punishment or the order appealed against be suspendedN or -b/if the appellant is in confinement, he be released on bailN :ro ided that !here an appellant satisfies the Tribunal that he intends to prefer an appeal, the Tribunal may also e.ercise any of the po!ers conferred under clause -a/ or clause -b/, as the case may be. Comments As per ,otes on Clauses of the Bill

2 Armed Forces Law Journal 2012 (1) This section pro ides that an appeal shall lie to the (upreme Court against the final decision or order of the Tribunal -other than an order passed under section 1'/.

3ismissal of (C: by Ape. Court in GoI Es ;urmit (ingh Butter L 200/ (/) SLR /E' Te5*0E5*rac* (c) (G:RBMB C4GRT 4F I,3IA RBC4R3 4F :R4CBB3I,;( Ci il Appeal ,o.)0)8 of %&&% Gnion of India 5 4rs VVVVVVVV.. Appellant-s/ Eersus ;urmit (ingh Butter VVVVVVVVVRespondent -!ith office report/ 3ateL &1.&7.%&&' This Appeal !as called on for hearing today. Coram L *on"ble Mr. Dustice B , Agra!al *on"ble Mr. Dustice ; ( (ingh i For Appellant-s/L Mr A (haran, A(;, ;p Capt A ( Bhati, Ad ., Mr B E Balaram 3as, Ad . For Respondent-s/L Ms. (aahila Camba, Ad , Mr. (udhir ,andra#og, Ad . Gpon hearing counsel the court made the follo!ing 4R3BR *eard learned counsel for the parties. In the facts and circumstances of the case, !e are not inclined to interfere !ith the impugned order. The ci il appeal is, accordingly, dismissed.

Su4erscr.4* re6erence (a) '

I*em (,)

Armed Forces Law Journal 2012 (1) ,o costs. -B , Agra!al/ VVVVV.D -; ( (ingh i/ VVVVV..D -signed order is placed on the file/ I, T*B (G:RBMB C4GRT 4F I,3IA Su4erscr.4* re6erence (a) ' I*em (,)

:un#ab 5 *aryana Court 4rder in ;urmit (ingh Butter Es GoI 2000(1) RSJ Te5*0E5*rac* (c) :G,DAB A,3 *ARTA,A *I;* C4GRT R C Anand, D. Ci il 9rit :etition ,o.1)@@7 of 1''@ 3ecided on 1&th Duly, %&&& ;urmit (ingh Butter VVVVVVVVVVVVV..:etitioner Eersus Gnion of India 5 4rs. VVVVVVVVVVVVVRespondents For the :etitioner L Mr. B ( (ehgal, Ad ocate For the RespondentsL Ms. Ran#ana (hahi, Ad ocate :ension Regulation for the Army, 1'81, Regulation 1@0 K 3isability pension K 3isability on account of accident in !hich petitioner suffered compound fracture of Tibia and Fabula !hile on annual lea e K 3isability pension re#ected on the ground that accident not attributable to military ser ice K contention of the respondent that an Army personnel !hen on long lea e suffers disability that disability is not attributable to the Army (er ice repelled K direction gi en to release disability pension to the petitioners. DG3;MB,T R C Anand, D -4ral/ K B.>sepoy ;urmit (ingh Butter has filed the present !rit petition under Article %%8 of the Constitution of India for =uashing the orders Anne.ures :% and :@ ide !hich his disability pension !as re#ected. Further, the prayer made by the petitioner is that direction be gi en to the respondents to release him disability pension !.e.f. 1.7.1''7. %. (ome facts can be noticed in the follo!ing manner L

Armed Forces Law Journal 2012 (1) + The petitioner !as born on 0.0.1'8@. *e #oined the Indian Army on 0.7.1'<@. *e met !ith an accident in the year 1'<' !hen he !as on annual lea e and !as going to purchase some items from the military canteen. *e suffered compound fracture of Tibia and Fabula. *e applied for disability pension !hich !as re#ected ide letter dated %<.&@.1''). *e also filed an appeal !hich !as also re#ected on 17.11.1''8. In this manner the present petition. The notice of the !rit petition !as gi en to the respondents, !ho filed the reply and denied the a erments of the !rit petition. According to the respondents, the petitioner !as on annual lea e and in these circumstances the accident is not attributable to the military ser ice. The e.tent of damage, ho!e er, has been admitted by the respondent >authorities. 0. The sole point !hich sur i es for determination is !hen an army personnel is on annual$casual lea e and suffers an accident, !hether such accident can be attributable to the army ser ice or not. The learned counsel appearing on behalf of the respondents in ites my attention to a #udgment rendered in C9: ,o.7)&@ of 1''< titled >ulwan* S.n3- :s+ %n.on o6 Ind.a and o*-ers and submitted that if an Army personnel suffers disability on account of an accident !hile on annual lea e, such disability is not attributable to the Army ser ice. 4n the contrary, the learned counsel for the petitioner relies upon a #udgment of the *on"ble 3i ision Bench in S.r. >r.s-an :s %n.on o6 Ind.a& 1''@-1/ (CR 8&@ and another #udgment e5-Se4o( $alwan* S.n3- :s %n.on o6 Ind.a , 1''' -0/ (er ice Cases Today )) and submits that e en !hen an Army personnel is on a long lea e or casual lea e, such person is entitled to the benefit of disability pension irrespecti e of the fact that he suffers the disability !hile on annual lea e or casual lea e. Me (ehgal e en submits that in C9: ,o '0@8 of 1''7 (!aran (ingh s. Gnion of India, decided on 1<.1%.1''<, it !as obser ed that if an Army personnel is on furlough and suffers an accident$disability, he is still entitled to the disability pension. 7. After considering the ri al contentions of the parties, I am of the considered opinion that the submissions raised by the counsel for the respondents is de oid of any merit. In the opinion of this Court, casual lea es, annual lea e, furlough or medical lea e, etc. are the incidents of ser ice and these types of lea es are permissible to the ;o ernment employees. In these circumstances, the defence of the respondents appears to be !ithout any basis !hen it !as argued by the learned counsel for the respondents that the petitioner suffered the in#ury $ disability !hen he !as on annual lea e. 9hile on annual lea e the petitioner has ne er se ered his relationship !ith his employer, !ho granted the annual lea e to the petitioner according to rules. The lea e !ill remain as a lea e and casual lea e, long lea e,

Armed Forces Law Journal 2012 (1) 1 medical lea e and furlough are the different branches of lea e. This ie! of this Court can be loo1ed into from other angle. (upposing an Army personnel !hile on long lea e$casual lea e$furlough commits and offence, is it not go erned by Army rulesH The ans!er is in the affirmati e (upposing after a ailing annual lea e such employee does not return to his unit, can be not be prosecuted departmentallyH Again the ans!er is in the affirmati e. If such situations are there, ho! it can be said that an Army personnel !hen on long lea e suffers disability that disability is not attributable to the Army ser ice. ). Resultantly, I allo! this petition and by =uashing the orders Anne.ures :% and :@ gi e the directions to the respondents to release the disability pension to the petitioner !ithin three months from the receipt of the copy of this order. The petitioner, ho!e er directed to appear before the Re>(ur ey Medical Board, if called by the respondents>authorities. ,o order as to costs. :etition allo!ed. Su4erscr.4* re6erence (a) 1& I*em (,)

3ictum of *on"ble Ape. Court as :rimacy of opinion of duly constituted Medical Boards in determining a!ard of 3isability :ension K GoI Es 3amodaran AE -3ead/ through CRs, Reported in> (200E) F LJ 1?'/ SC A 2011 (1) AFTLJ 2' Te5*0E5*rac* (c) (200E) F LJ 1?'/ (SC) A 2011 (1) AFTLJ 2' I, T*B (G:RBMB C4GRT 4F I,3IA

:resentL 3al eer Bhandari and 3r. Mu1unda1am (harma, D.D. CA ,o. )8@< of %&&' on %&th August, %&&' Secre*ar(& .n.s*r( o6 #e6ence and o*-ers HHHHHH+++ Appellants Eersus #amodaran A : (#ead) *-rou3- LRs& and o*-ers HHHHHH+Respondents Ad ocates Appeared L Ms Indra Dai (ingh, A(;, Ms Airan Bhard!a#, B Arishna :rasad for Appellants Dogy (caria, for Respondents.

Armed Forces Law Journal 2012 (1)

Arm( Ac*& 1E/0 A Re3ula*.on 1'1 o6 !ens.on Re3ula*.ons 6or *-e Arm(& 1EC1 = #.sa,.l.*( !ens.on - A. E. 3amodaran !as enrolled in Indian Army on %<th ,o 1'@' as (apper > in 1'<7 he !as diagnosed as (chi+ophenia -%')/ K in alided out of ser ice on 1@th Dan 1'<) !ith 8&P disability K disability pension !as denied as Medical Board opined that the disability !as not attributable to the military ser ice nor it has aggra ated thereby as (chi+ophrenia is a constitutional disease K *igh Court single #udge allo!ed the disability pension and appeal before *igh Court 3i ision Bench got dismissed K (upreme Court *eld, the Medical Board is an e.pert body and its opinion is entitled to due !eight, alue and credence and rele ant factor !hich is re=uired to be noted is that the report of the Medical Board is not under challenge, Respondent !as not entitled to any disability pension, ho!e er, paid disability pension may not be reco ered K Appeal allo!ed. Su4erscr.4* re6erence (a) 1& I*em (,) 3ictum of *on"ble Ape. Court as :rimacy of opinion of duly constituted Medical Boards in determining a!ard of 3isability :ension K Reported in AIR 2010 S%!RE E CO%RT 1//' and 2012 (1) AFLJ F0 Om !ra8as- S.n3- :s+ %n.on o6 Ind.a A Ors+ Te5*0E5*rac* (c) I, T*B (G:RBMB C4GRT 4F I,3IA

Ci il Appeal ,o.)8)) of %&1& -arising out of (C: -C / ,o.%1''< of %&&'/ d$%&.&@.1& Om !ra8as- S.n3:s+ %n.on o6 Ind.a A Ors+ VVVVVVV.Respondents VVVVVVVVV.Appellant

Counsel for the AppellantL Ramesh!ar :rasad ;oyal, Ad ocate, Counsel for RespondentsL Mrs. Anil Aatiyar, Ad ocate T-e Arm( Ac*& 1E/0& Re3ula*.on 1'1 o6 *-e !ens.on Re3ula*.ons 6or *-e Arm( 1EC1& Rules /& E& 1? A 1/ *-e En*.*lemen* Rules& 1EF2 - #.sa,.l.*( !ens.on > the Appellant !as enrolled in the Territorial Army as a (epoy > the

Armed Forces Law Journal 2012 (1) 1 appellant had contacted the disease 1no!n as 2Gnspecified :sychosis6 and in alided out from ser ice !ith assessed disability as 7&P > disability pension denied as Medical Board opined the disease !as neither attributable to nor aggra ated by the military ser ice > *igh Court dismissed the 9rit :etition. 9eld& > 9e are clearly of the ie! that the Medical Board is an e.pert body and they ta1e into consideration all rele ant factors and essential practice before arri ing at any opinion and its opinion is entitled to be gi en due !eight, merit credence and alue > the Medical Board has gi en unanimous opinion that the disease of the appellant !as neither attributable to nor aggra ated by the military ser ice > in our considered opinion, no interference is called for, the Appellant is not entitled to the disability pension > the Appeal is dismissed.

Su4erscr.4* re6erence (a) 11

I*em (,) (ection 7@ of :93 Act, 1'') -The :ersons 9ith 3isabilities IB=ual 4pportunities, :rotection of Rights and Full :articipationJ Act, 1'')/

Te5*0E5*rac* (c) :ublished in :art II (ection 1 of the B.traordinary ;a+ette of India Ministry of Ca!, Dustice and Company Affairs -Cegislati e 3epartment/ ,e! 3elhi, the 1st Danuary, 1''8$:ausa 11, 1'1@ -(a1a/ (ection 7@ 7@-1/ ,o establishment shall dispense !ith or reduce in ran1, an employee !ho ac=uired a disability during his ser ice. :ro ided that, if an employee, after ac=uiring disability is not suitable for the post he !as holding, could be shifted to some other post !ith the same pay scale and ser ice benefits. :ro ided further that if it is not possible to ad#ust the employee against any post, he may be 1ept on a supernumerary post until a suitable post is a ailable or he attains the age of superannuation, !hiche er is earlier. -%/ ,o promotion shall be denied to a person merely on the ground of his

2 disabilityN

Armed Forces Law Journal 2012 (1)

:ro ided that the appropriate ;o ernment may, ha ing regard to the type of !or1 carried on in any establishment, by notification and sub#ect to such conditions, if any, as may be specified in such notification, e.empt any establishment from the pro isions of this section.

,otification !.r.t. e.emption of Armed Forces :ersonnel from pro isions of :ersons !ith 3isability Act, 1'') Te5*0E5*rac* (c) BMTRACT FR4M T*B ;AUBTTB 4F I,3IA :ART II, (BCTI4, 0 (GB> (BCTI4, -ii/ Appearing on page ,os.07<'>07'& date 10.7.%&&%. Ministry of (ocial Dustice and Bmpo!erment ,otifications ,e! 3elhi, the %<th March, %&&% (.4.11@'>In e.ercise of the po!ers conferred by pro iso to (ection 7@ of the :ersons !ith 3isabilities -B=ual 4pportunities, :rotection of Rights and Full :articipation/, Act, 1'') -1 of 1''8/ the Central ;o ernment ha ing regard to the type of !or1 carried on hereby e.empt all categories of posts of combatant personnel on the Armed Forces from the pro ision of the said section. -,o.18>%@$%&&1>,I.I/ (mt.Ra#!ant (andhu, Dt (ecy. Su4erscr.4* re6erence (a) I*em (,)

Su4erscr.4* re6erence (a) 11 -i/

I*em (,)

Armed Forces Law Journal 2012 (1) 1 Ape. Court #udgment on applicability of grant of 3isability :ension to persons retiring oluntarily at par !ith those in alided out > :aram#it (ingh Gnion of India > :5* *igh Court 5 (CA -Ci il/ .....$%&11 CC )7)&>)7)1$%&11 Gnion of India E :aram#it (ingh Te5*0E5*rac* (c ) Ci il 9rit :etition ,o.8@ of %&&@ In the *igh Court for the (tates of :un#ab 5 *aryana at Chandigarh W 3ate of decisionL February 1%, %&&< :aram#it (ingh VVVVVVVVVVVVVVVVV.... :etitioner Eersus G4I 5 others VVVVVVVVVVVVVVVV.. Respondents 1% CoramL *on"ble Mr. Dustice *emant ;upta 5 *onNble Mr. Dustice Mohinder :al Brief facts of the case are that the petitioner !as enrolled in the Indian Army on 4ctober 18, 1'<7 in Corps of Bngineers. 4n March %), 1''<, he !as posted in a field area in Dammu 5 Aashmir and !hile performing duties at insurgency prone area, sustained in#uries due to IB3 blast generated by the suspected anti>national elements$terrorists. *e !as treated as a case of :ott"s fracture left an1le and !as subse=uently placed in lo! medical category -BBB :ermanent/. The ;o ernment treated the operation of the petitioner"s Gnit as a full>fledged !ar. The petitioner !as 1no!n as a case of Battle Casualty. *e !as operated for his in#ury on left an1le and a rod !as inserted. It has been a erred in the petition that disability of the petitioner !as assessed at o er )& P by the Medical Board. After the operation, the petitioner found it difficult to do his duties efficiently and ga e his un!illingness for t!o years" e.tension in ser ice. A Release Medical Board !as ordered and the petitioner !as recommended to be discharged from the Army. *e !as discharged from the Army on 4ctober 01, %&&7 after rendering ser ice of %& years and 18 days. *o!e er, percentage of disability of the petitioner !as reduced to %& P *e is getting ser ice pension as !ell as disability pension at the rate of %& P The claim of the petitioner is that e en though percentage of his disability is considered %& P, yet he is entitled to be paid disability pension at the rate of )& P in ie! of the letter dated February &0, %&&& -Anne.ure :>1/ issued by the ;o ernment of India, Ministry of :ersonnel, :ublic ;rie ances 5 :ensions, 3epartment of :ension 5 :ensioners" 9elfare ,e! 3elhi. The petitioner has also claimed that he is entitled to 3isability Benefit Co er under the Army ;roup

2 Armed Forces Law Journal 2012 (1) Insurance Fund for his disability. The claim of the petitioner has been contested by the respondents mainly on the ground that rounding off disability under the pro isions of para @.% of ;o ernment of India, Ministry of 3efence ,e! 3elhi letter ,o.1 -%/$'@$3 -:en>C/ dated Danuary 01, %&&1 is applicable to the indi iduals !ho !ere in alided out of ser ice on medical grounds. As the petitioner !as discharged on completion of terms of engagement and not in alided out from ser ice, the relief sought for by him cannot be granted to him. It has been further a erred that the petitioner is not entitled to 3isability Benefit Co er under the Army ;roup Insurance Fund as he !as discharged from ser ice. It has also been pleaded that this Court has not territorial #urisdiction to ad#udicate upon the matter. In the replication filed by the petitioner, the a erments made in the !rit petition ha e been reiterated besides pleading that he is being paid ser ice pension and disability pension in the (tate of :un#ab and thus, the cause of action regarding grant of pension$full pension occurs to him at the place !here he is being paid pension. As such, this Court has territorial #urisdiction to entertain the !rit petition. 9e ha e heard Mr (andeep Bansal, Ad ocate appearing for the petitioner and Mr I ( (aggu, Ad ocate appearing for the respondents and ha e gone through the records of the case. The respondents ha e denied the benefit of )& P disability pension and 3isability Benefit Co er under the Army ;roup Insurance Fund to the petitioner only on the ground that he !as discharged from ser ice on completion of terms of engagement and !as not in alided out from ser ice. Thus, the only =uestion in ol ed in this petition is K !hether the petitioner is entitled to benefits !hich are admissible to army personnel !ho are in alided out of ser ice or not. For ans!ering this =uestion, a resume" of facts is necessary. The petitioner #oined the Indian Army on 4ctober 18, 1'<7. 4n Marcy, %), 1'<<, !hile he !as performing his duties in the insurgency>prone area in Dammu 5 Aashmir, he sustained in#uries in a blast suspected to be the handi!or1 of anti>national elements$terrorists. *e !as operated upon for his in#ury on left an1le and a rod !as inserted. *e !as placed in the category of BBB :ermanent. As he !as unable to perform his duties efficiently after his surgery, he ga e his un!illingness for t!o years" e.tension in ser ice. Thereafter, the Release Medical Board recommended the petitioner to be discharged from ser ice. Thus, he !as discharged from the Army on 4ctober 01, %&&7 after he had rendered more than

Armed Forces Law Journal 2012 (1) 1 t!enty years of ser ice. At this stage, reference to Regulation 1@' of the Army :ension Regulations, 1'81 -hereinafter referred to as Sthe :ension Regulations"/ is necessary and the same reads as under L> 21@'. An indi idual retired$discharged on completion of tenure or on completion of ser ice limits or on completion of terms of engagement or on attaining the age of )& years -irrespecti e of their period of engagement/, if found suffering from a disability attributable to or aggra ated by military ser ice and recorded by (er ice Medical Authorities, shall be deemed to ha e been in alidated out of ser ice and shall be granted disability pension from the date of retirement, if the accepted degree of disability is %& per cent or more, and ser ice element if the degree of disability is less than %& per cent. The ser ice pension $ ser ice gratuity, if already sanctioned and paid, shall be ad#usted against the disability pension $ ser ice element, as the case may be. %. The disability element referred to in clause -1/ abo e shall be assessed on the accepted degree of disablement at the time f retirement $ discharge on the basis of the ran1 held on the date on !hich the !ound $ in#ury !as sustained or in the case of disease on the date of first remo al from duty on account of that disease. ,4TBL In the case of an indi idual discharged on fulfilling the terms of his retirement, his un!illingness to continue in ser ice beyond the period of his engagement should not effect his title to the disability element under the pro ision of the abo e regulation6 A perusal of the abo e pro isions of Regulation 1@' of :ension Regulations lea es o room for doubt that the petitioner !as in alidated out of ser ice. The petitioner sustained in#ury$disability during ser ice, !hich !as attributable to and aggra ated by military ser ice and recorded by (er ice Medical Authorities. The ,4TB belo! Regulation 1@' ma1es it clear that in the case of an indi idual discharged on fulfilling the terms of his retirement, his un!illingness to continue in ser ice beyond the period of his engagement, as !as gi en by the petitioner in the present case, should not effect his title to the disability element under Regulation 1@' of the :ension Regulations. In this ie! of the matter, !e ha e no hesitation in holding that the petitioner !ill be deemed to ha e been in alidated out of ser ice and is entitled to disability pension as is admissible to defence personnel !ho are in alidated out of ser ice. The letter dated February &0, %&&& -Anne.ure :>1/, relied upon by the petitioner, so far as rele ant, reads as under L>

Armed Forces Law Journal 2012 (1)

2 (ub#ect L (pecial benefits in cases of death and 3isability in ser ice> payment of disability :ension $family pension K recommendation of The Central :ay Commission. The undersigned is directed to say that the Fifth Central :ay Commission, inter alia, recommended that for determining the compensation payable for death or disability under different circumstances, the cases could be broadly categori+ed in fi e distinct categories as under L> Cateogry A MM MM MM Category B MM MM MM Category C MM MM MM Category 3 MM MM MM Category B 3eath or disability arising as a result of -a/ attac1 by or during action against e.tremists, anti>social element, etc. and -b/ enemy action in international !ar or border s1irmishes and !arli1e situations, including cases !hich are attributable to -i/ e.tremists acts, e.ploding mines, etc. !hile on !ay to an operational area -ii/ 1idnapping by e.tremistsN and -iii/ battle inoculation as part of training e.ercises !ith li e ammunition. %. The fifth Central :ay Commission recommended arious relief pac1ages for the abo e categories, in modification of the e.isting pro isions on the sub#ect. E. 3isability :ension K for cases co ered under category B L 1. MM MM MM %. MM MM MM 0. MM MM MM 7. MM MM MM ). The Fifth Central :ay Commission also suggested certain procedural changes. These ha e also been considered by the ;o ernment. The :resident is no! pleased to decide as under L> :ercentage to be reco1oned assessed for computation 4f disability pension >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Cess than )& )& Bet!een )& and @) @) Bet!een @8 and 1&& 1&&6 :ercentage of 3isability

Armed Forces Law Journal 2012 (1) In ie! of the letter -Anne.ure :>1/ =uoted abo e, the petitioner ha ing been unable to continue in military ser ice because of the in#ury suffered by him due to IB3 blast generated by the suspected anti>national elements$terrorists !hile performing duties at insurgency prone area in Dammu 5 Aashmir, he !ould be deemed to ha e been in alidated out of ser ice and is entitled to be gi en )& P disability pension. As !e ha e held that the petitioner !ould be deemed to ha e been in alidated out of ser ice, the ob#ection of the respondents that rounding off the disability pension under the pro isions of para @.% of ;o ernment of India, Ministry of 3efence, ,e! 3elhi letter ,o.1 -%/$'@$3-:en>C/ dated Danuary 01, %&&1 is applicable to the indi iduals !ho !ere in alidated out of ser ice on medical grounds, no more holds the field. :ara @.% of the letter dated Danuary 01, %&&1, prescribes that !here an Army Forces :ersonnel is in alidated our of ser ice due to acts of iolence $ attac1 by terrorists, anti>social elements, etc. and if the percentage of disability as assessed by In alidating Medical Board is less than )& P, the percentage to be rec1oned for computing of disability element !ould be )& per cent. For the aforesaid reasons, this petition is allo!ed and the petitioner is held entitled to )& P disability pension and to 3isability Benefit Co er under the Army ;roup Insurance Fund for his disability. The disability pension at the rate of )& P !ith all conse=uential benefits !ill be paid to him from the date of his retirement. The respondents shall pay all the arrears to the petitioner !ithin t!o months from the date of receipt of a copy of order, failing !hich the petitioner !ill be entitled to interest at the rate of nine per cent annum. (d$> -*emant ;upta/ Dudge (d$> -Mohinder :al/ Dudge 2

(upreme Court of India

Record of :roceedings :etition-s/ for (pecial Cea e to Appeal -Ci il/V$%&11 CC )7)&>)7)1$%&11 -From the #udgment and order dated 1%$&%.$%&&< in C9: ,o.8@$%&&@ 5 #udgment and order dated 1).).%&&' in RA ,o.%&< of %&&< in C9: ,o.8@ of %&&@ of The *igh Court of :un#ab 5 *aryana at Chandigarh/

Armed Forces Law Journal 2012 (1) VVVVVVVV... :etitioner -s/ VVVVVVVV .. Respondent-s/

Gnion of India 5 4rs. Eersus :aram#it (ingh

9ith IA 1>% -c$delay in filing (C: and office report/ 3ateL &7$&7$%&11 These petitions !ere called on for hearing today. C4RAM *on"ble Mr. Dustice E ( (irpur1ar *on"ble Mr.Dustice T ( Tha1ur Gpon hearing counsel the Court made the follo!ing 4R3BR 9e are not inclined to interfere !ith the impugned order in e.ercise of our discretion under Article 108 of the Constitution. The (pecial Cea e :etitions are, accordingly, dismissed on the ground of delay as !ell as on merits. (d$> Su4erscr.4* re6erence (a) 10 I*em (,) Ape. Court #udgment on compulsory discharge of Co! Medical Category -CMC/ personnel under The Army Act, 10A ultra vires > SC order = INSC 1E11 (d* 0'+11+200F) (RAJ!AL SIN"9) Te5*0E5*rac* (c ) I, T*B (G:RBMB C4GRT 4F I,3IA CIEIC A::BCCATB DGRI(3ICTI4, (d$>

CIEIC A::BAC ,4. 8)<@ 4F %&&< -Arising out of (.C.:. -C/ ,o. 8&0@ of %&&@/ G,I4, 4F I,3IA 5 4R(. EBR(G( VVVVVV.. A::BCCA,T -(/

RAD:AC (I,;*

Armed Forces Law Journal 2012 (1) 1 VVVVVVV.. RB(:4,3B,T -(/

9IT*L I(C: -C/ ,4(. 1700<>1700' 4F %&&< A,3 (C: -C/ ,4.1)70& 4F %&&<J DG3;MB,T 3.A. DAI,, D.L Cea e granted in (C: -C/ ,o. 8&0@ of %&&@. %. This appeal raises a short =uestion !hether the holding of an XIn alidating BoardX is a condition precedent for discharge of a Dunior Commissioned 4fficer -DC4/ on account of lo! medical categoryH 0. For the determination of the issue aforesaid, it is unnecessary to del e deeply into the facts of the case and only a fe! material facts !ould suffice. These areL The respondent, a Dunior Commissioned 4fficer -DC4/ !as enrolled in the Army on 'th March, 1'<&. 9hile ser ing %& DAT Regiment, on 01st Duly, %&&&, he fell illN !as admitted to the military hospital and !as discharged after treatment on @th ,o ember, %&&&, but !as placed in lo! medical category (1*1A1:%B1 !ith effect from 8th ,o ember, %&&& for si. months. 4n account of disability, namely, Ischaemic heart disease, again in May, %&&1, he !as continued in lo! medical category for another si. months. Cater, he !as brought for re ie! and !as then placed in lo! medical category -permanent/ for a period of t!o years from 4ctober, %&&1. 7. *o!e er, before the e.piry of the said period of t!o years, a sho! cause notice !as ser ed on the respondent on %@th February, %&&%, stating that since he !as placed in permanent lo! medical category, !hy he should not be discharged from ser ice as no sheltered appointment !as a ailable and his unit !as deployed in a field area. It !as also stated that his retention in ser ice !as not in public interest. For the sa1e of ready reference, the notice is e.tracted belo!L X%& DAT C$4 '' A:4 %&8%$A$ February, %&&% DC 7<<'0 IM Mb (ub Ra#pal (ingh %& DAT C$o '' A:4 (*49 CAG(B ,4TICB 1. 3uring re>categori+ation board held at 1@< Army *ospital on %7.1&.%&&1, as per AF M(F>1)A you ha e been declared in permanent lo! medical category. %. Because the unit is deployed in field area, there is no sheltered appointment. As a

2 Armed Forces Law Journal 2012 (1) + result of the abo e, sho! cause as to !hy you should not be discharged from ser ice because your retention in ser ice is not in public interest. 0. :lease send reply of the sho! cause notice by 1&.0.%&&%. (d$> .... -Ra#esh Ahu#a/ Colonel Commanding 4fficerX ). In his reply to the said notice, the respondent pleaded that on doctorYs ad ice he could perform light duties and e.pressed his !illingness to continue in ser ice. A RRelease Medical BoardY !as constituted, !hich recommended his discharge. Accordingly, by an order passed by the 4fficer In>charge -4IC/ of %& DAT Regiment, the respondent !as discharged from ser ice !ith effect from 01st August, %&&%. 8. Being aggrie ed, the respondent challenged his discharge by preferring a !rit petition under Article %%8 of the Constitution in the *igh Court of 3elhi at ,e! 3elhi. Before the *igh Court the plea of the respondent !as thatL> -i/ as a DC4 he could be discharged for lo! medical category under Army Rule 10 -0/ -I/ -ii/ by the Commanding 4fficer after obtaining the opinion of an XIn alidating BoardX and not under Rule 10 -0/ -I/ -iii/ -c/ read !ith Rule 10 -%A/ !hich had been applied in his case and since the opinion of the In alidating Board had not been obtained, his discharge !as contrary to the rulesN -ii/ as per the mandate of the afore>noted Army Rule, the recommendation of the In alidating Board is to precede the decision for discharge and a XRelease Medical BoardX cannot replace the re=uirement of XIn alidating BoardXN -iii/ as per the policy directi e issued by the ;o ernment on 1)th March, %&&&, Army Rule 10 -0/ -I/ -iii/ -c/, he could be discharged only by the Chief of Army (taff and not by 4IC, %& DAT Regiment e en though under Rule 10 -%A/, such po!er could be delegated to the commanding officer but in the present case no such decision had been ta1enN -i / there !as no ad erse report against him either from his C4 or any of the superior officersY regarding performance of his duties and general beha iour and, therefore, his continuation in ser ice could not be said to be against public interestN - / the 4IC -Records/ order of his discharge !ithout pro iding an opportunity of hearing is iolati e of the principles of natural #ustice and - i/ a number of similarly situated DC4s had been retained in ser ice and, therefore, he had been discriminated against. @. The stand of the ;o ernment before the *igh Court !as that retention of lo! medical category personnel is al!ays sub#ect to the a ailability of suitable sheltered

Armed Forces Law Journal 2012 (1)

appointment, commensurate !ith their medical category and since no suitable sheltered appointment !as a ailable !ith the unit due to deployment in field area, the respondent had to be discharged from ser ice. It !as also urged that since the respondentYs disability had already been assessed by the Release Medical Board, he !as discharged under Army Rule 10 -0/ -I/ -iii/ -c/ read !ith Rule 10 -%A/ and Army 4rder 78$<& in public interest. <. The *igh Court, by a !ell reasoned order, concluded that the discharge of the respondent !ithout holding an XIn alidating BoardX in terms of Rule 10 -0/ -I/ -ii/ !as illegal. As regards the applicability of Army 4rder 78 of 1'<&, !hich contemplates that the employment of permanent lo! medical category personnel at all times is sub#ect to a ailability of suitable sheltered appointment, commensurate to their medical category, the *igh Court held that before the opinion is formed as to !hether a person is to be retained or not on medical grounds, there has to be an opinion of the In alidating Board to the effect that further retention in ser ice on medical ground is not possible. The =uestion of suitable sheltered appointment commensurating the medical category !ill be rele ant only thereafter. According to the *igh Court, there is no rule stipulating that as soon as a person is placed in permanent lo! medical category, it !ill be presumed that he is unfit for further ser ice. Conse=uently, the *igh Court allo!ed the !rit petitionN =uashed the order of discharge and directed the appellants herein to reinstate the respondent in ser ice. '. Aggrie ed by the said order, the appellants filed a Re ie! :etition along !ith a number of other miscellaneous applications for interim relief. The Re ie! :etition as !ell as the applications !ere dismissed on merits as !ell as on the ground of limitation. The main order dated @th 4ctober, %&&) as !ell as the order in Re ie! :etition dated %)th Danuary, %&&@ are under challenge in this appeal. 1&. It !as strenuously urged by Mr. Ei1as (ingh, learned Additional (olicitor ;eneral, that since the respondent !as in lo! medical category, he !as discharged under Army 4rder 78 of 1'<& read !ith Rule 10 -0/ -I/ -ii/ -c/ of the Army Rules, 1')7 -for short Rthe RulesY/ !hereunder there is no re=uirement for con ening an In alidating Board. It !as submitted that the source of po!er of discharge of the respondent !as (ub>rule -%A/ of Rule 10, !hich creates a special pro ision for discharge, not!ithstanding anything to the contrary contained in Rule 10. It !as contended that the meaning of the e.pression Runfit for further ser iceY as used in clause -ii/ of Rule 10 -0/ -I/ is ery clear and unambiguous and, therefore, XIn alidating BoardX as contemplated under the said Rule is meant only for those

Armed Forces Law Journal 2012 (1)

army personnel !ho are found medically Runfit for further ser iceY by the Re ie! Medical Board not for those !ho are placed in Rlo! medical category -permanent/Y, as is the case here. In support of the proposition that !hen the !ords of the statute are clear, plain and unambiguous then the courts are bound to gi e effect to that meaning, irrespecti e of the conse=uences, reliance is placed on the decisions of this Court in ;urude datta E1sss Maryadit 5 4rs. Es.(tate of Maharashtra 5 4rs.1 and Ditender Tyagi Es. 3elhi Administration 5 Anr.%. Reference is also made to (hailendra 3ania 5 4rs. Es. (.:. 3ubey 5 4rs.0 to contend that a long past practice follo!ed by the department is also a alid factor in see1ing a particular interpretation. 11. :er contra, Mr. :. :. Rao, learned senior counsel appearing for the respondent, ehemently contended that in terms of (ub>rule -0/ of Rule 10 !hich specifies the category of officers, competent to dischargeN the grounds of discharge, and the manner of discharge, a DC4 li1e the respondent, !ho had been placed in lo! medical category -permanent/ for a period of t!o years, could be discharged from ser ice only if he had been found Xmedically unfit for further ser iceX on the recommendation of the In alidating Board. According to the learned counsel, though in the order of discharge the respondent has been found to be in Xlo! medical category -permanent/X but in effect, for the purpose of discharge, he has been found medically Xunfit for further ser iceX, and, therefore, his case !ould clearly fall !ithin the ambit of clause -ii/ of Rule 10 -0/ -I/. In support of the proposition that !here po!er is gi en to do a certain thing in a certain !ay, the thing must be done in that !ay or not at all and that other methods of performance are necessarily forbidden, reliance !as placed on the decision in ,a+ir Ahmad Es. The Aing Bmperor7, follo!ed in (tate of Gttar :radesh Es. (inghara (ingh 5 4rs.). Cearned counsel argued that the re=uirement of recommendation of In alidating Board is a safeguard against arbitrary curtailment of statutory tenure and being a bene olent pro ision, re=uires to be liberally construed. The stand of the respondent is that the Rules relating to discharge do not ma1e any differentiation bet!een categorisation of the personnel on the basis of their health status and as long as a person is discharged on medical grounds as being unfit for further ser ice, pro ision of Rule 10 -0/ -I/ -ii/ !ould apply, irrespecti e of categorisation. In so far as Army 4rder 78 of 1'<& is concerned, the learned counsel submitted that it cannot o erride the statutory rule. :lacing reliance on the decision of this Court in Capt. Eirendra Aumar Es. Gnion of India8, learned counsel urged that the appellants ha ing failed to follo! the prescribed statutory procedure, the termination of ser ice of the respondent !as illegal and, therefore, the *igh Court !as fully #ustified in

Armed Forces Law Journal 2012 (1) setting aside the same.

1%. *a ing e.amined the issue in the light of the statutory pro isions, !e are of the opinion that ans!er to the =uestion posed has to be in the affirmati e. 10.It needs little emphasis that fitness of the personnel of Armed Forces at all le els is of paramount consideration and there cannot be any compromise on that score. It is !ith this ob#ect in ie!, the Cegislature has enacted the Army Act, 1')&N the Armed Forces Medical (er ices Act, 1'<0 and framed the Rules. Army 4rders are also issued from time to time in order to gi e effect to these statutory pro isions in letter and spirit. As per the procedure detailed in the !ritten submissions, filed on behalf of the appellants, annual or periodic medical e.amination of the army personnel is done on certain specific norms. The medical status of an army personnel is fi.ed on the basis of these norms, containing fi e components i+. -a/ psychology -b/ hearing -c/ appendarist -d/ physical and -e/ eye >> !hich is collecti ely 1no!n as (*A:B. The medical status (*A:B is again characterised in fi e components 1no!n asL>> (*A:B I>>physically fit for all purposes. (*A:B II 5 (*A:B III>>not fit for certain duties and are re=uired not to underta1e strain. (*A:B IE>>those !ho are in hospital for certain ailments and (*A:B E>>unfit for further ser ice of the Army. 17.It is pointed out that army personnel are put in the afore> mentioned medical categories i.e. (*A:B on the basis of a periodical Medical Board !hich is held for an indi idual after the age of 0) years and thereafter at an inter al of e ery ) years. If the army personnel is in (*A:B I, he is not re=uired to undergo further Medical Board e.cept annual medical e.amination. *o!e er, the army personnel !ho is placed in (*A:B II and (*A:B III on the annual medical e.amination, he is placed in lo! medical category -temporary/ for a period of si. months. After si. months, he is placed before the Re ie! Medical Board and if at the end of si. months, his category remains unchanged, that category is a!arded to him on permanent basis and he is placed in Xlo! medical category -permanent/X. After a!ard of lo! medical category -permanent/, the army personnel is placed before the Re ie! Medical Board after e ery t!o years. In Re ie! Medical Board, the medical category of the personnel may be changed 1eeping in ie! the change in any component of (*A:B. Thus, (*A:B II or (*A:B III may be placed in (*A:B I also and ice ersa. It is the say of the appellants that the release of certain medical category -permanent/ personnel is regulated by Army 4rder ,o.78 of 1'<&, !hich contemplates that the army personnel, !ho is placed in lo! medical category -permanent/, is to be retained in ser ice for a minimum period of 1) years -for (epoy/ and %& years -for DC4/ and during this period he is entitled to all promotions

2 Armed Forces Law Journal 2012 (1) + as per the rulesN the discharge of lo! medical category is regulated as per the abo e> mentioned Army 4rder and before the discharge, the personnel is placed before the XRelease Medical BoardX for a mandatory e.amination before the order of discharge is passed. An army personnel !ho is categori+ed as (*A:B E is considered to be not fit for further ser ice of the Army and on placing such a personnel in (*A:B E he is mandatorily brought before In alidating Board in terms of Rule 10 -0/, !hereas an army personnel !ho is in (*A:B II or in (*A:B III, is to undergo different Medical Boards apart from annual medical e.amination. The said personnel are not totally unfit but at the same time they are not fit for all the army duties and, therefore, they are retained for 1) years or %& years, as the case may be, on the sheltered post mandatorily. 1). *a ing noticed the basic parameters !hich are applied for categorisation of the physical status of the army personnel, it !ill be useful to briefly refer to rele ant statutory pro isions. 18. Chapter IE of the Army Act, 1')& -for short Rthe ActY/ deals !ith the conditions of ser ice of the army personnel. (ection 1< of the Act pro ides that e ery person sub#ect to the Act shall hold office during the pleasure of the :resident. (ection 1' clothes the Central ;o ernment !ith the po!er of dismissal or remo al from ser ice any person co ered under the Act sub#ect to the pro isions of the Act and the Rules and Regulations made thereunder. (ection %& pro ides for dismissal, remo al or reduction by the Chief of the Army (taff and by other officers. (ection %% of the Act pro ides for retirement, release or discharge from the ser ice by such authority and in such manner as may be prescribed. (ub>(ection -.i./ of (ection 0 of the Act states that RprescribedY means prescribed by rules made under the Act. (ection 1'1 empo!ers the Central ;o ernment to ma1e rules as regards remo al, retirement, release or discharge from the ser ice of persons sub#ect to the Act. :ursuant to and in furtherance of the po!er conferred on the Central ;o ernment under (ection 1'1 of the Act, the Central ;o ernment framed the Rules. 1@. Rule 10 !hich is the pi otal pro ision reads thusL X10. Authorities empo!ered to authorise discharge.>>-1/ Bach of the authorities specified in column 0 of the Table belo!, shall be the competent authority to discharge from ser ice person sub#ect to the Act specified in column 1 thereof on the grounds specified in column %. -%/ Any po!er conferred by this rule on any of the aforesaid authorities shall also be e.ercisable by any other authority superior to it. I-%A/ 9here the Central ;o ernment or the Chief of the Army (taff decides that any person or class or persons sub#ect to the Act should be discharged from ser ice, either unconditionally

Armed Forces Law Journal 2012 (1)

or on the fulfillment of certain specified conditions, then, not!ithstanding anything contained in this rule, the Commanding 4fficer shall also be the competent authority to discharge from ser ice such person or any person belonging to such class in accordance !ith the said decision.J -0/ In this table Xcommanding officerX means the officer commanding the corps or department to !hich the person to be discharged belongs e.cept that in the case of #unior commissioned officers and !arrant officers of the (pecial Medical (ection of the Army Medical Corps, the Xcommanding officerX means the 3irector of the Medical (er ices, Army, and in the case of #unior commissioned officer and !arrant officers of Remounts, Eeterinary and Farms, Corps, the XCommanding 4fficerX means the 3irector Remounts, Eeterinary and Farms. TABCB ;rounds of 3ischarge

Category

Competent authority to authori+e discharge 0

Commanding 4fficer

Manner of 3ischarge

1
Dunior Commissioned 4fficers

%
I.-i/-a/ 4n completion of the prescribed period of ser ice or tenure specified in the Regulations for his ran1 or appointment, are on reaching the age limit !hiche er is earlier, unless trainee on the acti e list of further specified period !ith the sanction of the Chief of the Army (taff or on becoming eligible for release under the Regulations. -b/ At his o!n re=uest on transfer to the pension establishment -ii/ *a ing been medically unfit for ser ice. -iii/ All discharge other found further

Commanding 4fficer Commanding 4fficer To be carried out only on the recommendation of an In aliding Board If the discharge is

classes

of

-a/ In the case of Dunior Commissioned

Armed Forces Law Journal 2012 (1)

4fficers granted direct commissions during the 1st 1% months ser ice Area $3i isional Commander.
not at the re=uest of the Dunior Commissioned 4fficer the competent authority before sanctioning the discharge shall, if the circumstances of the case permit, gi e the DC4 concerned an opportunity to sho! cause against the order of discharge.

-b/ In the case of DC4s, not co ered by -a/, ser ing in any Army or Command the ;eneral 4fficer Commanding>in> Chief of that Army or command if not belo! the ran1 of Cieutenant ;eneral. -c / In any other case, the Chief of the Army (taff.

1<. The afore>e.tracted Rule 10 -1/ clearly enumerates the authorities competent to discharge from ser ice, the specified personN the grounds of discharge and the manner of discharge. It is manifest that !hen in terms of this Rule an army personnel is discharged on completion of ser ice or tenure or at the re=uest of the person concerned, no specific manner of discharge is prescribed. ,aturally, the Regulations or Army 4rders !ill ta1e care of the field not co ered by the Rules. *o!e er, for discharge on other grounds, specified in Column -%/ of the Table, appended to the Rule, the manner of discharge is clearly laid out. It is plain that a discharge on the ground of ha ing been found Xmedically unfit for further ser iceX is specifically dealt !ith in Column -I/ -ii/ of the Table, !hich stipulates that

Armed Forces Law Journal 2012 (1)

discharge in such a case is to be carried out only on the recommendation of the In alidating Board. It is a cardinal principle of interpretation of a (tatute that only those cases or situations can be co ered under a residual head, !hich are not co ered under a specific head. It is, therefore, clear that only those cases of discharge !ould fall !ithin the ambit of the residual head, i+. I -iii/ !hich are not co ered under the preceding specific heads. In other !ords, if a DC4 is to be discharged from the ser ice on the ground of Xmedically unfit for further ser iceX, irrespecti e of the fact !hether he is or !as in a lo! medical category, his order of discharge can be made only on the recommendation of an In alidating Board. The said rule being clear and unambiguous is capable of only this interpretation and no other. 1'. *a ing reached the said conclusion, !e feel that the appellants !ere bound to follo! Rule 10 -0/ -I/ -ii/, more so ha ing placed the respondent in lo! medical category -permanent/ for a period of t!o years from 4ctober, %&&1 he !as discharged from ser ice on 01st August, %&&%, relying on the recommendation of the Re>categorisation Board held on %7th 4ctober, %&&1. As noted in the sho! cause notice, e.tracted abo e, the said Board had placed the respondent in Xpermanent lo! medical categoryX. Be that as it may, the main ground of discharge being medical unfitness for further ser ice, the appellants !as bound to follo! the prescribed rule. %&. It is !ell settled rule of administrati e la! that an e.ecuti e authority must be rigorously held to the standards by !hich it professes its actions to be #udged and it must scrupulously obser e those standards on pain of in alidation of an act in iolation of them. This rule !as enunciated by Dustice Fran1furter in Eiteralli Es. (aton@, !here the learned Dudge saidL 0)' G.(. )0) L Ca! Bd -(econd series/ 1&1% %& XAn e.ecuti e agency must be rigorously held to the standards by !hich it professes its action to be #udged... Accordingly, if dismissal from employment is based on a defined procedure, e en though generous beyond the re=uirements that bind such agency, that procedure must be scrupulously obser ed...This #udicially e ol ed rule of administrati e la! is no! firmly established and, if I may add, rightly so. *e that ta1es the procedural s!ord shall perish !ith that s!ord.X %1. The afore>e.tracted obser ations !ere appro ed and follo!ed in (u1hde (ingh 5 4rs. Es. Bhagatram (ardar (ingh Raghu anshi 5 Anr.< and then again in 3r. Amar#it (ingh Ahlu!alia Es. The (tate of :un#ab 5 4rs.' !herein, spea1ing for a

Armed Forces Law Journal 2012 (1)

three>Dudge Bench, :.,. Bhag!ati, D. had obser ed that though the abo e ie! !as not based on the e=uality clause of the Gnited (tates Constitution and it !as e ol ed as a rule of administrati e la! but the principle remains the same, namely, that arbitrariness should be eliminated in a (tate action. -Also seeL Ramana 3ayaram (hetty Es. International Airport Authority of India 5 4rs.1&/. %%. In ie! of the foregoing interpretation of the rele ant rule, !e are in complete agreement !ith the *igh Court that !here a DC4 is sought to be discharged on the ground of medical unfitness for further ser ice, his case has to be dealt !ith strictly in accordance !ith the procedure contemplated in Clause I -ii/ in Column % of the Table appended to Rule 10. The Rule prescribes a particular procedure for discharge of a DC4 on account of medical unfitness, !hich must be follo!ed and, therefore, any order of discharge passed !ithout sub#ecting him to In alidating Board !ould fall foul of the said statutory rule. %0.In the present case, it is e ident from Column ' of the order of discharge that respondent has been discharged on account of his ha ing been placed in a lo! medical category -permanent/ by the Re>categorisation Board. As noted abo e, he !as not discharged immediately and !as apparently detailed for sheltered appointment. *o!e er, suddenly !ithin a fe! months of his e aluation by the XRe> categorisation BoardX, he !as ser ed !ith a sho! cause notice, see1ing to discharge him on the aforementioned grounds. 9e are con inced that although the discharge is purportedly sho!n to be also on account of non>a ailability of a sheltered appointment, the main ground for discharge !as undoubtedly on account of permanent lo! medical category i.e. medical unfitness. In that ie! of the matter, the order of discharge of the respondent !ould not fall under the residual ground, namely, I -iii/ in Column % of the Table. %7. That ta1es us to the ne.t =uestion !hether the case of the respondent for discharge could be dealt !ith in accordance !ith Army 4rder 78 of 1'<&, de hors Rule 10, as contended by the appellants. %).Rele ant portion of the said order reads as follo!sL XA4 78$<& 3isposal of :ermanent Co! Medical Category :ersonnel other than 4fficers Aim 1. The aim of this Army 4rder is to lay do!n implementation instructions for the disposal of permanent lo! medical category DC4s$4R in terms of Min of 3ef Cetter ,o. A$0%0')$EIII$4rg % -M:/ -c/$@10>($A$3 -A;/ dated 1& May, @@ as amended

Armed Forces Law Journal 2012 (1) ide Corrigendum ,o. A$0%0')$M$4rg % -M:/ -c/$@18@$A$3 -A;/ dated %8 ,o @', reproduced as Appendice RAY and RBY respecti ely to this order. Retention

%. ;eneral :rinciples -a/ The employment of permanent lo! medical category personnel, at all times, is sub#ect to the a ailability of suitable alternati e appointments commensurate !ith their medical category and also to the pro iso that this can be #ustified in the public interest, and that their retention !ill not e.ceed the sanctioned strength of the regiment$corps. 9hen such an appointment is not a ailable or !hen their retention is either not considered necessary in the interest of the ser ice or it e.ceeds the sanctioned strength of the regiment$corps, they !ill be discharged irrespecti e of the ser ice put in by them. -b/ 4rdinarily, permanent lo! medical category personnel !ill be retained in ser ice till completion of 1) years ser ice in the case of DC4s and 1& years in the case of 4R -including ,C4s/. *o!e er, such personnel may continue to be retained in ser ice beyond the abo e period until they become due for discharge in the normal manner sub#ect to their !illingness and the fulfilment of the stipulation laid in (ub :ara -a/ abo e. 0. All personnel retained in ser ice in terms of :ara % abo e !ill, under all circumstances, be discharged on completion of their engagement periods$retiring ser ice limits. For this purpose, ,C4s and DC4s !ill be treated as underL> -a/ ,C4s !ill be discharged on completion of the retiring ser ice limits appropriate to ran1s as opposed to the e.tended limits laid do!n in A4 10$@@. *o!e er, their retention beyond the contractual period of engagement !ill be regulated under the pro isions of :aras 177 to 17@ of Regulations for the Army 1'8%. -b/ DC4s !ill be discharged on completion of the normal retiring ser ice limits as opposed to the e.tended limits laid do!n in A4 10$@@. 7. :ersonnel suffering from pulmonary tuberculosis, including those !ho may be cured of the disease, !ill be disposed of in accordance !ith the pro isions of Min of 3ef letter ,o. %%8@'$3;AFM($3;>0A$%@%1$3-MBL> dated 1< Dul @7 -reproduced in A4 1)&$@)/, as amended$amplified from time to time. ). Cases of all permanent lo! medical category personnel !ill be re ie!ed by all

Armed Forces Law Journal 2012 (1)

concerned accordingly. In the case of those personnel !ho become due for discharge as per the instructions contained in the preceding paragraphs, immediate action !ill be ta1en in the normal manner to carry of their discharge, as e.peditiously as possible. 8. This order only lays do!n the general policy and procedure !ith regard to the disposal of permanent lo! medical category personnel. The actual discharge !ill, ho!e er, be carried out in accordance !ith the pro isions of Min of 3ef letter ,o. A$0%0')$EIII$4rg % -M:/ -c/$@10>($a$3 -A;/ dated 1& May @@, as amended ide Corrigendum ,o. A$0%0')$M$4rg -M:/ -c/$ @18@$A$3 -A;/ dated %8 ,o @' -reproduced as Appendices RAY and RBY respecti ely/ and this *F letter ,o. <<81$A;$:( % -c/ dated 1< Aug 87, read !ith letter ,o <<81$A;$:( %-c/ dated %8 Mar$1 Apr @&. @. Cases of permanent lo! medical category personnel already decided under the e.isting pro isions, !ill not be re>opened. <. This supersedes all pre ious instructions on the sub#ect. A$0%0')$M$4rg %-M:/X %8. It is manifest that the said Army 4rder has been issued for disposal of permanent lo! medical category personnel and merely contemplates that the employment of permanent lo! medical category personnel at all times, is sub#ect to the a ailability of suitable alternati e appointments commensurate !ith their medical categories and also sub#ect to the conditions that such a sheltered appointment can be #ustified in the public interest. A plain reading of the Army 4rder sho!s that it comes into operation after an opinion has been formed as to !hether a particular personnel is to be retained in ser ice or not, if so for !hat period. If a person is to be retained in ser ice despite his lo! medical category for a particular period as stipulated in the Army 4rder 78 of 1'<&, the =uestion of sub#ecting him to In alidating Board may not arise. *o!e er, if a person is to be discharged on the ground of medical unfitness, at that stage of his tenure of ser ice or e.tended ser ice !ithin the meaning of the Army 4rder, he has to be discharged as per the procedure laid do!n in Clause I -ii/ in Column % of the said Table. (imilarly, (ub>rule -%A/ of Rule 10, hea ily relied upon by the appellants does not carry the case of the appellants any further. It is only an enabling pro ision to authorise the commanding officer to discharge from ser ice a person or a class of persons in respect !hereof a decision has been ta1en by the Central ;o ernment or the Chief of Army (taff to discharge him from ser ice either unconditionally or on

Armed Forces Law Journal 2012 (1)

the fulfillment of certain specified conditions. The said pro ision is not in any !ay in conflict !ith the scope of the remaining part of Rule 10, so as to gi e it an o erriding effect, being a non obstante pro ision. %@. For the foregoing reasons, !e !holly agree !ith the reasoning and the conclusion of the *igh Court that the discharge of the respondent !as not in accordance !ith the prescribed procedure and !as, therefore, illegal. 9e do not find any illegality or infirmity in the impugned #udgment$order, !arranting our interference. The appeal, being de oid of any merit, is dismissed accordingly !ith costs. %<. These tagged special lea e petitions ha e been preferred against the orders passed by the *igh Court, declining to grant interim relief to the !rit petitioners. (ince the main issue no! stands decided, there is no point in entertaining these petitions. All the petitions are dismissed accordingly !ithout obser ing anything on merits. It !ill be open to the *igh Court to no! ta1e up the main !rit petitions for disposal in accordance !ith la!. ................................................D. -C. A. T*AAABR/ .................................................D. -3.A. DAI,/ ,B9 3BC*IN ,4EBMBBR @, %&&<. Su4erscr.4* re6erence (a) 17 I*em (,)

:olicy letter post>E C:C, on pensionary benefits on death$disability in attributable $ aggra ated cases > Mo3 ltr ,o.1-%/$'@$3-:en>C/ dated 01.&1.%&&1 including broad>banding and at par EI C:C, Most Important Circular ,o. 71& of office of the :C3A -:ensions/, Allahabad, datedL10.&).%&&'. Te5*0E5*rac* (c ) Re4roduc*.on o6 "o7ernmen* o6 Ind.a& .n.s*r( o6 #e6ence Le**er No+1(2)0E'0I0#(!en-C) da*ed 11s* Januar( 2001 I#er.7a*.7e o6 .n.s*r( o6 !ersonnel& !u,l.c "r.e7ances A !ens.on& #0o !ens.on A !ens.oners< @el6are O o6 01+02+2000J 2(ub L Implementation of the ;o ernment decisions on the recommendations of the Fifth Central :ay Commission regarding disability pension $ !ar in#ury

2 Armed Forces Law Journal 2012 (1) pension $ special family pension $ liberalised family pension $ dependent pension $ liberalised dependent family pension for the armed forces officers and personnel belo! officer ran1 retiring, in aliding or dying in harness on or after 1>1>'8. (ir, The undersigned is directed to state that in pursuance of ;o ernment decisions on the recommendations of the Fifth Central :ay Commission, sanction of the :resident is hereby accorded to the modification, to the e.tent specified int his letter, in the rules $ regulations concerning abo e mentioned pensionary benefits of the Commissioned 4fficers -including M,(/ and :ersonnel Belo! 4fficer Ran1 -:B4R/ including ,Cs -B/ of the three (er ices, 3efence (ecurity Corps and the Territorial Army -here in after collecti ely referred to as Armed Forces :ersonnel./ 1.% The pro ision of the :ension Regulations of the three (er ices and arious (er ice instructions $ ;o ernment orders !hich are not affected by the pro isions of this letter, !ill remain unchanged. !ar* I = #a*e o6 e66ec* and de6.n.*.ons %.1 The pro isions of this letter shall apply to the Armed Forces personnel !ho !ere in ser ice on 1.1.1''8 or #oined $#oin ser ice thereafter unless other!ise specified in this letter. %.% 9here pension has already been sanctioned pro isionally or other!ise in cases occurring on or after 1.1.1''8 the same !ould be re ised in terms of these orders. In cases !here pension has been finally sanctioned under the pre re ised orders and if it happens to be more beneficial than the pension becoming due under, these orders, the pension already sanctioned shall not be re ised to the disad antage of the pensioners. 3efinitions L> 0.1 Gnless other!ise specified in this letter, the term SRec1onable Bmoluments6 shall mean K a/ For O66.cers L :ay including Ran1 :ay, non>practising Allo!ance, (tagnation Increment, if any, last dra!n by the officer -Ref (AI %$($'<, (,I %$($'< and (AFI 1$($'</. b/ For !ersonnel $elow O66.cer Ran8 (!$OR) L :ay including

Armed Forces Law Journal 2012 (1) 1 Classification allo!ances, (tagnation increment, if any, last dra!n by the indi idual . -Ref (AI 1$($'<, (,I 1$($'< and (AFI 1$($'</. 0.% In the case of indi iduals !ho opt$opted to continue to dra! pay in the pre> re ised scales beyond 01.1%.') and remain $ remained in that scale till retirement $ discharge $ in alidment $ death in harness pension $ family pension and retirement $ death gratuity shall be regulated in terms of :ara 0.0 and 0.7 of Ministry of 3efence letter ,o.1-8/$'<$3-:en$(er/ dated &0 Feb, '<. !ar* II = !ens.onar( $ene6.*s on #ea*- 0 #.sa,.l.*( .n A**r.,u*a,le 0 A33ra7a*ed cases 7.1 For determining the pensionary benefits for death or disability under different circumstances due to attributable $ aggra ated causes, the cases !ill be broadly categori+ed as follo!s L> Ca*e3or( A 3eath or disability due to natural causes neither attributable to nor aggra ated by military ser ice as determined by the competent medical authorities. B.amples !ould be ailments of nature of constitutional diseases as assessed by medical authorities, chronic ailments li1e heart and renal diseases, prolonged illness, accidents !hile not on duty. Ca*e3or( $ 3eath or disability due to causes !hich are accepted as attributable to or aggra ated by military ser ice as determined by the competent medical authorities. 3iseases contracted because of continued e.posure to a hostile !or1 en ironment, sub#ect to e.treme !eather conditions or occupational ha+ards resulting in death or disability !ould be e.amples. Ca*e3or( C 3eath or disability due to accidents in the performance of duties such as L> -i/ Accidents !hile tra elling on duty in ;o ernment ehicles or public $ pri ate transport -ii/ Accidents during air #ourneys -iii/ Mishaps at sea !hile on duty -i / Blectrocution !hile on duty, etc. - / Accidents during participation in organi+ed sports e ents$ad enture acti ations$e.peditions$training. Ca*e3or( #

2 Armed Forces Law Journal 2012 (1) + 3eath or disability due to acts of iolence $ attac1 by terrorists, anti social elements, etc !hether on duty other than operational duty or e en !hen not on duty. Bomb blasts in public places or transport, indiscriminate shooting incidents in public, etc. !ould be co ered under this category, besides death $ disability occurring !hile employed in the aid of ci il po!er in dealing !ith natural calamities. Ca*e3or( E 3eath or disability arising as a result of L> -a/ enemy action in international !arN -b/ action during deployment !ith a peace 1eeping mission abroadN -c/ border s1irmishes -d/ during laying or clearance of mines including enemy mines as also mines!eeping operationN -e/ on account of accidental e.plosions of mines !hile laying operationally oriented mine>field or lifting or negotiating minefield laid by enemy or o!n forces in operational areas near international borders or the line of control. -f/ 9ar li1e situations, including cases !hich are attributable to$aggra ated by L> -i/ e.tremists acts, e.ploding mines, etc. !hile on !ay to operational areaN -ii/ battle inoculation training e.ercises or demonstration !ith li e ammunition -iii/ 1idnapping by e.tremists !hile on operational duty -b/ An act of iolence $ attac1 $ e.tremists, anti>social elements, etc. -c/ Action against e.tremists, antisocial elements, etc. 3eath $ disability !hile employed in the aid of ci il po!er in =uelling agitation, riots or re olt by demonstrators !ill be co ered under this category. -d/ 4perations specially notified by the ;o t. from time to time. 7.% Cases co ered under category SA" !ould be dealt !ith in accordance !ith the pro isions contained in the Ministry of 3efence letter ,o.1-8/$'<$3 -:en$(er ices/ dated 0.%.'< and cases under category SB" to SB" !ill be dealt !ith under the pro isions of this letter. No*es L> i/

The illustrations gi en in each category are not e.hausti e. Cases not co ered under these categories !ill be dealt !ith as per Bntitlement Rules to Casualty :ensionary a!ards in ogue.

ii/

iii/

i /

Armed Forces Law Journal 2012 (1) 1 The =uestion !hether a death $ disability is attributable to or aggra ated by military ser ice !ill be determined as per pro isions of the :ension Regulations for the Armed Forces and the Bntitlement Rules in ogue as amended from time to time. In case of death !hile in ser ice !hich is not accepted as attributable to or aggra ated by Military (er ice or death after retirement$ discharge$in alidment, 4rdinary Family :ension shall be admissible as specified in Min of 3ef letter ,o. 1-8/$'<$3-:en$(er/ dated &0 Feb '< as modified ide Ministry of 3efence letter ,o.1-1/$''$3-:en$(er/ dated @.8.''. 9here an Armed Forces personnel is in alided out of ser ice due to non>attributable$non>aggra ated causes, In alid pension$gratuity shall be paid in terms of para ' of Ministry of 3efence letter ,o.1-8/$'<$3-:en$(er/ dated &0 Feb '< as amended $ modified ide Ministry of 3efence letter ,o.1-1/$''$3-:en$(er/ dated &@.&8.''.

!ara III = Fam.l( !ens.onar( $ene6.*s .n A**r.,u*a,le 0 A33ra7a*ed cases ). S4ec.al Fam.l( !ens.on (SF!) ).1 In cases of death of an Armed Forces :ersonnel under the circumstances mentioned in category 2B6 or 2C6 of para 7 abo e, (pecial Family :ension shall continue to be admissible to the families of such personnel under the same conditions as in force hithertofore. There shall be no condition of minimum ser ice on the date of death for grant of (pecial Family :ension. ).% The (pecial Family :ension shall be calculated at the uniform rate of 8& P of Rec1onable Bmoluments as defined in para 0 abo e sub#ect to a minimum of Rs.%))&$> irrespecti e of !hether !ido! has child-ren/ or not. There shall be no ma.imum ceiling on (pecial Family :ension Ministry of 3efence order ,o.F.:C1-%/$'@$3-:en>C/ dated %%.'.'' stands amended accordingly. ).0 In case the children become the beneficiary, the (pecial Family :ension at same rate -i.e., 8&P of Rec1onable Bmoluments/ shall be admissible to the senior most eligible child till he$she attains the age of %) years or up to the date of his$her marriage !hiche er is earlier. Thereafter (pecial Family pension shall pass on to ne.t eligible child. No*es) -1/ 9ido!ed$di orced daughters up to the age of %) years or marriage !hiche er is earlier shall also be included in the definition of family for the

2 Armed Forces Law Journal 2012 (1) purpose of (pecial Family :ension. -%/ In case the eligible child is physically or mentally handicapped and unable to earn a li elihood, the (pecial Family :ension !ould be admissible for life to such a child sub#ect to same conditions as in force hitherto fore. ).7 In case of personnel belo! officer ran1, the e.isting pro isions of nominating anyone from the eligible members of the family -e.cept dependent brothers$sisters/ for the first life a!ard of (pecial Family :ension and of transferring the same in full to the !ido! regardless of her financial position in the e ent of death of parents, !here they !ere nominated as the original a!ardees, shall continue. ).) Families of ((C4s and BC4s !ho die under circumstances mentioned in category SB" 5 SC" of para 7.1 abo e shall also be entitled to (pecial Family :ension as per para ).1 abo e. ).8 3ependent :ension in respect of 4fficers -including M,( 4fficers, IA officers 5 BC4s$((C4s/L 3ependent pension shall be admissible to the parent-s/$eligible brothers and sisters -in the absence of parents/ of the deceased officers,!ho die under circumstances as mentioned in para ).1 abo e as a bachelor or !ido!er !ithout children, at a rate e=ual to )& P of notional (pecial Family :ension that !ould ha e been admissible as per para ).% abo e. No*es) -1/ Condition as laid do!n in para ).0 abo e regarding age limit and marriage shall e=ually apply to dependant brothers$sisters for grant of dependent pension !hich shall be paid to the senior most eligible brother$sister at a time. -%/ The condition regarding means limit !as dispensed !ith ide M43 letter ,o.1-)/$<@$3-:en$(er/dt 0&.1&.<@. tatus-!uo-ante !ill continue. /+' Second L.6e award .n res4ec* o6 !$OR .nclud.n3 NCs(E) (econd Cife A!ards -(pecial Family :ension/ shall be admissible to the parent-s/ of the deceased irrespecti e of single or both and in the absence of the parents, to the eligible brothers and sisters of the deceased, at the rates specified in para ).8 abo e and the condition specified in the note there under.

Armed Forces Law Journal 2012 (1) 1 S4ec.al Fam.l( !ens.on on Remarr.a3e o6 w.dow L (pecial Family :ension on remarriage of !ido!, shall be regulated as follo!s L a)Comm.ss.oned O66.cers L> -i/ If she has child-ren/ -a.a/ If she continues to support children after remarriageL Full (pecial Family :ension to continue to !ido!. -a.b/ If she does not support children after remarriageL 4rdinary Family :ension -4F:/ e=ual to 0& P emoluments last dra!n to the remarried !ido!. -ii/ If !ido! has no childrenL Full (pecial Family :ension to continue to !ido!. ).< ,) !$OR L> -i/ If (pecial Family :ension is sanctioned to the !ido!L (ame pro isions as applicable to 4fficers. -ii/ 9here first life a!ard is sanctioned to parentsL -a.a/If !ido! continues to support children after Remarriage or has no issuesL )& P of (F: to parents, )& P of (F: to !ido!. -a.b/If !ido! does not support children after re>marriage but the children are support by the parentsL Full (F: to parents and 4rdinary Family :ension to !ido!. -a.c/ If children are not supported either by the Re>married !ido! or the parentsL )& P of (F: to parents, )& P of (F: to eligible children and 4rdinary Family :ension to !ido!. -a.d/ 4n death or dis=ualification of parents and the !ido! supports the children or has no issuesL Full (F: to !ido! -a.e/ 4n death or dis=ualification of parents and the 9ido! does not support the childrenL Full (F: to eligible children 5 4rdinary Family :ension to !ido!. 8. L.,eral.sed Fam.l( !ens.on (LF!) L> 8.1 In case of death of an Armed Forces :ersonnel under the circumstances mentioned in category 236 5 2B6 of para 7.1 abo e, the eligible member of the family shall be entitled to Ciberalised Family :ension e=ual to rec1onable emoluments last dra!n as defined in para 0.1 abo e, both for officers and :B4R. Ciberali+ed Family :ension at this rate shall be admissible to the !ido! in the case of officers and to the nominated heir in the case of :B4R until death or dis=ualification. 8.% If the Armed Forces personnel is not sur i ed by !ido! but is sur i ed by

2 Armed Forces Law Journal 2012 (1) child$children only, all children together shall be eligible for Ciberali+ed Family :ension at the rate e=ual to 8& P rec1onable emoluments as defined in para ).%. Ciberalised Family :ension shall be payable to the child$children for the period during !hich they !ould ha e been eligible as in the case of (pecial Family pension. The Ciberali+ed Family pension shall be paid to the senior most eligible child at a time. 4n his$her death$dis=ualification it !ill pass on to ne.t eligible child. The pro ision of :ara ).0 -e.cept rates/ !ill be applicable here also. No*e) In ie! of the rationali+ation of Ciberali+ed Family :ension and pro isions on re>marriage of !ido!, Children Allo!ance !ill not be payable in addition to Ciberali+ed Family :ension. 8.0 Families of ((C4s and BC4s !ho die under circumstances mentioned in category 236 and 2B6 of para 7.1 abo e shall also be entitled to Ciberalised Family :ension as per para 8.1 abo e. 8.7 #e4enden* 4ens.on (L.,eral.Ked) .n res4ec* o6 Comm.ss.oned O66.ers (.nclud.n3 NS O66.cers& TA O66.cers and ECOs0SSCOs) L> 9here an officer dies as a bachelor or as a !ido!er !ithout children under the circumstances mentioned in para 7.1 236 5 2B6 abo e. 3ependent :ension -Ciberalised/ shall be admissible to parents !ithout reference to their pecuniary circumstances at the rate of @) P of Ciberalised Family pension for both parents and at the rate of 8& P of Ciberali+ed Family pension for single parent. 4nd the death of one parent, dependent pension at the latter rate shall be admissible to the sur i ing parent. In the absence of parents, dependent pension shall be admissible to dependent brother-s/ $ sister-s/ if other!ise eligible at the rate of 8& P of CF:. No*eL> Condition as laid do!n in :ara ).0 abo e regarding age limit and marriage shall e=ually apply to dependent brother$sister for grant of dependant pension !hich shall be paid to the senior most eligible brother$sister at a time. 8.) Second L.6e award (L.,eral.Ked Fam.l( !ens.on) .n res4ec* o6 !$OR .nclud.n3 NCs(E) L> (econd Cife A!ard in respect of personnel belo! officer ran1 !ho die under the circumstances mentioned in para 7.1 236 5 2B6 abo e shall be regulated as under L> -a/ If the first recipient -other than the parents/ of the family pensionary a!ard dies $ is dis=ualified earlier than @ years -counting from the date of casualty/, the a!ard !ill be continued at the same rate to the parents as second life a!ard, if still ali e, for the balance of @ years !ithout any reduction. After the

Armed Forces Law Journal 2012 (1) 1 initial period of @ years, the second life a!ard !ill be continued at the rate of 8& P of the Ciberalised Family :ension. -b/ 9here the first life a!ard !as gi en to a parent and the !ido! remarries, the Ciberalised Family :ension shall be regulated depending upon the period of !ido!"s remarriage as follo!s L> -i/ I6 w.dow con*.nues *o su44or* *-e c-.ldren or -as no c-.ldren L 9ido! !ill get family pension e=ual to (pecial Family :ension -i.e., 8& P of liberali+ed family pension or rec1onable emoluments/ from the date of remarriage and the parents !ill also get family pension at the rate of 8& P of liberali+ed family pension for the balance of @ years if the remarriage of !ido! ta1es place during @ years of casualty. After the period of se en years or !here remarriage of !ido! too1 place after se en years, !ido! !ill get family pension Z 8& P liberali+ed family pension and parents !ill get family pension at the rate of 0& P of liberalised family pension. 4n death or dis=ualification of parents, !ido! !ill get family pension e=ual to the liberali+ed family pension for life. -ii/ I6 w.dow does no* su44or* *-e c-.ldren L 9ido! !ill get 4rdinary Family :ension -i.e., 0& P of rec1onable emoluments/ for life from the date of remarriage and the parents !ill continue to get first life a!ard at the same rate -i.e., full liberali+ed family pension/ for balance of se en years !here remarriage ta1es place !ithin @ years of casualty, pro ided they support the children. 4ther!ise, the entitlement of parents !ill be e=ually di ided bet!een the parents and children. After the period of @ years or !here remarriage of !ido! ta1es place after se en years of casualty, parents !ill get family pension at the rate of 8& P of liberali+ed family pension pro ided they support the children, other!ise it !ill be di ided e=ually bet!een the parents and the children. 4n death $ dis=ualification of parents of deceased ser ice personnel, the senior most eligible child !ill get family pension at the rate of 8& P of liberali+ed family pension. NOTE L 9here er children become beneficiary, the a!ard !ill be continued for a period and sub#ect to conditions as applicable for grant of (pecial Family :ension. :ro isions of para ).0 abo e shall also apply. 8.8 L.,eral.sed Fam.l( !ens.on on re-marr.a3e o6 w.dow L> Ciberali+ed Family :ension on remarriage of !ido!, shall be regulated as follo!s L> -a/ Comm.ss.oned O66.cers L>

Armed Forces Law Journal 2012 (1) -i/ If she has children L> -a.a/ If she continues to support children after remarriageL Full Ciberali+ed Family :ension to continue to !ido! -a.b/ If she does not support children after remarriageL 4rdinary Family :ension at 0& P to !ido! 5 (pecial Family :ension at 8& P to eligible children -ii/ If !ido! has no children L Full Ciberalised Family :ension to continue to !ido!.

-b/ !$OR L> -i/ I6 L.,eral.sed Fam.l( !ens.on .s sanc*.oned as 6.rs* l.6e award *o *-e w.dow L> (ame pro isions as at -a/ abo e shall be applicable. -ii/ @-ere 6.rs* l.6e award .s sanc*.oned *o 4aren*s L> The admissibility of Ciberalised Family :ension in such cases !ould be regulated as mentioned in para 8.) -b/ abo e. !ar* I: = #.sa,.l.*( 0 @ar .n;ur( !ens.onar( Awards @. #.sa,.l.*( !ens.on on .n7al.dmen* L> @.1 9here an Armed Forces :ersonnel is in alided out of ser ice under circumstances mentioned in category 2B6 5 2C6 of para 7.1 abo e !hich is accepted as attributable to or aggra ated by Military ser ice, he$she shall be entitled to disability pension consisting of ser ice element and disability element as follo!s L> (.)Ser7.ce Elemen* L> -i/ Comm.ss.oned O66.cers L> The amount of ser ice element shall be e=ual to the retiring pension determined as per para 8.1-c / of this Ministry"s letter ,o.1-8/$'<$3-:en$(er/ dated &0 Feb '<. For this purpose the rec1onable =ualifying ser ice shall mean the actual ser ice rendered by the officer plus the full !eightage appropriate to the ran1 held at the time of in alidment -e.cept in the case of TA officers/ as gi en in para )-b/ of the Ministry"s abo e said letter dated &0 Feb '<. There shall be no condition of minimum =ualifying ser ice ha ing been actually rendered for earning this element, if other!ise due.

-ii/

Armed Forces Law Journal 2012 (1) !$OR L(er ice element !ill be determined as follo!s L> En*.*lemen* o6 Ser7.ce Elemen*

B=ual to normal ser ice pension rele ant to the length of =ualifying ser ice actually rendered plus !eightage of ser ice as gi en in para ) and 8 of Ministry"s letter dated &0 Feb '< ibid. Cess than 1) years -%& years in case B=ual to ser ice pension as determined as of ,Cs-B/ per :ara 8.% -b/ of Ministry"s letter dated &0 Feb '< but it shall in no case be less than %$0 rd of the minimum ser ice pension admissible to the ran1$pay group. No*eL The e.isting pro isions in the case of :B4R regarding grant of ser ice element e=ual to minimum ser ice pension appropriate to the ran1 and pay group in case !here ser ice is less than 1) years -%& years in the case of ,Cs-B// and the disability is sustained in flying $ :arachute #umping duty or !hile being carried on duty in an aircraft under proper authority shall continue. (..) (a) #.sa,.l.*( Elemen* L> The rate of 3isability element for 1&& P disability for arious ran1s shall be as follo!s L> Ran8 Amoun* 4+m+ -i/ Commissioned 4fficers and *ony Rs. %8&&$> Commissioned 4fficers of the three (er ices, M,(, TA and 3(C -ii/ Dunior Commissioned offices and e=ui alent Rs.1'&&$> ran1s of the three ser ices, TA and 3(C -iii/ 4ther ran1s of the three ser ices, TA and Rs.1))&$> 3(C -b/ 3isability lo!er than 1&& P shall be reduced !ith reference to percentages as laid do!n in :ara @.% belo!. :ro ided that !here permanent disability is not less than 8& P, the disability pension -i.e., total of ser ice element plus disability element/ shall not be less than 8& P of the rec1onable emoluments last dra!n. @.% 9here an Armed Forces personnel is in alided out under circumstances mentioned in para 7.1 abo e, the e.tent of disability or functional incapacity shall

Len3*- o6 ac*ual Lual.6(.n3 ser7.ce rendered (w.*-ou* we.3-*a3e) 1) years or more -%& years or more in the case of ,Cs-B/

2 Armed Forces Law Journal 2012 (1) be determined in the follo!ing manner for the purposes of computing the disability element L> !ercen*a3e o6 d.sa,.l.*( as assessed ,( :ercentage to be rec1oned for .n7al.d.n3 med.cal ,oard computing of disability element Cess than )& )& Bet!een )& and @) @) Bet!een @8 and 1&& 1&& <. #.sa,.l.*( Elemen* on re*.remen* 0 d.sc-ar3e L> <.1 9here an Armed Forces personnel is retained in ser ice despite disability arising $ sustained under the circumstances mentioned under category 2B6 5 2C6 in para 7.1 abo e and is subse=uently retired $ discharged on attaining age of retirement or on completion of tenure, he$she shall be entitled to disability element at the rates prescribed at para @.1.II-a/ abo e for 1&& P disablement. <.% For disabilities less than 1&& P but not less than %& P the abo e rates shall be proportionately reduced . ,o disability element shall be payable for disabilities less than %& P :ro isions contained in prara @.% abo e shall not be applicable for computing disability element. 3isability actually assessed by the duly appro ed Release Medical Board $ In aliding Medical Board as accepted by the :ension (anctioning Authority, shall rec1on for computing disability element. <.0 Retiring $ (er ice pension or Retiring (er ice ;ratuity as admissible as per Ministry of 3efence letter ,o.1-8/$'<$3-:en$(er/ dated &0 Feb '0 shall be payable in addition to disability element from the date of retirement $ discharge. No*eL An Armed Forces personnel !ho retires oluntarily $ or see1 discharge on re=uest shall not be eligible for any a!ard on account of disability. :ro ided that Armed Forces personnel !ho is due for retirement $ discharge on completion of tenure, or on completion of ser ice limits or on completion of terms of engagement or on attaining the prescribed age of retirement, and !ho see1s pre> mature retirement $ discharge on re=uest for the purpose of getting higher commutation alue of pension shall remain eligible for disability element. '. Lum4sum Com4ensa*.on .n l.eu o6 #.sa,.l.*( Elemen* L> '.1 In case a person belonging to the Armed Forces is found to ha e a disability !hich is sustained under the circumstances mentioned under category 2B6 5 2C6 in para 7.1 abo e !hich is assessed at %& P or more for life but the indi idual is retained in ser ice despite such disability, he $ she shall be paid a compensation in lump sum -in lieu of disability element/ e=ual to the capitalised alue of disability

Armed Forces Law Journal 2012 (1) 1 element on the basis of disability actually assessed -i.e., pro isions of para @.% abo e shall not apply/. The rates of disability element for calculating capitali+ed alue shall be as laid do!n in para @.1 -II/ -a/. The abo e rates shall be proportionately reduced for lesser percentage of disability. The age ne.t birthday !ill be rec1oned !ith reference to the date of onset of disability !ith loading of age, if any, recommended by the 3isability Compensation Medical Board. 4nce a compensation has been paid in lieu of the disability element, there shall be no further entitlement to the disability element for the same disability under the pro isions of para < abo e. (uch disability shall also not =ualify for grant of any pensionary benefits or relief subse=uently. '.% The pro ision contained in para '.1 abo e shall be applicable to casualties on or after &1 Dan '8. 1&. @ar In;ur( !ens.on on In7al.dmen* L> 1&.1 9here an Armed Forces personnel is in alided out of ser ice on account of disabilities sustained under circumstances mentioned in category 2B6 of para 7.1 abo e, he$she shall be entitled to 9ar In#ury :ension consisting of (er ice element and 9ar In#ury element as follo!s L> -a/ Ser7.ce Elemen* L> B=ual to Retiring $ (er ice :ension to !hich he $ she !ould ha e been entitled on the basis of his $ her pay on the date of in alidment but counting ser ice upto the date on !hich he $ she !ould ha e retired in that ran1 in normal course including !eightage as admissible. :ro isions of para 8 of Ministry of 3efence letter ,o.1-8/$'<$3-:en$(er/ dated &0.&%.'< shall apply of calculating Retiring $ (er ice :ension. There shall be no condition of minimum =ualifying ser ice for earning this element. -b/ @ar In;ur( Elemen*L> B=ual to rec1onable emoluments last dra!n for 1&& P disablement. *o!e er, in no case the aggregate of (er ice Blement and 9ar In#ury element should e.ceed last pay dra!n. For lo!er percentage of disablement, 9ar In#ury element shall be proportionately reduced. 1&.% :ro isions contained in para @.% shall e=ually apply to indi iduals in alided out under the circumstances mentioned in category 236 and 2B6 of para 7.1 abo e for calculating 9ar In#ury element of 9ar In#ury :ension. 1&.0 Retirement gratuity admissible on in alidment due to !ar in#ury shall be

2 Armed Forces Law Journal 2012 (1) calculated on the basis of rec1onable emoluments on the date of in alidment but counting ser ice up to the date on !hich he $ she !ould ha e normally retired in that ran1 plus !eightage as applicable -total not e.ceeding 00 years/. 4ther pro isions of Retirement ;ratuity contained in :ara 1%.1 of Ministry of 3efence letter ,o.1-8/$'<$3-:en$(er/ dated &0 Feb '< shall e=ually apply. 11. @ar In;ur( !ens.on on Re*en*.on .n Ser7.ce L> 11.1 Armed Forces personnel !ho are retained in ser ice despite the disability due to !ar in#ury sustained under circumstances mentioned in Category 2B6 of para 7.1 abo e, and retire subse=uently !ill ha e an option as follo!s to be e.ercised !ith in a period as prescribed by the ;o ernment from time to timeL> -a/ to dra! lump sum compensation in lieu of 9ar In#ury element foregoing !ar in#ury element at the time of subse=uent retirement $ discharge, or -b/ to dra! !ar in#ury element at the time of retirement in addition to retiring $ ser ice pension admissible o retirement $ discharge foregoing lump sum compensation. 11.% Lum4 sum Com4ensa*.on .n l.eu o6 @ar In;ur( !ens.on L> In case an Armed Forces personnel is found to ha e a disability !hich is sustained under the circumstances mentioned in category 2B6 in para 7.1 abo e !hich is assessed at %& P or more for life but the indi idual is retained in ser ice despite disability and opts for lump sum compensation, he shall be paid the lump sum compensation in lieu of !ar in#ury element. The rates for calculation of lump sum compensation in lieu of !ar in#ury element for 1&& P disability for life !ill be as under L> -a/ Commissioned 4fficers and *ony Commissioned 4fficers of the three (er ices, M,(, TA 5 3(C -b/ DC4s and e=ui alent ran1s of the Air Force, ,a y, TA and 3(C -c/ 4ther ran1s $ ,Cs-B/ and e=ui alent ran1 of Air Force, ,a y, TA and 3(C Rs.)%&&$> Rs.0<&&$> Rs.01&&$>

For disability due to !ar in#ury of less than 1&& P the rates shall be proportionately reduced. The one time compensation in lump sum in lieu of 9ar In#ury element !ill be e=ual to the capitali+ed alue of !ar In#ury element !hich shall be calculated in accordance !ith Regulation 077 of the :ension Regulations for the Army -and similar corresponding pro isions in the :ension Regulations for the Air Force and the ,a y/ and !ill be e=ual to the capitali+ed alue of !ar in#ury element for the actual percentage of the disability at the appropriate rate mentioned in para 11.% abo e. For this purpose, the ran1 shall be the ran1 held at

Armed Forces Law Journal 2012 (1) 1 the time of in#ury sustained by the indi idual due to !ar. Age ne.t birthday !ill be rec1oned !ith reference to the date of onset of disability !ith loading to age if any, recommended by the competent Medical Board. Compensation in lieu of !ar in#ury element !ill be payable pro ided the degree of disablement is e=ual to or more than %& P 4nce the compensation in lieu of !ar in#ury element due to disability for life has been paid, there shall be no further entitlement on account of such a disability at the time of retirement $ discharge from the Armed Forces. (ince this is one time payment on account of compensation, no restoration !ill be permitted. 11.0The pro ision contained in para 11.% abo e shall be applicable to casualties occurring on or after &1 Dan '8. 11.79ar In#ury Blement on subse=uent retirementL 9here an Armed Forces personnel is retained in ser ice despite in#ury $ disability sustained under the circumstances mentioned in category 2B of para 7.1 abo e and does not opt for lump sum compensation in lieu of !ar in#ury, he$ she shall be entitled to the payment of !ar in#ury element on a monthly basis at the rates prescribed under para 11.% abo e on subse=uent retirement $ discharge or on completion of the term of engagement. 11.) For disabilities less than 1&& P but not less than %& P the abo e rates shall be proportionately reduced. ,o !ar in#ury element shall be payable for disabilities less than %& P :ro isions contained in para @.% abo e shall not be applicable for computing !ar in#ury element. 3isability actually assessed by the duly appro ed Release Medical Board $ In aliding Medical Board shall rec1on for computing !ar in#ury element. 11.8 Retiring $ (er ice pension or Retiring $ (er ice ;ratuity as admissible as per Ministry of 3efence letter ,o.1-8/$'<$3-:en$(er/ dated &0 Feb '< shall be payable in addition to !ar in#ury element from the date of retirement $ discharge. No*eL An Armed Forces personnel !ho retires oluntarily $ or see1 discharge on re=uest shall not be eligible for any a!ard on account of disability. :ro ided that Armed Forces personnel !ho is due for retirement $ discharge on completion of tenure, or on completion of ser ice limits or on completion of the terms of engagement, or on attaining the prescribed age of retirement, and !ho see1s pre> mature retirement $ discharge on re=uest for the purpose of getting higher commutation alue of pension, shall remain eligible for disability element.

Armed Forces Law Journal 2012 (1)

1%. L.,eral.Ked #.sa,.l.*( !ens.on .n res4ec* o6 Armed Forces !ersonnel sus*a.n.n3 d.sa,.l.*( under *-e c.rcums*ances men*.oned .n Ca*e3or( M#N o6 4ara ?+1 a,o7e L> Armed Forces :ersonnel sustaining disability under the circumstances mentioned in category 236 of para 7.1 abo e shall be entitled to same pensionary benefits as admissible to !ar in#ury cases on in alidment $ retirement $ discharge including lump sum compensation in lieu of disability as mentioned in para 1& and 11 abo e. *o!e er, on in alidment they shall be entitled to disability element instead of !ar in#ury element in addition to ser ice element. The ser ice element !ill be e=ual to retiring $ ser ice pension to !hich he $ she !ould ha e been entitled on the basis of his $ her pay on the date of in alidment but counting ser ice up to that date on !hich he !ould ha e retired in that ran1 in the normal course including !eightage as admissible. :ro isions of para 8 of Ministry of 3efence letter ,o.1-8/$'<$3-:en$(er/ dated 0.%.'< shall apply for calculating retiring $ ser ice pension. There shall be no condition of minimum =ualifying ser ice pension. There shall be no condition of minimum =ualifying ser ice for earning this element. This disability element !ould be admissible as laid do!n in para @.1 -II/ -a/ abo e. For lo!er percentage of disablement, this amount shall be proportionately reduced. *o!e er, in no case aggregate of ser ice element and disability element shall be less than <& P of rec1onable emoluments last dra!n. No*eL> Armed Forces personnel sustaining disability under the circumstances mentioned in Category 236 of para 7.1 abo e shall not be treated as 9ar 3isabled. *ence, they !ill not be entitled to any special concessions $ dispensation other!ise a ailable to !ar disabled. Cons*an* A**endance Allowance L> 10. Constant Attendance Allo!ance shall continue to be admissible under the conditions as hitherto fore. *o!e er, it shall be admissible at a uniform rate of Rs.8&&$> p.m., irrespecti e of the ran1. "ENERAL = !ar* : Round.n3 o66 o6 !ens.onar( Awards L> 17. The amount of arious pensionary a!ards admissible as per this letter shall be rounded off to the ne.t higher rupee by the :ension (anctioning Authorities. .n.mum 0 a5.mum !ens.on L> 1). If the amount of any monthly pension -e.cluding Constant Attendance

Armed Forces Law Journal 2012 (1) 1 Allo!ance/ admissible under the pro isions of this letter !or1s out to less than Rs.1%@)$> p.m., it shall be stepped up to Rs.1%@)$> pm and authori+ed for payment at this rate. 3isability element shall not be ta1en into account for the purposes of stepping up of ser ice element to the minimum le el of Rs.1%@)$> p.m. In cases !here disability element is paid in isolation, it shall not be stepped up to the minimum le el of Rs.1%@)$> pm. There !ill be no ma.imum ceiling on the amount of pension. #earness Rel.e6 L> 18. 3earness Relief shall be admissible only beyond a erage C:I 1)1& on the re ised pattern introduced ide Ministry of :ersonnel, :ublic ;rie ances and pension, 3epartment of pension and pensioners" 9elfare 4ffice Memorandum ,o.7%$%$'@>:5:9-;/ dated %@ 4ct '@ on arious types of pension $ family pension admissible under the pro isions of this letter. !rocedure 6or sanc*.on o6 Re7.sed !ens.on .n res4ec* o6 *-ose w-o alread( re*.redL> 1@. The procedure for re ision of pensionary a!ards as per pro isions of this letter, in respect of those !ho ha e already retired on or after 1.1.'8 and in !hose cases pensionary benefits at pre>re ised rate ha e already been notified !ill be prescribed by the :ension (anctioning Authority and intimated to ser ice *ead=uarters and Record 4ffices. 1<. :ension Regulations of the three (er ices !ill be amended in due course.

1'. This issue !ith the concurrence of the Finance 3i ision of this Ministry ide their G.I.,o.%''$:en$%&&1 dated 01.1.%&&1. %&. *indi ersion !ill follo!. Tours faithfully, (d$> -(G3*AABR (*GACA/ 3IRBCT4R -:B,(I4,(/

A* !ar :I C!C OST I !ORTANT CIRC%LAR OFFICE OF T9E !C#A (!ENSIONS)& #RA%!A#I "9AT ALLA9A$A# C.rcular No+ ?10 #a*ed) 11+0/+200E+

2 To &1 .

Armed Forces Law Journal 2012 (1) The Chief Accountant, RBI, 3eptt. of ;o t. Ban1 Recount Central 4ffice, C>@ llnd Floor Bandre Aurla Comple., :.B. ,o. <170 Bandre Bast, Mumbai>7&&&)1. All CM3s of :ublic (ector Ban1s CM3 of ICICI Ban1 CM3 of I3BI Ban1 CM3 of A.is Ban1 CM3 of *3FC Ban1 Military and Air Attache, Indian Bmbassy Aathmandu ,epal. The 3efence :ension 3isbursing 4fficers. The Treasury officers. The :ay and Accounts 4ffice. :ay and Accounts 4ffice, ;o ernment of Maharashtra, Mumbai. The :ost Master Aathua -D 5 A/, Camp Bell Bay -Andaman and ,icobar/ Implementation of ;o t, decision on the recommendations of the (i.th Central :ay Commission > Rationali+ation of casualty :ensionary A!ards for the Armed Forces 4fficers and :ersonnel belo! 4fficer Ran1-:B4R/ including 3(C and Territorial Army :ersonnel retiring $discharged $in alided out from ser ice prior to &1.&1.%&&8.

&%. &0. &7. &). &8. &@. &<. &'. 1&. 11. 1%.

(ub#ectL>

ReferenceL> ;o ernment of India, Ministry of 3efence letter ,o.18-8/$%&&<$ -1/ $3-:ension$:olicy/ dated &7.&).%&&' and ;4I, M43 letter ,o. ,o. 1@-7/$%&&<-1/$3 -:en$:olicy/ dated 11.11.%&&< and this 4ffice Circulars ,o. 0'@,0'< dated 1<.11.%&&<.,o.7&1 dated 1<,1%.%&&<, ,o. 7&0 dated &%.&%.%&&'. (A7a.la,le on *-e @e,s.*e o6 *-.s o66.ce www+ 4eda4ens.on+ n.c+.n) A copy of ;o ernment of India, Ministry of 3efence letter ,o. 18 -8/$%&&<$-1/ $3-:ension$:olicy/ dated &7.&).%&&' regarding Implementation of ;o t, decision on the recommendations of the (i.th Central :ay Commission > Rationali+ation of casualty :ensionary A!ards for the Armed Forces 4fficers and :ersonnel belo! 4fficer Ran1 -:B4R/ retiring $discharged $in alided out from ser ice prior to &1.&1.%&&8 is for!arded here!ith for implementation. These orders ha e also been put on this office !eb site www+4cda4ens.on+n.c+.n . 2+ The follo!ing further clarifications$instructions are issued for smooth implementation of Ministry of 3efence letter on the sub#ectL>

Armed Forces Law Journal 2012 (1) 1 1+ "eneral "u.del.nes) Implementation of its pro isions regarding re ision of arious elements of pension may be done 1eeping in ie! the follo!ing general guidelinesL (.) A44l.ca,.l.*() These 4rders are applicable to all :re>%&&8 Armed Forces Family$3isability$9ar In#ury :ensioners !ho !ere$are in receipt of (pecial Family :ension$Ciberali+ed Family :ension $ 3ependent $ 3isability $ 9ar In#ury :ension as on &1.&1.%&&8. (..) Non A44l.ca,.l.*() The pro isions of this letter do not apply in the follo!ing casesL > -a/ ;allantry A!ards, such as :aram Eir Cha1ra$Asho1 Cha1ra etc. amount of ;allantry A!ards sanctioned or notified either separately or !ith special family pension$liberali+ed family pension !ill not be ta1en into account for re ision of (pecial Family :ension$Ciberali+ed Family pension under these orders. -b/ GA$*A(RA pensioners$family pensioners. -c/ ACI4s !ho are in receipt of pension in :ound or (terling as on &1.1.1''8. -d/ :ersons in receipt of Compassionate Allo!ance$;u+ara$Reser ists Allo!ance or any other allo!ance on !hich relief is not payable. -e/ B.>gratia family pension " Rs. 8&)$> p.m. !ef &1.11.1''@ to the families of the deceased reser ist under M43 letter ,o. B$7&&%'$A;$:(> 7-d/$1$B$3 :en$(ers dated &@.&1.1'''. -f/ Family :ensioners of Armed Forces :ensioners !ho are in receipt of 4rdinary Family :ension. (...) No Re7.s.on w-ere !re-re7.sed !ens.on .s more ,ene6.c.al) In cases !here pension has been finally sanctioned under the pre>re ised orders and if it happens to be more beneficial than the pension becoming due under these orders, the pension already sanctioned shall not be re ised to the disad antage of the pensioners. (.7) Elemen*s *o ,e re7.sed ,( !#As) -a/ (pecial Family :ension-(F:/ -b/ Ciberali+ed Family :ension -CF:/ -c/ 3ependent :ension -(F:/ -d/ 3ependent :ension -Ciberali+ed/ -e/ (pecial Family :ension$Ciberali+ed Family :ension on remarriage of !ido! !here ::4 has already been notified. *o!e er, fresh re> marriage cases may be referred to the :(A for notification. -f/ (econd life a!ard -(pecial Family :ension/ and second life a!ard -Ciberali+ed Family :ension/ -g/ 3isability :ension and disability element paid in addition to

2 -h/ -i/

Armed Forces Law Journal 2012 (1) retiring$ser ice pension. 9ar In#ury :ension and 9ar In#ury element paid in addition to retiring$ser ice pension. Constant Attendance Allo!ance.

?+ "u.del.nes 6or Re7.s.on o6 S4ec.6.c Elemen*s) ?+1 (.) Ser7.ce Elemen* o6 #.sa,.l.*( !ens.on and @ar In;ur( !ens.on (er ice Blement of disability pension and !ar in#ury pension has already been consolidated in terms of :ara 7.1 of ;4I, M43 letter ,o. 1@-7/$%&&<-1/$3 -:ension$:olicy/ dated 11.11.%&&< circulated ide this office circular ,o. 0'@ dated 1<.11.%%&&' -,o. ;ts$Tech$&18)$E dated 1<.1.%&&</. 9here consolidation $ re ision of ser ice element of disability pension and !ar in#ury pension ha e not been carried out, the same may be done as indicated in :ara 7.1 and :ara ) of M43 letter 11.11.%&&<. (..) #.sa,.l.*( elemen* o6 #.sa,.l.*( 0 L.,eral.Ked #.sa,.l.*( !ens.on) For pensioners in receipt of disability element of disability pension or disability element paid in addition to retiring$ser ice pension as on &1.&1.%&&8, the rates of disability element for 1&&P disability in non>battle casualty cases shall be as underL RAN> Amoun* 4er mon*o6 #.sa,.l.*( Elemen* 6or 100O #.sa,.l.*( -i/ Commissioned 4fficer and *oney, Commissioned 4fficer of Army, ,a y and Air Force including M,(, TA and 3(C Rs.)<<& -ii/ Dunior Commissioned 4fficers of Army and e=ui alent ran1s of ,a y and Air Force including TA and 3(C Rs. 70&&$> -iii/ 4ther ran1s of three ser ices including TA and 3(C Rs.0)1&$> 9here the disability of a pensioner is less than 1&&P, the rates of disability element shall be proportionately reduced. :lease refer to Anne.ure I for the proportionate reduction table in this regard. No*e 9hen only disability element is dra!n in isolation -not in addition of retiring$ser ice pension/, the abo e rates !ill not be applicable and such cases !ill be regulated in terms of :ara '.1 of M43 letter dated 11.11.%&&< circulated ide this office Circular ,o. 0'@ dated 1<.1%.%&&'.

Armed Forces Law Journal 2012 (1) 1 (...) @ar .n;ur( elemen* o6 @ar In;ur( !ens.on) For pensioners in receipt of 9ar In#ury Blement of 9ar In#ury :ension or 9ar In#ury elements paid in addition to retiring$ser ice pension as on &1.&1.%&&8, the rates of !ar in#ury element for 1&&P disability cases shall be as underL RAN> Amoun* 4er mon*- o6 war .n;ur( Elemen* 6or 100O #.sa,.l.*( -i/ Commissioned 4fficer and *oney, Commissioned 4fficer of Army, ,a y and Air Force including M,(, TA and 3(C Rs.11,@8&$> -ii/ Dunior Commissioned 4fficers of Army and e=ui alent ran1s of ,a y and Air Force including TA and 3(C Rs. <,8&&$> -iii/ 4ther ran1s of three ser ices including TA and 3(C Rs. @,&%&$> 9here the disability of a pensioner is less than 1&&P, the rates of !ar in#ury element shall be proportionately reduced. :lease refer to Anne.ure II for the proportionate reduction of 9ar in#ury element. 9here the 9ar in#ury element re ised in terms of :ara ' read !ith :ara 7.1 of M43 letter dated 11.11.%&&<,is higher than the amount of 9ar In#ury Blement as calculated abo e, the same -higher consolidated amount/ !ill be treated as re ised 9ar In#ury Blement !ith effect from &1.&1.%&&8. -i / The percentage of disability !hich the pensioner is in receipt of disability pension $ disability element$9ar In#ury element $ !ar in#ury pension shall be ta1en from the rele ant ::4s notifying the a!ard for the period from 1.1.%&&8 on!ards. No*e)- The amount of disability element already commuted out of pre>re ised disability element should be deducted from the re ised disability element till restoration of commuted portion of pension. (7) Cons*an* A**endance Allowance) 9ith effect from &1.&1.%&&8, Constant Attendance Allo!ance, in all eligible battle$non battle casualty case shall be paid at the re ised rate of Rs.0&&&$> p.m., irrespecti e of the ran1. Further this rate to increase by %)P e ery time the dearness allo!ance payable on re ised pay band goes up by )&P ?+2 S4ec.al0L.,eral.Ked Fam.l( !ens.on0 de4enden* 4ens.on (S4ec.al)0 de4enden* 4ens.on (l.,eral.Ked) .n res4ec* o6 !$OR and Comm.ss.oned O66.cers)

Armed Forces Law Journal 2012 (1) + (pecial Family :ension$Ciberali+ed Family :ension -CF:/ has already been consolidated in terms of :ara 7.1 of ;4I, M43 letter ,o. 1@-7/$%&&<-1/$3 -:ension$:olicy/ dated 11.11.%&&< circulated ide this office circular ,o. 0'@ dated 1<.11.%&&' -,o.;ts$Tech$&18)$E dated 1<.1.%&&</. The (pecial Family :ension, so consolidated, irrespecti e of the date of the a!ard shall not be less than @&&&$>pm. 9here consolidated $ re ised (pecial$Ciberali+ed Family :ension$ dependent pension -(pecial/$ dependent pension -liberali+ed/ in respect of :B4R and Commissioned 4fficers ha e not been carried out, the same may be done as per M43 letter 11.11.%&&<. No*e)- In case of (pecial Family :ension$Ciberali+ed Family :ension, !here the pension has been di ided due to re>marriage of !ido! or dispute in family bet!een t!o or more eligible members of the family, re ised special family pension$liberali+ed family pension !or1ed out as abo e shall be di ided in the same ratio in !hich it !as initially di ided. The sum total of di ided parts of pension shall not e.ceed the basic pension so consolidated. /+ #earness Rel.e6) 3earness Relief shall be admissible on the re ised rates commencing from &1.&@.%&&8 at the rates sanctioned from time to time ide Ministry of :ersonnel, :ublic ;rie ances and :ension -3eptt. of :ension and :ensioners" 9elfare/ 4ffice memorandum ,o. 7%$%$%&&<>:5:9-;/ dated 1%.'.%&&<. 9hile calculating dearness relief on disability pension, ser ice element and disability element, both !ill be ta1en together. C+ Clar.6.ca*.on on dou,*6ul cases+ In cases !here the :3As are in doubt regarding the re ision in indi idual cases, the concrete cases !ith full details of pensioners and ::4 number may be referred to the concerned :ension (anctioning Authorities as gi en belo!L> (.) !r+ C#A (!) Alla-a,ad) -a/ Cases pertaining to Commissioned 4fficers and :B4R of the Army. -b/ Cases pertaining the Commissioned 4fficers and :B4R of the ,a y !ho died in ser ice or !ho retired prior to &1.11.1'<) and in !hose case the pension being re ised !as notified by :r. C3A -:/. -c/ Cases pertaining to the Commissioned 4fficers and :B4R of the Air Force !ho died in (er ice or !ho retired prior to &1.11.1'<) and in !hose case the pension being re ised, !as notified by :r. C3A -:/. Name o6 *-e nom.na*ed o66.cers *o w-om *-e cases are *o ,e re6erred)Comm.ss.oned O66.cers

Armed Forces Law Journal 2012 (1) 1 -d/ (uch cases may be referred to S-r. C+>& $-a*;.wale& SAO, ;l$Military (ection of Commissioned 4fficers. !$OR -e/ The doubtful cases of :B4R of disability $9ar In#ury pension may be referred to S-r. > > !ande(& Accoun*s O66.cer& ;rants Re ision Cell. -f/ The doubtful cases of :B4R of (pecial Family :ension$Ciberalised Family :ension may be referred to S-r. S > !ande(& Accoun*s O66.cer& ;rants Re ision Cell. (..) !C#A (Na7()& um,a.) Cases pertaining to the Commissioned 4fficer and :B4R of the ,a y !ho died in ser ice or !ho retired on or after &1.11.1'<). -iii/ COA -AF/, New #el-.) Cases pertaining to the Commissioned 4fficer and :B4R of the Air Force !ho died in ser ice or !ho retired on or after &1.11.1'<). Calcula*.on S-ee* @. Calculation sheet -as per specimen attached as Anne5ure-lll in respect of pension re ised under these orders may please be sent to 4l$C Audit$Coordination (ection of this 4ffice separately for further necessary action. A copy of this Anne.ure >III may also be gi en to the pensioner. F+ F+1 .scellaneous Ins*ruc*.ons) L.6e T.me Arrears (LTA) -i/ If a pensioner$family pensioner to !hom benefit accrues under the pro isions of this letter, has already died before recei ing the payment of arrears, the CTA !ill be disbursed in the follo!ing mannerL > -ii/ If the claimant is already in receipt of Family :ension or happens to be the person in !hose fa our Family :ension already stands notified and the a!ardee has not become ineligible for any reason, the CTA under the pro isions of this letter should be paid to such a claimant by the :3As on their o!n. -iii/ If the claimant has already recei ed CTA in the past in respect of the deceased to !hom the benefit !ould ha e accrued the CTA under the pro isions of this letter should also be paid to such a claimant by the :3As on their o!n. -i / If the claimant is a person other than the one mentioned at -i/ 5 -ii/ abo e, payment of CTA !ill be made to the legal heir$heirs as per e.tant ;o ernment 4rders.

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Armed Forces Law Journal 2012 (1)

No add.*.onal Commu*a*.on ,o commutation !ill be admissible for the additional amount of pension accruing as a result of this re ision. The e.isting amount of pension commuted, if any, !ould continue to be deducted from the consolidated pension !hile ma1ing monthly disbursements. F+1 Re*.remen* "ra*u.*(0#ea*- "ra*u.*( no* a66ec*ed Gpdation of pension$family pension under these orders !ill not affect the amount of Retirement ;ratuity$3eath ;ratuity already determined and paid to the pensioners$family pensioners !ith reference to rules in force at the time of discharge$death. F+? Reco7er( o6 O7er 4a(men*s+ Any o erpayment of pension coming to the notice or under process of reco ery shall be ad#usted in full by the :ension 3isbursing Agencies against arrears becoming due on re ision of pension on the basis of these orders. F+/ #ue0#rawn S*a*emen*s) All the payments already made !ef &1.&1.%&&8 shall be ad#usted by preparing due and dra!n statements. A suitable entry regarding re ised (pecial Family pension$Ciberali+ed Family :ension$3isability :ension should be made in chec1 register$payment register$pension payment scroll$pension certificate etc. F+C !a(men* o6 Arrears -i/ 7&P of the arrears for the period of &1.&1.%&&8 to 01.&<.%&&< on account of updation of pension$family pension under these orders !ill be paid immediately and remaining 8&P of arrears shall be payable in the year %&&'>%&1& on receipt of ;o ernment 4rders. -ii/ It is considered desirable that the benefit of these orders should reach the pensioners as e.peditiously as possible. To achie e this ob#ecti e, it is desired that all :ension 3isbursing Agencies should ensure that the re ised pension and the first instalment of arrears due to the pensioners in terms of these orders is paid to the pensioners or credited to their account immediately. Instructions regarding release of second instalment of arrears !ill be issued in due course. (Sd) ++ ++ (R+>+ SAROJ) #r+ C+d+A+ (!) No+ "*s0Tec-001C/-2II

Armed Forces Law Journal 2012 (1) #a*ed 11+0/+200F Co4( *o) 1. The 3y. (ecretary, ;o t, of India, Ministry of ::; 5 : -3eptt. of : 5 :9/, Co1 ,aya1 Bha!an, ,e! 3elhi. %. 3irector -:ensions/, ;o t, of India, Ministry of 3efence 3-:en$(ers/, (ena Bha!an, 9ing SA" ,e! 3elhi. 0. Army *Frs A;"s Branch, :(>7-b/ 3*F, :4 ,e! 3elhi > 11&&11. 7. A*F ;( Branch, TA 3irectorate, 3*F :4 ,e! 3elhi > 11&&11. ). ,a al *Frs, :: 5 A, 3*F :4 ,e! 3elhi. 8. 3:A, Eayu Bha!an, ,e! 3elhi>11. @. Air *Frs Ad :: 5 : > 0, 9est Bloc1>EI, R. A. :uram, ,e! 3elhi > 11&&88. <. (hri A. A. DB,A, I3A(, (r. 3y. C;3A-AT>II/, 4$4 the C;3A, 9est Bloc1>E, R. A. :uram, ,e! 3elhi > 11&&88. 9ith reference to his ,o.)8'<$AT>:A$l C:C$3ef$Eol>IE dated 11.&).%&&'. '. :C3A-,a y/ ,o.>1, Cooperage Road, Mumbai > 7&&&0'. 1&. C3A-AF/, 9est Bloc1>E, R. A. :uram, ,e! 3elhi > 11&&88. 11. DC3A-A;/ (ubroto :ar1, ,e! 3elhi > 11&&1&. 1%. 3irector of Audit, 3efence (er ice, ,e! 3elhi , 10. All Record 4ffices$Regiment. Corp. 17. Bureau of (ailors, Cheetah Camp, Mumbai. 1). Air Force Record, 3haula Aun!a, 3elhi Cantt. 18. All Addl Cs3A$Dt. Cs3A in Main 4ffice. 1@. All ;4s in Main 4ffice. 1<. The 4l$C, ;>1 -M/, AT-4Rs/>Tech. 5 ;>1 $Ci il -Tech./ 1'. All (A4s$A4s$AA4s$(4s-A/ in ;ts$4rs Comple.. %&. The 4l$C, B3: Manual. %1. The 4l$C, B3: Centre. %%. 3efence :ension Ciaison Cell. %0. All (ections in Main 4ffice. %7. (pare copies in file ,o. ;ts$Tech$&17<, 17<, &18% 5 &1)<Y %). 4IC.; >% (ection %8. 4l$C, ; > 0 (ection. %@. 4l$C, ; > 7 (ection. %<. 4l$C 45M Cell %'. 4l$C Complaint Cell 0&. The 4l$C, Reception Centre

2 01. 0%. 00.

Armed Forces Law Journal 2012 (1) The 4l$C, B3: Centre -9ebsite/ The 4l$C, 3:TI Cell (pare (Sd+) ++ ++ H (R+>+ SARO0J) #(+ C+#+A+ (!)

Su4erscr.4* re6erence (a) 1)

I*em (,)

(.)

;o ernment order on Family :ension to families of missing persons K -i/ Mo3 Cetter ,o.1%-18/$<8$3-:ension $(er ice/ dated &0.&8.<< -ii/Mo3 letter ,o.1% -18/$<)$3 -:ension$(er ice/ dated%8.&<.'0 -iii/ Mo3 letter ,o.1-1/$%&1&$3-:en$:ol/ dated 1).&%.%&11 Te5*0E5*rac* (c ) MRe4roduc*.on o6 "o7ernmen* o6 Ind.a& .n.s*r( o6 #e6ence& Le**er No+ 12(1C)0FC0#(!ens.on 0Ser7.ce) da*ed 1rd June& 1EFF+

Su, ) Release o6 #CR"& lea7e Encas-men* and Fam.l( !ens.on .n res4ec* o6 Armed Forces 4ersonnel w-o are m.ss.n3+ S.r& A number of cases ha e been referred to this Ministry for grant of terminal and other pensionary benefits to the families of ser ice personnel !ho ha e suddenly disappeared !hile in operational and non>operational ser ice and !hose !hereabouts are not 1no!n. At present all such cases are considered on merits. In the normal course unless a period of @ years has elapsed from the date of disappearance of the employee, he cannot be deemed to be dead and therefore the retirement benefits cannot be paid to the family. This principle is based on (ection 1&< of the Indian B idence Act !hich pro ides that !hen the =uestion is !hether the man is ali e or dead and it is pro ed that he had not been heard of for @ years by those !ho !ould naturally ha e heard of him had he been ali e, the

Armed Forces Law Journal 2012 (1) 1 burden of pro ing that he is ali e is shifted to the person !ho affirms it. This has resulted in grant hardship and distress to the families !ho ha e to !ait for @ years before any terminal benefits could be paid to them. %. The :resident is therefore pleased to decided that !hen a member of the SIndian Armed" Forces is declared missing !hile in ser ice, the family !ill be paid the follo!ing benefits sub#ect to ad#ustment of outstanding dues in respect of the missing personnel, if any L> a/ Immediately after the date of declaration of disappearanceL The amount of salary due, lea e encashment due and 3(4F$AF:: Fund amount sub#ect to nomination made by the missing personnel. b/ After the lapse of one year from the date of declaration of disappearance $ presumption of death L Family pension $ 3CR; etc. as admissible in normal conditions. 0. The abo e benefits may be sanctioned after obser ing follo!ing formalities L> i/ The family must lodge a report !ith the concerned :olice (tation and obtain a report that the employee has not been traced after all efforts had been made by the police. ii/ The claimant !ill be re=uired to furnish an indemnity bond !ith t!o sol ent sureties to the effect all payments thus made !ill be reco ered from the amount due to the person if he$she reappears and ma1e any claims. 7. The family can apply to the concerned authority for grant of family pension and 3CR ;ratuity after one year from the date of declaration of disappearance of the ser ice personnel in accordance !ith the procedure for sanction of family pension and 3CR ;ratuity. In case the disbursement of 3CR ;ratuity is not effected !ithin 0 months of the date of application, the interest shall be paid at the rates applicable and responsibility for the delay fi.ed. ). In the case of officers, the respecti e Branch $ 3te at (er ice *Frs and in the case of DC4s$4R and e=ui alent in ,a y and Air Force, their respecti e Records 4ffices !ill process such cases !ith C3A -4/$:A4$ C3A-:/$ C3A-,a y/

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Armed Forces Law Journal 2012 (1)

The pro isions of this letter ta1e effect from %' th August, 1'<8.

@. This issues !ith the concurrence of the Finance 3i ision of this Ministry ide their G.4. ,o. <&%>:en of 1'<<. Tours faithfully, (d$> -T A Tal!ar/ 3es1 4fficer6 -ii/ Re4roduc*.on o6 "o7ernmen* o6 Ind.a& .n.s*r( o6 #e6ence& Le**er No+12 (1C)0F/0# (!ens.on0Ser7.ce) da*ed 2C*- Au3us*& 1EE1+ MSu, ) "ran* o6 Fam.l( !ens.on and 3ra*u.*( *o *-e 6am.l.es o6 Armed Forces 4ersonnel 0 4ens.oners w-o d.sa44ear suddenl( and w-ose w-erea,ou*s are no* 8nown+ S.r& I am directed to refer to this Ministry"s letter of e en number dated %0 rd March, 1''% on the abo e sub#ect and to say that in accordance !ith the pro isions contained therein the date of disappearance of the ser ing Armed Forces personnel $ pensioners is rec1oned from the date the First Information Report is lodge !ith the police by the family and the period of one year after !hich the benefits of Family pension and ;ratuity are be sanctioned, is rec1oned from this date. At present the Family :ension is sanctioned and paid to the eligible member of the family one year after the date of lodging the FIR !ith the police and no Family :ension is paid for the inter ening period of one year from the date the FIR is lodged to the date the family pension can be sanctioned. %. The abo e practice is causing hardship to the families. It has, therefore, been decided that the Family :ension, !hich in pursuance of the earlier orders, !ill continue to be sanctioned and paid one year after the date of lodging the FIR !ill accrue from the date of lodging the FIR or e.piry of lea e of the ser ice personnel !ho has disappeared !hiche er is later. At the time of issue of sanction of family pension, the payment of pension from the date of accrual !ill be authori+ed. The usual procedure of obtaining the Indemnity Bond etc., !ill continue to be follo!ed !hile sanctioning payment of family pension as laid do!n in ;o t. letter of e en number dated %0rd March, 1''%. It !ill be ensured by the concerned authorities that Family :ension is not authorised for any period during

Armed Forces Law Journal 2012 (1) 1 !hich payment of pay and allo!ances in respect of the disappeared ser ice personnel has been made. 0. The pro isions of this letter ta1e effect from 1< th February, 1''0, based on 3eptt. 4f :ension 5 :ensioners 9elfare 4M ,o.1$1@$:5:9$<8>B dated 1< th February, 1''0. 7. This issues !ith the concurrence of Finance 3i ision of this Ministry ide their G.4.,o.1@'0$:en>'0 dated %).<.'0. Tours faithfully, (d$> -3i!an Chand/ 3es1 4fficer6 -iii/ Re4roduc*.on o6 "o7ernmen* o6 Ind.a& .n.s*r( o6 #e6ence& Le**er No+1(1)020100#(!en0!ol) da*ed 1/*- Fe,ruar(& 2011 2To The Chief of the Army (taff The Chief of the ,a al (taff The Chief of the Air (taff (ubL "ran* o6 Fam.l( !ens.on and 3ra*u.*( *o *-e 6am.l.es o6 Forces 4ersonnel04ens.oners w-o d.sa44ear suddenl( and w-ose w-erea,ou*s are no* 8nown+ [[[[[[[[[[[[ (ir, The undersigned is directed to refer this Ministry"s letter ,o.1%-18/$<8$3-:en$(er/ dated 0rd Dune, 1'<< as amended ide letters of e en no. dated %&th March, 1''& dated %0rd March, 1''% and dated %8th August, 1''0, concerning grant of Family :ension to the eligible family members of the Armed Forces personnel $ pensioners !ho ha e suddenly disappeared and !hose !hereabouts are not 1no!n, after one year from the date of lodging FIR or e.piry of authori+ed lea e of the Armed Force personnel !ho has disappeared !hiche er is later. %. 9hile considering the demand of (taff (ide of the ,ational Council -DCM/ concerning !ithdra!al of the mandatory condition of one year prescribed in regard to sanction of family pension to the eligible family member of the ci ilian ;o ernment ser ant $ pensioners, Ministry of :ersonnel, :ublic ;rie ances 5

2 Armed Forces Law Journal 2012 (1) :ension, 3epartment of :ension 5 :ensoner"s 9elfare, ,e! 3elhi ide their 4M ,o.1$%<$&7>:5:9-B/ dated %nd Duly %&1& has decided in consultation !ith the Ministry of Finance -3epartment of B.penditure/ that the Family :ension $ retirement or death gratuity to the eligible family members of a ;o ernment ser ant $ pensioner reported missing and !hose !hereabouts are not 1no!n, may be sanctioned after a period of si. months from the date of registration of an FIR !ith the :olice sub#ect to fulfillment of other conditions. 0. The pro isions of Ministry of :ersonnel, :ublic ;rie ances 5 :ension, 3epartment of :ension 5 :ensioners" 9elfare, ,e! 3elhi abo e said 4M dated %nd Duly, %&1& shall mutatis mutandis apply to Armed Forces :ersonnel. 7. This issues !ith the concurrence of Finance 3i ision of this Ministry ide their G.4. ,o.1@%$F$:$%&11 dated 17.%.11. *indi ersion !ill follo!. Tours faithfully (d$> Malathi ,arayanan Gnder (ecretary to the ;o ernment of India Coy to L Recogni+ed Associations as per standard distribution list.6 Su4erscr.4* re6erence (a) 18 I*em (,)

Rule )7 K sub>rule 10 -b/ 5 %7 of the CC( -:ension/ Rules, 1'@%. Te5*0E5*rac* (c ) Rule )7. Family :ension, 1'87 L (11-$) Family :ension admissible under this rule shall not be granted to a person !ho is already in receipt of Family :ension or is eligible there for under any other rules of the Central ;o ernment or a (tate ;o ernment and $ or :ublic (ector Gnderta1ing $ Autonomous Body $ Cocal Fund under the Central or a (tate ;o ernment. :ro ided that a person !ho is other!ise eligible for family pension under

Armed Forces Law Journal 2012 (1) this rule may opt to recei e family pension under this rule if he forgoes family pension admissible from any other source.
1

I:ro ided further that family pension admissible under the Bmployees :ension (cheme, 1'') and the Family :ension (cheme, 1'@1, shall, ho!e er, be allo!ed in addition to the family pension admissible under these rules.J (2?) Fam.l( 4ens.on under *-e Em4lo(ees< !ens.on Sc-eme .s adm.ss.,le .n add.*.on *o 6am.l( 4ens.on under Rule /? o6 *-e CCS (!ens.on) Rules& 1E'2 > (ub>rule 10 -b/ of Rule )7 of CC( -:ension/ Rules, 1'@% !as amended by notification, dated the %@th Duly, %&&1 by insertion of the follo!ing pro iso after the first pro iso L> 2:ro ided further that family pension admissible under the Bmployees" :ension (cheme, 1'') and the Family :ension (cheme, 1'@1, shall ho!e er, be allo!ed in addition to the family pension admissible under these rules.6 -%/ The said amendment has come into force from the date of publication of the said ,otification, i.e., the %@th Duly, %&&1. Clarification has, ho!e er, been sought by some Ministries$3epartments as to -i/ !hether the said ,otification is applicable only in respect of those persons !ho retired on or after %@.&@.%&&1N -ii/ !hether the ,otification !ould also apply in cases of family pensions !hich arose prior to %@.&@.%&&1 i.e., !here retirement$death of a re>employed pensioner occurred before %@.&@.%&&1N and -iii/ in the e ent of the benefit being admissible in cases !here retirement $ death of a re>employed pensioner occurred before %@.&@.%&&1, !hether the benefit is to be gi en !ith effect from %@.&@.%&&1 only, i.e., the date from !hich the said ,otification came into force. -0/ It is clarified that the benefit of family pension under Family :ension (cheme, 1'@1 and Bmployees" :ension (cheme, 1''), in addition to the Family :ension under Rule )7 of the Central Ci il (er ices -:ension/ Rules, 1'@% !ill be admissible in those cases also !here retirement$death of a re>employed pensioner, !ho !as co ered by the Family :ension (cheme, 1'@1 or the Bmployees" :ension (cheme, 1''), too1 place prior to %@.&@.%&&1, besides co ering those cases !here retirement $ death of such a re>employed pensioner too1 place on or after %@.&@.%&&1. The benefit of second family pension in cases of retirement $ death prior to %@.&@.%&&1 of the re>employed pensioner co ered by the Family :ension (cheme, 1'@1 or Bmployees" :ension (cheme, 1''), !ill, ho!e er, be admissible only !ith effect from %@.&@.%&&1, i.e., the date from !hch the said ,otification

2 came into force.

Armed Forces Law Journal 2012 (1)

\;.I., 3ept of : 5 :.9. 4.M.,o.1$1'$'8>:5:9 -B/ dated the 1& th Duly, %&&% > B.tracted belo!O The abo e instructions are also applicable to the Central ;o ernment pensioners !ho got permanently absorbed in the :(G$Autonomous Body and !ere compulsorily go erned by F:(,1'@1$B:(,1''). \;.I., 3ept of : 5 :.9., 4.M.,o.7$1&$%&&8>:5:9-3/ dated the 17th May, %&&@O (A) Co4( o6 "o7ernmen* o6 Ind.a& .n.s*r( o6 #e6ence le**er No+20CC0$0#0(!en)0Ser7.ces)02001 da*ed 2F*- Au3us*& 2001+ (ub L ;rant of Family :ension under the Bmployees :ension (cheme 1'') and Family :ension (cheme 1'@1 in addition to Family :ension from military side, (ir, I am directed to for!ard a copy of 3:5:9"s 4ffice ,otification ,o.1$1'$'8$:5:9-B/ dated %@.&@.%&&1. This !ill be applicable mutatis mutandis to Armed Forces :ersonnel !ho !ere re>employed in the 4rganisations $ Bstablishments !here Bmployees :ension (cheme, 1'') and Family :ension (cheme, 1'@1 are in force. This !ill come into force on the date the ibid notificagtion dated %@.&@.%&&1 of 3: 5 :9 is published in the 4fficial ;a+ette, i.e., %@.&@.%&&1 -Copy reproduced belo!/. %. Corresponding regulations of :ension Regulations for Army $ Air Force $ ,a y !ill be amended accordingly in due course. This has concurrence of 3efence -Fin$:ension/. (d$>..... -( R (*ARMA/ Gnder (ecretary to the ;o ernment of India ($ ) Co4( o6 "o7ernmen* o6 Ind.a& .n.s*r( o6 !ersonnel& !u,l.c "r.e7ances A !ens.on& #e4** o6 !ens.on and !ens.oners< @el6are No*.6.ca*.on No+101E0EC!A!@(E) da*ed 2'*- Jul(& 2001+ NOTIFICATION

Armed Forces Law Journal 2012 (1) (.4.]]]]]]]]]]]]]/B/ In e.ercise of the po!ers conferred by the pro iso to Article 0&' and clause -)/ of Article 17< of the Constitution and after consultation !ith the Comptroller and Auditor ;eneral of India in relation to persons ser ing in the Indian Audit and Accounts 3epartment, the :resident hereby ma1es the follo!ing rules further to amend the Central Ci il (er ices -:ension/ Rules, 1'@%, namely L> -a/ These rules may be called the Central Ci il (er ices -:ension/ Amendment Rules, %&&1 -b/ They shall come into force on the date of their publication in the 4fficial ;a+ette %. In the Central Ci il (er ices -:ension/ Rules, 1'@% in rule )7 sub rule 10 -B/, after the first pro iso, the follo!ing pro iso shall be inserted namelyL> 2:ro ided further that family pension admissible under the Bmployees :ension (cheme, 1'') and the Family :ension (cheme, 1'@1, shall, ho!e er, be allo!ed in addition to the family pension admissible under these rules.6 (d$> .......... -: A Brahma/ (C ) No+101E0EC-!A!@(E) "o7ernmen* o6 Ind.a .n.s*r( o6 !ersonnel& !u,l.c "r.e7ances A !ens.ons #e4ar*men* o6 !ens.on and !ens.oners< @el6are Third Floor, Co1 ,aya1 Bha!an Ahan Mar1et ,e! 3elhi 11& &&0 3ated 1&$1'th Duly, %&&% OFFICE E ORAN#%

Su,;ec*) "ran* o6 Fam.l( !ens.on under *-e Em4lo(ees !ens.on Sc-eme& 1EE/ and *-e Fam.l( !ens.on Sc-eme& 1E'1 .n add.*.on *o 6am.l( 4ens.on under Rule /? o6 *-e CCS (!ens.on) Rules& 1E'2+ The undersigned is directed to refer to this 3epartment"s ,otification ,o.1$1'$'8>

2 Armed Forces Law Journal 2012 (1) + :5:9-B/ dated the %@th Duly, %&&1 published in the ;a+ette of India -B.traordinary/ dated %@th Duly, %&&1 by !hich sub>rule -10>B/ of Rule )7 of the Central Ci il (er ices -:ension/ Rules, 1'@% !as amended by insertion of the follo!ing pro iso after the first pro iso L 2:ro ided further that family pension admissible under the Bmployees :ension (cheme, 1'') and the Family :ension (cheme, 1'@1, shall, ho!e er, be allo!ed in addition to family pension admissible under these rules. %. The said amendment has come into force from the date of publication of the said notification i.e., %@th Duly, %&&1. Clarification has, ho!e er been sought by some Ministries $ 3epartments as to -i/ !hether the said ,otification is applicable only in respect of those persons !ho retired on or after %@.&@.%&&1 -ii/ !hether the ,otification !ould also apply in cases of family pension !hich arose prior to %@.&@.%&&1, i.e., !here retirement $ death of a re>employed pensioner occurred before %@.&@.%&&1N and -iii/ in the e ent if the benefit being admissible in cases !here retirement $ death of a re>employed pensioner occurred before %@.&@.%&&1, !hether the benefit is to be gi en !.e.f. %@.&@.%&&1 only, i.e., the date from !hich the said ,otification came into force. 0 It is clarified that the benefit of Family :ension under Family :ension (cheme, 1'@1 and Bmployees :ension (cheme, 1''), in addition to the family pension under Rule )7 of the Central Ci il (er ices -:ension/ Rules, 1'@%, !ill be admissible in those cases also !here Retirement $ 3eath of re>employed pensioner, !ho !as co ered by the family pension scheme, 1'@1, or the Bmployees :ension (cheme, 1''), too1 place prior to %@.&@.%&&1, besides co ering those cases !here retirement $ death of such a re>employed pensioner too1 place on or after %@.&@.%&&1. The benefit of second family pension in cases of retirement $ death prior to %@.&@.%&&1 of the re>employed pension co ered by the Family :ension (cheme, 1'@1, or the Bmployees :ension (cheme, 1''), !ill ho!e er, be admissible only !.e.f. %@.&@.%&&1, i.e., the date from !hich the said ,otification came into force. (d$>.... -(u#it 3utta/ 3irector

Su4erscr.4* re6erence

I*em

(a) 18 A

Armed Forces Law Journal 2012 (1) (,)

GoI 5 4rs Es. Ct ;en R ( Aadyan 5 Anr K Reported in -%&&&/ 8 (CC 8' and %&11 -1/ AFTCD 1

Arm( Ac*& 1E/0 A S4ec.al Arm( Order 1 0 S 0 1EFE = !romo*.on = the 1 Respondent is the seniormost eligible Ct. ;en. to be appointed to the post of Army Commander, Bastern Command K but the % nd Respondent !as appointed or promoted to that said post K filed 9rit :etition and prayed to pre ent unnecessary and a oidable aberration !ith regard to appointment $ promotion of senior officers in the Army and 1eeping in ie! the long term interest of the Army and the country so as to a oid politici+ation of the crucial posts in the Army K *igh Court said the senior person unless unfit should get the promotion automatically and seniority ought to ha e been gi en preponderating !eight, the posts of Cieutenant to Ma#or are automatic promotion post on passing e.ams, posts from Ma#or to Ct. ;eneral are all selection posts but from Ct. ;eneral -Corps Commander/ to Army Commander is a non>selection posts, !here promotion is sub#ect to fitness in all respects -though the ran1 remains the same/. From Army Commander to the Chief of the Army (taff by promotion.
st

9eld& Army Commander is a selection post, fitness in all respects mean fit to be chosen, usually the seniormost officer is selected but the Chief of the Army (taff is not debar to select any other person. ACR is not the sole factor for promotion, since, selection in ol es comparati e assessment of the officers, !here the entire ser ice profile of the officers considered by the authorities concerned, court cannot substitute its o!n ie! to that authorities, #udicial re ie! is permissible only to the e.tent of finding !hether the process in reaching decision has been obser ed correctly and not the decision as such, no #ustification for the *igh Court to ha e interfered !ith the order made by the ;o ernment K Appeals allo!ed.

Su4erscr.4* re6erence (a) 18 B

I*em (,) Ca1h!inder (ingh Es GoI 5 4rs -%&&</ @ (CC

Armed Forces Law Journal 2012 (1) Te5*0E5*rac* -c/ I, T*B (G:RBMB C4GRT 4F I,3IA CIEIC A::BCCATB DGRI(3ICTI4, (:BCIAC CBAEB :BTITI4, -CIEIC/ ,4. <)&1 4F %&&@ Altamas Aabir and E.(. (irpur1ar, D. D. 3atedL Duly 1&,%&&< VVVVVVVVVVV..... :etitioner Es. VVVVVVVVVVV....Respondents DG3;MB,T

Ca1h!inder (ingh Gnion of India 5 4rs.

ACTAMA( AABIR, D. 1. This (pecial Cea e :etition is directed against the #udgment and order dated %%nd March, %&&@ passed by the 3elhi *igh Court dismissing 9rit :etition ,o. <'' of %&&8 filed by the petitioner herein challenging the decision of the Central ;o ernment, to re#ect the recommendation made by t!o (pecial (election Boards for promoting the petitioner to the ran1 of Cieutenant ;eneral. %. The petitioner, !ho !as commissioned as a (econd Cieutenant in the Indian Army on 18th 3ecember, 1'8@, !as promoted to the ran1 of Ma#or ;eneral in the year %&&1. T!o successi e (pecial (election Boards of the Indian Army recommended the petitioner for promotion to the ran1 of Ct. ;eneral, but the Central ;o ernment did not appro e the said recommendations. ;eneral. The said decision of the Central ;o ernment !as challenged by the petitioner in the aforesaid 9rit :etition on the ground that such denial of promotion to the petitioner to the ran1 of Ct. ;eneral !as arbitrary, discriminatory, !himsical and in iolation of the rules and the established procedure of selection and it also offended the principles laid do!n in arious #udicial pronouncements both by the *igh Courts as !ell as this Court. 0. According to the case made out by the petitioner, he !as engaged in acti e combat at 3era Baba ,ane1 in the :un#ab (ector during the Indo>:a1istan 9ar and !as recommended for Eir Cha1ra a!ard. *e also too1 part in arious operations, including operations relating to counter>insurgency, such as operation Blue (tar, in :un#ab in 1'<7. In 1''', he !as posted to command an Artillery Brigade in the acti e insurgency area in Aashmir.

Armed Forces Law Journal 2012 (1) 1 The Brigade under the petitionerYs command !as mobili+ed to fight the Aargil 9ar$4peration Ei#ay in 3rass>Aargil (ector in 1'''. For the petitionerYs participation in the Aargil 9ar he !as a!arded the Tudh (e!a Medal in August, 1'''. 7. 4n account of his ser ice profile, the petitioner !as promoted to the ran1 of Ma#or ;eneral and !as posted as ;eneral 4fficer Commanding 7& Artillery 3i ision, !hich !as the only Artillery 3i ision of the Indian Army at the rele ant time and he led 4peration :ara1ram in %&&%. In %&&0 he !as posted to the ,orthern Command and participated in the 4perational Command, !hich !as responsible for the insurgency>affected Dammu and Aashmir (ector. ). It is the further case of the petitioner that all promotions abo e the ran1 of Colonel are made not on the length of ser ice put in by an officer but on the basis of selection. It is the petitionerYs case that he !as promoted on first consideration right from the ran1 of Colonel to Ma#or ;eneral on a competiti e basis. For selection, from the ran1 of Ma#or ;eneral to Ct. ;eneral, a (pecial (election Board is constituted by the Chief of the Army (taff, hereinafter referred to as XC4A(X, under po!ers delegated to him under the authority of the :resident. The said Board comprises the Chief of Army (taff, the Eice> Chief of Army (taff and the si. senior>most Ct. ;enerals, !ho ma1e recommendations for promotion to the ran1 of Ct. ;eneral and appointments are made after the recommendations are appro ed by the Ministryof 3efence and other competent authorities. 8. It is the petitionerYs case that the (pecial (election Boards are e.pert bodies !hich consist of the C4A(, the Eice>Chief of Army (taff and the si. Corp>Commanders representing different fields$ branches of the Army, including officers from technical and non> technical fields. According to the petitioner, a person !ho has been recommended by the (pecial (election Board can hardly be ignored by the ;o ernment for promotion. @. As far as the petitioner is concerned, the first Board for (election !as held on %@th of February, %&&7, in !hich four names !ere unanimously recommended, including the name of the petitioner. Before promotions could be gi en in terms of the recommendations made, one of the four candidates superannuated on 01st August, %&&7 and one of the others e.pired on 0rd (eptember, %&&7. According tothe petitioner, !ithout, ho!e er, applying its mind to the aforesaid facts, the ;o ernment returned the recommendations of the Board on the ground that four names

2 Armed Forces Law Journal 2012 (1) + had been recommended !hen there !ere only three acancies, though, at the rele ant time, there !ere only t!o officers left against three acancies. 3espite the abo e, only one of the recommended candidates, Ma#or ;eneral A. Easude a !as promoted to the post of Ct. ;eneral by the Central ;o ernment but the petitionerYs case for promotion !as re#ected and the said decision !as declared after a period of 1& months. The petitioner has contended that he !as the only officer amongst the ;eneral 4fficers recommended for promotion as Ct. ;eneral in the (taff (tream. <. Aggrie ed by his non>selection to the post of Ct. ;eneral, the petitioner filed a non> statutory complaint !ith the C4A( on 1@ th Danuary, %&&). The same remained unattended to and ultimately on 1st April, %&&), a second Board !as held. 4nce again, the Board recommended the name of the petitioner for promotion to the ran1 of Ct. ;eneral. It has been emphasised by the petitioner that both the Boards !ere headed by the functioning Chiefs of Army (taff. In the list recommending the names of fi e officers for promotion to the ran1 of Ct. ;eneral, the petitionerYs name !as sho!n at serial ,o.1. 9hen the result of the second Board !as declared on 0&th Dune, %&&), the petitioner found that he had once again been superseded and the recommendation of the second Board, as far as he !as concerned, !as not appro ed by the Central ;o ernment. '. It is also the case of the petitioner that t!o of the recommended candidates, Ma#or ;eneral Gtpal Bhattacharya and Ma#or ;eneral A.A. (aini, !ere to superannuate on 1st Duly, %&&) and 01st August, %&&), respecti ely, and conse=uently in the acancy arising on 1st February, %&&8 only t!o officers, namely, the petitioner and Ma#or ;eneral T.A.Dain should ha e been promoted. *o!e er, on %'th$0&th Duly, %&&), t!o acancies !ere created and #ust before the retirement of Ma#or ;eneral G. Bhattacharya, the ran1 of Ct. ;eneral !as conferred on them. 1&. Aggrie ed by the aforesaid action of the respondent, the petitioner filed another statutory complaint on %'th August, %&&) !ith the Ministry of 3efence challenging his supersession, but the same !as re#ected by a cryptic order on %'th 3ecember, %&&). It is the petitionerYs case that although there !ere acancies in the ran1 of Ct. ;eneral to !hich the petitioner !as entitled to be promoted, the respondents did not fill up the a ailable acancies as the petitioner !as due to retire on 01st May, %&&8.

Armed Forces Law Journal 2012 (1) 1 11. The grie ance made out by the petitioner in his 9rit :etition is that despite his e.cellent ser ice profile and unblemished ser ice for a period of 0< years and t!o successi e recommendations for promotion, he !as denied promotion to the ran1 of Ct. ;eneral in an arbitrary and high> handed manner. 1%. Appearing for the petitioner, learned senior counsel, Mr. :at!alia, repeated and reiterated the case made out by the petitioner in his 9rit :etition and emphasised the fact that despite the recommendation of t!o (pecial (election Boards, consisting of the C4A(, the Eice>Chief of Army (taff and the si. senior Ct. Colonels in the Army, the Central ;o ernment had !rongly !ithheld promotion to the petitioner from the ran1 of Ma#or ;eneral to the ran1 of Ct. ;eneral. Mr. :at!alia submitted that the senior>most officers of the Indian Army, !ho !ere ac=uainted !ith the =ualities of the officers under consideration, had made the recommendations for promotion of the petitioner to the post of Ct. ;eneral, and accordingly, such recommendation by t!o successi e Boards, should not ha e been re#ected. It !as submitted that e.cept for indicating that in comparison to the other recommended candidates, the petitioner had a !ea1 profile, no other satisfactory reason had been gi en by the respondents for re#ecting the recommendation made by the (pecial (election Boards in the petitionerYs fa our. 10. Mr. :at!alia urged that !hile the petitioner may not ha e obtained the grading of ' in the bo. grading, for the purpose of promotion, of the recommendees, he !as the only officer !ho had seen acti e combat during the Aargil 9ar and had been decorated for the same. Mr. :at!alia urged that despite the fact that the petitioner did not possess any Bo. ;rading of X'X, the (pecial (election Boards still recommended him for promotion to the ran1 of Ct. ;eneral, not once, but on t!o occasions, !hich surely reflected the fact that Bo. ;rading of X'X !as not of such significance as to deny promotion to the petitioner to the ran1 of Ct. ;eneral. Referring to the criteria$factors, !hich are considered for selection to the post of Ct. ;eneral, in terms of the policy de ised by the Central ;o ernment, Mr. :at!alia submitted that only the Annual Confidential Report profile of the officer appears to ha e been ta1en into consideration !hile re#ecting therecommendation of the (pecial (election Boardto promote the petitioner to the ran1 of Ct.;eneral. *e pointed out that one of the criteria !as consistent recommendations for

2 Armed Forces Law Journal 2012 (1) promotion to the ne.t higher ran1. It !assubmitted that such criteria appears to ha enot been gi en due importance by the Central;o ernment !hile re#ecting the successi erecommendations made in the petitionerYsfa our. Although, no case of malafides hadbeen made out on behalf of the petitionereither before the *igh Court or before thisCourt, it !as submitted that despite the fact hat the petitionerYs case for promotion !as re#ected, t!o posts !ere created toaccommodate t!o officers as a special fa ourto promote them to the ran1 of Ct. ;eneral #ust before they retired from ser ice. Accepting the position that promotion !as not a matter of right, Mr. :at!alia concluded by urging that an officer !ho had been selected by the (pecial (election Board consisting of the highest officers in the Indian Army !as entitled to re=uest the Court to loo1 into the records to ascertain the reason for such re#ection. 17. Appearing for the respondents, learned senior counsel, Mr. 3oabia, submitted that the petitioner !as first recommended for promotion to the ran1 of Ct. ;eneral, along !ith three other officers, by the (pecial (election Board on %@th February, %&&7, but !hen the said recommendation !as ta1en up for consideration by the Central ;o ernment, it !as disco ered that the (pecial (election Board had presumed four acancies !hen only three acancies !ere a ailable. Thereafter, on a comparison of the profiles of all the officers, the petitioner !as found to ha e the !ea1est profile and !as graded XunfitX for promotion. B en !hen thesecond recommendation !as made by the (pecial(election Board on 1st April, %&&), on acomparison of the profiles of the officersrecommended, the petitioner !as once again found to ha e the !ea1est profile and accordingly graded XunfitX. It !as submittedthat such consideration to hold the petitionerXunfitX in comparison to the others recommended officer, !as a decision ta1en notby the C4A( alone, in his indi idual capacity,but by the Ministry of 3efence in a representi e capacity, !hich also included the C4A(. In fact, it !as submitted that as names of fi e officers had been recommended against three acancies, the cases of all the officers !ee considered on a comparati e basis and since the petitioner !as found to ha e the !ea1est profile amongst all the officers recommended, he !as once again graded as XunfitX. It !as submitted that no undue preference had been sho!n or gi en to any of the concerned officers, but since from the records the petitioner !as found to ha e the !ea1est profile, he had been graded as XunfitX since only three acancies !ere a ailable!hile fi e names had been recommended for promotion.

Armed Forces Law Journal 2012 (1) 1). It !as lastly submitted that :ara 1&< of the Regulations for the Army, 1'<@, !hich pro ides for the constitution and duties of (election Boards, clearly indicates that the assessment of the (election Board shall be recommendatory in nature and not binding until appro ed by the Competent Authority namely, the C4A( or the Central ;o ernment as the case may be. The said Regulation also pro ides that both the Central ;o ernment and the C4A( ha e an inherent po!er to modify, rene!, appro e !ith ariation or repeal the recommendations of the (election. It !as urged that it !as, therefore, e ident that the recommendation of the (pecial (election Board !as not binding and had to be appro ed by the Central ;o ernment or the Chief of the Army (taff. In support of his aforesaid submission learned counsel referred to the decision of this Court in Gnion of India and 4rs. Es. Ct. ;eneral Ra#inder (ingh Aadyan I%&&& -8/ (CC 8'<J in !hich this Court, inter alia, held as follo!sL> X4f course, considering the nature of rigorous standards adopted in the matter of selection of officers from the stage of Ct. Colonel on!ards up to the stage of Ct. ;eneral, in the usual course it may be that the senior>most officer is selected as the Army Commander. But that does not debar the Chief of the Army (taff or the Gnion of India from ma1ing the selection of any other person for good reasons !ho fulfils the necessary criteria.X 18. Reliance !as also placed on another decision of the 3elhi *igh Court in the case of Gnion of India s. Col. (hyam Aumar, 1'<% -0/ 3RD%%), in !hich it !as held that the assessment of the (election Board is purely recommendatory in character and that the po!er of the appointing authority to accept or e en ary the recommendation of the (election Board is implicit. 1@. It !as urged that since the petitionerYs case had been considered at the highest le el of the appointing body, in !hich the C4A( !as also present, no interference !as called for !ith the decision either of the said authority or the *igh Court. 1<. *a ing considered the submissions made on behalf of the respecti e parties, !e are not inclined to interfere !ith the decision of the *igh Court impugned in this proceeding. 1'. It is no doubt true, that the name of the petitioner had been recommended on t!o occasions by t!o successi e (pecial (election Boards for promotion to the post of Ct. ;eneral, but on each occasion, he !as declared unfit, on account of the fact that there !ere lesser number of acancies a ailable than the number of candidates recommended and it !as found on a comparati e assessment that of all the recommended officers,

2 Armed Forces Law Journal 2012 (1) he had the !ea1est profile. It is also no doubt true that the (pecial (election Board consists of the highest>ran1ing officers of the Indian Army ,but its suggestions are only recommendatory in nature and under the Army Regulations, can be aried or interfered !ith by the Appointing Authority, as has been done in the instant case. It is unfortunate that the recommendations !ere made in e.cess of the acancies a ailable !hich necessitated a comparison to be made of the profiles of the recommended candidates in !hich process the petitioner got eliminated, but ha ing gone through the official records, !hich !ere produced before us, !e find that the entire =uestion !as considered and dealt !ith by the Central ;o ernment in a manner !hich !as completely free from bias and based on the ser ice records of the different officers.The acti e ser ice of an officer during 9ar and Battle A!ards and *onours earned during such action, is one of the se eral factors to be ta1en into consideration by the (pecial (election Board in recommending promotion from the post of Ma#or ;eneral to Ct. ;eneral. 9hile the petitioner may ha e better records in the said category, the Board has also to ta1e into consideration arious other categories !hich ha e been set out in the #udgment of the *igh Court impugned in this (pecial Cea e :etition. It is only on an o erall assessment that the profile of an officer is prepared and had been so prepared in the instant case !here a comparison had to be made in filling up the a ailable acancies. %&. Apart from the t!o decisions referred to hereinabo e !hich support the case of the respondents, arious other decisions !ere also referred to on behalf of the parties, but the same are not really rele ant for a decision in this case, ha ing regard to the ie! ta1en by us on the basis of the materials a ailable to us. %1. In the circumstances indicated hereinabo e, no interference is called for !ith the impugned #udgment of the *igh Court and the (pecial Cea e :etition is, accordingly, dismissed. %%. There !ill be no order as to costs.

Su4erscr.4* re6erence (a) 18 C

I*em (,) Regulations for the Army, 1'<8 K Reg 1&< L Constitution and 3uties of (election Boards.

Armed Forces Law Journal 2012 (1) 1 Te5*0E5*rac* -c/ 1&<. Cons*.*u*.on and #u*.es o6 Selec*.on $oards L (election Boards -for officer other than Army Medical Corps, Army 3ental Corps and Military ,ursing (er ice/ are constituted as re=uired under the order of the Chief of the Army (taff. Their composition and duties are gi en belo! L> -a/ ........ -b/ ........ -c / ........ -d/ The assessment of the (election Board shall be recommendatory in nature and not binding until appro ed by the competent authority i+., the C4A( or the Central ;o t. as the case may be. -e/ The Central ;o ernment or C4A( ha e the inherent po!er to modify, re ie!, appro e !ith ariation or repeal recommendation of the (election Boards. Su4erscr.4* re6erence (a) 18 3 I*em (,) (urinder (hu1la Es GoI 5 4rs reported in -%&&</ % (CC 87' and %&11 -1/ AFTCD %&8 Te5*0E5*rac* -c/ T*B (G:RBMB C4GRT 4F I,3IA CA(B ,4.L Appeal -ci il/ %)& of %&&< IArising out of (C: -Ci il/ ,o. <0&0 of %&&@J BB,C*L (. B. (inha 5 *ar#it (ingh Bedi, D. D. 3ATB 4F DG3;MB,TL &'$&1$%&&<

(urinder (hu1la

VVVVVVVVVVVVAppellant Es. Gnion of India 5 4rs. VVVVVVVVVVVVRespondents Arm( Ac*& 1E/0 A S4ec.al Arm( Order 1 0 S 0 1EFE = !romo*.on = the Appellant !as commissioned in Indian Army and holding the post of Ct. Colonel K for the promotion to the ran1 of Colonel the Appellant !as considered but he !as not found fit K filed statutory complaint > statutory complaint re#ected by the Respondents as untenable K inter alia submitted that the Appellant has better records than his batch mates, ad erse remar1s if any !as not communicated >

Armed Forces Law Journal 2012 (1) + 9eld, Colonel post is a selection post, a large number of factors are re=uired to be ta1en into consideration, i+. ACR, !ar report, battle a!ards, honours, courses, achie ements, appointments held, disciplinary bac1ground etc. etc., recommendations of the (election Board appro ed by the Chief of the Army (taff, not alleged any mala fide against the members of the (election Board and also the selected candidates !ere not impleaded as parties, no merit in this Appeal > Appeal dismissed.

Su4erscr.4* re6erence (a) 1@

I*em (,) 4rder of ac=uittal by :rincipal Bench in case of an accused ser ing term for an offence under (ec 8' of the Army Act r$! I:C (ec 0&% in TA 17@$&' Te5*0E5*rac* -c/

I, T*B ARMB3 F4RCB( TRIBG,AC, :RI,CI:AC BB,C* ,B9 3BC*I T.A. ,4.17@ 4F %&&' -ARI(I,; 4GT 4F 9: ^ ,o.1<8<% of %&&7 4F 3BC*I *I;* C4GRT/ 1'th ,o ember, %&&'. Mul1 Ra# (ingh Eersus Gnion of India and Anr. For the :etitioner For the Respondents L Mr. E 3 (harma L Capt Alifa A1bar, Ad ocate V Respondent V :etitioner

C4RAM L *on"ble Mr Dustice A A Mathur, Chairperson *on"ble Ct ;en M C ,aidu, Administrati e Member DG3;MB,T 1. The petitioner by filing this 9rit :etition in 3elhi *igh Court challenged the (ummary ;eneral Court Martial proceedings dated %' th April, %&&0, !hereby the petitioner !as sentenced for life imprisonment and dismissed from ser ice. 4n

Armed Forces Law Journal 2012 (1) 1 formation of this Armed Forces Tribunal this case has been transferred to this Tribunal for disposal. %. Gnder (ection 1) of the Armed Forces Tribunal Act, %&&@ -hereinafter referred to as SAct, %&&@"/ appeal lies against any order, decision, finding or sentence passed by a Court Martial or any matter connected there!ith or incidental thereto. 0. (ub (ection % of (ection 1) of Act, %&&@ further pro ides that any person aggrie ed by an order, decision, finding or sentence passed by a court>martial may prefer an appeal in such form, manner and !ithin such time as may be prescribed. 7. (ub (ection 0 of (ection 1) of Act, %&&@ further contemplates that the Tribunal shall ha e full po!er to grant bail to any person, !ith or !ithout condition. ). (ub (ection 7 of (ection 1) of Act, %&&@ says that Tribunal shall allo! on appeal against the order of con iction passed by the Court Martial can set aside that finding !hich is not sustainable for reasons recorded, the finding in ol es a !rong decision on a =uestion of la! or there is material irregularity in the course of the trial resulting in miscarriage of #ustice. 8. (ub (ection ) of (ection 1) of Act, %&&@ further says that the Tribunal may allo! an appeal against con iction and pass appropriate order. @. (ub (ection 8 of Act, %&&@ also says that not!ithstanding anything contained in foregoing pro isions the Tribunal ha e po!er to substitute findings of the court> martial finding of guilty for any other offence for !hich the offender !ould ha e been la!fully found guilty by the court>martial and pass a sentence afresh for the offence specified or in ol ed in such findings under the pro isions of the Army Act, 1')& or the ,a y Act, 1')@ or the Air Force Act, 1')&. <. It further says that sentence can also be reduced, if it is found to be e.cessi e, illegal or un#ust The Tribunal shall ha e the po!er to remit the !hole or any part of sentence, !ith or !ithout condition. Mitigate the punishment a!arded, commutes such sentence to lesser punishment. It has also po!er to enhance the sentence a!arded by Court>Martial. But shall be done only !ith an opportunity of being heard to the petitioner. It can release the appellant, if sentence of imprisonment on parole, !ith or !ithout condition. It can suspend a sentence of imprisonment or pass any order as it may thin1 appropriate.

2 Armed Forces Law Journal 2012 (1) '. (ub (ection further says that not!ithstanding anything contained in this Act, the Tribunal shall be deemed to be a criminal court for the purposes of (ections 1@), 1@<, 1@', 1<&, 1'0, 1'), 1'8 or %%< of the Indian :enal Code and Chapter MMEI of the Code of Criminal :rocedure, 1'@0. 1&. Therefore, by irtue of (ection 1) the Tribunal has full appellate po!er against the order of the court>martial, li1e a court of appeal. 11. (ince in this case the petitioner challenged the con iction by the court>martial by filing a 9rit :etition, !hich has been remitted to this Tribunal, on its formation. This Tribunal has con erted this !rit petition into an appeal under (ection 1) of the Act, %&&@. 1%. 9e ha e heard the learned counsel for the parties and perused the record. 10.Brief facts !hich are necessary for disposal of this appeal are that the petitioner$appellant !as charged for committing a murder of *a ildar$Gpol ;ul+ar (ingh of @&1) Blectronics Blectronics and Mechanical Bngineers Battalion -1)& Field 9or1shop Blectronics and Mechanical Bngineers/. It is alleged that the accused Mul1ra# (ingh, !ho belong to Gnit @&1) Blectronics and Mechanical Bngineers Battalion -1)& Field 9or1shop Blectronics and Mechanical Bngineers/ !as on guard duty. 17. It is alleged that on 7th March, %&&% at about 1<&& hours (epoy$3ri er -Mechanical Transport/ A A Eerma -:9 %/ of @&1) Blectronics and Mechanical Bngineers/ !ent to collect food from the coo1 house and came bac1 at 1'0& hrs. Thereafter, he and (epoy $ 3ri er -Mechanical Transport/ Damshed Ali had food. After ha ing dinner :9 % !ent to the Main :ost for guard duty along !ith (epoy$3ri er Damshed Ali around %&&& hrs. *e !as detailed for the second shift guard duty. At about %1)) hours he !ent to !a1e>up (epoy$3ri er -Mechanical Transport/ Mul1ra# (ingh -accused/ and Cfn AA (ingh as they !ere ne.t to stand on the guard duty. It is alleged that he told the accused that it is his turn for guard duty and also !o1e up Cfn AA (ingh, though Cfn AA (ingh did not respond, but the accused Mul1ra# (ingh told him that they !ill come shortly. For some time nobody turned>up, then, again he as1ed (epoy$3ri er -Mechanical Transport/ Damshed Ali to find out !hy both of them are not coming to Main :ost. Before Damshed Ali could go to ;uard Room, he sa! that accused and Cfn AA (ingh !al1ing to!ards the Main :ost. Accused, on reaching the Main :ost, told both to lea e, they reached guard room and both accused and Cfn AA (ingh too1 o er the

Armed Forces Law Journal 2012 (1) charge. 1). It is further alleged that at about %%0& hrs rifle shots !ere heard, therefore, :9 % immediately got up from his guard room, too1 bullet proof #ac1et, :at1a and his rifle and rushed to the Main :ost, along!ith Damshed Ali. (oon thereafter somebody came from behind and !anted to 1no! ho! and from !here this firing has ta1en place. But someone from main post ans!ered that ;uard Command has been hit. Thereafter, he rushed to that place !here a person lying on the ground. (ome officer also reached on the :ost and it !as Cieutenant (ugandha. Cieutenant (ugandha ordered L"Pic# up the $uard %ommander& and he identified that it !as ;uard Commander, *a ildar$Gphol ;ul+ar (ingh. They pic1ed up the body of the ;uard Commander, thereafter it !as told to lea e Cfn AA (ingh from the Main :ost. *e also alleged that a 1&& !att bulb !as glo!ing on Main :ost on the fateful day. 18. 4n the basis of this incident a FIR !as also lodged, thereafter, a re=uest !as made to the Magistrate to transfer this case to the Army for court>martial proceedings Accordingly the court>martial proceedings !ere initiated against accused Mul1ra# (ingh. 1@. The prosecution in support of this case has e.amined as many as 1' !itnesses and gi en full opportunity to the accused to defend himself. 1<. In this case there is one eye !itness of the incident. The admitted facts !hich emerge that on the fatful day the accused and one Cfn AA (ingh !ere on guard duty and at about %%0& hrs shots !ere fired and hit the ;uard Commander and he died on the spot. 1'. :rosecution has relied on the testimony of :9>18 -Cfn$Turner AA (ingh of @&1) Blectronics and Mechanical Bngineers Battalion/ main !itness and :9>% -(epoy$3ri er AA Eerma/ of @&1) Blectronics and Mechanical Bngineers Battalion, and other !itnesses !ho had come on the scheme subse=uently li1e Ma#or 3R (en!al and others. %&. The plea of the accused !as that deceased approached !earing coat !ith hood co ering his head. Accused ga e a caution S Thamand identify !ith pass !ord three times, but he did not respond. Therefore, he had no option but to shoot. Thereafter, it is found that he !as none other than ;uard Commander.

2 Armed Forces Law Journal 2012 (1) + %1. The lone !itness at the rele ant time !as :9 >18 -Cfn$Turner AA (ingh of @&1) Blectronics and Mechanical Bngineers Battalion/, !ho !as also on duty along !ith the accused. *e has also admitted that at the rele ant time he and accused !as relie ed by :9>% -(epoy$3ri er AA Eerma/ and :9>0 -(epoy$3ri er Danshed Ali/. *e has deposed that after they !ere as1ed to ta1eo er the post from AA Eerma -:9>%/ and Damshed Ali -:9>0/ they too1 o er the post on guard duty. The accused Mul1ra# (ingh proceeded t!o minutes before him to the post. At the Main :ost the accused !ent and stood at (entry ,o.%. The butt number of his (CR !as @7 and the accused had (CR bearing butt number <1. *e deposed that he sa! the accused hanging his rifle on the (ling !hich !as already hanging from the roof of the Main :ost at the position of (entry ,o.1. *e also put his rifle on the (ling that !as already hanging at the position of (entry ,o.%. After about t!enty minutes he told the accused that he !anted to interchange his position as he !as feeling cold and the accused !as standing closed to the Bhu1ari. Both of them changed their position. They did not carry their rifles. After about ) to @ minutes accused called Tham -*alt/. 4n this caution of the accused, he presumed that one of Gnit 4fficers or the 3uty 4fficer might ha e come to chec1 the guard personnel on duty. The accused again called out Tham" for the second time. *e then as1ed the accused as to !ho !as coming and from !hich direction. The accused told him Picchae sae koi Aa raha hai " -someone is coming from the rear/. 4n hearing this he loo1ed to!ards his front and bac1 but did not see anyone. The accused then too1 out rifle !hich had butt ,o.@7 from the (ling. The accused told Password bata de, ya to ruk ja bhai " -Tell the pass!ord or stop brother/. 9hen the accused called out Tham t!ice it !as loud enough for the other posts to hear it, but !hen he heard other !ords telling some to stop, his oice !as normal. The accused, thereafter, coc1ed the rifle and fired a single round. As soon as the accused had fired the round, he #umped out of the Main :ost and ran out to!ards the electric pole. After about % to 0 seconds the accused fire t!o more rounds. (ince the firing !as coming from the Main :ost, he immediately too1 out his rifle bearing butt number <1 and came out and too1 the position bet!een the Main post and the ad#oining !all. After about 8 to @ seconds, the accused fired t!o more rounds from his rifle. Both these rounds !ere fired to!ards the entrance of the Main :ost. Thereafter accused told him Dekh kon geera hai; koi harkat to nai kar raha -see !ho is fallenN is he doing any acti ity/. 4n hearing this he stood up. The accused again told him kahan dekh raha hai, woh deewar ke picchae Side ,mein geera hai -9here are you loo1ingN he has fallen on the bac1side of the !all/. Then he deposed that he !ent do!n from the Main :ost and after getting do!n he sa! a body lying on the ground. *e

Armed Forces Law Journal 2012 (1) 1 then !ent closer to the body and sa! that head of the body !as co ered !ith the hood of the coat. *e lifted the head of the body and remo ed the hood of the coat in order to see the face of the person and he sa! that the person lying there !as his ;uard Commander>*a ildar$Gphol ;ul+ar (ingh. Then he shouted aar, yeh kya kar diya; yeh to hamara !uard "ommander hai " -friend, !hat ha e you doneN he is our ;uard Commander/. The accused replied that #amne Tham pukara, password puccha, yeh nahi bataya; humhe shak hua; maine usko shoot kiya" -I called out haltN as1ed the pass!ordN he did not tellN I got suspiciousN I shot him/. This statement gi en by the :9>18 -Cfn$Turner AA (ingh/ !ho !as on the spot and the lone eye !itness had supported the ersion of the accused in toto. %%. More or less, this ersion gi en by :9>18 !as repeated by the accused before :9>1% -,M$EM -ME/ Ramesh Aumar of @&1) Blectionics and Mechanical Bngineers Battalion/, !ho !as on the fateful night on the third shift duty at (ingle (entry :ost and he corroborated. *e also corroborated that he heard the caution Tham, kon aata hai" -*alt !ho comes there/. Thereafter he heard the firing of shot. (ame ersion !as gi en by the accused to the other officers !ho came on the site. From other !itnesses, !ho !ere subse=uently e.amined, by and large, supported this story. 3octor !ho conducted post mortem has deposed that death has ta1en place by fire arm in#ury. %0. 9e need not to multiply the statement of arious !itnesses but suffice it to say that defence put by the accused that he called out to identify the intruder but the intruder did not respond nor did he disclose his name nor did he gi e out pass!ord. (ince he !as on sentry duty and had no choice but to shoot. This fact has been fully corroborated by his another colleague on the post i.e., :9>18 -Cfn$Turner AA (ingh/. This also supported by another !itness :9> 1%-,M$EM-ME/ Ramesh Aumar/, !ho !as also on guard duty at some distance. *e heard sound from (entry :ost calling the intruder to disclose his identity and there !as no response. Therefore, in this bac1ground, the =uestion arises that !hat offence is made out. In normal course, a case could ha e been made out for murder, but in the bac1ground of the Army and the place li1e Army (chool in (rinagar, !here the insurgency is on its heights, !e ha e to appreciate the testimony of the !itnesses in that bac1ground. 4ne has to be ery igilant and cautious on sentry duty in the night. A small slip can pro e fatal. Therefore, persons on guard duty, especially !hen they are guarding Army (chool, (rinagar, cannot ta1e any chance. %7. In this connection, learned counsel for the appellant has submitted that

2 Armed Forces Law Journal 2012 (1) petitioner cannot be held guilty under (ection 0&% and strongly submitted that the case is co ered by (ection @' of the Indian :enal Code, !hich reads as under L 2@'. Act done by a person #ustified, or by mista1e of fact belie ing himself #ustified by la! K ,othing is an offence, !hich is done by any person !ho is #ustified by la!, or !ho by reason of a mista1e of fact and not by reason of a mista1e of la! in good faith, belie es himself to be #ustified by la!, in doing it.6 The illustration under (ection @' is an e.ample !hich reads as under L 2A sees U commit !hat appears to A to be a murder. A, in the e.ercise, to the best of his #udgment, e.erted in good faith, of the po!er !hich the la! gi es to all persons of apprehending murderers in the fact, sei+es U, in order to bring U before proper authorities. A has committed no offence, though it may turn out that U !as acting in self defence.6 %). Cearned counsel for the appellant submitted that gi en the bac1ground of (rinagar and the petitioner doing a guard duty in the night, he bona fidely acted that !hen a person !ho is coming to the premises of the protected area and guard calls out him that he should stop and disclose the pass!ord, but if he doesn"t do it he has no choice e.cept to resort to offensi e so as to protect and guard the post. Therefore, the accused is fully #ustified in his action. %8. In order to appreciate that !hat are the necessary conditions for in o1ing (ection @' are L a/ The state of things belie ed to e.ist !ould, if true, ha e #ustified the act doneN b/ the mista1e must be reasonableN and c/ the mista1e must relate to fact and not to la!. The classic case !hich is a ailable on the sub#ect is Le7e*<s Case (1 9ale !+C+?2). Ce et !as indicted for the death of Frances Freeman, the case !as that 9illiam Ce et being in bed and asleep in the night. *is ser ant hired Frances Freeman to help her to do her !or1. At 1%.&& of the cloc1 in the night, the ser ant Frances though she heard thie es brea1ing open the door. (he immediately rushed to her master and informed him that she thought thie es !ere brea1ing open the door The master rising suddenly and ta1ing a rapier ran do!n suddently. In the mean!hile Frances hid herself in the buttery lest she should be disco ered.

Armed Forces Law Journal 2012 (1) 1 Mean!hile Ce et"s !ife also cried out to her husband. Ce et runs into the buttery in the dar1, not 1no!ing Frances but thin1ing her to be a thief and hit her !ith rapier. Frances died instantly. It !as resol ed that neither it is murder nor manslaughter for felony. %@. The ratio is that the offender shall be deemed to ha e acted under that state of facts !hich he belie ed in good faith and on a reasonable ground belief such act cannot be treated to be a murder under (ection 0&% of I:C. %<. (imilarly, sentinel stri1es, or shoots other person, ta1ing him to be an enemy his ignorance of the person is e.cuseth his offence. The e.amples can be multiplied that !here a man thin1s that burglar is hiding and 1ills him, but in fact, it happens to be a member of his family. It has been held that no such offence !as committed. %'. *on"ble (upreme Court in the case of (tat of 4rissa . Bhagaban Bari1 -AIR 1'<@ (C 1%8)/ obser ed that under (ection @' of the Indian :enal Code the onus to establish the facts to sustain the plea of mista1e of facts lay on the accused and he had to establish his plea of reasonable probability or, in other !ords, on preponderance of probability either by adducing e idence or by cross>e.amining the prosecution !itnesses, if it is established, then, in gi en facts and circumstances the benefit of (ection @' of the Indian :enal Code can be e.tended to the accused. That is acted under mista1e of fact, i..e., 2 an -ones* and reasona,le ,el.e6 .n *-e e5.s*ence o6 c.rcums*ances 6 !hich, if pro ed, !ould ma1e the act for !hich the accused is indicted an innocent act. Their Cordships" also held that good faith re=uires not logical infallibility but due care and attention. The =uestion of good faith is al!ays a =uestion of fact to be determined in accordance !ith the pro ed facts and circumstances of each case. Their Cordships" =uoted from SRatanlal and 3hira#lal"s Ca! of Crimes, %0 rd edn. :.1'' obser ed that 2 S .s*a8e< .s no* mere 6or3e*6ulness+ I* .s a sl.4 Pmade& no* ,( des.3n& ,u* ,( m.sc-ance<H+N Their Cordships further =uoted from SRussel on Crime Eol.1 :.@8 that the concept of mista1e of fact is tersely stated thusL M@-en a 4erson .s .3noran* o6 *-e e5.s*ence o6 rele7an* 6ac*s or m.s*a8en as *o *-em& -.s conduc* ma( 4roduce -arm6ul resul*s w-.c- -e ne.*-er .n*ended nor 6oresaw+N The la! has been stated by the Russel on Crime is L 2Mista1e can be admitted as

2 Armed Forces Law Journal 2012 (1) a defence pro ided -1/ that the state of things belie ed to e.ist !ould, if true, ha e #ustified the act done, and -%/ the mista1e must be reasonable, and -0/ that the mista1e relates to fact and not to la!.6 0&. Therefore, in this bac1ground of the state of legal position it transpires that, in fact, the petitioner under the bona fide mista1e of la! belie ed that the intruder is person non 'rata +*e called out to identify, but he did not do so, later reali+ing that he happened to be his ;uard Commander. Therefore, his bona fide plea, on his part that he is under duty to caution from the :ost, it !as not !ith any malice. It !as a bona fide e.ercise in good faith for the benefit of security !hich !as entrusted to him. This !as bona fide mista1e of fact and petitioner cannot be hauled>up or charged for murder of his ;uard Commander. 01. As mentioned abo e, from the bac1ground that incident too1 place in Army (chool, at (rinagar, !here the conditions are hostile and in such hostile condition no one can ta1e chance. It !as obser ed in the order of the Court>Martial that there !as a light and he could ha e identified the deceased. *e fired fi e shots and he did not sho! any repentance. These are all factors !hich had been ta1en into consideration by coming to the conclusion that the accused is guilty. It is that there !as light of bulb, but it !as not sufficient light to identify the deceased at distance. (econdly, the incumbent had co ered his head by the hood of the coat. Therefore, it !as not possible for the accused to identify him. (ince it !as a ery sensiti e area, the petitioner could not ha e ta1en any chance. 9hen ga e a caution and as1ed the intruder to identify by his pass!ord, but, still there !as no response. ,o !itness has been produced by the prosecution to sho! that at the rele ant time !hen caution !as gi en by the accused from the post there !as response from the ;uard Commander or *a ildar$Gphol ;ul+ar (ingh -deceased/. *ad there been some e idence to sho! that at the rele ant time !hen the caution !as gi en by the accused the deceased responded. *ad he responded things !ould ha e been different. But no e idence had been led by the prosecution to sho! that after the caution gi en by the accused any response !as made by the deceased. There is ample e idence to establish that the accused did in good faith. 9hat is e.pected by him to gi e caution to the intruder by t!ice calling 2 tham$ and third time as1ing the intruder to disclose his pass!ord. *e had ta1en care but despite this there !as no response. Therefore, the action of the accused !as fully #ustified and co ered by the general e.ception under (ection @' of the Indian :enal Code. 0%. In Ra# Aapoor obser ed as under L> . Ca.man -AIR 1'<& (C 8&)/ *onNbls (upreme Court

Armed Forces Law Journal 2012 (1) 1 2#urisprudentially ie!ed, an act may be an offence, definitionally spea1ing but a forbidden act may not spell ine itable guilt if the la! itself declares that in certain special circumstances it is not to be regarded as an offence. The chapter on ;eneral B.ceptions operates in this pro ince. (ection @' of :enal Code ma1es an offence a non>offence. 9henH 4ny !hen the offending act is actually #ustified by la! or is bona fide beliefed by mista1e of fact to be so #ustifiedVVVVV6 00. In the case of Bha!oo Di a #i . Mul#i 3ayal -ICR 1<<< -Eol.1% Bombay page 0@@/ it !as obser ed that a police constable !as on duty near the Arthur Cra!ford Mar1et. *e sa! the complainant carrying under his arm three pieces of cloth. (uspecting that the cloth !as stolen property, he !ent up to the complainant and =uestioned him. Complainant stated that the cloth !as made in Bngland. The acused, noticing that each piece bore ;u#arathi mar1s and not 1no!ing that such mar1s are placed on Bnglish>made goods, concluded that this statement !as false and had been stolen. *e too1 hold of one of the pieces of the cloth in order to e.amine closely. There !as a scuffle bet!een them for the possession of the cloth. The accused arrested the complainant and too1 him to a Buropean Inspector. *e arrested the complainant because he had assaulted him. The complainant lodged a complaint before the :residency Magistrate, charging the accused !ith !rongful confinement, offences punishable under (ections 071 and 07% of the Indian :enal Code. The defence !as that the complainant had assalted the accused, therefore, he arrested and 1ept in confinement. Magistrate found no #ustification and con icted the accused. *igh Court held that the con iction is !rong and obser ed that there !as honest suspicion that the cloth in the possession of the complainant !as stolen property, !as #ustified in putting =uestions to the complainant the ans!ers !ere not, in his opinion, to be satisfactory. Therefore, he acted bona fidely in #ustifying in detaining the accused. 07. In 9aryam (ingh E Bmperor -AIR 1'%8 Cahore :age ,o.))7/ the accused assaulted a man belie ing him to be a ghost and the assault pro ed fatal. Their Cordships held that it is neither guilty under (ection 0&% nor (ection 0&7 nor (ection 0&7 A and ga e them a benefit of mista1e of fact. 0). in Bonda Aui . Bmperor IAIR -0&/ 1'70 :atna 87J *igh Court held that accused at time of assault belie ing in good faith that person assaulted !as ghost and not li ing human being. Fatal in#uries caused resulting in death. Their Cordaships e.tended the benefit of (ection @'.

2 Armed Forces Law Journal 2012 (1) 08. In (tate of 4rissa . Ahra ;hasi I1'@< Crl. C. D 10&)J 4rissa *igh Court obser ed that death caused by shooting arro! under bona fide belief that ob#et aimed at !as animal, !hereas, it !as a man. Their Cordships e.tended the benefit of (ection @' of I:C to the accused and ac=uitted him from all offences. 0@. In Chirangi . (tate IAIR 1')% ,agpur %<%J it !as obser ed that the accused in delusion 1illed his o!n son belie ing him to be tiger. It !as held that he is entitled to benefit of (ection @' of the I:C. 0<. Therefore, in this bac1ground of the position of la!, the matter is crystal clear that incumbent fired on fateful night !hile discharging his duties as manning the post and acted bonafidely in state of facts. *e has ta1en sufficient care and caution to !arn the ictim, still ictim did not respond, therefore the accused !as fully #ustified in firing, !hich pro ed fatal. *ence, he cannot be con icted under (ection 0&% or (ection 0&7. *e is neither guilty of murder nor acted in rash and negligent manner. In the place li1e Army (chool at (rinagar, in height of insurgency, if proper care and caution is not ta1en, it could cause ha oc. It is unfortunate that ictim happens to be his colleague ;uard Commander. Therefore, the accused cannot be held under (ection 0&% and accordingly !e allo! this petition$appeal and set aside the con iction of the accused and ac=uitted him of alls the charges. 0'. The accused may be released forth!ith, if not re=uired in any other case. The 9rit :etition $ Appeal allo!ed.

Su4erscr.4* re6erence (a) 1@ -i/

I*em (,)

4rder of re>instatement by :rincipal Bench of an officer tried under (ec 8& of the AA r.$! B.plosi e (ubstances Act, 1'&< in TA %78$&' > Reported in 2011 (2) AFTLJ 1F2 Te5*0E5*rac* (c ) IN T9E AR E# FORCES TRI$%NAL& !RINCI!AL $ENC9 NE@ #EL9I+ T+A+ No+ 2?C o6 200E QAr.s.n3 ou* o6 @!(C) No+ 2C?E o6 1EFE o6 #el-. 9.3- Cour*R

Armed Forces Law Journal 2012 (1) 01s* A4r.l& 2010 9ON<$LE R+ J%STICE A+ >+ AT9%R& C9AIR!ERSON 9ON<$LE LT+ "EN+ + L+ NAI#%& A# INISTRATI:E E $ER Ma#or (.(. Chillar Eersus Gnion of India 5 4rs. V..VVVVVVV..Respondents VVVVVVVVV..V:etitioner

Sec 1 (7)& ?& CE o6 t-e Arm( Ac*& 1E/0& Rules 22& 21& 2?& 1F0 o6 *-e Arm( Rules& 1E/?& Sec / o6 *-e E54los.7e Su,s*ance Ac*& 1E0F A Re3ula*.on ?0E o6 #e6ence Re3ula*.ons - "eneral Cour* ar*.al :etitioner !as charged u$s 8' of AA and in Court Martial he !as found guilty > dismissed from ser ice. 9eld) >> The gra amen of charge is possession of a particular e.plosi e substance, !hen the details of the e.plosi e substance is not found in Charge (heet or established, the !hole charge fails on the face of it. This goes to the root of the matter and the !hole prosecution fails on this account > finding guilty of the accused by the Court Martial authorities is totally illegal and unsustainable in la!. 9e ha e seen number of Court Martial cases, !hich ha e come before this Tribunal and most of the elementary mista1es !ere committed in conduct of the criminal trials under Court Martial proceedings. ,o! a proper appeal lies against the court martial proceedings before this Tribunal, the Tribunal has to e.amine all the procedure as !ell as substance of the criminal trial li1e in Court of Appeal, including appreciation of the e idence and our e.perience is that the trials in the Court Martial proceedings relating to ci il offence li1e murder or other penal code offences or offences under the other acts are not properly conducted li1e a regular criminal trial. The result is that they !ill turn into ac=uittal. Therefore, no! in changed situation, !hen the Court Martial proceedings are amenable to regular appeal under the Act, the authorities ha e to underta1e the o erall re ie! of conducting Court Martial trials by a competent prosecutor, !ho has e.perience of trial as !ell as the :residing 4fficer should also be a trained person. 9e find that charge has not been brought home against the accused, therefore, he is entitled to be ac=uitted > Application Allo!ed.

Su4erscr.4*

I*em

2 re6erence (a) 1<

Armed Forces Law Journal 2012 (1) (,) Army Rule 07 -1/

Te5*0E5*rac* (c ) 9arning of accused for trial L -1/ The accused before he is arraigned shall be informed by an officer of e ery charge for !hich he is to be tried and also that, on his gi ing the names of !itnesses or !hom he desires to call in his defence, reasonable steps !ill be ta1en for procuring their attendance, and those steps shall be ta1en accordingly. The inter al bet!een his being so informed and his arraignment shall not be less than ninety>si. hours or !here the accused person is on acti e ser ice less than t!enty>four hours. Su4erscr.4* I*em re6erence (,) (a) 1' Ape. Court sets aside Army Court Martial procedure since '8 hours had not elapsed after issuance of charge sheet > CA ,o.81<1$%&&% Te5*0E5*rac* (c) I, T*B (G:RBMB C4GRT 4F I,3IA CIEIC A::BCCATB DGRI(3ICTI4, CIEIC A::BAC ,4.81<1 4F %&&% B, Agra!al, Aftab Alam and R M Codha, D. D. (eptember 18, %&&' Gnion of India 5 4rs. A A :andey VVVVVVVVVVVVV..V.Appellants Eersus VVVVVVVVVVVVV.. Respondent DG3;MB,T R M C43*A, D The =uestion !hich falls to be determined in this appeal by special lea e is L Is the pro ision in Rule 07 of the Army Rules, 1')7 that the inter al bet!een the accused being informed of charge for !hich he is to be tried and his arraignment shall not be less than ninety>si. hours mandatoryH

Armed Forces Law Journal 2012 (1) 1 %. Mr. A A :andey K respondent K !as enrolled in Army on (eptember 1<, 1'<@. (ubse=uently, he !as posted to 1% Corps (ignal Regiment -ARB,/ Gnit on August %1, 1''7 at Dodhpur. The respondent remained on casual lea e for thirteen days from (eptember ), 1'') to (eptember 1@, 1''). 9hen he resumed his duty on (eptember %0, 1'') he brought !ith him one country made pistol and one round of small ammunition to the unit !hich he sold to signalman D , ,atasimlu of the same unit. D , ,arasimlu !hile lea ing the unit !as caught by the regimental police carrying the abo e !eapon and one round of small ammunition in one bag. 4n being =uestioned, D , ,arasimlu told that he had purchased the !eapon and one round of small ammunition from the respondent. The respondent and D , ,arasimlu !ere placed in closed arrest !ith effect from (eptember %0, 1''). (ummary of e idence against both the persons is said to ha e been recorded by Ma#or (udhir *anda of 1% Corps (ignal Regiment. 0. The respondent !as charged ide charge>sheet dated 4ctober %8, 1'') !hich !as ser ed upon him on ,o ember %, 1'') at 1<&& hours. *e !as informed that he !ould be tried by ;eneral Court Martial on ,o ember 8, 1'') at 110& hrs. 7. 4n ,o ember 8, 1''), ;eneral Court Martial commenced its proceedings at 1&1& hours !herein the respondent is said to ha e pleaded guilty of both the charges. Based on that, the respondent !as a!arded punishmentsL -i/ to suffer rigorous imprisonment for three years and -ii/ dismissal from ser ice. ). The respondent aggrie ed thereby submitted a petition under (ection 187 -%/ of the Army Act, 1')& before the Chief of the Army (taff for setting aside the findings and sentence of the ;eneral Court Martial held on ,o ember 8, 1''). 8. The Chief of Army (taff re#ected the petition submitted by the respondent on 3ecember %0, 1''8 and the respondent !as informed of the said decision on 3ecember 01, 1''8. @. The respondent then approached the *igh Court of Dudicature for Ra#asthan at Dodhpur praying therein for issuance of appropriate !rit, order or direction to =uash the ;eneral Court Martial :roceedings dated ,o ember 8, 1'') and the punishments a!arded to him and to reinstate him in ser ice !ith effect from ,o ember 8, 1'') !ith all conse=uential benefits. <. The present appellants contested the !rit petition by filing a counter in opposition before the *igh Court.

Armed Forces Law Journal 2012 (1)

'. The Cearned (ingle Dudge allo!ed the !rit petition on 3ecember 1''' and =uashed and set aside ;eneral Court Martial proceedings held on ,o ember 8, 1'') as !ell as the order of punishment, 1&. The present appellants preferred intra court appeal !hich !as found de oid of any merit and came to be dismissed on April 11, %&&1. *ence the present appeal by special lea e. 11. Mr. Mohan Dain, Cearned Additional (olicitor ;eneral strenuously urged that the inter al of ninety>si. hours pro ided in Rule 07 is directory and, in ay case, the respondent ha ing pleaded guilty of both the charges, no pre#udice can be said to ha e been caused to him by non>compliance of the time pro ided therein. In support of his submissions, he hea ily relied upon a decision of this Court in the case of (tate Ban1 of :atiala and 4thers ( A (harma 1 1%. Rule 07of the Army Rules, 1')7 !ith !hich !e are concerned reads as follo!s L 207. @arn.n3 o6 Accused 6or Tr.al)- -1/ The accused before he is arraigned shall be informed by an officer of e ery charge for !hich he is to be tried and also that, on his gi ing the names of !itnesses or !hom he desired to call in his defence, reasonable steps !ill be ta1en for procuring their attendance, and those steps shall be ta1en accordingly. The inter al bet!een his being so informed and his arraignment shall not be less than ninety>si. hours or !here the accused person is on acti e ser ice less than t!enty four hours. -%/ The officer at the time of so informing the accused shall gi e him a copy of the charge sheet and shall if necessary, read and e.plain to him the charges brought against him. If the accused desires to ha e it in a language !hich he understands, a translation thereof shall also be gi en to him. -0/ The officer shall also deli er to the accused a list of the names, ran1 and corps -if any/ of the officers !ho are to form the court and !here officers in !aiting are names, also of those officers in courts>martial other than summary courts>martial. -7/ If it appears to the court that the accused is liable to be pre#udiced at his trial by any non>compliance !ith this rule, the court shall ta1e steps and if necessary, ad#ourn to a oid the accused being so pre#udiced.6 10. The 1ey !ords used in Rule 07 from !hich the intendment is to be found are

Armed Forces Law Journal 2012 (1) 1 2shall not be less than ninety>si. hours6. As the respondent !as not in acti e ser ice at the rele ant time, !e are not concerned !ith the later part of that rule !hich pro ides for inter al of t!enty four hours for the accused in acti e ser ice. 1 -1''8/ 0 (CC 087 17. In his classic !or1, 2:rinciples of (tatutory Interpretation6 -se enth edition/, Dustice ; : (ingh has =uoted passage of Cord Campbell in Ci erpool Borough Ban1 E Turner % that read L6no uni ersal rule can be laid do!n as to !hether mandatory enactments shall be considered directory only or obligatory !hether implied nullification for disobedience. It is the duty of Courts of #ustice to try to get at the real intention of Cegislature by carefully attending to the !hole scope of the statute to be considered.6 1). In Cra!ford"s (tatutory Construction -1'<' reprint/, the follo!ing e.cerpt from :eople . (utcliffe 0 is =uoted L 2It is a rule of statutory construction that !here a statute is framed in terms of command, and there is no indication from the nature or !ording of the act or the surrounding circumstances that it is to recei e a permissi e interpretation, it !ill be construed as pre>emptory.6 18. In his discussion on the sub#ect, 2Mandatory and 3irectory or :ermissi e 9ords6 Cra!ford in the afore>noticed treatise says L 24rdinarily the !ords Sshall" and Smust" are mandatory and the !or1 Smay" is directory, although they are often used inter> changeably in legislation. This use !ithout regard to their literal meaning generally ma1es it necessary f or the courts to resort to construction in order to disco er the real intention of the legislature. ,e ertheless, it !ill al!ays be presumed by the court that the legislature intended to use the !ords in their usual and natural meaning. If such a meaning, ho!e er, leads to absurdity, or great incon enience, or for some other reason is clearly contrary to the ob ious intention of the legislature, then !ords !hich ordinarily are mandatory in their nature !ill be construed as directory, or ice ersa. In other !ords, if the language of the statute, considered as a !hole and !ith due regard to its nature and ob#ect, re eals that the legislature intended the !ords Sshall" and Smust" to be directory, they should be gi en that meaning. (imilarly, under the same circumstances, the !ord Smay" should be gi en a mandatory meaning, and especially !here the statute concerns the rights and interest of the public, or !here third persons ha e a claim de jure that a po!er shall be e.ercised, or !hene er something is directed to be done for the sa1e of #ustice or the public good, or is necessary to sustain the statute"s constitutionality.

Armed Forces Law Journal 2012 (1)

Tet, the construction of mandatory !ords as directory and directory !ords as mandatory should not be lightly adopted. The opposite meaning should be une=ui ocally e idenced before it is accepted as the true meaningN other!ise, there is considerable danger that the legislati e intent !ill be !holly or partially defeated.6 1@. Cra!ford further says in his treatise that prohibiti e or negati e !ords can rarely, if e er, be directory V..,egati e, prohibitory and e.clusi e !ords or terms are indicati e of the legislati e intent that the statute is to be mandatory. 1<. In Thomson s (timpson 7 , Cord :ar1er C D -Fueen"s Bench 3i ision/ !hile dealing !ith the !ording of (ection 18 of the Rent Act, 1')@ !hich pro ided that no notice by a landlord or a tenant to =uit any premises let -!hether before or after the commence of the Act/ as a d!elling shall be alid unless it is gi en not less than four !ee1s before the date of !hich it is to ta1e effect held that four !ee1s" notice contemplated in (ection 18 should be construed as four clear !ee1s. This is !hat Cord :ar1er, CD obser ed L 2V.. :arliament here, ho!e er, has gone further and used the !ords !hich ha e been interpreted in the past as pro iding for four clear !ee1s. Ci1e Bennett, D., in Re *ector 9haling, Ctd -1'0)/ All B.R.0&0, I thin1 that there ought to be certainty on this matter, and I prefer the ie! that the !ord should be construed as four clear !ee1s.6 1'. A Constitution Bench of this Court in M :entiah and others E Muddala Eeeramallappa and others ) construed the e.pression, Snot less than t!o>third of the !hole number of members6 in (ection @@ of *yderabad 3istrict Municipalities Act, 1')8 as follo!s L 2This section confers on the Committee an e.press po!er couched in a negati e form. ,egati e !ords are clearly prohibitory and are ordinarily used as a legislati e de ice to ma1e a statute imperati e. If the section is recast in an affirmati e form, it reads to the effect that the Committee shall ha e po!er to transfer any immo able property, if the conditions laid do!n under the section are complied !ith.6 %&. In Cachmi ,arain and 4thers E. Gnion of India and 4thers 8 this Court construed the e.pression, 2not less than three months" notice6 in (ection 8 -%/ of 3elhi Ca!s Act and held L

Armed Forces Law Journal 2012 (1) 1 28<. (ection 8-%/, as it stood immediately before the impugned notification, re=uires the (tate ;o ernment to gi e by notification in the 4fficial ;a+ette 2not less than 0 months" notice6 of its intention to add to or omit from or other!ise amend the (econd (chedule. The primary 1ey to the problem !hether a statutory pro ision is mandatory or directory, is the intention of the la!>ma1er as e.pressed in the la! itself. The reason behind the pro ision may be a further aid to the ascertainment of that intention. If the legislati e intent is e.pressed clearly and strongly in imperati e !ords, such as the use of 2must6 instead of 2shall6, that !ill itself be sufficient to hold the pro ision to be mandatory and it !ill not be necessary to pursue the en=uiry further. If the pro ision is couched in prohibiti e or negati e language, it can rarely be directory, the use of peremptory language in a negati e form is per se indicati e of the intent that the pro ision is to be mandatory. -Cra!ford, The Construction of (tatutes, pp )%0>%7/. *ere the language of sub>section -%/ of (ection 8 is emphatically prohibiti e, it commands the ;o ernment in unambiguous negati e terms that the period of the re=uisite notice must not be less than three months. 8'. In fi.ing this period of notice in mandatory terms, the legislature had, it seems ta1en into consideration se eral factors. According to the scheme of the Bengal Act, the ta. is =uantified and assessed on the =uarterly turno er. The period of not less than three months" notice conforms to that scheme and is intended to ensure that imposition of a ne! burden or e.emption from ta. causes least dislocation and incon enience to the dealer in collecting the ta. for the ;o ernment, 1eeping accounts and filing a proper return, and to the Re enue in assessing and collecting the same. Another ob#ect of this pro ision is that the public at large and the purchasers on !hom the incidence of the ta. really falls, should ha e ade=uate notice of ta.able items. The third ob#ect seems to be that the dealers and others li1ely to be affected by an amendment of the second (chedule may get sufficient time and opportunity for ma1ing representations, ob#ections or suggestions in respect of the intended amendment.. The dealers ha e also been ensured ade=uate time to arrange their sales, ad#ust their affairs and to get themsel es registered or get their licenses amended and brought in accord !ith the ne! imposition or e.emption. @&. Ta1ing into consideration all these matters, the legislature has, in its #udgment solemnly incorporated in the statute, fi.ed the period of the re=uisite notice as 2not less than three months6 and !illed this obligation to be absolute. The span of notice !as thus the essence of the legislati e mandate.

Armed Forces Law Journal 2012 (1) The necessity of notice and the span of notice both are integral to the scheme of the pro ision. The sub>section cannot therefore be split up into essential and non>essential components, the !hole of it being mandatory. The rule in Ra+a Buland (ugar Co.6s case -supra/ has therefore no application.6

%1. In Mannalal Ahetan and 4thers . Aedar ,ath Ahetan and 4thers @ !hile dealing !ith (ection 1&< of the Companies Act, 1')8 a three Dudge Bench of this Court held L 21@. In Ra+a Buland (ugar Co. Ctd. E Municipal Board, Rampur I-1'8)/ 1 (CR '@&J this Court referred to arious tests for finding out !hen a pro ision is mandatory or directory. The purpose for !hich the pro ision has been made, its nature, the intention of the legislature in ma1ing the pro ision, the general incon enience or in#ustice !hich may result to the person from reading the pro ision one !ay or the other, the relation of the particular pro ision to other pro isions dealing !ith the same sub#ect and the language of the pro ision are all to be considered. :rohibition and negati e !ords can rarely be directory. It has been aptly stated that there is one !ay to obey the command and that is completely to refrain from doing the forbidden act. Therefore, negati e, prohibitory and e.clusi e !ords are indicati e of the legislati e intent !hen the statute is mandatory. -(ee Ma.!ell on Interpretation of (tatutes, 11th Bdn., p. 08% se=.L Cra!fordL statutory Construction, Interpretation of Ca!s, p.)%0 and (eth Bi1hra# Daipuria . Gnion of India I-1'8%/ % (CR <<&, <'0><'7J. 1<. The *igh Court said that the pro isions contained in (ection 1&< of the Act are directory because non>compliance !ith (ection 1&< of the Act is notdeclared an offence$ The reason gi en by the *igh Court is that !hen the la! does not prescribe the conse=uences or does not lay do!n penalty for non compliance !ith the pro ision contained in (ection 1&< of the Act , the pro ision is to be considered as directory. The *igh Court failed to consider the pro ision contained in (ection 8%'-A/ of the Act. (ection 8%'-A/ of the Act prescribed the penalty !here no specific penalty is pro ided else!here in the Act. It is a =uestion of construction in each case !hether the legislature intended to prohibit the doing of the act altogether, or merely to ma1e the person !ho did it liable to pay the penalty. 1'. 9here a contract e.press or implied, is e.pressly or by implication forbidden by statute, no court !ill lend its assistance to gi e it effect. -(ee

Armed Forces Law Journal 2012 (1) 1 Mellis . (hirley C.B.I-1<<)/ 18 FB3 778/J. A contract is oid if prohibited by a statute under a penalty, e en !ithout e.press declaration that the contract is oid because such a penalty implies a prohibition. The penalty may be imposed !ith intent merely to deter persons from entering into the contract or for the purposes of re enue or that the contract shall not be entered into so as to be alid at la!. A distinction is sometimes made bet!een contracts entered into !ith the ob#ect of committing an illegal act and contracts e.pressly or impliedly prohibited by statute. The distinction is that in the former class one has to loo1 and see !hat acts the statute prohibitsN it does not matter !hether or not it prohibits a contractN if a contract is made to do a prohibited act, that contract !ill be unenforceable. In the latter class, one has to consider not !hat act the statute prohibits, but !hat contracts it prohibits. 4ne is not concerned at all !ith the intent of the parties, irf the parties enter into a prohibited contract, that contract is unenforceable. -(ee (t.Dohn (hipping Corporation . Doseph Ran1 I-1')@/ 1 FB %8@/ -(ee also *alsbury"s Ca!s of Bngland, Third Bdn., Eol,.<.p 171./ %&. It is !ell established that a contract !hich in ol es inits fulfilment the doing of an act prohibited by statute is oid. The legal ma.im A pactis privatorum publico juri non dero'atur means that pri ate agreements cannot alter the general la!. 9here a contract, e.press or implied, is e.pressly or by implication forbidden by statute, no court can lend its assistance to gi e it effect. -(ee Mellis s. (hirley C.B./ 9hat is done in contra ention of the pro isions f an Act of the legislature cannot be made the sub#ect of an action.
% 0

1<81 0&CD Ch 0@' @ ,.T.(.-%/ 701 7 -1'8&/ 0 All B.R. )&& ) AIR 1'81 (C 11&@ 8 -1'@8/ % (CC ')0 @ -1'@@/% (CC 7%7 %1.If anything is against la! though it is not prohibited in the statute but only a penalty is anne.ed the agreement is oid. In e ery case, !here a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unla!ful, because it is not intended that a statute !ould inflict a penalty for a la!ful act. %%. :enalties are imposed by statute for t!o distinct purposes L -1/ for the protection of the public against fraud, or for some other ob#ect of public

Armed Forces Law Journal 2012 (1) policyN -%/ for the purpose of securing certain sources of re enue either to the (tate or to certain public bodies. If it is clear that a penalty is imposed by statute for the purpose of pre enting something from being done on some ground of public policy, the thing prohibited, if done, !ill be treated as oid, e en though the penalty if imposed is not enforceable. %0. The pro isions contained in (ection 1&< of the Act are for the reasons indicated earlier mandatory. The *igh Court erred in holding that the pro isions are directory.6

%%. The principle seems to be fairly !ell settled that prohibiti e or negati e !ords are ordinarily indicati e of mandatory nature of the pro isionN although not conclusi e. The Court has to e.amine carefully the purpose of such pro ision and the conse=uences that may follo! from non>obser ance thereof. If the conte.t does not sho! nor demands other!ise, the te.t of a statutory pro ision couched in a negati e form ordinarily has to be read in the form of command. 9hen the !ord 2shall6 is follo!ed by prohibiti e or negati e !ords, the legislati e intention of ma1ing the pro ision absolute, peremptory and imperati e becomes loud and clear and ordinarily has to be inferred as such. There being nothing in the conte.t other!ise, in our #udgment, there has to be clear ninety>si. hours inter al bet!een the accused being charged for !hich he is to be tried and his arraignment and inter al time in Rule 07 must be read absolute. There is a purpose behind this pro isionN that purpose is that before the accused is called upon for trial, he must be gi en ade=uate time to gi e a cool thought to the charge or charges for !hich he is to be tried, decide about his defence and as1 the authorities, if necessary, to ta1e reasonable steps in procuring the attendance of his !itnesses. *e may e en decide not to defend the charge-s/ but before he decides his line of action, he must be gi en clear ninety>si. hours. A trial before ;eneral Court Martial entails gra e conse=uences. The accused may be sentenced to suffer imprisonment. *e may be dismissed from ser ice. The conse=uences that may follo! from non>obser ance of the time inter al pro ided in Rule 07 being gra e and se ere, !e hold, as it must be, that the said pro ision is absolute and mandatory. If the inter al period pro ided in Rule 07 is held to be directory and its strict obser ance is not insisted upon, in a gi en case, an accused may be called upon for trial before ;eneral Court Martial no sooner charge$charges for !hich he is to be tried are ser ed. (urely, that is not the intentionN the timeframe pro ided in Rule 07 has definite purpose and ob#ect and must be strictly obser ed. Its non>obser ance itiates the entire proceedings.

Armed Forces Law Journal 2012 (1) 1 %0. The Cearned Additional (olicitor ;eneral hea ily relied upon a decision of this Court in (tate Ban1 of :atiala !herein this Court summaries the legal position relating to disciplinary proceedings and orders of punishment thus L 200. 9e may summarise the principles emerging from the abo e discussion. -These are by no means intended to be e.hausti e and are e ol ed 1eeping in ie! the conte.t of disciplinary en=uiries and orders of punishment imposed by an employer upon the employee/L -1/ An order passed imposing a punishment on an employee conse=uent upon a disciplinary $ departmental en=uiry in iolation of the rules$regulations$statutory pro isions go erning such en=uiries should not be set aside automatically. The Court of the Tribunal should en=uire !hether -a/ the pro ision iolated is of a substanti e nature or -b/ !hether it is procedural in character. -%/ A substanti e pro ision has normally to be complied !ith as e.plained hereinbefore and the theory of substantial compliance or the test of pre#udice !ould not be applicable in such a case. -0/ In the case of iolation of a procedural pro ision, the position is thisL procedural pro isions are generally meant for affording a reasonable and ade=uate opportunity to the delin=uent officer$employee. They are, generally spea1ing, concei ed in his interest. Eiolation of any and e ery procedural pro ision cannot be said to automatically itiate the en=uiry held or order passed. B.cept cases falling under K2no notice6, 2no opportunity6 and 2no hearing6 categories, the complaint of iolation of procedural pro ision should be e.amined from the point of ie! of pre#udice, i+., !hether such iolation has pre#udiced the delin=uent officer$employee in defending himself properly and effecti ely. If it is found that he has been so pre#udiced, appropriate orders ha e to be made to repair and remedy the pre#udice including setting aside the en=uiry and$or the order of punishment. If no pre#udice is established to ha e resulted therefore, it is ob ious, no interference is called for. In this connection, it may be remembered that there may be certain procedural pro isions !hich are of a fundamental character, !hose iolation is by itself proof of pre#udice. The Court may not insist on proof of pre#udice in such cases. As e.plained in the body of the #udgment, ta1e a case !here there is a pro ision e.pressly pro iding that after the e idence of the employer$go ernment is o er, the employee shall be gi en an opportunity to lead defence in his e idence, and in a gi en case, the en=uiry officer does not gi e that opportunity in spite of the delin=uent officer$employee as1ing for it. The pre#udice is self>e ident. ,o proof of pre#udice as such need be called for in such a case. To repeat, the test is one of pre#udice, i.e., !hether the person has recei ed a fair hearing considering all

2 Armed Forces Law Journal 2012 (1) + things. ,o! this ery aspect can also be loo1ed at from the point of ie! of directory and mandatory pro isions, if one is so inclined. The principle stated under -7/ herein belo! is only another !ay of loo1ing at the same aspect as is dealt !ith herein and not a different or distinct principle. -7/ -a/ In the case of a procedural pro ision !hich is not of a mandatory character, the complaint of iolation has to be e.amined from the standpoint of substantial compliance. Be that as it may, the order passed in iolation of such a pro ision can be set aside only !here such iolation has occasioned pre#udice to the delin=uent employee. -b/ In the case of iolation of a procedural pro ision !hich is of a mandatory character, it has to be ascertained !hether the pro ision is concei ed in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen !hether the delin=uent officer has !ai ed the said re=uirement, either e.pressly or by his conduct. If he is found to ha e !ai ed it, then the order of punishment cannot be set aside on the ground of the said iolation, If, on the other hand, it is found that the delin=uent officer$employee has not !ai ed it or that the pro ision could not be !ai ed by him, then the Court or Tribunal should ma1e appropriate directions -include the setting aside of the order of punishment/ 1eeping in mind the approach adopted by the Constitution Bench in B Aaruna1ar I-1''0/ 7 (CC @%@J. The ultimate test is al!ays the same, i+., test of pre#udice or the test of fair hearing, as it may be called. -)/ 9here the en=uiry is not go erned by any rules$regulations$statutory pro isions and the only obligation is to obser e the principles of natural #ustice K or, for that matter, !here er such principles are held to be implied by the ery nature and impact of the order$action K the Court or the Tribunal should ma1e a distinction bet!een a total iolation of natural #ustice -rule of audi alteram partem/ and iolation of a facet of the said rule, as e.plained in the body of the #udgment . In other !ords, a distinction must be made bet!een 2no opportunity6 and 2no ade=uate opportunity6 i.e., bet!een 2no notice6$6no hearing6 and 2no fair hearing6. -a/ In the case of former, the order passed !ould undoubtedly be in alid -one may call it S oid" or a nullity if one chooses to/. In such cases, normally, liberty !ill be reser ed for the Authority to ta1e proceedings afresh according to la!, i.e., in accordance !ith the said rule - audi alteram partem/. -b/ But in the latter case, the effect of iolation -of a facet of the rule of audi alteram parterm/ has to be e.amined from the standpoint of pre#udiceN in other !ords, !hat the Court or Tribunal has to see is !hether in the totality of the circumstances, the delin=uent officer$employee did or did not ha e a fair hearing and the orders to be made shall depend upon the ans!er to

Armed Forces Law Journal 2012 (1) 1 the said =uery. IIt is made clear that this principle -,o.)/ does not apply in the case of rule against bias, the test in !hich behalf are laid do!n else!here.J -8/ 9hile applying the rule of audi alteram partem -the primary principle of natural #ustice/ the Court$Tribunal$Authority must al!ays bear in mind the ultimate and o erriding ob#ecti e underlying the said rule, i+., to ensure a fair hearing and to ensure that there is no failure of #ustice. It is this ob#ecti e !hich should guide them in applying the rule to arying situations that arise before them. -@/. There may be situations !here the interest of (tate or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may ha e to balance public$(tate interest !ith the re=uirement of natural #ustice and arri e at an appropriate decision.6 %7. The #udgment of this Court in (tate Ban1 of :atiala hardly helps the appellants. 9e ha e already held that the pro ision contained in Rule 07 regarding inter al of ninety>si. hours from the ser ice of the charge$charges for !hich an accused is to be tried and his arraignment is mandatory. This situation !ould be co ered by sub>para 7-b/ of para 00 as afore=uoted. %). That the respondent !as informed of the charges for !hich he !as to be tried by ;eneral Court Martial on ,o ember %, 1'') at 1<&& hours is not in dispute. Although the respondent !as informed that he !ould be tried by ;eneral Court Martial on ,o ember 8, 1'') at 11 0& hours but the proceedings of the ;eneral Court Martial clearly sho! that the trial commenced at 1&1& hors. That inter al bet!een the respondent ha ing been informed of the charges for !hich he !as to be tried and his arraignment !as less than ninety>si. hours is an admitted position. Merely because the respondent pleaded guilty is immaterial. The mandatory pro ision contained in Rule 07 ha ing been breached, the 3i ision Bench cannot be said to ha e erred in affirming the order of the (ingle Dudge setting aside the proceedings of the ;eneral Court Martial. %8. In the result, the appeal must fail and is dismissed !ith no order as to costs. Su4erscr.4* re6erence (a) %& I*em (,) *on"ble Ape. Court"s ruling on disproportionate punishment modification of sentence from Sdismissal" to Sdischarge" > BM. ,AIA (AR3AR (I,;*

Armed Forces Law Journal 2012 (1) Es.G,I4, 4F I,3IA A,3 4T*BR( Te5*0E5*rac* (c ) Reddy, A. .Dayachandra -#/ and :andian, (. R. -#/ date of DudgmentL &0$&)$1''1

BM. ,AIA (AR3AR (I,;* Es. G,I4, 4F I,3IA A,3 4T*BR( ,.,. ;upta and Ra#i 3utta for the Appellant. D.3. Dain, Maninder (ingh and Ms. (ushma (uri for the Respondents. CITATI4,L 1''% AIR 71@, 1''1 (CR -%/ 8@8, 1''1 (CC -0/ %10, DT 1''1 -0/ 1 , 1''1 (CACB -1/ <'' ACTL Army Act, 1')&L (ections 80, @1 and @%>(ummary Court>Martial> :unishment>A!ard of>To be commensurate !ith nature and degree of offence> Army Da!an carrying e.tra li=uor bottles !ithout permit !hile proceeding on lea e>A!ard of punishment of 0 monthsY R.I. and dismissal from ser ice> 9hether arbitrary and e.cessi e. *BA3,4TBL The appellant, !ho had put in 1& years of ser ice as Da!an in the Army, !as sentenced to 0 monthsY R.I. and dismissed from ser ice by the (ummary Court>Martial, on the charge that his action in carrying 1% bottles of li=uor !hile proceeding on lea e to his home to!n !as contrary to the orders on the sub#ect. The appeal preferred by the appellant, pointing out the irregularities committed in the summary trial, and pleading that he had unblemished record of ser ice, !as also re#ected by the higher authority. The !rit :etition filed by the appellant !as also summarily re#ected by the *igh Court. In the appeal before this Court, on behalf of the appellant it !as contended that the summary trial !as itiated on account of se eral irregularities committed in conducting the trial, and the sentence a!arded to him !as !holly disproportionate to the offence committed by him. 3isposing of the appeal, and remanding the case to the (ummary Court Martial on the =uestion of sentence, this Court 9EL# 1. The trial is not itiated and no pre#udice has been caused to the appellant, inasmuch as from the records it is found that the e idence has been

Armed Forces Law Journal 2012 (1) 1 duly recorded and, admittedly, the appellant !as carrying e.tra se en bottles of li=uor !ithout the necessary permit. *o!e er, there is an element of arbitrariness in a!arding se ere punishments and, therefore, an interference is called for and the matter has to be remanded on the =uestion of a!arding any of the lesser punishments pro ided in the Army Act. I8@'B. 8<0;>*J 8@@ %.1 (ection @% of the Army Act, 1')& pro ides that the court>martial may, on con icting a person sub#ect to the Act, of any offences specified in (ections 07 to 8< inclusi e, a!ard either the particular punishment !ith !hich the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lo!er in the scale set out in (ection @1, regard being had to the nature and degree of offence. I8<&C>3J %.% In the instant case, in the charge sheet it is merely stated that the action of the appellant in carrying 1% bottles of li=uor !hen he !as proceeding to home to!n !as against the orders on the sub#ect. But in the counter affida it it is stated that such an act of the appellant came !ithin the meaning of (ection 80 of the Act. This (ection may co er arious types of misconducts committed by !ay of an act or omission. It also pro ides for a!arding any other lesser punishment mentioned in the Act. Therefore, much depends on the nature of the act or omission of !hich the person is found guilty. I8<&B,BJ %.0 Admittedly, the appellant !as granted lea e!hen he !as proceeding to his home to!n. Bnroute he had to pass through a place !here prohibition !as in force. *e had a alid permit to carry ) bottles of li=uor and the e.tra @ bottles purchased from the Army Canteen itself. Gnless he had some permits or chits gi en by some higher authorities, he could not ha e purchased these e.tra bottles from the Canteen. *e !as ta1ing this li=uor to his home to!n to celebrate his brother>in>la!Ys marriage, but the local Ci il :olice chec1ed his baggage and confiscated the bottles as he had no alid permit to carry the e.tra bottles. I8@';>*, 8<&AJ %.7 Assuming that the offence committed by the appellant is co ered by the residuary (ection 80, but in a!arding the punishment, court>martial has to 1eep in ie! the spirit behind (ection @% and it has to gi e due regard to the nature and degree of the offence. (ection 80 pro ides for a!arding of any of the lesser punishments enumerated in (ection @1. In ie! of these pro isions of la! and ha ing regard to the nature and degree of the offence, the punishments a!arded to the appellant, namely, three monthsY R.I. and dismissal

2 Armed Forces Law Journal 2012 (1) from ser ice are se ere and are also iolati e of (ection @%. Bnds of #ustice !ill be sufficiently met if a lesser punishment as pro ided under (ection @1-f/ is a!arded to the appellant. I8<%B>F, 8<7FJ. %.) Accordingly, the punishments are set aside and the matter remanded to the court>martial !hich shall a!ard any of the lesser 8@< punishments ha ing due regard to the nature and circumstances of the case. Any detention suffered by the appellant after the orders of the court>martial !ill not be treated as a dis=ualification for being rein>stated into ser ice. I87<BJ Ran#it Tha1ur . Gnion of India and 4thers, I1'<@J 7 (CC 811 and Bhagat Ram . (tate of *imachal :radesh, I1'<0J % (CC 77%, relied on. Council of Ci il (er ice Gnions . Minister for the Ci il (er ice, I1'<7J0 AII BR '0), ')&, referred to DG3;MB,TL CRIMI,AC A::BCCATB DGRI(3ICTI4,L Criminal Appeal ,o. 8@ of 1''1. From the Dudgment and 4rder dated %@.11.1'<@ of the 3elhi *igh Court in Crl. 9. ,o. )%@ of 1'<@. The Dudgment of the Court !as deli eredL A. DATAC*A,3RA RB33T, D. This appeal, pursuant to the special lea e granted, is directed against the order of the *igh Court of 3elhi dismissing the !rit petition filed by the appellant summarily. The appellant !as ser ing as a Da!an in t he Indian Army. 4n 1@th (eptember, 1'<), he applied for lea e and it !as granted. *e !as going to his home to!n, a illage in Ra#asthan. *e purchased 11 bottles of sealed rum and one bottle of brandy from his Gnit Canteen as he re=uired the same to celebrate the marriage of one of his close relations at his home to!n. Admittedly, the appellant !as entitled to carry 7 bottles of rum and one bottle of brandy as per the Gnit Regulations$lea e certificate !hen he !as proceeding on lea e. According to the appellant, the remaining @ bottles of rum he !as able to purchase from the Gnit Canteen o er and abo e his entitlement on the orders of its Company Commander and Commanding 4fficer on compassionate grounds and that there !as a !ritten order to that effect !hich !as retained by the (alesman of the Gnit Canteen at the time of deli ery of the e.tra @ bottles of rum. Bnroute to his home 8@' to!n he had to pass through (urendra ,agar !hich !as under prohibition. The local Ci il :olice at (urendra ,agar intercepted him and confiscated the bottles of li=uor and handed o er the appellant along!ith the li=uor bottles to the City :olice (tation, (urendra ,agar.

Armed Forces Law Journal 2012 (1) 1 The City :olice in turn handed o er him to his Gnit authorities for action. The 8th respo ndent, the 4fficer Commanding, '< Field Regiment, ordered a summary court>martial during !hich the !itnesses including the Ci il, :olice 4fficer of (urendra ,agar !ere e.amined. Gltimately the summary court> martial sentenced the appellant to three monthsY R.I. and dismissed him from ser ice !ith effect from 'th 4ctober, 1'<) by !hich time the appellant had already put in 1& years of ser ice. *is plea throughout has been that he had purchased the li=uor for the marriage of his brother>in>la! on the basis of the permit issued to him and the chits issued by his superiors enabling him to dra! the e.tra @ bottles of rum and that he had no other bad intention in carrying the li=uor bottles. *e preferred an appeal to the Army Commander mentioning se eral irregularities in the summary trial. *e also pleaded that he !as ha ing unblemished record of ser ice in the Army, but his appeal !as re#ected. Thereafter he filed a !rit petition in the 3elhi *igh Court !hich !as summarily re#ected In this appeal the learned counsel for the appellant submitted that se eral irregularities ha e been committed in conducting the summary trial. But from the records !e find that the e idence has been duly recorded and further it is an admitted fact that the appellant !as carrying e.tra @ bottles of rum !ithout the necessary permit. Therefore !e are unable to agree !ith the counsel that the trial is itiated and !e are of the ie! that no pre#udice has been caused. The main submission and perhaps the only submission, if !e may say so, in this appeal is that the sentence a!arded to the appellant is !holly disproportionate to the offence committed by him. According to the learned counsel the e.treme punishment of imprisonment for 0 months and dismissal from the ser ice under the circumstances is uncalled for. 9e find considerable force in this submission. Admittedly the appellant !as granted lea e !hen he !as proceeding to his home to!n and unfortunately enroute to his home to!n he had to pass through (urendra ,agar !here there !as prohibition in force. *o!e er, he had a alid permit to carry ) bottles, the e.tra @ bottles of rum, according to the appellant, !ere purchased from the Army Canteen itself and there is no dispute about the same. Gnless he had some permits or chits gi en by some higher authorities permitting him to purchase these bottles, he could not ha e purchased the same from the Canteen 8<& o er and abo e the bottles for !hich he had a alid permit. *e !as ta1ing this li=uor to his home to!n to celebrate his brother>in>la!Ys marriage, but to his bad luc1, the Ci il :olice of (urendra ,agar chec1ed his baggage and confiscated the bottles as he had no alid permit to carry the e.tra bottles. Gnder these circumstances the =uestion is !hether such a se ere penalty is called for. In the charge>sheet it is merely stated that the action of the appellant in carrying 11 bottles of sealed

2 Armed Forces Law Journal 2012 (1) rum and one bottle of sealed brandy !hen he !as proceeding to his home to!n is Xcontrary to the e.isting orders on the sub#ectX. In the counter>affida it it is stated that such an act of the appellant comes !ithin the meaning of (ection 80 of Chapter EI of the Army Act, 1')& -RActY for short/ !hich enumerates arious types of offences. (ection 80 lays do!n as underL X80. Eiolation of good order and discipline>Any person sub#ect to this Act !ho is guilty of any act or omission !hich, though not specified in this Act, is pre#udicial to good order and military discipline shall, on con iction by court>martial, be liable to suffer imprisonment for a term !hich may e.tend to se en years or such less punishment as is in this act mentionedX. The (ection may co er arious types of misconducts committed by a person by !ay of an act or omission. This (ection also pro ides for a!arding any other lesser punishment mentioned in the Act. Therefore such depends on the nature of the act or omission of !hich the person is found guilty. The pro isions in Chapter EII enumerate arious punishments that can be a!arded. (ection @1 of the Act deals !ith punishments a!ardable by court>martial and reads as underL X@1. :unishments a!ardable by courts>martial :unishments may be inflicted in respect of offences committed by persons sub#ect to this Act and con icted by courts>martial, according to the scale follo!ing, that is to say> -a/ deathN -b/ transportation for life or for any period not less than se en yearsN -c/ imprisonment, either rigorous or simple, for any period not e.ceeding fourteen yearsN -d/ cashiering, in case of officersN -e/ dismissal from the ser iceN -f/ reduction to the ran1s or to a lo!er ran1 or grade or place in the list of their ran1, in the case of !arrant officers.N and reduction to the ran1s or to a lo!er ran1 or grade, in the case of non>commissioned officerN :ro ided that a !arrant officer reduced to the ran1s shall not be re=uired to ser e in the ran1s as a sepoyN -g/ forfeiture of seniority of ran1, in the case of officers, #unior commissioned officers, !arrant officers and non>commissioned officersN and forfeiture of all or any part of their ser ice for the purpose of promotion, in the case of any of them !hose promotion depends upon length of ser iceN

Armed Forces Law Journal 2012 (1) 1 -h/ forfeiture of ser ice for the purpose of increased pay, pension or any other prescribed purposeN -i/ se ere reprimand or reprimand, in the case of officers, #unior commissioned officer, !arrant officers and non commissioned officersN -#/ forfeiture of pay and allo!ances for a period not e.ceeding three months for an offence committed on acti e ser iceN -1/ forfeiture in the case of a person sentenced to cashiering or dismissal from the ser ice of all arrears of pay and allo!ances and other public money due to him at the time of such cashiering or dismissalN -l/ stoppage of pay and allo!ances until any pro ed loss or damage occasioned by the offence of !hich he is con icted is made good.X It can be seen that (ections @1-a/ to @1-e/ and (ection @1-1/ pro ide for e.treme punishments and are se ere in nature. (ections @1-f/ to @1-#/ and (ection @1-l/ pro ide for comparati ely lesser punishments. (ection @% of the Act is the ne.t rele ant (ection !hich reads as underL X@%. Alternati e punishments a!ardable by court> martial>(ub#ect to the pro isions of this Act, a Court>Martial may, on con icting a person sub#ect to this Act to any of the offences specified in (ections 07 to 8< inclusi e, a!ard either the particular punishment !ith !hich the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lo!er in the scale set out in (ection @1, regard being had to the nature and degree of the 4ffence.X -emphasis supplied/ (ection @0 of the Act deals !ith combination of punishments and it reads as underL X@0. Combination of punishments>A sentence of a court>martial may a!ard in addition to, or !ithout any one other punishment, the punishment specified in clause -d/ or clause -e/ of (ection @1 and any one or more of the :unishments specified in clauses -f/ to -l/ of that section.X It can be seen that under (ection @0 of the Act, the court> martial may a!ard more than one punishments as mentioned therein. In the instant case (ection 80 also is not mentioned in the charge sheet. Assuming that the offence committed by the appellant is co ered by the residuary (ection 80 but in a!arding the punishment the court>martial has to 1eep in ie! the spirit behind (ection @% of the Act and it has to gi e due regard to the nature and degree of the offence. It can be seen that (ection 80 pro ides for a!arding any of the lesser punishments enumerated in (ection @1 of the Act. In ie! of these pro isions of la! and ha ing

2 Armed Forces Law Journal 2012 (1) regard to the nature and degree of the offence, !e are firmly of the ie! that the punishments a!arded to the appellant namely, three monthsY R.I.and dismissal from ser ice are se ere and are also iolati e of (ection @%. In Council of Ci il (er ice Gnions . Minister for the Ci il (er ice, I1'<7J 0 All BR '0), ')& Cord 3iploc1 saidL XDudicial re ie! has I thin1 de eloped to a stage today !hen, !ithout reiterating any analysis of the steps by !hich the de elopment has come about, one can con eniently classify under three heads the grounds on !hich administrati e action is sub#ect to control by #udicial re ie!. The first ground I !ould call RillegalityY, the second RirrationalityY and the third Yprocedural impropriety ? This is not to say that further de elopment on a case by case basis may not in course of time add further grounds. I ha e in mind particularly the possible adoption in the future of the principle of YproportionalityY !hich is recogni+ed in the administrati e la! of se eral of our fello! members of the Burpoean Bconomic mmunity,.....X This principle !as follo!ed in Ran#it Tha1ur . Gnion of India and 4thers, I1'<@J 7 (CC 811 !here this Court considered the =uestion of doctrine of proportionality in the matter of a!arding punishment under the Army Act and it !as obser ed thusL XThe =uestion of the choice and =uantum of punishment is !ithin the #urisdiction and discretion of the court>martial. But the sentence has to suit the offence and the offender. It should not be indicti e or unduly harsh. It should not be so disproportionate to the offence as to shoc1 the conscience and amount in itself to conclusi e e idence of bias. The doctrine of proportionality, as part of the concept of #udicial re ie!, !ould ensure that e en on an aspect !hich is, other!ise, !ithin the e.clusi e pro ince of the court>martial, if the decision of the court e en as to sentence is an outrageous defiance of logic, then the sentence !ould not be immune from correction Irrationality and per ersity are recognised grounds of #udicial re ie!.X In Bhagat Ram . (tate of *imachal :radesh, I1'<0J % (CC 77% this Court held as underL XIt is e=ually true that the penalty imposed must be commensurate !ith the gra ity of the misconduct, and that any penalty disproportionate to the gra ity of the misconduct !ould be iolati e of Article 17 of the Constitution.X Applying these principles to the instant case, 9e are also constrained say that there is an element of arbitrariness in a!arding these se ere

to

Armed Forces Law Journal 2012 (1) 1 punishments to the appellant. 9e ha e heard both the learned counsel on this aspect elaborately and !e are satisfied that an interference is called for and the matter has to be remanded on the =uestion of a!arding any of the lesser punishments. *a ing gi en our earnest consideration to the 8<7 facts and circumstances of this case and in ie! of the submissions made by both the counsel, !e feel that ends of #ustice !ill sufficiently be met if a lesser punishment as pro ided under (ection @1-f/ is a!arded to the appellant. Accordingly, !e set aside the punishments of three monthsY R.I. and dismissal from ser ice and remand the matter to the court martial !hich shall a!ard any of the lesser punishments ha ing due regard to the nature and circumstances of the case and in the light of the abo e obser ations made by us. (ince !e are setting aside the sentence of three monthsY R.I. any detention suffered by the appellant after the orders of the court>martial shall not be treated as a dis=ualification for being reinstated into ser ice !hich shall, ho!e er, be sub#ect to any of the minor punishments to be a!arded by the court>martial. Already much time has lapsed, therefore, !e hope the court>martial !ould dispose of the matter as e.peditiously as possible preferably !ithin three months. The appeal is thus disposed of sub#ect to the abo e directions. ,.:.E. Appeal disposed of.

Su4erscr.4* re6erence (a) %1

Item (b) Sec 71 of The Army Act, 1950

Te5*0E5*rac* (c) :unishments a!ardable by courts>martial K :unishments may be inflicted in respect of offences committed by persons sub#ect to this Act and con icted by courts>martial, according to the scale follo!ing, that is to say K -a/deathN -b/transportation for life or for any period not less than se en yearsN -c/imprisonment either rigorous or simple, for any period not e.ceeding fourteen yearsN -d/cashiering, in the case of officersN -e/dismissal from ser iceN -f/reduction to the ran1s or to a lo!er ran1 or grade or place in the list of their ran1, in the case of !arrant officersN and reduction to the ran1s or to a lo!er

Armed Forces Law Journal 2012 (1) ran1 or grade, in the case of non>commissioner officersN :ro ided that a !arrant officer reduced to the ran1s shall not be re=uired to ser ice in the ran1s as a sepo() -g/forfeiture of seniority of ran1, in the case of officers, #unior commissioned officers, !arrant officers and non>commissioned officersN and forfeiture of all or any part of their ser ice for the purpose of promotion, in the case of any of them !hose promotion depends upon length of ser iceN -h/forfeiture of ser ice for the purpose of increased pay, pension or any other prescribed purposeN -i/se ere reprimand or reprimand, in the case of officers, #unior commissioned officers, !arrant officers and non>commissioned officersN -#/forfeiture of pay and allo!ances for a period not e.ceeding three months for an offence committed on acti e ser iceN -1/forfeiture in the case of a person sentenced to cashiering or dismissal from the ser ice of all arrears of pay and allo!ances and other public money due to him at the time of such cashiering or dismissalN -l/ stoppage of pay and allo!ances until any pro ed loss or damage occasioned by the offence of !hich he is con icted is made good. Su4erscr.4* re6erence (a) %% I*em (,)

FOR

Form for use at (ummary Court Martial in Appendi. III, :art I -c / of Army Rules Te5*0E5*rac* (c) OF !ROCEE#IN" OF A S% ARB CO%RT- ARTIAL

:roceedings of a (ummary Court>Martial held at VVVV on the VVVVVday of VVV..%&V.. by VVV.. Commanding the VV.. for the trial of all such accused persons as he may duly ha e brought before him. :RB(B,T VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV VVVVVVVVVVVV VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV VVVVVVVVVVV..... Commanding the VVVVVVVVV Attending the trial VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV

Armed Forces Law Journal 2012 (1) 1 VVVVVVVVVVVV VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV VVVVVVVVVVV Friend of the Accused VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV VVVVVVVVVVVV Interpreter VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV -1/ The officers[ and Dunior Commissioned 4fficers assemble at the VVVVVV. And the trial commences at VVVhrs. The accused ,o. VVVVV.. of the VVVVVVVVV. is brought -2called6 if a non>commissioned officer/ into Court, VVVVVVVVVVVVVVVVVVVVVVVVVVV., the court is duly s!orn -affirmed/. Is duly s!orn -affirmed/ as interpreter. -Ins*ruc*.ons) If the C4 of the accused -i.e., the Court/ acts as interpreter, he must ta1e the interpreter"s oath in addition to the oath prescribed for the Court./ All !itnesses are directed to !ithdra! from the Court. B[ The charge>sheet is read, -translated/ and e.plained to the accused mar1ed 2B> %6, signed by the Court and attached to the proceedings. \Ins*ruc*.ons) The sanction of superior authority for trial by (CM should be entered !ith the date and signature of that authority, or of a staff officer on his behalf, at the foot of the charge>sheet, !hen such sanction is necessary. (ee Army Act (ection 1%&-%/.O ARRAI;,MB,T By the Court K *o! say you are guilty or not guilty of the VVVVVV. Charge preferred against youH -(et out/ Are you guilty or not guilty of the VVVVVV..charge preferred against youH -(et out/ The accused ha ing pleaded guilty to VVV.. charge-s/, the pro isions of Army Rule 11) -%/ are here complied !ith. ,ote L If the accused pleads guilty to any charge the pro isions of Army Rule 11)

2 Armed Forces Law Journal 2012 (1) -%/ must be complied !ith. [ stri1e out if inapplicable -Ins*ruc*.ons L -1/ If the accused pleads 2;uilty6, adopt -%/ and omit -0/, -7/ and -)/N if he pleads 2,ot ;uilty6, adopt -0/ and -7/ or -)/ and omit -%/N if he pleads 2guilty6 to some charge of charges and 2,ot guilty6 to other -not alternati e/, adopt -0/, -7/ or -)/ and -%/. -%/ The =uestions are to be numbered throughout consecuti ely in a single series./

C [[ :R4CBB3I,;( 4, A :CBA 4F ;GICTT -%/ The accused -,oVVVVVV Ran1VVVVVV.., ,ameVVVVVVVVVV., RegimentVVVVVVVV/ is found guilty of the charge -all the charges/ 4r is found guilty of the VVVVVVVVVVV. Charge, and is found not guilty of the VVVVVVV charge. \Ins*ruc*.ons L> If the trial proceeds upon any charge to !hich there is a plea of 2not guilty6 , the court !ill not proceed upon the record of the plea of 2;uilty6 until after the finding on those other chargesN and in that case the charge on !hich the record is 2;uilty6 must be read to the accused again. -Army Rule 118-1/ refers/.O The summary of e idence is read -translated/, e.plained, mar1ed VVVV.. signed by the Court and attached to the proceedings. IIns*ruc*.ons L If there is no summary of sufficient e idence to enable the Court to determine the sentence and to enable the re ie!ing officer to S1no! all the circumstances connected !ith the case !ill be ta1en as in paragraph -0/. ,o address !ill be allo!ed. -Army Rule 118 -%/ refers./O

EARIATI4, The Court being satisfied from the statement of the accused -or the summary of e idence, or other!ise/ that the accused did not understand the effect of the

Armed Forces Law Journal 2012 (1) 1 plea of 2;uilty6 alters the record and enters a plea of 2,ot guilty6. IIns*ruc*.ons L The Court !ill then proceed in respect of this charge as in paragraph -0/ .O 3o you !ish to ma1e any statement in reference to the charge or in mitigation of punishmentH -(et out/ 3o you !ish to call any !itness as to characterH -(et out/ IIns*ruc*.ons -1/ The e.amination of !itnesses as to character !ill proceed as in paragraph -0/.O -%/ B idence as to character and particulars of ser ice !ill be ta1en as in paragraph -8/O 3[[ :R4CBB3I;( 4, A :CBA 4F ,4T ;GICTT :R4(BCGTI4, -0/ __VVVVVVVVV.. being s!orn -affirmed/ is e.amined by the Court. Cross>e.amined by the accused. Re>e.amined by the Court. \Ins*ruc*.ons L -1/ The fact that Army Rule 171 -%/, -0/ and -7/ has been complied !ith must be recorded at the conclusion of the e idence of each !itness. -%/ If the accused declines to cross>e.amine a !itness the fact must be recorded.O
[[ Fresh page __ -a/ *ere insert ,o., Ran1, ,ame and Gnit or other description. -b/ Religion to be recorded, -*indus and musalmans should be affirmed. (i1hs and Christians should be s!orn./

EARIATI4, :4(T:4,BMB,T 4F CR4((>BMAMI,ATI4, -Army Rule 10)/ The Court, at the re=uest of the accused, allo! the cross e.amination of the !itness to be postponed. ES The prosecution is closed. 3o you intend to call any !itness in your defence -(et out/

2 Armed Forces Law Journal 2012 (1) 3BFB,CB The accused is called upon for his defence and states K Fuestions -if any/ by the Court under Army Rule 11<. \Ins*ruc*.ons *o *-e Cour* L 1. The accused is to be =uestioned only to afford him an opportunity of offering an e.planation, if he so !ishes !here absence of such e.planation !ould affect him ad ersely. %. Fuestions put to the accused should be such as !ill enable him to e.plain any circumstances appearing against him !hich if une.plained may lead to a con iction. 0. Fuestions must not be put to the accused in order to supplement the case for the prosecution. 7. Fuestions to the accused and his ans!ers both !ill be recorded erbatim as far as possible. ). ,o oath shall be administered to the accused.O T F [VVVVVVV being duly s!orn -affirmed/ is e.amined by the accused. Cross>e.amined by the Court. Re>e.amined by the accused. \Ins*ruc*.ons K The fact that Army Rule 171 -%/, -0/ and -7/ has been complied !ith must be recorded at the conclusion of the e idence of each !itness.O The defence is closed. TT " RE!LB [[VVVVVV being duly s!orn -affirmed/ is e.amined by the Court. S9U EBR3ICT 4F T*B C4GRT Ac=uittal on all charges. -7/ I am of the opinion on the e idence before me that the accused ,oVVVV. of the VVV..is not guilty of the charge, -or all the charges/. The erdict is read out and the accused released. *e is to return to his duty. (igned at VVVVV. this VVV. day of VVVVV%&VVVV.. Commanding the VVVVVV. holding the trial. The trial closes at VVVV. *rs. ` I EBR3ICT 4F T*B C4GRT

Armed Forces Law Journal 2012 (1) 1 Ac=uittal on some but not on all charges -)/ I am of opinion on the e idence before me that the accused ,oVVV.. of the VVVV. is not guilty of the VVVVVVVVVV charge-s/ but is guilty of the VVVVVVVV.. charge -s/. Con iction on all charges

Z Fresh :age. 3efence 1st !itness [ -a/ *ere, insert ,o., Ran1, ,ame, Gnit and other descriptions -b/ Relligion to be recorded. -*indus and Musalmans should be affirmed. (i1hs and Christians should be s!orn/. ZZ Fresh :age, Reply of 1st 9itness [[ -a/ *ere, insert ,o., Ran1, ,ame and Gnit and other descriptions -b/ Religion to be recorded. -*indus and Musalmans should be affirmed. (i1hs and Christians should be s!orn/. Q Fresh :age ` Fresh :age.

I am of opinion on the e idence before me that the accused ,oVVVVV. of VVVV. is guilty of the charge -all charges/. (pecial Findings -Army Act, (ection 10' and Army Rule 1%1/ I am of opinion on the e idence before me that the accused ,oVVVVVV. of the VVVV. Charge-s/ and guilty of the VVVVVV charge !ith the e.ception of !ords -set out/ is not guilty of -deserting the ser ice/ but is guilty of -absenting himself !ithout lea e/.

:R4CBB3I,;( BBF4RB (B,TB,CB -8/ The follo!ing minutes by the Court are read and e.plained. IIns*ruc*.ons L If the Court does not record the accused person"s con ictions and character of its o!n 1no!ledge, e idence as to these matters !ill be ta1en as in the Form of :roceedings for a ;CM or 3CM.-Army Rule 1%0 refers/O It is !ithin my o!n 1no!ledge from the records of the VVV.. that the accused has VVV been pre iously con icted by Court Martial or Criminal Court. -A separate statement gi ing full particulars of and pre ious con iction to

2 Armed Forces Law Journal 2012 (1) be anne.ed !hen necessary./ [ That the follo!ing is a fair and true summary of the entries in his defaulter sheet e.clusi e of con ictions by a Court>Martial or a Criminal Court. 9ithin last 1% months enrolment For VVVV.. times VVVV. times For VVVV.. times VVVV.times That he is at present undergoing VVVVVVVVVVVV sentence. That irrespecti e of this trial, his general character has been VVVVVVVV. Z That his age is VVVVVVV his ser ice is VVVVVV and his ran1 is, VVVVV That he has been in arrest -confinement/ for VVVVVVVVVVV.. days . That he is in possession of or entitled to the follo!ing military decorations and re!ards L> ,4TB L Any recognised acts of gallantry or distinguished conduct should also be entered here ZZ D (B,TB,CB BT T*B C4GRT Ta1ing all these matters into consideration, I no! sentence the accused ,oVVVV, Ran1VVVV., ,ameVVVVVV.. of the VVVVVVV -a/ [[ to suffer rigorous -simple/ imprisonment for V.. -and I direct that the sentence of rigorous$simple imprisonment shall be carried out by confinement in military custody $ military prison $ ci il prison/. Q -The Accused is recommended for 3i ision SA" -or I/ or SB" -or II/ or SC" -or III/ !hile undergoing sentence in the ci il prison. If there are only t!o di isions of prisoners, the accused is recommended 3i ision SA" -or I/ or SB" -or II/ . IIns*ruc*.ons L (entences of imprisonment, unless for one or more years e.actly should if for one month or up!ards, be recorded in months. (entence consisting partly of months and partly of days should be recorded in months and days.O -b/ to be dismissed from the ser ice. -c / -if on acti e ser ice/ to suffer field punishment ,oVVVVV.. for a (ince

Armed Forces Law Journal 2012 (1) VVVVVV. [ stri1e out if inapplicable a The offence during the last 1% months must be included under this heading. Z Character to be assessed in accordance !ith Regs Army para 1@1. ZZ Fresh page [[ inapplicable !ords to be struc1 out and initialled by the Court. Q Inapplicable in case the accused is sentenced to imprisonment in military custody$military prison. -d/ -if non>commissioned officer/ K -1/ to be reduced to the ran1s, or -%/ to be reduced to -a lo!er ran1/. 4r -1/ to ta1e ran1 and precedence as if his appointment to the ran1 of VVVVV bore date VVVVVVVV -%/ to forfeit VVVV. (er ice for the purpose of promotion. IIns*ruc*.ons L This applies only in the case of a non>commissioned officer !hose promotion depends upon length of ser ice.O -e/ to forfeitVVVV.. past ser ice for the purpose of VVVVVV -f/ to be se erely reprimanded -or reprimanded/ -g/ -if on acti e ser ice/ to forfeit pay and allo!ances for a period of VVVVVVV. -h/ to forfeit all arrears of pay and allo!ances and other public money due to him at the time of his dismissalN -#/ to be put under stoppage of pay and allo!ances until he has made good the sum of VVVVV. In respect of VVVV.. or -and/ until he has made good the alue of the follo!ing articles, vi*.,VV.. alueVVV. Btc (igned at VVVVV. thisVVVV day of VVVVVV %&V.. Commanding the VVVVVVV holding the trial

2 Armed Forces Law Journal 2012 (1) The trial closed at VVVV.. hrs.

(,) Memoranda for guidance of officers -C4/ placed at the end of Appendi. III to Army Rules. Te5*0E5*rac* (c) E ORAN#A FOR T9E "%I#ANCE OF OFFICERS CONCERNE# @IT9 CO%RTS ARTIAL The follo!ing memoranda as to courts>martial are intended for the guidance of commanding and con ening officers and others !ith a ie! to securing uniformity of practice and to a oiding some common mista1es. These memoranda do not for part of the Appendices to the Army Rules, 1')7. (GMMART 4F BEI3B,CB 1. The officer detailed to record a summary of e idence should > -a/ VVVVV. -b/ VVVVV -c /VVVVV %. B idence in special cases > -a/ VVVVV. -b/ VVVVV -c /VVVVV. -d/VVVVV. -e/ VVVVV 0VVVVV.. C4MMA,3I,; 4FFICBR( ). A C4 !ill ta1e care that an accused person is not detained in custody beyond 7< hours !ithout the charge, being in estigated, unless in estigation is impracticable, in !hich case a report !ill be made to the officer to !hom

Su4erscr.4* re6erence (a) %0

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Armed Forces Law Journal 2012 (1) application to con ene a ;CM or 3CM !ould be made -Army Act, (ection 1&%/. 8. Before applying for the trial of an offender a C4 should satisfy himself >> -a/ That the accused is sub#ect to the Army Act, and is charged !ith an offence !hich is an offence against that ActN -b/ That the offender is not e.empt from trial under the pro isions of Army Act, (ection 1%%N -c/ That the offence is not one !hich he should dispose of himself summarily or one !hich he should and can try by (CM -Regulations Army, para 77@/ !ithout reference -Army Act, (ection 1%& -%// or, if it is one of those offences, that from its gra ity, or from the pre ious character of the accused, he ought not to deal !ith it on account of the inade=uacy of his po!ers of punishmentN -d/ That the summary of e idence is properly recorded -see paras 1 and % ante/N -e/ That the e idence #ustifies the trial of the offender on the chargeN -f/ That the charge is properly framed under appropriate section -see Army Rules %< to 0& / -g/ That an officer has gi en the accused a copy of the summary -or abstract/ of e idence as soon as practicable after he had been remanded for trial and that his rights as to preparing his defence and of being assigned or represented at the trial ha e been e.plained to him by that officer \Army Rule 00 -@/O. @. 9hen ma1ing application for the trial of the offender the C4 should satisfy himself that the follo!ing pro isions are complied !ith L> -a/ The application for trial -IAF3>'0@/ must be accompanied by all necessary documents as therein specifiedN and the medical officer"s certificate at the foot completedN The con ening officer must be informed !hether or not the accused desires to ha e a defending officer assigned to represent him at the trialN The information re=uired as to officers !ho ha e in estigated the caseN or sat on a court of in=uiry, must be gi en !ith great careN The charge>sheet must be signed by the officer in actual command of the unit to !hich the accused belongs or is attached and should state the place and date of signatureN

-b/

-c/ -d/

2 -e/

-f/ -g/

-h/

Armed Forces Law Journal 2012 (1) + (ufficient space be left at the foot of the charge>sheet for the orders of the con ening officer, or officer sanctioning trial under Army Act, section 1%& -%/, to be entered. The place and date should be entered by the officer signing such ordersN The section of the Army Act under !hich each charge is framed should be entered in the margin, opposite the charge to !hich it refersN 9hen it is intended to pro e any facts in respect of !hich any deduction from the pay and allo!ances -i.e., stoppages/ of the accused can be a!arded in conse=uence of the offence charged, those facts must be clearly sho!n in the particulars of the charge and the sum of the loss or damage it is intended to charge -see para %-g/ abo e/N IAF3>'&) by !homsoe er produced, is to be signed by the officer ha ing custody of the boo1s from !hich it is compiledN custody includes temporary custody for the purpose of the trial. In preparing this form, minor offences may be grouped as 2miscellaneous6 offences of the same class as that being charged should be sho!n in a separate group.

<. After trial has been ordered the C4 should satisfy himself that the follo!ing pro isions are complied !ith L> a/ The accused be !arned for trial not less than '8 hours -%7 hours !here he is on acti e ser ice/ before the court assembles, must be informed by an officer of e ery charge on !hich he is to be tried, must be gi en a copy of the charge>sheet and a ernacular translation of the same and of the summary -or abstract/ or e idence, and notice of the intention to call !itnesses !hose e idence is not contained in the summary -or abstract/ and an abstract of their e idence, and must be informed of the ran1s, names and units of the officers !ho are to form the court as !ell as of any !aiting members -Army Rule 07/. b/ The accused must be informed that on his gi ing the names of any !itnesses for the defence, reasonable steps !ill be ta1en to procure their attendanceN c/ The accused must be afforded proper opportunity for preparing his defenceN d/ The C4 must not detail as a member of the court an officer !ho is ineligible or dis=ualified to ser e under the pro isions of Army Rule 0'N e/ The accused must be seen by a medical officer on the morning of each day the court is sitting for his trial and the medical officer"s report should be

Armed Forces Law Journal 2012 (1) 1 produced by the prosecutor to the court immediately after it opensN f/ In a case of a #oint trial, the accused persons should be informed of the intention to try them together and of their right under Army Rule 0) -7/ to claim separate trials if the nature of the charge admits of it. '. After confirmation -or refusal thereof/, the C4 must see that the follo!ing pro isions are complied !ith L> a/ The proceedings must be promulgated as laid do!n in Regulations Army, para 7@%N b/ The record of the promulgation must be entered on the proceedings in form sho!n on page VVVV.. and, if the proceedings ha e been confirmed, e.tracts recorded in the Regimental boo1sN c/ After promulgation the proceedings must be for!arded !ithout delay to 3DA; of the Command direct. Regulations Army, para 7@@ refers.

Su4erscr.4* re6erence (a) %7

I*em (,) :ara 77< of Regulation for the Army

Te5*0E5*rac* (c) (cale of :unishments A!ardable by (ummary Court>Martial K The follo!ing general instructions are issued for the guidance of officers holding summary courts>martial in passing sentence, but nothing contained in them !ill be construed as limiting the discretion of the court to pass any legal sentence, !hether in accordance !ith these instructions or not, if in its opinion, there is good reason for doing soL> -a/9hen passing sentence, courts !ill ha e regard not only to the nature and degree of the offence and the pre ious character of the accused but also to his status and ran1 and to the legal conse=uences of the sentence proposed to be a!arded. A punishment !hich is suitable or e en lenient in the case of a young sepo( may ha e an e.tremely se er effect in the case of a ,C4 of some years" ser ice !ho has earned a pension. -b/Imprisonment for any term e.ceeding three months !ill be undergone in a ci il or military prison-Army Act, (ection 18'/. In practice this entails dismissal, or discharge, from ser ice, as it is usually ine.pedient for a man !ho has been the

Armed Forces Law Journal 2012 (1) + inmate of a ci il #ail to return to the ser ice. Three months rigorous imprisonment or less to be undergone in military custody, should therefore be loo1ed upon as the normal punishment for most first offences and for most purely military offences e.cept those of a gra e nature or !here the offender already has a bad character. A sentence of imprisonment combined !ith dismissal should be carried out in a ci il prison. -c/ The a!ard of imprisonment in a ci il #ail coupled !ith dismissal from the ser ice must ne er be used merely as a means of getting rid of a man from the ser ice but should be imposed only !hen the offence by itself, or the offence and the man"s pre ious record ta1en together, actually merits such a punishment. In other cases in !hich remo al is considered desirable in the interest of the ser ice, the discharge of the indi idual under the appropriate item of Army Rule 10 should be applied for by the C4 and authorised by the brigade or superior commander. -d/In the table of normal punishments sho!n belo!, offences !hich cannot be tried by a summary court>martial, e.cept after reference under Army Act, (ection 1%& -%/ and the less common offences not been included. (uch offences if tried by summary court>martial must be dealt !ith according to the merits of each case. Table of :unishments -i/ ,ormal punishment K Rigorous imprisonment for three months or less to be undergone in military custody. O66ences )3isobedience, not of a gra e nature. Insubordination, not of a gra e nature. First desertion or fraudulent enrolment. Absence !ithout lea e or o erstaying lea e. Failing to appear at parade. Fuitting parade, guard, etc. !ithout lea e. Absence from camp or after tattoo. Into.ication. Releasing or suffering prisoner to escape. Bscaping from custody. Cosing by neglect, arms, etc. False ans!er on enrolment. Minor contempt of court>martial. ,eglect of orders. Act pre#udicial, etc. not of a gra e nature.

Armed Forces Law Journal 2012 (1) (entry plundering, etc. not of a gra e nature. (entry sleeping on or =uitting post in peace time. Gse of force to superior, not of a gra e nature. Failing to re#oin for acti e ser ice, not of a gra e nature. Ma1ing a!ay !ith, under Army Act, (ec )7-a/, other than arms and ammunition. False accusations and complaints, not of a gra e nature. (tri1ing or ill>treating a subordinate, not of a gra e nature. First offences not of a gra e nature. -ii/ ,ormal :unishment K Rigorous imprisonment for si. months or less and dismissal from the ser ice. O66ences )3isobedience of a gra e nature or studies insubordination. Malingering, feigning or producing disease. Gse of force to superior, gra e cases. Contempt of court>martial, gra e cases. ;i ing false e idence. 4rdinary theft. Frauds. Indecency or cruelty. Act pre#udicial, etc., of a gra e nature than under -i/ abo e. -iii/ ,ormal :unishment K Rigorous imprisonment for one year and dismissal from ser ice. O66ences )> Ma1ing a!ay !ith arms or ammunition. Repeated disobedience or insubordination. 3esertion, gra e cases and second or subse=uent con ictions. Thefts, gra e cases. Frauds, gra e cases. Causing hurt to render unfit for ser ice. Gnnatural offences. Failing to re#oin for acti e ser ice of gra e and deliberate nature. Act pre#udicial, etc. of a gra e nature. No*e) A copy of para 77< !ill be 1ept in e ery court>martial bo..

2 Su4erscr.4* re6erence (a) %)

Armed Forces Law Journal 2012 (1) I*em

(,) ;ist of 4rders in r$o cases of ,a y personnel dismissed by !ay of summary trials. Te5*0E5*rac* (c) "IST OF OR#ERS ON NA:AL CASES 1. TA 1@1$%&1& K R ( (ingh Es GoI L 3ate of 4rder L %%.1&.%&1 Order) Allowed+ Ordered de%no&o *r.al %. TA 17<$%&1& K A A (ah Es GoI L 3ate of 4rder L &%.&0.%&11 Order) @.*-draws a6*er consul*a*.ons+ R-2 *o cons.der 6a7oura,l( 3ran*.n3 #.sc-ar3e *o *-e !e*.*.oner+ 0. TA 1<0$%&1& K B Ramu Es GoI L 3ate of 4rder L &'.1%.%&1& Order ) Allowed+ Ordered De%no&o *r.al+ 7. TA 187$%&1& > : A :arida Es GoI L 3ate of 4rder L 1@.&'.%&1& OrderL Allowed+ Re-*r.al ordered under Sec 10 (c )& a44eal ,( %OI was d.sm.ssed ,( 9on<,le A4e5 Cour*+ ). TA 1'@$%&1& K R.A. Mishra $ ,eelam Mishra Es GoIL 3ate of 4rder L %'.&7.%&11 Order) !ar*l( Allowed+ #.sm.ssal mod.6.ed *o d.sc-ar3e+ @.dow *o 3e* Fam.l( !ens.on 6rom da*e o6 dea*- o6 sa.lor+ Su4erscr.4* re6erence (a) %8 I*em (,) Army Rules %%, %0 Te5*0E5*rac* (c)

:o!er of Commanding 4fficers 1 I%%.*earing of Charge K-1/ B ery Charge against a person sub#ect to the Act, shall be heard by the Commanding 4fficer in the presence of the accused. The accused shall ha e full liberty to cross>e.amine any !itness against him, and to call such !itness and ma1e such statement as may be necessary for his defenceL

Armed Forces Law Journal 2012 (1) :ro ided that !here the charge against the accused arises as a result of in estigation by a Court of in=uiry, !herein the pro isions of rule 1<& ha e been complied !ith in respect of that accused, the commanding officer may dispense !ith the procedure in sub>rule-1/. -%/ The commanding officer shall dismiss a charge brought before him if, in his opinion, the e idence does not sho! that an offence under the Act has been committed, and may do so if, he is satisfied that the charge ought not to be proceeded !ithL :ro ided that the commanding officer shall not dismiss a charge !hich he is debarred to try under sub>section -%/ of (ec.1%& !ithout reference to superior authority as specified therein. -0/ After compliance of sub>rule-1/, if the commanding officer is of opinion that the charge ought to be proceeded !ith, he shall !ithin a reasonable time > -a/ dispose of the case under section <& in accordance !ith the manner and form in Appendi. IIIN or -b/refer the case to the proper superior military authorityN or ^ ad#ourn the case for the purpose of ha ing the e idence reduced to !ritingN or -d/ if the accused is belo! the ran1 of !arrant officer, order his trial by a summary court>martialL :ro ided that the commanding officer shall not order trial by a summary court> martial !ithout a reference to the officer empo!ered to con ene a district court> martial or on acti e ser ice a summary general court>martial for the trial of the alleged offender unless K -a/the offence is one !hich he can try by a summary court>martial !ithout any reference to that officerN or -b/he considers that there is gra e reason for immediate action and such reference cannot be made !ithout detriment to discipline. -7/9here the e idence ta1en in accordance !ith sub>rule-0/ of this rule discloses an offence other than the offence !hich !as the sub#ect of the in estigation, the commanding officer may frame suitable charge-s/ on the basis of the e idence so ta1en as !ell as the in estigation of the original charge.J

2 Armed Forces Law Journal 2012 (1) %0. :rocedure for ta1ing do!n the summary of e idence K -1/ 9here the case is ad#ourned for the purpose of ha ing the e idence reduced to !riting, at the ad#ourned hearing e idence of the !itnesses !ho !ere present and ga e e idence before the commanding officer, !hether against or for the accused, and of any other person !hose e idence appears to be rele ant, shall be ta1en do!n in !riting in the presence and hearing of the accused before the commanding officer or such officer as he directs.
1 (ubs. by (.R.4. 1@-B/, dated 8th 3ecember, 1''0.

Air Force Rule %7 Te5*0E5*rac* (c ) 3isposal of the charge or ad#ournment for ta1ing do!n the summary of e idence K -1/ B ery charge against a person sub#ect to the Act shall be heard in the presence of the accused. The accused shall ha e full liberty to cross>e.amine any !itness against him, and to call any !itnesses and ma1e any statement in his defence. -%/ The commanding officer shall dismiss a charge brought before him if, in his opinion, the e idence does not sho! that some offence under the Act has been committed, and may do so if, in his discretion, he thin1s the charge ought not to be proceeded !ith. -0/ At the conclusion of the hearing of a charge, if the commanding officer is of opinion that the charge ought to be proceeded !ith, he shall, !ithout unnecessary delay, either L> -a/dispose of the case summarilyN or -b/1Irefer the case to the proper superior air force authority for sanction under section <0N orJ -c /ad#ourn the case for the purpose of ha ing the e idence reduced to !riting. -7/9here the case is ad#ourned for the purpose of ha ing the e idence reduced in !riting, at the ad#ourned hearing the e idence of the !itnesses !ho !ere present and ga e e idence before the commanding officer, !hether against or for the accused, and of any other person !hose e idence appears to be rele ant shall be ta1en do!n in !riting in the presence and hearing of the accused before the

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Armed Forces Law Journal 2012 (1) commanding officer or such officer as he directs. -)/The accused may put =uestions in cross>e.amination to any !itness, and the =uestions !ith the ans!ers shall be added in !riting to the e idence ta1en do!n. -8/The e idence of each !itness !hen ta1en do!n, as pro ided in sub>rules -7/ and -)/, shall be read o er to him, and shall be signed by him, or if he cannot !rite his name, shall be attested by his mar1 and !itnessed. Any statement of the accused %I[[[J shall be added in !riting and read o er to him -@/ The e idence of the !itnesses and the statement, if any, of the accused shall be recorded in the Bnglish language. If the !itness or accused, as the case may be, does not understand Bnglish the e idence or statement, as recorded, shall be interpreted to him in a language !hich he understands. -</ If a person cannot be compelled to attend as a !itness, or if o!ing to the e.igencies of ser ice or any other grounds -including the e.pense and loss of time in ol ed/, the attendance of any !itness cannot, in the opinion of the commanding officer or the officer ta1ing the summary -to be certified in !riting by the commanding officer or such officer/, be readily procured, a !ritten statement of his e idence purporting to be signed by him may be read to the accused and included in the summary of e idence.
b 0

I-'/-a/ Any !itness !ho is not sub#ect to the air force la! may be summoned by order under the hand of the Commanding 4fficer of the accused to attend the hearing of the charge under sub>rule -1/ or to attend the ad#ourned hearing for the purpose of ha ing the e idence reduced to !riting under sub>rule -7/. -b/ The summons shall be in FormC>1 as pro ided in the Third (chedule.J
1 (ubs. by (.R.4.%7-B/ dated 18th August, 1'@7. % The !ords 2material to his defence6 omitted by (.R.4. %7-B/ , dated 18th August, 1'@7. 0. (ubs. by (.R.4. )-B/ dated <th ,o ember, 1''&

Su4erscr.4* re6erence (a) %<

I*em (,) (ec '0 -%/ of ,a y Act

Armed Forces Law Journal 2012 (1) Te5*0E5*rac* (c) '0. :o!er of court>martial and commanding officers to try offences K -%/ An offence not capital !hich is triable under this Act and !hich is committed by a person other than an officer -and in cases by this Act e.pressly pro ided for !hen committed by an officer/, may, sub#ect to regulations made under this Act be summarily tried and punished by the Commanding officer of the ship to !hich the offender belongs at the time either of the commission or of the trial of the offence, sub#ect to the restriction that the commanding officer shall not ha e po!er to a!ard imprisonment or detention for more than three months, or to a!ard dismissal !ith disgrace from the na al ser iceN :ro ided that no sentence of imprisonment or dismissal shall be carried into effect until appro ed by the prescribed authorities.

Regs %@, %<, %' of Regulations for the ,a y, :art II (tatutory Te5*0E5*rac* (c) %@. :rocedure at In estigation in ;eneral -1/ At all in estigations the e idence in support of the charge shall be heard first. -%/ Immediately after the charge has been read out, the in estigating officer shall !arn the accused that he should not ma1e any statement or gi en any e idence on his o!n behalf until all the e idence against him has been heard. -0/ 4n conclusion of the e idence in support of the charge, the in estigating officer shall decide !hether a case has been made out against the accused. -7/ If there is no case, the in estigating officer shall either dismiss the case or, if further e idence is li1ely to become a ailable, stand it o er and if there is a prima facie case, and it is a simple one !ith !hich the in estigating officer thin1s he can deal !ith himself, he shall as1 the accused if he admits the charge. -)/ If the accused does not admit the charge and the matter is one !ithin the in estigating officer"s po!ers of punishment, he shall inform the accused that he

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I*em (,)

Armed Forces Law Journal 2012 (1) 1 !ill proceed to try the case, gi ing him an opportunity of ma1ing a statement and calling !itnesses. %<. In estigation by the 4fficer of the 9atch, the 4fficer of the 3ay, or the B.ecuti e 4fficer K -1/ If, after hearing the e idence in support of the charge, the 4fficer of the 9atch, the 4fficer of the 3ay or the B.ecuti e 4fficer is of opinion that the charge, if pro ed, !ould be beyond his po!er to punish, he must bear in mind that a confession made before him by the accused !ill not be admissible in e idence at any further proceedings unless the accused has been cautioned, before he spea1s, that he is not obliged to say any thing unless he !ishes to do so, and that any statement he may ma1e may be gi en in e idence. Care should be ta1en to a oid any suggestion that the accused"s ans!ers can only be used in e idence against him, as this may discourage an innocent person from ma1ing a statement !hich might help to clear him of the charge. The in estigating officer must also bear in mind that in case beyond his po!er of punishment his functions are to see !hether there is prima facie case, to collect e idence !hen it is important that e idence be collected immediately, and, to gi e the accused a chance to ma1e a statement. If the alleged offence is one !hich is li1ely in itself to lead at least to a !arrant punishment -as distinct from one !hich may lead to a !arrant punishment because it is the culminating offence in a series of minor offences/, the in estigating officer should address the accused in the follo!ing !ords after hearing the e idence in support of the charges L> 23o you !ish to say anything in ans!er to the chargeH Tou are not obliged to say anything unless you !ish to do soN but !hat e er you say !ill be ta1en do!n in !riting and may be gi en in e idence.6 -1/ The 4fficer of the 9atch or 4fficer of the 3ay need not use these !ords unless he decides to hear the defence before sending the case to the B.ecuti e 4fficer. -0/If the accused ma1es a statement, it should be ta1en do!n in !riting. 4n conclusion of this statement the in estigating officer should not as1 any =uestion sa e to point out any ambiguity and as1 if the accused !ishes to clear it up or to point out that no reference has been made to some charge and as1 if the accused !ishes to say any thing about it. In particular, nothing must be said !hich indicates that the accused is e.pected to ma1e any further statement. -7/If he has not already done so, the in estigating officer must then ma1e up his

2 Armed Forces Law Journal 2012 (1) mind !hether the case against the accused has been made out. If he decides that no case has been made out, he is to dismiss the charge. -)/If the in estigating officer decides to refer the case to higher authority, the accused is to be informed accordingly, the customary terminology 2Commander"s report6 or 2Captain"s report6 as the case may be, being used. %'. In estigation by the Commanding 4fficer -1/ The in estigation of any offence by the Commanding 4fficer shall also be regulated so far as may be by the preceding regulation. -%/If, after hearing the e idence in support of the charge, the Commanding 4fficer is of opinion that there is a :rima facie case and that the charge, if pro ed, !ould be !ithin his po!er to punish, he shall proceed to try the case. -0/ If the Commanding 4fficer decides to apply for trial by court>martial, or to gi e a !arrant punishment, the accused shall be told that the case is 2remanded6. -7/If the punishment to be a!arded is li1e to be a !arrant punishment re=uiring appro al of superior authority, a (ummary of B idence gi en by the !itnesses shall be recorded.

(ection 11 Res Judicata (Part I+ uits in $eneral) %P%+ Act ,-./01 Te5*0E5*rac* (c ) ,o Court shall try any suit or issue in !hich the matter directly and substantially in issue has been directly and substantially in issue in a former suit bet!een the same parties, or bet!een parties under !hom they or any of them claim litigating under the same title, in a court competent to try such subse=uent suit or the suit in !hich such issue has been subse=uently raised, and has been heard and finally decided by such court. B.planation I L The e.pression Sformer suit" shall denote a suit !hich has been decided prior to the suit in =uestion !hether or not it !as instituted prior thereto.

Su4erscr.4* re6erence (a) 0&

I*em (,)

Armed Forces Law Journal 2012 (1) B.planation IIL For the purposes of this section, the competence of a court shall be determined irrespecti e of any pro isions as to a right of appeal from the decision of such court. B.planation IIIL The matter abo e referred to must in the former suit ha e been alleged by one party and either denied or admitted, e.pressly or impliedly, by the other. B.planation IE L Any matter !hich might and ought to ha e been made ground of defence or attac1 in such former suit shall be deemed to ha e been a matter directly and substantially in issue in such suit. B.planation EL Any relief claimed in the plaint, !hich is not e.pressly granted by the decree, shall, for the purposes of this section, be deemed to ha e been refused. B.planation EI L 9here persons litigate bona fide in respect of a public right or of a pri ate right claimed in common for themsel es and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons so litigating. B.planation EIIL The pro isions of this section shall apply to a proceeding for the e.ecution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respecti ely, to a proceeding for the e.ecution of the decree, =uestion arising in such proceeding and a former proceeding for the e.ecution of that degree. B.planation EIII L An issue heard and finally decided by a court of limited #urisdiction, competent to decide such issue, shall operate as res judicata in a subse=uent suit, not!ithstanding that such subse=uent suit or the suit in !hich such issue has been subse=uently raised.

Su4erscr.4* re6erence (a) 01

I*em (,) 4rder%-Frame of (uit/.Rule%,The First (chedule, C:C, Act E$1'&< Te5*0E5*rac*

Armed Forces Law Journal 2012 (1) + (c) Rule % LSu.* *o .nclude *-e w-ole cla.m -1/ B ery suit shall include the !hole of the claim !hich the plaintiff is entitled to ma1e in respect of the cause of action, but a plaintiff may relin=uish any portion of his claim in order to bring the suit !ithin the #urisdiction of any court. (2)Rel.nLu.s-men* o6 4ar* o6 cla.m L 9here the plaintiff omits to sue in respect of, or intentionally relin=uishes, any portion of his claim, he shall not after!ards sue in respect of the portion so omitted or relin=uished. -0/Om.ss.on *o sue 6or one o6 se7eral rel.e6s L A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, e.cept !ith the lea e of the court, to sue for all such reliefs, he shall not after!ards sue for any relief so omitted. B.planation L For the purposes of this rule an obligation and a collateral security for its performance and successi e claims arising under the same obligation shall be deemed respecti ely to constitute, but one cause of action. Illus*ra*.on ) A lets a house to B at a yearly rent of Rs.1,%&&. The rent for the !hole of the years 1'&), 1'&8 and 1'&@ is due and unpaid. A sues B in 1'&< only for the rent for 1'&8. A shall not after!ards sue B for the rent due for 1'&) or 1'&@. Su4erscr.4* re6erence (a) 0% I*em (,) -i/ Mo3 letter ,o.78<7$3IR-:B,/$%&&1 dated 17 th August, %&&1N -ii/ M43 I3 ,o.1%-%/$&7$-:en$(ers/ dated %1.&@.%&&7 L 5-iii/ Integrated *F of Mo3-Army/ A;"s Branch letter ,o.B$0'&%%$Misc$A;$:(>7-C/$BC dated &7.&.%&11 delegating po!ers to (er ice head=uarters in a ariety of pension related sub#ects.

Armed Forces Law Journal 2012 (1) Te5*0E5*rac* (c) -i/ ,o.78<7$3IR-:B,/$%&&1. ;o ernment of India, Ministry of 3efence 3eptt of 3efence ,e! 3elhi, the 17th August, %&&1 4R3BR

(anction is hereby accorded in pursuance of M43 I3 ,o.07-0/$%&&1$3-45M/ dated 0.<.%&&1 for delegation of administrati e po!ers !ith the appro al of Ra1sha Mantri to the (er ice *Frs in respect of the sub#ects indicated belo! L> -a/ -i/ 3i ision of family pension bet!een eligible family members -ii/ Initial cases for a!ard of (pecial Family :ension and e.>gratia for officers -iii/Reco ery from pensionary benefits first charge being :ublic Fund dues thereafter ,on>:ublic Fund dues from the residual benefits. -i / :ayment of dues to ,4A of 3eserters - / Condonation of shortfall in =ualifying ser ice for grant of pension in respect of :B4R beyond si. months and upto 1% months.[-see clarification note belo!/ - i/Time bar sanction for filing appeals for 4rdinary Family :ension, (pecial Family :ension, disability pension, etc. in respect of officers and :B4R beyond 1% months. - ii/ ;rant of e.>gratia a!ard to Cadets on death $ disability !ithin the ;o t. appro ed terms and conditions - iii/:ensionary a!ard to officers dismissed from (er ice other!ise than !ith disgrace$cashiered. -i./:ensionary a!ard to officers !ho are discharged, called upon to resign or are retired. -./ ;rant of pension to :B4R dismissed from ser ice. -.i/;rant of 3isability :ension to officers. -.ii/First appeal against re#ection of 4rdinary Family :ension, (pecial Family :ension, 3isability :enison$e.>gratia a!ard etc. to officers and :B4R. -.iii/First claim for pension and gratuity submitted after 1% months from due date !here pension (anctioning Authority is not satisfied !ith reasons for delay.

Armed Forces Law Journal 2012 (1) + -.i / Implementation of #udgments deli ered by arious Courts$CATs, including those !ith financial implications !here further appeal is not contemplated. -b/ Appro ing Authority in the (er ice *Frs in respect of the abo e sub#ects !ill be A;$C4:$A4:$A4A as the case may be. Any further re> delegation of these po!ers !ill re=uire prior appro al of the Ministry of 3efence. -c/ Authenticati e Authorities for authenticating of orders $ documents !ill be the authorities as specified in Ministry of *ome Affairs (4 ,o.%%'@ dated 0.11.1')<. further, the plaints$!ritten statement in suits in any court of ci il #urisdiction or in !rit proceedings by $ or against the Central ;o ernment, shall be signed by the authorities indicated in the Ministry of Ca!"s ,otification dated 17.%.1''& Any further de olution of po!ers in this regard !ill re=uire appro al of M*A and Ministry of Ca! respecti ely. :roposal for this purpose, if need be, may be initiated by the (er ice *Frs. And be referred to these Ministries for issue ofnecessary corrigendum through 3 -45M/ (ection of this Ministry. -d/ Concurrence of Integrated Finance shall continue to be obtained !here er re=uired as hithertofor !ithout in ol ing this Ministry.

%. The rele ant Regulation -s/ of :ension Regulation for the Army$,a y$Air Force shall stand amended accordingly. Formal amendments to :ension Regulation !ill, ho!e er, be issued in due course of time. 0. In case :ension Regulations and any other ;o t. orders $ instructions are re=uired to be amended, necessary proposals in this regard !ill be initiated by the (er ice *Fs. 7. Cases for RM"s appro al !ill be submitted, !here er re=uired by the (er ice *Frs after appro al of A;$C4:$A4:$A4A. 9hene er re=uired such cases should be routed through the :ension branch of this Ministry. ). As regards to composition of First Appellate Committee -FAC/, the Chairperson of the Committee shall be the A;$C4:$A4: in respecti e (er ice *Frs, in place of 3irector$3y.(ecretary in charge of :ension 3i ision in the Ministry of 3efence. The other members of the Committee shall continue to be the same. The composition of the (econd Appellate Committee headed by RM$RRM !ill remain unchanged. *o!e er, the cases shall be submitted for recommendations of the Members of the Committee and appro al of RM$RRM

Armed Forces Law Journal 2012 (1) direct by the (er ice *Frs. 8. These orders !ill ta1e effect from the date of issue.

@. This issues !ith the concurrence of 3efence -Finance/ G.4.,o.1)0'$Addl.FA-B/ dated 10th August, %&&1.

ide their

sd$> ............. -(G3*AABR (*GACA/ 3IRBCT4R -:B,(I4,(/ To Chief of the Army (taff Chief of the Air (taff Chief of the ,a al (taff Copy to L 1.:resident (ecretariat %.Eice :resident (ecretariat 0.:rime Minister"s 4ffice 7.Cabinet (ectt.-3te of :ublic ;rie ances/ ).The Controller ;eneral of 3efence Accounts 8.The :rincipal Controller of 3efence Accounts -:ensions/, Allahabad @.Controller of 3efence Accounts -:ension, 3isbursement/, ,e! 3elhi <.Controller of 3efence Accounts -,a y/, Mumbai

[-Clarification, refers to sub paragraph 1-a/, of abo e letter/ (..) .n.s*r( o6 #e6ence (ub L Condonation of shortfall in =ualifying ser ice for grant of pensionary benefits in respect of personnel belo! officer ran1s beyond si. months and up to t!el e months K clarification regarding. Aindly refer to C;3A I3 ,ote ,o.)88'$AT:$Contempt$R.*.;hata1 dated 18.&@.%&&7 on the sub#ect cited abo e and to state that the matter has been

2 Armed Forces Law Journal 2012 (1) + considered in consultation !ith FA -3ef/ in the Ministry of 3efence. It is clarified that the ser ices *Frs are empo!ered to e.ercise the po!ers delegated to them ide order ,o.78<7 $ 3ir-:en/ $ %&&1 dated 17.&<.%&&1 e en to the cases !hich !ere pending prior to issue of the orders. *o!e er, they are re=uired to e.ercise the po!er in the interest of #ustice, e=uity and fair play. As discussed on telephone on %1.&@.%&&7, C;3A $ :C3A -:/, Allahabad is re=uested to ta1e further necessary action in the light of abo e clarification. *ARBA,( (I,;* 3IR -:en/ M43 I3 ,o.1%-%/$&7$-:en$(ers/ dated >%1.&@.%&&7. (...) Tele 211-1/0?F 21011/C0 Addl #*e "en !ersonnel Ser7.ces Ad;u*an* "eneral<s $rancRoom No+?1F& P$< @.n3& ?*- 6loor& In*e3ra*ed 9D o6 o# (Arm() #9"D !O& New #el-. 110 011 $+1E0220 .sc0A"0!S-?(L)0$C 0? a(& 2011 9D NORT9ERN CO AN# (A) 9D SO%T9ERN CO AN# (A) 9D EASTERN CO AN# (A) 9D @ESTERN CO AN# (A) 9D CENTRAL CO AN# (A) 9D SO%T9 @EST CO AN# (A) 9D AR B TRAININ" CO AN# (A) 9D A A N CO AN# (A) 9D STRATE"IC FORCES CO AN# (A) RE#%CTION OF CO%RT CASES ) CON#ONATION OF S9ORTFALL IN SER:ICE FOR IN:ALI#

Armed Forces Law Journal 2012 (1) !ENSION $r.e6 $ac83round

1+ As per Regulation 1'@ of :RA -:art I/, In alid :ension is granted to an indi idual !hois in alided out from ser ice !ith ten years or more but less than fifteen years =ualifying ser ice. After fifteen yrs or more ser ice indi idual !ould ha e =ualified for ser ice pension. *ence the pro ision of In alid :ension e.ists for those indi iduals !ho are unable tocomplete pensionable ser ice. %. *ithrtofore, Reg 1'@ has ben strictly applied and no condonation in shortfall in ser ice !as granted e en if indi idual had almos*ten years ser ice !ith a shortfall of only a fe! days in some cases. 0. The matter !as considered in depth at this office and it !as felt that although there are numerousinstances !here indi iduals are in alided out !ith less than ten years ser ice !ith a shortfall of hardly a fe! days, neither the administrati e nor the medical authorities intended to deny him the benefit of In alid :ension !hich the affected indi idual !ould ha e been entitled to, had he had completed ten yrs of ser ice after merely a fe! days. *ence, it is felt that such indi iduals ha e suffered due to ignorance of the pro isions of the pro isions of Reg 1'@ at all le els. 7. Further, an allied issue in this matter is that it has been noticed !ith concern that certain Record 4ffices are also contesting cases !here an indi idual has been In alided 4ut !ith disease $ in#ury-neither attributable nor aggra ated by military ser ice/, !hereas a persons"s eligibility for In alid :ension -those !ho ha e completed ten yrs or more of ser ice/ is ,4T dependent upon disease $ in#ury to be attributable $ aggra ated. Clarifications on In alid :ension by Mo3 and 3eptt of :ension and :ension 9elfare ). 4f late, !e had been approaching the Mo3 for reconsideration of the policy not to condone shortfall in ser ice in respect of those indi idual !ho !ere in alided out !ith almost ten years of ser ice. 8. ,o! the Mo3 in consultation !ith 3eptt of :ension and :ension 9elfare ha e clarified that in such cases nine years and nine months of ser ice can be

2 Armed Forces Law Journal 2012 (1) rounded off to ten yrs. Reduction of Court Cases on In alid :ension @. Apropos, it is hereby directed that all Cine 3tes$Record 4ffices to unconditionally !ithdra! from such cases, not!ithstanding the stage they might ha e reached in *on"ble Courts across the country !here L> a/ An indi idual has ser ed for almost ten years before he !as in alided out. Conse=uent to Mo3"s clarifications all those cases !here indi iduals ha e ser ed for nine yrs and nine months an abo e !ill be rounded off to ten yrs =ualifying ser ice for eligibility to!ards In alid :ension. b/ To be eligible for In alid :ension, an indi idual need not ha e been in alided out !ith attributable $ aggra ated ailment. *ence e en ,A,A cases are entitled to In alid :ension, pro ide they ha e ser ed for ten years an abo e but less than fifteen yrs. -no! effecti ely nine yrs and nine months/. c/ Reg 1'@ also stipulates no condition of minimum percentage in such cases for In alid :ension. d/ B en those cases, !here an CMC indi idual is retired $ discharged from ser ice for lac1 of alternati e employment compatible !ith his CMC are eligible for In alid :ension <. Cine 3tes$Record 4ffices are re=uested to effect !ithdra!al in cass by GoI diligently and !ith utmost care so that only those cases !here an indi idual !as in alided out !ith almost ten yrs of ser ice are !ithdra!n. T-ese d.rec*.ons are onl( 6or In7al.d !ens.on cases under Re3 1E'and no* 6or *-ose cases w-ere .nd.7.duals are see8.n3 #.sa,.l.*( !ens.on 6or -a7.n3 ,een .n7al.ded ou* w.*muc- less ser7.ce+ Con*en*s o6 *-.s le**er e66ec* onl( *-ose .nd.7.duals w-o were .n7al.ded ou* w.*- AL OST TEN BRS OF SER:ICE+ E+ All *F Comds are re=uested to sensiti+e the en ironment that indi iduals ,4T be recommended for in alidment by Cos$4Cs in ser ice brac1et of almost sten yrs to a oid litigations on the aspect and losses to the ser ice personnel unless other!ise una oidable for administrati e reasons. 1&. In case of any clarification, matters may be referred to this office on tele $ FAM-0)&7< -ARMT/ $ %000)&7<-CIEIC/ to pre ent any further losses to GoI$$

Armed Forces Law Journal 2012 (1) petitioners in infructuous litigations. 11. T-.s -as *-e a44ro7al o6 *-e Ad;u*an* "eneral+ (d$> MMMMMMMMM -A#ai (harma/ Col 3ir, A;$:(>7-Cegal/ For Ad#utant ;eneral

Copy to L Mo3 -:en$:olicy/ O 9ith a re=uest for issuance of a ;o t letter as per clarification issued by your office ide note %0 dt O &< Feb %&11 on case file of B.>(ep ;urba# (ingh TA ,o.%&$%&'' against C9: ,o.10<81$&< filed Mo3 $3-:en$Cegal/ O by e. (ep ;urba# (ingh so that such cases are treated as normal cases and admitted by :C3A -:/ O directly on cases ta1en up by Record 4ffices. :C3A -:/ > :ost clarification by 3eptt of :ension 5 :ension 9elfare on CC( -:ension/ Rule, 1'@%, you are Re=uested to admit claims for!arded by Record 4ffices. -:hotocopies of rele ant nothings are Bnclosed for ready reference/. 33; -:ens/ > Tour office is re=uested to consider issuing directions $ guidelines to medical officers to a oid in alidment out of indi iduals !ith almost ten yrs of ser ice. It has been obser ed that indi iduals !ith almost ten yrs are in alided out !hich denies such indi iduals benefit of In alid :ension and leads to litigations on the matter. DA; 3eptt > for info pl A;$:(>) > :l ta1e up case to e.pedite re=uired appropriate amendment by Mo3 -:en$:olicy/ A;$:(>7-Imp/ > May consider appeals on the issue in light of the CC( -:ension/ Rules, 1'@%. -Copies of rele ant noting are

Su4erscr.4* re6erence (a) 00

I*em (,) (ection %, The AFT Act, %&&@

Armed Forces Law Journal 2012 (1) + %. Applicability of the Act K -1/ The pro isions of this Act shall apply to all persons sub#ect to the Army Act, 1')& -78 of 1')&/, the ,a y Act, 1')@ -8% of 1')@/ and the Air Force Act, 1')& -7) of 1')&/. -%/ This Act shall also apply to retired personnel sub#ect to the Army Act, 1')& -78 of 1')&/ or the ,a y Act, 1')@ -8% of 1')@/ or the Air Force Act, 1')& -7) of 1')&/, including their dependants, heirs and successors, in so far as it relates to their ser ice matters.

Su4erscr.4* re6erence (a) 07

I*em (,) -i/(ection %, The Army Act,1')& -ii/(ection % of The Air Force Act,1')& -iii/(ection % of The ,a y act, 1')@

-i/T-e Arm( Ac*& 1E/0 L 2%. :ersons sub#ect to this Act K -1/The follo!ing persons shall be sub#ect to this Act !here er they may be, namely L> -a/ officers, #unior commissioned officers and !arrant officers of the regular ArmyN -b/ persons enrolled under this ActN -c / persons belonging to the Indian Reser e ForcesN -d/persons belonging to the Indian (upplementary Reser e Forces !hen called out for ser ice or !hen carrying out the annual testN -e/officers of the Territorial Army, !hen doing duty as such officers, and enrolled persons of the (aid Army !hen called out or embodied or attached to any regular forces, sub#ect to such adaptations and modifications as may be made in the application of this Act to such persons under sub>section -1/ of section ' of the Territorial Army Act, 1'7< -)8 of 1'7</N -f/persons holding commissions in the Army in India Reser e of 4fficers, !hen ordered on any duty or ser ice for !hich they are liable as members of such reser e forcesN -g/officers appointed to the Indian Regular Reser e of 4fficers, !hen ordered on any duty or ser ice for !hich they are liable as members of such reser e forcesN -h/ [[ -i/persons not other!ise sub#ect to military la! !ho, on acti e ser ice, in camp, on the march or at any frontier post specified by the Central ;o ernment by notification in this behalf, are employed by, or are in the (er ice of, or are follo!ers of, or accompany any portion of, the regular Army. -%/ B ery person sub#ect to this Act under clauses -a/ to -g/ _ of sub>section -1/

Armed Forces Law Journal 2012 (1) 1 shall remain so sub#ect until duly retired, discharged, released, remo ed, dismissed or cashiered from the ser ice.
[[ _

Clause -h/ omitted by the Adaptation of Ca!s -,o.0/ 4rder, 1')8 (ubstituted by the Adaptation of Ca!s -,o.0/ 4rder, 1')8 for 2-b/6

-ii)T-e A.r Force Ac*& 1E/0 L 2%. :ersons sub#ect to this Act.> The follo!ing persons shall be sub#ect to this Act !here er they may be, namely L> -a/officers and !arrant officers of the Air ForceN -b/persons enrolled under this ActN 5 \-c / persons belonging to the Regular Air Force Reser e or the Air 3efence Reser e or the Au.iliary Air Force, in the circumstances specified in section %8 of the Reser e and Au.iliary Air Forces Act, 1')% -8% of 1')%/NO -d/persons not other!ise sub#ect to Air Force la!, !ho, on acti e ser ice, in camp, on the march, or at any frontier post specified by the Central ;o ernment by notification in this behalf, are employed by, or are in the ser ice of, or are follo!ers of, or accompany any portion of the Air Force.
5

> substituted by Act 8% of 1')%, sec 0), for clause -c /

-iii/T-e Na7( Ac*& 1E/' L% 2:ersons sub#ect to na al la!.> -1/ The follo!ing persons shall be sub#ect to na al la! !here er they may be, namelyL> -a/e ery person belonging t the Indian ,a y during the time that he is liable for ser ice under this ActN -b/ e ery person belonging to the Indian ,a al Reser e Forces !hen he is K -i/ on acti e ser ice, or -ii/ in or on any property of the na al ser ice including na al establishments, ships and other essels, aircraft, ehicles and armouries, or -iii/called up for training or undergoing training in pursuance of regulations made under this Act, until he is duly released from his training, or -i /called up into actual ser ice in the Indian ,a y in pursuance of regulations made under Act, until he is duly released therefrom, or - /in uniformN -c /members of the regular Army and the Air Force !hen embar1ed on board any ship or aircraft of the Indian ,a y, to such e.tent and sub#ect to such conditions as may be prescribedN -d/e ery person not other!ise sub#ect to na al la!, !ho enters into an engagement !ith the Central ;o ernment under (ection 8N -e/e ery person belonging any au.iliary forces raised under this Act, to such

Armed Forces Law Journal 2012 (1) + e.tent and sub#ect to such conditions as may be prescribedN and -f/e ery person !ho, although he !ould not other!ise be sub#ect to na al la!, is by any other Act or during acti e ser e by regulations made under this Act in this behalf made sub#ect to na al la!, to such e.tent and sub#ect to such conditions as may be prescribed. -%/ The follo!ing persons shall be deemed to be persons sub#ect to na al la!, namelyL> -a/e ery person ordered to be recei ed, or being a passenger, on board any ship or aircraft of the Indian ,a y, to such e.tent and sub#ect to such conditions as may be prescribedN -b/e ery person sentenced under this Act to imprisonment or detention, during the term of his sentence, not!ithstanding that he is discharged or dismissed !ith or !ithout disgrace from the na al ser ice or !ould other!ise but for this pro ision cease to be sub#ect to na al la!.

Armed Forces Law Journal 2012 (1)

E!ILO"%E
1. At the end, I !ish to record my sincere gratitude, chronologically, to those !ho made this e.hilarating #ourney possible. %. Ma# -Territorial Army>TA/ ,a deep (ingh, a practicing la!yer in the *on"ble *igh Court of :un#ab 5 *aryana and AFT, Regional Bench, Chandigarh, has been not only the ery raison"d"etre for my initially applying to be considered for being appointed as Member -Administrati e/, but has indeed been the principal source of strength for me throughout my tenure as a Member of the AFT. 4ur association, beginning !ith my time as the ;4C>in>C in 9estern Command of the Army in %&&) has gro!n immensely e er since. Recipient of eight commendations from the Army and the Air Force, for instant and high =uality bac1>office legal$institutional> 1no!ho! support that he pro ides to the (er ices, I consider ,a deep to be the foremost contemporary authority on matters relating to pay and pensions of all categories of personnel of the three (er ices. Dust as he enriched and continuously 1ept me updated on all rele ant orders and #udgments on case la!s, he has also 1indly agreed to edit this *andboo1, to !hich I stand indebted. 0. *on"ble Dustice A A Mathur, retired Dudge of the (upreme Court and Chairperson of the AFT, !as the ne.t on the scene of this #ourney of mine !hen he as part of the selection committee of the Members of the AFT had inter ie!ed us all, indi idually in late %&&<, prior to confirmation of our appointments in Dun%&&'. I salute him !ith a!e and respect for his dynamism and unflagging energy that has been singularly responsible for operationalising all the 1) Benches of the AFT, in the face of numerous bureaucratic hurdles. *e is an inspiring leader and one single trait that !e ha e come to admire is his decision ma1ing abilityN he puts to shame most of us ;enerals in this regard? 7. *on"ble Dustice A. C. Arumugaperumal Adityan, retired Dudge of the Madras *igh Court and my colleague Sbrother" and Member -Dudicial/, has been an admirable companion and my #udicial mentor for these t!o and a half years. :unctilious to the !ord, a great disciplinarian and an implicit follo!er of the !ritten !ord, he indeed made it a pleasurable and an unforgettable e.perience to loo1 for!ard to Smore !or1" e ery Monday of each of these more than 10& !ee1s gone by? ). I o!e a lot to Mrs. Radha (ridharan, !ho came to !or1 on deputation from the :M"s 4ffice as my ::(. (tarting !ith typing and transcription !or1 of the dictated #udgments, ery soon she became an able #udicial assistant and built up the alue

2 Armed Forces Law Journal 2012 (1) + additions in the form of organi+ing all the reference material -made up of related case la!s, dictums, ;o ernment orders$notifications/ into a readily usable force multiplier. 8. Castly, I !ould li1e to compliment and record my appreciation to my fello! founder Members in other Benches, the :rincipal Registrar of the :rincipal Bench at ,e! 3elhi, the Registrar 5 3y Registrar of the Chennai Bench, the small but dedicated heterogenous staff of e.>Army and retired ci il go ernment personnel of the Chennai Bench and abo e all the Ad ocates !ho practiced in the Chennai Bench and !ho are no! organi+ed as a Bar Association. It !as great feeling to be part of a team that deli ers all the time.

Dai *ind? Chennai, 1)th Feb %&1% Ct. ;en -Retd/ (. :attabhiraman