Armed Forces Tribunal
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Armed Forces Tribunal (AFT): The Division Bench of Justice Umesh Chandra Srivastava (Chairperson) and Vice Admiral Abhay Raghunath Karve, Member (A) held that there is no barometer that can assess the disability percentage to the extent of 1% and therefore, the percentage of disability which has been assessed as 15-19% may be 20% also and there may be variation of at least two percent plus.

Briefly stated facts of the case were that the applicant was enrolled in the Indian Air Force on 14-11-1995 and was discharged on 30-11-2015 in Low Medical Category (Permanent). At the time of his retirement, the Release Medical Board (RMB) assessed his disability ‘SEVERE OBSTRUCTIVE SLEEP APNOEA (OLD)’ at 15-19% for life and opined the disability to be neither attributable to nor aggravated (NANA) by service. The applicant approached the respondents for grant of disability pension but the same was rejected, pursuant to which the applicant had preferred the present Original Application.

The applicant pleaded that he was enrolled as Radio Fitter (Electronics & Telecommunication) trade and was working in advance defence ground environmental system which deals with Radar and Radio equipments and such units are usually at High Altitudes, thus environmental condition leads to stress and strain which had affected his health badly. He submitted that in the year Dec 1998, he was posted at High Altitude Area i.e. Dalhousie (H.P.) located above 10,000 feet and to protect from cold large heating blowers were used. Due to high altitude there was lack of oxygen and due to use of blowers there was lack of moisture content which resulted in breathing problems. In the last phase of his three years tenure, he started having breathing problems at High Altitude due to Nasal Blockage. He further submitted that claim for the grant of disability pension was wrongly rejected on the ground of disability percentage being less than 20% and NANA.

Regarding the issue of disability being assessed as less than 20%, the Tribunal stated that various Tribunals and Courts had found that,

“The assessment of disability to the tune of 15-19% itself is a doubtful assessment and cannot be final for the simple reason that there is no barometer which can assess the disability percentage to the extent of 1% and therefore, the percentage of disability which has been assessed as 15-19% may be 20% also and there may be variation of at least two percent plus also. In case of doubt as the benefit should always be given to the applicant.”

Noticeably, the applicant was enrolled in Indian Air Force in fully fit condition after rigorous medical examination and the disability was detected for the first time in January 2008 after more than 12 years of Air Force service. Therefore, the Tribunal held that disability of the applicant must be presumed to have arisen in the course of service which must, in the absence of any reason recorded by the Medical Board, be presumed to had been attributable to or aggravated by service. Further, there was neither any note in the service record of the applicant at the time of his entry nor was any reason been recorded by the RMBoard that the disease which the applicant was found to be suffering from, could not have been detected at the time of his entry into service hence the reasoning for denying disability pension to applicant was not convincing and did not reflect the complete truth on the matter. The Tribunal remarked,

“The opinion that ‘SEVERE OBSTRUCTIVE SLEEP APNOEA (OLD)’ is caused by obesity and included anatomical variations resulting in airway collapse and apnoea is an good opinion, but nowhere rules out that this may not occur due to conditions of service.”

In the backdrop of above, the Tribunal held that the benefit of doubt in should be given to the applicant and the disability of the applicant should be considered as aggravated by military service. Accordingly, the impugned orders rejecting claim for grant of disability element to the applicant were set aside. The respondents were directed to grant disability element of the pension at 15-19% to the applicant, which was directed to stand rounded off to 50% from the date of discharge.[Rohitash Kumar Sharma v. Union of India, 2021 SCC OnLine AFT 1413, decided on 18-01-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Tribunal:

For the Applicant: Rohitash Kumar Sharma (In-person)

For the Union of India: Govt. Counsel Kaushik Chatterji

Armed Forces Tribunal
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Armed Forces Tribunal (AFT): The Division Bench of Justice Devi Prasad Singh (Chairperson) and Air Marshal BBP Sinha, Member (A) heard the instant application wherein the allegation was levelled against the authority concerned of non-observance of Tribunal’s order.

The applicant was enrolled in the Army as Sepoy on 23-01-1980. On account of certain family dispute, coupled with the fact applicant was charged with bigamy, his services were dispensed after serving a show-cause notice on 25-01-1996 i.e. after rendering service for the period of 14 years and 6 months.

The applicant had requested the authorities that the six months’ period required to complete 15 years of service for payment of pensionary benefits be condoned. In the application, the Tribunal had directed the respondents to decide the statutory appeal of the applicant by passing a speaking and reasoned order with regard to condonation of six months’ period so that the applicant may be paid pensionary benefits. However, the same had been decided by a non-speaking order.

The Bench observed that the authorities concerned had the right to condone a period of one year for the purpose of payment of pensionary benefits yet they had not applied mind while complying with the direction Tribunal. The Bench stated,

In case he (the applicant) was entitled to pensionary benefits after the order of discharge, which was not punitive one, it was incumbent upon the respondents to consider the impugned order of discharge without going back to the cause for passing the order of discharge.

If the applicant’s conduct had been bad then it would be open to the respondents to pass an order of dismissal, so that the applicant might not get any retiral benefits even if he had completed the qualifying minimum period of service. Considering that the respondents themselves had taken a lenient view, it was not open for them to look into the backgrounds or reason.

“The order of discharge might have been passed for bigamy but in any case right to avail pensionary benefits and law over the point is one and same and it may not be correct to discriminate any person in the matter in the Armed Forces.”

The Bench opined that once a person is entitled to payment of pensionary benefits after discharge then provision must be considered judiciously for payment of pensionary benefits, more so when no punitive order had been passed. Hence, the respondents were directed to reconsider the application of the applicant expeditiously, keeping in view the prayer made by him for condonation of the period of six months to complete 15 years of service for payment of pensionary benefits. Further, the cost of Rs.50,000 was imposed upon the respondents which were ordered to be released in favour of the applicant.[Ram Bahadur Singh, v. Union of India,  2018 SCC OnLine AFT 9435, decided on 18-01-2018]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Tribunal:

For the applicant: Adv.  Parijaat Belaura

For the respondents: Adv. Shailendra Sharma Atal, and Adv. A.K. Sahu

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench comprising of Rajiv Sharma and Lok Pal Singh, JJ. allowed a writ petition directing the Central Government to establish a regional bench of the Armed Forces Tribunal in the State of Uttarakhand.

The petition was filed by ex-servicemen, a practicing advocate. He demanded the establishment of a permanent bench of the Armed Forces Tribunal in the State of Uttarakhand. According to the petitioner, it was difficult for the serving as well as retired servicemen to have access to the Armed Force Tribunal at Lucknow. It is noteworthy that the Lucknow bench was established in the year 2009 with jurisdiction over the States of Uttar Pradesh, Madhya Pradesh, Chhattisgarh, and Uttarakhand. Later, in 2016, a regional bench was established at Jabalpur with jurisdiction over Madhya Pradesh and Chhattisgarh. It was submitted that a total of 220 cases of the Uttarakhand State were pending before the regional bench at Lucknow. Thus, the petitioner sought the prayer as mentioned hereinabove.

The High Court noted that the underlying principle of Armed Force Tribunal Act 2007, is to provide access to justice within a reasonable cost to the service personnel. Further, the largest number of service personnel hailed from the State of Uttarakhand. Section 30 of the Act bars the jurisdiction of all civil courts as well as the high courts in the service matters of the servicemen. There were 220 pending cases from the State, and this number seemed to be less as many cases including those by the widows of the service personnel must have never reached the bench at Lucknow since it is difficult for many people to reach the bench at Lucknow, given the geography and difficult terrain of the State. The High Court observed access to speedy justice is a fundamental right under Article 21 of the Constitution. Armed Forces Tribunal had been constituted to fortify the trust and confidence among members of the three services in the system of dispensation of justice in their service-related matters. The servicemen have a right to approach the Tribunal for adjudication of their service matters at a reasonably accessible place. The sacrifices made by the armed forces personnel during active war and peace could not be forgotten. The society has a duty to ensure that their grievances are redressed immediately. Having observed thus, the High Court directed the Central Government to establish a regional bench of the Armed Forces Tribunal in the State of Uttarakhand, at an appropriate place. [Lalit Kumar v. Union of India, 2018 SCC OnLine Utt 579, dated 12-06-2018]

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Armed Forces Tribunal, Principal Bench, New Delhi: Hon’ble Justice Babu Mathew P. Joseph And Lt. Gen. Gautam Moorthy quashed a previous order by granting the claim of Special Family Pension to the aggrieved in respect of her husband Late Subedar ML Sharma.

The applicant had filed an application to claim Special Family Pension and Ex Gratia payment against the Ordinary family pension she was receiving. Applicant is the widow of late Subedar ML Sharma who died on duty due to Myocardial Infraction. Though later, the applicant did not press her claim of Ex Gratia payment.

Applicant’s claim was turned down on the ground that the death of the deceased husband of the applicant was not attributable to or aggravated by military service. There are no records of ML Sharma having any ailments at the time of his entering the military services. The deceased was posted to serve in field areas involving operational hazards causing stress and strain. The opinions of Court of Enquiry were all in favour of the deceased’s death being attributable to military service.

The medical authorities shared the view that the death was not attributable to military service, as the death occurred in peace station while in service as a result of Myocardial Infarction which is not related to or precipitated by stress or strain in service.

Therefore, the Tribunal observed that the death was attributable to military service and directed the payment of Special Family Pension to the applicant, for which the respondents were asked to issue a corrigendum pension payment order granting the special family pension. [Sita Devi v. Union of India, 2018 SCC OnLine AFT 152, order dated 10-01-2018]

Case BriefsSupreme Court

Supreme Court: Deciding the question as to the scope of power of Armed Forces Tribunal to hear the appeals arising out of court martial verdicts qua GREF personnel, the Court held that denial of jurisdiction to the said tribunal would be contrary to the Army Act, 1950 and the provisions engrafted under the Armed Forces Tribunals Act, 2007. It was held that the right to approach the AFT by the personnel of GREF who are tried by a court martial held under the very same Act has to be recognized. It was, however, clarified, that at the same time if the punishment is imposed on GREF personnel by way of departmental proceedings held under the CCS(CCA) Rules, 1965 the same cannot be agitated before the AFT and AFT shall have no jurisdiction to hear and decide grievances of GREF personnel relating to their terms and conditions of service or alternatively put ‘service matters’.

The bench of Dipak Misra and U.U. Lalit, JJ explained that the 2007 Act has been made applicable to persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950, the retired personnel subject to these Acts including their dependants, heirs and successors insofar as it relates to their service matters. The tribunal constituted in terms of Sections 4 and 5 thereof, is vested with twin jurisdiction viz., jurisdiction, powers and authority in service matters as provided in Section 14 and the jurisdiction in matter of appeal against courts martial under Section 15 of the Act.

It was further stated that the 1950 Act and the Army Rules, 1954 have been applied to civilian personnel of the GREF only for the purpose of discipline. The reasons are obvious. The GREF is a force raised and maintained under the authority of the Central Government, its units are set up on the lines of the Indian Army, it works with and under close coordination with regular army in border areas, facilitates the Indian Army to carry out its operational role, etc. Hence, it has been felt appropriate that the 1950 Act should be made applicable to a force raised and maintained by the Central Government as considered necessary in the interest of discipline. The issue can be perceived from a different perspective. The GREF personnel are subjected by legislative scheme to dual disciplinary control, and such an arrangement is permissible

Hence, if an offence is committed in relation to an enemy, offences on active service, mutiny, desertion, disobedience, etc., considering the nature and gravity of the offence, it may warrant severe action against the delinquent by way of trial by a court martial. In other disciplinary cases, the competent authority may decide to proceed under CCS(CCA) Rules, 1965 in which the maximum permissible punishment is only ‘dismissal from service’. [Mohammed Ansari v. Union of India, 2017 SCC OnLine SC 83, decided on 02.02.2017]

 

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Armed Forces Tribunal, Lucknow: The Division Bench comprising of D.P Singh, J and Air Marshal Anil Chopra stating that Constitution is the mother of all the laws and has overriding effect over Personal Law as well as other provisions, practices or usage which offend the constitutional right of persons, collectively or individually, held that Triple Talaq by ex parte is Un-Islamic, inhuman and unconstitutional.

By observing all the aspects of the Muslim Personal Laws in relation to marriage and divorce in the relation to Constitutional Principles. The Court stated the following findings:

  • Nikah is based on offer and acceptance between man and woman. Unless both agree, there can’t be Nikah and on the same analogy, the declaration of talaq must be done in the presence of wife and only if both agree, talaq would be executed. In the disagreement, wife is left with the option to file the Regular suit for divorce where the court may accept or refuse the grant of talaq by looking into the grounds of both the parties.
  • The sweep of Article 14 and 21 of the Constitution covering rationality and fairness along with dignity and quality of life shall override the right conferred by Article 25 and 26 of the Constitution. A lady cannot be compelled to marry again to another person before marrying her husband again after talaq as a condition. It is humiliating and against the dignity of a lady.
  • In Muslim Law, marriage is a contract and Constitution of India doesn’t entitle the husband to rescind contract, orally, by notice or by ex parte decisions, hence seems to be unsustainable.
  • In appropriate case, a person may be charged under the Penal Code (supra) for abusing his position as husband whether it is for the purpose of divorce or remarriage.
  • The Collective Rights of the Citizens protected by the Part III of the Constitution may not be infringed under grab of the Personal Laws.
  • The declaration of the oral triple talaq by ex parte proceedings may not be given force by government machinery or the courts hen the subject matter being contrary to the constitutional ethos.
  • The Army Authorities ordered for the grant of maintenance to wife in pursuance to power conferred by Section 96 of the Army Act, 1954 read with Army Orders is perfectly within jurisdiction and calls for no interference.
  • Women of every religion of the country are protected by the Constitution of India. No one has right to go against it in the shadow of personal law.

The Applicant had filed a petition under Section 14 of the Armed Forces Tribunal Act, 2007 being aggrieved with payment of maintenance to his wife, allegedly divorced under the Muslim Personal Law and had contended that his wife was entitled to maintenance for the period of Iddat only. The Tribunal rejected the claim of the applicant for lack of merit. [Lance Naik v. Chief of Army Staff, Original Aplication No. 287 of 2012, decided on 25-05-2016]

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Case BriefsSupreme Court

Supreme Court: The bench of PC Ghose and Amitava Roy, JJ stayed the implementation of the order of the Armed Force Tribunal, Lucknow (AFT) dated 13.05.2016 where the appellant was reverted from the post of Lt. General to Brigadier.

The appellant belongs to the Army Ordnance Corps (AOC) which is responsible for provisioning, receipt, accounting, warehousing, stocking, issue, conditioning, repair, and disposal of all types of Ordnance Stores, Vehicle, Aviation stores and Ammunition. The AFT had ordered for the demotion of the appellant for concealing material facts regarding the unfilled column in the Confidential Report submitted to him. It was held that the appellant had tried to divert the matter with the tacit support of certain persons of Ministry of Defence, by stating that the case is of eraser, over-writing, use of whitener or paper slips pasted to remove or block the original assessment. The AFT said that the Issue of gap or unfilled column is entirely different than the issue of eraser, over-writing, use of whitener, paper slips pasted to remove or block the original assessment. Having said that, the AFT said that the Bench Mark and Criteria mentioned for promotion under the policy cannot be flouted in the matter of selection and promotion.

The Court listed the matter on 09.08.2016 and said that the implementation of the AFT’s order be stayed till then. [Union of India v. Brig. N.K. Mehta 2016 SCC OnLine SC 595, decided on 30.05.2016]

To read the Armed Forces Tribunal Order, Refer below

AFT Order