Armed Forces

Armed Forces Tribunal
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Armed Forces Tribunal (Lucknow Bench): The Division Bench of Justice Umesh Chandra Srivastava, Member (J) and Vice Admiral Abhay Raghunath Karve, Member (A) held that a cadet is akin to a probationer; hence, the employer has a right to discharge a Cadet who is not meeting the medical standards required for military service/training.  

Factual Background 

The applicant joined Officers Training Academy (OTA), Chennai on 05-04-2012 as a Lady Cadet; where she was available for training only for 19 days and was continuously absent from training from 18-04-2012 to 19-11-2012.  

Later on, the applicant was invalided out from service in low medical category due to the following disabilities: 

  • “Persistent Somatoform Pain Disorder” at 40% for life; and  
  • “Non-Supportive Ottis Media (LT) With Mild Hearing Impairment”, at 6-10% for life 

The disabilities were considered as neither attributable to nor aggravated by military service. Therefore, the claim of the applicant for ex-Gratia payment was rejected. Similarly, the first and second appeals of the applicant were also rejected.  

The respondent contended that the applicant’s claim of alleged development of disability (hearing impairment) due to pressure of military training was incorrect and unjustified since cadets are neither subject to hard physical or mental toughness training nor put through weapon training during their initial phase of training in the junior terms. A gradual and easy start is given to all new cadets to enable them to develop their capability to withstand tough military training in later phases of their training. 

Grievances of the Applicant 

As per the applicant, she was under stress and strain of military training which led to the occurrence of the injury. Therefore, both the disabilities should be considered attributable to or aggravated by military service and she should be paid the disability pension and Ex Gratia accordingly.  

The applicant submitted that she had applied for women entry of Short Service Commission (Technical) and at the time of medical board after Services Selection Board (SSB), she was declared temporary unfit due to Chronic Ottis Media (LT) with mild hearing impairment. Later on, after being operated Chronic Ottis Media (LT), she was declared fit in SHAPE-1 by the Army Medical Board. Thereafter, she joined OTA on 05-04-2012.  

Further, the applicant claimed that in May 2012, due to pressure of military training, she had developed a relapse of Chronic Ottis Media (LT) with mild hearing impairment and was treated first at MH Chennai and then at Command Hospital, Air Force, Bangalore, and was placed in medical category H-2 (Temporary) on the recommendation of ENT Specialist.  

Evidently, it was in June 2012 that the applicant was diagnosed with “Persistent Somatoform Pain Disorder” and was recommended to be medically invalided out of service in low medical category S-5.  

Findings and Conclusion  

The Tribunal relied on Narsingh Yadav v. Union of India, (2019) 9 SCC 667, wherein the Supreme Court had held that mental disorders cannot be detected at the time of recruitment and their subsequent manifestation does not entitle a person to disability pension unless there are very valid reasons and strong medical evidence to dispute the opinion of Medical Board. 

Noticing that the applicant had attained the training for a brief period of 15 days, the Tribunal affirmed the findings and opinion of the Medical Board and the Appellate Committee. The Tribunal held that a cadet is akin to a probationer and hence the respondents as an employer have a right to discharge a Cadet who is not meeting the medical standards required for military training/service. Therefore, the Tribunal upheld the opinion of the Medical Board that the applicant’s disability is neither attributable to nor aggravated by military service, and hence, she is not entitled to disability pension and Ex Gratia.  

In view of the above, the Original Application was dismissed.  

[Nira Chaudhary v. Union of India, Original Application No. 99 of 2021, decided on 28-04-2022]  

Appearance by:  

For the Applicant: Vinay Sharma holding brief of Col Y.R. Sharma (Retd), Advocate 

For Union of India: Dr. Shailendra Sharma Atal, Central Govt Counsel 

Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In a case where the bench of MR Shah* and BV Nagarathna, JJ was posed with the question as to whether on re­employment in the government service, an employee who was serving in the Indian Army/in the Armed Forces shall be entitled to his pay scales at par with his last drawn pay, it has been held that a claim for the last drawn pay in the armed forces is not a matter of right.

The issue revolved around the interpretation of Para 8 of the Central Civil Services (Fixation of Pay of Re­employed Pensioners) Order, 1986 [CCS Order]. The Court observed that as per the said provision, Emergency Commissioned Officer and a Short Service Commissioned Officer working in the Armed Forces on his employment to a civil post shall be entitled to advance increments equal to the completed years of service rendered in the Armed Forces on a basic pay equal to or higher than the minimum of the scale attached to the civil post in which they are employed. However, the pay arrived at should not exceed the basic pay last drawn by them in the Armed Forces.

Further, Para 8 of the CCS Order makes a reference to two rates of pay in case of emergency commissioned officers and short service commissioned officers being appointed in the government service:

First, they may be granted advance increment equal to the completed years of service rendered by them in the armed forces on a basic pay equal to or higher than the minimum of the scale attached to the civil posts in which they are employed. The pay is to be fixed with reference to the scale attached to the civil posts in which they are employed;

Second, while computing the pay in the aforesaid manner it should not exceed the basic pay last drawn by them in the armed forces. In another words, while computing the pay of the said officers who joined the civil posts their pay cannot exceed last drawn pay by them in the armed forces. In case it exceeds then it is capped to the last drawn pay in the armed forces.

The Court also explained that Para 8 of the CCS Order does not indicate that the pay last drawn by the re-employed person in the armed forces should be the pay to be computed when he joined the civil post. There is no entitlement of pay protection under para 8 of the CCS.

“The manner of computation of pay as envisaged under para 8 also clearly stipulates that the pay so arrived at should not exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by the respondent in the armed force. That does not mean that the respondent is entitled to a pay equal to what was last drawn by him in the armed force.”

The Court made clear that the reference to the last drawn pay in the armed forces is only to ensure that the pay computed in the civil post in the manner envisaged in para 8 of CCS Order does not exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by the personnel in the armed forces. For example, if the minimum of the scale attached to the civil post is higher than the last drawn pay of the personnel in the armed force and while computing the pay for the civil post as envisaged under para 8 of CCS if it so exceeds then possibly the last drawn pay in the armed forces could be paid. The said Rule prescribes fixation of a pay exceeding the basic pay (including the deferred pay but excluding other emoluments) last drawn by the personnel in the armed forces in respect of the civil post to which an exarmed force personnel is appointed. Thus, in a case where computation of pay exceeds last drawn pay in the armed forces then, in such a situation possibly the last drawn pay of such a personnel can be fixed.

[Union of India v. Anil Prasad, 2022 SCC OnLine SC 665, decided on 20.05.2022]

*Judgment by: Justice MR Shah

Counsels

For UOI: ASG Aishwarya Bhati

For Respondent: Senior Advocate Vinay Kumar Garg

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., affirmed impugned judgment of the Gauhati High Court whereby the High Court had reversed the findings of the Single judge who had interfered with the order of disciplinary authority and remanded the matter for re-consideration.

The Court held that punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him. The Court opined,

“…merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind.”

Facts

The petitioner-appellant was serving as a Head Constable (Ministerial) in Sashastra Seema Bal (SSB) when he was charged with violation of good order and discipline under Section 43 of the Shashastra Seema Bal Act, 2007, for having entered the Mahila Barrack of the Battalion at around 00:15 hours. Resultantly, the petitioner-appellant was charged for compromising the security of the occupants of the Mahila Barrack. The Summary Force Court (SFC) found him guilty of the charges and initially ordered for his dismissal but subsequently, converted the pentaly to ‘removal from service’.

The Single Judge interfered with the order of punishment imposed by the disciplinary authority of ‘removal from service’ solely on the ground that female constable, Rupasi Barman, who allowed the entry of the delinquent during her sentry duty, was inflicted a lesser penalty – forfeiture of two years seniority in the rank of constable and also forfeiture of two years’ service for the purpose of promotion only. Whereas the petitioner-appellant was inflicted the punishment of ‘removal from service’, which was disproportionate.

Analysis and Findings  

The Court noted that the petitioner-appellant was imposed the penalty of ‘removal from service’ after following the procedure prescribed under the SSB Rules. Therefore, opining that the nature of allegations against the petitioner-appellant was grave in nature, the Court remarked,

“He entered the Mahila Barrack in the midnight at around 00:15 hours, may be to meet his alleged friend Rupasi Barman, but such an indisciplined conduct leading to compromising the security of the occupants of the Mahila Barrack cannot be tolerated.”

Relying on the decision in Union of India v. Diler Singh, (2016) 13 SCC 71, the Court held that a member of the disciplined force is expected to follow the rules, have control over his mind and passion, guard his instincts and feelings and not allow his feelings to fly in a fancy. Observing that the nature of misconduct proved against the petitioner-appellant was unpardonable, the Court opined that when the disciplinary authority considered it appropriate to punish him with the penalty of ‘removal from service’, which was confirmed by the appellate authority, thereafter it was not open for the Single Judge to interfere with the order of punishment. The Court noted,

“The misconduct committed by the delinquent official, being a male Head Constable cannot be equated with the misconduct committed by the female constable.”

Conclusion

In the backdrop of above, the Court opined,

“The misconduct of entering the Mahila Barrack of the Battalion in the midnight is more serious when committed by a male Head Constable. Therefore, the learned Single Judge committed a grave error in comparing the case of female constable with that of the appellant – delinquent, male Head Constable.”

Hence, the appeal was dismissed and the order of the Division Bench of the High Court was upheld.

[Anil Kumar Upadhyay v. Director General, SSB, 2022 SCC OnLine SC 478, decided on 20-04-2022]

*Judgment by: Justice M.R. Shah

Appearance by:

For the Petitioner-appellant: Ankita Patnaik, Advocate

For the Respondent: Vaishali Verma, Advocate

Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: Stating that, the intention of a person can be gathered from the words spoken or written or other expressions, Sanjay Dhar, J., expressed that,

Expression of outrage at the negligence and inhuman attitude of the security forces, police and establishment would come within the ambit of freedom of expression of an individual which includes freedom to criticize the Government of the day which is permissible under law but the same may not be the position if an individual questions the fact of a State being a part of the Country by using the expression ‘occupation of military or the people being slaves etc.

The petitioner had challenged an FIR for the offence under Section 13 ULA(P) Act.

In the petition, it was stated that, the petitioner was an advocate practising for last about 10 years. In 2018, six civilians were killed and more than 60 injured men, women and children in a blast.

Further, it was averred that the petitioner being a resident of the village in which the tragedy had happened, made certain comments regarding the incident on Facebook. According to the petitioner, the theme of the said posts was that there had been negligence which led to the killing of the above-said civilians and that the District Police, Kulgam, and the local administration were principally responsible for the same.

Petitioner submitted that, there was nothing illegal in the posts which were uploaded by him on his Facebook, but an impugned FIR was registered branding the petitioner as an anti-national element.

Analysis, Law and Decision

High Court on perusal of Section 13 of ULA(P) Act stated that a person can be punished for unlawful activities, if he takes part in or commits, advocates, abets, advises or incites the commission of unlawful activity. Even if a person assists any unlawful activity of any association declared as unlawful, he can be subjected to punishment under the aforesaid provision.

The Bench noted that some portions of the first post highlighted that the petitioner advocates that the people of Kashmir are slaves, and it is under occupation which is like cancer. The other post indicated that the petitioner was advocating that this part of the country was under the occupation of the Indian Military.

In Court’s opinion, the freedom of speech and expression guaranteed under the Constitution cannot be stretched to such a limit as to allow a person to question the status of a part of the country or its people.

It is one thing to criticize the Government for its negligence and express outrage on the violation of human rights of the people but it is quite another to advocate that the people of a particular part of the Country are slaves of the Government of India or that they are under occupation of armed forces of the Country.

The Bench expressed that, the petitioner was advocating and supporting the claim that Jammu and Kashmir were not a part of India and that it was occupied by the Indian military with the people having been reduced to the status of slaves. Thus, he was questioning the sovereignty and territorial integrity of the Country.

“…petitioner by uploading these posts has cross the Lakshman Rekha which demarcates the freedom of expression guaranteed under Article 19 of the Constitution of India from the reasonable restrictions imposed on such freedom on the ground of sovereignty and integrity of India.”

Hence, the petitioner’s act, prima facie fell within the definition of ‘unlawful activity’ as contained in Section 2(o) of the ULA(P) Act punishable under Section 13 of the Act.

Lastly, the Court held that quashing the proceedings at present would amount to stifling a genuine prosecution, which is not permissible in view of the Supreme Court decision in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, 2021 SCC Online SC 315. Therefore, the petition was dismissed. [Muzamil Butt v. State of J&K, 2022 SCC OnLine J&K 272, decided on 22-4-2022]

Advocates before the Court:

For the Petitioner: M.A. Qayoom, Advocate

For the Respondent: Asifa Padroo, AAG

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (Chandigarh Bench): The Bench of Justice Dharam Chand Chaudhary (Member J) and Vice Admiral HCS Bisht (Member A), granted war injury pension to the ex-serviceman who had sustained injuries resulting in disability during Operation Hifazat.

Brief facts of the case were that the applicant was enrolled in the Indian Army on 29-01-1981 in a fit medical category. During service, the applicant was deployed in Triupra under Operation Hifazat and suffered grievous injuries while moving for search operation against insurgents. The said accident resulted in a disability namely Compression Fracture which was duly declared a “Battle casualty” and was held to be “attributable” to service.

Owing to his permanent low medical category, the applicant opted for voluntary discharge from service and he was accordingly released from service on 31-10-2000. The grievance of the applicant was that the respondents had wrongly rejected him claim for War Injury pension on the ground that he was discharged at his own request; therefore, he was not entitled to any disability benefits.

Noticeably, the Government of India, Ministry of Defence had issued a Policy dated 19-05-2017 declaring to grant the benefit of disability and war injury pension to those who have sought voluntarily retirement.

Hence, considering the government policy along with the written statement filed by the respondents that the applicant was proceeding to participate in specific search operation against insurgents during (CI) Counter Insurgency Operation and that it was a battle casualty in operation HIFAZAT-II which was corroborated by the Release Medical Board proceedings, the Bench held that the applicant was entitled to war injury pension.

Resultantly, the respondents were directed to process the claim of war injury pension of the applicant in terms of the Policy of the Government and subject to verification the arrears were directed to be released within a period of three months. [Ram Pal v. Union of India, O.A. No. 634 of 2021, decided on 01-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Applicant: Navdeep Singh, Advocate

For Union of India: Sutikshan Sharma, CGC

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (Lucknow Bench): The Division Bench of Umesh Chandra Srivastava, J., and Vice Admiral Abhay Raghunath Karve, Member (A) slammed the government for failing to call back the apprehension roll of the applicant even after accepting her resignation. The applicant had been declared a deserter for not resuming her duty even though her resignation application was accepted by the authorities concerned.

Brief facts of the case were that after serving ten days in the Army Medical Corps, the applicant submitted an application for resignation on the ground that she was detailed for MOBC course at Lucknow. As per the applicant she was assured by the DGAFMS during selection interview that she would be allowed to live with her parents for some time in Delhi. The applicant also wrote a letter  for  cancellation  of  Part-II  Order  with  respect  to  commissioning  in  AMC.

According to the applicant, her resignation was  accepted  vide  letter  dated  02-09-2008  and  the  same  was  conveyed  to  her.    Applicant  got  married  on  01-07-2017  and  while proceeding to Zurich for honeymoon trip she was stopped  at Airport by immigration department on the pretext of look out  notice (apprehension roll) sent by Base Hospital, Delhi Cantt in  the  year  2008,  which  according  to  applicant  gave  her  mental  pain  and  agony. The applicant contended that her  detention  at  the  Delhi  Airport  in  2017  caused  irreparable damage to her and her parents‟ reputation, in eyes  of  her  husband  and  her  in-laws, therefore, she pleaded for revocation  of  all  actions  against  her  issued  after submission of her resignation from Army service and acceptance by the authorities concerned.

On the other hand, the respondents submitted that the applicant was initially granted 11 days leave which was extended to 60 days leave and the applicant ought to have rejoined from leave on 13-07-2008 which she failed to do. Thereafter, apprehension roll was issued and same being in force, her resignation was accepted vide order dated 02-09-2008. The respondent contended that since the applicant did not report in spite of being duly informed by the unit on multiple occasions, her documentation with regard to final acceptance of resignation could not be completed and the letter dated 02-09-2008 conveying provisional acceptance of her resignation became infructuous and void.

The Tribunal noticed that though vide order dated 02-09-2008 her resignation was approved but presumably the apprehension roll was left uncancelled due to oversight on the part of the respondents which resulted in her detention on 04-07-2017 at Airport when she was to leave for Zurich with her husband, but later on she was released from custody. On scrutiny, the Bench came to know that vide order dated 20-07-2017 applicant was allowed to leave India subject to her filing of an undertaking that she will return within a period of two months.

Noticing that although the apprehension roll was issued on 26-07-2008 and she visited and met the Commandant, Base Hospital, Delhi Cantt along with her father on 22-09-2008, nearly two months after issue of the apprehension roll, no steps were taken by the Hospital authorities to apprehend the applicant, the Bench opined that the such actions indicated that they had no intention of apprehending the applicant, presumably as her resignation had already been accepted on 02-09-2008. The Bench stated,

“Prima facie it appears to be a case of non application of mind by the respondents while dealing with the present matter as after acceptance of her resignation in the month of September, 2008, respondents ought to have cancelled their apprehension roll which caused great distress and hardship to applicant throughout and particularly while proceeding abroad on honeymoon in the year 2017.”

Consequently, the Bench opined that since the respondents had accepted her resignation in September, 2008 after following due process and thereafter, no proceedings were required to be held in applicant’s case, being not subject to Army Act. In view of the above, respondents were directed to cancel all proceedings against the applicant carried out after 02-09-2008. Impugned orders with respect to applicant were hereby quashed. [Parul Jain v. Union of India, 2021 SCC OnLine AFT 7429, decided on 02-12-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Applicant: SS Pandey, Advocate and SS Rajawat, Advocate.

For Union of India: Sunil Sharma, Central Govt. Standing Counsel

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (Principal Bench): The Bench of Rajendra Menon, J., (Chairperson) and Lt Gen P.M. Hariz, Member (A) held that punishment of ‘Severe Reprimand and 07 days pay fine’ after summary trial does not fall under the umbrella of service matters. Therefore, the Tribunal has no jurisdiction to deal with the same.

Facts of the Case

The instant application had been filed to assail the punishment order vide which, on the basis of a summary trial, punishment of ‘Severe Reprimand and 07 days pay fine’ had been imposed on the applicant. The applicant had requested to quash the aforesaid punishment and that his case be considered for promotion.

The respondent contended that the grievance raised by the applicant and the relief claimed for, do not fall within the purview of ‘service matters’ as defined in Section 3(o) of the AFT Act; therefore, the Tribunal did not have jurisdiction to deal with the issue in question.

To assail the contention raised by the respondent, the applicant had relied on the decision of Major Kunwar Ambreshwar Singh v. Union of India, 2014 SCC OnLine All 15134, wherein the Allahabad High Court had held that the Tribunal had jurisdiction in the matter. In that case the High Court had interpreted the provisions of Section 3(o) of the AFT Act as follows:

“In view of above, while interpreting the provisions contained in Section 3(o) of the Act, the provisions contained in Clause (iv) containing the words, ‘any other matter, whatsoever,” cannot be excluded. In case these words are not taken into account, it shall make Clause (iv) redundant which is not permissible under Interpretative jurisprudence.

…A plain reading of the aforesaid provision reveals that it is not covered by the exception provided under Clause (iv) of sub-section (o) of Section 3 of the Act. Accordingly, it was not open for the Armed Forces Tribunal to remand back the case to the High Court. The tribunal has failed to exercise jurisdiction vested in it. The jurisdiction conferred by the statute cannot be diluted or interpreted otherwise by applying the principle of reading down. In case the order of the Principal Bench of Armed Forces Tribunal, New Delhi is upheld, it shall amount to supply of cautious omissus to Section 3 of the Act and deprive the right of army personnel to approach the tribunal for expeditious disposal of a dispute relating to the punishment awarded to them.

The punishment of ‘severe reprimand’ affects the service career of the army personnel. Even under dictionary meaning, the punishment of ‘severe reprimand’ shall be service matter and be amenable before Armed Forces Tribunal constituted under the Act.”

Analysis and Opinion

“A perusal of the definition of ‘service matters’ indicates that it has an ‘inclusion clause’, which includes certain matters, which are included within the definition of the ‘service matters’ and thereafter proceeds to exclude certain matters from the purview of ‘service matters’. However, very interestingly, in the inclusions clause, sub-clause (iv) reads as under: ‘any other matter, whatsoever’”

It was this phrase ‘any other matter, whatsoever’ which had been taken note of by the Allahabad High Court,, wherein the High Court had held that ‘any other matter, whatsoever’ is connected with the service dispute and falls within the purview of the definition, else the clause would become redundant. Disagreeing with the findings of the High Court, the Tribunal relied on the ‘Principles of Statutory Interpretation’ by Justice G.P. Singh (13th Edition), wherein it states that the object of interpretation of Statute is to ascertain the intention of the Legislature communicating it and advance the cause of such intention. The Book further states,

“While interpreting a provision or Statute affecting jurisdiction of courts, their exclusions or inclusions, their extent should be understood in a manner as is explicitly expressed by the law-maker and clearly implied from their intention. All exclusions must either be explicitly expressed or clearly implied.”

Analysing the definition of ‘service matters’, in the backdrop of aforesaid principles of statutory provisions, the Bench opined that in relation to persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950, all matters relating to their conditions of service are brought within the purview of ‘service matters’ and Section 3(o) of the AFT Act clearly indicates that the ‘service matters’ shall include the items enumerated in sub-clauses (i), (ii) and (iii). Thereafter, clause (iv) speaks about ‘any other matter, whatsoever’.

Additionally, sub-clauses (i), (ii), (iii) to (iv) of the exclusion clause are taken away or excluded from the definition of ‘service matters’, that is they are beyond the jurisdiction of the Armed Forces Tribunal and one of the items excluded is ‘all punishment imposed after Summary Court Martial except dismissal or imprisonment for more than three months’.

In our considered view, the Allahabad High Court, with all due respect, has taken note of the ‘inclusion clause’ but has very conveniently ignored the ‘exclusion clause’.

Decision

In the above backdrop, the Bench opined that in Major Kunwar Ambreshwar Singh’s case the Allahabad High Court had interpreted the legislative intent and the scope and manner of words ‘service matters’ in a manner which would be doing harm to the legislative intent by ignoring certain parts of the definition and interpreting the same, in a manner that the ‘exclusion clause’ contained in the definition is totally given a go-by or ignored. Therefore, the Bench held that the said judgment did not lay down the correct legal principle viz. a viz. the definition of ‘service matters’ and the same would not be a binding precedent.

Accordingly, it was held that the subject-matter of the dispute, canvassed by the applicant did not fall within the definition of ‘service matters’, therefore, the Tribunal had no jurisdiction to deal with the matter. The application was dismissed with liberty to the applicant to take recourse remedy as may be permissible under law. [Shatrughan Singh Tomar v. Union of India, 2021 SCC OnLine AFT 8277, decided on 07-04-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Applicant: V.S. Kadian with Shri Pardeep Singh Nandal, Advocates

For Respondents: Ashok Chaitanya, Advocate

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: The Division Bench of Justice Umesh Chandra Srivastava and Vice Admiral Abhay Raghunath Karve, Member (A) slammed the Union of India opining that gross injustice done to the applicant was a case of mind set and adhering to old junk system. Opining that it requires interference by administration of justice so that one has to obey and respect law, the Bench remarked,

“It is a matter of great surprise that 23 years have elapsed but order of High Court Allahabad has not yet been complied with and respondents are stating that compliance of order is in process.”

Brief facts of the case were that the applicant’s husband was enrolled in the army on 15-12-1971 and dismissed from service on 22-11-1986, after completing about 14 years and 11 months of service. Noticeably, on 03-02-1985 the husband of the applicant had written a to Defence Secretary, Chief of Army Staff and GOC-in C, Southern Command containing allegation against his Squadron Commander. The matter was investigated and disciplinary action was taken against her husband for direct writing to superior officers.

The applicant’s husband was tried by District Court Martial (DCM) for an offence under Army Act Section 56 (a); i.e. making a false accusation. Consequently, he was punished and was dismissed from service.

The husband of the applicant preferred appeal before the Allahabad High Court which was allowed His appeal was allowed vide order dated 27.07.1998 and order of punishment awarded by DCM was quashed and respondents were directed to reinstate husband of the applicant in service and treat him in continuous service with all service benefits including increment and promotion as per relevant rules.

The grievance of the applicant was that instead of complying with the decision of the High Court, the respondents had filed an appeal on 18-11-1998 against the judgment which was dismissed on 08-07-2010. During pendency of the appeal, husband of the applicant died on 31-01-2002. The applicant contended that though there was no any stay against the order of High Court, the same was not complied with.

Noticing that the High Court had passed detailed order in favour of the husband of the applicant granting all service benefits including promotion and pay and allowance and that the appeal against the order was dismissed in the year 2010, the Bench opined that the respondents should have immediately reinstate the husband of the applicant in service and grant his dues.

The public interest demands that administration must abide by the promises held out to citizens. It is totally immoral to go back from the promises held out by the mighty state to the detriment of a small people.

Considering that the husband of the applicant died during pendency of the matter and applicant suffered mental pain and agony for more than 34 years and had to enter in unnecessarily litigation even after her case was decided by the High Court, the Bench imposed exemplary cost of Rs. 75,000 on the respondents for not implementing the order of the High Court for about 23 years.

Accordingly, the respondents were directed to grant all service benefits as applicable to the husband of the applicant in terms of order of the High Court Allahabad along with arrears and further grant family pension to the applicant from the next date of death of her husband within four months. Interest at the rate of 8% was also awarded on the amount accrued from due date till the date of actual payment. [Gulkandi Devi v. Union of India, Original Application No. 605 of 2018, decided on 13-10-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Applicant: Advocate Birendra Prasad Singh

For Union of India: Central Govt. Counsel RC Shukla

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah* and A.S. Bopanna, J., clarified the law relating to “late entrant” under Pension Regulations for Army. The Bench stated,

“When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication.”

Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Armed Forces Tribunal (Srinagar Bench) by which the Tribunal had granted terminal/pensionary benefits to the respondent and directed the government to process his claim taking his qualifying service as 15 years as regards “late entrant” in terms of Regulation 15 of the Pension Regulations and to release the same together with arrears, the government had approached the Court seeking intervention.

Factual Fulcrum

The respondent was commissioned in the Indian Army (Armed Medical Corps) as a Short Service Commission Officer for a period of five years. Later on he was granted Permanent Commission on 28-01-1998 and thereafter he first became a Graded Specialist and then Classified Specialist.

By letter/application dated 15-04-2000, the respondent applied for resignation on the ground of lack of promotional prospects. At that time his actual date of superannuation at 56 years of age was 31-05-2014. The resignation application, having being initially rejected was later accepted vide order dated 31-01-2007 only after the intervention of the High Court, however, it was stated that he was not entitled to any terminal benefits except for encashment of leave. Aggrieved by the said order, the respondent approached AFT.

Stand taken by the Central Government   

The State argued that the Tribunal had materially erred in directing to consider the qualifying service of the respondent as 15 years as a “late entrant” under Regulation 15 of the Pension Regulations and had wrongly observed that the respondent submitted the request for “voluntary retirement”. The State contended that it was not a case of “voluntary retirement”, but of “resignation” by the respondent on the ground of lack of promotional prospects, therefore, the respondent should not be entitled to the benefit as “late entrant”.

It was submitted that even otherwise the respondent did not complete the qualifying service for the purpose of “voluntary retirement” at the time he applied for resignation and that he was not even eligible for premature retirement as he had rendered service for 15 years and 27 days while minimum qualifying service required for retirement, i.e., 20 years under Regulation 25(a).

Submissions by the Respondent

The respondent argued that in accordance with Pension Regulations, 2008, respondent’s pre-commission service as Research Scholar with Gandhi Medical College, Bhopal and as a Medical Officer with BHEL, totalling to 6 years 4 months and 6 days should also be counted towards his total qualifying pensionable service. Accordingly, it was submitted that thus the respondent’s total qualifying pensionable service was 22 years 11 months and 2 days.

The respondent submitted that his real intention was to seek premature retirement but he was told that since he had less than 10 years of service at that point of time, premature release before 10 years of service had to be termed as “resignation” and not as “premature retirement”; therefore his application was treated as one of “resignation” and not as “premature retirement” due to technical reason, even though the he had no intention to resign and thereby losing his service benefits.

Opinion and Analysis

“If we see the averments in the writ petition all throughout the word used by the respondent is “resignation”. Therefore, only as an afterthought and to get the benefit of “late entrant” under Regulation 15, now it is the case on behalf of the respondent that what was meant by him at that time was praying for ‘voluntary retirement’ and it was not an application for ‘resignation’”

Noticing that the respondent had accepted that on 15-04-2000 he was not eligible for “voluntary retirement” and therefore he used the word “resignation” to get out of the technical reason, the Bench stated that the respondent had tendered “resignation” for lack of promotional avenues/aspects and it was not a case of “voluntary retirement” as there is a distinction between “resignation” and “voluntary retirement” because a person can resign any time during his service, however, an officer cannot ask for premature/voluntary retirement unless he fulfils the eligibility criteria.

The Bench further observed that such issue cannot be dealt with on a charity principle, therefore, having tendered “resignation”, the respondent had to suffer the consequences and could not be permitted to take ‘U’ turn and say that what the respondent wanted was “premature retirement” and not “resignation”.

Applicability of Pension Regulations, 2008

Rejecting the argument of the respondent that as per Regulation 19(h) and 19(j) of the Pension Regulations, 2008 a period of service in a central autonomous body as well as period of ante-date of commission granted to an officer in respect of possession of a Post-Graduate Qualification should also be counted for the purpose of pensionable service, the Bench opined that case of the respondent would be governed by the Pension Regulations, 1961, which had no pari materia provisions like Regulation 19(h) and 19(j) of the Pension Regulations, 2008 since the respondent’s name was struck off from the Army Medical Corps in the year 2007 and Regulation, 2008 has no retrospective applicability.

Whether the respondent was entitled to the benefit of Regulation 15 as a “late entrant”?

According to Regulation 15 if an officer is not able to complete the minimum period of qualifying service, i.e., 20 years and before completing 20 years of service he is attaining the age of superannuation and is retired on reaching the prescribed age limit of compulsory retirement, but has completed 15 years of qualifying service, he is considered as a “late entrant” and is entitled to pensionary benefits by getting 5 years grace period. Hence, as the respondent did not retire on reaching the prescribed age limit for compulsory retirement, he could not be said to be a “late entrant”, therefore was not entitled to the pensionary benefits.

Decision

Resultantly, the impugned judgment and order passed by the AFT was hereby quashed and it was held that the respondent was not entitled to the terminal/pensionary benefits as a “late entrant” in terms of Regulation 15 of the Pension Regulations.

[Union of India v. Abhiram Verma, 2021 SCC OnLine SC 845, decided on 30-09-2021]

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Kamini Sharma, Editorial Assistant has put this report together 

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Appearance by:

For the Union of India: ASG Madhavi Divan

For the Respondent: Senior Advocate Vikas Singh

*Judgment by: Justice M.R. Shah

Know Thy Judge | Justice M. R. Shah

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: The Division Bench of Justice Umesh Chandra Srivastava and  Vice Admiral Abhay Raghunath Karve, Member (A) denied to grant any relief to the person invalidated from service due to Alcohol Dependence Syndrome.

Brief facts of the case were that the applicant was enrolled in Army on 09-03-2002 as a Craftsman (CFN) and was invalided out from service on 28-03-2016 in low Medical Category due to ‘Alcohol Dependence Syndrome (Relapse) F-10.2’.

The applicant alleged that he was discharged from service under hatched conspiracy of unit which he was serving at the time of discharge by making false allegations in the back drop of his previous medical history i.e. Alcohol Dependence Syndrome, by sending him for frequent medical check-ups.

Evidently, the applicant stated drinking in 2007 and had been hospitalized for intoxication and his medical category was downgraded to S3 (T-24). His medical report suggested, ‘Due to lack of self control over his drinking habit, hence not attributable nor aggravated by military service’.

Alcohol Dependence Syndrome is primarily a disease where an individual cannot control his excessive drinking habits. This disease leads to being drunk while on duty and poor performance during discharge of official duties. Moreover, all efforts are made by military doctors and the organization to help a soldier who has become a victim of ‘Alcohol Dependence Syndrome’ and only when all efforts fail the soldier is invalided out on ground of ‘Alcohol Dependence Syndrome’.

The Bench took note of the fact that the applicant being habitual drinker refused to obey orders of superiors and was punished five times during the period 2010 to 2015, further, the said punishments were awarded in different units in which he served and not in the unit from where he was invalided out of service due to hatching of a conspiracy by the unit concerned, as alleged by the applicant.

Thus, keeping in view that applicant was awarded four punishments prior to induction in new unit; the Bench rejected the allegation that a conspiracy theory was hatched against the applicant. Moreover, the applicant had also earned five (red and black ink) entries and, therefore, could be categorized as a habitual offender.

In the light of the above, the Bench rejected the applicant’s contention that consuming alcohol in Army is not an offence as it is supplied in the organization, and held that there was no reason to interfere with the process and provide any relief to the applicant as, the Bench opined, the applicant was rightly invalided out of service being suffering from Alcohol Dependence Syndrome. [Ajit Kumar Singh v. Union of India, 2021 SCC OnLine AFT 4896, decided on 03-09-2021]

Kamini Sharma, Editorial Assistant has put this report together

Appearance by:

Counsel for the Applicant: Advocate Yashpal Singh, Advocate Sachindra P Singh

Counsel for Union of India: Advocate Pandey

Case BriefsSupreme Court

Supreme Court: In major win for women Officer in Indian Army, the division bench of Dr. DY Chandrachud* and MR Shah, JJ has held that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch is arbitrary and irrational.

The Court hence, directed that the such requirement shall not be enforced while implementing the decision in Secretary, Ministry of Defence v. Babita Puniya;, (2020) 7 SCC 469.

Benchmarking with the Lowest Male Officer

The chart produced before the Court by the Army provided for

(i) The number of male officers passing out;

(ii) The number of male officers granted PC; and

(iii) The percentage of those granted PC under (ii) as a proportion of the officers passing out in (i).

The Court, however, noticed that the chart suppressed an important feature which is the number of officers who had not opted for being considered for PC (described in the parlance as ‘non-optees”). In other words, the percentage of male officers granted PC has been computed in the chart without disclosing the factual details of the number of male officers who had not opted for PC.

“Only when the number of “optees” is considered against the “non-optees”, can the percentage of male officers who were successfully granted PC be accurately determined. This is a significant omission on the part of the Army authorities from which an adverse interference must be drawn.”

The Policy Letter dated 15 January 1991 provides that the issue of applying competitive merit arises only if more than 250 officers fulfill the cut-off grade annually. If the number of officers who achieved the 60 per cent cut-off is less than 250, then evidently there is no requirement of assessing inter se competitive merit among the officers who meet the minimum threshold.

The statistics advanced by the Army authorities disclosed two things:

  1. In a number of years between 1994 and 2010, the ceiling limit of 250 had not been crossed. If the ceiling limit of 250 had not been crossed, the justification which has been offered for benchmarking women officers against the lowest male officers of the corresponding batch turns out to be specious and a red-herring. Evidently, in their anxiety to rebut the submission of the petitioners in regard to the disparity in the percentage of male and female officers granted PC, the statistics which have been placed on the record, completely demolish the case for benchmarking.
  2. In certain years such as 1999, 2000, 2001, 2004, 2005, 2006 and 2007, the ceiling of 250 was crossed for the male officers. This again belies the claim that benchmarking is crucial to maintain the integrity of competitive merit for grant of PC, as envisaged by the Policy Letter dated 15 January 1991. The data, in fact, shows that in several years, the ceiling was crossed, which is an indicator of the fact that it has not been applied as a rigid norm.

The benchmarking criterion plainly ignores that in terms of the MoD Policy Letter dated 15 January 1991 a cut-off of 60 per cent was prescribed and a cap of 250 officers who would be granted PC annually was laid down. Competitive merit was required to be assessed only where the number of eligible officers exceeds the ceiling of 250.

Hence,

“There can be no manner of doubt whatsoever that the attempt to apply the benchmark of the lowest selected male officer is a ruse to deviate from the judgment of the Court and to bypass the legitimate claim of the WSSCOs.”

Reliance on Annual Confidential Reports

“A formalistic application of pre-existing policies while granting PC is a continuation of these systemic discriminatory practices. WSSCOs were continued in service with a clear message that their advancement would never be equal to their male counterparts. Their ACR evaluations made no difference to their careers, until PC was granted to them by a court mandate in Babita Puniya (supra).”

The evaluation process which has been followed in the case of the WSSCOs has clearly ignored that the writing of their ACRs was fundamentally influenced by the circumstance that at the relevant time an option of PC was not available for women. Even as late as October 2020, the authorities have emphasized the need to duly fill in a recommendation on whether or not WSSCOs should be granted PC.

Further, there has been a flawed attempt to peg the achievements of the WSSCOs at the 5th/10th years of service thereby ignoring the mandate that the last ACR ought to be considered and the quantitative performance for the entire record of service must be assessed. Considering the ACRs as on the 5th or 10th year of service for grant of PC would have been appropriate, if the WSCCOs were being considered for PC at that point of time. However, the delayed implementation of the grant of PC to WSSCOs by the Army and considering of ACRs only till the 5th/10th year of service has led to a situation where, in effect, the Army has obliviated the years of service, hard work and honours received by WSSCOs beyond their 5th/10th year of service and relegated them back to a position they held, in some cases, more than 10 years ago.

“The lack of consideration given to the recent performance of WSSCOs for grant of PC is a disservice not just to these officers who have served the nation, but also to the Indian Army, which on one hand salutes these officers by awarding them honours and decorations, and on the other hand, fails to assess the true value of these honours when it matters the most – at the time of standing for the cause of the WSSCOs to realise their rights under the Constitution and be treated on an equal footing as male officers who are granted PC.”

Hence, in light of the systemic discrimination that women have faced in the Army over a period of time, to call for the adoption of a pattern of evaluation that accounts and compensates for this harsh reality is not to ask for ‘special and unjustified treatment’. Rather, it is the only pathway for the attainment of substantive equality. To adopt a symmetrical concept of equality, is to empty the antidiscrimination guarantee under Article 15, of all meaning.

“It is not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces, when the true picture of their service conditions tells a different story. A superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic.”

Medical Criteria

While the medical criterion was not held arbitrary per se, the Court took note of the fact, that these 615 WSSCOs are being subjected to a rigorous medical standard at an advanced stage of their careers, merely on account of the fact that the Army did not consider them for granting them PC, unlike their male counterparts. Had they been considered for the grant of PC then, as the respondents were directed to do by the decision of the Delhi High Court, they would have met the norms of eligibility in terms of medical parameters. Their male counterparts who were considered for and granted PC at that time are not required to maintain SHAPE 1 fitness to be continued in service.

The Army authorities have stated that the medical criterion has been sufficiently adjusted to take into account age related factors. However, the Army authorities are insistent to apply the medical criteria as of today, while simultaneously attempting to freeze the ACRs of the WSSCOs at the 5th or 10th year of service. Indirect discrimination coupled with an exclusionary approach inheres in this application.

“The timing of the administration of rigorous standards is a relevant consideration for determining their discriminatory impact, and not just an isolated reading of the standards which account for differences arising out of gender.”

The WSSCOs have been subject to indirect discrimination when some are being considered for PC, in their 20th year of service.

“A retrospective application of the supposedly uniform standards for grant of PC must be modulated to compensate for the harm that has arisen over their belated application. In the spirit of true equality with their male counterparts in the corresponding batches, the WSSCOs must be considered medically fit for grant of PC by reliance on their medical fitness, as recorded in the 5th or 10th year of their service.”

Directions 

(i) The administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch is held to be arbitrary and irrational and shall not be enforced while implementing the decision in Secretary, Ministry of Defence v. Babita Puniya,(2020) 7 SCC 469

(ii) All women officers who have fulfilled the cut-off grade of 60 per cent in the Special No 5 Selection Board held in September 2020 shall be entitled to the grant of PC, subject to their meeting the medical criteria prescribed by the General Instructions dated 1 August 2020 and receiving disciplinary and vigilance clearance;

(iii) For the purpose of determining the fulfillment of the medical criteria shall be applied at the following points of time:

(a) At the time of the 5th year of service; or

(b) At the time of the 10th year of service, as the case maybe.

In case the officer has failed to meet the medical criterion for the grant of PC at any of these points in time, the WSSCO will not be entitled to the grant of PC. Further, a WSSCO who was in the TLMC in the 5th/10th year of service and subsequently met the SHAPE-1 criterion after the one year period of stabilization, would also be eligible for grant of PC. Other than officers who are “non-optees”, the cases of all WSSCOs, including the petitioners who have been rejected on medical grounds, shall be reconsidered within a period of one month and orders for the grant of PC shall in terms of the above directions be issued within a period of two months;

(iv) The grant of PC to the WSSCOs who have already been granted PC shall not be disturbed;

(v) The WSSCOs belonging to WSES(O) – 27 to 31 and SSCW(T&NT) 1 to 3 who are not considered to be eligible for grant of PC after the above exercise, will be extended the one-time benefit of direction (c) and (d) in Babita Puniya (supra);

(vi) All consequential benefits including the grant of time scale promotions shall necessarily follow as a result of the directions contained in the judgment in Babita Puniya (supra) and the present judgment and steps to do so shall be completed within a period of three months from the date of the judgment;

(vii) The candidature of Lt. Col. Navneet Lobana, Petitioner No. 3 in Writ Petition (C) 1109 of 2020, will be reconsidered for grant of PC in terms of the above directions. In case the officer is not granted PC, she will be allowed to complete her M.Tech degree course for which she has been enrolled at the College of Military Engineering, Pune and shall not be required to pay or reimburse any amount towards the course;

(viii) In accordance with pre-existing policies of the respondents, the method of evaluation of ACRs and the cut-off must be reviewed for future batches, in order to examine for a disproportionate impact on WSSCOs who became eligible for the grant of PC in the subsequent years of their service; and (ix) During the pendency of the proceedings, the ASG had assured the Court that all the serving WSSCOs would be continued in service, since the Court was in seisin of the proceedings. There shall be a direction that this position shall continue until the above directions of the Court are implemented and hence the serving WSSCOs shall be entitled to the payment of their salaries and to all other service benefits.

While concluding the analysis, the Court

“We must not forget that those women officers who have remained in service are those with the tenacity to hold on and to meet the exacting standards of performance of which the Indian Army has made her citizens proud. (…) The WSSCOs before us are not just women who have dedicated their lives to the service of the Army, but are women who have persevered through difficult conditions as they trudged along a lengthy litigation to avail the simplest of equality with their male counterparts. They do not come to the Court seeking charity or favour. They implore us for a restoration of their dignity, when even strongly worded directions by the Court in Babita Puniya (supra) have not trickled down into a basic assessment of not subjecting unequals to supposedly “neutral parameters”.”

[Lt. Col. Nitisha v. Union of India, 2021 SCC OnLine SC 261, decided on 25.03.2021]

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

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Grant permanent commission to all women officers in Army who opt for it within 3 months: SC to Centre [Full report]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J., addressed the instant petition whereby the petitioner was charged for sedition under Sections 124-A, 153-A, 153-B and 505(2), 120-B of IPC in connection with a viral audio clip containing demeaning content regarding armed forces. The Bench said,

“…unless the conversation has the tendency or intention of creating public disorder or disturbance of public peace by incitement to an offence, the same would not be sedition to attract the applicability of Section 124A or for that matter Sections 153A or 153B IPC.”

Facts of the Case

 On 18-06-2020 the police had registered an FIR against one Zakir Hussain and co-accused Nissar Ahman Khan in connection with a viral audio clip containing objectionable conversation, demeaning armed forces of the country in the backdrop of clashes between Indian Army and armed forces of China that took place in Galwan Valley of Ladakh region.  The conversation was found to be extremely objectionable containing derogatory references to the role of Indian Army in the Galwan misadventure of armed forces of China.

The petitioner contended before the Court that police had no authority to register an FIR as it had been provided in law that under Section 196 CrPC, the Court can take cognizance only on a complaint filed by District Magistrate and in the instant case no such complaint had been filed.

Observation and Analysis

The Court, observing the complexity of the matter had framed two moot points to be adjudicated in the instant case;

  1. What is the true import and scope of Section 124-A, 153-A, 153-B, 505(2) IPC when seen through the prism of Article 19(1) of the Constitution of India?

Constitutionality of Section 124A along with Section 505 of the IPC came up for consideration before Supreme Court in the case of Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769, wherein the Court had held, “it is only when the words, written or spoken, etc., which have the pernicious tendency or intention of creating public disorder or disturbance of law and order, that the law steps in to prevent such activities in the interest of public order.” It had been concluded that Section 124A should strike the correct balance between individual fundamental right and the interest of public order.

In the backdrop of legal position adumbrated above, the conversation contained in the audio clip, would not constitute any of the offences alleged against the petitioner. The Bench observed,

“There is no material to demonstrate any criminal conspiracy between the petitioner and Nissar Ahmed Khan to commit sedition or prior concert or meeting of minds to commit the offences with which both have been charged by the police.”

 Undoubtedly, the petitioner had demeaned the Indian Forces and eulogized the armed forces of China Khan, which bring into contempt the Government established by law in India, but unless the conversation had the tendency or intention of creating public disorder or disturbance of public peace by incitement to an offence, the same would not be sedition to attract the applicability of Section 124A or for that matter Section 153A or 153B IPC.

  1. Whether FIR can be registered for commission of offences under Section 124A, 153A, 153B, 505(2) and 120-B IPC without prior sanction of the competent authority as envisaged in Section 196 of the Code of Criminal Procedure?

 From a perusal of Section 196(1), it could be transpired that the offences punishable under Section 124A and Section 153A of the IPC could not be taken cognizance of by the Court except with previous sanction of the Central Government or of the State Government. It is, thus, evident that,

The bar created by the provisions of Section 196 CrPC was against taking of cognizance by the Court and there was no bar against registration of FIR or investigation by the police if information received by the police discloses commission of cognizable offence.

In the instant case all the offences, with which the petitioner had been charged, were cognizable. It was, thus, well settled and beyond any pale of doubt that the provisions of Section 154 CrPC were not controlled by the provisions of Section 196 and both operate at different points of time and at different stages of a criminal case.

Conclusion

 In the light of above, the Bench laid down a detailed guideline regarding Section 196 of CrPC,

  1. For making out an offence under Sections 124A, 153A, 153B and 505(2) IPC, it was necessary to demonstrate that the words written or spoken or signs or visible representation had the tendency or intention of creating public disorder or disturbance of public peace by incitement to offence. (Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769,);
  2. That the provisions of Section 196 CrPC did not, in any manner, control Section 154 of the Code of Criminal Procedure, in that, the police was competent to register an FIR, if information received by it discloses commission of cognizable offence, even if it was referable to Section 196;
  3. Section 196 CrPC would come in operation at the stage of taking of cognizance by the Court and the Court would have to refuse to take cognizance of the offence(s) referable to Section 196 CrPC, if there was no previous sanction by the Central Government or State Government or District Magistrate, as the case may be.
  4. In case, report with regard to the offence(s) having reference to Section 196 CrPC was presented before the Judicial Magistrate without obtaining prior sanction from the competent authority, the Court should not take its cognizance but return the same to be presented only after seeking previous or prior sanction of the competent authority.
  5. The Court should be deemed to have taken cognizance only if it had applied its mind to the Final Police Report submitted before it in terms of Section 173 CrPC with a view to proceed further in the manner provided in law.
  6. That the Magistrate, who would find the police report not in consonance with Section 196 CrPC should not retain the report and proceed in the matter rather it would return the same to the prosecution.

Hence, the petition was allowed and all the criminal proceedings pending against the petitioner including the impugned FIR were quashed. [Zakir Hussain v. UT of Ladakh, 2021 SCC OnLine J&K 64, decided on 11-02-2021]

Kamini Sharma, Editorial Assistant has put this story together.

Legislation UpdatesNotifications

Central Government hereby declares that whole of the State of Nagaland to be ‘disturbed area’ for a period of six months with effect from 30-12-2020 for the purpose of Armed Forces (Special Powers) Act, 1958.

Read the notification, here: NOTIFICATION.

Ministry of Home Affairs

[Notification dt. 30-12-2020]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar, J. accepted the petition of the political leader and accordingly granted him bail.

According to the case of the prosecution in the present case in June 2020, the Police received information from reliable sources that an audio clip containing objectionable conversation pertaining to the armed forces of the Country having reference to clashes between the Indian Army and armed forces of China that took place in Galwan Valley, had gone viral on social media. On the basis of this information, an FIR was registered and an investigation was set into motion. During the investigation of the case, an audio clip of 6.3 minutes duration was seized and it was found to contain a conversation between the petitioner/accused, Zakir Hussain, and co-accused Nissar Ahmad Khan. The conversation contained extremely objectionable expressions and sentences allegedly used by the petitioner against the Country, its leadership as well as against the Indian Armed Forces.

According to the petition filed by the petition who happened to be a democratically elected Councilor of LAHDC it was averred that he was taken into custody in June 2020 and due to some political enmity and animosity; some people tried to malign him which led to filing of an FIR against him. M.A Rathore, counsel for the petitioner vehemently contended that even if it was assumed that the petitioner had made the conversation and uploaded the same on the social media, still the offence under Section 124A and 153A of IPC could not be made out against the petitioner. Accordingly, in order to make out a case under Section 124A of IPC, it was absolutely necessary that the offensive remarks or speech should lead to some sort of violence or agitation from the public, which was not the case in the instant matter.

The Court referred to Supreme Court’s decision in the case of Balwant Singh v. State of Punjab (1995) 3 SCC 214, wherein it was held that a mere expression of derogatory or objectionable words may not be a sufficient ground for invoking the provisions contained in Sections 124A or 153A of IPC. Furthermore, the Court pointed out that the said provisions would apply only when the written or spoken words would have the tendency or intention of creating disorder or disturbance of public peace by resort to violence. Hence, the Court made it clear that it would be premature for it to comment on the question whether the alleged conversation made by the petitioner and uploaded on the social media would have the tendency of creating disorder or disturbance of public peace by resort to violence. Nevertheless, the pertinent question should be considered by the trial court while framing charge against the petitioner.

The court before finally reaching its verdict also emphasised on the fact that the petitioner was not alleged to have committed an offence which carried capital punishment under the rigor of Section 437(1)(i) of the Code of Criminal Procedure. Furthermore, the Court while granting bail also pointed out that Apart from the Case Diary showed that immediately after the commission of alleged offence by the petitioner, he published a public apology and expressed his regrets.[Zakir Hussain v. UT of Ladakh, 2020 SCC OnLine J&K 490, decided on 24-09-2020]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., allowed a writ petition against the order of the respondent whereby the petitioner was declared unfit for the post of Constable (GD) in the Border Police Force.

The petitioner was subjected to a medical fitness examination by the respondent wherein he was found unfit due to “Gynaecomastia left”. The petitioner preferred an appeal against the order, however, he was again declared unfit by the review medical board vide the impugned order.

The Court perused the guidelines approved by the “Ministry of Home Affairs” for conducting the medical examination tests for recruitment of GOs and NGOs in the Central Armed Police Forces (CAPFS) and Assam Rifles (AR) and observed that the candidates to review medical examination cannot be rejected only on clinical findings and such clinical reports should be supported by corroboratory investigation reports and if needed opinion of specialists/super specialists of government hospitals/medical colleges/government approved medical centres should also be taken into account.

The High Court held that the respondent had not followed the guidelines strictly and the review medical report was not supported by a proper investigation. Hence, the Court quashed the impugned order, as it was found to be cryptic, non-speaking and in violation of the guidelines issued for the purposes. It further directed the respondent to reconvene the review medical board and conduct the medical examination of the petitioner in accordance with the guidelines and if the petitioner is found fit in the re-examination then he should be appointed to the post of the constable without any further delay. [Narinder Singh v. DG of CRPF,2018 SCC OnLine J&K 398, dated on 10-07-2018]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of S. Ravindra Bhat, Deepa Sharma, JJ. has observed that though a member of the Armed Forces ungrudgingly consents to the risk that comes with his enlistment in the forces, he is still entitled to a safe workplace with standard equipment.

On January 04, 2005, while on a regular flight exercise, the petitioner’s MiG 21 aircraft burst into flames soon after takeoff; after all responses to save the aircraft failed he bailed out and sustained some injuries. A medical examination revealed that he was suffering from Cervicalgia (intense forms of pain, localized to the region of the cervical spine), and accordingly he was shifted to a non-flying category. Later, it was disclosed to the petitioner through RTI applications that the cause of the accident was a manufacturing defect and poor workmanship on the part of Hindustan Aeronautics Ltd. The Court of Inquiry had also found that the incident was caused due to the development of a fatigue crack in the welded portion of the afterburner manifold.

The High Court noted that the right to work in a safe environment applies to armed forces as well, and in the case of Indian Air Force, the employers are expected to ensure that the aircraft and the machinery is not compromised by substandard maintenance. The Court also noted that though the conclusions of the Court of Inquiry were available, the truth was withheld from the petitioner, and he could approach the court only after the RTI queries were responded to. Thus, the UOI was held liable to compensate the petitioner Rs. 5 lakhs for the trauma and agony which he had undergone, and HAL was held liable to compensate him Rs. 50 lakhs for the inadequate workmanship that it undertook for the aircraft. [Sanjeet Singh Kaila v. Union of India, 2017 SCC OnLine Del 8170, decided on 02-5-2017]

Case BriefsSupreme Court

Supreme Court: Dismissing the present appeal wherein the appellant (enrolled as an airman with the Indian Air Force) had challenged the decision of the Air Officer Commanding for refusing his application seeking permission to keep a beard on religious grounds, since he is a Muslim, the three judge bench of T.S. Thakur, C.J., Dr. D.Y. Chandrachud and L. Nageshwar Rao, JJ., observed that regulations and policies with regard to the personal appearance of the Armed Forces in general and Air Force in particular were not laid down with the intention of creating discrimination between the officers on the basis of religion, rather the regulations have been implemented to ensure uniformity, discipline and order among the Air Force personnel, which also is an integral part of any armed force of the Union of India. The Court held that the appellant could not prove that his case lies within the exception enshrined in Regulation 425(b) of the Regulations of Indian Air Force, therefore the decision of the Commanding Officer in refusing to allow the appellant to keep his beard, was taken in the interest of maintaining uniformity in the Air Force and that the Commanding Officer was acting within his jurisdiction.

Regulation 425(b) of the Regulations of Indian Air Force, states that an air force officer can sport a beard or retain a beard only where there is a religious command which prohibits either the hair being cut or a beard being shaved. A per the policy clarifications issued from time to time, the status as regards to Regulation 425(b) is that any person joining service after 1st January, 2002 will not be allowed to maintain a beard unless his religion demands sporting a beard, and would be allowed to do so provided they were granted permission prior to the date of the letter or had grown a beard at the time of joining Air Force. On inquiring that whether keeping a beard is an integral part of Islam, the counsel for the appellant Shri Salman Khurshid stated that there are various interpretations and one of which states that it is ‘desirable’ to keep a beard.

Perusing the facts and the Regulation of Indian Air Force, the Court observed that as long as the provisions of Regulation 425(b) are not breached, a policy can be modulated and revisited for the interest of the Air Force and to ensure discipline in the Force which is paramount and is interconnected with the need to protect the nation against any threat. It was vehemently stressed by the Court that the Air Force being a combat force, it becomes necessary that all it’s officers and personnel are bound by the sense of Espirit-de-Corps without any distinction of caste, creed, colour and religion. [Mohammed Zubair v. Union of India, 2016 SCC OnLine SC 1472, decided on 15.12.2016]