There is one thing very problematic in the adversarial form of litigation in India. Which is, that more than the Court itself, justice ultimately depends upon the mightier and the more enlightened party, who may or may not opt to disclose the correct factual or legal position to the Court, and at times, paradoxically, even to its own counsel.
Who are soldiers discharged on administrative grounds?
In the said case, a soldier was discharged (not dismissed) on administrative grounds due to multiple red-ink entries.
A background on the concept of such a discharge would be valuable here. Red-ink entries are recorded in the service profile of soldiers for minor infractions and a process is followed to discharge such soldiers after more than four red-ink entries to ensure that certain incorrigible and undesirable soldiers are eased out, following an established procedure, to maintain discipline in the defence services.
That the said procedure is not arbitrarily exercised has been ensured by a three-judge Bench decision of the Supreme Court in Veerendra Kumar Dubey Vs Chief of Army Staff followed by many others, including Narain Singh Vs Union of India, and very recently Amarendra Kumar Pandey Vs Union of India. It has also been held in Union of India Vs Corporal AK Bakshi that such a discharge does not amount to punishment or misconduct.
It is also important to note that as per the Pension Regulations, such soldiers who are discharged on administrative grounds based upon red-ink entries, remain entitled to pensionary benefits as a matter of right as opposed to dismissed soldiers who are deprived of pension and can only be granted retiral benefits at the discretion of the competent authority (Regulation 113 of the Pension Regulations for the Army, 1961). Rules provide for a minimum length of service for regular pension but there is no such requirement for disability pension.
Munusamy's tryst with law
Sepoy Munusamy was one such soldier discharged on administrative grounds in the year 1997, albeit with a disability of Seizures assessed at 20 per cent for two years.
Many years after his discharge on the basis of red-ink entries, he applied for disability pension which was refused by the authorities. Aggrieved, he approached the Chennai Bench of the Armed Forces Tribunal which directed the constitution of a Re-Assessment Medical Board to assess his present state of disability.
After the said board returned a finding of persistence of 20 per cent disability, the tribunal directed that he be granted his disability pension with arrears restricted to three years prior to the date of filing the petition.
Like many cases in the past, certain instrumentalities of the Union of India took this small matter of disability pension of a soldier of the lowest military rank in direct appeal to the highest Court of the land (though only matters involving ‘general public importance’ can be directly taken to the Supreme Court as per Section 31 of the Armed Forces Tribunal Act, 2007, as interpreted in Yogesh Pathania Vs Union of India).
It is yet another matter that despite several calls, including none less by successive Defence Ministers, to stop such appeals against disabled soldiers, such a practice sneakily continues.
Union's appeal as accepted by the Court
The premise of the appeal against the disabled soldier was that he was a habitual offender and had not been discharged on medical grounds (or on completion of terms of engagement or superannuation etc) but due to his red-ink entries, and hence the law declared by the Supreme Court for grant of disability pension in cases such as Union of India Vs Rajbir Singh and Dharmavir Singh Vs Union of India was not applicable to him.
The Court agreed with the contention of the Union of India, allowed the appeal and set aside the order of the Armed Forces Tribunal that had granted disability pension to the soldier, observing, inter alia, that his case could not be compared to law declared by the Supreme Court in other cases of disability pension since he had been discharged on administrative grounds being an undesirable soldier, that he could not have challenged his discharge after 20 years, that in this light the tribunal should not have directed his Re-Assessment Medical Board after so many years, that the Medical Board might, for reasons to be stated, give an opinion that the disease could not have been detected on medical examination prior to appointment, in which case the disease/disability would not be deemed to have arisen during service, that the tribunal erred in law in stating that the onus was on the employer to prove that the disability was not related to service.
Analysis of the averments accepted by the Court
Let us closely analyse the above averments which have been accepted by the Court, point by point.
The admissibility of disability pension to those who are discharged on administrative grounds as ‘undesirable soldiers’ was settled by a three-judge bench of the Supreme Court way back in 1983 in Ram Pal Singh Vs Union of India. In the said case, apart from pension, a compensation of ₹50,000 was provided to the said soldier in those times. In any case, Regulation 113(c) specifically ordains admissibility of pension to such soldiers. In cases other than dismissal, disability pension is compensation paid for a disability incurred in service and has no connection with the manner of exit from service. Interestingly, even the case Vijay Shankar Mishra Vs Union of India decided by the Supreme Court involved one such ‘undesirable’ but disabled soldier. Morality of a soldier’s attitude in service cannot be intermixed with admissibility of pension which is permitted by law, unless the person stands dismissed from service. Tomorrow, the authorities may opine that a decorated soldier injured in proper battle but discharged on administrative grounds, or his widow, would be denied pension because of red-ink entries! Exactly the same proposition was addressed by the Punjab & Haryana High Court in Jaggar Singh Vs Union of India!
It might be right to suggest that the said soldier could not have challenged his discharge after 20 years as averred, and accepted by the Court. However, this matter did not pertain to challenge to the correctness or otherwise of his discharge from service but only to grant of disability pension, which is a recurring cause of action. The Supreme Court, in a number of judgments, including of a higher bench strength, has held that the concept of delay and laches or limitation does not apply to cases which do not affect third party rights and involve recurring causes of action such as pension or disability pension. Even the Constitution Bench in the Ayodhya judgment had alluded to a case of disability pension to explain the concept of continuing wrongs.
The averment that the tribunal should not have ordered a Re-Assessment Medical Board after so many years also has no legal legs to stand upon. The government itself is supposed to reassess the disability on the expiry of term of the initial percentage. Applicable provisions approved by the Union cabinet, obviously not disclosed to the Court, also give a right to disabled personnel to claim a Re-Assessment of percentage or a Review Medical Board at any point during their lifetime. In fact, rules as approved by the cabinet now provide that once a percentage is awarded, it is to be treated as lifelong percentage unless a person himself/herself seeks re-assessment. What the tribunal had ordered, was hence, totally in terms of existing rules and regular practice.
It is right to suggest that the Medical Board might, for reasons to be recorded, give an opinion that the disease could not have been detected on medical examination prior to enrolment, in which case the disease/disability would not be deemed to have arisen during service, but the question that arises is as to whether such reasons were recorded by the board in the present case? The submission of the Union, as accepted by the Court, that the tribunal erred in law to state that the onus was on the employer to prove that the disability was not related to service, is rather the opposite of what is the actual position. Rule 9 of the Entitlement Rules, 1982, clearly provides that a soldier would not be asked to prove his claim and shall receive the benefit of doubt. This submission also is directly in teeth of a long line of dicta of the Supreme Court going into the nuts and bolts of the concept of disability pension, including by three-judge bench decisions. Some such decisions are Dharamvir Singh Vs Union of India, Union of India Vs Rajbir Singh, Union of India Vs Angad Singh Titatria, Union of India Vs Manjeet Singh, Sukhvinder Singh Vs Union of India and Laxmanram Poonia Vs Union of India. The effect of stress and strain of military service is well understood in all militaries of the world and the thumb rule is that any disability arising while in service is deemed to be aggravated by service, unless of course it existed prior to enrolment and remain undetected (if recorded to the said effect by the medical board), due to a person’s own negligence of health or substance abuse etc.
Which brings me back to where I started.
In light of law settled by larger benches in the past and also being sub silentio, the judgment may not ultimately damage the disability benefits of such soldiers released on administrative grounds, but the question that comes to mind is this - why do certain instrumentalities of the government derive pleasure in taking cases of disability benefits of employees of the lowest ranks to the highest court when there are much more vital and pressing matters we have to deal with, in our official, legal and judicial system?
I have no answers!
Major Navdeep Singh is a practicing lawyer at the Punjab & Haryana High Court, Member of the International Society of Military Law and the Law of War at Brussels and International Fellow at the National Institute of Military Justice, Washington DC. He is a proponent of tribunal reform and the founder President of the Armed Forces Tribunal Bar Association at Chandigarh. He is also the author of “March to Justice: Global Military Law Landmarks” and was part of the Yale Draft (2018) at the Yale Law School- an improvement of the UN Principles on administration of justice through military tribunals.