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India, We Are Fighting Our Own Disabled Soldiers

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Submitted by admin on Thu, 04/05/2017 - 17:18
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https://www.thequint.com/opinion/2016/04/30/india-are-we-failing-our-disabled-soldiers-indian-army-benefits-disability

Also Read: Shashi Tharoor on the Declining Status of the Indian Armed Forces

​Dear All

An  exhaustive article which is a repeat by Maj Navdeep Singh. I need to add very little but would like to quote a few cases which we the Pension group managed to resolve.

  1. ​A soldier was injured in Srilanka operations and declared a battle Injury case and invalidated since both legs amputated. However the PCDA and its auditors decided he can not be given War Injury pension​
  2. ​ the ostensibly reason being he was going to toilet when he stepped on a mine.The PCDA Babu thought that soldiers on battled field do not need to attend to natures call. How very convenient a thought sitting in the aircon office in Allahabad.
  3. A war widow was sanctioned Special family pension(SFP) in 1965 as per rules then. When Liberalized family pension (LFP) was introduced in 1972 and the GOI letter  did cover all widows who were granted SFP earlier to be given LFP. The letter did not seek any application from widows. Recently our group found this widow now 80+ still getting SFP and case was taken up. The  Allahabadi Mandarin asked for government sanction showing his ignorance of the existence of the letter and no need for any sanction.This was in Jan 2017. Todate the widow is awaiting issue of a corr PPO for LFP. Who is to blame and who  is responsible for the delay  and the financial hardships of the widow? Well in India such small things happen and there is no need for anyone to be responsible.
  4. In the same above case surprisingly the letter states that LFP is only applicable from the date of issue of the letter. No reasons given why it is not from the date of occurrence. After all why should the Babu explain to his attached department anything.
  5. Lets just go beyond the scope of article. There are many  cases which have attained finality i.e. the question of law is settled. But GOI will not grant benefit to all who are similarly placed like in the case is disability pension,Pre 1996 Majors with 21 yrs service ,Hon Nb Sub cases and Reservist pension cases.However this denial is selective other wise why di it not apply the same rule to those who had not gone to court in the 33 yrs rule case?

Worst still there is a statute 

​in law where cases that  have attained finality are applicable to all similarly placed persons​. I am referring to sections of CPC which is reproduced below. I am not a lawyer but i feel that these two sections and notes on them are significant if ever one decides to seek legal remedy.

 

Section 10 of the Civil Procedure Code

         

No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or in any other court in India having jurisdiction to grant the relief claimed, or in any cou8rt beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. 

Comments from Godbole -   I have not seen any papers relevant and dunless I peruse all the papers, no further comments can be offered.  Generally I presume Supreme Court has already given judgment in such cases and Union of India is the common party in those cases and present party (case to be filed still). 

Section 11 of Civil Procedure Code 1908

 Section 11 of the Civil Procedure Code 1908 states that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title , in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

            Explanation III to the Section 11 of the CPC states that the matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or implicitly, by the other. 

            Explanation IV to that section also state that any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 

            Explanation VI also state that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed sssto claim under the persons so litigating. 

            Further explanation VIII state that an issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit notwithstanding that such court has limited jurijsdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.   

         In view of above provisions in Civil Procedure Code, it was felt that if same cases are heard for a second time, there would be no end to this vaxacious litigation.  As a result of this, principle of Res Judicata has been evolved, whereby a person or party is precluded from filing a fresh suit in respect of a matter already been decided between the same parties and or the same cause of action, which has been universally acknowledged and maintained the sanctity of the Court.  This rule seeks to prevent disputes between employees and employer.  (Burn & Company Calcutta vs theirt employees - AIR 1957SC 38, SCR 181).      

Res Judicata is a branch of Englishs doctrine of estoppel.  The english doctrine of of estopple and was adopted in this country before the promulgation of the first Cde of 1859. 

 

The essentials for the applicability of the general principles of res judicata are laid down in the English case of the "Duchess of Kingstone" and summarized as under.

  1. The matter  directly and substantially in issue in subsequent suit must have been directly and substantially in issue in the former suit.
  2.  The former suit must have been between the same parties or  between the same parties under whom they are any of them  claim.
  3. Such parties must have been litigating under the same title in the former suit. 
  4. The Court trying the former suit must have been competent   to try such subsequent suit or the suit in which such issue is subsequently raised.
  5. Such matter in issue in the subsequent suit must have been heard and finally decided in the suit.

            Even if Section 11 of the Civil Procedure Code does not in terms apply, the principle of res judicata would certainly be applicable for the purpose of achieving finality in litigations.  It is well settled that this principle or rule is applicable even to those proceedings, which are not governed by the Code of Civil Procedure.  

The icing on the cake is that our own have not taken up cudgels with the GOI on these issues.

​Is it the right time to file ​a case against GOI for such shabby treatment of the Services?

Brgds

Pathak

While responding to a query in the Rajya Sabha on 28 March 2017, the government informed that between 2014 and 2016, as many as 794appeals were filed against soldiers with disability in respect of ex-servicemen in the Supreme Court. About 61.5 percent of all the appeals were against soldiers with disability, while only 1 percent was ruled in favour of the government.

The following article, originally published on 30 April 2016, delves into the life expectancy of soldiers, and non-combat-related injuries of soldiers, including excessive heat, injuries sustained while para dropping from helicopters and snake bites that even caused the death of three soldiers during a high-profile military exercise in Rajasthan.

Most nations recognise the inherent stress and strain of military service and its detrimental effect on the health and daily lives of soldiers. India does too. But only in theory, not in practice.

Lip service galore, zilch on-ground support.

Contrary to popular perception, the life expectancy of soldiers is lower than their civilian counterparts. The reason is not difficult to understand. Soldiers live in a regimented lifestyle, away from their families and at times under the shadow of the gun for most of the year. Covered by a tough disciplinary law for twenty-four hours, they face unique stressful conditions which aggravate even regular diseases and ailments.

There is little doubt that soldiers face higher stress levels than ordinary citizens living with their families. This is because soldiers are away from commune living and so, cannot adequately cope up with domestic commitments and stresses.

But in a strange and ironic kind of incorrigibility, it is the defence establishment which is not ready to accept this proposition – a statement which is not rocket science but just common sense.

 

​Snap Shots ​

 

  1. Soldiers disabled by high stress levels and other ailments are released from service without regular pension or disability benefits.
  2. Despite Supreme Court orders, Army headquarters has filed appeals against tribunals which have granted disability pension to soldiers.
  3. According to the rules, for a soldier recruited in fit medical condition, any disability is considered to be influenced by service conditions.
  4. Still, benefits are refused on excuses such as ‘disability was incurred in a peace area’ or ‘disability was due to domestic stressors’.
  5. Contrary to popular perception, the life expectancy of soldiers is lower than their civilian counterparts.

 

Indian Army dress rehearsal for Republic Day Parade. (Photo: Reuters)

Denying Basic Human Dignity to Soldiers

 
Medical specialists all over the world recognise higher stress and strain in uniformed forces. All democracies endorse this. Disability rules in India also state the same. The Prime Minister feels this to be true. And so does the Defence Minister. The apex military medical body is in agreement. Even the courts, including the Supreme Court, have issued directions along these lines.
 
But still, many of our disabled soldiers are released and sometimes even thrown out of service on medical grounds, without regular pension or disability pension. This denies them a life of basic dignity – on the pretext that their disabilities were declared ‘neither attributable to, nor aggravated by military service’.
 
This declaration by military medical boards is a blatant disregard of practical realities, to say the least.
When such soldiers fight long legal battles for their dues, the official establishment is quick to file appeals all the way up to the Supreme Court. And why? In order to deny these soldiers and their families a few thousand, and at times a few hundred rupees. The officialdom is comfortable wasting money and resources on expensive lawyers and litigation. But not with releasing lesser amounts to those who have served us.
 
Nothing could be more shameful for us as a nation.
 
Hostage to File Notings?
 
The Supreme Court, in a series of decisions, has directed the Ministry of Defence to grant benefits to disabled soldiers. The Defence Minister constituted a Committee of Experts to look into rising litigation against soldiers, of which incidentally I was a Member. The Committee also recommended the withdrawal of such litigation as well as appeals by the Ministry of Defence against its own soldiers.
 
Despite all this, recently, elements in the Ministry of Defence had asked the Army Headquarters to file appeals in the Supreme Court against tribunals and court orders wherein disability pension had been granted to disabled soldiers.
And it seems, the Army Headquarters has readily complied.
 
Having worked for disabled soldiers for close to two decades now, what pains me greatly in writing this, is the fact that even though all stakeholders, including the political executive, are on board and there are all encompassing directions of the highest court of the land, the system is held hostage to contemptuous file notings of lower level officials.
 
These notings are purportedly based on some legal advice egging on the establishment to file appeals against verdicts rendered in favour of disabled soldiers. The Headquarters of the Defence Services are also meekly accepting this bloodbath, without taking a strong stand on file by pointing out this malaise to the powers that be.
 
But, What Do The Rules Say?
 
Our rules, paradoxically, are liberal and sensitive.
 
The rules provide that in case a soldier is recruited in a fit medical condition, then any disability arising during service, except when caused due to his or her own illegality such as substance abuse, is deemed as having been affected by service conditions.
 
This presumption is not unique to India but is followed in almost all democracies. This is because the harmful effects of insidious and invisible pressures of military life are known to manifest themselves negatively on the health of soldiers.
 
Still, benefits are refused on unforgivable excuses such as ‘disability was incurred in a peace area’ or ‘disability was due to domestic stressors’ without realising that the inability to attend to personal requirements has a direct link with the military – since it is due to service in the defence services that a person is not there all the time to take care of his or her domestic needs. This is a fact even recognised by successive defence ministers, who themselves have underlined the rise in stress levels faced by soldiers.
 
Additionally, soldiers living in barracks need permission, even to go to the washroom, are required to sign registers and take an out-pass for a visit to buy a toothbrush from the market. They are denied basic needs such as physical proximity, emotional warmth or even sexual fulfilment for months together.
 
In such circumstances, it hardly matters whether they are serving in a ‘peace’ area or ‘field’ area. And to top it all, the rules anyway progressively provide that service in ‘peace’ or ‘field’ makes no difference for disability benefits.
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