Tuesday, February 26, 2013

The Travails of being a Soldier in India!

by Navdeep

If the soldier must thank an entity, in the first order the gratitude must move towards not our society but our Constitutional Courts, especially the Delhi and the Punjab & Haryana High Courts, for historically upholding what is due to the soldier and for fiercely standing behind the rights of the ones who guard our borders.

What does one gain by becoming a soldier in this country today? Endless rounds of litigation? Red-tape? Continually fighting against the system, including against the ones tasked with protecting his or her rights?

Hear the story of Maj Arvind Suhag, an officer who had to fight the odds to get what should have logically and effortlessly flown towards him. And none came to his rescue, except our Constitutional Courts.

Maj Suhag is a 100% disabled officer who while undertaking a proper operational move in an operational area (general area Kargil) in a notified operation suffered a disability when his vehicle fell down a gorge. The disability not only resulted in loss of memory and brain damage but also resulted in the officer being rendered bedridden for a very long period. The disability was correctly notified as ‘Battle Casualty’ as per existing rules by the Army.

Litigation with Haryana Government: The Haryana Government provides an ex-gratia amount from the State for disabilities suffered in operational areas which have been declared ‘battle casualties’. The said ex-gratia was refused to him on the pretext that his disability was a result of a ‘vehicle accident’ only. A simplistic and sadistic view to say the least. The officer had to approach the Hon’ble Punjab & Haryana High Court, which in 2010, ruled in favour of the officer and with the following remarks:-

“…Ex-gratia payment is not always, paradoxically, an act of charity….The act of heroism which the statement claims that the petitioner's act did not evoke, is in some sense a wrongly exaggerated expression. I do not see from the terms of the policy that the person must have been there actually placing his fingers on the trigger of a gun or hurling a bomb in military action to be entitled to the promised payment. A person, who is in the place of action at the Army and who suffers an injury in the manner contemplated in the policy, which includes an accident in an operational area that is not due to negligence of the person, could well make a successful claim. If we must give the expression battle casualty any meaning, I would understand it to mean to a situation where a person while actively involved in the military service in an area, which is a battle zone suffers an injury, then it shall be a battle casualty. If there is, therefore, a certificate that the petitioner has suffered a battle casualty (see para 1 above), to take a different view and stonewall the claim of the petitioner from obtaining a benefit of the policy will make meaningless the beneficient and lofty objective which the policy proffers. A State cannot drive a person, who claims a benefit under the policy for a full-fledged adjudication in a Civil Court to ascertain the nature of injury, so long as the policy statement itself does not require any specific mode of proof…”

The amount was paid to the officer by the Haryana Government but the interest awarded by the High Court was not. Thereafter the interest was partially paid when the officer was forced to file a contempt petition in a second round of litigation. The officer still awaits full implementation of the interest part of the judgement rendered by the High Court.

Litigation with Union of India: As would be known to most, operational disabilities in notified operations are eligible for grant of ‘war-injury’ pension rather than regular ‘disability pension’. Though the officer’s case squarely fell within policy and even the Army had declared the disability as ‘battle casualty’, the admissible war injury pension was not released to him forcing him to knock the doors of the Armed Forces Tribunal (AFT). The Principal Bench of the AFT however dismissed his petition agreeing with the government. Challenging the orders of the AFT, the officer approached the Delhi High Court which has not only granted him the applicable war injury pension but has awarded him 12% interest on the same alongwith costs of Rs 50,000. The following observations of the High Court merit reproduction:-

“…such a narrow interpretation of what is otherwise a widely phrased condition, is unwarranted. This would necessarily imply that those who are on the way – like the petitioner, in an operation-notified area and are intrinsically connected with the success of such operations cannot ever receive war-injury pension even though their aid and assistance is essential and perhaps crucial for its success. The classification of the residual head, i.e. “operations specially notified by the government from time to time” has to be read along with the broad objective of the policy, i.e. - those who imperil themselves – either directly or indirectly – and are in the line of fire during the operations, would be covered if the injuries occur in that area or in the notified area of operation. This is also apparent from the situations covered in Clause (g) and (h) which nowhere deal with battle or war. In fact, clause (h) even covers injuries and death which occurs while personnel are “employed” in the aid of civil power in quelling agitation, riots or revolt by demonstrators” This means that if someone is travelling in the thick of such unrest and the accident results in death or injury, his next of kin would be entitled to war-pension whereas those who actually suffer similar injuries in an area where operations are notified, would not be entitled to such war injury pension…It seems that the military bureaucracy in this case or someone within it felt that since injuries were described more specifically as “accidents” while travelling on duty in government vehicles” – in category (C) of the letter/policy dated 31.01.2011, the petitioner was disentitled to war injury pension. The Tribunal’s bland acceptance of these decisions has regrettably resulted in denial of justice to the petitioner. This Court is, therefore, of the opinion that the impugned order of the Tribunal cannot be sustained. The petitioner’s claim for grant of war injury pension in terms of Clause 4.1(E)(i) has to succeed…In parting, this Court cannot resist observing that when individuals place their lives on peril in the line of duty, the sacrifices that they are called upon to make cannot ever be lost sight of through a process of abstract rationalisation as appears to have prevailed with the respondents and with the Tribunal…He, like any other personnel, operated under extremely trying circumstances unimaginable to those not acquainted with such situations. The cavalier manner in which his claim for war injury pension was rejected by the respondents, who failed to give any explanation except adopt a textual interpretation of Clauses (C) and (E), is deplorable. In these circumstances, the petitioner deserves to succeed…”

Four rounds of litigation and the officer succeeded, would a jawan or his family afford such litigation? Isn't it ironical that the State or the organizations which are to care and comfort our men and women in uniform assume an adversarial role by embracing literal interpretation and sticking to the letter and not to the spirit of beneficial provisions? It is yet another matter that the Supreme Court in UOI Vs Harjinder Singh’s case has already upheld that even natural illnesses in operational areas would entitle a person to ‘war injury pension’, but then the textual interpretations of the officialdom seem to have more sanctity than judicial pronouncements in our country.

Who shall cry for the Indian soldier? 

Maj Navdeep Singh 

by the kind courtesy of http://www.indianmilitary.info/

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