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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