The Defence Ministry’s approach to litigation: misdirected, highly adversarial and sadistic (Part I)

Navdeep Singh

This might be the oddest and longest opinion piece I have penned, and therefore it is in two parts, albeit being published simultaneously. And again, like many times before, I must forewarn that this is written to encourage discussion and introspection, not to cause commotion, disparage any entity, or to provide leverage to pessimistic sentiment.

In the late 1990s/early 2000s, as per the then existing roster of the Punjab & Haryana High Court, litigation related to service matters of the Union of India was being allotted to Justice RL Anand, a strong but humane and sensitive judge.

While hearing a matter of an old military widow, an observation he made in open Court, not in jest, but in all seriousness, got stuck in my mind. He said that if a litigant files a writ petition stating therein that the sun rises in the east, the Ministry of Defence (MoD) and the Army would surely file a written statement opposing the plea and saying that it rises in the west.

The judge was of course referring to the blind opposition put forth by the Defence Ministry in all cases with the singular aim of defeating the other side, sometimes fairly, and at other times by attempting to play smart. Of course, during those days, litigation used to end at the High Court. About a decade later, things came to pass that the MoD, in its avatar of an insensitive raging bull, ensured by 2014 that more than 90% of its litigation in the highest court of the land comprised appeals filed against disability benefits to its own maimed and disabled soldiers, at times involving amounts as little as a few hundred rupees, in matters already well settled by law.

While the Army commands utmost respect in our society, and deservedly so, and rightly remains one of the most venerable institutions in all facets, the track record of the MoD in litigation shows an utter lack of grace and total absence of moral courage in admitting a fault. The objective solely remains to prove a litigant wrong and wear him or her out by contesting each and every claim, even if covered by existing decisions of Constitutional Courts or by the Government’s own policy, and at times also to subtly inject wrong information in Court proceedings or attempt to colour or influence the proceedings with one-way information by keeping it hidden from the litigant.

Litigation is treated as highly adversarial, as if it is some kind of war being raged against petty employees which has to be won at any cost! Most of the pleas are opposed out of ego and most of the appeals are filed out of prestige. So much so, that this hook or crook attitude to ‘win’ cases has, in the past decade or so, assumed alarming proportions, with patently false information being projected right till the Supreme Court.

The dogged persistence to resist judicial dicta was again visible earlier this week in Lt Gen Manomoy Ganguly v. Union of India [Writ Petition (Civil) 980/2018 decided on 29-10-2018] wherein a Lieutenant General was made to undergo four to five rounds of litigation to get what he could have been granted in the first go. The Supreme Court has now put an end to his agony.

Some recorded instances of unethical stands in Courts

Even off hand, many cases come to mind where incorrect submissions are thankfully recorded in the judgments, for posterity, though this is only a minuscule part of the malaise.

In PK Kapur v. Union of India (Civil Appeal 4356/2006 decided on 01-02-2007), where the litigant was appearing in person for extension of certain pensionary benefits as provided to post-1996 retirees to pre-1996 retirees also, the Ministry of Defence put across the plea of an Office Memorandum (OM) issued on 3rd February 2000 which restricted the benefits only to post-1996 retirees.

However, the MoD deliberately did not inform the Court that the Department of Pensions & Pensioners’ Welfare had already extended the benefit of the post-1996 OM dated 3rd February 2000 to pre-1996 retirees vide a fresh OM issued on 9th Sept 2001. The litigant lost his case and it was only years later in KJS Buttar v. Union of India (Civil Appeal 5591/2006 decided on 31-03-2011) that the correct law was affirmed by the Supreme Court.

The MoD however still chose to carry on appealing in cases which were disposed by various courts and tribunals citing the decision in KJS Buttar’s case. Ultimately, it was a three-judge Bench in Union of India v. Ram Avtar (Civil Appeal 418/2012 decided in December 2014) which settled the law. It is yet another sad story that the MoD has again filed a similar appeal in the already well-settled subject as recently as in July 2018.

In Secretary MoD Ajeet Singh v. Union of India (Civil Appeal 16/2003 decided on 06-05-2009), the MoD informed the Supreme Court that a minimum of ten years of service is required to earn a disability pension, while the truth is that there is no minimum qualifying service required for the said pension, and a disabled soldier with even a single day of service is entitled to the same.

In Bhola Singh v. Union of India (Civil Appeal 4486/2002 decided on 10-10-2010), the MoD informed the Supreme Court that there is a requirement of minimum 15 years of service to earn the “Service Element” of Disability Pension. While doing so, it projected outdated Regulations before the Court and also wrongly cited the regulation for “Service Pension” rather than “Service Element of Disability Pension”, while in reality the minimum service requirement for Service Element stood abrogated from 1st January 1973.

The same trick by citing Bhola Singh’s decision was sought to be applied in another bunch matter being heard by the same presiding judge in Union of India v. Sinchetty Satyanarayan (Special Leave Petition 20868/2009 decided on 23-02-2012), but since this time there were multiple lawyers available to rebut the untruth, the MoD quietly withdrew its appeals and conceded the matter when caught on the wrong foot in the Supreme Court.

In Union of India v. Karan Singh (Special Leave Petition 37928/2012 decided on 10-02-2014), the MoD filed an appeal in a particular matter of a disabled soldier when the Defence Minister had already directed the withdrawal of such appeals through an explicit instruction. When this was pointed out in the Court by the counsel for the disabled soldier, the appeal was quietly withdrawn by the MoD.

In Air Vice Marshal Harish Masand v. Union of India [119 (2005) DLT 152 decided on 08-11-2004] wherein the Delhi High Court was dealing with the promotion of senior officers of the Air Force, there was a crude attempt to mislead and misguide the judicial process by filing false affidavits. The Delhi High Court thus observed,

“If one carefully goes through the note, the least we can observe is that at such highest level instead of placing the truth, ways and means were devised by XXXXX and others who were present in the meeting to conceal the truth. If this could happen at that level, how the rule of law and faith of the Court in the affidavits filed by the Government would survive. We are shocked that ways and means were devised by an officer of the rank of Air Marshal to hide from the Court what was against the Air Headquarters. It was a fit case where we would have ordered appropriate actions to be taken against XXXXX, however, we were told that he has retired in September this year. Therefore, we do not contemplate any action”.

Further observing the machinations, the Court recorded,

“What affidavit to be filed in the High Court in the present case, how Court should be misled, how truth should not come before the Court, ingenuity on the part of Air Headquarters to deny justice to the petitioner would not have been unrevealed but for a note recorded by XXXXX, Joint Secretary, Ministry of Defence.”

Of course, such attempts have since been made multiple times, especially in cases involving promotions of officers, and have not been appreciated by courts and tribunals.

In Amar Chand Suhag v. Union of India (Civil Writ Petition 5041/2004 decided on 11-08-2006), the MoD again projected an outdated regulation to deny benefits to a disabled soldier. When the Court was apprised of the reality, the MoD was fined by the Punjab & Haryana High Court, which also recorded the following in the order

“…but we are constrained to observe that the respondents while reproducing the relevant legal provision pertaining to the assessment of disability pension have concealed the Regulations”.

Needless to state, the concealment in this case was not by the MoD per se, but by the Regimental Records Office of the Army.

In yet another shocking case of Lt Col RK Rai v. Union of India (Civil Appeal 3101/2015 decided on 16-02-2018), the MoD chose to contest a case against grant of disability benefits to a disabled officer who had sought premature retirement from the Army despite the fact that the government itself had issued a letter on 19-05-2017 authorizing disability pension to such voluntary retirees. Though the said letter is fully discussed in the final order of the Court, it is beyond comprehension why the same was contested and not conceded at the outset or even declared infructuous when it was fully covered by government’s own policy.

In Union of India v. Balbir Singh (Civil Appeal D 4893/2018 decided on 09-03-2018), the MoD appealed in matters concerning soldiers of the lower ranks which had already been decided by the Supreme Court and the High Courts. The Supreme Court imposed costs of Rs 1 lakh and observed,

“This appeal was filed well after several similar matters were dismissed by this Court. We cannot appreciate the conduct of the Union of India in this regard of filing civil appeals/special leave petitions after the issue has been concluded by this Court. This is unnecessarily adding to the burden of the Justice Delivery Systems for which the Union of India must take full responsibility.”

Recently, in Union of India v. Prithvi Singh (Civil Appeal D 8754/2018 decided on 25-04-2018), the Supreme Court imposed a fine of Rs. 1 lakh on the Union of India for repeatedly filing appeals in matters finally settled by the High Court and affirmed thereafter by the Supreme Court. The Apex Court observed,

“The couldn’t-care-less and insouciant attitude of the Union of India with regard to litigation, particularly in the Supreme Court, has gone a little too far as this case illustrates…The Union of India must appreciate that by pursuing frivolous or infructuous cases, it is adding to the burden of this Court and collaterally harming other litigants by delaying hearing of their cases through the sheer volume of numbers.

If the Union of India cares little for the justice delivery system, it should at least display some concern for litigants, many of whom have to spend a small fortune in litigating in the Supreme Court…To make matters worse, in this appeal, the Union of India has engaged 10 lawyers, including an Additional Solicitor General and a Senior Advocate! This is as per the appearance slip submitted to the Registry of this Court.

In other words, the Union of India has created a huge financial liability by engaging so many lawyers for an appeal whose fate can be easily imagined on the basis of existing orders of dismissal in similar cases. Yet the Union of India is increasing its liability and asking the taxpayers to bear an avoidable financial burden for the misadventure…

…To say the least, this is an extremely unfortunate situation of unnecessary and avoidable burdening of this Court through frivolous litigation which calls for yet another reminder through the imposition of costs on the Union of India while dismissing this appeal. We hope that someday some sense, if not better sense, will prevail on the Union of India with regard to the formulation of a realistic and meaningful National Litigation Policy and what it calls ‘ease of doing business’, which can, if faithfully implemented benefit litigants across the country.”

Major Navdeep Singh is a practicing lawyer at the Punjab & Haryana High Court, the founding President of the Armed Forces Tribunal Bar Association at Chandigarh, Member of the International Society for Military Law and the Law of War at Brussels and author of ‘Maimed by the System’.

This is the first of a two-part series.