DELAY IN LEGAL CASES FILED IN AFTs
Dear Members of TSEWA,
- TSEWA has been facilitating the filing of Applications before Principal Bench AFT, New Delhi in its efforts to obtain speedy and inexpensive justice for the ESM. The abnormal delay in obtaining judgments from AFTs is due to a variety of reason. Most of the cases filed by TSEWA are (a) wrong fixing of pension (b) non-grant of broad banding. Benefit to disabled soldiers (c) non-grant of benefit to earlier retirees like non grant of pension of Nb Sub to pre – 2006 Hony Nb Subs (d) anomalies of pensions for different ranks who retired at different times like MACP to be given only from 01 Sep 2008 and not from commencement of CPC i.e. Jan 2006. Most cases arise due to the unwillingness of Ministry of Defence to give benefit based on some land mark Judgments in Service Law like DS Nakara vs UoI and Maj Gen SPS Vains vs UoI etc.
- TSEWA has had a tremendous response from the ESM Fraternity for joining these cases and almost half the membership of TSEWA (about 5,200 out of 9,700 members joined the association to be part of the legal case before the AFT. We have filed 17 cases in Principal Bench AFT, New Delhi and 18 cases are under filing in the Principal Bench AFT and other regional benches as well. Though the response of the ESM for joining the legal cases facilitated by the TSEWA was tremendous, the slow progress of the cases filed and delay in filing the remaining cases has been a matter of serious concern to the Office Bearers of TSEWA. The situation was not only causing avoidable anxiety to the ESM and Family Pensioners, but also eroding the good name and credibility of TSEWA. Against this backdrop, the National Executive Committee (NEC) of TSEWA in its meeting held on 6th January 2019 directed that a mail addressed to all concerned members giving the detailed reasons for the delays. The situation is explained in the subsequent paras.
- Slow Progress of OAs filed in the Principal Bench AFT.
(a) Vacancies in Bench. Against three Benches in Principal Bench AFT, Delhi, only two are functioning due to lack of quoram in the third Bench (a Bench is functional only when both Judicial and Administrative Members are present). Out of a sanctioned strength of 35, only 15 members are in office and out of 11 sanctioned Benches only four are functional. Hence the disposal of cases is painfully slow.
(b) Ad Seriatim Rule. The Chairman AFT had given a ruling that cases after the pleadings are completed will be listed in a serial manner and disposed off in the order of seniority in which they are filed. Therefore, some of our cases like AFT – 1(OA No 34/2016) filed in Sep 2015 are not yet disposed off despite completion of pleadings.
(c) Laxity on the part of Respondents in filing of Counters. The Service Hq are notoriously lax in filing counters (reply to the issues raised in our OAs) for OAs filed in AFTs. While they show great alacrity in filing counters for petitions filed in Civil Courts where the fear of Ex – Parte decision is always there, they show sufficient negligence in dealing with OAs filed in AFTs. It is possible that a general feeling has crept in the Min of Def and Service Hq that, AFTs are attached Offices of Min of Def and would not decide cases Ex parte or haul the Min of Def and the Service Hq for Contempt.
- Tardy speed in filing OAs in cases that are in Pipeline.
(a) Ineligible Personnel Joining Cases. TSEWA depends upon a handful of volunteers to scrutinise the documents of veterans & family pensioners who join the cases. In spite of clear elucidation by the President of the eligibility conditions to join a case and that only eligible persons should pay the fee and join the case, many in – eligible personnel join the case. This means additional man hours of volunteers to weed out such cases which results in delay.
(b) Joint Cases Discouraged. TSEWA has been filing Class Action suits i.e. all similarly placed petitioners to join one OA (original application). In AFT – 34/2016 filed in Sep 2015, the number of petitioners joined is 1049. Since AFT Delhi insisted that those joined later after filing the first batch not be included. We have have to place them in AFT 1 – B. Soon other approached and we accepted to be placed in AFT – 1C. But of late AFT Delhi is discouraging filing of Class Action suits.
(c) Dysfunctional State of AFTs. The vacancy situation and consequent difficulties in functioning of AFT Benches is deliberated in Para 3(a) above. As a consequence, the advocates are loath to take up fresh cases for filing. While advocates may take up occasional cases for individual applicants, there is reluctance on the part of advocates to commit their services for joint applications with large number of co- applicants as the delay in disposal is likely to affect their reputation.
- Activiation of Regional Benches. In view of this abnormal delay in AFT Delhi, TSEWA has decided to activate regional benches of AFT. The President TSEWA and Cmde Sudheer Parakala (Retd) Vice – President went to Jaipur and handed over two cases to our selected advocate in AFT Jaipur with help of Col Jaswant Singh Shektawat (Retd) on 25 Nov 2018. Similarly, the President, Brig SKS Rana, VSM (Retd) President, Legal Div and Col Ajit Singh Rana (Retd) met our advocate in AFT Lucknow with the help of Col Dharam Raj Singh (Retd). Cdr Chandra Shekar (Retd) handed over cases to our advocate in AFT Lucknow. Efforts are on to activate all the regional benches. TSEWA will henceforth file individual cases for which legal fees cannot be intimated in advance. The legal fees depends upon the advocate of a regional benches where one may charge less and another may charge more. Uniform legal fees so far fixed by TSEWA is no more valid.
- Activation of Regional Benches of AFTs. In spite of the above cited impediments, TSEWA is doing whatever it can. In every weekly Core Committee meeting, review of progress of legal cases is done. Action required to expedite filing of cases is taken. New advocates are being located and negotiations with them are in progress. But the common reply from all of them is that their regional AFT is functioning only for few days in a month due to non-availability of members of AFT. The Hon’ble Raksha Mantri has also been appraised of the dysfunctional state of AFTS by NCESMO ( President TSEWA is Vice President) on 27 Nov 2018 in their one hour long meeting with her.
- Filing of Cases in Constituional Courts. TSEWA filed a case in Hon’ble Supreme Court on forcible thrusting of 64 kb ECHS card on 54 lakhs members of ECHS. As per the advice of the apex court, the case is likely to be filed on Hon’ble Delhi High Court. The NEC has also approved filing of legal case in Hon’ble Supreme Court on the state of non – functioning of AFTs and directing the Govt of India to fill up the vacant posts on priority.
- TSEWA will continue make its earnest efforts to facilitate filing of cases on behalf of ESM. It is our earnest request that ESM & Family Pensioners should display patience in the matter and appreciate that the delay is due to circumstances beyond the control of TSEWA.
Brig CS Vidyasagar (Retd)