Introduction
My original article "Military Administrative Tribunal" was written in 2004 and sent to powers that be. It was not considered relevant then. Today I feel it is relevant in context with a recently published article titled "One More Nail " by Lt Gen Vijay Oberoi
Lt. General VIJAY OBEROI
Military (read Army) insisting on setting up AFT in current format has axed its own foot. Why blame bureaucracy?
Even before AFT came into existence, I, then a serving Gp Capt proposed setting up of Military Administrative Tribunal (MAT).
Briefly my proposal stated that MAT will comprise of FIVE MOST RECENTLY RETIRED SERVICE CHIEFS (at least one from each service).
Paper on MAT was sent to all three Service Headquarters and MoD. Response was received from Naval Headquarters and MoD.
MoD response stated that proposal for AFT is already in pipeline. However, the then Additional Secretary , Law invited me to his office to hear my views. He also showed me responses received from Army Headquarters rejecting my suggestion, insisting on having a High Court judge as part of AFT because "Military officers were not adequately qualified in legal affairs" as their comment.
Rest is history. AFT has become parking slot for three star military officers without any legal background working as Admin Member under the 'guidance' of a retired high court judge.
Why did we not engage officers from our JAG branch?
Why cry over an IDAS officer appointed as Admin member? Were we sleeping when govt modified the rules for QRs of Admin Member only recently?
I have functioned as a prosecutor for three GCMs involving two Gp Capts and one Sqn Ldr. All three were convicted. One Gp Capt challenged and went to High Court. GCM decision was upheld.
Editors Note: This article by Gp Capt TP Srivastava on MAT was triggered in 2004 when the idea of AFT was being conceptualised,formalized and finally implemented in 2008/ 2009. The same is considered to be relevant in some manner/aspects today (2022) after 13 years functioning of the AFT. During 13 years of its existence AFT has faced several challenges and functional problems including bureaucratic interference in its affairs. It is pertinent to mention that the AFT weren't given the required support and allowed to function to its optimum levels due to multifarious reasons. In this context there was a comprehensive piece on AFT written by me and published in Dec 2016 issue of Fauji India Magazine. The same is also a part of Volume 4 (Chapter 20) of the Victory India Campaign Series titled "Beyond The Victory India Campaign" (2018). The pdf/ link of the same is being made available to readers to enhance their awareness and understanding of AFT and issues that concerned them in Dec 2016.
The Article
I retired from the Indian Air Force on 31 Oct 2004 after having served the nation for 11972 days. Armed forces career was a wonderful and right choice even though I had an option to join IIT, having qualified for IIT and NDA simultaneously. No organization could have given me the quality of life that Armed Forces gave me and my family. During my service career I had the opportunity to serve at Air Headquarter only once as a young Squadron Leader in so called elite ‘P’ Staff. In my 22 months stint I had the privilege to handle sensitive documents eg. Officer’s dossiers (other than my own) as well as numerous complaints/representations by officers of all shapes, sizes and ranks with respect to their postings and promotions. Many issues were resolved at Air Headquarter itself.
Let me categorically state that in most cases officers making these representations had no case. As long as officers were posted to Hyderabad, Delhi and Bangalore or such like places they had no problems leaving their old parents and ancestral property thousands of kilometres behind. But the moment they were posted to Chabua, Naliya, Utarlai and Thoise or such like places their overwhelming desire to look after their ailing parents and ancestral property suddenly became all pervasive and promptly they made the request for cancellation/deferment/change of posting. Similarly as long as the officer was being promoted, he sang praises in the bar but the moment he was not cleared for promotion, the officer would curse the organization and/ or his superiors. A few of these officers went to court to seek redressal.
Contents of all applications were much like X-Rated film. Different players but same ending. Officer's contentions, always and every time, was the same. That he was deliberately denied promotion or posted to some inhospitable station. Honourable courts commenced their act of seeking information and giving dates. JAG(Air) got into the act and endless flow of queries on inconsequential and insignificant issues had to be given by ‘P’ staff. Court cases dragged on for months. Prior to each court hearing some poor soul in ‘P’ staff was tasked to reply to each question raised by honourable courts, leaving their primary duty, thus chances of an act of omission increased manifold. In most cases the officers contention was rejected by honourable courts, while in few cases it was upheld and relief was granted to the officer.
Discussion of such cases enlivened the evenings in the bar and heated discussions/arguments ensued giving graphic details of what a particular AOC or AOC-in-C wrote in a particular officers Annual Report. Some brilliant and imaginative officers even quoted verbatim, the discussion that took place in the conference hall where promotion board was held . It is a different matter that the officer, who was privy to such utterances ,was not even aware of the date of promotion board. Due to protracted court hearings and repeated cases of same nature for which all replies etc has to be ultimately typed by staff-Airmen and Civilians hence, men were also privy to graphic details. Thus even the soldiers knew what a Squadron Commander was alleging against his own Station Commander. And in some cases what a two/three star General was alleging against his Chief. Obviously the soldiers also talked. Publicity of such cases by print/visual media invariably added more spice, which had obvious undesirable effect.
Occurrences such as these invariably strike at the very root of any organization, particularly Armed forces. At the end of my tenure at Air Headquarters lasting 22 months, I was convinced that in the larger interest of the organization no officer/airmen must be allowed to go to court since it resulted in totally avoidable gossip consisting mostly of irrelevant and derogatory remarks against senior officers. I do believe that an aggrieved military person has a right to represent to the organization about what he/she feels as wrong done to him/her with respect to promotion and posting. The Chief’s decision should be final in these matters. However, if a person is still dissatisfied , he/she should be allowed to seek redressal from a Military Administrative Tribunal and not the honourable civil courts.
Military Administrative Tribunal (MAT) should comprise of last five retired service Chiefs with a rider that each service must be represented. The senior most amongst them should head the MAT.
MAT should be given the status of a Quasi-Judicial body. Strictures passed by MAT, if any, should be endorsed in Annual Reports of officers found guilty of impropriety. It could be reporting officer or the complainant. MAT should be given the authority to summon related documents eg. Annual Reports, record of posting etc. If required, MAT could call head of personnel branch of each service viz Air Officer-in-Charge Personnel (AF), Chief of Personnel (Navy) or Military Secretary (Army). MAT should not have the powers to summon a serving Chief. Decision of MAT is to be treated as final and no appeal should be allowed in a Court of Law, specifically with respect to cases related with postings/promotions.
While proposing constitution of MAT, I do not recommend creation of a super headquarters. There is no requirement to have a separate infrastructure for MAT. Each Service HQ is to house MAT for the durations of case and be responsible for suitable office accommodation, secretarial service and admin support. No remuneration is recommended. All retired Chiefs must sit on the MAT, if his turn is due.
While making the proposal of establishing MAT, a mention of honourable courts is a must. May I beg forgiveness lest some honourable lordship charge me with contempt of court having dared to commit blasphemous act such as questioning the wisdom of honourable courts. I am a man of extremely average intelligence and that is why I have always been amazed as to how lordships are able to absorb nitty-gritty of posting profile over decades as well as promotion chances, when at times hearings in the court lasted for a few minutes. In one such hearing, where I was present, your lordship thought that Air Force Station Nal and Naliya were one and the same place. Honourable lordship had little idea about geography thus had no clue that Nal was desert and Naliya was sea beach. Irrespective of all the legal knowledge, no Judge of any court can absorb, assimilate and/or examine the posting profile of an individual. Postings and promotions are relative matter, wherein one is competing along with his colleagues.
How can a judge pass structure on a service HQ merely because a military personnel complains that his/her posting is malafide?
Does the honourable judge have time to examine posting profile of thousands of colleagues? The answer is No. Similarly in matter related with promotion honourable judges merely have complainants dossier and not everyone else considered for promotion. Our promotion process is very fair and I do believe most competent of otherwise competent officers are usually promoted. No system can be without flaws.
Reading the above, some of the honourable lordship might want to hold me guilty of contempt of court. There is a need for some plain speaking. A recent judgement wherein the honourable courts directed a particular service Chief to reduce discretionary marks was projected in the print and visual media using words to the effect “wings have been clipped/Par Katar Diye Gaye)”. A brash reporter of a prominent channel reported this in rather obscene manner. Your lordships do you know what such action has resulted in? It has allowed tongues to wag against Chief of an Armed Force. Sir, Chief of an Armed Force is not an individual, he is an institution. Do you realise that such actions/events effect morale? The Chief is expected to lead his men to war. Such decisions, therefore, impinge on national security. I see no reason why your lordships cannot reject the appeal outright and direct the individual to seek redressal from parent organization in cases related with posting/promotion. Your lordships, you shall actually be contributing to national security, albeit indirectly. On numerous pretexts your lordships decline to hear number of cases. May I then submit as to why can you not decline to hear cases related with postings/promotion of military personnel on account of national security. I am sure, learned as you all lordships are, you must have read a Shloka of Rigveda “Satyam Bruyat Priyam Bruyat, Na Bruyat Satyam Apriyam”. Translated into English it means “speak truth but do not speak unpleasant truth”. Indicting a service and/or its Chief in public is unpleasant truth, which impinges on morale of the men, thus national security.
Would the MOD like to consider setting up MAT? Friends what about you? Do you agree or would you insist on washing dirty linen in public view and make a hole in your pocket greasing the ever open palms of yet another advocate? Don’t waste your hard earned money. If you think you have a case, confront your professional parent, the Chief, and you shall get justice. For heaven’s sake don’t go to court. If you must, exercise your right to put in a statutory complaint, a permitted legal process.
Setting up a Military Administrative Tribunal shall be a progressive step, which shall provide succour to genuinely wronged, at the same time pass recordable stricture against those found guilty of deliberately attempting to harm the individual’s interest merely because they happened to be in position of authority. The court can only give relief to the complainant, they cannot direct the service Chiefs to record strictures in annual reports of those found responsible for a deliberate act of omission and commission. On the other hand if five Service Chiefs (MAT) find “No Case” in your complaint, you indeed have “NO CASE”.
No one should have any doubt that there have been instances in the past/ there would be in future as well, where an officer writing the ACR has been less than professionally honest to his subordinate. I only pity such birdbrains and may I remind them that while writing the ACR they should not consider themselves as God and think that they are writing the destiny of their subordinates. Destiny is already pre-ordained.
While making this proposal I am acutely conscious of the reaction of my colleagues. MOD may like to include it in terms and condition of service of service personnel that they cannot go to civil court for seeking redressal on matters related with promotions/postings . We cannot allow morale of our men being affected merely because one of us missed getting next rank. “No courts for Defence personnel” if the grievance is related to promotion/posting. Promotion/posting is an in house matter and must be resolved in-house. No judge is competent enough to pass a judgement on such issues. There is no attempt to curb the fundamental rights of Defence Personnel. It is merely to protect the interest of organization, which takes precedence over individual interest, always and every time.
May I appeal to my colleagues not to take to court matters related with posting and promotion. Filing a court case against your service is like suing your professional parents. Posting/Promotions is an in house matter. If you cannot convince your parent organisation, you have no right to go anywhere else. In a highly pyramidical structure, supercessions are to be treated as a norm. It is not a stricture on your performance. Berths on upper floors of service hierarchy are very few. Only the most competent from a group of otherwise competent people shall occupy those and rightly so.
A DSSC alumnus, Gp Capt Srivastava (Retd) is a military luminary who has written extensively on international relations, strategic affairs & Defence Procurement Procedures for leading strategic journals.
(Views expressed are the author's own and do not reflect the editorial stance of Mission Victory India)
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