Allahabad High Court
Vijay Kumar Verma vs Union Of India And 6 Others on 16 August, 2023
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:164978-DB Court No. - 39 Case :- WRIT - A No. - 13445 of 2023 Petitioner :- Vijay Kumar Verma Respondent :- Union Of India And 6 Others Counsel for Petitioner :- Yashpal Yadav,Lalji Yadav Counsel for Respondent :- A.S.G.I. Hon'ble Saumitra Dayal Singh,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard Sri Yashpal Yadav, learned counsel for the petitioner and Sri Ankur Goyal, learned counsel for the Union of India.
2. The present writ petition has been filed by the petitioner to assail the order of the Armed Forces Tribunal, Regional Bench, Lucknow dated 31.01.2022 passed in O.A. (A) No. 511 of 2021 with M.A. No. 532 of 2021 in re O.A. No. 295 of 2019 (Ex Sep Vijay Kumar Verma vs. Union of India and others.
3. By that order, the learned Tribunal has dismissed the O.A., on merits, for the reason that the cause of action was not covered / falling under Section 3(o) of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as 'the Act').
4. Having heard the learned counsel for the parties and having perused the record, it is an undisputed fact that amongst others, the petitioner was awarded punishment of severe reprimand in General Court Martial Proceedings (GCMP) vide order dated 05.09.2006. In that undisputed fact, it is to be tested that if the petitioner has a right to approach the Tribunal.
5. Section 3(o) of the Act reads as follows:
"3(o) "service matters", in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950), mean all matters relating to the conditions of their service and shall include?
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure, including commission, appointment, enrollment, probation, confirmation, seniority, training, promotion, reversion, premature retirement, superannuation, termination of service and penal deductions;
(iii) summary disposal and trials where the punishment of dismissal is awarded;
(iv) any other matter, whatsoever, but shall not include matters relating to?
(i) orders issued under section 18 of the Army Act, 1950 (46 of 1950), sub-section (1) of section 15 of the Navy Act, 1957 (62 of 1957) and section 18 of the Air Force Act, 1950 (45 of 1950); and
(ii) transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950);
(iii) leave of any kind;
(iv) summary court martial except where the punishment is of dismissal or imprisonment for more than three months;"
6. Thus, the legislature appears to have first included within the ambit of the phrase "service matters," all matters relating to conditions of service and second the legislature further chose to specify certain disputes as specifically included in the "service matters" thus defined. Those are enumerated as sub clauses (i), (ii), (iii) and (iv) of Section 3(o) of the Act.
7. Thereafter another clause appears. It reads: "but shall not include matters relating to." Clearly, the award of severe reprimand at the General Court Martial Proceedings (GCMP) is not excluded under any of those exclusionary clauses, thus specified by the legislature.
8. What therefore, follows is that the punishment of severe reprimand would remain covered under the words "matters relating to the conditions of their services."
9. Being not specified in the exclusionary clause, the award of that punishment, therefore, is included within the meaning of the phrase "service matters" under Section 3(o) of the Act.
10. The error in the order of the Tribunal appears to have made without owing to the impression incorporated in the later part of the order that such punishment had been awarded at a Summary Court Martial Proceeding (SCMP).
11. That observation appears to be against the records as has been fairly admitted by the learned counsel for the Union of India and it is also clear from the third paragraph of the order itself.
12. In view of the facts, no useful purpose would be served by keeping this matter pending. The order dated 31.01.2022 passed by Armed Forces Tribunal, Regional Bench, Lucknow, is set aside. The matter is remitted back to the Tribunal to pass fresh orders in accordance with law, on merits.
13. The delay in filing the O.A. has to be treated to have been condoned by the Tribunal itself. Therefore, no fresh order is required in that regard.
14. The writ petition is, accordingly, disposed of.
Order Date :- 16.8.2023 Ashish Pd.