Delhi District Court
Subedar Major Mukhtiar Singh vs . Union Of India & Ors. on 21 February, 2015
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT
JUDGEII (CENTRAL): TIS HAZARI COURTS: DELHI
CS No. 126/2013
Subedar Major Mukhtiar Singh Vs. Union of India & Ors.
21.2.2015
ORDER:
This application under Section 34 of the Armed Forces Tribunal Act, 2007 has been filed by Defendant no.3 Major P.K. Behl for transfer of the present suit which is for recovery of Rs.20 lacs against the defendant no.1 Union of India, defendant no.2 Chief of the Army Staff and Major P.K. Behl (Retd.) the then Commanding Officer of 289 Company ASC (Supply). It is an admitted case of the plaintiff that he had been dismissed from the service after being sentenced by the General Court Martial under the Army Act 1950 but his sentence of dismissal was set aside by the Hon'ble Single Judge of the Delhi High Court on the ground that the defendant no.3 i.e. Major P.K. Behl who was the prosecution witness in the General Court Martial could not have been relied upon by the General Court Martial without any corroboration. Consequent upon the Letters Patent Appeal (LPA) of Union of India not only on merits but also on the ground of inordinate delay the plaintiff was reinstated in service and given two unearned promotions. At the time when the present suit was instituted in the year Major Mukhtiar Singh Vs. UOI, CS No. 126/2013 Page No. 1 2000 the Armed Forces Tribunal Act had not been enacted and the same was enacted on 20.12.2007 and came into force on 15.6.2008 after which the various agencies have been constituted and in terms of the provisions of Section 33 and 34 of the Armed Forces Tribunal Act, 2007 the applicant now seeks the transfer of this case to the Tribunal so constituted under the Act.
A detail reply has been filed by the plaintiff to the said prayer wherein he has opposed the transfer of the suit to the Tribunal on the ground that the jurisdiction, power and authority of the Tribunal would only relate to service matters and since the present suit is for a simplictor damages, not being a service manner, it is the civil court who would have the jurisdiction to try the same.
I have carefully considered the rival contentions and I may observe that the plaintiff had filed the present suit for damages from the Union of India, Chief of Army Staff and Major P.K. Pehl on the ground that the it is the defendants who are responsible for all the mental, physical and financial suffering and social ostricization of the plaintiff on account of there failure to adhere the procedure established by law and for victimizing him consequent to which his dismissal was set aside by the Delhi High Court and he was given full consequential benefits thereof, thereby establishing that the relief of damages being claimed by the plaintiff is an offshoot of the service dispute which the plaintiff had with the defendants and consequential to the same. Admittedly Major Mukhtiar Singh Vs. UOI, CS No. 126/2013 Page No. 2 when the suit was filed by the plaintiff, the Armed Forces Tribunal Act was not in force and now after the enactment of the Act a Principal Bench has been constituted at New Delhi which is functional. The provisions of Section 33 and Section 34 of the Armed Forces Tribunal Act are reproduced as under:
33. Exclusion of jurisdiction of civil courts : On and from the date from which any jurisdiction, powers and authority becomes exercisable by the Tribunal in relationto service matters under this Act, no Civil Court shall have, or be entitled to exercise, such jurisdiction, power or authority in relation to those service matters.
34. Transfer of pending cases : (1) Every suit, or other proceeding pending before any court including a High Court or other authority immediately before the date of establishment of the Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen after such establishment within the jurisdiction of such Tribunal, stand transferred on that date to such Tribunal.
(2) Where any suit, or other proceeding stands transferred from any court including a High Court or other authority to the Tribunal under subsection (1),--
(a) the court or other authority shall, as soon as may be, after such transfer, forward the records of such suit, or other proceeding to the Tribunal;
Major Mukhtiar Singh Vs. UOI, CS No. 126/2013 Page No. 3
(b) the Tribunal may, on receipt of such records, proceed to deal with such suit, or other proceeding, so far as may be, in the same' manner as in the case of an application made under subsection (2) of section 14, from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.
It is writ large that Section 33 of the Armed Forced Tribunal Act totally exclude the jurisdiction of the Civil Court and Section 34 deals with the suits and other proceedings pending in the Civil Court or any other Courts at the time of of the constitution of the tribunal and provides that all such proceedings shall be transferred to the Tribunal along with the records of the case and the Tribunal exercises full powers of the Civil Courts.
Further, Section 14 of the Armed Forced Tribunal Act deals with the powers of the Tribunal according to which the Tribunal has the jurisdiction to try the disputes regarding Service Matters. The provisions of Section 14 are reproduced as under:
14. Jurisdiction, powers and authority in service matters : (1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority, exercisable immediately before that day by all courts (except the Supreme Court or a High Court exercising jurisdiction under articles 226 and Major Mukhtiar Singh Vs. UOI, CS No. 126/2013 Page No. 4 227 of the Constitution) in relation to all service matters.
(2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed.
(3) On receipt of an application relating to service matters, the Tribunal shall, if satisfied after due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the Tribunal is not so satisfied, it may dismiss the application after recording its reasons in writing. (4) For the purpose of adjudicating an application, the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, (5 of 1908) while trying a suit in respect of the following matters, namely--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, (1 of 1872) requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decisions;
(g) dismissing an application for default or deciding it exparte;
Major Mukhtiar Singh Vs. UOI, CS No. 126/2013 Page No. 5
(h) setting aside any order of dismissal of any application for default or any order passed by it exparte; and
(i) any other matter which may be prescribed by the Central Government.
(5) The Tribunal shall decide both questions of law and facts that may be raised before it.
Further, the provisions of Section 3 (o) of the Armed Forced Tribunal Act, 2007 defines the term 'Service Matter' as under:
3. Definitions: In this Act, unless the context otherwise requires ......
............
...........
..........
(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, enrolment, 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 Major Mukhtiar Singh Vs. UOI, CS No. 126/2013 Page No. 6 include matters relating to--
(i) orders issued under section 18 of the Army Act, 1950 (46 of 1950) subsection (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...........
It is writ large that the present suit of the plaintiff does not fall in any of the exceptions as provided in Section 3 (o) clause (iv) sub clauses (i) to (iv) and the word "any other matter" is wide enough to include the case of the plaintiff for damages consequent upon his exoneration by the Delhi High Court and grant of full benefits.
Hence, in view of the above the entire record of the present suit together with the pleadings, documents and Miscellaneous papers including the process of the Court, are directed to be sent to the Principal Bench, Armed Forces Tribunal, New Delhi after retaining the Major Mukhtiar Singh Vs. UOI, CS No. 126/2013 Page No. 7 photocopies of the same which shall be consigned to Record Room. Parties are directed to appear before the Registrar, Principal Bench, Armed Forces Tribunal, New Delhi on 9.3.2015. Ahlmad to send the file after paginating and completing the same as per rules. Announced in the open court (Dr. KAMINI LAU) Dated: 21.2.2015 ADJII(CENTRAL)/ DELHI Major Mukhtiar Singh Vs. UOI, CS No. 126/2013 Page No. 8 Major Mukhtiar Singh Vs. Union of India & Ors.
CS No. 126/2013
21.2.2015
Present: None for the plaintiff.
Sh. M.G. Kpoor Advocate for the defendant no.3 Application has been filed by the defendant no.3 under Section 34 of Armed Forces Tribunal Act, 2007 to which a detail reply has already been filed by the plaintiff.
Heard arguments on the application. Be listed for orders at 4:00 PM.
(Dr. Kamini Lau)
ADJII(Central)/ 21.2.2015
4:10 PM
Present: None for the parties.
Vide my separate detail order dictated and announced in the open court, but not yet typed, the entire record of the present suit together with the pleadings, documents and Miscellaneous papers including the process of the Court, are directed to be sent to the Principal Bench, Armed Forces Tribunal, New Delhi after retaining the photocopies of the same which shall be consigned to Record Room.
Parties are directed to appear before the Registrar, Principal Bench, Armed Forces Tribunal, New Delhi on 9.3.2015. Ahlmad to send the file after paginating and completing the same as per rules.
Major Mukhtiar Singh Vs. UOI, CS No. 126/2013 Page No. 9
(Dr. Kamini Lau) ADJII(Central)/ 21.2.2015 Major Mukhtiar Singh Vs. UOI, CS No. 126/2013 Page No. 10