Gauhati High Court
Union Of India Represented By The ... vs Shri Manoj Kumar Mongia & Ors on 19 October, 2011
Author: Sc Das
Bench: Sc Das
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM:NAGALAND:MEGHALAYA:MANIPUR:TRIPURA;
MIZORAM AND ARUNACHAL PRADESH)
SHILLONG BENCH
WP(C) No.(SH)1 of 2010
1. Union of India represented by
the Secretary to the Govt. of India,
Ministry of Home Affairs,
Govt. of India, New Delhi.
2. The Director (Police Finance)
Ministry of Home Affairs,
Govt. of India, New Delhi.
3. The Secretary,
Ministry of Health and Family Welfare,
Department of Health,
Govt. of India, New Delhi.
4. The Director General,
Assam Rifles,
HQ DGAR,
Shillong, Meghalaya.
: Petitioners
versus
1. Shri Manoj Kumar Mongia,
S/o Shri BM Mongia,
9th AR, C/o 99 APO.
2. Shri Sanjiv Kumar Rout,
S/o Indramoni Rout,
4th Ar,C/o 99 APO.
3. Shri Gurpret Singh,
S/o Sardar Hardeep Singh,
12th AR C/o 99 APO.
4. Shri Manraj Singh Oswal,
S/o Shri CL Oswal,
33rd AR C/o 99 APO.
5. Shri Abhay Kumar,
S/o Shri Baleswar Mahato,
27 Ar, C/o 99 APO.
: Respondents
WP(C)No.(SH)1 of 2010 Page 1 of 5
BEFORE
THE HON'BLE MR JUSTICE T VAIPHEI
THE HON'BLE MR JUSTICE BC DAS
For the petitioners : Shri SC Shyam, CGC
For the respondents : Shri R Jha, Advocate
Date of hearing : 19.10.2011
Date of judgment and order : 19.10.2011
JUDGMENT AND ORDER (ORAL)
Heard Mr SC Shyam, the learned CGC appearing for the writ petitioners and Mr R Jha, the learned counsel for the respondents.
2. The writ petition is directed against the judgment and order dated 29.05.2009 in Original Application No.147 of 2006 passed by the learned Central Administrative Tribunal (CAT), Guwahati Bench, Guwahati extending the benefit of 5th Pay Commission/Pay-scale of ` 4500/- to ` 7000/- to the Diploma Holder Pharmacist of Assam Rifles Organisation w.e.f. 1.1.1996 or from the date of their appointment, which ever was later and pay them their arrear within 120 days from the date of receipt of the judgment. At the outset Mr Shyam, the learned CGC, forcefully makes a submission on the point of jurisdiction. His contention is that the CAT has no inherent jurisdiction to try the case filed by the respondents. He draw our attention to Section2(a) of the Administrative Tribunals Act, 1985, to bring home his case that the Assam Rifles is a part of the armed forces of the Union to which the provision of the Administrative Tribunals Act, 1985, is not applicable. According to the learned CGC, the jurisdiction of the CAT does not extend to any member of the naval, military or air forces or of any other WP(C)No.(SH)1 of 2010 Page 2 of 5 armed forces of the Union. He therefore strenuously urges this Court to set aside the impugned judgment and order.
3. On the other hand, Mr R Jha, the learned counsel for the respondents argues that the Assam Rifles Organisation is not a part of the armed forces of the Union and that the Assam Rifles Organisation used to be governed by the provisions of the Assam Rifles Act, 1941, which has now been replaced by the Assam Rifles Act, 2009, which clearly excluded this force from the purview of the armed forces. Unlike the Border Security Force or the Central Reserve Police Force, Assam Rifles Organisation cannot be construed to be part of the armed forces of the Union and any ambiguity in this behalf has been dispelled by the enactment of the Assam Rifles Act, 2009, which has now recognized the obvious position that the Assam Rifles Organisation is not a part of the armed forces of the Union. It is the submission of the learned counsel for the respondents that to treat the Assam Rifles as a part of the armed forces under the circumstances will amount to giving retrospective effect to the Assam Rifles Act of 2009 which cannot be done by this Court by a process of interpretation. According to the learned counsel, specific and unambiguous declaration by the Central Government is necessary to treat the Assam Rifles Organisation as a part of the armed forces of the Union of India and unless such a declaration is made by the Central Government, the Assam Rifles Organisation could not be treated at the relevant time a part of the armed forces of the Union. As the Assam Rifles was not a part of the armed forces of the Union, prior to the enactment of the Assam Rifles Act, 2009, the CAT had the undoubted jurisdiction to entertain the application of the respondents, more so, when the cause of action occurred prior to 2009. WP(C)No.(SH)1 of 2010 Page 3 of 5 To fortify his submission, the learned counsel for the respondents relies on the decision of the Kerela High Court rendered on 4.12.2008 in connection with WP(C) No.32624 of 2008(S) (unreported).
4. We have given our anxious consideration to the submissions advanced by the learned counsel appearing for the rival parties. We have also perused the impugned judgment and order. In our opinion, the Tribunal has misconstrued the provisions of Section 2(a) of the Administrative Tribunal Act, 1985, in holding that Assam Rifles Organisation is not a part of the armed forces of the Union of India. The jurisdiction of the High Court under Article 226, which is high prerogative writ, cannot be ousted without an express provision to that effect made by the competent legislature. It is true that under the provisions of the Assam Rifles Act, 1941, there is no specific declaration made by the Act stating that Assam Rifles Organisation is a part of the armed forces of the Union but it must be remembered that the Act was a pre- independence Act. On the other hand, the Border Security Force, Act as well as the Central Reserve Police Force, Act, were enacted in the 60's. Perhaps the legislature at the time of enactment of the Assam Rifles Act, 1941, was unaware of the concept of armed forces of the Union. In any case, the fact that Assam Rifles Organisation is discharging the duties of the armed forces of the Union was clearly recognized even by the provision of Section 11 of the Assam Rifles Act, 1941. In our opinion, no distinction can possibly be made between the function of the Assam Rifles Organisation and other para military forces like the Border Security Force and Central Reserve Police Force. The provisions of Section 2(a) declaring that the Act shall not be applicable to any member of the naval, military or air forces or any other armed forces of the Union, is, in WP(C)No.(SH)1 of 2010 Page 4 of 5 our opinion, wide enough to take the Assam Rifles Organisation outside the ambit of the jurisdiction of the Tribunal in question. In the view that we have taken, the CAT does not have the inherent jurisdiction to entertain the Original Application filed by the respondents or to pass the impugned judgment and order. It is a case of coram non judice.
5. Resultantly, this writ petition is allowed. The impugned judgment and order is hereby set aside. It shall, however, be open to the respondents to approach the competent Court of jurisdiction to ventilate their grievances.
JUDGE JUDGE
Daphira
WP(C)No.(SH)1 of 2010 Page 5 of 5