Uttarakhand High Court
Ex Havildar Birendra Singh Negi vs Union Of India And Others on 18 October, 2011
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
WRIT PETITION (S/S) No. 26 of 2008
Ex Havildar Birendra Singh Negi
(No. 4068517 H) .............Petitioner
Versus
Union of India and others .........Respondents.
Present : Mr. Lalit Kumar, Advocate for the petitioner.
Ms. Anjali Bhargava, Standing Counsel for the Union of
India.
Hon'ble Sudhanshu Dhulia, J.
1. This matter has been sent back by the Armed Forces Tribunal, Lucknow Bench to this Court holding that it has no jurisdiction over the matter. The matter was hence heard at length, primarily on the jurisdictional aspect. The arguments advanced by the learned counsels from both the sides in the case are as follows :-
2. The first argument advanced by the counsel for the petitioner and duly supported by the counsel representing Union of India Ms. Anjali Bhargava is that the Armed Forces Tribunal had no jurisdiction under the Armed Forces Tribunal Act, 2007 (from hereinafter referred to as the Act) to remit or to return the matter back to this Court. Hence, the order dated 11.7.2011 by which it has been done is without jurisdiction. Earlier the matters relating to service of armed forces personnels were being adjudicated upon by this Court at the first instance by means of a writ petition being filed by the aggrieved parties. However, the Armed Forces Tribunal Act, 2007 came into force on 15th of June, 2008 and since then in terms of Section 34 of the Act, such matters which were pending, inter alia, before various High 2 Courts were stood transferred to the Tribunal which was so constituted under the Act. Section 34 of the Act reads as follows :-
"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 sub-section (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;
(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 sub-
section (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."
3. In the present case, the writ petition was filed by the petitioner before this Court earlier being Writ Petition (S/S) No. 26 of 2008 with the following prayers :-
"(i) to issue an order, direction or writ in the nature of 'Certiorari' to quash the punishment of 'severe reprimand' awarded to the petitioner on 7th April 1997 (Annexure-3).
(ii) to issue an order, direction or writ in the nature of 'Mandamus' commanding the respondents to grant the rank of Havildar to the petitioner with effect from 1st January 1997 with all consequential benefits till the date of his retirement, i.e. 31st October 2001.3
(iii) to issue an order, direction or writ in the nature of 'Mandamus' commanding the respondents to grant the pension of Havildar to the petitioner with effect from 1st November 2001 and pay him arrears accordingly.
(iv) to award the interest at the rate of 18% p.a. on the amounts as would become payable to him on account of the above relief.
(v) to award the cost of this petition, and
(vi) to grant any other relief which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
4. However, since during the pendency of the aforesaid writ petition the above Act had come into force and in view of Section 34 of the Act, since a prayer was made before this Court by both the parties stating that the matter is now cognizable by the Armed Forces Tribunal, more particularly by its Bench presently functioning at Lucknow, the matter was transferred to the aforesaid Tribunal. Therefore, vide order dated 21.4.2010 following order was passed by this Court :-
"Mr. Lalit Kumar, the learned counsel for the petitioner.
Mrs. Anjali Bhargawa, the learned counsel for the respondents.
Urgency application is allowed.
The matter is now cognizable before the Armed Forces Tribunal.
In view of the aforesaid, the Registry is directed to remit the record of the writ petition to the Armed Forces Tribunal within two weeks from today."
5. However, the Armed Forces Tribunal before whom the matter stood transferred under Section 34 of the Act has returned the matter back to this Court holding that it has no jurisdiction over the matter and the matter has been wrongly transferred by the High Court before it.
4Therefore, regarding the actual jurisdiction of the Tribunal we would come later. However, the first argument of the petitioner is that the powers as given to this Court or any other High Court to transfer the matter are not given to the Armed Forces Tribunal. In other words, the High Court can transfer the matter which is pending before it to the Tribunal, if the Tribunal has been constituted but the same powers are not with the Tribunal to transfer the matter to the High Court. Therefore, in absence of such power, the matter could not have been transferred to this High Court. As such, the order passed by the Tribunal is without jurisdiction. Counsel for the petitioner has further relied upon a decision of the Hon'ble Apex Court in Athmanathswami Devasthanam v. K. Gopalaswami Ayyangar reported in 1963 STPL (LE) 2594 SC 338 wherein, according to the petitioner, if the Court has no jurisdiction over a particular matter, and in absence of power to transfer it to a particular Court vested with the such Court, the only remedy open to the Court is to return the plaint back to the plaintiff and in the present matter to return the application or the petition, as the case might be, back to the applicant. Moreover, the counsel has further argued that in matters relating to Armed Forces personnels, the jurisdiction of civil court has been specifically ousted under Section 33 of the Act. Section 33 of the Act reads as under :-
"Section 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 relation to 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."5
6. The second limb of the argument of the petitioner is that the very purpose of establishing the Armed Forces Tribunal was to adjudicate upon the service disputes of Armed Forces personnels. Para 5 of the Statement of Objects and Reasons of the said Act reflects this intention of the Parliament, which reads as follows :-
"5....The Tribunal will oust the jurisdiction of all courts except the Supreme Court whereby resources of the Armed Forces in terms of manpower, material and time will be conserved besides resulting in expeditious disposal of the cases and reduction in the number of cases pending before various courts. Ultimately, it will result in speedy and less expensive dispensation of justice to the Members of the above-mentioned three Armed Forces of the Union."
The counsel would argue that it would imply that the Tribunal would have an exclusive jurisdiction to adjudicate upon all the service matters of the members of all the armed forces in the country.
7. The third argument of the petitioner would be that the Legislature while enacting the Act could not have thought that they are creating a dual jurisdiction in such service matters whereby a part of the matter are sent to the Tribunal and remaining to the High Court. Such being the logic all matters, i.e. all matters whatsoever are liable to be adjudicated upon by the Tribunal without any exception.
8. The fourth argument of the petitioner would be that "service matters" has been defined in Section 3 (o) of the Act. Section 3 (o) of the Act reads as under :-
"3. Definitions. - In this Act, unless the context otherwise requires, -
(a) ...6
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) ...
(h)...
(i) ...
(j) ...
(k) ...
(l) ...
(m) ...
(n) ...
(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 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;"7
9. The counsel would argue that this provision can be divided into two. The first elaborates these matters by sub-sections (i) (ii) (iii) and (iv) and the second part of the definition spells out those particular category of cases which shall not be adjudicated upon by the Tribunal. Admittedly, in the present case, a punishment of severe reprimand has been imposed upon the petitioner by his Commanding Officer. This punishment has not been imposed upon him by any Court Martial but by a superior officer in exercise of his general powers of administration. Since such a punishment has not been specifically excluded under the definition of "service matters" in Section 3 (o), the counsel would argue that it would include as a part of "service matter", more particularly under the residual clause which says "any other matter, whatsoever" [ Section 3 (o) (iv)].
10. The counsel would also argue that the definition of "service matters" is not an exhaustive definition given under Section 3 (o) of the Act, as the wording itself says "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,"
8In other words, what has been given to be included is not exhaustive and would also include a punishment of severe reprimand, which is the case at hand. Moreover, the counsel would also argue that there is a residuary clause under Section 3 (o) (iv) which says subject matter would be "any other matter, whatsoever" and more particularly since it has not been specifically excluded under any of the Head under Section 3 (o), the punishment of severe reprimand would be a subject matter to be cognizable by the Tribunal.
11. The counsel would further argue that Section 41 of the Act gives rule making powers to the Central Government, and under these powers the Central Government has framed rules known as "The Armed Forces Tribunal (Practice) Rules, 2009". Rule 146 of the said Rules reads as follows :-
"146. Classification of cases. - (1) The scrutiny branch of the Registry shall, at the time of scrutiny make classification of the cases as both department-wise (Army, Navy and Air Force) and subject-wise.
(2) The department-wise (Army, Navy and Air Force) classification shall be made in accordance with Form No. 26, as may be modified by the Chairperson from time to time.
(3) Subject-wise classification shall be made in accordance with Form No. 27, as may be modified by the Chairperson from time to time.
(4) The classification under this rule shall be entered in the relevant columns in the report of scrutiny in Form No. 2 or form No. 3, Order Sheet in Form No. 4 and Facing Sheet of the final cover in Form No. 5."
A reference has been made of the said Rule in Form 27 and the counsel argues that in item no. 7 in Form 27 the 9 punishment imposed upon the petitioner would be "summary awards/Summary Trial."
12. Learned counsel for the petitioner has also argued that under the definition of given in Section 3(o) (iii) of the Act which includes "summary disposal and trials where the punishment of dismissal is awarded", the words "where the punishment of dismissal is awarded " is in fact wholly superfluous and it is where the bone of contention lies, for the simple reason that under the summary disposals and trials the authorities either in Armed Forces Act, Navy Act or Air Force Act, do not have power of dismissal. The counsel has relied upon Sections 80, 83, 84 and 85 of the Army Act, Section 93 of the Navy Act and Sections 82 and 86 of the Air Force Act in order to substantiate his arguments.
13. Learned counsel appearing for the Union of India Ms. Anjali Bhargava has supported the case of the petitioner as far as jurisdiction of the Tribunal is concerned and has submitted that the order of the Tribunal is without jurisdiction and in any case prayer nos. 2 and 3 of the petitioner which relate to promotion and pension are cognizable by the Tribunal under "service matters".
14. List this matter on 31.10.2011 in the daily cause list.
(Sudhanshu Dhulia, J.) 18.10.2011 Avneet