Kerala High Court
; vs Union Of India Rep.By Its Secretary on 28 July, 2011
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE Ag. CHIEF JUSTICE MRS.MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
MONDAY, THE 9TH DAY OF JANUARY 2012/19TH POUSHA 1933
WA.No. 1954 of 2011
----------------------------
AGAINST THE JUDGMENT IN WPC.20067/2011 DATED 28-07-2011
......
APPELLANT/PETITIONER: ;
-------------------------------------
A.B.A.KUMAR, EX PETTY OFFICER(RADIO)
(TELEGRAPHISTIST) OF INDIAN NAVY,
AGED 43 YEARS, NO.169306N, ARUMURIPARAMBIL
HOUSE, VADAUTHALA, ERNAKULAM KERALA- 682023.
BY ADV.SRI.JOHNSON GOMEZ
RESPONDENTS/RESPONDENTS:
---------------------------------------------
1. UNION OF INDIA REP.BY ITS SECRETARY,
MINISTRY OF DEFENCE, SOUTH BLOCK,
NEW DELHI.
2. THE CHIEF OF NAVAL STAFF, INTEGRATED HEAD
QUARTERS OF MINISTRY OF DEFENCE NAVY,
FOR PDOP/PDNAM/PDNT), NEW DELHI-110011.
3. THE FLAG OFFICER, COMMANDING - IN -CHIEF,
HEAD QUARTERS, WESTERN NAVAL COMMAND,
SHAHID BHAGAT SINGH ROAD, MUMBAI-400023.
4. THE FLAG OFFICER, COMMANDING-IN-CHIEF,
HEAD QUARTERS, SOUTH NAVAL COMMAND,
KOCHI-682004.
5. THE COMMANDING OFFICER, INS VAJRABAHU,
NAVAL DOCKYARD, MUMBAI-400023.
6. THE COMMANDING OFFICER, INS SINDHUVIJAY,
NAVAL DOCKYARD, MUMBAI-400023.
7. THE COMMODORE, BUREAU OF SAILORS,
CHEETAH CAMP, MANKHURD, MUMBAI-400088.
8. THE COMMANDER ASWAN KORULA, MARITIME
WARFARE CENTRE, NAVAL DOCKYARD,
VISAKHAPATNAM-530014.
BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09-01-2012 ,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Manjula Chellur, Ag. C.J. & P.R.Ramachandra Menon, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
W.A. No. 1954 OF 2011
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 9th day of January, 2012
JUDGMENT
Manjula Chellur, Ag. C.J.
Heard the learned counsel for the appellant as well as the learned Assistant Solicitor General, Sri.P. Parameswaran Nair for the respondents.
2. It is not in dispute that the appellant herein was a Petty Officer (Radio) (Telegraph) in the Indian Navy. He has retired from service with effect from 31.01.2011. Ext.P8 is an order dated 18.12.2008 whereby a warrant punishment was inflicted on the appellant herein. The appellant had challenged Ext.P8 order by filing a petition before the Armed Forces Tribunal, Regional Bench, Kochi. After considering the contentions raised by the appellant, the Armed Forces Tribunal passed Ext.P11 order dated 07.04.2011. The Armed Forces Tribunal, after going through the provisions applicable to the facts of the case held that, an order passed in pursuance of summary trial and dismissal would come within the purview of service matters, only W.A. No. 1954 of 2011 -:2:- if it is culminated in the penalty of dismissal. Accordingly, referring to Section 3(o) (iii) of the Armed Forces Tribunal Act, 2007, the Tribunal held as under:
"Section 3(p) defines Summary disposal and trial. Warrant punishment is imposed in a summary trial. Hence, this Tribunal has no jurisdiction to hear and dispose of the matter. The applicant has got other remedies. Therefore, even if the defects noted by the Registry are cured, the application cannot be entertained. So, return the case records along with the fee, if any, paid by the applicant to him to pursue the remedies available to him. We make it clear that this order will not be a bar to the applicant to pursue the remedies available to him and to approach the proper forum for redressal of his grievances."
3. In the writ petition, the appellant herein challenged Ext.P8 dated 18.12.2008, an order imposing warrant punishment on the appellant. Apparently he has continued in service till his retirement in 2011. If Ext.P8 was coming in the way of the appellant in any way, there was a proper recourse open to him in the year 2008, when the said order came to be passed. At this stage he cannot challenge or seek quashing of Ext.P8 as sought in the present writ petition. Having suffered punishment without W.A. No. 1954 of 2011 -:3:- any objection or demur now it is not proper for him to challenge Ext.P8. So far as the second prayer raised in the writ petition is concerned, it is to consider his promotion ignoring Ext.P8 as noted in Ext.P10. The learned Judge has referred the recital from Ext.P10 which reads as under:
"It is therefore requested that the sailor's case be considered favourably for his promotion and re-engagement notwithstanding the warrant punishment awarded to him."
4. The learned Single Judge was justified in saying that the 2nd respondent has to consider the recommendation made by the Commander Executive Officer(AOL) in Ext.P10 and take appropriate action in accordance with law. As a matter of fact, a time frame is also indicated for the consideration of the recommendation made by the AOL, in Ext.P10. In that view of the matter, when the respondent authority is not challenging this, it is not open to the appellant to seek quashing of Ext.P8 which has become stale at this stage.
5. We are of the opinion, taking into consideration of all the aspects of the matter, the learned Single Judge was W.A. No. 1954 of 2011 -:4:- justified and was magnanimous in directing the concerned respondent to consider the recommendation as stated above.
In that view of the matter, we are of the opinion, there is no material placed before us to warrant any interference. Accordingly, the Writ Appeal is dismissed.
Manjula Chellur, Ag. Chief Justice.
P.R.Ramachandra Menon, Judge.
ttb