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Union Of India & Ors vs Ajay Kumar on 3 May, 2012

Author: T. Meena Kumari

Bench: T. Meena Kumari, Chakradhari Sharan Singh

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                                     Letters Patent Appeal No.1172 of 2005
                                                       In
                                Civil Writ Jurisdiction Case No. 13148 of 2003
                  ======================================================
                     1. Union Of India through Secretary, Ministry of Defence, New Delhi
                     2. Admiral-cum-Chief of Naval Staff New Delhi
                     3. Commanding Officer, Indian Naval Ship India, New Delhi
                     4. Lieutenant Commander-cum-Regulating Officer for Regulating
                          Officer, Indian Naval Ship India Dalhousie Road, New Delhi
                     5. Logistics Officer Incharge Naval Pay Office Shahid Bhagat Singh
                          Road, Mumbai- 400 023
                     6. Commodore Bureau of Sailors, Cheetah Camp, Mankhurd, Mumbai
                                                              .... .... Respondents/ Appellants
                                                     Versus
                  Ajay Kumar, son of Shri Rajendra Singh, Resident of Khanka (Near D.S.
                  College), P.O. and Police Station Katihar, District-Katihar, 854 105
                                                              .... .... Respondents/ Appellants
                  ======================================================
                  Appearance :
                  For the Appellant       :   Mr. Binay Kumar Pandey, C.G.C
                  For the Respondent/s : Mr. Yugul Kishor, Sr. Advocate
                                              Mr. Sanjay Kumar, Advocate

                  ======================================================
                  CORAM: HONOURABLE JUSTICE SMT. T. MEENA KUMARI
                           and
                           HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
                           SINGH
                  ORAL ORDER
                  (Per: HONOURABLE JUSTICE SMT. T. MEENA KUMARI)

11   03-05-2012

The present Letters Appeal has been filed by Union of India against order dated 01.03.2005 passed in C.W.J.C. No. 13148 of 2003.

An objection has been taken by the learned counsel appearing on behalf of the Union of India on maintainability of the writ petition itself on the ground of enactment of the Armed Forces Tribunal Act, 2007 (55 of 2007) (hereinafter referred to as the "Act"). However, relying upon Section 34 of this Act, learned Patna High Court LPA No.1172 of 2005 (11) dt.03-05-2012 2 Sr. counsel appearing on behalf of the respondents has contended that the Tribunal has no power whatsoever to exercise the powers of the High Court under Article 226 and 227 of the Constitution of India and, therefore, the Tribunal is not an appropriate authority to go into the merits of the case.

We had also an occasion to go into the provisions of Armed Forces Tribunal Act, 2007. The objective of the Act is to provide for the adjudication or trial by Armed Forces, Tribunal of disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950 and also to provide for appeals arising out of orders, findings or sentences of Court Marital held under the said Acts and for matters connected therewith or incidental thereto.

Sub-clause (o) of Section 3 defines the services matters which reads as follows:-

(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;

Section 14 of the said Act shows that the jurisdiction, powers and authority in service matters, 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 article 226 and 227 of the Constitution) in relation to all service matters.

Section 34 of the Act deals with transfer of pending cases, which 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 my 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.

Learned senior counsel appearing on behalf of the respondent has contended that the Tribunal cannot exercise the powers of the High Court under Article 226 and 227 of the Constitution. The present service matters can only be dealt with by the Tribunal by virtue of Section 34 of the Act Per contra, the learned counsel appearing on behalf of the appellant has contended that the Tribunal cannot exercise the power under Article 226 and 227 of the Constitution as such power is exercisable only by the Supreme Court or a High Court Patna High Court LPA No.1172 of 2005 (11) dt.03-05-2012 5 and the Tribunal is conferred with the power to deal with service matters as per Section 14 of the Act. Hence, such powers have to exercise by the Tribunal only which is conferred under the Statute as it is special enactment.

We find force in the contention raised by the learned counsel for the Union of India.

Under the above circumstances, we are of the opinion that as the Tribunal is empowered to exercise the powers under Section 34 of the Act, this matter has to be transferred to the Armed Forces Tribunal at Kolkata.

Accordingly, we set aside the order of the learned Single Judge and transfer the writ petition to the Armed Forces Tribunal at Kolkata with a direction to dispose of the same within a period of six months from the date of receipt of all the relevant papers, in accordance with law without being influenced by any observation made by the learned Single Judge or by this Court.

With the aforesaid observation, the Letters Patent Appeal stands allowed.

(T. Meena Kumari, J) AFR/Ashwini/- (Chakradhari Sharan Singh, J)