Calcutta High Court
Lieutenant Colonel C.K. Agarwal vs Union Of India & Ors on 11 February, 2015
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
ORDER SHEET
APO 49/2015
WP 1532/2006
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
LIEUTENANT COLONEL C.K. AGARWAL
Versus
UNION OF INDIA & ORS.
BEFORE:
The Hon'ble JUSTICE BANERJEE
The Hon'ble JUSTICE SAMAPTI CHATTERJEE
Date : 11th February, 2015.
Mr.Pradeep Kumar Tarafdar, Advocate
Mr.Joydeep Sen, Advocate
Mr.Hemraj Adhikari, Advocate
for the appellant.
Mr.Kaushik Chandra, Advocate
Mr.Soumitra Das, Advocate
for the respondent.
The Court : This appeal would relate to an order dismissing a writ petition filed by a colonel relating to his promotion.
Being aggrieved, he preferred the instant appeal. During pendency of the appeal, the Union of India set up a Tribunal to deal with identical issue vide Armed Forces Tribunal Act, 2007. Section 34 of the said Act of 2007 being relevant herein is quoted below :
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"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, a 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 any 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 deed fit."
Relying on Section 34, Mr. Tarafdar would pray for transfer of the appeal to the Tribunal. To support his contention, he would rely upon an unreported 3 bench decision of the Allahabad High Court in Special Appeal Defective No.445.2005. Paragraph 17 being relied upon is quoted below :
"17. In the aforesaid context, we are of the opinion that the words 'other proceeding' in Section 34(1), will include intra court special appeals provided under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, in respect of the materials, which fall within the jurisdiction of the Tribunal under Section 14 of the Act. If the Tribunal can decide the pending writ petitions, which are transferred to it, the powers to decide the special appeal arising out of the judgments of one Judge of the High Court, has to be included in it".
We have also heard Mr.Kaushik Chandra, learned senior Counsel appearing for the Union of India. We are in doubt whether this appeal could be transferred to the Tribunal giving them opportunity to sit on appeal over the judgment and order of the learned Single Judge of this Court. The bench decision of the Allahabad High Court might have a persuasive value. However, we beg to differ.
This is a transitional period. Once the learned Single Judge dealt with the issue and disposed of the writ petition, the intra court appeal under Clause 15 is only available to this Court and not to the Tribunal. Hence, this appeal, if proceeded with, could only be heard by the Division Bench of this Court and nobody else. However, since the issue would have a national repercussion, we feel, a larger Bench should decide the issue. We, thus, request the Hon'ble Chief Justice to form and constitute a larger Bench to decide as to whether intra court 4 appeal under Clause 15 of the Letters Patent could be included within the meaning of Section 34 of the Armed Forces Tribunal Act, 2007 for being transferred to the Tribunal.
(BANERJEE, J.) (SAMAPTI CHATTERJEE, J.) sd/ AR[CR]