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2003 DIGILAW 566 (AP)

Ministry of Defence, Senior Accounts Officer, Department of Administrative Reforms, Public Grievances, New Delhi v. Gadde Yellamma

2003-04-13

BILAL NAZKI, ELIPE DHARMA RAO

body2003
BILAL NAZKI, J. ( 1 ) THIS Writ Petition has been filed by the Union of India challenging the order of the Tribunal passed in O. A. No. 1088 of 2001 dated 1-8-2001. The case of the respondent-applicant before the Tribunal was that her husband was enrolled on 24-9-1965 in the Indian Army. He died while in service on 15-4-1987. She made several representations to respondent no. 2 in the O. A (2nd petitioner) for family pension and other pensionary benefits. The representations had been rejected stating that her husband had deserted the army and his services had been terminated with effect from 2-5-1987. The Tribunal found that, since the applicant s husband had not been dismissed from service while he was alive and an order of dismissal had been passed after his death therefore he is presumed to have been in service on the date of his death. This order has been challenged in Writ Petition. ( 2 ) THOUGH there is dispute with regard to the date of death of husband of the respondent, but it is not disputed that the respondent s husband had died by the time the order of dismissal was passed. It is contended by the Writ petitioners that while the husband of the respondent was working at 13th Engineer Regiment he was granted annual leave from 9-1-1974 to 5-3-1974. He was supposed to report back after expiry of his leave on 6-3-1974. He failed to report to duty. He was declared deserter and finally in terms of Section 20 (3) of the Army Act he was dismissed from service with effect from 2-5-1987 by the commandant, Madras Engineer Group and centre. The respondent filed application on 18-2-1988 stating that her husband had died on 10-4-1987. After a lapse of more than 25 years the respondent made representation on 26-12-1998 to the Joint Secretary, department of Defence, South Block, New delhi requesting for release of family pension to her as her husband who was serving Army had died on 10-4-1987. This application was considered and proceedings were issued on 9-1-1999 rejecting the claim for family pension. It was reiterated that the husband of the respondent had been dismissed from service on 2-5-1987. ( 3 ) SINCE the respondent s husband had died prior to issuance of order of dismissal, therefore, the learned Counsel for the respondent submits that, the dismissal would have no effect. It was reiterated that the husband of the respondent had been dismissed from service on 2-5-1987. ( 3 ) SINCE the respondent s husband had died prior to issuance of order of dismissal, therefore, the learned Counsel for the respondent submits that, the dismissal would have no effect. He relies on a judgment of delhi Court reported in Smt. Harnandi v. Union of India, 2002 (2) AISLJ 49. But the learned Counsel for the petitioners submits that the O. A was not maintainable because it was filed after 25 years and the Central administrative Tribunal had no jurisdiction to hear the matter. The learned Counsel for respondent, however, submits that this objection was not taken before the Tribunal. Whether the objection was taken or not taken the Tribunal is not expected to take up matters which are outside the jurisdiction of the Tribunal. Therefore, we are not rejecting the plea of lack of jurisdiction on the ground that this plea was not taken before the Tribunal. Section 2 of the Administrative tribunals Act, 1985 lays down:"2. Act not to apply to certain persons : the provisions of this Act shall not apply to (a) any member of the naval, military or air forces or of any other armed forces of the Union; (b) -omitted- (c) any officer or servant of the Supreme court or of any High Court or Courts subordinate thereto; (d) any person appointed to the secretarial staff of either House of Parliament or to the secretarial staff of any State legislature or a House thereof or in the case of a Union territory having a legislature, of that Legislature. "from bare perusal of Section 2 it is clear that the provisions of the Act are not made applicable to any member of the naval, military or air forces or any other armed forces of the Union. But, the learned counsel for the respondent submits that the respondent who was applicant before the tribunal is not member of the naval, military or any other armed forces of the Union. On the other hand the learned Counsel for the petitioners submits that Section 2 has to be read along with Section 14 of the Act. The jurisdiction, powers and authority of the central Administrative Tribunal have been laid down under Section 14. Sub-section (1) and (1) (a) of Section 14 are relevant, they are reproduced:"14. On the other hand the learned Counsel for the petitioners submits that Section 2 has to be read along with Section 14 of the Act. The jurisdiction, powers and authority of the central Administrative Tribunal have been laid down under Section 14. Sub-section (1) and (1) (a) of Section 14 are relevant, they are reproduced:"14. Jurisdiction, powers and authority of the central Administrative Tribunal: (1) Save as otherwise expressly provided in this Act, the Central Administrative 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) in relation to (a) recruitment, and matters concerning recruitment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;"if one goes through the above provision it becomes clear that matters connected with recruitment to All India Service or to any service of the Union or civil post under the Union can be gone into by the tribunal. The Tribunal can also examine matters concerning recruitment to the posts connected with defence or any defence services if the post is filled by a civilian. The categories which have been mentioned in sub-section (1) and (l) (a) of Section 14 for the purpose of recruitment and matters concerning the recruitment are also amenable to the jurisdiction of the Tribunal with regard to all service matters in terms of sub-section (c) of Section 14 (1) which reads as under:" (C) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b) being a person whose services have been placed by a State Government or any local or other authority or any corporation or society or other body, at the disposal of the Central government for such appointment. "therefore, in our view, the Tribunal lacked the jurisdiction. The Tribunal could have not gone into the question at all. ( 4 ) FOR this reason alone, we allow the writ Petition. Set aside foe order of the Tribunal. "therefore, in our view, the Tribunal lacked the jurisdiction. The Tribunal could have not gone into the question at all. ( 4 ) FOR this reason alone, we allow the writ Petition. Set aside foe order of the Tribunal. However, in the peculiar circumstances of the case, we give liberty to the respondent to approach appropriate forum for redressal of her grievance, if so advised.