Research › Search › Judgment

Uttarakhand High Court · body

2012 DIGILAW 71 (UTT)

Ex Havildar Birendra Singh Negi v. Union of India

2012-02-21

SUDHANSHU DHULIA

body2012
Judgment : Hon’ble Sudhanshu Dhulia, J. The petitioner is a person subject to the Army Act, 1950, and consequently is aggrieved by certain orders passed by the Army Authorities. He sought redressal of his grievance before this Court by filing a writ petition being Writ Petition (S/S) No. 26 of 2008. Inter alia, one of the prayers of the petitioner was for quashing of an order of “severe reprimand” passed by the Army authority under Section 80 read with Section 63 of the Army Act. This petition was filed before this Court on 9.1.2008. Consequently, the Armed Forces Tribunal Act, 2007 (from hereinafter referred to as the Act) came into force under which the Central Government was to establish a Tribunal under Section 4 of the Act, known as “Armed Forces Tribunal, with a Principal Bench and other benches as well. Though the Act had come into force on 15.6.2008, the actual constitution and function of the Principal Bench of the Tribunal and other benches took some time. That being done all such matters pertaining to Armed Forces personnels were liable to be transferred before the Armed Forces Tribunal in view of Section 34 of the Act. On 21.4.2010, this matter was listed before this Court when it was pointed out before this Court by the learned counsel for the petitioner as well as the learned counsel for the Armed Forces i.e. Union of India that the matter is now cognizable by the Armed Forces Tribunal which has now been constituted and is functioning at Lucknow. Therefore under Section 34 of the Act the case is liable to be transferred to the Tribunal. No further arguments or submissions were made at point of time and since it was an admitted fact that the petitioner was a person subject to the Army Act, 1950 and the grievance which he had raised was liable to be redressed by the learned Tribunal which stood constituted and functioning at Lucknow. Moreover, both the counsel for the petitioner as well as counsel for Union of India agreed that the matter is now cognizable by the Armed Forces Tribunal and is liable to be transferred to the Tribunal under Section 34 of the Act, the matter was transferred to the Armed Forces Tribunal vide order dated 21.4.2010 under provisions contained under Section 34 of the Act. Section 34 of the Act reads as under :- “34. Section 34 of the Act reads as under :- “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.” Section 34 of the Act thus clearly stipulates that, inter alia, even a writ petition pending before the High Court shall stand transferred on that date to such Tribunal and the Tribunal on receipt of such a record proceed to deal with the matter in the manner prescribed under Section 14 (2) of the Act i.e. it will proceed with the matter. In short, the learned Tribunal has to only proceed with the matter (after the same has been received by the Tribunal) as if an application has been filed before the learned Tribunal itself under Section 14 of the Act. After the records of the present writ petition were transferred to the Tribunal at its Bench at Lucknow, the learned Tribunal did not proceed with the matter and has transferred the case back to this Court on the grounds that it has no jurisdiction over the matter! The operative portion of the order of learned Tribunal dated 11.7.2011 reads as under :- “In the circumstances we are of the view that the Tribunal does not have any jurisdiction. The operative portion of the order of learned Tribunal dated 11.7.2011 reads as under :- “In the circumstances we are of the view that the Tribunal does not have any jurisdiction. Let the papers of this case be transmitted to the High Court of Uttranchal.” The counsel for the petitioner Mr. Lalit Kumar has firstly challenged the order of the learned Tribunal dated 11.7.2011 being totally without jurisdiction inasmuch as the learned Tribunal had no authority under the law to transmit back to the High Court the records of a case which stood transferred to it by the High Court under Section 34 of the Act. Apart from this, learned counsel for the petitioner Mr. Lalit Kumar has made other submissions as well which have been placed by him before this Court and have been marked as Annexure – X, as records of the writ petition. This Court has heard the learned counsel for the petitioner Mr. Lalit Kumar as well as the learned counsel for the Union of India Ms. Anjali Bhargava at great length. Both the counsels have been unanimous in their argument that this matter had earlier been rightly transferred before the learned Tribunal as in the first instance the case is liable to be decided by the learned Tribunal itself, and that the order of the Tribunal dated 11.7.2011 is without jurisdiction. After having given its most considered thought on this aspect, this Court has also reached the conclusion that the matter is cognizable at the first instance, by the learned Tribunal alone, and that the Tribunal has the jurisdiction over the matter which was transferred to it under the Act and, therefore, the learned Tribunal has committed a patent illegality while coming to the conclusion that it has no jurisdiction over the matter. But, more importantly in consequent to the conclusion recorded by it that it has no jurisdiction over the matter, it has passed an order, which is well beyond its jurisdiction and has transmitted the records of this case back to this Court, vide its order dated 11.7.2011. The reasons are as follows :- Section 34 of the Act states that once the matter has been transferred to the Tribunal, the Tribunal has no other option but to proceed with the matter under Section 14 of the Act. Section 14 (2) of the Act reads as under :- “14. The reasons are as follows :- Section 34 of the Act states that once the matter has been transferred to the Tribunal, the Tribunal has no other option but to proceed with the matter under Section 14 of the Act. Section 14 (2) of the Act reads as under :- “14. Jurisdiction, powers and authority in service matters. – (1) Save as otherwise expressly provided in this Act, 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. (2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed. (3) On receipt of an application relating to service matters, the Tribunal shall, if satisfied after due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the Tribunal is not so satisfied, it may dismiss the application after recording its reasons in writing. (4) For the purpose of adjudicating an application, the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), which trying a suit in respect of the following matters, namely: - (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of section 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing an application for default or deciding it ex parte; (h) setting aside any order of dismissal of any application for default or any order passed by it ex parte; and (i) any other matter which may be prescribed by the Central Government. (5) The Tribunal shall decide both questions of law and facts that may be raised before it.” The language of Section 14 (3) is absolutely clear. The provision clearly stipulates that when such an application is filed before the tribunal, the learned tribunal will first ascertain, if necessary by way of an inquiry, that the matter is fit for adjudication and if it is so the application will be admitted and if it is not satisfied it will dismiss the application after recording its reasons. In other words, there are only two options before the learned Tribunal, once a matter is placed before the Tribunal – (a) to reject the matter at the very first instance on the ground that the matter is not cognizable by it and (b) to proceed with the matter and to decide the matter according to its merit. There is no third option as the one which has been presently exercised by the learned Tribunal, which is to transfer the matter back to the High Court! In case the learned Tribunal, for any reasons, was of the view that the subject matter of the writ petition is such that it is not fit for adjudication by it, and it lies outside its jurisdiction as the jurisdiction to hear the matter has not been given to it by the Act then the only option available before the learned Tribunal was to reject the petition. It has absolutely no powers under the Act or any other provision of law to transfer the case back to the High Court. Even under the ordinary law where the principles of code of Civil Procedure may be applicable, the only option, assuming for the sake of argument, that the Court or the Tribunal had rightly come to a conclusion that the subject matter of the case is beyond its jurisdiction then it could have returned the petition to the petitioner. In that case, the petitioner would have either challenged the order before this Court or would have sought his remedy somewhere else. Although presently when it is clearly stated in Section 14 (3) that in case the Tribunal is not satisfied it may reject the petition the only option in that eventuality for the Tribunal was to reject the petition. Returning the record back to this Court was not an option available to the learned Tribunal. Although presently when it is clearly stated in Section 14 (3) that in case the Tribunal is not satisfied it may reject the petition the only option in that eventuality for the Tribunal was to reject the petition. Returning the record back to this Court was not an option available to the learned Tribunal. Hence the order dated 11.7.2011 is bad as it is beyond the jurisdiction of the learned Tribunal. All the same, this is one aspect which has been dealt with by this Court. The other aspect still remains which is whether on the present subject matter the learned Tribunal actually has jurisdiction or not! Question : Whether the Armed Forces Tribunal had the jurisdiction to decide the subject matter raised in the writ petition? Answer : There are more than one reasons why the answer to the above question has to be answered in the affirmative i.e. that the Tribunal has the jurisdiction to decide the subject matter raised by the petitioner. Let us examine the basic provisions of law here. The main grievance of the petitioner is that the pension which was liable to be given to him should be of a “Havildar” but what is being given to him is that of a “Naik”. The reasons disclosed for this alleged anomaly is that the petitioner was given a punishment of “severe reprimand” under Section 80 of the Army Act. This order of punishment was given to the petitioner by his Commanding Officer under the powers exercised by the Commanding Officer of the Armed Forces under Section 80 of the Army Act. Section 80 of the Army Act reads as under :- “80. Punishment of persons other than officers, junior commissioned officers and warrant officers. This order of punishment was given to the petitioner by his Commanding Officer under the powers exercised by the Commanding Officer of the Armed Forces under Section 80 of the Army Act. Section 80 of the Army Act reads as under :- “80. Punishment of persons other than officers, junior commissioned officers and warrant officers. - Subject to the provisions of section 81, a commanding officer or such other officer as is, with the consent of the Central Government, specified by [the Chief of the Army Staff], may, in the prescribed manner, proceed against a person subject to this Act otherwise than as an officer, junior commissioned officer or warrant officer who is charged with an offence under this Act and award such person, to the extent prescribed, one or more of the following punishment, that is to say, - (a) imprisonment in military custody up to twenty-eight days; (b) detention up to twenty-eight days; (c) confinement to the lines upto twenty-eight days; (d) extra guards or duties; (e) deprivation of a position of the nature of an appointment or of corps or working pay, and in the case of non-commissioned officers, also deprivation of acting rank or reduction to a lower grade of pay; (f) forfeiture of good service and good conduct pay; (g) severe reprimand or reprimand; (h) fine up to fourteen days’ pay in any one month; (i) penal deductions under clause (g) of section 91; ” We may notice here that under 80 (g) severe reprimand is one of the punishments prescribed but dismissal is not. Now, the service matters under the Act have been defined in Section 3 (o) of the Act, which is as follows :- “3. Definitions. Now, the service matters under the Act have been defined in Section 3 (o) of the Act, which is as follows :- “3. Definitions. – In this Act, unless the context otherwise requires, - (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;” The learned Tribunal it must be said, has examined this aspect in a rather narrow and restictive confines of Section 3 (o) (iii) and has come to the conclusion that the petitioner had challenged an order of “severe reprimand” which was passed in summary disposal of case under Section 80 of the Army Act, and thereafter referring to Section 3 (o) (iii) it has concluded that it has jurisdiction only to hear a challenge to orders in such summary disposals and trials where a punishment of “dismissal” is awarded and since in the case before the Tribunal the punishment awarded was not of dismissal but only of “severe reprimand”, the learned Tribunal has come to the conclusion that the case falls outside its jurisdiction. All the same, in order to fully appreciate the conclusions drawn by the learned Tribunal, let us reproduce the entire order passed by the learned Tribunal. It goes like this : “The main prayer in the writ petition, papers of which have been transmitted to this Tribunal in view of the order dated 21.4.2010 passed by the High Court of Uttranchal, is for issuance of a writ of Certiorari to quash the punishment of severe reprimand awarded to the applicant on 07.4.1997. It is stated by Sri Lalit Kumar, learned counsel for the applicant that the order of severe reprimand was passed in summary disposal of case proceedings under section 80 of the Army Act and that the said order cannot be challenged before the Tribunal in view of definition of service matters in Section 3 (o)(iii) of the AFT Act. The said provision of Section 3(o)(iii) of the Act is quoted below: “(3)(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)------- (ii)------ (iii) summary disposal and trials where the punishment of dismissal is awarded.” In this case the punishment awarded is not of dismissal but of but of severe reprimand. Learned counsel for both the parties state that this case should be sent back to the High Court. The issue has actually been decided by Principal Bench of the Tribunal in Sgt. Tek Chand Sharma Vs. Union of India and others in TA No. 96 of 2010, decided on 19.2.2010. Learned counsel for both sides submit that the point is covered by that decision. It is stated by Sri Lalit Kumar that the counsel could not point out lack of jurisdiction of the Tribunal before the learned Single Judge at the time when order for transmitting the records of the case to the Tribunal was passed by the High Court. We have also considered the matter. The controversy regarding maintainability of a petition against the order of severe reprimand passed in summary disposal of case has already been decided in Sgt. Tek Chand Sharma (supra). In the circumstances we are of the view that the Tribunal does not have any jurisdiction. We have also considered the matter. The controversy regarding maintainability of a petition against the order of severe reprimand passed in summary disposal of case has already been decided in Sgt. Tek Chand Sharma (supra). In the circumstances we are of the view that the Tribunal does not have any jurisdiction. Let the papers of this case be transmitted to the High Court of Uttranchal.” As it is evident, the Regional Bench of Armed Forces Tribunal has also referred to a decision of Principal Bench, New Delhi passed in Sgt. Tek Chand Sharma Vs. Union of India and others (TA No. 96 of 2010). The order of the Principal Bench in Sgt. Tek Chand Sharma (supra) has been placed before this Court and has been perused. The said order also examines the definition of “service matters” under Section 3 (o) (iii) of the Act, and has reasoned that an order of summary disposal where no other punishment but the punishment of “severe reprimand” has been awarded cannot be heard by the tribunal, and in case it does it would be exceeding its jurisdiction which has been conferred upon it by the statute i.e. Armed Forces Tribunal Act, 2007. It further refers to a decision of the Hon’ble Apex Court and states that Tribunal should stick to the jurisdiction given to it by the statute and should not travel beyond what is given to them. According to the learned Tribunal, therefore, what was primarily challenged before the Tribunal was an order which was summary disposal in nature, in which a punishment of “severe reprimand” was awarded to the petitioner. In other words, had an order of “dismissal” been passed in the summary disposal order, only in that eventuality it would have been a subject matter for adjudication by the Tribunal. Learned counsel for the petitioner Mr. Lalit Kumar has taken great pains in taking us through various provisions of the Army Act, the Navy Act as well as the Air Force Act, and he has then tried to demonstrate that in any case an order of punishment of dismissal cannot be awarded by way of a “summary disposal” and, therefore, in Section 3 (o) (iii) the word “where the punishment of dismissal is awarded” is rather superfluous and has no meaning. Though nothing contrary has been shown to this Court on this aspect, all the same, having noted this aspect this Court refrains from stating anything further and will proceed with the presumption that there is a punishment of dismissal in summary disposal. But having assumed this presumption of the Tribunal to be correct was it the intention of the Legislature that the Armed Forces Tribunal will not have jurisdiction in the matter when in a summary disposal any other punishment, but that of dismissal has been awarded! In order to arrive at the correct answer, we will again have to reappreciate the definition of “service matters”, on which the entire reliance has been placed by the learned Tribunal. The first part of Section 3 (o) where “service matters” have been defined has to be divided into two. The first part which states “service matters”, in relation to persons subject to Army Act, the Navy Act and the Air Force Act means “all matters relating to the conditions of their* service”, and then the second part says “and shall include –”. In other words, “service matters” mean all matters relating to the conditions of service and thereafter the Legislatures in their wisdom have stated “and shall include”, by way of inclusion of certain matters. In other words, what has been given in sub-clause (i), (ii) and (iii) of Section 3 (o) is not exhaustive, but only inclusive of what has already been stated i.e. service matter means “all matters relating to the condition of their service”. In other words, “service matters” as defined under the Armed Forces Tribunal Act, 2007 mean in relation to a person subject to the Army Act, the Navy Act or the Air Force Act “all matters relating to the conditions of his service” and only further includes such matters as have been stated in sub-clause (i), (ii) and (iii). Therefore merely because Section 3 (o) (iii) speaks of a punishment of dismissal in a summary disposal and trial it does not mean that any other punishment besides “dismissal” if awarded in a summary disposal and trial is not cognizable by an Armed Forces Tribunal, as that would be a wrong appreciation of law and it emanates from a wrong appreciation of the definition clause of “service matters” in the Armed Forces Tribunal Act, 2007. In other words, if the order dated 11.7.2011 passed by the learned Tribunal is to be a correct order then the only definition of “service matters” in the Act would be what has been given in (i), (ii) and (iii) and that the “service matter” also states that it means “all matters relating to the conditions of their service” has no meaning at all! The definition of subject matter does not start after the word “includes” but it is a wide inclusive definition stating, the “service matter” means “all matters relating to the conditions of their* service”, and after having said that it includes what has been stated in (i), (ii) and (iii). This aspect has been so well dealt with by Justice G.P. Singh in his Opus (Principles of Statutory Interpretation). This has been explained, inter alia, by way of illustration, which must be reproduced here “A definition which defines a word to mean A and to include B and C cannot in its application be construed to exclude A and to include only B and C”. It then goes on to refer to the decision of the Hon’ble Apex Court in Jagir Singh and others v. State of Bihar and another; AIR 1976 SC 997 where what was for interpretation was the definition of the word “owner” in the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961. The expression “owner” defined in the Bihar Act in Section 2 (d) was as follows :- ““ Owner” means the owner of a public service motor vehicle in respect of which a permit has been granted by a Regional or State Transport Authority under the provisions of the Motor Vehicles Act, 1939 and includes the holder of a permit under the said Act in respect of a public service motor Vehicle or any person for the time being in charge of such vehicle or responsible for the management of the place of business of such owner.” * “their”, means all person subject to the Army Act, 1950. The submission before the Hon’ble Apex Court was that one who is liable to pay the tax or any person from the time being in charge is “owner”. Indicating this contention, the Hon’ble Apex Court in Jagir Singh case (supra) held as under :- “19. The submission before the Hon’ble Apex Court was that one who is liable to pay the tax or any person from the time being in charge is “owner”. Indicating this contention, the Hon’ble Apex Court in Jagir Singh case (supra) held as under :- “19. The definition of “owner” repels the interpretation submitted by the petitioners that the definition means not only the owner who is the permit holder but also a booking agency who may be in charge of the vehicle without being a permit holder. The entire accent in the definition of owner is on the holder of a permit in respect of the public service motor vehicle. It is the permit which entitles the holder to ply the vehicle. It is because the vehicle is being plied that the passengers and consignors of goods carried by that vehicle become liable to pay not only fare and freight to the owner but also tax thereon to the owner. The words “or any person for the time being in charge of such vehicle or responsible for the management of the place of business of such owner” indicate that the permit holder will include any person who is in chare of such vehicle of the permit holder or any person who is responsible for the management of the place of business of such owner. The owner cannot escape the liability by stating that any person is for the time being in charge of such vehicles, and, therefore, such person is the owner and not the permit holder. Further, in paragraph 21 of the said judgment, the Hon’ble Apex Court stated as under :- “21. The definition of the term “owner” is exhaustive and intended to extend the meaning of the term by including within its sweep bailee of a public carrier vehicle or any manager acting on behalf of the owner. The intention of the legislature to extend the meaning of the term by the definition given by it will be frustrated if what is intended to be inclusive is interpreted to exclude the actual owner.” Moreover, what is restrictive meaning of a definition and what is an inclusive meaning are too well defined and should not pose any difficulty for our appreciation. Had the legislature in its wisdom stated that subject matter would “mean”, what has been stated in (i), (ii) and (iii) only in that condition we could have had a restrictive meaning such as what has been proposed by the learned Tribunal. The fact that in the definition clause (i), (ii) and (iii) the “service matter” has a very wide definition and it states “all such matters relating to the conditions of their service” and only then it includes certain other subject matters by way of (i), (ii) and (iii) perhaps not been brought to the attention of the learned Tribunal by the counsel as it was brought to the notice of this Court. The intention of the Legislature that all service matters are liable to be cognizable by the Armed Forces Tribunal is further strengthened by the fact that in Section 3 (o) (iv) it further gives power to the Tribunal to hear and adjudicate “any other matters whatsoever”. Therefore, both in the main clause of the subject matter where it has been clearly stated that all service matters are to be heard by the Tribunal as well as in the residuary clause i.e. 3 (o) (iv), which speaks of “any other matter whatsoever” there should have been no room for any kind of doubt that the order of “severe reprimand” passed under Section 80 of the Army Act is cognizable by the Armed Forces Tribunal. Not only this, after the residuary clause in Section 3 (o) (iv) which gives the jurisdiction to the Tribunal to hear any other matter whatsoever, it specifically states four kinds of matters which are not to be heard by the Tribunal, which lie outside its jurisdiction. These are given in (i) to (iv) and definitely an order of “severe reprimand” passed in summary disposal under Section 80 of the Army Act is not one of such orders which has been specifically excluded under the aforesaid provision. Another aspect of the matter is that it never has been the intention of the Legislature to create multiplicity of forums for a person subject to the Army, Navy or Air Force Act. Another aspect of the matter is that it never has been the intention of the Legislature to create multiplicity of forums for a person subject to the Army, Navy or Air Force Act. The objects and reasons of the Act, inter alia, states as follows : “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.” In other words, it was the intention of the Legislature to vest the Tribunal with an exclusive jurisdiction to adjudicate upon all service matters of the members of the Armed Forces in the country for the reasons stated in the objects and reasons to that. The order dated 11.7.2011 is, therefore, set aside. The present matter stands transferred to the Armed Forces Tribunal, Lucknow. The Registry is hereby directed to transfer the records of the present case in accordance with Section 34 of the Armed Forces Tribunal Act.