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2012 DIGILAW 728 (ALL)

2nd Lt. Shatrughan Singh Chauhan v. Union of India Through Secretary Ministry of Defence, South Block, New Delhi and another

2012-03-26

S.P.MEHROTRA, SUNITA AGARWAL

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Satya Poot Mehrotra, & Sunita Agarwal, JJ.— Case called out in the revised list. 2. Shri Chandra Narain Tripathi, learned counsel for the petitioner and Shri S.K. Rai, learned counsel for the respondents are present. 3. The petitioner was holding the post of Second Lieutenant in the Indian Army. The petitioner was charged, and he faced Court Martial at Niyari in the year 1991. By the order dated 7.8.1991, the Court Martial sentenced the petitioner for seven years rigorous imprisonment and also cashiered the petitioner from the service. The said order dated 7.8.1991 was confirmed by the order dated 4.11.1991 passed by the GOC-in-Command (Northern Command). 4. The petitioner filed Post Confirmation Petition under Section 164(2) of the Army Act, 1950 before the Central Government and the Chief of Army Staff. By the order dated 10.8.1993, the Union of India, Ministry of Defence dismissed the said Post Confirmation Petition filed by the petitioner. 5. The present Writ Petition was thereafter filed by the petitioner, inter-alia, praying for quashing the said orders dated 7.8.1991, 4.11.1991 and 10.8.1992. 6. Thus, the subject matter of the Writ Petition pertains to service matter in respect of the petitioner as well as the sentence awarded to the petitioner by the Court Martial. The petitioner, as is evident from a perusal of the Writ Petition, was a member of the Armed Forces covered by the Army Act, 1950. 7. In Devi Saran Mishra Vs. Union of India and Others, 2010 (3) ADJ 593 (paragraphs 23, 24, 25, 26 and 27), a learned Single Judge of this Court has considered in detail the provisions of the Armed Forces Tribunal Act, 2007 (in short "the Act") in the light of various judicial decisions, and has held that in case, the cause of action involved in a Writ Petition is such as falls within the jurisdiction of the Tribunal after enforcement of the Armed Forces Tribunal Act, 2007, such cause of action has to be adjudicated upon in the first instance by the Tribunal. It is only after the decision of the Tribunal, that the matter would come to the High Court under Article 226/227 of the Constitution of India. 8. It is only after the decision of the Tribunal, that the matter would come to the High Court under Article 226/227 of the Constitution of India. 8. In view of this, it has been laid down that the Writ Petitions pending before this Court, wherein, the cause of action is such as would fall within the jurisdiction of the Tribunal after enforcement of the Armed Forces Tribunal Act, 2007, would stand transferred to the Tribunal for adjudication in view of Section 34 of the said Act. 9. The above decision of the learned Single Judge has been followed by the Division Benches of this Court in the following decisions: (A) Order dated 22.03.2010 passed in Civil Misc. Writ No. 15363 of 2007 [(Late ) Brig. (Retd.)Gaj Raj Singh Siwach & others Vs. Union of India & others], since reported in 2010 (4) ADJ 251 (DB). (B) Order dated 28.10.2010 passed in Special Appeal Defective No. 218 of 2006 [Anil Kumar Singh Vs. Union of India & Another]. (C) Order dated 6.12.2010 passed in Civil Misc. Writ Petition No. 21559 of 2002 [ Smt. Indrawati Singh Vs. Union of India and others]. (D) Order dated 6/12/2010 passed in Civil Misc. Writ Petition No. 21559 of 2002 [Smt. Indrawati Singh Vs. Union of India and others] (E) Order dated 20th January 2011 passed in Civil Misc Writ Petition No. 43411 of 1999 [Ic-40241h Major Anil Kumar Vs. Union of India and others]. 10. The cause of action of the present Writ Petition as noted above, is evidently such as falls within the jurisdiction of the Tribunal after enforcement of the Act. This is evident from the provisions contained in Section 14 read with Section 3(o) of the said Act as well as Section 15 of the said Act. It may be mentioned that cause of action of the present Writ Petition would not fall within the exception given in sub-clause (iv) of clause (o) of Section 3 of the said Act, as in the present case Summary General Court Martial of the petitioner was held wherein seven years rigorous imprisonment was awarded. 11. In view of the above, it is apparent that the present Writ Petition is to be transferred to the Tribunal under Section 34 of the Act. 12. We direct accordingly. 13. The Registry is directed to take appropriate steps in this regard. _____________