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2014 DIGILAW 212 (UTT)

Ex Sep Pani Ram v. Union of India

2014-05-12

ALOK SINGH

body2014
JUDGMENT Alok Singh, J. 1. Petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India seeking writ of Mandamus commanding the respondent nos. 4 & 5 severally and jointly to initiate the necessary action for grant of disability pension to the petitioner as per law. 2. According to the petitioner, petitioner was serving as Sepoy with the Territorial Army, however, on 24.4.2009 met with a serious accident. Consequently, his right leg was amputated above knee. The petitioner was invalidated out of service with 80 per cent disability on 1.1.2012. Disability was declared attributable to the service. 3. Vide order dated 21.2.2014, this Court kept the question of jurisdiction of Armed Forces Tribunal open to be decided later on after counter affidavit is filed. Let me now decide as to whether reliefs sought in the present petition can be granted by the Armed Forces Tribunal? 4. Section 14 of the Armed Forces Tribunal Act, 2007 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), while 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. (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. (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.” 5. Having perused sub-section (3) of Section 14, I have absolutely no hesitation to hold that Armed Forces Tribunal, on receipt of an application relating to service matters, if satisfied after due inquiry, as it may deem necessary, that it is fit case for adjudication, shall admit such application and shall proceed to adjudicate the matter. 6. “Service matters” is defined under sub-section (o) of Section 3 of the Act, which reads as under: “Service matters”, in relation to the persons subject to the Army Act, 1590 (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 deduction. (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). (ii) Transfers and posting 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. (ii) Transfers and posting 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.” 7. Reading of sub-section (o) of Section 3 would demonstrate that remuneration (including allowances), pension and other retirement benefits are treated as “service matters.” 8. Since in the present case, the petitioner is claiming disability pension, therefore, matter falls within the four corners of definition of “service matters” as defined under sub-section (o) of Section 3 of the Act. 9. Mr. Lalit Kumar, learned counsel appearing for the petitioner vehemently contended that as per sub-section (2) of Section 14 of the Act read with Rule 9 of the Armed Forces Tribunal (Procedure) Rules, 2008, there must be an order for invoking the jurisdiction of Armed Forces Tribunal and copy of such order is required to be filed along with the application, as contemplated under Rule 9; Since, there is no order passed, therefore, petitioner shall not be entitled to knock the door of Armed Forces Tribunal under Section 14 of the Armed Forces Tribunal Act. 10. If sub-section (2) and sub-section (3) of Section 4 are read together, the only reasonable interpretation would be that if an order is passed, whereby, a person is aggrieved, then 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. However, in the event, even if no order is passed and person is still having grievances to be redressed regarding the service matters, then also, he may move an appropriate application in such form accompanied by such documents and fee prescribed before the Tribunal and the Tribunal, after due inquiry, as it may deem necessary, if satisfied that it is a fit case for adjudication by it, admit such application and shall proceed to adjudicate the matter. There may be few cases where a person is entitled for the remuneration (including allowances), pension and other retirement benefits, and same are not being released in his favour and side by side no decision is being taken thereon, he may approach the Tribunal for redressal of the grievances as per sub-section (3) of Section 14 of the Act. 11. If sub-section (2) of Section 14 is given limited interpretation, excluding sub-section (3) of Section 14, then Section 14 will become ambiguous in the sense that if there is an order, person can approach the Tribunal, however, if there is no order and still a person is having grievances to be redressed pertaining to the service matters, shall not approach the Tribunal. To my mind, this cannot be correct and objective interpretation of Section 14 of the Act. The scope of Rule 9 of Rules would be if there is an order, then copy of the order has to be filed, however, if there is no order and still grievances of the person are regarding the service matter, he may approach the Tribunal without filing such an order which is not in existence. Therefore, arguments advanced by Mr. Lalit Kumar deserve to be rejected and are hereby rejected out-rightly. 12. Mr. Lalit Kumar, learned counsel appearing for the petitioner, further submitted that under sub-section (1) of Section 14 of the Act, jurisdiction of the High Court under Article 226 and 227 of the Constitution is not excluded. 13. 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. (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. 14. Perusal of Section 34 of the Act would reveal that every suit or proceeding pending before any court including a High Court or other authority immediately before the date of establishment of the Tribunal under this Act stand transferred on that day to such Tribunal. In other words, if a proceeding pending before any Court including before this Court can be adjudicated by the Tribunal, same shall stand transferred to such Tribunal on the date of establishment of the Tribunal. 15. In the present case, present petition is preferred in the year 2012, after the establishment of the Tribunal under this Act, therefore, there is no question of transferring the present petition to the Tribunal, however, the petitioner, if so advised, may approach the Tribunal under Section 14 of the Act for redressal of the grievances. 16. In view of the discussion made hereinbefore, I am of the opinion that grievances raised in the present petition fall within the definition of “service matters”, therefore, petitioner has an alternative efficacious remedy before the Tribunal. Therefore, petitioner, if so advised, may approach the Tribunal. 17. Consequently, I am not inclined to entertain the present writ petition and the same is hereby dismissed with the aforesaid liberty. 18. No order as to costs.