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2014 DIGILAW 301 (JK)

D. K. Pradhan v. Union Of India

2014-07-15

Hasnain Massodi

body2014
1. Petitioners are aggrieved with common order/findings and sentence dated 12th May 2006 recorded by General Court Martial whereby petitioners have been awarded punishment to suffer rigorous imprisonment for three years and dismissal from service. They, through medium of writ petitions on hand, throw challenge to Court Martial process and sentence on the grounds urged in respective petitions. 2. Learned counsel for respondents insists that writ petition on hand in wake of enactment of Armed Forces Tribunal Act, 2007, is required to be transferred to Armed Forces Tribunal, Chandigarh Bench, for its disposal in accordance with law. It is stated that petition could not be earlier so transferred as Tribunal constituted vide Notification SRO 9(E) dated 7th August 2009 did not have a Bench to deal with the cases arising within territorial limits of Jammu and Kashmir State, and that Bench at Chandigarh having been constituted vide Notification SRO 17(E) dated 10th November 2009 at Chandigarh with jurisdiction, amongst other States, to the territorial limits of Jammu and Kashmir State, there is no impediment in its transfer, so that purpose of the Act is served and parties allowed its benefit. 3. Learned counsel for petitioner opposes prayer for transfer of the case to Armed Forces Tribunal, Chandigarh Bench, on the ground that Act does not exclude jurisdiction of the High Court under Article 226, Constitution of India and therefore, High Court has jurisdiction to deal with and dispose of the petition. 4. Heard and considered. 5. Armed Forces Tribunal Act, 2007, came into force on 28th December 2007. Object of the Act as spell out in "Object Clause" is to provide for adjudication or trial by Armed Forces Tribunal of disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force, 1950 and also to provide for appeals arising out of orders, findings or sentences of court martial held under the said Acts and for matters connected therewith or incidental thereto. The Act is apply to all persons subject to Army Act 1950, Navy Act 1957 and Air Force Act 1950 as also to retired personnel subject to aforementioned Act(s) including their dependents/heirs and successors, in so far as the matter relates to their service matters. 6. The Act is apply to all persons subject to Army Act 1950, Navy Act 1957 and Air Force Act 1950 as also to retired personnel subject to aforementioned Act(s) including their dependents/heirs and successors, in so far as the matter relates to their service matters. 6. Section 4 of the Act empowers Central Government to establish by notification a Tribunal known as Armed Forces Tribunal to exercise jurisdiction, powers and authority conferred on it by or under the Act. Tribunal is to ordinarily sit at Delhi. However, Central Government is empowered under Section 5 sub-section (4) to constitute Benches at other places and in the event Benches are so created, Bench at Delhi is to be known as Principal Bench. Chapter III of the Act deals with jurisdiction, powers and authority of the Tribunal. Having regard to controversy involved, Sections 14, 15 and 17 need to be noticed: "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 (expects the Supreme Court or a High Court exercising jurisdiction under articles 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. (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 an affidavits: (d) Subject to the provisions of sections 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 exparte; (h) setting aside any order of dismissal of any application for default or any order passed by it exparte; 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. 15. Jurisdiction powers and authority in matters of appeal against court martial: (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 under this Act is relation to appeal against any order, decision, finding or sentence passed by a court martial or any matter connected therewith or incidental thereto. (2) Any person aggrieved by an order, decision, finding or sentence passed by a court martial may prefer an appeal in such form manner and within such time as may be prescribed. (3) The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it considers necessary. Provided that no accused person shall be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. (3) The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it considers necessary. Provided that no accused person shall be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. (4) The Tribunal shall allow an appeal against conviction by a court martial where (a) the finding of the court martial is legally not sustainable due to any reason whatsoever; or (b) the finding involves wrong decision on a question of law; or (c) there was a material irregularity in the course of the trial resulting in miscarriage of justice. but, in any other case, may dismiss the appeal where the Tribunal considers that no miscarriage of justice is likely to be caused or has actually resulted to the appellant: Provided that no order dismissing the appeal by the Tribunal shall be passed unless such order is make after recording reasons therefor in writing. (5) The Tribunal may allow an appeal against conviction, and pass appropriate order thereon. (5) The Tribunal may allow an appeal against conviction, and pass appropriate order thereon. (6) Notwithstanding anything contained in the foregoing provisions of this section, the Tribunal shall have the power to- (a) substitute for the findings of the court martial, a finding of guilty for any other offence for which the offender could have been lawfully found guilty by the court martial and pass a sentence afresh for the offence specified or involved in such findings under the provisions of the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950, (45 of 1950) as the case may be; or (b) if sentence is found to be excessive, illegal or unjust, the Tribunal may-- (i) remit the whole or any part of the sentence, with or without conditions; (ii) mitigate the punishment awarded; (iii) commute such punishment to any lesser punishment or punishments mentioned in the Army Act, 1950, (46 of 1950), the Navy Act, 1957( 62 of 1957) and the Air Force Act, 1950, (45 of 1950) as the case may be; (c) enhance the sentence awarded by a court martial: Provided that no such sentence shall be enhanced unless the appellant has been given an opportunity of being heard; (d) release the appellant, if sentenced to imprisonment, on parole with or without conditions; (e) suspend a sentence of imprisonment, (f) pass any other order as it may think appropriate. (7) Notwithstanding any other provisions in this Act, for the purposes of this section, the Tribunal shall be deemed to be a criminal court for the purposes of sections 175, 178, 179, 180, 193, 195, 196 or 228 (45 of 1860) of the Indian Penal Code and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974) 17. (7) Notwithstanding any other provisions in this Act, for the purposes of this section, the Tribunal shall be deemed to be a criminal court for the purposes of sections 175, 178, 179, 180, 193, 195, 196 or 228 (45 of 1860) of the Indian Penal Code and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974) 17. Powers of the Tribunal on appeal under section 15 : The Tribunal, while hearing and deciding an appeal under section 15, shall have the power-- a) to order production of documents or exhibits connected with the proceedings before the court martial; b) to order the attendance of the witnesses; c) to receive evidence; d) to obtain reports from Court martial; e) order reference of any question for enquiry; f) appoint a person with special expert knowledge to act as an assessor; and g) to determine any question which is necessary to be determined in order to do justice in the case." 7. There is no scope tor disagreement that the Act is intended to extend benefit of a hassle free, inexpensive, efficient adjudicating mechanism or justice delivery system for serving and retired armed forces personnel. Tribunal has been conferred wide powers as compared to the powers available to writ while exercising writ jurisdiction. 8. Power of Tribunal while hearing and deciding Appeal under Section 15 is much wider than power exercised by High Court under Article 226, Constitution of India, when it exercises power of judicial review of Court Martial Proceedings or orders passed on conclusion of such proceedings. Power of Tribunal is not limited by Wednesbury principle or restricted to arbitrariness and irrationality. Tribunal, as a closer look at Section 17 would reveal, is empowered to receive evidence, order for reference of any enquiry, appoint a person as an assessor, and to determine any question which is necessary to be determined in order to do justice. Tribunal, therefore, has its aim to do justice in the case and to achieve object it can pass any order that it may find necessary towards said direction. High Court, unlike Tribunal, has not to sit in an appeal over Court Martial decisions, cannot re-appreciate evidence or arrive at its own conclusions on perusal of Court Martial record. Tribunal, therefore, has its aim to do justice in the case and to achieve object it can pass any order that it may find necessary towards said direction. High Court, unlike Tribunal, has not to sit in an appeal over Court Martial decisions, cannot re-appreciate evidence or arrive at its own conclusions on perusal of Court Martial record. High Court in exercise of judicial review is to examine the decision making process to see whether it suffers from arbitrariness, unfairness or irrationality or a penalty imposed is so disproportionate that it shocks conscience. 9. Armed Forces Tribunal, therefore, is to have power to get Court Martial record or for that matter any other record relating to any other order or direction, examine evidence and re-appreciate it. Tribunal, because of spread and sweep of powers as an Appellate authority, is to be first choice of Armed Forces Personnel aggrieved with Court Martial proceedings, order passed by Court Martial Summary or General, and other order, falling within jurisdiction of Tribunal. In the circumstances, it is in the interest of armed forces personnel to transfer pending matters to Tribunal, so that decisions called in question is/are subjected to closer scruting-a remedy not available under Article 226, Constitution of India. 10. Other provision of the Act, that in view of present controversy deserves closer look, is Section 34. It reads:- "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 proceedings 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 proceedings to the Tribunal. (b) the Tribunal may, on receipt of such records, proceed to deal with such suit, or other proceedings, 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". 11. It needs to be appreciated that while Section 14 has been made subject to other provisions of the Act, Section 34 has not been made subject to any other provision of the Act including Section 14. Section 34 mandates transfers of proceedings pending before any court including High Court to Tribunal. When Sections 14 to 17 and 34 are read together, the only conclusion one can draw is that all pending matters including writ petitions are to be transferred to Tribunal for disposal in accordance with law. 12. Viewed thus, I am in agreement with argument advanced by learned counsel for respondents that writ petition in terms of Armed Forces Tribunal Act, 2007, is required to be transferred to Armed Forces Tribunal. This would be in tune with view taken by this Bench earlier in Mushtaq Ahmad Sheikh v. Union of India and others [2013(II) SLJ 636 : 2012 (4) JKJ 448 [HC]]. 13. Writ petition on hand is, accordingly, transferred to Armed Forces Tribunal, Chandigarh Bench. Parties to appear before the Tribunal on 31st July 2014.