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2023 DIGILAW 749 (KER)

Thankamma K. v. Union of India Represented By Its Secretary, Ministry of Defence, South Block, New Delhi

2023-09-27

A.MUHAMED MUSTAQUE, SHOBA ANNAMMA EAPEN

body2023
JUDGMENT : Shoba Annamma Eapen, J. The writ petition is filed challenging the order of the Armed Forces Tribunal, Regional Bench, Kochi (for short, “the Tribunal”) dated 03.03.2023. 2. The petitioner, the applicant in OA No.214 of 2019, is the widow of late Sepoy V.K.Krishnan Nair, who was a World War participant. The petitioner also filed MA No.296 of 2019 in OA No.214 of 2019 before the Tribunal to condone the delay of more than 29 years from the date of death of the petitioner's husband till the date of filing the original application, which was also dismissed by the Tribunal by the impugned order. 3. The petitioner's husband enrolled in the Army on 05.07.1941 and was discharged from service on 04.12.1946, who expired on 29.08.1989. In recognition of the war service and the service abroad, the petitioner's husband was awarded 1939-45 Star, Burma star and war medal. At the time of discharge, he was disabled due to primary hypertension and Ischemic Heart Disease and was not granted service pension due to non completion of 15 years of service. He was also not granted disability pension as he was released on demobilization. Challenging this, the petitioner approached the Tribunal for redressal of her grievance. The Tribunal considered the matter in detail and dismissed the original application as well as the application for condoning the delay in filing the original application, as not maintainable, citing that the relief sought for in the original application does not fall under “service matters” as defined under Section 3(o) of the Armed Forces Tribunal Act, 2007 (for short, “the Act”). Aggrieved by this, the petitioner has approached this Court. 4. We have heard the learned counsel for the petitioner and the learned Deputy Solicitor General. 5. The issue involved in this case is whether the reliefs sought for in the original application for pensionary benefits to the dependent of the deceased retired Army Personnel, who was discharged from Army Service in 1946, would fall under “service matters” as defined under Section 3(o) of the Act in order to invoke the jurisdiction of the Tribunal under Section 14 of the Act. The original application has been filed under Section 14 of the Act and the reliefs sought for are under the provisions of the Pension Regulations for the Army, 1940, Part II. The original application has been filed under Section 14 of the Act and the reliefs sought for are under the provisions of the Pension Regulations for the Army, 1940, Part II. As far as the power and jurisdiction of the Tribunal are concerned, it is relevant to see Section 14(2) of the Act, which reads thus; “14. Jurisdiction, powers and authority in service matters.- (1) xxxxxx (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.” Section 3(o) of the Act defines “service matters”, which reads thus; “3. Definitions.-xxxxx (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;” Therefore, as per Section 3(o) of the Act, service matters are confined to the persons subject to the Army Act, 1950; the Navy Act, 1957; and the Air Force Act, 1950. Section 2 of the Act deals with the applicability of the Act, which reads as follows; “2. Section 2 of the Act deals with the applicability of the Act, which reads as follows; “2. Applicability of the Act.- (1) The provisions of this Act shall apply to all 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). (2) This Act shall also apply to retired personnel 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), including their dependents, heirs and successors, in so far as it relates to their service matters.” It is discernible from the above provisions that the Tribunal is empowered to exercise jurisdiction only in respect of service matters in relation to the persons subject to the Army Act, 1950; the Navy Act, 1957; and the Air Force Act, 1950 only. 6. Learned counsel for the petitioner submits that the Tribunal ought to have exercised jurisdiction as the husband of the petitioner was part of the Regular Army as per Section 2(1)(a) of the Army Act, 1950. It is further pointed out that post independence, the term “Regular Army” was defined and included in the Indian Army Act, 1911 on the basis of “Adaptation of Law Order”. Learned counsel has a further case that the petitioner's husband was entitled for mustering out pension under Rules 316 and 318 of the Pension Regulations for the Army, 1940 Part II. 7. Admittedly, the husband of the petitioner was discharged from service in the year 1946. The service matters are confined in relation to the persons subject to the Army Act, 1950; the Navy Act, 1957; and the Air Force Act, 1950. In order to confer jurisdiction, the issue in dispute should be a service matter coming within the Army Act, 1950; the Navy Act, 1957; and the Air Force Act, 1950. The petitioner enrolled in the Army in the year 1941 and was discharged from service in the year 1946, which was prior to independence. The petitioner, who has approached the Tribunal, is not a dependent or heir or successor of a retired person, who comes within the Army Act, 1950; the Navy Act, 1957; and the Air Force Act, 1950. The petitioner enrolled in the Army in the year 1941 and was discharged from service in the year 1946, which was prior to independence. The petitioner, who has approached the Tribunal, is not a dependent or heir or successor of a retired person, who comes within the Army Act, 1950; the Navy Act, 1957; and the Air Force Act, 1950. The reliefs claimed are under Rules 316 and 318 of the Pension Regulations for the Army, 1940 Part II, and the provisions of afore rules have not been made applicable to the Army Act, 1950. Hence, it is clear that the reliefs sought for in the original petition do not fall under “service matters” as defined under Section 3(o) of the Act. Having regard to the expression of the definition in Section 3(o) of the Act and the jurisdiction of the Tribunal under Section 14 of the Act, we are of the view that the Tribunal has no power or jurisdiction to adjudicate upon the reliefs claimed. We do not find any infirmity or illegality in the impugned order passed by the Tribunal and hence, decline interference. In the result, the writ petition fails and accordingly, it is dismissed. However, it is made clear that the petitioner is at liberty to seek remedy before the appropriate authority, if advised so.