Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Del) 2157

IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajiv Sahai Endlaw, Amit Bansal, JJ.
Col Anshuman - Appellant
Versus
Union Of India & Ors. - Respondents
W.P. (C) No. 5495 of 2021; C.M. No. 17036 of 2021
Decided On : 27-05-2021

Advocates appeared:
Rajiv Manglik, Advocate, Sayan Ray, Advocate, Ajay Digpaul, Advocate, Nidhi Mohan Parashar, Advocate, Kamal Digpaul, Advocate, Vikrant Kumar, Advocate

The main legal point established in the judgment is the jurisdiction of the Armed Forces Tribunal (AFT) under the Armed Forces Tribunal Act, 2007 and its applicability to service matters in the Indian Army.

Headnote:
Attachment - Indian Army - Armed Forces Tribunal Act, 2007 - Section 3(o), Army Act Section 19, Army Rule 14 - The court discussed the jurisdiction of the Armed Forces Tribunal (AFT) under the Armed Forces Tribunal Act, 2007 and its applicability to the petitioner's case. The court also considered the implications of the show cause notice issued to the petitioner and the relevance of previous judgments in similar cases. The court found that the AFT had jurisdiction over the petitioner's grievances and dismissed the writ petition.
Fact of the Case:

The petitioner, a Colonel in the Indian Army, challenged the continuance of his attachment and sought a mandamus to initiate a formal Court of Inquiry to investigate allegations made by him against another officer. The court considered the jurisdiction of the Armed Forces Tribunal (AFT) and the implications of a show cause notice issued to the petitioner.
Finding of the Court:

The court found that the AFT had jurisdiction over the petitioner's grievances and dismissed the writ petition.
Issues: The main issues included the jurisdiction of the AFT, the implications of the show cause notice, and the applicability of previous judgments in similar cases.
Ratio Decidendi: The court held that the AFT had jurisdiction over the petitioner's grievances and that the writ petition was without merit.
Final Decision: The court dismissed the writ petition.

JUDGMENT

Rajiv Sahai Endlaw, J. - On 25th May, 2021, when this petition came up first before us, the following order was passed:-

"3. The petitioner, a Colonel in the respondents Indian Army, has instituted this petition, (i) impugning the continuance of his attachment, initially ordered on 26th November, 2019 purportedly on account of pendency of disciplinary proceedings against him, in spite of the respondents Indian Army themselves on 3rd March, 2020 certifying that no disciplinary proceedings were in progress against the petitioner; and, (ii) seeking a mandamus to the respondents Indian Army to initiate a formal Court of Inquiry to investigate the allegations made by the petitioner in his complaint dated 13th February, 2019, against the respondent No.6 Brig. Sandeep Kumar.

4. Finding the order of attachment to be a part of the disciplinary action, we have at the outset only enquired from the counsel for the petitioner, whether not the jurisdiction to entertain the present lis would be of Armed Forces Tribunal (AFT) under the Armed Forces Tribunal Act, 2007.

5. The counsel for the petitioner states that attachment is akin to transfers/postings, which under Section 3(o) of the Act are exempted from the jurisdiction of the AFT and thus this Court has jurisdiction under Article 226 of the Constitution of India.

6. We are unable to agree. Section 3(o) of the Act, when exempts transfers and postings including the change of place or unit on posting, appears to be talking of only transfers/postings in the routine manner and not an attachment, which is in the wake of disciplinary proceedings.

7. The counsel for the petitioner then contends that a Full Bench of AFT has held that since attachment is akin to postings/transfers, AFT has no jurisdiction.

8. The counsel for the respondents appearing on advance notice states that Supreme Court, in Union of India Vs. Lieutenant Colonel Dharamvir Singh, (2019) 15 SCC 793, has held that disputes as to attachment are within the jurisdiction of AFT.

9. The counsel for the petitioner then contends that since attachment to another unit in the present case is being continued in spite of no disciplinary proceedings pending against the petitioner, the case would not be covered by the dicta in Lieutenant Colonel Dharamvir Singh supra aforesaid.

10. Both the counsels are requested to e-mail to the Court Master, judgments relied upon by them.

11. The counsel for the respondents states that the petitioner has not revealed that a notice dated 7th April, 2021 has been served on him on 21st May, 2021, to show cause why his services should not be terminated.

12. A copy of the said Show Cause Notice be also e-mailed to the Court Master.

13. The counsel for the petitioner states that though the Show Cause Notice bears an earlier date but was served on the petitioner after the advance copy of this petition had been delivered to the counsel for the respondents and has been antedated to make this petition infructuous.

14. The counsel for the respondents states that since the petitioner was on leave, the notice could not be served earlier.

15. List on 27th May, 2021."

2. The counsel for the respondents since then has filed a copy of the judgment of the Supreme Court in Lieutenant Colonel Dharamvir Singh supra, a copy of the order dated 15th March, 2021 of Armed Forces Tribunal (AFT), Principal Bench, New Delhi in O.A. No. 1626/2020 titled Lt. Col. P. Vasudeva Vs. Union of India, where the AFT entertained the challenge with respect to an attachment order and a copy of the show cause notice dated 7th April, 2021 issued to the petitioner along with acknowledgment receipt thereof signed by the petitioner on 21st May, 2021.

3. We have today yet again enquired from the counsel for the petitioner, whether the petitioner, in view of the dicta of the Supreme Court in Lieutenant Colonel Dharamvir Singh supra, is desirous of approaching AFT rather than pressing this petition.

4. The counsel for the petitioner states that he is pressing th