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2014 Supreme(J&K) 279
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Hasnain Massodi, J.
D.K. Pradhan -Appellant
Versus
Union Of India & Ors. -Resopndent
OWP No. 424-2006 c-w SWP No. 1439-2006 & SWP No. 1440-2006
Decided On : 15-07-2014
Sunil Sethi, Veenu Gupta, R.S. Jamwal.
The main legal point established in the judgment is the wide powers conferred upon the Armed Forces Tribunal under the Armed Forces Tribunal Act, 2007, compared to the jurisdiction of the High Court under Article 226, Constitution of India, and the necessity to transfer pending matters to the Tribunal for closer scrutiny.
Headnote:
Court Martial - Armed Forces Tribunal Act - Section 14, 15, 17, 34 - The judgment discusses the provisions of the Armed Forces Tribunal Act, 2007, particularly Sections 14, 15, 17, and 34, which empower the Tribunal to adjudicate service matters, appeals against court martial orders, and transfer pending cases from courts to the Tribunal. The court emphasizes the wide powers conferred upon the Tribunal compared to the High Court under Article 226, Constitution of India, and the necessity to transfer pending matters to the Tribunal for closer scrutiny, which is not available under Article 226.
Fact of the Case:
Petitioners challenged the Court Martial process and sentence, seeking transfer of the case to the Armed Forces Tribunal. The respondents argued for the transfer of the case to the Tribunal in accordance with the Armed Forces Tribunal Act, 2007.
Finding of the Court:
The court found that the writ petition is required to be transferred to the Armed Forces Tribunal, Chandigarh Bench, in line with the provisions of the Armed Forces Tribunal Act, 2007.
Issues: The main issue was the jurisdiction for adjudicating service matters and appeals against court martial orders, and the transfer of pending cases to the Armed Forces Tribunal.
Ratio Decidendi: The court held that the Armed Forces Tribunal has wider powers compared to the High Court under Article 226, Constitution of India, and emphasized the necessity to transfer pending matters to the Tribunal for closer scrutiny, as it is not available under Article 226.
Final Decision: The writ petition was transferred to the Armed Forces Tribunal, Chandigarh Bench, and the parties were directed to appear before the Tribunal on a specified date.
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. 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.
(4) For
