Dismissal of service without due notice violates principles of natural justice, warranting reconsideration.

K. NATARAJAN .J This petition is filed by the Union of India for setting aside the order passed by the Armed Forces Tribunal, Regional Bench, Kochi (hereinafter referred as AFT) in O.A.No.266/2022 dated 29.11.2023.

2. We heard the arguments of learned Standing coun-

sel for the petitioners and the counsel appearing for the respon-

dent.

3. The case of the respondent before the AFT was that he had challenged the order of dismissal from service. He was a sergeant who joined the Air Force on 16.06.1987 and was dismissed from service on 19.10.2010 on the ground of desertion after completing 20 years of service. According to him, his name was included in the promotion panel for the year 2005–2006 for promotion to the rank of JWO. He has completed 20 years of engagement on 15.06.2007 and submitted his willingness to extend his service for six years up to 15.06.2013. However, he was not promoted, while many of his juniors were promoted. Thus, his chances of promotion were adversely affected. He was denied promotion without any valid reason and without any fault on his part. Therefore, he submitted an application for discharge from service on 01.05.2007. Subsequently, he also sent another letter. However, the authorities treated him as having deserted from service and, by communication dated 12.09.2007, closed his representation on the ground that he was already a deserter. After three years, he was dismissed from service on 19.10.2010. Initially, the applicant filed O.A. No. 113/2017 seeking grant of service benefits. During the pendency of the said application, the respondents therein filed a counter stating that the applicant had already been dismissed from service and, therefore, was not entitled to any service benefits.

4. It is the further case of the petitioner is that the applicant had not amended the application in O.A. No. 113/2017 to seek setting aside of the order of dismissal and the disciplinary proceedings. The Tribunal, by order dated 24.11.2021, dismissed the said application holding that he had not challenged the order of dismissal before the appropriate authority. Therefore, it was held that the applicant was not entitled to any benefits. Subsequently, the applicant filed a representation before the Chief of the Air Staff, as per Annexure-A5 seeking conversion of the dismissal into discharge. The said representation was forwarded to the JAG (Air) (Discipline) for consideration and, accordingly on 13.09.2022 the same was dismissed. Thereafter, the applicant once again approached the Tribunal by filing O.A.No. 266/2022, challenging the order of dismissal and the order passed by the authorities. The same was allowed by the Tribunal vide the impugned judgment dated 29.11.2023. Hence, the Union of India is before this Court.

5. The learned Standing Counsel strenuously argued that the order of the Tribunal is not sustainable for the following reasons. The earlier O.A. filed by the applicant in O.A. No. 113/2017 was dismissed. Therefore, the second application filed by him is barred by the principles of constructive res judicata. Hence, no relief can be granted, as the earlier petition was considered and dismissed by the Tribunal. Therefore, the second application is not maintainable. Hence, he prayed for setting aside the same. It was further contended on merits that the applicant had deserted the service. Therefore, the authorities initiated proceedings and passed the order of dismissal. Subsequently, when the applicant approached the authorities seeki