Union Of India Thru' Secy. & 2 ... vs Kapil Kumar
2015 Latest Caselaw 4522 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Chief Justice's Court
 

 
Case :- SPECIAL APPEAL No. - 833 of 2015
 

 
Appellants :- Union Of India Thru' Secy. & 2 Others
 
Respondent :- Kapil Kumar
 
Counsel for Appellants :- Alok Mathur, Jai Shanker Audichya,                 					 Satish Kumar Rai
 
Counsel for Respondent :- Sushil Kumar Shukla
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Yashwant Varma,J.

This special appeal arises from a judgment of a learned Single Judge dated 6 October 2015 on a petition under Article 226 of the Constitution, holding that the writ petition raises a dispute which falls within the jurisdiction of the Armed Forces Tribunal constituted under the Armed Forces Tribunal Act, 20071 and directing, in consequence, that in view of the provisions contained in Section 34 of the Act, the record of the writ petition be transmitted to the Tribunal at Lucknow. The Union of India through its Secretary in the Ministry of Defence, the Army Recruitment Office and the Prescribed Authority have joined in the appeal to challenge the order of the learned Single Judge.

The case of the respondent is that a recruitment rally was held at Meerut on 12 and 13 August 2011 for the post of a Soldier. The respondent claims to have passed the physical examination test. According to the respondent, in the recruitment process in which he appeared at the medical examination, he was found to be permanently unfit on the ground of his suffering from "substandard vision and restricted supination". His case was that he was referred for a review medical examination to the military hospital on 29 August 2011 and 3 September 2011 where he was declared fit. Following this, it has been stated that the respondent appeared in the common entrance examination on 30 October 2011 and was declared to have qualified at the written examination. Thereupon, it has been stated that he was empanelled in the merit list and lodged to the Rajput Regiment Centre at Fatehgarh for the post of Infantry Soldier (General Duty) and was directed to report to the Army Recruiting Office at Meerut on 20 December 2011 for further dispatch for basic military training. According to the respondent, no appointment letter was issued to him and he was not sent for training. After issuing legal notices, the respondent instituted a suit before the Civil Judge (Senior Division) Meerut2, in which, it has been stated, notices were issued. A written statement was filed on behalf of the Union of India where it was averred that the respondent did not possess vision of the required standard and that he had been declared medically unfit on 18 December 2011.

A writ petition was filed before this Court with an averment that the respondent has been advised to withdraw the civil suit, which was accordingly withdrawn on 17 March 2015 in order to approach this Court in the exercise of its writ jurisdiction. The relief which has been sought in the writ proceedings is in the following terms:

"a) issue a writ order or direction in the nature of mandamus directing the respondents to provide the Army service and send in Army Training on the post of soldier (G.D.)"

The learned Single Judge came to the conclusion that the writ petition raises a dispute which falls within the jurisdiction of the Armed Forces Tribunal and directed that the papers be transmitted to the Tribunal at Lucknow under the provisions of Section 34 of the Act. Section 34(1) of the Act applies to the transfer of writ proceedings, civil suits or other proceedings pending before any court including a High Court or other authority immediately before the date of establishment of the Tribunal under the Act, where the cause of action on which it is based is such that it falls within the jurisdiction of the Tribunal. Strictly speaking, Section 34 would have no application since the transfer of proceedings contemplated by that provision relates to those proceedings which are pending on the date of the establishment of the Tribunal.

Be that as it may, the Union of India has raised a fundamental issue as to whether the Armed Forces Tribunal would have jurisdiction to deal with cases in respect of a person who is not subject to the Army Act 1950. The submission is that where a person is not subject to the Army Act 1950 (or, for that matter, the Air Force Act 1950 or the Navy Act 1957), the definition of the expression "service matters" in Section 3(o) of the Act would not be attracted. Consequently, it has been urged that the jurisdiction of the Tribunal under Section 14 of the Act would not cover such a case. In the present case, it has been submitted that the relief which the respondent seeks is a mandamus to provide him with service in the Army and to depute him for training on the post of Soldier. It is urged that ex facie, it is evident that the respondent is not a person subject to the Army Act 1950. Hence, it was contended that the jurisdiction to entertain the writ petition would squarely vest in this Court and the learned Single Judge ought not to have taken the view which has been taken in the impugned judgment dated 6 October 2015.

We may note, at the outset, that the original petitioner has filed writ proceedings before this Court under Article 226. Obviously, his case is that such proceedings would be maintainable. The Union of India against whom the proceedings have been filed is in appeal against the judgment of the learned Single Judge holding to the contrary, since the contention of the Union is that the jurisdiction would not lie with the Armed Forces Tribunal but before this Court under Article 226 in such a case. We may, however, note that in fairness, the Court has been assisted on both perspectives by the learned counsel who appeared on behalf of the Union of India in order to enable the Court to form a considered view having due regard to the fact that the issue has ramifications in the future. We appreciate the fair stand of the learned counsel.

The Armed Forces Tribunal Act, 2007 is described by its long title as an Act to:

"provide for the 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 Act, 1950 and also to provide for appeals arising out of orders, findings or sentences of courts-martial held under the said Acts and for matters connected therewith or incidental thereto."

Section 2 provides for the applicability of the Act in the following terms:

"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) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950 (45 of 1950), including their dependants, heirs and successors, in so far as it relates to their service matters."

Chapter II of the Act provides for the establishment of a Tribunal. Chapter III provides for the power, jurisdiction and authority of the Tribunal of which Section 14 is a part. Under Section 14(1), the Tribunal is to exercise on and from the appointed day the jurisdiction which was exercisable by all courts except the Supreme Court or a High Court, exercising jurisdiction under Articles 226 and 227 of the Constitution "in relation to all service matters".

Section 14 provides as follows:

"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 (except the Supreme Court or a High Court exercising jurisdiction under article 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 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 on affidavits;

(d) subject to the provisions of section 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 ex parte;

(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte; 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."

The Tribunal under Section 15 of the Act is also vested with jurisdiction in relation to an appeal against any order, decision, finding or sentence passed by a court-martial or any matter connected therewith or incidental thereto. For the purpose of these proceedings, it would be appropriate to refer to sub-section (1) of Section 15 which provides as follows:

"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 in relation to appeal against any order, decision, finding or sentence passed by a court-martial or any matter connected therewith or incidental thereto."

Section 14, as we have noted, confers jurisdiction upon the Tribunal in relation to all service matters. The expression "service matters" is defined in Section 3(o) as follows:

"3(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;"

The Statement of Objects and Reasons accompanying the introduction of the Bill in Parliament provides the following rationale for the enactment of the legislation:

"2. Having regard to the fact that a large number of cases relating to service matters of the members of the above-mentioned three armed forces of Union have been pending in the courts for a long time, the question of constituting an independent adjudicatory forum for the Defence Personnel has been engaging the attention of the Central Government for quite some time. In 1982, the Supreme Court in Prithi Pal Singh Bedi v. Union of India AIR 1982 SC 1413 held that the absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment in the laws relating to the armed forces was a distressing and glaring lacuna and urged the Government to take steps to provide for at least one judicial review in service matters. The Estimates Committee of the Parliament in their 19th Report presented to the Lok Sabha on 20th August, 1992 had desired that the Government should constitute an independent statutory Board or Tribunal for service personnel.

3. In view of the above, it is proposed to enact a new legislation by constituting an Armed Forces Tribunal for adjudication of complaints and disputes regarding service matters and appeals arising out of the verdicts of the courts-martial of the members of the three services (Army, Navy and Air Force) to provide for quicker and less expensive justice to the members of the said Armed Forces of the Union.

4. Establishment of an independent Armed Forces Tribunal will fortify the trust and confidence amongst members of the three services in the system of dispensation of justice in relation to their service matters."

Now, it is in this background that it would be necessary to analyze the statutory provisions.

The jurisdiction of the Armed Forces Tribunal under Section 14 is "in relation to all service matters". The Tribunal has been vested with the jurisdiction, power and authority which, prior to the appointed date, was exercisable by all Courts, save and except for the Supreme Court and High Courts exercising jurisdiction under Articles 226 and 227. Before the Tribunal can exercise its jurisdiction under Section 14, the cause of action must relate to a service matter. The definition of the expression "service matters" in Section 3(o) basically comprehends four ingredients. The first part of the definition makes it clear that it is in relation to persons subject to the Army Act 1950, the Navy Act 1957 or the Air Force Act 1950. The second part defines the expression to mean all matters relating to conditions of their service. The expression "their service" clearly means the conditions of service of persons subject to the Army Act 1950, the Navy Act 1957 and the Air Force Act 1950. Hence, it is only where a person is subject to one of these three legislations that a matter relating to the conditions of service would fall within the meaning of Section 3(o). The third element of Section 3(o) is the inclusive definition by virtue of which matters falling within the purview of sub-clauses (i), (ii), (iii) and (iv) are brought within the ambit of the definition. The last part of the definition excludes matters of the description therefrom the jurisdiction of the Tribunal. In order to be a service matter, the twin requirements to be fulfilled are that the dispute must arise in relation to persons subject to the Army Act 1950, the Navy Act 1957 or the Air Force Act 1950 and must fulfill the description of relating to the conditions of their service. Moreover, as we have noted, the inclusive part of the definition would bring in matters of the listed category falling in clauses (i) to (iv).

The expression "persons subject to" the Army Act 1950, the Navy Act 1957 and the Air Force Act 1950 is specifically defined in each of these three Central Acts. Section 2 of the Army Act 1950 provides the category of persons who shall be subject to the said Act. Section 2 is in the following terms:

"2. Persons subject to this Act. - (1) The following persons shall be subject to this Act wherever they may be, namely:-

(a) officers, junior commissioned officers and warrant officers of the regular Army;

(b) persons enrolled under this Act;

(c) persons belonging to the Indian Reserve Forces;

(d) persons belonging to the Indian Supplementary Reserve Forces when called out for service or when carrying out the annual test;

(e) officers of the Territorial Army, when doing duty as such officers, and enrolled persons of the said Army when called out or embodied or attached to any regular forces, subject to such adaptations and modifications as may be made in the application of this Act to such persons under sub-section (1) of section 9 of the Territorial Army Act, 1948 (56 of 1948);

(f) persons holding commissions in the Army in India Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces;

(g) officers appointed to the Indian Regular Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces;

(i) persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of, the regular Army.

(2) Every person subject to this Act under clauses (a) to (g) of sub-section (1) shall remain so subject until duly retired, discharged, released, removed, dismissed or cashiered from the service."

Similarly, the Air Force Act 1950 provides in Section 2 the persons who shall be subject to the said Act and is as follows:

"2. Persons subject to this Act.--The following persons shall be subject to this Act wherever they may be, namely:--

(a) officers and warrant officers of the Air Force;

(b) persons enrolled under this Act;

(c) persons belonging to the Regular Air Force Reserve or the Air Defence Reserve or the Auxiliary Air Force, in the circumstances specified in section 26 of the Reserve and Auxiliary Air Forces Act, 1952 (62 of 1952);

(d) persons not otherwise subject to Air Force law, who, on active service, in camp, on the march, or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the Air Force."

Section 2 of the Navy Act 1957 similarly provides a definition of persons subject to naval law. Section 2 is as follows:

"2. Persons subject to naval law. -- (1) The following persons shall be subject to naval law wherever they may be, namely:--

(a) every person belonging to the Indian Navy during the time that he is liable for service under this Act;

(b) every person belonging to the Indian Naval Reserve Forces when he is--

(i) on active service, or

(ii) in or on any property of the naval service including naval establishments, ships and other vessels, aircraft, vehicles and armouries, or

(iii) called up for training or undergoing training in pursuance of regulations made under this Act, until he is duly released from his training, or

(iv) called up into actual service in the Indian Navy in pursuance of regulations made under this Act, until he is duly released therefrom, or

(v) in uniform;

(c) members of the regular Army and the Air Force when embarked on board any ship or aircraft of the Indian Navy, to such extent and subject to such conditions as may be prescribed;

(d) every person not otherwise subject to naval law, who enters into an engagement with the Central Government under section 6;

(e) every person belonging any auxiliary forces raised under this Act, to such extent and subject to such conditions as may be prescribed; and

(f) every person who, although he would not otherwise be subject to naval law, is by any other Act or during active service by regulations made under this Act in this behalf made subject to naval law, to such extent and subject to such conditions as may be prescribed.

(2) The following persons shall be deemed to be persons subject to naval law, namely: -

(a) every person ordered to be received, or being a passenger, on board any ship or aircraft of the Indian Navy, to such extent and subject to such conditions as may be prescribed;

(b) every person sentenced under this Act to imprisonment or detention, during the term of his sentence, notwithstanding that he is discharged or dismissed with or without disgrace from the naval service or would otherwise but for this provision cease to be subject to naval law."

The expression "persons subject to" the Army Act 1950, the Air Force Act 1950 and the Navy Act 1957 are therefore terms which have a well defined connotation and meaning having due regard to the provisions of the three Acts to which we have made a reference above. The Armed Forces Tribunal Act 2007 specifies in Section 2 that its provisions shall apply to all persons who are subject to the Army Act 1950, the Air Force Act 1950 and the Navy Act 1957. Sub-section (2) enlarges the applicability of the Act to cover retired personnel subject to the aforesaid three Acts including their dependents, heirs and successors insofar as they relate to their service matters. When the provisions to which we have made a reference earlier are read together, it is evident that in order for the Tribunal to have jurisdiction under Section 14, the dispute must relate to a service matter as defined in Section 3(o) of the Act. The basic requirement of being a service matter is that it must arise in relation to persons who are subject to the Army Act 1950, the Air Force Act 1950 or the Navy Act 1957.

The fact that both the limbs of Section 3(o) would need to be fulfilled has been emphasized in a decision of the Supreme Court in Union of India vs Colonel G.S. Grewal3. In that case, the Supreme Court held that merely because a person was subject to the Army Act would not vest the Tribunal with jurisdiction unless the subject matter also constituted a service matter within the meaning of Section 3(o). Both requirements must exist. The Supreme Court observed as follows:

"We may point out that merely because the respondent is subject to the Army Act would not by itself be sufficient to conclude that the Tribunal has the jurisdiction to deal with any case brought before it by such a person. It would depend upon the subject matter which is brought before the Tribunal and the Tribunal is also required to determine as to whether such a subject matter falls within the definition of 'Service Matters', as contained in Section 3(o) of the AFT Act." (emphasis supplied).

The above observations would indicate that before the Tribunal can exercise jurisdiction under Section 14, the person in relation to whom the dispute arises must be subject to one of the three legislations (the Army Act 1950, the Air Force Act 1950 or the Navy Act 1957) and the ingredients of the definition of the expression 'service matter' must also be fulfilled.

The judgment of the learned Single Judge in Devi Saran Mishra vs. Union of India4 involved a situation where a direction was issued to the effect that all matters pending before this Court which were the subject matter of the Armed Forces Tribunal in terms of Section 34 of the Armed Forces Tribunal Act, 2007 were directed to be transferred to the Tribunal at Lucknow. Evidently, this decision of the learned Single Judge covers those cases which are within the ambit of the jurisdiction of the Tribunal having due regard to the provisions of Sections 14 and 15 of the Act.

We, therefore, find merit in the appeal filed by the Union of India, challenging the decision of the learned Single Judge.

In the present case, we find that the learned Single Judge has simply ordered that the proceedings be transferred under Section 34 without considering as to whether the matter was within the jurisdiction of the Tribunal under Section 14. The relief which the respondent seeks is to provide him entry into the service of the Army. There is not even an averment to the effect that the respondent was enrolled as a member of the Armed Force. On the contrary, the respondent has sought to question the decision by which he was declared unfit for enrollment on the ground that he did not meet the required medical standard. Such a dispute which arose prior to the enrollment of the respondent into the Armed Forces would not fall within the definition of the expression "service matters" under Section 3(o) because ex facie, the respondent is not a person who is subject to the Army Act 1950.

For these reasons, we find merit in the submission which has been urged on behalf of the appellants that the learned Single Judge ought not to have directed the transfer of the proceedings to the Armed Forces Tribunal. We order accordingly. The order of the learned Single Judge dated 6 October 2015 is, in the circumstances, set aside. Writ-A No.33500 of 2015 shall stand restored to the file of the learned Single Judge for disposal.

The special appeal is, accordingly, disposed of. There shall be no order as to costs.

Order Date :- 24.11.2015

VMA

(Dr. D.Y. Chandrachud, C.J.)

(Yashwant Varma, J.)