Ic-48821M Lt. Col. Alok Kaushik ... vs Union Of India And Ors.
2013 Latest Caselaw 873 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Decided on: 21.02.2013

+                       W.P.(C) 1096/2013

       IC-48821M LT. COL. ALOK KAUSHIK (RETD)
                                                     ..... Appellant
                        Through: Sh. S.S. Pandey, Advocate.

                        Versus

       UNION OF INDIA AND ORS.              ..... Respondents

Through: Sh. Ankur Chhibber, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

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1. The Petitioner is aggrieved by the order dated 14.02.2013 passed by the Armed Forces Tribunal (AFT), Principal Bench, New Delhi dismissing his Original Application (OA) No. 44/2013 filed by him challenging the order dated 27.07.2011 issued by the respondents in New Delhi.

2. The brief facts are that the Petitioner had cited medical problems and applied for Premature Retirement (PMR) on 07.03.2011. The application was approved by the third respondent by order dated 04.05.2011. The said order directed the Petitioner to proceed on PMR with effect from 01.08.2011.

3. On 09.07.2011, before the date of superannuation, the

W.P.(C) 1096/2013 Page 1 Petitioner requested for cancellation of the PMR, sanctioned by the respondents by letter dated 04.05.2011, on the grounds that he had small school going children and that his medical disability would worsen on leaving the organisation. On 27.07.2011, the Petitioner was communicated the decision of the concerned authorities that his application for withdrawal of PMR was not accepted and that he had to retire from the effective date of 01.08.2011. Under these circumstances, the Petitioner retired on the said date in tune with the order dated 04.05.2011.

4. The Petitioner submits that he served the nation from 1993 to 2011, in spite of his medical problems, to the satisfaction of his superiors. During the period he had developed the problem of obesity and diabetes mellitus (Type-2). He submits that the medical condition compelled him to seek PMR. He further submits that when he had made an application for PMR he was in a depressed mental state and only later on got the opportunity to properly analyze the situation. He realized that he had a family of two dependent children, wife and parents to be supported, which would not be possible on the basis of his meagre pension. Therefore, the Petitioner submitted a letter dated 09.07.2011 requesting for permission to withdraw his PMR application and cancellation of retirement order, which was later rejected.

5. The Petitioner submits that since retirement he is facing considerable financial hardship and is finding it difficult to support his family. He was also under heavy medication for the physical and depressed mental state. He further submits that on improvement of his

W.P.(C) 1096/2013 Page 2 health he made a representation dated 14.01.2013, requesting his reinstatement in military service in the same rank. On receiving no response, he approached the Armed Forces Tribunal at New Delhi on 12.02.2013. Since the Petitioner is a resident of Ghaziabad (U.P.), the Tribunal was transferred the matter at the admission stage to the Lucknow Bench because of territorial jurisdiction. Aggrieved, the Petitioner has sought, by the present writ petition, the quashing of the impugned order and remanding the matter back to the Armed Forces Tribunal, Principal Bench and deciding it on merits in a stipulated time frame.

6. The issue in the present writ petition is whether the Armed Forces Tribunal, Principal Bench had jurisdiction to decide the matter and was justified in transferring the application to the Lucknow Bench.

7. The Petitioner contends that notwithstanding the fact that he was a resident of Ghaziabad (U.P.) and posted at Meerut Sub Area, all the impugned orders of 04.05.2011 and 27.07.2011 were issued by the Respondents at Delhi as their offices are located in Delhi. Therefore, there should be territorial jurisdiction at New Delhi to entertain the present matter. The Petitioner submits that only consequent to the rejection of the application of withdrawal, which took place in Delhi, did he challenge the said orders before the Principal Bench of the Armed Forces Tribunal. The cause of action had, thus, arisen within the territorial jurisdiction of the Principal Bench. It is averred that the Tribunal has failed to interpret the concept of cause of action and passed an order which is not only against the express provisions of

W.P.(C) 1096/2013 Page 3 law but also contrary to the objects and statement of the enactment.

8. The relevant provision of the Armed Forces Tribunal (Procedure) Rules, 2008 is -

"6. Place of filing application. - (1) An application shall ordinarily be filed by the applicant with the Registrar of the Bench within whose jurisdiction-

(i) the applicant is posted for the time being, or was last posted or attached; or

(ii) where the cause of action, wholly or in part, has arisen:

Provided that with the leave of the Chairperson the application may be filed with the Registrar of the Principal Bench and subject to the orders under Section 14 or Section 15 of the Act, such application shall be heard and disposed of the Bench which has jurisdiction over the matter.

(2) Notwithstanding anything contained in sub-rule (1), a person who has ceased to be in service by reason of his retirement, dismissal, discharge, cashiering, release, removal, resignation or termination of service may, at his option, file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application."

9. In support of his argument the Petitioner has relied upon decision reported as M/s. Kusum Ingots & Alloys Ltd v. Union Of India (2004) 6 SCC 254 where the Supreme Court held that:

"6. Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and

W.P.(C) 1096/2013 Page 4 prove constitutes the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily."

Likewise, the decision in Ex. Rect./Gd Vinod Kumar v. Union Of India (UoI) And Ors. 135 (2006) DLT 414 was relied on; in this case the Court held that:

"17. There could be cases where the statutory proceedings have been carried out in the jurisdiction of a different Court but the petitioner, by filing a representation before the Chief of Army Staff or a statutory complaint could bring his case within the jurisdiction of the Courts at Delhi, if such a petition was pending and/or was wrongly decided and the averments in the writ petition were made against such authority claiming some relief or direction against that authority."

Similarly, strength is derived from the ruling in Colonel Sarat Chandra Mishra v. Union of India & Ors., W.P(C) No.5062/2011 decided on 20th July, 2011 where it was held that-

"4. It is trite that where statutory remedies are available to an aggrieved person, the situs of the office where statutory complaints are decided would confer jurisdiction on the Court, within the territorial jurisdiction whereof the said Authority sits."

W.P.(C) 1096/2013 Page 5

10. It is apparent from the provision itself that the choice of instituting a proceeding or application before the Tribunal is with the petitioner/applicant. He can choose any of the following places:

(i) where the applicant is posted (or attached) for the time being,

(ii) (where the applicant) was last posted or attached; or

(iii) where the cause of action, wholly or in part, has arisen:

Unlike in the case of Section 20 of the CPC, which mandates that the place where the defendant resides or works for gain, or where the cause of action arises, in whole or in part, the choice of selecting the forum in the case of matters covered by the Armed Forces Tribunal is wider; it can be exercised by the applicant. Interestingly, the applicant can even approach the Bench of the Tribunal having jurisdiction over the place where he was last posted or attached.

11. In the present writ petition, considering the totality of the facts and circumstances and observing that the competent authority which ordered the PMR and later rejected the request of the Petitioner for cancellation of the PMR order is situated in Delhi, it can be said that the Principal Bench of the Armed Forces Tribunal had the jurisdiction to adjudicate the disputes of the petitioner pertaining to his application of cancellation of premature retirement. In the circumstances, the order of the Tribunal directing the application of the petitioner to be sent to the Lucknow Bench of the Armed Forces Tribunal cannot be justified.

12. For the foregoing reasons, the impugned order of the Tribunal sending the original application of the petitioner to its Lucknow Bench and directing the parties to appear there cannot be sustained. It

W.P.(C) 1096/2013 Page 6 is accordingly set aside. The petitioner's original application is directed to be heard and decided by the Tribunal, on its merits, and in accordance with law.

S. RAVINDRA BHAT (JUDGE)

SUDERSHAN KUMAR MISRA (JUDGE) FEBRUARY 21, 2013

W.P.(C) 1096/2013 Page 7