Srimali Vewnkiteela vs Union Of India And Anr
2013 Latest Caselaw 4119 Del

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      * IN THE HIGH COURT OF DELHI AT NEW DELHI

      +                   W.P.(C) 6535/2012
      %                    Date of decision: 12th September, 2013

      SRIMALI VEWNKITEELA                           ..... Petitioner
                   Through :           Mr. Sukhjinder Singh, Adv.

                          versus

      UNION OF INDIA AND ANR          ..... Respondents
                    Through : Mr. Ankur Chhibber, Adv.

      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MR. JUSTICE V. KAMESWAR RAO

GITA MITTAL, J. (Oral)

1. By way of present writ petition, the petitioner has challenged the order dated 17th August, 2012 passed by the Armed Forces Tribunal, Principal Bench, Delhi rejecting O.A.No.165/2012 on the ground that the Tribunal did not have the territorial jurisdiction to entertain and adjudicate upon the subject matter of the writ petition.

2. As per the impugned order, the petitioner had assailed the communications dated 11th March, 2005, 14th March, 2005, 20th April, 2009, 3rd May, 2010, 25th August, 2010 and 28th February, 2012 issued by the respondents. The Tribunal was of the view that communication which was assailed is a matter of policy and that no

WP(C) No.6535/2012 page 1 of 7 part of the cause of action had arisen in favour of the petitioner at Mumbai where the petitioner was posted.

3. During the pendency of the writ petition, the petitioner has placed before us a copy of the communication dated 23rd January, 2013 received by him from the Integrated Headquarters, Ministry of Defence (Navy) New Delhi - 110 011 on record. With this letter, the respondents have forwarded a communication dated 8th February, 2012.

4. Mr. Sukhjinder Singh, learned counsel for the petitioner has also placed before us a copy dated 8th February, 2012 addressed by the Integrated Headquarters, Ministry of Defence (Navy) Delhi to the Flag Officer Commanding-in-Chief for CSO (P&A) Headquarters, Western Naval Command at Mumbai. In this communication, the examination result of the petitioner's appeal has been set out. The communication enclosed the following two documents requested by the petitioner:-

"1. xxx xxx xxx

2. Your ibid appeal has been examined. The following documents are enclosed as requested by you:-

(i) HQWNC letter AP/04659-N/P&C dated 02 Aug 11.

(ii) IHQ MoD (N) letter NA/0337/DNE/98(i) dated 08 Feb 12.

It is important to note that this letter was not endorsed to the petitioner.

WP(C) No.6535/2012 page 2 of 7

5. Our attention is drawn to Section 23 of the Navy Act, 1957 which provides the remedy of a statutory complaint to a person aggrieved by any action of the superior officer. We are informed that in terms of Statutory Provisions and the Regulations framed thereunder, the petitioner was required to submit a complaint to the Commanding Officer who is required to forward the same to the competent authority. Our attention is also drawn to the representation dated 3rd October, 2011 so made by the petitioner to the Commanding Officer setting out his grievance and making a request that the application be forwarded to the Integrated Headquarters, Ministry of Defence (Navy) New Delhi which according to the petitioner was the competent authority. This representation was made in terms of Section 23 of the Navy Act and Regulations thereunder. The order dated 8th February, 2012 would show that the petitioner's representation was forwarded to Integrated Headquarters, Ministry of Defence (Navy) at New Delhi which has actually decided the issue raised by the petitioner.

6. The petitioner was prevented from raising a substantive challenge to the order dated 8th February, 2012 inasmuch as the decision rejecting the petitioner's statutory complaint was not conveyed to the petitioner either by the Integrated Headquarters, Ministry of Defence (Navy) or by the Commanding Officer at Mumbai. The order dated 8th February, 2012 has been actually passed at Delhi.

WP(C) No.6535/2012 page 3 of 7

7. Mr. Sukhjinder Singh, learned counsel appearing for the petitioner has drawn our attention to the decision dated 28th February, 2012 sent by the Headquarters, Western Naval Command to the Flag Officer Commanding, Maharashtra and Gujarat Naval Area. As per para 2 of this communication, the petitoner's grievance was earlier also examined in detail by the Integrated Headquarters, Ministry of Defence (Navy) New Delhi and was rejected. In para 6 of the same letter, it was informed that the competent authority which was the Integrated Headquarters, Ministry of Defence (Navy) at New Delhi had examined the aspect of the case and rejected the petitioner's representation being devoid of merits.

8. We may note that again it was the decision of the Integrated Headquarters, Ministry of Defence (Navy) New Delhi which was communicated by one department of the Navy to another in the communication dated 28th February, 2012.

9. In view of the above it is obvious that these decisions, which have been made at Delhi, form part of cause of action which had enured in favour of the petitioner and entitled him to invoke the jurisdiction of the Armed Forces Tribunal, Principal Bench, New Delhi.

10. The above narration shows that the petitioner was deprived of opportunity to lay a challenge to the communication dated 8th February, 2012.

WP(C) No.6535/2012 page 4 of 7

11. So far as jurisdiction of the Armed Forces Tribunal is concerned, Rule 6 of The Armed Forces Tribunal (Procedure) Rules, 2008 with regard to the same reads as under:-

"6. Placed 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 arise:

Provided that with the leave of the Chairperson the application may be filed with the Registrar of teh Principal Bench and subject to the orders under section 14 or section 15 of the Act, such application shall be heard and disposed of by 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."

12. Sub-Rule (2) of Rule 6 manifests that an application can be filed by the applicant where the cause of action wholly or in part, has arisen. The passing of the orders dated 28th February, 2012 and 8th February, 2012 was certainly part of the cause of action. These orders have been passed at Delhi. As such it has to be held that the part of cause of action for laying a challenge by the petitioner had arisen at Delhi within the jurisdiction of the Armed Forces

WP(C) No.6535/2012 page 5 of 7 Tribunal Act.

13. We find that petitioner had challenged the communication dated 28th February, 2012 before the Armed Forces Tribunal. However, the facts which we have noticed above were not brought to the notice of the Tribunal and therefore, escaped notice in the order impugned before us.

14. The petitioner also deserves to be granted an opportunity to amend the petition which he had filed before the Armed Forces Tribunal to incorporate a challenge to the order dated 8th February, 2012 in the given circumstances.

In view of the above, we direct as follows:-

(i) The order dated 17th August, 2012 passed by the Armed Forces Tribunal holding that it did not have territorial jurisdiction in the matter is not sustainable and is hereby set aside and quashed for the reasons noticed by us hereinbefore.

(ii) The petitioner shall be entitled to raise a challenge by way of amendment of the petition to the communication dated 8th February, 2012 which application for amendment, if filed within four weeks from today, shall not be rejected on the ground of the same being beyond the period of limitation prescribed for making a challenge before the Armed Forces Tribunal.

(iii) The matter shall be heard and adjudicated upon by the Armed Forces Tribunal in accordance with law.

(iv) The parties shall appear before the Registrar of the Armed Forces Tribunal on 3rd October, 2013 for further proceedings.

WP(C) No.6535/2012 page 6 of 7 This writ petition is allowed in the above terms. Dasti to parties.

(GITA MITTAL) JUDGE

(V. KAMESWAR RAO) JUDGE SEPTEMBER 12, 2013 mk

WP(C) No.6535/2012 page 7 of 7