Kerala High Court
Syriak P.J vs Record Officer For Oic Records on 6 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
OP(AFT) NO. 1 OF 2021
AGAINST THE ORDER/JUDGMENT IN OA 146/2018 OF ARMED FORCES
TRIBUNAL,REGIONAL BENCH,KOCHI, ERNAKULAM
PETITIONER/APPLICANT
SYRIAK P.J.
1
AGED 64 YEARS
ARMY NO.7118447 (EX CRAFTSMAN) S/O.LATE YOHANNAN,
PONNAMKUZHY HOUSE, PANGARAPPILLY, ARAKKUNNAM P.O.,
ERNAKULAM - 682 313. MOB-9605602671.
BY ADVS.
JOHNSON MANAYANI
BENHUR JOSEPH MANAYANI
RESPONDENTS/RESPONDENTS:
1 RECORD OFFICER FOR OIC RECORDS
EME RECORDS, PIN - 900 453, C/O.56 APO.
2 ADDITIONAL DTE GEN
PERSONNEL SERVICE, ADJUTANT GENERAL'S BRANCH, INTEGRATED
HQ OF MOD (ARMY), A WING- SENA BHAVAN,
NEW DELHI - 110 105.
3 THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY TO DEFENCE, MINISTRY OF
DEFENCE, NEW DELHI.
4 UNDER SECRETARY (PENSION/POLICY)
ROOM NO.220A, BUILDING SENA BHAVAN, NEW DELHI - 110 011.
5 UNDER SECRETARY (PENSION/GRIEVANCE)
ROOM NO.225, BUILDING SENA BHAVAN, NEW DELHI - 110 011.
SRI.DAYA SINDHU SREEHARI,CGC
THIS OP (ARMED FORCES TRIBUNAL - ART.227) HAVING COME UP FOR
ADMISSION ON 06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P (AFT) No.1 of 2021
2
ALEXANDER THOMAS & A.BADHARUDEEN, JJ.
=========================================
O.P (AFT) No.1 of 2021
[arising out of O.A No.146/2018
on the file of the Armed Forces Tribunal,
Regional Bench at Ernakulam]
=========================================
Dated this the 06th day of July, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The case set up in the above Original Petition filed under Articles
226 & 227 of the Constitution of India is broadly as follows :
That the petitioner is a discharged soldier. He was having
7 years Military Service. At the time of enrolment, he was
physically and mentally hale and hearty. The petitioner was
doing his duties at the field stations, especially at the Samba
Sector - a sensitive area. The reason for discharge was 'Anxiety
Neurosis Disease'. Admittedly, at the time of enrolment, the
petitioner was hale and hearty. There is no dispute on that. At the
time of discharge, the petitioner was infected with 'Anxiety
Nervousness'. It is a clear case of illness attributed to sight of
service. The above dictum was simply ignored by the authorities.
That the petitioner has filed Ext.P-1 original application, O.A
No.146/2018 before the Armed Forces Tribunal, Ernakulam
Regional Bench in Form No.9 under Rule 9(ii) of the Rules
concerned as early as on 31.01.2018. That Ext.P-1 original
O.P (AFT) No.1 of 2021
application was accompanied by Ext.P-2 application to condone
the delay in filing the O.A, along with accompanying affidavit.
That the matters in Exts.P-1 & P-2 have not been taken up by the
Ernakulam Regional Bench at Armed Forces Tribunal till date
and the petitioner could learnt that as of now, no members of the
Tribunal are appointed and posted at the Ernakulam Regional
Bench of the Armed Forces Tribunal and that hence, the matters in
Exts.P-1 & P-2 are lying totally unattended, even though the
petitioner has a very serious grievance in the matter. The
petitioner would thus contend that the total non-consideration of
the petitioner's original application at Ext.P-1 and the delay
condonation application at Ext.P-2 is causing grave and serious
difficulties and hardships to him and his wife especially due to his
wife's cancer treatment, which is evident from Ext.P-3 medical
certificate issued by the Indira Gandhi Co-operative Hospital. It
is in the light of the above averments and contentions, the
petitioner has filed the instant original petition with the
following prayers:
"I. Issue appropriate direction or order to hear and dispose of
the petitioner's Ext P1 and P2, within a time bound
manner after hearing the petitioner.
II. Declare that, emergent hearing of the petitioner's Exts P1
and P2 is highly necessary due to the health conditions of
the petitioner and his wife.
IV. (sic) Issue such other order or direction as deem fit and
necessary by this Hon'ble court."
O.P (AFT) No.1 of 2021
2. Heard Sri.Benhur Joseph Manayani, learned counsel
appearing for the petitioner and Sri.Daya Sindhu Sreehari, learned
Central Government Counsel appearing for all the respondents in this
O.P.
3. Sri.Benhur Joseph Manayani, learned counsel appearing for
the petitioner would reiterate the submissions and contentions raised in
the original petition. Per contra, Sri.Daya Sindhu Sreehari, learned
Central Government Counsel appearing for the respondents would
submit that it is by now well established that the supervisory power of
the High Courts under Article 227 of the Constitution of India is not
available to be invoked as against the Armed Forces Tribunal in view of
the specific bar contained to that effect in clause (4) of Article 227 of the
Constitution of India, which expressly stipulates that nothing in that
article shall be deemed to confer on a High Court powers of
superintendence over any court or tribunal constituted by or under any
law relating to the Armed Forces. In that regard, it is also pointed out
that it is also explicitly stipulated as per Sec.30(1) of the Armed Forces
Tribunal Act promulgated by the Parliament that subject to the
O.P (AFT) No.1 of 2021
provisions of Sec.31 thereof, an appeal will lie to the Supreme Court
against the final decision or order of the Tribunal, other than an order
passed under Sec.19, etc. Article 227 of the Constitution of India
provide as follows :
"227. Power of superintendence over all courts by the High Court
(1) Every High Court shall have superintendence over all courts
and tribunals throughout the territories interrelation to
which it exercises jurisdiction
(2)Without prejudice to the generality of the foregoing
provisions, the High Court may
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for
regulating the practice and proceedings of such courts;
and
(c) prescribe forms in which books, entries and accounts
shall be kept by the officers of any such courts
(3) The High Court may also settle tables of fees to be allowed
to the sheriff and all clerks and officers of such courts and to
attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables
settled under clause (2) or clause (3) shall not be inconsistent
with the provision of any law for the time being in force, and
shall require the previous approval of the Governor
(4) Nothing in this article shall be deemed to confer on a High
Court powers of superintendence over any Court or tribunal
constituted by or under any law relating to the Armed
Forces"
O.P (AFT) No.1 of 2021
4. This Court has held in decisions as in the judgment dated
02.07.2019 rendered by the Division Bench of this Court in O.P(AFT)
No.1/2019 that in view of the explicit bar contained in Article 227 (4) of
the Constitution of India, this Court is not having the supervisory
jurisdiction conferred as per Article 227 to be exercised in matters
decided by the Armed Forces Tribunal, which is the Tribunal as
contemplated in the said provision. Therefore, in the light of these
aspects, it is only to be held that the original petition under Article 227
of the Constitution of India is not maintainable in this case.
5. However, both sides have pointed out to this Court that in
an analogous situation, a writ petition (civil), W.P(C) No.14696/2020
was filed before this Court in which a judgment was rendered by this
Court on 15.09.2020, wherein a statement was filed by the Assistant
Solicitor General of India on behalf of the respondent-Union
Government authorities, wherein it was stated that in case, where the
Bench of the Armed Forces Tribunal is not in a position to render
physical hearings on account of non-availability of members or any
other reason, then the case could be decided on video conferencing
O.P (AFT) No.1 of 2021
mode and in such situations, every matter including part-heard,
admitted and old matters can be taken up subject to the procedure
provided in the Standard Operating Procedure (SOP) mentioned in that
case.
6. The learned Central Government Counsel would point out
that members of the Tribunal are not now posted in the Ernakulam
Regional Bench of the Armed Forces Tribunal and that appointment of
the members of the AFT could not be completed due to various aspects
and that therefore, the case of the petitioner can be taken up for
consideration in the video conferencing mode by the Tribunal. We are
given to understand that in such cases, the Principal Bench of the
Armed Forces Tribunal at New Delhi or any other authorized Bench,
which is now otherwise available would take up the matters in video
conferencing mode even in respect of cases of other Benches including
the one at Ernakulam and that the parties will have to adhere to the
SOP norms in that regard. A statement dated 11.09.2020 filed on behalf
of the Union of India is referred to in the abovesaid judgment dated
15.09.2020 in W.P(C) No.14696/2020 and the relevant contents of the
O.P (AFT) No.1 of 2021
said statement as mentioned in the said judgment are extracted
hereunder, for easy reference :
"1. It is humbly submitted that this statement
is submitted based on the instructions
received from Principal Registrar, AFT,
Principal bench, AFT, R.K.Puram, New Delhi-
10066. This statement is being filed without
prejudice to the right of the respondents to
file a detailed counter affidavit in the
matter. This statement is filed based on
preliminary facts of the case only.
2. It is humbly submitted that the Ministry has
been making all efforts to fill the vacant
posts of Members in AFT. However, delay has
been occurred due to various litigations
going on in the Hon'ble Supreme Court. The
Hon'ble Court is presently seized of the
matter regarding vacant posts of members in
various Tribunals including AFT.
3. It is humbly submitted that due to Covid-19
situation, at present, it is decided that
hearing of cases pertaining to the Regional
benches of the AFT will be conducted through
Video Conferencing. A circular to that effect
is also issued. A true copy of the Circular
No.AFT/RBK/JUD/ECourts/1/2020 dated 28-08-
2020 is produced herewith as Annexure R1(a).
4. It is further submitted that part heard
matters/already admitted matters/old matters
involving urgency can be heard through video
conferencing, subject to the SoP, on
providing the soft copies of the soft copies
of the original applications and
miscellaneous applications, as mentioned in
the above said circular. Similarly
Miscellaneous Applications under Section 31
of the AFT Act, 2007 can also be heard
O.P (AFT) No.1 of 2021
through video conferencing on providing soft
copies of the original applications and
miscellaneous applications.
5. Therefore, it is humbly submitted that this
writ petition is not maintainable, lacks
merit and substances. This Hon'ble Court
therefore may be pleased to dismiss the case
with cost in the preliminary hearing itself
according to circumstances and facts of the
case. The petitioner can avail alternate
remedy to address the grievance that is
agitated by him.
6. It is humbly prayed that for the reasons
stated above this Hon'ble Court may be
pleased to dismiss the Writ petition with
cost."
7. Accordingly, the learned Central Government Counsel
would point out that if as a matter of fact, the case at Exts.P-1 & P-2 are
already pending, then it is for the petitioner to immediately take steps
to file the case papers in relation to Exts.P-1 & P-2 in pdf format, as
contemplated in the said SOP, in which case the Registry of the
Tribunal will take steps to ensure that the case is posted before the
Bench of the Tribunal, so as to render video conferencing mode hearing,
etc. The abovesaid submissions on behalf of the respondent-Union
Government authorities hereby are recorded. Hence, it is ordered that
it is for the petitioner to immediately ensure that the case papers are
O.P (AFT) No.1 of 2021
duly filed in pdf format and subject to full compliance of the norms in
the abovesaid SOP (Standard Operating Procedure) referred to
hereinabove. We would request the Bench concerned of the Armed
Forces Tribunal to ensure that early consideration and decision of the
matter on Ext.P-2 application for condonation of delay and Ext.P-1 O.A
may be rendered, without any further delay. The prayer of the
petitioner for interim relief may also be appropriately considered at the
appropriate stage.
8. Before parting of this case, on a reference to the contents of
the judgment dated 15.09.2020 in W.P(C) No.14696/2020 rendered by
this Court especially para 4 of page No.7 thereof would indicate that the
stand of the Union Government authorities is that issues relating to the
appointment of the members to the various Benches of the Armed
Forces Tribunal are still pending before the Apex Court, etc.
9. In the light of these aspects, it is for the competent authority
of the Union Government to immediately ascertain as to the present
stage of the litigative proceedings before the Apex Court in relation to
the abovesaid aspects and it may also be ascertained as to whether there
O.P (AFT) No.1 of 2021
are any interim orders or final orders rendered by the Apex Court,
which may now stand in the way of consideration of appointment of
members of the Armed Forces Tribunal and if there are no legal
impediments in that regard, the Union Government authorities may
take necessary action in that regard, in accordance with law.
10. We say so, as this case would indicate that litigants are
facing lot of difficulties in getting their matters posted and heard by the
Tribunal on account of the non-availability of members in the
Ernakulam Regional Bench of the Armed Forces Tribunal.
In the light of these aspects, the above Original Petition will stand
thus closed.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
A.BADHARUDHEEN, JUDGE
vgd
O.P (AFT) No.1 of 2021
APPENDIX OF OP(AFT) 1/2021
PETITIONER'S EXIBITS
EXHIBIT P1 TRUE COPY OF OA NO.146/2018 DT.31/1/2018
FILED BEFORE THE ARMED FORCES TRIBUNAL,
REGIONAL BENCH AT ERNAKULAM WITHOUT THE
ANNEXURES.
EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT AND PETITION
TO CONDONE THE DELAY DT.31/1/2018 FILED
BEFORE THE HON'BLE ARMED FORCE TRIBUNAL,
REGIONAL BENCH AT ERNAKULAM.
EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED BY
THE INDIRA GANDHI CO-OPERATIVE HOSPITAL
DT. 26/8/2020 ISSUED TO THE PETITIONER'S
WIFE.
