WP/41735/2015 of Manoj Kumar (Service No.691785-B) Vs Union of India Rep by its Secretary to the Government, on 30 December 2015

ORDER:

The petitioner was an Airman. By proceedings, dated25.04.2014, he was discharged from services as per the provisions ofthe Armed Forces Rules, 1969, and was transferred to PensionEstablishment otherwise than at his own request. Aggrieved by thesaid order and also seeking consequential benefits, the petitioner filedO.A.No.73 of 2015 before the Armed Forces Tribunal Regional Bench,Chennai. The said case was considered by the Circuit Bench atHyderabad. It appears from the reading of the order that when the O.A.was taken up for consideration, the Tribunal noticed that the reliefsought for by the petitioner cannot be granted since the petitioner didnot impeach the punishment against him which was the basis for hisdischarge. At that stage, learned counsel representing the petitionersought leave of the Tribunal for withdrawing the O.A. with liberty to filea fresh application. Recording the same, the O.A. was dismissed aswithdrawn.

2. Learned counsel for the petitioners informs the Courtthat the petitioner has since filed O.A. No.121 of 2015 impeaching thepunishment imposed against him, however, challenging the very sameorder of discharge, dated 25.04.2014, this writ petition is filed.

3. Learned counsel for the petitioner would contend thatthe Tribunal has no jurisdiction to adjudicate the grievance since thepetitioner is not covered by definition of “Service matters” as providedin Section 3(o)(iii) of the Armed Forces Tribunal Act, 2007 (for short,‘the Act’), and, therefore, this writ petition is filed.

4. To appreciate the said contention, the definition“Service Matters” as defined in the Act is considered. Section 3(o) ofthe Act reads as under:

“Service matters”, in relation to the persons subject to theArmy Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) andthe Air force Act, 1950 (45 of 1950), mean all matters relating to theconditions of their service and shall include-

(i) remuneration (including allowances), pension and otherretirement benefits;

(ii) tenure, including commission, appointment, enrolment,probation, confirmation, seniority, training, promotion, reversion,premature retirement, superannuation, termination of service andpenal deductions;(iii)summary disposal and trials where the punishment of dismissalis 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 of1950), sub-section (1) of section 15 of the Navy Act, 1957 (62 of1957) and section 18 of the Air Force Act, 1950 (45 of 1950); and(ii)transfers and postings including the change of place or unit onposting whether individually or as a part of unit, formation or ship inrelation 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 of1950).

(iii) leave of any kind;(iv)Summary Court Martial except where the punishment is ofdismissal or imprisonment for more than three months.”

5. From a bear reading of this definition, it is clear that ‘ServiceMatters’ would mean all matters relating to the conditions of service of persons, who are governed by the Army Act, Navy Act and Air ForceAct. The definition provided is very wide and covers all mattersrelating to the conditions of service including the present grievance ofthe petitioner. In fact, the petitioner has invoked the jurisdiction of theTribunal in the first instance. He withdrew the O.A. only in order tocome out with a better application. The issue of maintainability of theO.A. was not considered by the Tribunal and was not dismissed on theground as sought to be projected in this writ petition. Thus, there is nomerit in the contention of the petitioner that since dismissal is notawarded against him, the Tribunal does not have jurisdiction.

6. As held by the Supreme Court in

L. Chandra Kumar Vs. Union of India and others[[1]], Tribunalconstituted under Special Enactment is a Court of first instance dealingwith the subject matters entrusted to such Tribunal and an aggrievedperson has to first invoke the jurisdiction of the said Tribunalventilating his grievance and cannot directly invoke the jurisdiction ofHigh Court under Article 226 of the Constitution of India. The ArmedForces Tribunal is established under the Armed Forces Tribunal Act,2007, and is a special Tribunal exclusively vested with jurisdiction toadjudicate service grievances of persons governed by Army Act, NavyAct and Air Force Act. Therefore, it is an effective and efficaciousadjudicating forum. The petitioner cannot directly invoke thejurisdiction of this Court without availing the said remedy.

7. Hence, the Writ Petition is dismissed, leaving it open to thepetitioner to avail the remedy as available under the Armed ForcesTribunal Act, 2007. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this writ petition shall standclosed.

_____________________

P.NAVEEN RAO, J

Date: 30[th] December, 2015

Note:LR Copy to be marked.

(B/o.)KL

HON’BLE SRI JUSTICE P.NAVEEN RAO

WRIT PETITION No.41735 of 2015

Date: 30[th] December, 2015

KL

[1]AIR 1997 Supreme Court 1125