EX HAVILDAR BIRENDRA SINGH NEGI Vs. UNION OF INDIA
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Ex Havildar Birendra Singh Negi (No. 4068517 H)
UNION OF INDIA AND OTHERS
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(1.) The petitioner is a person subject to the Army Act, 1950, and consequently is aggrieved by certain orders passed by the Army Authorities. He sought redressal of his grievance before this Court by filing a writ petition being Writ Petition (S/S) No. 26 of 2008. Inter alia, one of the prayers of the petitioner was for quashing of an order of "severe reprimand" passed by the Army authority under Section 80 read with Section 63 of the Army Act. This petition was filed before this Court on 9.1.2008. Consequently, the Armed Forces Tribunal Act, 2007 (from hereinafter referred to as the Act) came into force under which the Central Government was to establish a Tribunal under Section 4 of the Act, known as "Armed Forces Tribunal, with a Principal Bench and other benches as well. Though the Act had come into force on 15.6.2008, the actual constitution and function of the Principal Bench of the Tribunal and other benches took some time. That being done all such matters pertaining to Armed Forces personnel's were liable to be transferred before the Armed Forces Tribunal in view of Section 34 of the Act. On 21.4.2010, this matter was listed before this Court when it was pointed out before this Court by the learned counsel for the petitioner as well as the learned counsel for the Armed Forces i.e. Union of India that the matter is now cognizable by the Armed Forces Tribunal which has now been constituted and is functioning at Lucknow. Therefore under Section 34 of the Act the case is liable to be transferred to the Tribunal. No further arguments or submissions were made at point of time and since it was an admitted fact that the petitioner was a person subject to the Army Act, 1950 and the grievance which he had raised was liable to be redressed by the learned Tribunal which stood constituted and functioning at Lucknow. Moreover, both the counsel for the petitioner as well as counsel for Union of India agreed that the matter is now cognizable by the Armed Forces Tribunal and is liable to be transferred to the Tribunal under Section 34 of the Act, the matter was transferred to the Armed Forces Tribunal vide order dated 21.4.2010 under provisions contained under Section 34 of the Act. Section 34 of the Act reads as under:-
34. Transfer of pending cases.--(1) Every suit, or other proceeding pending before any court including a High Court or other authority immediately before the date of establishment of the Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen after such establishment within the jurisdiction of such Tribunal, stand transferred on that date to such Tribunal.
(2) Where any suit, or other proceeding stands transferred from any court including a High Court or other authority to the Tribunal under sub-section (1),--
(a) the court or other authority shall, as soon as may be, after such transfer, forward the records of such suit, or other proceeding to the Tribunal;
(b) the Tribunal may, on receipt of such records, proceed to deal with such suit, or other proceeding, so far as may be, in the same manner as in the case of an application made under sub-section (2) of Section 14, from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.
(2.) Section 34 of the Act thus clearly stipulates that, inter alia, even a writ petition pending before the High Court shall stand transferred on that date to such Tribunal and the Tribunal on receipt of such a record proceed to deal with the matter in the manner prescribed under Section 14(2) of the Act i.e. it will proceed with the matter. In short, the learned Tribunal has to only proceed with the matter (after the same has been received by the Tribunal) as if an application has been filed before the learned Tribunal itself under Section 14 of the Act.
(3.) After the records of the present writ petition were transferred to the Tribunal at its Bench at Lucknow, the learned Tribunal did not proceed with the matter and has transferred the case back to this Court on the grounds that it has no jurisdiction over the matter! The operative portion of the order of learned Tribunal dated 11.7.2011 reads as under:-
In the circumstances we are of the view that the Tribunal does not have any jurisdiction. Let the papers of this case be transmitted to the High Court of Uttranchal.;
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