- (1.) WE have heard Shri Satish Kumar Rai, learned counsel appearing for Union of India-appellant-respondent.
(2.) THIS Special Appeal was reported to be beyond time of 122 days. In the affidavit of Cap. Trilok Dixit, Quarter Master, 23 Medium Regiment, the delay has been explained in paragraphs 4 to 13. It is stated that the copy of the judgment dated 1st February, 2005 was applied on 2.2.2005. The judgment was received on 10.2.2005, and was forwarded alongwith opinion of counsel on 18.2.2005. The records were sent for legal opinion of DAJAG. On 19.5.2005 the Legal Adviser, Ministry of Defence opined that this is a fit case for filing special appeal. On 27.5.2005 the file was sent to Arty Records for filing the special appeal and on 4.6.2005 the legal cell was asked to proceed further with filing of the appeal. The delay has been sufficiently explained and is accordingly condoned. The delay condonation application is allowed. We have heard learned counsel for the parties.
(3.) IT is submitted by Shri Satish Kumar Rai that the Special Appeal is not liable to be transferred to the Armed Forces Tribunal under Section 34 of the Armed Forces Tribunal Act, 2007, (in short the Act of 2007). He submits that under Section 34 of the Act 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 the 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, is to be transferred on that date to such Tribunal. The Special Appeal arising out of judgment of learned Single Judge is not a proceeding, which may be transferred under Section 34 of the Act to the Tribunal. Shri S.K. Rai submits that the cause of action in this case had arisen prior to the establishment of the Tribunal, and that in any case the Tribunal does not have powers to set aside the judgment of learned Single Judge under Article 226 of the Constitution of India. He submits that the writ petition under Article 226 of the Constitution cannot be treated as a suit or other proceedings and that a special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, preferred against a judgment of Single Judge of the High Court, as an intra Court appeal, is not liable to be transferred to the Tribunal. The question of transfer of the writ petitions filed under Articles 226'227 and pending in the High Court to the Armed Forces Tribunal, was considered by learned Single Judge of this Court in Devi Saran Mishra v. Union of India and others, 2010 (2) ESC 1475 (All). After examining the provisions of Part XIV A of the Constitution of India, inserted by the Constitution (42nd Amendment) Act, 1976 introducing Articles 323-A and 323-B; the judgments in L Cnandra Kumar v. Union of India, 1977 UPLBEC 712 and the provisions of the Armed Forces Tribunal Act of 2007, the Court observed that the Act has been enacted with a view to provide speedy justice to the members of the Armed Forces. The Tribunal is to perform special role as large number of cases relating to service matters of the members of three Armed Forces of Union of India are pending in the Courts. In para 22 of the judgment learned Single Judge recorded his opinion that the word, 'other proceedings' under Section 34 of the Act of 2007, will include first appeals; appeals letters patent; second appeals; revisions; civil and criminal references; writ petitions; special appeals and all such proceedings with which the Courts are burdened in the matters provided to be decided by the Armed Forces Tribunal. The Tribunal consisting of one Judicial Member and one Administrative Member has been vested with the authority to decide both the questions of law and fact, that may arise before it. The Tribunal is vested with the authority of the civil Court which includes the authority to summon the documents and enforce the attendance of witnesses, examine them on oath and review its decisions. Section 3 (0) of the Act defines 'service matters' and Section 4 of the Act deals with the jurisdiction, powers and authority of the Tribunal in such matters.;