Nk Santosh Lohar v. Union Of India And ORS.





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"13. Having heard the learned counsel for the parties, the first and the foremost issue that needs to be decided is whether the present petition is not maintainable in this Court in view of Section 3(o) of the AFT Act, as it is the submission of Ms. Babbar that the issue herein relates to a service matter that too concerning persons subject to Army Act where the punishment is of dismissal or

imprisonment for more than three months. In that regard, the answer to the said issue lies in her own submission, inasmuch as she had stated that the matters, which shall not have the jurisdiction of AFT, are those relating to Summary Court Martial except where punishment is of dismissal or imprisonment for more than three months. In the case in hand, even though initially it was a case of dismissal with imprisonment of six months, the dismissal was reduced to discharge. Even otherwise, initially the writ petition was disposed of by this court on an issue whether the SCM need to be held by the CO of the unit or any other unit on January 25, 2008. The said order was subject matter of an Appeal before the Supreme Court, which decided the issue vide order dated July 05, 2016 in favour of the respondents but at the same time remanded the matter back to this Court for consideration on merits. The Supreme court having remanded the matter back to this court, this Court shall have the competence to decide the matter on merits. Hence, this plea of Ms. Babbar is rejected."

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AFT Act, 2007 "(o) "service matters", in relation 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 of 1950), mean all matters relating to the conditions of their service and shall include- (i) remuneration (including allowances), pension and other retirement benefits;

(ii) tenure, including commission, appointment, enrolment, probation, confirmation, seniority, training, promotion, reversion, premature retirement, superannuation, termination of service and penal deductions;

(iii) summary disposal and trials where the punishment of dismissal is awarded;

(iv) any other matter, whatsoever, but shall not include service matters relating to- (i) orders issued under section 18 of the Army Act, 1950 (46 of 1950), sub-section (1) of section 15 of the Navy Act, 1957 (62 of 1957) and section 18 of the Air Force Act, 1950 (45 of 1950); and (ii) transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in relation 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 of 1950);

(iii) leave of any kind;

(iv) summary court martial except where the punishment is of dismissal or imprisonment for more than three months;

p) "summary disposals and trials" means summary disposals and trials held under the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air



Force Act, 1950 (45 of 1950);

14.

Jurisdiction, powers and authority in service matters.-(1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority, exercisable immediately before that day by all courts (except the Supreme Court or a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) in relation to all service matters.

(2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed.

(3) to (7) xxxx xxxx xxxx 15.

Jurisdiction, powers and authority in matters of appeal against court martial.-(1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a court martial or any matter connected therewith or incidental thereto. (2) Any person aggrieved by an order, decision, finding or sentence passed by a court martial may prefer an appeal in such form, manner and within such time as may be prescribed.

(3) to (5) xxxx xxxx xxxx Army Act, 1950 79.

Punishments otherwise than by court- martial. Punishments may also be inflicted in respect of offences committed by persons subject to this Act without the intervention of a court- martial and in the manner stated in sections 80, 83, 84 and 85.

80.

Punishment of persons other than officers,



junior commissioned officers and warrant officers. Subject to the provisions of section 81, a commanding officer or such other officer as is, with the consent of the Central Government, specified by the Chief of the Army Staff, may, in the prescribed manner, proceed against a person subject to this Act otherwise than as an officer, junior commissioned officer or warrant officer who is charged with an offence under this Act and award such person, to the extent prescribed, one or more of the following punishments, that is to say,- (a) imprisonment in military custody up to twenty- eight days;

(b) detention up to twenty- eight days;

(c) confinement to the lines up to twenty- eight days;

(d) extra guards or duties;

(e) deprivation of a, position of the nature of an appointment or of corps or working pay, and in the case of noncommissioned officers, also deprivation of acting rank or reduction to a lower grade of pay;

(f) forfeiture of good service and good conduct pay (g) severe reprimand or reprimand (h) fine up to fourteen days' pay in any one month;

(i) penal deductions under clause (g) of section 91;

108. Kinds of courts- martial-For the purposes of this Act there shall be four kinds of courts- martial, that is to say,- (a) general courts- martial;

(b) district courts- martial;

(c) summary general courts- martial; and (d) summary courts- martial.



116. Summary court- martial.

(1) A summary court- martial may be held by the commanding officer of any corps, department or detachment of the regular Army, and he shall alone constitute the court.

(2) The proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed.

120. Powers of summary courts- martial. (1) Subject to the provisions of sub- section (2), a summary courtmartial may try any offence punishable under this Act.

(2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district court- martial or on active service a summary general court- martial for the trial of the alleged offender, an officer holding a summary court- martial shall not try without such reference any offence punishable under any of the sections 34, 37 and 69, or any offence against the officer holding the court.

(3) A summary court- martial may try any person subject to this Act and under the command of the officer holding the court, except an officer, junior commissioned officer or warrant officer.

(4) A summary court- martial may pass any sentence which may be passed under this Act, except a sentence of death or transportation, or of imprisonment for a term exceeding the limit specified in subsection (5).

(5) The limit referred to in sub- section (4) shall be one year if the officer holding the summary court-martial is of the rank of lieutenant-colonel and upwards, and three months if such officer is below that rank."

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General courts- martial, District courts-martial, Summary general courts- martial and Summary courts-martial. Courts martial after following procedure prescribed under Army Act have power to impose punishment. Apart from Courts martial, there are provisions which empower President, Central Government and Officers of Army to award punishment including dismissal from service. Sections 79-84 of Army Act provide for punishment otherwise than by court martial. Authorities under Section 79-84 have power to impose minor penalty and there is no power to dismiss from service. Under Section 18-24 of Army Act, President,

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Central Government and officers of Army have power to dismiss or remove from service. The marginal note of Section 19 of Army Act has used expression 'termination of service' and in the body of section, expression 'dismissal and removal from service' has been used. Similarly, as per Rule 14 (4) of the Army Rules, 1954 expression termination includes dismissal and removal from service. It means understanding of legislature with respect to expression 'termination', 'dismissal' and 'removal' is that termination includes dismissal as well removal. Clause (ii) of Section 3 (o) of 2007 Act includes 'termination', thus, all orders of 'termination' passed by authorities other than court martial are amenable to original jurisdiction of the Tribunal under Section 14 of the 2007 Act. Section 19 of the Army Act and Rule 14 (4) of Rules read as:

Section 19: Termination of service by Central Government.- Subject to the provisions of this Act and the rules and regulations made thereunder the Central Government may dismiss, or remove from the service, any person subject to this Act. Rule 14: Termination of service by the Central Government on account of misconduct.- (4) When submitting a case to the Central Government under the provisions of sub-rule (2) or sub-rule (3), the Chief of the Army Staff shall make his recommendation whether the officer's service should be terminated, and if so, whether the officer should be- (a) dismissed from the service; or (b) removed from the service; or

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(c) Compulsorily retired from the service.

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@22. In view of above, while interpreting the provisions contained in Section 3(o) of the Act, the provisions contained in Clause (iv) containing the words, "any other matter, whatsoever," cannot be excluded. In case these words are not taken into account, it shall make Clause (iv) redundant which is not permissible under Interpretative jurisprudence.

25. The punishment of ''severe reprimand'' affect the service career of the army personnel. Even under dictionary meaning, the punishment of ''severe reprimand'' shall be service matter and be amenable before Armed Forces Tribunal constituted under the Act. In view of above, keeping in view statutory mandate as well as the provisions contained in Section 84 of the Army Act, 1950, the punishment of "severe reprimand" shall be deemed to be a punishment and fall under the category of "service matter" as defined by Section 3 of the Act and can be impugned before the Armed Forces Tribunal in pursuance to the provisions contained in the Act.

With great respect, we are not in agreement with the interpretation given by the Armed Forces Tribunal, Principal Bench, Delhi for the reasons assigned hereinabove. Let the records be remitted back to the Regional Bench of Armed Forces Tribunal, Lucknow within two weeks from today to decide the petition on merit, expeditiously, say within a period of three months from the date of production of a certified copy of the present order/judgment.G
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"In the event the word 'except' as underlined by us remains, summary court martial where the punishment is of dismissal or imprisonment for more than three months, will become service matters to be dealt with by the Tribunal in exercise of jurisdiction vested in it to deal with service matters. But if the said word 'except' is removed then summary court marital where the punishment is of dismissal or imprisonment for more than three months will be excluded from service matters



and accordingly shall be dealt with in exercise of appellate power granted by Section 15 of the Act. The Union of India is of the view that summary court martial where the punishment is of dismissal or imprisonment for more than three months, should be outside of the purview of service matters. It is also of the view that imprisonment for less than three months is outside the purview of the Tribunal. The way words have been couched, while giving definition of service matters, it does not appear that legislature understood the requirement of Union of India that imprisonment for less than three months should be outside the purview of the Tribunal.

The manner in which the words have been couched in the Statute, if underlined word 'except' is retained then where the punishment is of dismissal or imprisonment for more than three months, the same will form part of service matters and shall be dealt with in accordance with jurisdiction vested in the Tribunal by Section 14 of the Act; where as summary court martial where the punishment is less than three months shall be dealt with by the Tribunal in exercise of its appellate power under Section 15 of the Act, and in case, the word 'except' is removed summary court martial where the punishment is of dismissal or imprisonment for more than three months shall be dealt with by the Tribunal in exercise of its appellate jurisdiction vested by Section 15 of the Act.

We, therefore, feel that in order to make the Act in consonance with the understanding of Union of India as well as the legislature the underlined word 'except' is superfluous and the same should be removed. We, accordingly, do the same.



Statute. It shall be open to the appropriate authority to take appropriate steps in that regard."

[ Emphasis Supplied] 6
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