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Friday, October 23, 2015

Important decision on territorial jurisdiction by the Full Bench of the Armed Forces Tribunal convened at the Principal Bench

In an otherwise inconsequential period in military justice, a Full Bench of the Armed Forces Tribunal, headed by the Chairperson, has rendered an important decision on territorial jurisdiction.

The irony of it all is that ideally the decision was not at all required since the lynchpin rule itself is quite clear on the subject, but the Bench was forced into the question due to apparent obduracy of the Central Government in objecting to the subject time and again, and also some stray decisions rendered by different benches on the same topic taking a different view, notwithstanding the fact that the matter had been settled by Constitutional Courts.

Rule 6 of the Armed Forces Tribunal (Procedure) Rules, 2008, provides, inter alia, that a person can file his petition (Application) at a Bench where he is posted or was last posted or where the cause of action or part of cause of action had arisen.

Of course, there are very many cases wherein the Petitioner is residing at some other place while the part of cause of action or the whole cause of action lies somewhere else, and as per a plain reading of the rule, it is the Petitioner’s choice to opt for a bench. The same is also an established proposition of law since a Petitioner is dominus liits in a litigation initiated by him.

However, more often than not, there used to be opposition by the Central Government when defence personnel filed cases at benches under whose jurisdiction they were not residing but where the cause of action had arisen. For example, a Petitioner may be posted under the jurisdiction of the Chandigarh Bench but the rejection of his claim had occurred at the Ministry of Defence at Delhi, in such a situation, it is the choice of the Petitioner to either file his case at the Principal Bench, Delhi or Chandigarh Bench since he is the dominus litis and it is his option where to invoke the jurisdiction. Some Benches of the AFT however, agreeing with the objection of the Union of India, dismissed such petitions for the reason of lack of jurisdiction though the Rule was absolutely clearly on the subject and gave an option to the Petitioner. The disturbing aspect of the issue was also that in certain cases, the dismissal orders by certain benches had been overturned by the High Court but still the benches continued to defy the law laid down by the High Court by attempting artificial distinction of the same.

Faced with such contradictory judgements, the Chairperson of the AFT constituted a Full Bench which rendered its decision last month in an order running into 63 pages.

The Full Bench has correctly laid down the law and held that according to Rule 6, it is the Petitioner who would decide where he wants to file the case if the cause of action or part of cause of action is arising before a bench different than the one where he is residing. To put is sharply, it is the Petitioner’s choice and not the choice of the bench to dictate where he should be filing the case.

The Full Bench has also shattered the averment of the Government that Petitioners would indulge in “bench-hunting” by this kind of an option. The Full Bench has very rightly stated that if that be so, then the Union of India can also be condemned for “bench avoiding”. The Full Bench has also observed that once the view of a coordinate bench rejecting a petition on the aspect of jurisdiction was overruled by the High Court, the said bench should have refrained from taking the same view again.

The decision, besides rightly laying down the law on jurisdiction and clarifying it for future litigants, also throws light on another dangerous trend, and that is, of certain benches of the Tribunal taking views which are contrary to law laid down by Constitutional Courts, that is, by the High Courts and the Supreme Court. Once the view of a Tribunal is overruled by a High Court or the Supreme Court, then judicial propriety and also the principle of judicial certainty demand that such benches should bow down to the majesty of Constitutional Courts and refrain from letting their prestige dictate their judgements rather than law laid down by Constitutional Courts. Otherwise, not only are litigants burdened with expensive litigation to higher courts (the Supreme Court at present, which is practically inaccessible) but also result in chaos in the system wherein the law remains unsettled for litigants approaching different benches of the Tribunal though the law in reality may be well settled by Constitutional Courts. When a decision is overturned by a higher judicial forum, judges of the lower forum should abide by it and not take it as an affront by indulging in unethical rounds of artificial distinction to reiterate their own old view which stands overruled. This tendency needs to be nipped in the bud.

The Full Bench of the Tribunal however deserves utmost respect for taking the bull by the horns and settling this issue once and for all which was otherwise leading to uncertainty in the minds of litigants. 


bala said...

Obvious ,how the systems created for speedy justice puts knots and avoidable twists .yes! That 60 page judgement and avoidable indulgence of so many man hours at so many levels.
All these ( incl several other matters and issues of past in public view ), are negating the principle of motivation in the sphere of human resources of military in National interest .
If ,we review all that in past since 1973 ,it is visible even to soldiers at all levels and public .
Some blogs incl yours have only surfaced ,after 2006 with advent of internet and media coverage of some esms expressing loudly.
Only ,few issues are are taken notice of and many other issues remain neglected and disregarded by individuals , gps and leaders of concern of soldiers.Won't they brood over these neglects and disparities ???? as humans??.
MOD ,Govt and associated departments are simply compounding these disparities,anomalies both by inactions and deliberate actions of delay & denial at great wasteful resources of efforts ,time and money from both ; I.e ,Govt and soldiers incl retired.
It's time intellegent legal professionals like U ,judiciary and public think in terms of reducing these ever increasing disputes and multiplying legal cases .
Preventive law ,by taking care at the time of drafting and publication of all these - AFT act ,Govt orders ,policies and associated instructions.
I am amazed at all these inadiqacies and loop holes in judicial system created for speedy justice !
As on today in existing form we have to struggle with judicial processes ,rather than real issues.
Why should retired soldiers struggle for their retirement rights ( defered wage / pension ) ,even after retirement from active mily service with hardly any time of peace and tranquility ,wile in mily service. ????
These..... create great anguish ,distrust. Soldiers incl ordinary and intellegent officers cannot be blamed with harsh comments emnating from those not effected or victims of neglect .comments such as *misplaced contentions of discipline,*soldiers are greedy ,* soldiers will continue to fight and die ,* trade union approach ( when all other approaches fail to resolve ) as if soldiers are bonded labour like slaves ....... etc from certain quarters.
If u don't wish to publish as comment ,save it as e mail and apply u mind since it is so relevant to the idea of u blog.

kvg said...

Dear Sir,
Does this mean a petitioner can file at a bench convenient to him or is it still has to be the place of incident?

KV Girish