THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO W.P.No.29862 of 2010 ORDER: ( PER GM,J) The petitioner assails the legality and validity of the order in T.A.No.150 of 2010 dated 01.09.2010 on the file of the Armed Forces Tribunal, Regional Bench, Chennai whereunder his claim was not adjudicated and was dismissed as withdrawn with liberty to him to challenge Para 22 (f) (Section II) of Naval Instruction (amended) 1/96, (Naval Instruction 77/63 as amended by 32/67 and 1/96, corrigendum 5/98) within a period of three months. Learned counsel for the petitioner contends that because of the wrong advice given by the counsel, the petitioner cannot be put to inconvenience and hardship. He further stated that it has to be decided whether Para 22 (f) of Naval Instruction is a policy decision and whether the petitioner is entitled for promotion or not. According to him, some procedure is prescribed under Para 22 (f) (Section II) of Naval Instruction (amended) 1/96, (Naval Instruction 77/63 as amended by 32/67 and 1/96, corrigendum 5/98). We are not inclined to go into the merits or demerits of the case since this Court lacks jurisdiction in view of the fact that as per Section 14(5) of the Armed Forces Tribunal Act, 2007 (for short “the Act”), the Tribunal shall decide both questions of law and facts that may be raised before it. Section 14 (4) of the Act reads as under: “For the purpose of adjudicating an application, the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, while trying a suit in respect of the following matters, namely – (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of section 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or copy of such record or document from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing an application for default, or deciding it ex parte; (h) setting aside any order of dismissal of any application for default or any order passed by it ex parte; and (i) any other matter which may be prescribed by the Central Government.” Section 15 of the Act reads as follows: “15(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) The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it considers necessary: Provided that no accused person shall be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. (4) the Tribunal shall allow an appeal against conviction by a court-martial where— (a) the finding of the court martial is legally not sustainable due to any reason whatsoever; or (b) the finding involves wrong decision on a question of law; or (c) there was a material irregularity in the course of the trial resulting in miscarriage of justice, but, in any other case, may dismiss the appeal where the Tribunal considers that no miscarriage of justice is likely to be caused or has actually resulted to the appellant: Provided that no order dismissing the appeal by the Tribunal shall be passed unless such order is made after recording reasons therefor in writing. (5) The Tribunal may allow an appeal against conviction, and pass appropriate order thereon. (6) Notwithstanding anything contained in the foregoing provisions of this section, the Tribunal shall have the power to – (a) substitute for the findings of the court martial, a finding of guilty for any other offence for which the offender could have been lawfully found guilty by the court martial and pass a sentence afresh for the offence specified or involved in such findings under the provisions of the Army Act, 1950 or the Navy Act, 1957 or the Air Force Act, 1950, as the case may be; or (b) if sentence is found to be excessive, illegal or unjust, the Tribunal may – (i) remit the whole or any part of the sentence, with or without conditions; (ii) mitigate the punishment awarded; (iii) commute such punishment to any lesser punishment or punishments mentioned in the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950, as the case may be; (c) enhance the sentence awarded by a court martial; Provided that no such sentence shall be enhanced unless the appellant has been given an opportunity of being heard; (d) release the appellant, if sentenced to imprisonment, on parole with or without conditions; (e) suspend a sentence of imprisonment; (f) pass any other order as it may think appropriate. (7) Notwithstanding any other provisions in this Act, for the purposes of this section, the Tribunal shall be deemed to be a criminal court for the purposes of sections 175, 178, 179, 180, 193, 195, 196 or 228 of the Indian Penal Code and Chapter XXVI of the Code of Criminal Procedure, 1973.” Under Section 14 (5) of the Act, the Tribunal can decide both questions of law and facts. Since the matter relates to the service conditions of an employee of Armed Forces, this Court lacks jurisdiction under Article 226 of the Constitution of India as the same is vested with the Tribunal to deal with such matters. When a special Tribunal is constituted for the purpose, it is for the said Tribunal to adjudicate both questions of law and fact that may be raised before it and decide whether it has got jurisdiction and if it comes to the conclusion that it has got jurisdiction, it shall decide the matter on merits. The writ petition is accordingly dismissed. No costs. GHULAM MOHAMMED,J N.R.L.NAGESWARA RAO,J Dt.23.02.2011 lvl THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO W.P.No.29862 of 2010 Dt. 23.02.2011