IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933 OP(AFT).No. 1294 of 2011 ---------------------------------- OA.144/2010 of ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI .................... PETITIONER: NO.171727R H.J.SINGH, SPO, 42 YEARS, DIVING SCHOOL C/O.FLEET MAIL OFFICE, COCHIN-682 004. BY ADV. SRI.N.D.JOY SMT.RANI JOY RESPONDENTS: * 1. THE UNION OF INDIA, REP. BY SHRI.A.K.ANTONY, THE HONOURABLE MINISTER FOR DEFENCE, NEW DELHI-110 011. 2. THE CHIEF OF THE NAVAL STAFF, REP. BY ADMIRAL NIRMAL VERMA NAVAL HEADQUARTERS, NEW DELHI-110 011. 3. THE COMMANDING OFFICER, INDIAN NAVAL HOSPITAL SHIP (INHS) SANJEEVANI, COCHIN-682 004. 4. THE OFFICER-IN-CHARGE, DIVING SCHOOL C/O.FLEET MAIL OFFICE, COCHIN-682 004. 5. THE COMMODORE, BUREAU OF SAILORS, CHEETHA CAMP, MANKHURD, MUMBAI-400 088. 6. CAPT.A.A.PAWAR, OFFICE OF THE PRINCIPAL DIRECTOR OF PERSONAL (MEDICAL) MEDICAL DIRECTORATE, NAVAL HEADQUARTERS, NEW DELHI-11. *AS PER ORDER DT.19.7.2011 IN UNNUMBERED IA OF 2011 THE FIRST RESPONDENT IS CORRECTED AS UNION OF INDIA REP. BY SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. BY ADV. SRI.P.PARAMESWARAN NAIR, ASG OF INDIA THIS OP (ARMED FORCES TRIBUNAL - Art.227) HAVING COME UP FOR ADMISSION ON 01/04/2011, THE COURT ON THE SAME DAY DELIVEREDTHE FOLLOWING: A.K.Basheer & P.Q.Barkath Ali, JJ. --------------------------------------------------- O.P.(AFT)No.1294 of 2011 --------------------------------------------------- Dated this the 1st day of April, 2011 JUDGMENT Basheer, J. Petitioner is now serving as Stores Petty Officer (SPO) under the fourth respondent in the Indian Navy. Petitioner was imposed with punishment of “Deprivation of Good Conduct Badge” by the disciplinary authority. 2. It is on record that petitioner has preferred Exhibit P6 statutory appeal on August 20, 2010 before the Appellate Authority, as provided under Section 23 of Navy Act. However, according to the petitioner, the Appellate Authority did not bother to dispose of the appeal and he was kept on tenter hooks. He is due to be released from service on September 30, 2011. It was in the above circumstances that the petitioner had approached the Armed Forces Tribunal, Kochi under Section 14 of the Armed Forces Act, 2007 praying that he may be permitted to continue in service in the Navy by setting aside Annexure-A1 Warrant Punishment Order dated 27.1.2009 and Annexure-A11 OPAFT 1294/2011 2 Release Serial Order dated 4.8.2010 with retrospective effect and also to grant consequential service benefits. 3. The Tribunal, after considering the rival contentions of the parties, held that it had no jurisdiction to interfere with the punishment imposed by the authority on the petitioner and accordingly dismissed the original application. The said order is under challenge in this original petition filed under Articles 226 and 227 of the Constitution of India. 4. Sri.N.D.Joy, learned counsel, who appears for the petitioner, submits that the finding entered by the Tribunal on the question of jurisdiction is manifestly illegal and untenable. He has also raised various other contentions touching upon the sustainability of the order of punishment, more particularly, the tenability of the charge levelled against him. He has invited our attention to the so called arbitrary and high handed action of the authorities in ignoring his several requests to make available to him the relevant records pertaining to the disciplinary proceedings initiated against him. He points out that petitioner had filed more than one application before the Tribunal praying for a direction to the respondents to make available the relevant OPAFT 1294/2011 3 records before the Tribunal. But, those records never saw the light of the day. We do not propose to deal with that issue at this stage in view of the order that we propose to pass. 5. Petitioner has primarily challenged before the Tribunal the punishment imposed on him in January 2009, apart from the order of his release from service. While assailing the above orders, he raised various contentions touching upon their justifiability and sustainability. The case of the petitioner appears to be that he is a victim of circumstances and that he never deserved such a punishment and that too for such a trivial charge. He has a further case that his Commanding Officer was bent upon wreaking vengeance on him. We deem it not necessary to delve deeper into the above aspect of the matter since, admittedly, petitioner has preferred a statutory appeal against the order of punishment of Deprivation of Good Conduct Badge. It is true that petitioner had not highlighted the fact that his appeal had not been considered by the authority concerned so far. Learned counsel points out that appeal was filed in August 2010. The appellate Authority did not show even the courtesy of acknowledging receipt of the appeal. OPAFT 1294/2011 4 6. Sri.Parameswaran Nair, learned Assistant Solicitor General, submits that the appeal is now pending consideration before the Navy Chief and that a decision on the appeal will be taken without any further delay. He submits that Respondent No.2, the Chief of the Naval Staff, will hear the petitioner if he so desires and take a decision in accordance with law on strict conformity with all principles of natural justice. The above submission is recorded. 7. Though learned counsel for the petitioner has persisted with his contention that the punishment imposed on the petitioner is disproportionate to the charge levelled against him and also that the so called charge is fabricated and ill motivated, we refrain from making any observation on this contention for the obvious reason that the appeal preferred by the petitioner against the order of punishment is now pending consideration before the statutory Appellate Authority. We make it clear that it will be open to the petitioner to urge all his contentions before the Appellate Authority, which, we have no reason to assume, will not look into the entire aspects of the matter with an open mind. OPAFT 1294/2011 5 8. In view of the above facts and circumstances, we do not propose to consider whether the finding entered by the Tribunal on the question of jurisdiction is correct or not. We make it clear that the Appellate Authority shall take a decision on the appeal untrammeled by any of the observations made or opinion expressed by the Tribunal in the impugned order. Original petition is disposed of reserving the right of the petitioner to raise all his contentions before the Appellate Authority. The Appellate Authority shall afford sufficient opportunity to the petitioner to be heard. Petitioner shall also be entitled to produce all necessary documents before the Appellate Authority, if so advised. The Appellate Authority shall issue notice of hearing to the petitioner well in advance and shall dispose of the appeal, after hearing the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. (A.K.Basheer, Judge) (P.Q.Barkath Ali, Judge) tkv