CW 12393/09 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.12393/09 Major Saurabh Saharan Versus Union of India & Ors. DATE OF ORDER : 14/10/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Ashok Gaur, for petitioner Mr. Sanjay Pareek, for respondents *** Instant petition has been filed by an Officer serving in Indian Army and presently working as Major in 61 Cavalry, Jaipur. His main grievance for filing of instant petition is that the procedure adopted by the respondents in holding court of inquiry is in violation of Chapter VI of Army Rules, 1954 and R.180 has been completely violated and despite list of defence witnesses being submitted by the petitioner to be recorded in court of inquiry, the respondents have failed to pass appropriate orders and the inquiry was further processed, which is causing great prejudice to him. CW 12393/09 [2] According to Counsel for petitioner what being observed in the court of inquiry will prima facie be examined by the competent authority for taking further action to be initiated against him. Counsel submits that out of 9 persons, who were named in the list of defence witnesses, only one has been examined so far and no reasonable opportunity has been afforded in recording statements of defence witnesses. Counsel further submits that at one point of time, he was arrested under the orders of Presiding Officer during the court of inquiry, which is wholly without jurisdiction and the allegation, which was levelled against him that he had misbehaved during the court of inquiry, is also factually incorrect and an after-thought to justify their action and even he has been threatened vide Ann.19 dt.14th September, 2009 that officer has been released from arrest without prejudice to re-arrest and will be put to under arrest only by issuance of warrant. Counsel further submits that action of the respondents are wholly unwarranted and contrary CW 12393/09 [3] to the Scheme of Army Rules and Sec.101 of the Army Act, 1950 has no application to the facts of instant case. Counsel for respondents raised preliminary objection that the Armed Forces Tribunal Act, 2007 came into force w.e.f. 15th June, 2008 and Armed Forces Tribunal has been established within the meaning of Clause (c) of Sec.3 of the Act vide notification dt.7th August, 2009 in Delhi and has started functioning. Counsel further submits that after establishment of Tribunal vide notification dt.7th August, 2009, in regard to all service matters covered U/s 3 (o) of the Act, 2007, remedy is available to an officer to file application before the Tribunal under the Act, 2007. Counsel further submits that in view of remedy available to the petitioner, this court would not like to examine U/Art.226 of the Constitution of India, more-so, when there is further provision. Sec.34 of the Act which clearly contemplates that pending matters before any Court including High Court, are to be transferred to the Tribunal after its establishment. CW 12393/09 [4] Counsel further submits that so far as power of arrest is concerned, Sec.101 of the Act clearly postulates that in the circumstances while initiating proceeding/ trial, action can be taken against officer even with regard to arrest, if contemplates. Counsel further submits that ample opportunity was afforded to the petitioner to record the statement of defence witnesses, but he has failed to record their statements despite opportunity being afforded. He further submits that even the finding, which will be arrived at finally in the court of inquiry, is not admissible in evidence as provided under R.182 of the Rules and opportunity is available to the petitioner even at the stage if the higher authority takes a decision either to initiate summary of evidence or any other proceedings, if initiated against him. Thus, no prejudice could be said to be caused to the petitioner in the facts of instant case. So far as preliminary objection raised about availability of remedy to the petitioner under the Act, 2007 is concerned, Counsel for CW 12393/09 [5] petitioner submits that since no Bench has so far been established and in terms of R.6 of the Armed Forces Tribunal [Procedure] Rules, 2008, application is to be submitted by the applicant before the Registrar of the Bench within whose jurisdiction applicant is posted and since he is presently posted in Jaipur and indisputably, no Bench has so far been established in State of Rajasthan, as such, only remedy available with the petitioner is to invoke jurisdiction U/Art.226 of the Constitution of India. It has not been disputed that after the Armed Forces Tribunal Act, 2007 came into force, Tribunal has been established in exercise of power conferred by Sec.4 of the Act, 2007 by the Central Government w.e.f. 10th August, 2009 within the meaning of Clause (c) of Sec.3 of the Act vide notification dt.7th August, 2009. . Clause (iv) of S.3(o) of the Act, 2007 covers all other matters which are not being specifically defined in S.3(o) except which excluded the jurisdiction of the Tribunal. CW 12393/09 [6] Grievance which the petitioner has raised in regard to procedure adopted in court of inquiry as alleged in the petition, in opinion of this court, is certainly a service matter covered U/s 3(o) of the Act, 2007 and after the Tribunal is being established as referred to U/s 3(c) of the Act in exercise of power U/s 4 of the Act, 2007. In opinion of this court, all such disputes relating to service matters covered U/s 3(o) of the Act, are to be adjudicated by Tribunal established under the Act, 2007. Submission made by Counsel for petitioner that since Bench has not been established as yet, as such, this court is having jurisdiction to entertain such applications U/Art.226 of the Constitution of India, is of no substance for the reason that after enforcement of Act, 2007, the Tribunal has been established and the application is to be filed before Tribunal and if later on Benches are established, the matters can be referred to the respective Benches holding jurisdiction of the matter. CW 12393/09 [7] But, it cannot be construed that in the absence of establishment of Bench, jurisdiction of the Tribunal under the Act, 2007 is barred and only remedy available with the petitioner is to invoke jurisdiction U/Art.226 of the Constitution of India and such like service disputes certainly lies with the Tribunal to be examined under the provisions of the Act, 2007. So far as submission made by Counsel for petitioner on merits is concerned, since I have expressed my opinion that adjudication has to take place by the Tribunal under the Act, 2007, this court refrains to express any opinion on merits, however, Counsel for petitioner has informed this court that the court of inquiry is at the verge of conclusion and at this stage, if he is not permitted to get statements of his defence witnesses recorded, prejudice may cause to him. As already observed, the petitioner has remedy to file application before Tribunal established vide its notification dt.7th August, 2009 and if the petitioner is advised to avail CW 12393/09 [8] remedy available under the Act, 2007, certainly it will take sometime and by that time, if any final observations are made in the court of inquiry that may cause prejudice to him. As an interim arrangement, this court considers it appropriate to direct the respondents not to pass final orders in the court of inquiry and recommendations may be kept pending for the period of three weeks upto 9th November, 2009. Petitioner will be at liberty to avail remedy as observed supra by filing application alongwith application for interim relief before the Tribunal, if so advised. With the above directions/observations, petition stands disposed of. [AJAY RASTOGI], J. FRBOHRA 12393CW09 14-10-BOHRA.doc