CMs No.11501-02 of 2010 & CWP No.7937 of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CMs No.11501-02 of 2010 & CWP No.7937 of 1999 Date of decision: 20.09.2010 No.1466237 L/NK Kabal Singh ....Petitioner Versus Union of India and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Ms. Monika Jalota, Advocate, for the petitioner. ***** VINOD K. SHARMA, J (ORAL) CM No.11501 of 2010 Notice. Mr. S.K. Sharma, learned Central Government Standing Counsel, accepts notice on behalf of respondents No.1 to 3. This application under Section 5 of the Limitation Act, has been moved for condoning the delay of 720 days in filing the application. It has been averred in the application, that the case was listed for regular hearing on 30.7.2008. It has also been pleaded in the application, that the jurisdiction to entertain and try the dispute raised is now vested in the Armed Forces Tribunal. The applicant-petitioner had filed a civil miscellaneous application for transfer of the case to the Armed Forces Tribunal. The application was filed on 20.7.2010. Though, the application was passed CMs No.11501-02 of 2010 & CWP No.7937 of 1999 -2- by the office and the number allotted, it was not listed along with the writ when it came up for hearing. On 9.8.2010, the application was found in the return folder of the counsel with the remarks, that the main writ petition stood decided on 30.7.2008. It is also pleaded, that case file was inspected on 16.8.2010, and the application for restoration of the case was filed immediately thereafter. The ground pleaded is, that delay occurred due to bona fide mistake, as the counsel for the applicant-petitioner was not in know of the order passed by this Court. Application is supported by an affidavit of the Advocate representing the applicant-petitioner. The application is not opposed. In view of the averments made in the application, CM is allowed, delay of 720 days in filing the application for restoration of the case, is condoned. CM No.11502 of 2010 This is an application under Order 9 Rule 4 read with Section 151 of the Code of Civil Procedure, for recalling the order dated 30.7.2008. Notice is accepted by Mr. S.K. Sharma, learned Central Government Standing Counsel. It has been pleaded in the application, that writ petition was admitted on 15.1.2001, and the present counsel was engaged on 21.1.2008. The writ petition was attached with other connected cases. When the case came up for hearing, the learned counsel, who was CMs No.11501-02 of 2010 & CWP No.7937 of 1999 -3- engaged by the petitioner at the time of filing the writ petition, pleaded no instructions on the ground, that the brief stood withdrawn from him. The writ petition was dismissed for non-prosecution. It has been averred in the application, that the petitioner could not appear in the case, as he was expecting that the case will be transferred to the Armed Forces Tribunal, as the jurisdiction vested with the Tribunal, and not with this Court after constitution of the Armed Forces Tribunal. The sufficient cause pleaded for setting aside the ex parte order is, that it was for want of knowledge of hearing that the petitioner could not appear in the case. The application is supported by an affidavit of the Advocate representing the applicant-petitioner. Learned counsel appearing on behalf of the Union of India does not oppose this application. In view of the averments made in the application, CM is allowed, order dated 30.7.2008 is recalled and the writ petition is restored to its original number. CWP No.7937 of 1999 The Petitioner invoked the writ jurisdiction of this Court under Articles 226/227 of the Constitution of India for issuance of a writ of certiorari for quashing the order of discharge from service Annexure P-3 and order P-6 rejecting his representation and for issuance of a writ of mandamus, or any other writ, order or direction, directing the respondents to reinstate the petitioner in service without any break in service with all the consequential benefits. Prayer has also been made CMs No.11501-02 of 2010 & CWP No.7937 of 1999 -4- for directing the respondents to pay compensation to the petitioner for the period detained in prison illegally. When this case came up for hearing before this court, counsel for the petitioner referred to Section 34 of the Armed Forces Tribunal Act, 2007 (for short “the Act”) to plead that the case is required to be transferred to the Armed Forces Tribunal (hereinafter called “Tribunal”). Section 34 of the Act reads as under:- “Transfer of pending cases.-(1) Every suit,or other proceedings pending before any court including a High Court or other authority immediately before the date of establishment of the Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen after such establishment within the jurisdiction of such Tribunal, stand transferred on that date to such Tribunal. (2). Where any suit, or other proceeding stands transferred from any court including a High Court or other authority to the Tribunal under sub-section (1),- (a) the court or other authority shall, as soon as may be, after such transfer,forward the records of such suit, or other proceeding to the Tribunal; (b) the Tribunal may, on receipt of such records, proceed to deal with such suit, or other proceeding, so far as may be, in the same manner as in the case of an application made under sub-section (2) of section 14 from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.” Rule 6 of the Armed Forces Tribunal (Procedure) Rules, 2008, which regulates the place of filing application before the Tribunal, reads as under:- “Place of filing application.-(1) An application shall ordinarily be filed by the applicant with the Registrar of the Bench within whose jurisdiction- (i) the applicant is posted for the time being, or was last posted or attached; or (ii) where the cause of action, wholly or in part, has CMs No.11501-02 of 2010 & CWP No.7937 of 1999 -5- arisen: Provided that with the leave of the Chairperson the application may be filed with the Registrar of the Principal Bench and subject to the orders under section 14 or section 15 of the Act, such application shall be heard and disposed of by the Bench which has jurisdiction over the matter. (2) Notwithstanding anything contained in subrule (1), a person who has ceased to be in service by reason of his retirement, dismissal, discharge, cashiering, release, removal, resignation or termination of service may, at his option, file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application.” Thus, as per Rule 6(2) of the Rules referred to above, the persons, who have ceased to be in service by reasons of retirement, dismissal, discharge, cashiering, release, removal, resignation or termination, can file application before Registrar of the Bench of the Tribunal within whose jurisdiction such persons are ordinarily residing. Accordingly, the petitioner would be entitled to invoke the jurisdiction of the Tribunal at Chandimandir as he is resident of place under the jurisdiction of the Tribunal at Chandimandir. In view of the above legal provisions, the case is transferred to the Tribunal constituted under the Act. The Registry is directed to transfer the records of the present petition to the Tribunal at Chandimandir. Disposed of accordingly. The parties through their counsel are directed to appear before the Tribunal on 25.10.2010. (Vinod K. Sharma) Judge September 20, 2010 R.S.