IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 WP(C).No. 20067 of 2011(G) ----------------------------------------- PETITIONER(S): ------------------------- A.B.A.KUMAR, EX.PETTY OFFICER (RADIO)(TELEGRAPHISTIST) OF INDIAN NAVY, AGED 43 YEARS, NO.169306 N, ARAMURIPARAMBIL HOUSE, VADUTHALA, ERNAKULAM, KERALA-682 023. BY ADV. SRI.JOHNSON GOMEZ SRI.S.BIJU (KIZHAKKANELA) RESPONDENT(S): --------------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI. 2. THE CHIEF OF NAVAL STAFF, INTEGRATED HEAD QUARTERS OF MINISTRY OF DEFENCE (NAVY), FOR PDOP/PDNAM/PDNT, NEW DELHI-110 011. 3. THE FLAG OFFICER, COMMANDING-IN-CHIEF, HEAD QUARTERS, WESTERN NAVAL COMMAND, SHAHID BHAGAT SINGH ROAD, MUMBAI-400 023. 4. THE FLAG OFFICER, COMMANDING-IN-CHIEF, HEAD QUARTERS, SOUTH NAVAL COMMAND, KOCHI-682 004. 5. THE COMMANDING OFFICER, INS VAJRABAHU, NAVAL DOCKYARD, MUMBAI-400 023. 6. THE COMMANDING OFFICER, INS SINDHUVIJAY, NAVAL DOCKYARD, MUMBAI-400 023. 7. THE COMMODORE, BUREAU OF SAILORS, CHEETAH CAMP, MANKHURD, MUMBAI-400 088. 8. THE COMMANDER ASWAN KORULA, MARITIME WELFARE CENTRE, NAVAL DOCKYARD, VISAKHAPATANAM-530 014. BY ADV.SRI.P.PARAMESWARAN NAIR, ASST.SOLICITOR GENERAL OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.20067/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PAGE CONTAINING THE ACKNOWLEDGMENT OF THE REPRESENTATION DATED 23/06/2008. P2 COPY OF THE REPRESENTATION DATED 1ST JULY 2008 SUBMITTED BY THE PETITIONER BEFORE THE DIVISIONAL OFFICER UNDER THE SIXTH RESPONDENT. P3 COPY OF THE MEDICAL CASE SUMMARY ON TRANSFER DATED 30TH JULY 2008. P4 COPY OF THE ACKNOWLEDGMENT DATED 14/10/2008 ISSUED BY THE DIVISIONAL OFFICER. P5 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE DIVISIONAL OFFICER UNDER THE FIFTH RESPONDENT. P6 COPY OF THE GENERAL REQUEST DATED 28/11/2008 P7 COPY OF THE REPRESENTATION DATED04/12/2008 SUBMITTED BY THE PETITIONER BEF THE THIRD RESPONDENT ON 05/12/2008. P8 COPY OF THE PROCEEDINGS WARRANT NO.11/2008 DATED 18/12/2008. P8(A) COPY OF THE LETTER NO.P10/7350/RTI/01/JUL 11 DATED 11JULY 11 ISSUED BY THE CAPTAIN, PUBLIC INFORMATION OFFICER, HQWNC,MUMBAI. P9 COPY OF THE ACKNOWLEDGMENT DATED 10/08/2010. P9(A) COPY OF THE REPRESENTATION SUBMITTED IN FURTHERANCE TO EXT.P9 REPRESENTATION. P10 COPY OF THE LETTER NO.203/21/169306-N DATED 20/10/2010 ISSUED BY THE EXECUTIVE OFFICER, INS VENDURUTHY. P11 COPY OF THE ORDER DATED 07/04/2011 PASSED BY THE ARMED FORCES TRIBUNAL, REGIONAL BENCH,KOCHI. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.20067 of 2011 ---------------------------------------- Dated 28th July, 2011 JUDGMENT The petitioner was a Petty Officer (Radio) (Telegraph) in the Indian Navy. He retired from service on 31.1.2011. After retirement from service he filed D No.53 of 2011 before the Armed Forces Tribunal, Regional Bench, Kochi challenging Ext.P8 order. In fact, Ext.P8 is an order whereby a warrant punishment was imposed on the petitioner. Ext.P8 is dated 18.12.2008. After considering the contentions raised by the petitioner the Armed Forces Tribunal passed Ext.P11 order dated 7.4.2011. It was held that going by section 3(o)iii of the Armed Forces Tribunal Act, 2007 an order passed in pursuance of Summary Trial and disposal would come within the purview of definition of `service matters' only if it culminated in the penalty of dismissal. Further it was held:- “Section 3(p) defines Summary disposal and trial. Warrant punishment is imposed in a summary trial. Hence, this Tribunal has no jurisdiction to hear and dispose of the matter. The applicant has got other remedies. Therefore, even if the defects noted by the Registry are cured, the application cannot be entertained. So, return the case records along with the fee, if any, paid by the applicant to him to pursue the remedies available to him. We make it clear that this order will not be a bar to the applicant to pursue the remedies available to him and to approach the WP(C).No.20067/2011 2 proper forum for redressal of his grievances. Return the O.A. along with records and fee, if any paid.” It is in the said circumstances that this writ petition has been filed. 2. I have heard the learned counsel for the petitioner and also the learned Assistant Solicitor General of India. 3. This writ petition has been filed mainly with the following prayers:- “a. To issue a writ of certiorari or any other appropriate writ, order or directions calling for the records leading to Ext.P8 and to quash the same. b. Issue a writ of mandamus or any other appropriate writ, order or direction, compelling and commanding the respondents one to seven to promote the petitioner to the post of Chief Petty Officer (Radio) Telegraph with effect from the date on which his promotion was due notwithstanding Ext.P8 order and to pay all consequential benefits and to re-engage the petitioner with effect from 01/02/2011 and to grant him all consequential promotions, increments and other consequential benefits. c. Issue a writ of mandamus or any other appropriate writ, order or direction, compelling and commanding the first and second respondent to take appropriate actions against the eighth respondent for ill-treatment of the petitioner, considering Exts.P1 and P2 representations in accordance with law within a time frame that this Hon'ble Court may consider reasonable.” Evidently, the challenge is against Ext.P8 dated 18.12.2008 which is an WP(C).No.20067/2011 3 order imposing warrant punishment on the petitioner. Obviously, even after the imposition of the said penalty he continued in service and retired from service only on 31.1.2011. Under prayer (a) the petitioner seeks quashing of Ext.P8. Under prayer (b) he seeks promotion ignoring Ext.P8 order. Under prayer (c) the petitioner seeks issuance of a writ of mandamus commanding the first and second respondents to take appropriate action against the 8th respondent for ill-treatment of the petitioner. It is thus obvious that essentially the challenge is against Ext.P8 order. Having suffered the punishment without any demur, that is, without making appropriate challenge against Ext.P8 order while he was in service, the petitioner cannot be permitted to challenge the same in these proceedings at this distance of time. That apart, a fact finding enquiry is required for an interference with Ext.P8, if at all it can be interfered with. This Court cannot under Article 226 of the Constitution of India make a fact finding enquiry to look into the correctness or otherwise of the allegations that ultimately led to the issuance of Ext.P8 order. Therefore, the petitioner is not justified in seeking a prayer for issuance of a writ of mandamus commanding the respondents to grant him promotion ignoring Ext.P8 order. The petitioner is also not justified in making a prayer for ordering for initiation of action against the 8th WP(C).No.20067/2011 4 respondent for the alleged conduct that led to the issuance of Ext.P8 order in the aforesaid circumstances. The petitioner contends that even without interfering with Ext.P8 his claim for promotion could have been considered in the light of Ext.P10. The said contention was raised relying on the following recital from Ext.P10:- “It is therefore requested that the sailor's case be considered favourably for his promotion and re- engagement notwithstanding the warrant punishment awarded to him.” It appears that such a recommendation was made by the Commander Executive Officer (AOL) to the 4th respondent. The further contention of the petitioner is that despite such a specific recommendation from the said officer for a favourable consideration for promotion and also for re- engagement notwithstanding the warrant punishment awarded to him that question was not actually considered by the said authority. The learned counsel for the petitioner submits that in view of the fact that the petitioner has already discharged from service on 31.1.2011, the 4th respondent may not be having competency to consider the said recommendation. In the said circumstances, it is prayed that the second respondent may be directed to consider the same. Therefore, without making any observation as to the merits of the contentions and claims of the petitioner this writ petition is disposed of with a direction WP(C).No.20067/2011 5 to the second respondent to consider the recommendation made by the Commander Executive Officer (AOL) in Ext.P10 and take appropriate action, in accordance with law. This shall be done expeditiously, at any rate, within a period of three months from the date of receipt of a copy of this judgment. No doubt, even a favourable order would enable the petitioner only for a re-fixation of his terminal benefits. Sd/- C.T.RAVIKUMAR Judge TKS