Sr. No. 19 v. UNION OF INDIA & Ors.

two sons namely Jahad Bin Sajad and Firhad Bin Sajad were born and that said Mst. Jayda Bano died on 14th July 2005, whereafter the petitioner herein married respondent 5 on 09.05.2009, who lodged a claim for maintenance allowance against the petitioner herein before Station Headquarter, Tangdhar on 07.07.2015 alleging therein that the petitioner is not providing her any financial help and to her minor child, whereupon an attempt of amicable settlement was undertaken by the Commanding Officer which did not, however, yield any results whereupon an enquiry was got conducted through village Sarpanch Arif Hameed I attest to the accuracy and authenticity of this document

07.08.2024 OWP 1079/2016 and Chowkidar who stated the petitioner herein has divorced the respondent 5 herein, however, upon asking, the petitioner herein failed to confirm the same inasmuch as did not produce any divorce decree or talaknama a result whereof the competent authority passed the order under challenge dated 03.05.2016 in order to provide respondent 5 herein and her child the financial assistance. It is also being averred in the reply filed by the respondents 1 to 4 that the controversy raised in the petition under reply constitutes a “service matter” under and in terms of the Armed Forces Tribunal Act, 2007 and that as such under the said Act such service dispute is amenable to the adjudication by the Tribunal.

6. In the reply filed by the private respondent 5, it is being admitted that the answering respondent is the second wife of the petitioner herein having married to the petitioner after death of his first wife. It is being further stated that the petitioner herein being liable to maintain the answering respondent and the child born from their marriage failed to maintain them, whereupon the respondent 5 approached respondent 4 with a complaint against the petitioner herein, whereafter the respondent 4 in terms of order dated 03.05.2016 accorded sanction to the grant of maintenance payable by the petitioner herein to her and the minor child from the pay of the petitioner.

7. It is being further stated that the said so called divorce claimed to have been pronounced by the petitioner herein against her was never pronounced in accordance with the law and that the answering respondent 5 being the legally wedded wife of the petitioner herein Arif Hameed I attest to the accuracy and authenticity of this document

07.08.2024 OWP 1079/2016 has always been willing to resume the matrimonial tie with the petitioner herein and discharge her matrimonial obligations. Heard learned counsel for the parties and perused the record.

8. Learned counsel for the petitioner while making his submissions reiterated the contentions raised and grounds urged in the petition and would contend that the impugned order has been issued by the respondent 4 in violation of the provisions of the Army Act 1950 read with AO 2/2001. On the contrary, the appearing counsel for the official respondents 1 to 4 herein would contend that the petition is not maintainable in view of the provisions of the Armed Forces Tribunal Act 2007, in that, the issue raised by the petitioner in the instant petition qua the Penal Deductions contained in the impugned order dated 03.05.2016 constitutes a “service dispute” within the meaning of Section 3 (o) of the said Act of 2007 amenable to the adjudication of the Tribunal in terms of Section 14 & 34 of the said Act. The counsel for the respondent 5 herein adopted the pleas and submissions raised and made by the counsel for the respondents 1 to 4 herein.

9. Having regard to the aforesaid plea of jurisdiction raised by the appearing counsel for the respondents, it is deemed appropriate to address the said plea in the first instance.

10. Before addressing to the said plea, it would be appropriate to refer to Section 91 (i) of the Army Act 1950 and Section 3 Clause (o) of the Act of 2007, which reads as under: - 91 (i) the prescribed officer for the purposes of clause (d) of Section 90 and clause (i) of Section 91 shall be the Chief of the Army Staff or the officer commanding the Army. Arif Hameed I attest to the accuracy and authenticity of this document

07.08.2024 OWP 1079/2016 (o) "service matters", in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950), mean all matters relating to the conditions of their service and shall include- (i) remuneration (including allowances), pension and other retirement benefits; (ii) tenure, including commission, appointment, enrolment, probation, confirmation, seniority, training, promotion, reversion. premature redirect, superannuation, termination of service and penal deductions; (iii) Summary disposal and trials where the punishment of dismissal is awarded; (n) any other matter, whatsoever, but shall not include matters relating to---- (i) order issued under Section 18 of the Army Act, 1950 (46 of 1950), sub-section (1) of Section 15 of the Navy Act, 1957 (62 of 1957) and Section 18 of the Air Force Act, 1950 (45 of 1950); and (ii) transfers and postings including the change of place or unit on posting whether individually or as a part of unit. formation or ship in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950); (iii) leave of any kind; (iv) summary court martial except where the punishment is of dismissal or imprisonment for more than three months;” A reference to Section 14 also becomes imperative which respectively read as under: - “14. Jurisdiction, powers and authority in service matters.-(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 immediately before that day by all courts (except the Supreme Court or a Arif Hameed I attest to the accuracy and authenticity of this document

07.08.2024 OWP 1079/2016 High Court exercising jurisdiction under Articles 226 and 227 of the Constitution) in relation to all service matters. (2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed. (3) On receipt of an application relating to service matters, the Tribunal shall, if satisfied after due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the Tribunal is not so satisfied, it may dismiss the application after recording its reasons in writing. (4) 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 (5 of 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 Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document 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. (5) The Tribunal shall decide both questions of law and facts that may be raised before it.” Arif Hameed I attest to the accuracy and authenticity of this document

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11. A bare perusal of the aforesaid provisions would manifestly suggest that the matter of penal deductions imposed upon the petitioner under the provisions of Section 91 Clause (I) of the Army Act is a “service matter” within the definition of Section 3 (o) of the Act of 2007 amenable to the adjudication of Tribunal, more so, in view of the plea of divorce raised by the petitioner and denied by the respondent 5 herein which as such constitutes a disputed questions of fact required to be addressed to by the Tribunal under the Act of 2007 in view of the judgment of the Apex Court passed in case titled as “Union of India & Ors. Vs. Major General Shri Kant Sharma” reported in 2015 (6) SCC page 773 wherein it has been held that the jurisdiction of Armed Forces Tribunal is in substitution of Civil Court and the High Court.

12. Under the aforesaid circumstances, this Court is not inclined to exercise discretionary extraordinary writ jurisdiction in the matter.

13. Viewed thus, the petition is accordingly dismissed. (JAVED IQBAL WANI) JUDGE SRINAGAR 24.07.2024 ARIF Arif Hameed I attest to the accuracy and authenticity of this document

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