# Ls Gi (S) Abhishek Kumar v. Union of India & Ors

- **Citation:** (2023) 12 ILRA 351
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-30
- **Case number:** Writ-A No. 8782 of 2022
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ls-gi-s-abhishek-kumar-v-union-of-india-ors-49577
- **Pages:** 18

## Headnote

Armed Forces Tribunal Act, 2007 - Section
3(o) - "Service Matters" - Jurisdiction of
Armed
Forces
Tribunal
(AFT)
-
Punishment of reduction in rank and
deprivation
of
good
conduct
badges
awarded in summary trial - Whether
amenable to AFT jurisdiction.
The petitioner, a Petty Officer in the Indian
Navy, was subjected to a summary trial under
Sections 68 and 77(2) of the Navy Act, 1957,
and punished with reduction in rank and
deprivation of good conduct badges for
unauthorized
possession
of
liquor.
His
application before the Armed Forces Tribunal
(AFT) challenging this punishment and his
subsequent discharge was dismissed as not
maintainable, with the Tribunal holding that
such a punishment awarded in a summary trial
is not a "service matter" under Section 3(o)(ii)
read with clause (iii) of the Armed Forces
Tribunal Act, 2007.

Held: The High Court observed that Section
3(o) of the Act, 2007, defining "service
matters," is illustrative and includes "all matters
relating to the conditions of their service." It
specifically mentions "reversion" under Section
3(o)(ii) and uses the expansive phrase "any
other
matter,
whatsoever"
under
Section
3(o)(iv). The Court noted that the Tribunal
352 INDIAN LAW REPORTS ALLAHABAD SERIES
erroneously relied on the exception in Section
3(o)(iv) regarding summary court-martial, which
excludes jurisdiction only where the punishment
is not dismissal or imprisonment for more than
three
months.
The
High
Court
further
considered the argument that "reduction in
rank" is akin to "reversion" and therefore falls
within the AFT's jurisdiction, citing Supreme
Court and other High Court precedents. The
Court found the Tribunal's interpretation of
Section 3(o) to be flawed, particularly its
conclusion that only dismissal or imprisonment
for more than three months in summary trials
constitutes a service matter. The matter
requires a broader interpretation of "service
matters" to include punishments like reduction
in rank, which affect an individual's service
career.

Case Law Discussed:

## Text

_Characters 0–39,974 of 60,468. This is a partial read: ask again with offset=39974 for what follows._

12 All. Ls Gi (S) Abhishek Kumar Vs. Union of India & Ors.
351
Assistant Engineers/Executive Engineers
are
not
entitled
for
upgradation
of
Rs.8,700/- Grade Pay. In this regard, it may
be apt to mention here that a Co-ordinate
Bench of this Court has already allowed the
writ petition No. 578 (SB) of 2012,
Birendra Kumar Maurya and another v.
State of U.P. and others and quashed the
aforesaid
Government
Order
dated
13.12.2011.

(25) Neither the learned Additional
Chief Standing Counsel nor the learned
Counsel for the respondent/petitioner has
brought on record to show that the
aforesaid order has been challenged by any
aggrieved party. Once the discrimination
meted
out
to
the
respondent
was
disapproved by this Court as well as by the
Apex Court, no scope has been left for us
to take a different view.

(26) Considering all these aspects of
the matter, we are of the firm opinion that
the State is merely seeking to re-open a
decided matter through the instant Appeal,
although neither any illegality nor infirmity
has been pointed by the learned Additional
Chief Standing Counsel either in the order
passed in the bunch of writ petitions or on
the review petition.

(27) It is made clear that since it is a
decided matter, only relevant facts and law
have been considered.

(28) For all the reasons stated above,
the intra-Court appeal filed against the
impugned orders passed by the learned
Single Judge lacks merit and is hereby
dismissed.

(29) There shall be no orders as to
costs.
----------
(2023) 12 ILRA 351
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.11.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 8782 of 2022

Ls Gi (S) Abhishek Kumar ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Manish Kumar Rai, Indrajeet Shukla

Counsel for the Respondents:
A.S.G.I., Devrishi Kumar

Armed Forces Tribunal Act, 2007 - Section
3(o) - "Service Matters" - Jurisdiction of
Armed
Forces
Tribunal
(AFT)
-
Punishment of reduction in rank and
deprivation
of
good
conduct
badges
awarded in summary trial - Whether
amenable to AFT jurisdiction.
The petitioner, a Petty Officer in the Indian
Navy, was subjected to a summary trial under
Sections 68 and 77(2) of the Navy Act, 1957,
and punished with reduction in rank and
deprivation of good conduct badges for
unauthorized
possession
of
liquor.
His
application before the Armed Forces Tribunal
(AFT) challenging this punishment and his
subsequent discharge was dismissed as not
maintainable, with the Tribunal holding that
such a punishment awarded in a summary trial
is not a "service matter" under Section 3(o)(ii)
read with clause (iii) of the Armed Forces
Tribunal Act, 2007.

Held: The High Court observed that Section
3(o) of the Act, 2007, defining "service
matters," is illustrative and includes "all matters
relating to the conditions of their service." It
specifically mentions "reversion" under Section
3(o)(ii) and uses the expansive phrase "any
other
matter,
whatsoever"
under
Section
3(o)(iv). The Court noted that the Tribunal
352 INDIAN LAW REPORTS ALLAHABAD SERIES
erroneously relied on the exception in Section
3(o)(iv) regarding summary court-martial, which
excludes jurisdiction only where the punishment
is not dismissal or imprisonment for more than
three
months.
The
High
Court
further
considered the argument that "reduction in
rank" is akin to "reversion" and therefore falls
within the AFT's jurisdiction, citing Supreme
Court and other High Court precedents. The
Court found the Tribunal's interpretation of
Section 3(o) to be flawed, particularly its
conclusion that only dismissal or imprisonment
for more than three months in summary trials
constitutes a service matter. The matter
requires a broader interpretation of "service
matters" to include punishments like reduction
in rank, which affect an individual's service
career.

Case Law Discussed:

1. St. of U.P. & ors. Vs Sughar Singh: AIR 1974
SC 423

2. Major Kunwar Ambreshwar Singh Vs The
U.O.I., Delhi: (2014) 5 All LJ 156 : 2014 SCC
OnLine All 15134

3. Dfr Shatrughan Singh Tomar Vs U.O.I. & ors.:
O.A. No. 665 of 2020, decided on 07.04.2021

4. N.K. Santosh Lohar Vs U.O.I. & ors.: CWP No.
3118-2023, decided on 03.10.2023 (P&H High
Court)

5. Ex. Havildar Birendra Singh Negi Vs U.O.I. &
ors.: 2012 (18) S.C.T. 846 (Uttarakhand High
Court)

(Delivered by Hon'ble Om Prakash Shukla, J.)

This judgment has been divided into
following sections to facilitate analysis :-

INDEX
PAGE NO
A
Introduction
1
B
Factual Matrix
2
C
Submissions
5
D
Issues
11
E
Rules & Article 11
F
Analysis
&
Findings
18
G. Conclusion
32

A. INTRODUCTION

(1) The petitioner has preferred the
present writ petition under Article 226 of
the Constitution of India for quashing the
following two judgments/orders of the
learned Armed Forces Tribunal, Regional
Bench at Lucknow (hereinafter referred to
as 'Tribunal') :-

I. Judgment/Order dated 10.08.2022,
whereby Original Application No. 276 of
2022 filed by the petitioner under Section
14 of the Armed Forces Tribunal Act, 2007
(hereinafter referred to as "Act, 2007")
against the order of summary trial dated
23.02.2021 under Sections 60 (d), 68 and
77 (2) of the Navy Act, 1957, by which the
petitioner was held guilty and sentenced to
reduction in rank and to suffer deprivation
of badges of good conduct, has been
dismissed as being not maintainable on the
ground that the said order of summary trial
dated 23.02.2021 is not a "service matter"
in view of Section 3 (o) (ii) read with
clause (iii) of the Act, 2007.
II.
Judgment/Order
dated
06.10.2022,
whereby Review Application No. 86 of
2022, seeking to review the aforesaid
judgment/order dated 10.08.2022 passed in
Original Application No. 276 of 2022, has
been dismissed."

B. FACTUAL MATRIX

(2) The petitioner was enrolled in
Indian Navy on 01.02.2007. He was
12 All. Ls Gi (S) Abhishek Kumar Vs. Union of India & Ors.
353
promoted to the post of Petty Officer (GS)
on 01.03.2017 and while continuing to
work on the said post in Indian Navy, a
summary trial under Sections 68 and 77 (2)
of the Navy Act, 1957 was conducted
against the petitioner for the alleged
charges that unauthorized quantity of
eighteen liquor bottles, which was said to
be purchased by the petitioner from
Military Canteen at Visakhapatnam, was
found in his possession, wherein the
petitioner took a stand that these liquor
bottles were purchased for the purposes of
consumption
in
upcoming
marriage
function of his brother-in-law. In the said
summary trial concluded vide order dated
23.02.2021, the petitioner was punished
with reduction in rank and deprivation of
good conduct badges. Aggrieved by the
order dated 23.02.2021, the petitioner
preferred a representation dated 09.03.2021
under Section 23 of the Navy Act, 1957,
however,
during
pendency
of
this
representation,
the
petitioner
was
discharged from service vide order dated
02.08.2021 after completion of initial
engagement of 15 years of service, even
though the petitioner was willing to extend
his engagement of service.

(3) Aggrieved by the aforesaid order
of
punishment
dated
23.02.2021
for
"reduction in rank and deprivation of good
conduct badges" passed in summary trial as
well as order of discharge/release dated
02.08.2021,
the
petitioner
instituted
Original Application No. 276 of 2022 under
Section 14 of the Armed Forces Tribunal
Act, 2007 (hereinafter referred to as 'Act,
2007') with the following prayers :-

"A.
To
quash
the
punishments
awarded to the applicant vide Punishment
Warrant no.1/2021 dated 23.02.2021 (as
contained
in
Annexure
1)
being
disproportionate in terms of Hon'ble
Supreme Court Order in "Bhagat Ram and
Ranjit Thakur case".

B. To set aside the Order/Authority of
Release no. LRDO I:01/2022 PART 1 SL
684 dated 02/08/2021 passed by the
respondents, as provided in discharge
certificate no. 76318 (as Contained in
Annexure 2) of applicant, of discharge
from service of applicant and to direct the
respondents to reinstate the applicant in the
service with all consequential benefits, as
his re-engagement Performa was duly
completed and recommended by the then
Commanding Officer, by awarding some
minor punishment for the procedural lapse.
C. Any other relief as considered deemed
fit and proper in the circumstances by this
Hon'ble Tribunal be awarded in favour of
the applicant."

(4) When we peruse the prayer clause
of the Original Application, what we find is
that the petitioner had raised two basic
grievances in the Original Application. The
first grievance raised by the petitioner
before the Tribunal was in relation to
punishment
awarded
to him
in
the
summary trial, in respect of which the
petitioner is alleged to have moved a
statutory representation, which is still
pending. The second grievance raised by
the petitioner before the Tribunal pertains
to his discharge from service even though
his re-engagement performa was duly
completed and recommended by the then
Commanding Officer, by awarding some
minor punishment for the procedural lapse.

(5) Vide order dated 05.04.2022, the
original application was admitted by the
learned Tribunal. However, the Tribunal,
while considering the Original Application
finally
on 10.08.2022,
arrived
at
a
conclusion
that
since
punishment
of
354 INDIAN LAW REPORTS ALLAHABAD SERIES
reduction in rank and deprivation of badges
of good conduct have been awarded to the
petitioner in a summary trial, therefore, in
view of Section 3 (o) (ii) read with clause
(iii) of the Act, 2007, the Tribunal has no
jurisdiction to try the original application.
In this backdrop, the learned Tribunal
dismissed the original application being not
maintainable vide judgment/order dated
10.08.2022.

(6) The petitioner, thereafter, had filed
Review Application No. 86 of 2022 seeking
to
review
the
judgment/order
dated
10.08.2022, which too was rejected by the
learned Tribunal vide judgment/order dated
06.10.2022.

(7) Feeling aggrieved by both the
aforesaid
judgments/orders
dated
10.08.2022 and 06.10.2022, the petitioner
has preferred the instant writ petition.

C. SUBMISSIONS

(8) Heard Shri Indrajeet Shukla and
Shri Manish Kumar Rai, learned Counsel
representing
the
petitioner
and
Shri
Devrishi
Kumar,
learned
Counsel
representing the respondents/Union of
India.

(9)

Impeaching
the
impugned
judgment/order of the learned Tribunal,
Shri Indrajeet Shukla representing the
petitioner has argued that the punishment of
reduction in rank and deprivation of good
conduct badges provided in Chapter IX,
Section 81 of the Navy Act, 1957 is a
normal incidence and condition of service.
A
plain
reading
of
the
provision
contemplated under Section 3 (o) of the
Act, 2007 reveals that service matters
include
remuneration,
post-retirement
benefits,
appointment,
enrollment,
probation, confirmation, seniority, training,
promotion,
reversion,
termination
of
service etc. Further, clause (iv) of subsection (o) of Section 3 of the Act, 2007
expands the definition of service matters by
using the phrase 'any other matter,
whatsoever'. According to the learned
Counsel, Clause (iv) of Section 3 (o) of the
Act, 2007 is exhaustive in nature and
covers all service matters with exception to
the items contained in sub-section (i), (ii),
(iii) and (iv), therefore, while interpreting
the provisions contained in Section 3 (o) of
the Act, the provisions contained in Clause
(iv) containing the words "any other matter
whatsoever", cannot be excluded. If these
words are not taken into account, it shall
make Clause (iv) of Section 3 (o) of the
Act,
2007
redundant, which
is
not
permissible
under
interpretative
jurisprudence and further it would deprive
the right of army personnel to approach the
Tribunal for expeditious disposal of a
dispute relating to punishment awarded to
them. In this backdrop, the learned Counsel
has submitted that a conjoint reading of
Article 323-A of the Constitution of India
and Section 3 (o) of the Act, 2007 reveals
that the Administrative Tribunals are
established
by
Parliament
for
the
adjudication or trials of disputes and
complaints with respect to recruitment and
conditions of service of persons appointed
to public services, hence the punishment of
reduction in rank and deprivation of good
conduct badges awarded by means of
summary trial being a harsh punishment
which affects the
service career of
petitioner is a "condition of service" and as
such the same is amenable before the
Tribunal. Thus, according to him, the
learned Tribunal has erred in dismissing the
original application filed by the petitioner
by holding that the original application is
not maintainable before the Tribunal.
12 All. Ls Gi (S) Abhishek Kumar Vs. Union of India & Ors.
355

(10) Learned Counsel drawing our
attention to the reasoning given by the
learned Tribunal while dismissing the
original application as not maintainable,
has argued that the learned Tribunal, while
dismissing the original application as not
maintainable, has opined that none of the
three Acts, namely, Army Act, Navy Act
and Air Force Act
talk
about
the
punishment of reversion and they only talk
about reduction in rank besides other
punishments, which according to learned
Counsel is patently erroneous for the
reason that a conjoint reading of Clause-(ii)
and Clause-(iii) of Section 3 (o) of the Act,
2007 gives an impression that both the
reversion and reduction in rank may be one
and same thing with regard to punishments
provided in Navy Act, Army Act and Air
Force Act. More so, the Apex Court in
State of U.P. and others Vs. Sughar
Singh : AIR 1974 SC 423 has held that
"the order of reversion by way of
punishment amounts to reduction in rank. If
the officer is promoted substantively to a
higher post or rank, he gets the right to that
particular post or rank and if he is
afterwards reverted to the lower post or
rank which he held before it is a reduction
in rank in the technical sense in which the
expression is used in Article 311 of the
Constitution of India." Thus, learned
Counsel submits that since reversion in
rank by way of punishment is nothing but
is
a
reduction
in
rank,
hence
the
punishment of reduction in rank awarded to
the petitioner falls under Section 3 (o) (ii)
under the term "reversion" and therefore,
the original application filed by the
petitioner is amenable before the learned
Tribunal.

(11) Placing reliance upon the
judgment of this Court in Major Kunwar
Ambreshwar Singh Vs. The Union of
India, Delhi :(2014) 5 All LJ 156 : 2014
SCC OnLine All 15134, learned Counsel
representing the petitioner has urged that
while dismissing the original application
filed by the petitioner as not maintainable
vide
impugned
judgment/order
dated
10.08.2022, the learned Tribunal, though
had
taken
note
of
Major
Kunwar
Ambreshwar
Prasad
Singh
(supra),
however, has erroneously laid reliance
upon the decision of Principal Bench of the
Tribunal in the case of Dfr Shatrughan
Singh Tomar Vs. Union of India and
others (O.A. No. 665 of 2020, decided on
07.04.2021) for the reasons that in
hierarchy, the learned Tribunal are not over
and above the High Court and since High
Court being the Constitutional Court has
interpreted the provisions of Armed Forces
Tribunal Act, 2007 particularly Section 3
(o) (i) (ii) (iii) and (iv) in the case of Major
Kunwar Ambreshwar Singh (supra) in a
specified manner, therefore, it was not open
for the Principal Bench to take different
views in the case of Dfr Satrughan Singh
Tomar (Supra). Learned Counsel submits
that if the Principal Bench of the learned
Tribunal had any doubt with respect to the
law laid down by this Court in the case of
Major Kunwar Ambreshwar Singh (Supra),
then, the Principal Bench of the learned
Tribunal ought to have made a reference to
the Constitutional Courts to clarify the
doubt but in doing so, the Principal Bench
of the learned Tribunal in the case of Dfr.
Shatrughan Singh Tomar (supra) had
taken altogether a different view what this
Hon'ble High Court had taken in Major
Kunwar Ambreshwar Singh (supra).

(12) Learned Counsel for the
petitioner has also placed reliance upon the
judgment of High Court of Punjab and
Haryana at Chandigarh in N.K. Santosh
Lohar Vs. Union of India and others
356 INDIAN LAW REPORTS ALLAHABAD SERIES
(CWP
No.
3118-2023,
decided
on
03.10.2023)
and
the
judgment
of
Uttarakhand High Court in Ex. Havildar
Birendra Singh Negi Vs. Union of India
& others : 2012 (18) S.C.T. 846 and has
contended that in N.K. Santosh Lohar
(Supra), High Court of Punjab and
Haryana at Chandigarh, after dealing with
the issue of award of punishment of 'severe
reprimand' to an army personnel and also
dealing with Section 3 (o) of the Armed
Forces Tribunal Act, 2007, came to the
conclusion that in view of the judgments of
Allahabad High Court in Major Kunwar
Ambreshwar Singh (supra) and Ex.
Havildar Birendra Singh Negi (supra),
the petition against the punishment of
'severe reprimand' is maintainable before
the learned Tribunal. Learned Counsel,
thus, has submitted that the original
application filed by the petitioner is
maintainable before the learned Tribunal
and the learned Tribunal has erroneously
dismissed the original application being not
maintainable vide judgment/order dated
10.08.2022.

(13) Per contra, learned Counsel
representing the Union of India has
vehemently
opposed
the
aforesaid
submissions advanced by the learned
Counsel
for
the
petitioner
and
has
submitted that a plain reading of the
statement of objects and reasons of Section 3
(o) of the Act, 2007, Article 323-A of the
Constitution of India and Section 33 of the
Act, 2007 would show that the Tribunal was
constituted to deal with matters of pendency
of cases of dismissal by way of court martial.
Section 3 (o) of the Act, 2007 further reveals
the legislative intent by letting all know what
to be considered as 'service maters' and what
not to be treated as service matters amenable
to the jurisdiction of the Tribunal. Learned
Counsel submits that Article 323-A of the
Constitution of India and Section 33 of the
Act, 2007 would reveal the extent of the bar
on jurisdiction of the Civil Courts. Thus, the
petitioner may not have any remedy before
the learned Tribunal but the same cannot be
said to hold good for the High Court. Hence,
the claim of the petitioner is untenable and
the petition deserves to be dismissed.

(14) So far as the judgment of this Court in
Major
Kunwar
Ambreshwar
Singh
(Supra) is concerned, learned Counsel
representing the Union of India has submitted
that
decision
of
Major
Kunwar
Ambreshwar
Singh
(Supra)
is
not
applicable in the facts and circumstances of
the case as the decision of Major Kunwar
Ambreshwar
Singh
(Supra)
has
been
distinguished by the Principal Bench of the
learned Tribunal in Dfr. Shatrughanan
Singh Tomar (supra).

D. ISSUES

(15) Based on the submissions which
have been canvassed on behalf of the parties,
question arises for determination is whether
the punishment of reduction in rank and
deprivation of good conduct badges awarded
to the petitioner by means of summary trial,
is amenable before the Armed Forces
Tribunal or not.

(16) Before answering the aforesaid
question, we deem it apt to reproduce the
relevant Sections of the Act, 2007 and
relevant Articles of the Constitution of
India.

E. RULES & ARTICLE

(17) The Armed Forces Tribunal (in
short, AFT) was constituted under the
Armed Forces Tribunal Act, 2007, enacted
12 All. Ls Gi (S) Abhishek Kumar Vs. Union of India & Ors.
357
with the purpose to provide for the
adjudication or trial by AFT of disputes and
complaints with respect to commission,
appointments, enrollment and conditions of
service in respect of persons subject to the
Army Act, 1950, the Navy Act, 1957 and
the Air Force Act, 1950 and also to provide
for appeals arising out of orders, findings
or sentences of courtmartial held under the
said Acts and for matters connected
therewith or incidental thereto. Section 3
(o) under Chapter-I of the Act, 2007 is
relevant, which reads as follows :-

"3. (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 retirement,
superannuation, termination of service and
penal deductions;

(iii) summary disposal and trials where
the punishment of dismissal is awarded;

(iv) any other matter, whatsoever, but
shall not include matters relating to-

(i) orders issued under section 18 of
the Army Act, 1950 (46 of 1950), subsection (1) of section 15 of the Navy Act,
1957 (62 of 1957) and section 18 of the Air
Force Act, 1950 (45 of1950); 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;

(p) "summary disposals and trials"
means summary disposals and trials held
under the Army Act, 1950 (46 of 1950), the
Navy Act, 1957 (62 of 1957) and the Air
Force Act, 1950 (45 of 1950);

(q) "Tribunal" means the Armed
Forces Tribunal established under section
4"

(18) Chapter III of the Act, 2007 deals
with the jurisdiction, power and authority
of the Tribunal in service matters. Section
14 (1) of the Act, 2007 is relevant, which
reads 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 High Court exercising
jurisdiction under articles 226 and 227 of
the Constitution) in relation to all service
matters."

(19) Section 15 of the Act, 2007 deals
with jurisdiction, powers and authority in
matters of appeal against court martial.
Section 15 is relevant and the same is
reproduced as under:-

"15.
Jurisdiction,
powers
and
authority in matters of appeal against
court martial.
-(1) Save as otherwise
expressly provided in this Act, the Tribunal
shall exercise, on and from the appointed
day, all the jurisdiction, powers and
358 INDIAN LAW REPORTS ALLAHABAD SERIES
authority exercisable under this Act in
relation to appeal against any order,
decision, finding or sentence passed by a
court martial or any matter connected
therewith or incidental thereto.

(2) Any person aggrieved by an order,
decision, finding or sentence passed by a
court martial may prefer an appeal in such
form, manner and within such time as may
be prescribed.

(3) The Tribunal shall have power to
grant bail to any person accused of an
offence and in military custody, with or
without any conditions which it considers
necessary:

Provided that no accused person shall
be so released if there appears reasonable
ground for believing that he has been guilty
of an offence punishable with death or
imprisonment for life.

(4) The Tribunal shall allow an appeal
against conviction by a court martial
where-

(a) the finding of the court martial is
legally not sustainable due to any reason
whatsoever; or

(b)
the
finding
involves
wrong
decision on a question of law; or

(c) there was a material irregularity in
the course of the trial resulting in
miscarriage of justice, but, in any other
case, may dismiss the appeal where the
Tribunal considers that no miscarriage of
justice is likely to be caused or has actually
resulted to the appellant:

Provided that no order dismissing the
appeal by the Tribunal shall be passed
unless such order is made after recording
reasons therefor in writing.

(5) The Tribunal may allow an appeal
against conviction, and pass appropriate
order thereon.

(6)
Notwithstanding
anything
contained in the foregoing provisions of
this section, the Tribunal shall

have the power to-

(a) substitute for the findings of the
court martial, a finding of guilty for any
other offence for which the offender could
have been lawfully found guilty by the
court martial and pass a sentence afresh for
the offence specified or involved in such
findings under the provisions of the Army
Act, 1950 (46 of 1950) or the Navy Act,
1957 (62 of 1957) or the Air Force Act,
1950 (45 of 1950), as the case may be; or

(b) if sentence is found to be
excessive, illegal or unjust, the Tribunal
may-

(i) remit the whole or any part of the
sentence, with or without conditions;

(ii) mitigate the punishment awarded;

(iii) commute such punishment to any
lesser
punishment
or
punishments
mentioned in the Army Act, 1950 (46 of
1950), the Navy Act, 1957 (62 of 1957) and
the Air Force Act, 1950 (45 of 1950), as the
case may be;

(c) enhance the sentence awarded by a
court martial:

Provided that no such sentence shall
be enhanced unless the appellant has been
given an opportunity of being heard;

(d) release the appellant, if sentenced
to imprisonment, on parole with or without
conditions;

(e)
suspend
a
sentence
of
imprisonment;

(f) pass any other order as it may think
appropriate.

(7)
Notwithstanding
any
other
provisions in this Act, for the purposes of
this section, the Tribunal shall be deemed
to be a criminal court for the purposes of
sections 175, 178, 179, 180, 193, 195,
196 or 228 of the Indian Penal Code (45
of 1860) and Chapter XXVI of the Code
of Criminal Procedure, 1973 (2 of
1974)."
12 All. Ls Gi (S) Abhishek Kumar Vs. Union of India & Ors.
359

(20) Chapter IV deals with procedure.
Section 21 of the Act, 2007 reads as under
:-

"21. Application not to be admitted
unless other remedies exhausted.-(1)
The Tribunal shall not ordinarily admit an
application unless it is satisfied that the
applicant had availed of the remedies
available to him under the Army Act, 1950
(46 of 1950) or the Navy Act, 1957 (62 of
1957) or the Air Force Act, 1950 (45 of
1950), as the case may be, and respective
rules and regulations made thereunder.

(2) For the purposes of sub-section (1),
a person shall be deemed to have availed of
all the remediesavailable to him under the
Army Act, 1950 (46 of 1950) or the Navy
Act, 1957 (62 of 1957) or the Air Force
Act, 1950 (45 of 1950), and respective
rules and regulations-

(a) if a final order has been made by
the Central Government or other authority
or officer or other person competent to pass
such order under the said Acts, rules and
regulations, rejecting any petition preferred
or representation made by such person;

(b) where no final order has been
made by the Central Government or other
authority or officer or other person
competent to pass such order with regard to
the petition preferred or representation
made by such person, if a period of six
months from the date on which such
petition was preferred or representation was
made has expired"

(21) Section 33 of the Act, 2007 reads
as under :-

"3. Exclusion of jurisdiction of civil
courts.-On and from the date from which
any jurisdiction, powers and authority
becomes exercisable by the Tribunal in
relation to service matters under this Act, no
Civil Court shall have, or be entitled to
exercise, such jurisdiction, power or authority
in relation to those service matters."

(22) Section 34 of the Act, 2007 is
reproduced as under :-

"4. Transfer of pending cases.-(1)
Every suit, or other proceeding 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."

(23) The Armed Forces Tribunal Act,
2007 has been enacted under the provisions
of Article 323-A of the Constitution of India,
1950, which reads as under:-

"323A. Administrative tribunals.-
(1) Parliament may, by law, provide for the
adjudication or trial by administrative
tribunals of disputes and complaints with
360 INDIAN LAW REPORTS ALLAHABAD SERIES
respect to recruitment and conditions of
service of persons appointed to public
services and posts in connection with the
affairs of the Union or of any State or of
any local or other authority within the
territory of India or under the control of the
Government of India or of any corporation
owned or controlled by the Government.

(2) A law made under clause (1)
may-

(a) provide for the establishment of an
administrative tribunal for the Union and a
separate administrative tribunal for each
State or for two or more States;

(b) specify the jurisdiction, powers
(including the power to punish for
contempt) and authority which may be
exercised by each of the said tribunals;

(c)
provide
for
the
procedure
(including provisions as to limitation and
rules of evidence) to be followed by the
said tribunals;

(d) exclude the jurisdiction of all
courts, except the jurisdiction of the
Supreme Court under article 136, with
respect to the disputes or complaints
referred to in clause (1);

(e) provide for the transfer to each
such administrative tribunal of any cases
pending before any court or other authority
immediately before the establishment of
such tribunal as would have been within the
jurisdiction of such tribunal if the causes of
action on which such suits or proceedings
are
based
had
arisen
after
such
establishment;

(f) repeal or amend any order made by
the President under clause (3)of article
371D;

(g)
contain
such
supplemental,
incidental and consequential provisions
(including provisions as to fees) as
Parliament may deem necessary for the
effective functioning of, and for the
speedy disposal of cases by, and the
enforcement of the orders of, such
tribunals.

(3) The provisions of this article
shall
have
effect
notwithstanding
anything in any other provision of this
Constitution or in any other law for the
time being in force"

F. ANALYSIS & FINDINGS

(24) Having enumerated the various
provisions of law, which are applicable to
the facts of the present case, this Court
finds that the order under challenge before
the learned Tribunal was the order dated
23.02.2021 passed in summary trial under
Sections 60 (d), 68 and 77 (2) of the Navy
Act, 1957, by which the petitioner was held
guilty and sentenced to reduction in rank
and to suffer deprivation of badges of good
conduct. Apparently, the learned Tribunal,
though at initial stage admitted the original
application vide order dated 05.04.2022,
however, on later stage has dismissed the
original application as not maintainable
inter alia on the ground that the punishment
of reduction of rank and deprivation of
badges of good conduct, challenged in the
original application have been awarded in
summary trial and hence it is not a 'service
matter' in view of Section 3 (o) (ii) read
with clause (iii) of the Act and as such, the
learned Tribunal has no jurisdiction to try
the original application.

(25) However, this Court finds that a
bare perusal of Section 3 (o) of the Act,
2007 reveals that service matters include
remuneration
(including
allowances),
pension, other retirement benefits, tenure
including
commission,
appointment,
enrollment,
probation,
confirmation,
seniority, training, promotion, reversion,
premature
retirement,
superannuation,
termination
of
service
and
penal
12 All. Ls Gi (S) Abhishek Kumar Vs. Union of India & Ors.
361
deductions. Further, clause (iv) of subsection (o) further expands the definition of
service matters by usage of the phrase "any
other matter, whatsoever", which makes the
said clause exhaustive in nature and covers
all service matters with exception to the items
contained in sub-clause (i), (ii), (iii) and (iv)
of Section (o) of Act 2007. Thus, apparently,
the Legislature to their wisdom has included
all matters which correlate to service matters
or incident of service of the army personnel,
except the exception provided in the Act
itself.

(26) This Court also finds that one of
the exceptions provided in sub-clause (iv) of
Section 3 of Act 2007 entails as follows:

(iv) summary court martial except
where the punishment is of dismissal or
imprisonment for more than three months;

(27) Apparently, the learned Tribunal
relied heavily on the aforesaid sub-clause and
went on to hold that the Original Application
filed by the petitioner to be not-maintainable.
Interestingly, although the learned Tribunal
observed that a conjoint reading of clause (ii)
and (iii) gave an impression that both
reversion and reduction in rank are one and
the same thing with regard to punishment
provided under the Act, 2007, however,
went on to hold that when a punishment was
awarded through the process of summary
disposal or trial, only the punishment of
dismissal would be treated as a service
matter and not any other punishment
because clause (ii) cannot be read in
isolation and when it is read together with
clause (iii) and proviso 3(o) (iv) of clause
(iv), suffice it to mention that it sufficiently
at if any punishment is awarded in summary
court-martial, it is not a service matter,
except in the case of dismissal or
punishment of more than three months.

(28) First & foremost, this Court finds
that nowhere in the Act of 2007, the words
"Service matters" have been defined.
Section 3 (o) of the Act, 2007 is merely
illustrative and enumerates as to what all
matters would be construed as "Service
matters" or otherwise. The said section
unfolds with a general and all-inclusive
proposition by using the phrase that "all
matters relating to the conditions of their
service" shall be 'Service matters" in
relation to the person's subject to the Army
Act, 1950, the Navy Act, 1957 and the Air
Force Act, 1950. Further, as an illustration,
the said Section enumerates three incidents
of service conditions in the following
manner :-

i.
remuneration
(including
allowances), pension and other retirement
benefits;

ii.
tenure,
including
commission,
appointment,
enrolment,
probation,
confirmation,
seniority,
training,
promotion, reversion, premature retirement,
superannuation, termination of service and
penal deductions;

iii. summary disposal and trials where
the punishment of dismissal is awarded.

(29) Since Section 3(o) of the Act,
2007 clearly says that all matters relating to
the conditions of service would be
construed as "Service matter", in order to
give
a
harmonious
and
purposive
interpretation of section 3(o)(iii) of the Act,
2007, it has to be construed that all
summary disposal and trial would be a
service
matter
including
where
the
punishment of dismissal is awarded. This
Court finds that the said harmonious
interpretation is supported by the next
clause 3(o)(iv) of the Act, 2007, which is a
residual clause as it encompasses within it
all service conditions by using the phrase
362 INDIAN LAW REPORTS ALLAHABAD SERIES
"any other matter, whatsoever". The use of
the said phrase by the legislature is not
accidental but is indicative of the fact that
the legislature in its wisdom was although
not able to foresee and enumerate all the
incidences of service conditions, but
inserted and enacted the residual clause to
include all incidence of service by using the
phrase "any other matter, whatsoever" in
clause (iv) of Section 3 (o) of the Act,
2007. Thus, the legislature always intended
to include all the incidences of service
conditions to be service matter, so as to be
amenable to the Tribunal, keeping in mind
the larger objective for which these
tribunals were constituted. However, there
is a caveat, in the sense that the latter part
of Section 3(o) of the Act, 2007 says that
certain matter would not be included in the
service matter, wherein it enumerates four
sub-clauses namely (i) certain orders issued
under Section 18 of Army Act, Section 15
of the Navy Act and Section 18 of the Air
Force Act. (ii) Transfer & posting under the
said three Act, (iii) leave of any kind and
(iv) summary court martial, except where
the
punishment
is
of
dismissal
or
imprisonment for more than three months.

(30) No doubt, the intent of the
legislature in enacting and providing for the
exclusion
clause
signifies
that
the
legislature
intended
to
keep
certain
incidence of service out of the purview of
the Tribunal, however it is seen that
although clause (i), (ii) and (iii) of Section
3 (o) of the Act, 2007 can be clubbed
together under the same category of
administrative action, however, the same
cannot be true for clause (iv) of Section 3
(o) of the Act, 2007, which is in the nature
of adjudicatory action.

(31) This Court is conscious of the
fact that the very object of the constitution
of the Tribunal was to provide for appeals
arising out of orders, findings of sentences
of court-martial held under the said Acts
and for matter connected therewith or
incidental thereto. The object of the Act
although uses the term "court-martial" but
does not define it any further by qualifying
the said term by using of any prefixes, like
summary or otherwise. Further, Section 3(f)
relating to definition of "court martial" also
does not use or explain the word
"summary" as it merely says that court
martial means a court martial held under
the Army Act or the Navy Act including the
disciplinary courts constituted under the
Act or the Air Force Act, 1950.

(32) However, Section 108 of the
Army Act, relating to kinds of court-martial
says there are four types of court-martials
namely (a) general court-martial, (b)
district courts-martial, (c) Summary general
courts-martial and (d) summary courtsmartial and Section 120 of the said Act
relating to the powers of summary court
denotes that it has sweeping powers to try
any offence punishable under the said Act
and empowers the 'summary court martial'
to pass any sentence which may be passed
under this Act, except the sentence of death
of transportation. Thus, this court finds that
although the adjudicatory procedure in a
"summary court martial" may be summary
in nature, however the punishment may not
be summary as any degree of punishment
can be awarded in the said court martial,
except
the
sentence
of
death
or
transportation.
Since
the
punishment
awarded in summary court martial is
serious and grave in nature, to interpret
clause 3(o)(iv) sub-clause (iv) in the
restrictive manner of excluding it from the
purview of "service matter" would be a
travesty of Justice and an infringement of
the fundamental right of the petitioner,
12 All.