1. Challenge in this appeal is against the order dated 6.9.2006, whereby the appellant was held guilty of the offences under Sections 354, 509 of the Indian Penal Code read in conjunction with Navy Act Section 77(2) and Navy Act Section 14 and sentenced to be (i) dismissed from service; (ii) reduced to ranks; and (iii) deprived of third, second and first good conduct batch. Simultaneously, prayer is also made to reinstate him in service to the original rank and with all three GCBs with all consequential benefits.
2. The jurisdiction of this Tribunal has been invoked on the basis of the order passed by the Chief of Naval Staff as part of the cause of action arose here in Delhi. The appellant had been pursuing the remedy for the grant of pensionary benefits, which were denied to him, and, therefore, this appeal is now said to be well within limitation. Several other grounds have also been taken for assailing the decision of the Chief of Naval Staff.
3. At this stage of the admission of this petition, objection with regard to the territorial jurisdiction was raised from the side of the respondents contending that the court martial proceedings had taken place at Mumbai. Further, as per the address given in the earlier proceedings, it referred to Agra, so is the position of the permanent address of the appellant. On the question of jurisdiction, placing reliance in the decisions in Harshad Chiman Lal Modi v. DLF Universal Ltd and another (2005(7) SCC 791), New India Assurance Co. Ltd v. Union of India and others (161(2009) DLT 55 (FB)) and Official Liquidator v. Dayanand and others (2008(10) SCC 1), much thrust was laid by learned counsel for the appellant that a part of the cause of action had taken place here in Delhi and so this Tribunal has jurisdiction. On the other hand, it was contended from the side of the respondents that the power of writ jurisdiction is altogether different than that of the territorial jurisdiction defined in Rule 6 of the Armed Forces Tribunal (Procedure) Rules, which reads as under:
6. Place of filing application.â(1) An application shall ordinarily be filed by the applicant with the Registrar of the Bench within whose jurisdictionâ
(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 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 sub-rule (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.â
The jurisdiction of the Tribunal can be resorted to on the basis of (i) present, past posting or attachment; (ii) where cause of action, wholly or in part, has taken place; or (iii) on the basis of his ordinary place of posting when he had settled after ceasing from service.
4. As regards the disposal of the statutory complaint/representation by Chief of Naval Staff is concerned, it would not give any cause of action as regards the appeal under Section 15 of the Act is concerned. This position is settled by a Full Bench of this Tribunal by judgment dated 19.10.2010 in Parmeshwar Ram v. Union of India and others (O.A No. 471 of 2010), wherein it was held that the appeal against the court martial proceedings are not dependent on the final disposal of the statutory complaint/representation made to the Chief of Naval Staff or to the Central Government. The court martial proceedings are subject to appeal irrespective of the fact whether statutory representation/complaint is pending. In this regard, it would be appropriate to quote the relevant provisions contained in Section 15 of the Armed Forces Tribunal Act 2007, which reads:
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 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 whereâ
(a) the finding of the court-martial is legally not sustainable due to any reason whatever; or
(b) the finding involves wrong decision n 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) â¦â¦â¦â¦
(7) â¦â¦â¦...â
From the above, it is clear that this Tribunal has jurisdiction to entertain an appeal against the court martial proceedings and not against the statutory complaint/representation. Under such circumstances, resort to the jurisdiction of this Tribunal against the decision by the Chief of Naval Staff on the statutory representation cannot be the basis for appeal.
5. It was further argued by learned counsel for the appellant that the ordinary place of residence of the appellant, though not pleaded in the petition, can very well be inferred from the title of the petition. He even refused to furnish proof of his residence at Delhi stating that it was not obligatory and what he had written should be accepted as true and no doubt could be raised with regard to his integrity in referring this address in the petition. There are materials on record, which are self contradictory, showing his residence at Agra and court martialling him at Mumbai. Even correspondences as late as 2010 were made to his address at Agra only. There is no reason to believe that he is a resident of Delhi unless proof to that effect is brought on record. The title of the petition would not be sufficient to prove his ordinary place of residence. Suffice it to mention that a wider jurisdiction is conferred under Rule 6 of the AFT (Procedure) Rules. Out of the three contingencies, in the present case, it is only the ordinary residence of the appellant which would be relevant to determine the jurisdiction. Here, in this case, the appellant has not stated, while invoking the jurisdiction of this Tribunal, where his ordinary place of residence is. Instead of specifying his ordinary place of residence, he blatantly denied his obligation to furnish proof of residence and contended that his integrity about referring Delhi address in the petition should not be doubted. The title alone would not be sufficient to prove his ordinary place of residence.
6. In order to prove the ordinary place of residence, it would be appropriate to refer to the definition in the context of territorial jurisdiction of the Bench. To understand the statutory intent for which the expression âordinary place of residenceâ is used, it would be relevant to refer to certain notifications which have been issued by the Central Government defining the territorial jurisdiction of the Benches of the Armed Forces Tribunal at Chennai, Jaipur, Lucknow, Chandigarh, Calcutta and Kochi. They are: S.R.O Nos. 14(E) dated 21.10.2009, 15(E) dated 28.10.2009, 16(E) dated 5.11.2009, 17(E) dated 10.11.2009, 18(E) dated 18.11.2009 and 19(E) dated 2.12.2009 respectively. Therefore, the territorial jurisdiction of this Bench would depend upon Rule 6 ibid, which provides that the appellant may resort to the forum on the basis of his past and present place of posting and ordinary place of residence. The word âresideâ came up for consideration of the apex Court in Jagir Kaur v. Jaswant Singh (AIR 1963 SC 1521), in the context of the jurisdiction of the Magistrate under Section 488 of the Code of Criminal Procedure 1898 for entertaining the petition of a wife for maintenance. While considering the meaning of the word âresideâ in Oxford Dictionary, the apex Court observed thus:
âThus said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is, therefore, capable of different meanings, including domicile in the strictest and the most technical sense and a temporary residence. Whichever meaning is given to it, one thing is obvious and it is that it does not include a casual stay in, or a flying visit to, a particular place. In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense.â
From the materials on record, it is evident that the âordinary place of residenceâ of the appellant is Agra (State of U.P), which, according to him, is his permanent place of residence. But the appellant never reported to the authorities the change of address. Moreover, when he shifted to Delhi for avocation, unless he furnishes sufficient proof, the same cannot be considered to be his ordinary place of residence.
7. It has next been contended by the learned counsel that for providing substantial justice to the aggrieved party, merely on technical ground the appellant cannot be denied his right when part of the cause of action arose here at Delhi on account of rejection of statutory complaint. As has already been mentioned, the appeal against the court martial proceedings is not dependent upon the decision in statutory representation. They are altogether a separate proceeding and cannot be assailed in an appeal under Section 15 of the Armed Forces Tribunal Act 2007. We are not oblivious of the fact that a decision rendered without jurisdiction would be coram non juris. In Harshad Chiman Lals case (supra), it was held by the apex Court thus:
â6. â¦â¦ It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, â¦. strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.â
8. The appellant was held guilty of the offence indicated above and was dismissed from service on 6.9.2006. A period of more than four years has elapsed since then. There is obvious delay on the part of the appellant. The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. The rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. In this case, the appellant has not furnished any convincing explanation for the delay. In its absence, we have no other option but to reject his contention. The underlined object of this principle is not to encourage the litigant of his stale claim and assume matters which have already been disposed of and settled (see Tridip Kumar Dingal and others v. State of West Bengal and others (2009(1) SCC 768) and City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and others (2009(1) SCC 168). However, reliance was placed by learned counsel for the appellant on the decisions in State of Bihar and others v. Kameshwar Prasad Singh and another (JT 2000(5) SC 389), Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others (AIR 2002 SC 1201) and State (NCT of Delhi) v. Ahmed Jaan (2008(11) Scale 455). In this case, reasons for the delay have not been brought out, except referring to the order or inaction on the part of the respondents. But from the averments in the petition, it appears that the appellant was pursuing the matter claiming pensionary benefits. That is a matter which is altogether different. It has nothing to do with this appeal and that would not extend the period of limitation, in a criminal appeal, provided under the Limitation Act. Reliance may be placed in the case of C. Jacob v. Director of Geology and Mining and another (2008(10) SCC 115), the apex Court held:
â11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of âacknowledgment of a jural relationship to give rise to a fresh cause of action.â
This view was reiterated in Union of India and others v. M.S Sarkar (2010(2) SCC 59). In the absence of any convincing reason for the condonation of delay, more so when the earlier petition was confined only to the pensionary benefits, laches cannot be said to have been explained.
9. For the reasons assigned, we are of the opinion that this Tribunal has no territorial jurisdiction to entertain this appeal. Further it suffers from delay and laches. In the result, the appeal is dismissed.