SAW No.165/2012 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B.Civil Special Appeal (Writ) No.165/2012 Union of India & ORS.versus Sgt.
S.S.Rathore & Anr.
DATE OF ORDER
: 16th January 2014 HON’BLE Mr.JUSTICE DINESH MAHESHWARI HON’BLE Mr.JUSTICE BANWARI LAL SHARMA Mr.Falgun Buch, for the appellants.
Mr.H.S.Sidhu, for the respondent No.1.
<><><> This intra-court appeal is directed against the order dated 04.03.2011, as passed by the learned Single Judge of this Court in SB CWP No.1573/2011.
The said writ petition was filed by the respondent of this appeal, for being aggrieved of the order dated 01.12.2010, as passed by the Armed Forces Tribunal at its Jaipur Bench (‘the Tribunal’) whereby, the Tribunal declined to entertain his application against the punishment order issued under Section 82 of the Air Force Act.
The Tribunal was of the view that any other punishment, except the punishment of dismissal awarded under Section 82 of the Air Force Act, cannot be considered to be the “service matter”.
within the meaning of the Armed Forces Tribunal Act, 2007 (‘the Act of 2007’) and, therefore, it had no jurisdiction to entertain, hear and decide the application filed by the present respondent.
It appears that after having heard the learned counsel for the present respondent (writ-petitioner) in the said writ petition (No.1573/2011).the learned Single Judge formed an opinion that the jurisdiction of the Tribunal was wide enough; and all the matters relating to service condition, including the matters referred to in SAW No.165/2012 2 Section 3 (o) of the Act of 2007 were required to be adjudicated by the Tribunal.
The learned Single Judge particularly referred to clause (iv) of Section 3(o) of the Act of 2007 and observed that the term “any other matter, whatsoever”.
made it clear that all the service matters were required to be adjudicated by the Tribunal, except those prescribed by way of specific exclusion.
The learned Single Judge, therefore, held that the order dated 01.12.2010 was apparently erroneous; and, while quashing the same, directed the Tribunal to consider the application submitted by the writ-petitioner on its merits.
It remains indisputable that the aforesaid order dated 04.03.2011 was passed by the learned Single Judge without issuing notices to the other side, i.e., the appellants herein.
The present appeal against the aforesaid order dated 04.03.2011 is said to be time-barred by 303 days.
An application seeking condonation of delay has been filed, essentially with reference to the fact that the writ petition came to be decided without notice to the present appellants; and upon communication of the aforesaid order dated 04.03.2011, the appellants took the decision to question the same in intra-court appeal.
In the totality of circumstances, we are satisfied that the delay in filing this appeal had been for bonafide reasons and not intentional.
Accordingly, the application under Section 5 of the Limitation Act is allowed and the delay in filing the appeal is condoned.
Having regard to short point arising in this appeal, we have heard the learned counsel for the parties finally at this stage itself.
SAW No.165/2012 3 As noticed hereinabove, it remains indisputable that the order dated 04.03.2011 has been passed by the learned Single Judge without notice to the present appellants.
Though the application as made before the Tribunal was also decided by the Tribunal without notice to other side but that had been an order passed in rejection of the application with the finding that the subject matter of the application was not falling within the jurisdiction of the Tribunal.
If at all the said order was sought to be reversed, in our considered view, the present appellants, who were the respondents in the writ petition, were required to be afforded an opportunity of hearing; and their submissions were required to be taken into consideration before pronouncing finally in the matter.
In view of the fact that the order impugned was passed by the learned Single Judge without notice to the other side and the issue otherwise requires consideration after hearing the parties, we deem it proper to restore the matter to the file of the learned Single Judge for consideration of the writ petition in accordance with law.
Accordingly, this appeal is partly allowed to the extent and in the manner indicated.
The impugned order dated 04.03.2011 is set aside.
SB CWP No.1573/2011 stands restored for reconsideration of the learned Single Judge.
The appellants herein shall now stand at notice in the said writ petition and fresh notices need not be issued to them.
The writ petition may be placed before the learned Single Judge for admission on 14.02.2014.
In the meantime, the present appellants may file a reply to the writ petition, if so chosen.
No costs.
SAW No.165/2012 4 (BANWARI LAL SHARMA),J.
(DINESH MAHESHWARI),J.
Cpgoyal/-