IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.15050 of 2014 Date of Decision: August 01, 2014 Gurmail Singh Ex-Naik .....Petitioner versus The Union of India and others .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT.
HON'BLE MR.JUSTICE JASPAL SINGH.
Present : Mr.O.P.Gaba, Advocate, for the petitioner.
-.- 1.
Whether Reporters of Local papers may be allowed to see the judgment?.
2.
To be referred to the Reporters or not?.
3.
Whether the judgment should be reported in the Digest?.
--- Surya Kant, J.
(Oral) The petitioner impugns the order dated 11.09.2013 passed by the Armed Forces Tribunal, Chandigarh Region Bench at Chandimandir, whereby his Original Application challenging the communication dated 29.07.2009 has been dismissed being barred by limitation.
In order to appreciate the controversy, the facts may be noticed briefly.
The petitioner was enrolled in the Regiment of Artillery on 19.04.1994.
He was discharged from service on 09.01.2006 being an undesirable soldier after he had rendered 12 years and 5 months' service.
Had he been allowed to complete 15 years of service, the petitioner would have earned pension etc.The petitioner moved an application to the Commander, Artillery Brigade on 30.04.2009 presumably questioning the order of his discharge dated 09.01.2006.
That MOHINDER KUMAR201408.19 11:56 I attest to the accuracy of this order Chandigarh CWP No.15050 of 2014 [2].application was not responded.
He again moved yet another application to the Headquarters on 18.06.2009 which was replied vide communication dated 29.07.2009 informing him that he was discharged from service on account of his undesirable service due to discipline record and inability to improve upon behaviour.
The order also recited that the petitioner was setting a bad example for the others thus his future retention in service was not deemed suitable in the interest of the Organization.
The aggrieved petitioner filed Original Application before the Armed Forces Tribunal, which came up for hearing on 02.09.2013.
The preliminary issue that arose for consideration of the Tribunal was whether the petitioner's OA was within the period of limitation prescribed under Section 22 of the Armed Forces Tribunal Act, 2007?.
The Tribunal proceeded on the premise that even if the limitation period were to be counted from the date of communication of letter dated 29.07.2009, yet the petition was hopelessly time barred for having been filed after a period of four years and six months.
The Tribunal relied upon Section 22(2) of the Act which permits the Tribunal to admit an application after the period of six months, i.e., normal period of limitation prescribed under Sub-Section 1 of Section 22 of the Act but the discretion of the Tribunal to condone the delay on account of sufficient cause has been restricted upto the maximum period of three years only, the Tribunal thus viewed that even if there was a sufficient cause yet the petitioner's application was beyond the scope of Section 22(2) of the Act.
The same was consequently dismissed being barred by limitation.
MOHINDER KUMAR201408.19 11:56 I attest to the accuracy of this order Chandigarh CWP No.15050 of 2014 [3].We have heard learned counsel for the petitioner and gone through the impugned order.
In our considered view, the Tribunal's order does not call for any interference.
We say so for the reason that the Tribunal being the creation of Statute, has to give full effect to the legislative intentment contained in Section 22 (2) of the Act.
The said provision though enables the Tribunal to condone the delay if there is a sufficient cause, none-the-less the delay upto three years only can be condoned.
In the instant case, the Tribunal has observed and rightly so that the petition was time barred even if the petitioner's cause of action arose on receipt of letter dated 29.07.2009.
It has to be kept in view that the petitioner was discharged from service vide order dated 09.01.2006 and he did not file and/or represent against the same till 30.04.2009.
The petitioner thus himself is responsible for the fatal delay.
The Tribunal having been left with no judicial discretion to condone the delay beyond three yeaRs.it has rightly declined to condone the same.
No case to interfere with the order passed by the Tribunal is made out.
Dismissed.
[SURYA KANT].JUDGE August 01, 2014 [JASPAL SINGH].Mohinder JUDGE MOHINDER KUMAR201408.19 11:56 I attest to the accuracy of this order Chandigarh