The High Court has held and interpreted that a combined reading of Sections 19 and 25 of the AFT Act and Rule 25 of the statutory AFT Procedure Rules, goes to show that the Tribunal shall very much have the inherent jurisdiction to take coercive action for non-implementation of its orders by treating it as criminal contempt. The High Court has ruled that non-implementation of the final orders of the Tribunal amounts to obstruction and interference with the course of justice, and is hence criminal contempt for which the Tribunal is entitled to initiate prosecution proceedings under Section 19(1) of the AFT Act. Usually, it is the jurisdiction under civil contempt that is invoked by Courts in cases of disobedience of orders and directions.
It may be recalled that while the powers of criminal contempt are explicitly provided to the Tribunal under the Act, there is no mention of civil contempt in the entire statute. The absence of substantive provisions of civil contempt in the AFT Act however appears to be deliberate rather than a mere omission since the Administrative Tribunals Act on the civil side (by which the Central Administrative Tribunals are governed) has granted full powers of civil contempt to CATs and moreover there is a mention of civil contempt in various rules and forms appended with the statutory AFT Rules also albeit without any supporting section in the primary Act, a fact which points to some kind of mischief at the drafting stage wherein the provision which existed in the initial drafts of the AFT Act was deliberately omitted from the final version submitted to the Law Ministry and then to the Parliament. Perhaps the Ministry of Defence knew that non-compliance of the orders would remain a rule rather than an exception. It may be recalled that more than 90% of orders passed by Hon’ble High Courts and Tribunals, especially in pensionary matters, are not implemented till the time a contempt petition is filed.
Sunday, February 6, 2011
AFT has powers of contempt and can take coercive action in case of non-implementation of its orders : Kerala High Court
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8 comments:
Maj Navdeep,
Does this mean that lack of substantive provision of Civil contempt in AFT act, deliberate or otherwise, is a non issue, by this orders of Kerala High Court ?
Does this also mean that the govt can be coerced into action for non implementation of AFT orders irrespective of whether the contempt is civil or criminal ?
By the way can you please clarify
What constitutes civil contempt distinctly different from Criminal contempt that the wily babus in Defence Ministry seem to have visualised and avoided inclusion of the same skilfully before enactment of AFT Law ?
Shall be grateful for an explanation of the legal issue.
Col Rajaraman
@ All
Pls read the news story below:-
ARMED FORCES TRIBUNAL THROWS UP ITS HANDS
New Delhi: The Armed Forces Tribunal, New Delhi, has expressed its anguish over lack of powers to get its orders executed. Many a time it has found itself helpless as its orders are not being implemented by authorities, said the Tribunal.In a brief order, the Tribunal, comprising Chairperson Justice A.K. Mathur and M.L. Naidu, said it had issued notice to all authorities including the Defence Secretary but to no avail. “The orders are at the mercy of the authorities; if they wish, they can execute and if they do not wish, they may not. This is a serious thing which has already been taken up with the government, but without any result.” No provision in Act
The Tribunal said: “We feel that we are handicapped because we do not have powers to issue civil contempt to get the orders of the Tribunal executed. It is sad that the power of civil contempt has not been given in the Armed Forces Tribunal Act. It may be an error or omission or may be deliberate… We feel helpless in the matters.”The only power to prosecute a person for criminal contempt had been given under Section 19.
“It is a very strange state of affairs and we are sorry to say that we cannot help the petitioner [in this case in which the order passed on January 25, 2010 has not been implemented so far].”
The Tribunal had ordered the Army to reinstate Fayaz Khan, after quashing a summary court martial that dismissed him from service as a religious teacher in 25 Rajput Regiment on charges of having links with Islamic terror groups.
Pointing out that the lack of civil contempt power was greatly hampering its functioning, the Tribunal said a recommendation had been sent to the government for making an amendment in the Act. The Tribunal granted leave to the petitioner to approach the Supreme Court, which could give proper directions to make it functional and effective.
Comment: I wonder how could the provisions as mentioned in the decision of Kerala High Court escape honourable Justice A.K. Mathur's attention?
Anyway, hopefully the crafty babus of MoD who played a role in (ill?)drafting the act of AFT would not be able to get away by thumbing their nose at the unfavourable (to the MoD)decisions of AFT! Amen.
FINALLY Light at the end of the tunnel for hapless fauzis:
http://www.indianexpress.com/news/in-a-first-aft-issues-criminal-contempt-notice-for-nonimplementation.../748644/
..." ..In its first such order, the Chandigarh Bench of the Armed Forces Tribunal (AFT) has issued show-cause notice to an officer of the Principal Controller of Defence Accounts (Pension) office under Section 19 of the AFT Act for non-implementation of its order. The bench, comprising Justice Ghanshyam Prasad and Lt Gen H S Panag (Retd), observed that their order dated July 22, 2010, in Jaipal Singh vs Union of India case for restoration of a sepoy’s pension was not complied with though a cost of Rs 5,000 was imposed... "....
FANTASTIC, who says AFT is a toothless body. Very very good beginning for AFT.
AFT do not have any such power to issue "CONTEMPT OF COURT ORDER" then what is the use keeping AFT.
Good to here AFTs are arming and resorting to action when required.I think in future while giving the judgement the clause should be added, there and then , that if no timely action is taken the concerned BABUS pay will be stopped, just like numerous of them have literally stopped payment of rightful dues to ESM after rulings by AFTs and even the SC.It should be tit for tat . If ESM are suffering they too need to go thru the agony of financial hardship till the proper orders are issued.
GURDEEP SINGH
GROUP CAPTAIN (Retd )
In my case Order/Judgment was issued by the AFT on 2 July 2010 and same is not implemented till date.I submitted a RTI Application to CPIO.The CPIO of IHQ of MoD is unable to give the proper information's, required by me in the same.Now I fwd the First Appeal to Provost Marshal & Appellate Authority of IHQ.The PS-4 of MoD is a Competent Authority for Ex-Army veterans But,it is a Public Authority u/s 2 of RTI Act 2005.RTI Act is very good to get information. But,The penalty is very low and punishment given by the CIC/SIC are also very minors against major faults.So,It is very useful to take information's/find out the matter 'what is happening in or with your case and it is not much effective on upper stage.Now,I am thinking,should I go and file a writ 'Contempt of Court' or waiting.because,I am losing Rs approx Rs 58000/- p.m. due to non-implementing or upto implement the AFT order.I am asking to all of you.Where I will have to go 'again in AFT or direct to SC' in this stage or what should be my next step?
In my case Order/Judgment was issued by the AFT on 2 July 2010 and same is not implemented till date.I submitted a RTI Application to CPIO.The CPIO of IHQ of MoD is unable to give the proper information's, required by me in the same.Now I fwd the First Appeal to Provost Marshal & Appellate Authority of IHQ.The PS-4 of MoD is a Competent Authority for Ex-Army veterans But,it is a Public Authority u/s 2 of RTI Act 2005.RTI Act is very good to get information. But,The penalty is very low and punishment given by the CIC/SIC are also very minors against major faults.So,It is very useful to take information's/find out the matter 'what is happening in or with your case and it is not much effective on upper stage.Now,I am thinking,should I go and file a writ 'Contempt of Court' or waiting.because,I am losing Rs approx Rs 58000/- p.m. due to non-implementing or upto implement the AFT order.I am asking to all of you.Where I will have to go 'again in AFT or direct to SC' in this stage or what should be my next step?
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