In an otherwise inconsequential period in military justice, a Full Bench
of the Armed Forces Tribunal, headed by the Chairperson, has rendered an
important decision on territorial jurisdiction.
The irony of it all is that ideally the decision was not at all required
since the lynchpin rule itself is quite clear on the subject, but the Bench was
forced into the question due to apparent obduracy of the Central Government in
objecting to the subject time and again, and also some stray decisions rendered
by different benches on the same topic taking a different view, notwithstanding
the fact that the matter had been settled by Constitutional Courts.
Rule 6 of the Armed Forces Tribunal (Procedure) Rules, 2008, provides, inter alia, that a person can file his
petition (Application) at a Bench where he is posted or was last posted or
where the cause of action or part of cause of action had arisen.
Of course, there are very many cases wherein the Petitioner is residing
at some other place while the part of cause of action or the whole cause of
action lies somewhere else, and as per a plain reading of the rule, it is the
Petitioner’s choice to opt for a bench. The same is also an established proposition
of law since a Petitioner is dominus
liits in a litigation initiated by him.
However, more often than not, there used to be opposition by the Central
Government when defence personnel filed cases at benches under whose
jurisdiction they were not residing but where the cause of action had arisen. For
example, a Petitioner may be posted under the jurisdiction of the Chandigarh
Bench but the rejection of his claim had occurred at the Ministry of Defence at
Delhi, in such a situation, it is the choice of the Petitioner to either file
his case at the Principal Bench, Delhi or Chandigarh Bench since he is the dominus litis and it is his option where
to invoke the jurisdiction. Some Benches of the AFT however, agreeing with the
objection of the Union of India, dismissed such petitions for the reason of
lack of jurisdiction though the Rule was absolutely clearly on the subject and
gave an option to the Petitioner. The disturbing aspect of the issue was also
that in certain cases, the dismissal orders by certain benches had been
overturned by the High Court but still the benches continued to defy the law
laid down by the High Court by attempting artificial distinction of the same.
Faced with such contradictory judgements, the Chairperson of the AFT constituted
a Full Bench which rendered its decision last month in an order running into 63
pages.
The Full Bench has correctly laid down the law and held that according to Rule 6,
it is the Petitioner who would decide where he wants
to file the case if the cause of action or part of cause of action is arising
before a bench different than the one where he is residing. To put is sharply,
it is the Petitioner’s choice and not the choice of the bench to dictate where
he should be filing the case.
The Full Bench has also shattered the averment of the Government
that Petitioners would indulge in “bench-hunting” by this kind of an option.
The Full Bench has very rightly stated that if that be so, then the Union of
India can also be condemned for “bench avoiding”. The Full Bench has also
observed that once the view of a coordinate bench rejecting a petition on the
aspect of jurisdiction was overruled by the High Court, the said bench should
have refrained from taking the same view again.
The decision, besides rightly laying down the law on jurisdiction
and clarifying it for future litigants, also throws light on another dangerous
trend, and that is, of certain benches of the Tribunal taking views which are
contrary to law laid down by Constitutional Courts, that is, by the High Courts
and the Supreme Court. Once the view of a Tribunal is overruled by a High Court
or the Supreme Court, then judicial propriety and also the principle of
judicial certainty demand that such benches should bow down to the majesty of Constitutional
Courts and refrain from letting their prestige dictate their judgements rather
than law laid down by Constitutional Courts. Otherwise, not only are litigants
burdened with expensive litigation to higher courts (the Supreme Court at present, which is practically inaccessible) but also result in chaos in the
system wherein the law remains unsettled for litigants approaching different
benches of the Tribunal though the law in reality may be well settled by Constitutional
Courts. When a decision is overturned by a higher judicial forum, judges of the
lower forum should abide by it and not take it as an affront by indulging in
unethical rounds of artificial distinction to reiterate their own old view
which stands overruled. This tendency needs to be nipped in the bud.
The Full Bench of the Tribunal however deserves utmost
respect for taking the bull by the horns and settling this issue once and for
all which was otherwise leading to uncertainty in the minds of litigants.
