Punjab-Haryana High Court
Mandeep Singh vs Union Of India And Ors on 7 April, 2021 211 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.3907 of 2020 (O&M)
Date of decision : April 07, 2021
Mandeep Singh ……. Petitioner
Versus
Union of India and others ……. Respondents
CORAM : HON’BLE MR. JUSTICE RAJBIR SEHRAWAT
Present:- Mr. G.S. Ghuman, Advocate for the petitioner.
Ms. Anita Balyan, Advocate for UOI.
RAJBIR SEHRAWAT, J. (ORAL)
CM-10228-CWP-2020
Application is allowed as prayed for.
Written statement filed on behalf of the respondents is taken on
record.
CM-11647-CWP-2020
Application is allowed as prayed for.
Rejoinder in response to the written statement filed on behalf of
the respondents is taken on record.
Main case
The prayer made in the present writ petition is for quashing the
order declaring the petitioner as Deserter/Absentee without leave, issued by
respondent No.3 vide its letter No.3814 Phillora dated 22.06.2019
(Annexure P-15).
A perusal of the paper book shows that prayer of the petitioner
is for setting aside the orders passed by the authorities whereby the
For Subsequent orders see RA-CW-118-2021 Decided by HON’BLE MR. JUSTICE RAJBIR SEHRAWAT
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petitioner has been declared to be a deserter. It is not even disputed that as
of today petitioner is no more in service. As per Section 3(o) of the Armed
Forces Tribunal Act, 2007, all service matters are required to be adjudicated
upon by the Armed Forces Tribunal in the first instance. Section 3(o) of the
Armed Forces Tribunal Act, 2007 is reproduced as under:
” (o) “service matters”, in relation to the persons
subject to the Army Act, 1950 (46 of 1950), the Navy
Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45
of 1950), mean all matters relating to the conditions of
their service and shall include–
(i) remuneration (including allowances), pension and
other retirement benefits;
(ii) tenure, including commission, appointment,
enrolment, probation, confirmation, seniority, training,
promotion, reversion, premature retirement,
superannuation, termination of service and penal
deductions;
(iii) summary disposal and trials where the punishment
of dismissal is awarded;
(iv) any other matter, whatsoever, but shall not include
matters relating to–
(i) orders issued under section 18 of the Army Act, 1950
(46 of 1950), sub-section (1) of section 15 of the Navy
Act, 1957 (62 of 1957) and section 18 of the Air Force
Act, 1950 (45 of 1950); and (ii) transfers and postings
including the change of place or unit on posting
whether individually or as a part of unit, formation or
ship in relation to the persons subject to the Army Act,
1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and
the Air Force Act, 1950 (45 of 1950);
(iii) leave of any kind;
(iv) summary court martial except where the
For Subsequent orders see RA-CW-118-2021 Decided by HON’BLE MR. JUSTICE RAJBIR SEHRAWAT
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punishment is of dismissal or imprisonment for more
than three months; ”
Hence the petitioner is having a statutory remedy of
adjudication. Although the petitioner has also included a prayer regarding
transfer from one regiment to another regiment, so as to bring the matter
within the jurisdiction of the High Court and to exclude the same from the
jurisdiction of the Armed Forces Tribunal, however, the question of transfer
would arise only if the order of declaration of the petitioner as deserter is set
aside.
Although counsel for the petitioner has referred to a judgment
passed by the Supreme Court in case of “Balkrisha Ram v UOI and
another”, 2020 (AIR) SC 341, however, this Court finds that the said
judgment is totally distinguishable. A bare reading of the said judgment
shows that the Supreme Court has only clarified that the High Courts would
have jurisdiction even in those cases where the person might be having an
alternate remedy. At the same time, the Supreme Court has been quick to
add that merely because the High Court has the jurisdiction, would not
mean that the High Court is required to exercise the said jurisdiction. The
question of entertainment of a writ petition under Article 226 of the
Constitution of India would be a matter of discretion of the High Court and
not of the jurisdiction as such. In the present case; this Court is not
declining to entertain the petition filed by the petitioner for want of
jurisdiction. However, this Court is not inclined to interfere in view of the
fact that there is a statutory body created for adjudicating upon the issues of
Armed Forces, where the High Court would always loath to interfere.
For Subsequent orders see RA-CW-118-2021 Decided by HON’BLE MR. JUSTICE RAJBIR SEHRAWAT
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Since the petitioner is having a statutory remedy, therefore, this
Court does not deem it appropriate to interfere in the present petition; at this
stage.
Hence the present petition is dismissed.
(RAJBIR SEHRAWAT)
JUDGE
April 07, 2021
sarita
Whether speaking / reasoned Yes
Whether Reportable: No
For Subsequent orders see RA-CW-118-2021 Decided by HON’BLE MR. JUSTICE RAJBIR SEHRAWAT
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