COL. NIKHIL PAREEK Vs. UNION OF INDIA

JUDGEMENT

(1.) The appeal is directed against an order dated February 8, 2021 passed in WPA 124 of 2021 with IA no. CAN 1 of 2021. By the impugned order, the learned Judge was pleased to not to entertain the writ petition on the ground that the writ petitioner possessed an alternative efficacious remedy in the form of Armed Forces Tribunal.

(2.) Aggrieved by such order, the present appeal is at the behest of the writ petitioner.

(3.) Learned advocate appearing for the appellant submits that as on the date of filing of the writ petition and till date, the Kolkata Armed Forces Tribunal, Regional Bench is not functioning. He refers to the documents annexed to the affidavit filed on behalf of the respondents affirmed on June 10, 2022 and submits that, none of the notices annexed to such affidavit, establishes by any stretch of imagination that, the Regional Bench, Kolkata of the Armed Forces Tribunal is functioning. He refers to the provisions of the Armed Forces Tribunal Act, 2007. He draws the attention of the Court to Ss. 5, 7 and 20 of the Act of 2007. He draws the attention of the Court to the notices annexed to the affidavit of the respondents affirmed on June 10, 2022. He submits that the two members said to constitute the Kolkata Regional Bench, Armed Forces Tribunal by the notices is not a constitution of the Bench in accordance with law. He refers to the powers of the Chairperson. He submits that under Sec. 5 of the Act of 2007, the Chairperson of the Armed Forces Tribunal may discharge the functions of a member of any other Bench than the principal Bench but such Chairperson should be considered as an Administrative Member in terms of Sec. 5(3) (a) of the Act of 2007. He refers to Sec. 7 of the Act of 2007. He contends that, any member, be it a Judicial member or an Administrative member to the Bench is appointed by way of an notification. The two members spoken of in the notices relating to the Kolkata Regional Bench of the Armed Forces Tribunal as relied upon by the respondents were not notified to be members of the Kolkata Regional Bench. Therefore, according to him, the Chairperson cannot constitute the Kolkata Regional Bench by way of transfer of any member from any other Bench to the Kolkata Regional Bench. He refers to Sec. 20 of the Act of 2007 and submits that, Sec. 20 of the Act of 2007 does not vest the Chairperson with the power to appoint a member to the Kolkata Regional Bench.