Thursday, 30 January 2014
Beginning of the End of Defiance ? Imposition of Costs on MoD (ESW) and JCDA (AF)
IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI
In OA 106/2009
Wg Cdr (Retd) VS Tomar ........Petitioner
Union of India & Ors. .......Respondents
For petitioner: In person
For respondents: Mr.Ankur Chhibber, Advocate
Dr. BK Singh, Jt. CDA (AF)
HON’BLE MR. JUSTICE PRAKASH TATIA, CHAIRPERSON.
HON’BLE LT. GEN. S.K.SINGH, MEMBER.
O R D E R
1. The Tribunal final order was passed on 07.12.2011 in OA 106/2009. The said order was not implemented and the petitioner approached this Tribunal by filing Execution petition being M.A. No. 19/2012. When the matter was listed before the Bench on 21.01.2013 it was pointed out by the learned counsel for respondents that a SLP has been filed to challenge the order dated 07.12.2011. Even after taking note of such submission the Tribunal passed the order directing that the respondents to implement the order subject to the order of the Hon’ble Supreme Court. The Bench of the Tribunal was under the bona fide impression that the order of the Tribunal will be executed with the above stipulation and therefore, the petitioner’s execution petition of M.A. No. 19/2012 was disposed off. Neither any order was obtained from the Supreme Court nor was the order implemented. The aggrieved petitioner then again approached this Tribunal by filing fresh execution petition i.e. M.A. No.673/2013. In this M.A. No.673/2013 we have already taken note of above facts in our first order dated 05.12.2013. In order dated 16.12.2013 we also observed that, ‘we can take judicial notice of the fact that whenever Govt wants they can pursue the SLP vigorously’. But in this case, in spite of the Tribunal’s order dated 21.01.2013 passed in M.A. No. 19/2012 nothing has been done. The copy of the order dated 16.12.2013 was sent to the Secretary, Ministry of Defence, Govt. of India for taking appropriate action against the guilty person who did not pursue the matter before the Supreme Court. We also directed that Jt. Controller of Defence (Accounts) to remain present before us on 09.01.2014 to explain as to why the Tribunal’s final order dated 07.12.2011 has not been implemented in spite of further clear direction given in order dated 21.01.2013 passed in M.A. No. 19/2012. On 09.12.2013, it was submitted that the concerned officer is on election duty from 08.01.2014. In view of the above bona fide reason the personal appearance of 09.01.2014 was dispensed with and again the Jt. Controller of Def. Accts. was directed to give a written explanation as to why the Tribunal’s final order which was passed as back as on 09.12.2011 has not been implemented. The matter was adjourned to 05.1.2014 and today the matter has come up for consideration.
2. Dr. BK Singh, Jt. CDA (AF) submitted that an SLP has already been preferred in a connected matter wherein notice has been issued by the Hon’ble Supreme Court and said SLP is likely to be listed before Supreme Court for 04.02.2014. It is pointed out by the learned counsel for UOI that by Tribunal’s final common order dated 07.12.2011, three matters i.e. OA 106/20009 and OA 76/2011 and OA 24/2011 were allowed. The SLPs have been preferred in OA 106/2009 OA 76/2011 only. The SLP preferred against the order passed in OA 76/2011 (not of present petitioner’s case) was listed before the Supreme Court wherein the notice has been issued and that SLP is coming up on 04.02.2014, whereas the other SLP preferred to challenge the order passed in OA 106/2009 (in present petitioner’s case) yet has not been listed. So far as order passed in OA 24/2011 is concerned SLP has not been preferred.
3. This is the state of affair, after order dated 07.12.2011 and after the order of the Tribunal dated 21.01.2013 passed in M.A. No. 19/2012 filed in OA 106/2009 and even after orders in MA 673/2013 dated 16.12.2013 and 09.01.2014. The officer Dr BK Singh, Jt. CDA (AF) present before us drew our attention to one communication dated 13.01.2014. The said communication we would like to quote which is as under:-
Ministry of Defence
Department of Ex-Servicemen Welfare
Sub: Civil Appeal No. D/41574/2012 filed by UOI & Others Vs Wg VS Tomar (Retd) before the Hon’ble Supreme Court of India – Hearing of MA No.673/2013 (in OA No.106/2009)
uring the hearing of the subject case on 09.01.2014 by the representative of JCDA (AF) that the JCDA was on election duty and would become available on 13.01.2014. Keeping that in view, the Hon’ble Tribunal directed the presence of JCDA (AF) on 15.01.2014 to explain the non-implementation of Tribunal’s final order dated 07.12.2011 in spite of clear directions given in their order dated 21.01.2013 passed in MA No.19/2012.
2. In this connection JCDA (AF) is requested to immediately ascertain status of subject Civil Appeal and inform the same to Hon’ble Tribunal during his presence on 15.01.2014. The Hon’ble AFT may also be informed that their order cited above was not implemented as a Civil Appeal assailing the same has been filed before the Apex Court and its hearing is awaited.
( R.K.Arora )
Under Secretary (Pension/Legal-I)
4. In this communication, it has been taken note of that the present Execution Petition M.A. No. 673/2013 was listed before the Tribunal on 09.01.2014 and the Tribunal has directed the Jt. Controller of Defence Accts (AF) to remain present on 15.01.2014 to explain the (reasons) for non-implementation of Tribunal’s final order dated 07.12.2011 in spite of clear direction given in order dated 21.01.2013 passed in M.A. No. 19/2012. By this communication dated 13.01.2014 direction was issued that JCDA (AF) is requested to immediately ascertain the status of the civil appeal and inform the same to the Hon’ble Tribunal during his presence on 15.01.2014. By this communication the said officer was directed to inform the Tribunal that above order was not implemented as a civil appeal assailing the same (order) has been filed before the Supreme Court and its hearing is awaited.
5. It appears that there is deliberate avoidance of the order of the Tribunal dated 21.01.2013 passed in M.A. No. 19/2012 whereby a specific direction was given that even when the SLP is pending the respondents shall pass the appropriate order to implement the Tribunal’s final order 07.12.2011 subject to the order of Hon’ble Supreme Court. The said order dated 21.1.2013 reiterated again in order dated 16.12.2013 wherein we also observed that this is a choice of the Govt. in which matter they would vigorously pursue the appeal or SLP before the Supreme Court and the Tribunal clearly observed that such an attitude indicate that filing of SLP may be pretext for avoiding the implementation of the order. Copy of this order was sent to the Secretary, Ministry of Defence, Govt. of India for taking appropriate action against the guilty person who did not pursue the matter before the Supreme Court if the Govt. was really serious to challenge the order of the Tribunal. Nothing has been given in writing as required by order dated 09.01.2014 by which we directed that JCDA will give a written explanation as to why the Tribunal’s final order was not implemented.
6. Orally only it is submitted that the JCDA personally approached the Secretary, ESW, who is the sanctioning authority and appraised her about the order directing the JCDA to remain present before the Tribunal.
7. There is general impression among the litigants that the Tribunal is “toothless” in absence of power to punish the disobedience of its own order. The subject to give power to punish the guilty person for disobedience of the order of the Tribunal is pending before the Govt. since long. It is difficult to know the reason as to what is the hitch for the Govt. in punishing the guilty officers in contempt proceeding upon non-implementation of judicial order of the Tribunal. The Ministry is therefore, directed to submit its stand whether they want to shield the officers in the Defence Ministry deliberately, continuously, consciously. So far as implementation of the orders of this Tribunal are concerned the Tribunal has statutory jurisdiction under Section 29 to execute the orders and for securing the execution of the order, even if straightway civil contempt proceedings cannot be initiated even then the Tribunal has ample power to take all modes of execution including not only imposition of fine upon the Government and the guilty officer but also has power to attach the property and put on auction. For securing the implementation of the order, the Tribunal can pass order for holding Departmental Enquiry also and submit the result before the Tribunal. All above orders are passed in aid to secure implementation of the orders of the Tribunal in execution petitions.
8. We are constrained to observe here that the copy of the order dated 16.12.2013 was directed to be sent to the Secretary, Ministry of Defence, Govt. of India and such an order is required to be reached to the concerned authority because of the reason, such order was passed in the presence of Union of India’s representative, which includes the representative of the Secretary, Ministry of Defence, Govt. of India. Yet no information has been given to us what action was taken by the Defence Secretary in view of our above order.
9. Since, today in spite of all above orders, admittedly, no steps have been taken for implementation of order nor there is any intention to implement the order on pretext of SLP preferred and pretext has been made clear by communication dated 13.01.2014 whereby officially it has been conveyed to the JCDA to inform the Tribunal that order was not implemented as civil appeal has been preferred to challenge the order of the Tribunal, therefore, the Ministry has declared that they will flout the order of the Tribunal dated 21.1.2013 by a written order.
10. Therefore, for implementation of the order we are giving further two weeks of time on payment of Rs.10, 000/- by the officer Dr. BK Singh, JCDA who is present before us as well as cost of Rs.10, 000/- is imposed upon the Secretary, Ex-Servicemen Welfare (ESW). The cost shall be paid to the petitioner on next date of hearing or before that day. The Jt. Controller of Def. Accts (AF) who is present today as well as the Secretary, ESW, Ministry of Defence, Govt. of India shall remain present before us on next date of hearing.
11. The Secretary, Ministry of Defence, Govt. of India is directed to submit what steps have been taken against the guilty person who did not pursue the matter before the Supreme Court (if Govt. wanted to pursue the SLP) and what action was taken by the Secretary, Ministry of Defence by order dated 16.12.2013.
Put up on 06.02.2014.
( PRAKASH TATIA )
( S.K.SINGH )
Dated the 21stJanuary, 2014