Order Convening General Court Martial Can Be Challenged Before AFT, Holds SC [Read Judgment]

The Supreme Court has held that an order convening a General Court Martial can be challenged before an Armed Forces Tribunal.

Assailing an order of the Tribunal, the Union of India had approached the Apex Court contending that an order by which the General Court Martial was convened cannot be the subject matter of an appeal before the Tribunal. It was urged that the jurisdiction of the Tribunal is only for adjudication of complaints and disputes regarding service matters and appeals arising out of the verdicts of the Court Martial.

In the instant case [Union of India vs. PS Gill], the Original Application was filed before AFT, Delhi, both under Sections 14 and 15 of the Armed Forces Tribunal Act. Section 15 confers jurisdiction and power on the Tribunal to entertain appeal against any order, decision, finding or sentence passed by a Court Martial.

The bench comprising Justice L. Nageswara Rao and Justice Hemant Gupta noted that as there was no order, decision, finding or sentence by the Court Martial, an appeal under Section 15 per se is not maintainable. However, it took note of Section 14 which enables a person aggrieved to make an application to the Tribunal in any service matter. The court, referring to the definition of 'service matter', observed that conditions of service also include dismissal from service. It said:

Any matter relating to the conditions of service falls within the definition of 'service matters' under Section 3 (o) of the Act and can be the subject matter of an application filed before the Tribunal. 'Conditions of service' mean those conditions which regulate the holding of a post by any person right from the time of his appointment till his retirement and even after his retirement including pension etc. Therefore, conditions of service also include dismissal from service.

While upholding the AFT order, the bench said:

"It is clear from the above that any proceeding which leads to an order of termination would fall within the expression 'relating to conditions of service'. In any event, the proceedings initiated against the Respondent cannot be said to be not related to his service. A final order to be passed by the General Court Martial, apart from the imposition of other penalties, might have led to the termination of the service of the Respondent..

.. We have no doubt in our mind that Section 14 of the Act which confers jurisdiction over service matters of the Army personnel should receive wide construction. This Court had held that an interpretation which confers jurisdiction should be preferred over an interpretation which takes away jurisdiction. 

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