J. Venkatesan
.
New Delhi: The Armed Forces Tribunal, New Delhi, has expressed its anguish over lack of powers to get its orders executed. Many a time it has found itself helpless as its orders are not being implemented by authorities, said the Tribunal.In a brief order, the Tribunal, comprising Chairperson Justice A.K. Mathur and M.L. Naidu, said it had issued notice to all authorities including the Defence Secretary but to no avail. “The orders are at the mercy of the authorities; if they wish, they can execute and if they do not wish, they may not. This is a serious thing which has already been taken up with the government, but without any result.” No provision in Act
The Tribunal said: “We feel that we are handicapped because we do not have powers to issue civil contempt to get the orders of the Tribunal executed. It is sad that the power of civil contempt has not been given in the Armed Forces Tribunal Act. It may be an error or omission or may be deliberate… We feel helpless in the matters.”The only power to prosecute a person for criminal contempt had been given under Section 19.
“It is a very strange state of affairs and we are sorry to say that we cannot help the petitioner [in this case in which the order passed on January 25, 2010 has not been implemented so far].”
The Tribunal had ordered the Army to reinstate Fayaz Khan, after quashing a summary court martial that dismissed him from service as a religious teacher in 25 Rajput Regiment on charges of having links with Islamic terror groups.
Pointing out that the lack of civil contempt power was greatly hampering its functioning, the Tribunal said a recommendation had been sent to the government for making an amendment in the Act. The Tribunal granted leave to the petitioner to approach the Supreme Court, which could give proper directions to make it functional and effective
Online edition of India's National Newspaper
So, what does one do? Earlier in Nov 2010, Justice Mathur of the Principal Bench AFT, Delhi (de-facto boss of all AFTs) had said at a seminar that of 4000 cases filed by veterans since the inception of AFTs a year ago, in 3600 cases judgements issued have been favourable to the veterans and against the Govt but, sadly, the Govt has not acted upon even one of the judgements. He had felt that the AFTs would serve no purpose unless it is given more teeth- power to get its judgements implemented. It is a sad story, every way.
ReplyDeleteBrig VA Subramanyam, Chennai
AFT has powers of contempt and can take coercive action in case of non-implementation of its orders : Kerala High Court.
ReplyDeleteIn a proactive decision, a Division Bench of the Hon’ble Kerala High Court has cleared the fog.
The High Court has held and interpreted that a combined reading of Sections 19 and 25 of the AFT Act and Rule 25 of the statutory AFT Procedure Rules, goes to show that the Tribunal shall very much have the inherent jurisdiction to take coercive action for non-implementation of its orders by treating it as criminal contempt. The High Court has ruled that non-implementation of the final orders of the Tribunal amounts to obstruction and interference with the course of justice, and is hence criminal contempt for which the Tribunal is entitled to initiate prosecution proceedings under Section 19(1) of the AFT Act. Usually, it is the jurisdiction under civil contempt that is invoked by Courts in cases of disobedience of orders and directions.
It may be recalled that while the powers of criminal contempt are explicitly provided to the Tribunal under the Act, there is no mention of civil contempt in the entire statute. The absence of substantive provisions of civil contempt in the AFT Act however appears to be deliberate rather than a mere omission since the Administrative Tribunals Act on the civil side (by which the Central Administrative Tribunals are governed) has granted full powers of civil contempt to CATs and moreover there is a mention of civil contempt in various rules and forms appended with the statutory AFT Rules also albeit without any supporting section in the primary Act, a fact which points to some kind of mischief at the drafting stage wherein the provision which existed in the initial drafts of the AFT Act was deliberately omitted from the final version submitted to the Law Ministry and then to the Parliament. Perhaps the Ministry of Defence knew that non-compliance of the orders would remain a rule rather than an exception. It may be recalled that more than 90% of orders passed by Hon’ble High Courts and Tribunals, especially in pensionary matters, are not implemented till the time a contempt petition is filed.
Navdeep Singh
navdeepsingh.india@gmail.com
Subject: Implementation of AFT Judgements
ReplyDeleteDear Sir,
It would be incorrect to say that No Judgement of the AFT have been implemented by the Govt so far; As far as the Jaipur Bench is concerned, most of the Judgements have been implemented; though a bit late and not within the stipulated three months. The issue primarily concerns the Power of contempt provided in the AFT Act. Whilst the power of Criminal contempt has been provided, the power of Civil contempt is not there. Implementation of judgements would be facilitated if the power of Civil contempt is provided in the Act, as is inclusive in the CAT and all other tribunal acts.
Susheel Gupta
gupta_susheel48@yahoo.com
Integrated HQ of MoD (ARMY) have no/zero fear against Armed Forces Tribunal.AFT is a white elephant/without enough power/helpless in front of IHQ of MoD (Army).They are Implementing their orders timely.
ReplyDelete