Dismissed

Balakrishnan.v.P v. Union of India

Kerala HC15 Sept 2020WP(C)/11311/2020

Case brief

AI extract

What is this about?

The Kerala High Court held that the petitioner must re-present his Original Application before the Armed Forces Tribunal after curing defects, as the High Court is barred from intervening despite the Tribunal's shortage of members. Parliament. Exception: If the respondent(s) of the respondent's order(s) to the Tribunal have been served, the petitioner must cure the defect. The petitioner must pres

What did the court decide?

The petitioner was directed to re-present his Original Application after curing defects in accordance with the Tribunal's new SOP.

Balakrishnan.v.P Vs Union of India — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942

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WP(C).No.11311 OF 2020(L)

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PETITIONER:

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BALAKRISHNAN.V.P, AGED 69 YEARS S/O. GOPALAN (WRONGLY MENTIONED AS GOVINDAN V.P IN SERVICE RECORDS) EX.NO 13915985, RANK SEP. VAZHAYIL VADAKETHIL, PAVUKKARA P.O, MANNAR, CHENGANNUR, ALAPUZHA DISTRICT PIN 689 622

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BY ADVS. SRI.P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN

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RESPONDENTS:

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1 UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI PIN 110 001

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2 THE SENIOR RECORD OFFICER, EME RECORDS., SECUNDARABAD, PIN 500 021

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3 THE DIRECTOR OF GENERAL CONTROLLER OF DEFENCE ACCOUNTS (PENSION), ALLAHABAD, UTTARPRADESH PIN 211014

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4 THE OIC RECORDS LUCKNOW, UTTARPRADESH PIN 226001

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R1-4 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC 11311/20

JUDGMENT

The petitioner says that he had earlier

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approached the Armed Forces Tribunal, Regional Bench, Kochi (hereinafter referred to as 'the Tribunal' for short), seeking that the respondents therein be directed to pay him the disability pension; but that the same was disposed of through Ext.P2 order, directing the competent Authority of the Union of India to pass orders on his statutory appeal, which was stated to have

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been pending before them at that time.

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2. The petitioner says that, however,

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the 2 nd respondent herein issued Ext.P3

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proceedings saying that no appeal had been received in his office; and that, therefore, he preferred Ext.P4 appeal again, which is dated 20.07.2015. He says that, however, Exhibit P4 also has not been considered by the said Authority until now; and therefore,

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that he preferred an Original Application

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before the Tribunal again in the year 2019,

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which, however, had been returned saying that there are certain defects therein which, though he was ready to cure and represent, could not be so done because the Tribunal did not have sufficient members to to resume sitting. He, therefore, prays that

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respondents 1 and 2 be directed to consider Ext.P4 appeal at the earliest.

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3. Sri.P.Vijayakumar, the learned

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Assistant Solicitor General, submitted that a statement has been filed by him wherein, it has been clearly stated that, even though the

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petitioner had preferred an O.A on 28.01.2019, there were some defects therein, and that it was returned to him for curing the same. He then submitted that since the petitioner has not represented the O.A. after

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curing defects, the Tribunal has not been able to consider the same; and asserted that

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this is only on account of the fault of the petitioner and no one else. He completed his

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submissions by saying that even though there

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are no members in the Kochi Regional Bench of the Tribunal as of now, a Standard Operating

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Procedure (SOP) has been now published wherein, all matters be that pending, new or old - have been directed to be heard through video-conferencing. He thus prays that this Writ Petition be dismissed and that the petitioner be directed to approach the Tribunal appropriately.

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4. Sri.P.Haridas, learned counsel for

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the petitioner, in response, submitted that his client is now over 70 years in age and that he has been litigating for the last several years. He, therefore, prays that going by the various judgments of the Hon'ble Supreme Court covering the field, this Court

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may direct respondents 1 and 2 to take up

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Ext.P4 appeal and dispose of the same at the earliest.

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5. Even though, in normal circumstances,

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this Court could have acceded to the request

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of the learned counsel for the petitioner as

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above, in this particular case I am incapacitated from doing so because, as is evidenced by Ext.P2 order, the Tribunal had, as early as on 21.01.2013, directed that the pending appeal of the petitioner be disposed of by the respondents therein, who are also

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the respondents in this Writ Petition. However, the petitioner, in paragraph 6 of this Writ Petition, clearly avers that the appeal which he had preferred before the respondents had not been served on them on account of a mistake in the address to which

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he had sent the same. The petitioner also then concedes that he, thereafter, preferred Ext.P4 appeal on 25.07.2015 and alleges that

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the same has not been yet considered.

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6. As is evident from the afore

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narrative, Ext.P4 is not the appeal that had

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been directed to be considered by the

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Tribunal through Ext.P2 order. It is

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admittedly a new appeal because, the one that

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the petitioner had earlier preferred had not been received the respondents on account of an error in their address to which it had

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been sent.

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7. I am, therefore, of the view that since the petitioner has now already invoked his alternative remedy of approaching the Tribunal again by filing an O.A., which is presently stated to be having certain defects, he must re-present the same, after curing them, so that the matter can be heard by the Tribunal through videoconferencing as has been stipulated in the new SOP.

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In the afore circumstances, I dispose of this Writ Petition, leaving liberty to the petitioner to re-present the new O.A. filed by him, after curing the defects, in the

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manner as is stipulated in the new SOP published by the Union of India, so that the same can be reconsidered by the Tribunal through video-conferencing on the available dates.

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At this time, Sri.P.Haridas, learned

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counsel for the petitioner, interjected to

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say that if respondents 1 and 2 are still willing to consider Ext.P4, it may be

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clarified that this judgment will not stand in their way of doing so.

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It is needless to say that

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notwithstanding the directions herein if

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respondents 1 and 2 are willing to consider Ext.P4 appeal on their own then nothing

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prevents them doing so.

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Sd/-

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DEVAN RAMACHANDRAN

JUDGE

WPC 11311/20

APPENDIX OF WP(C) 11311/2020

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE DISCHARGE CERTIFICATE DATED 26-6-1978 EXHIBIT P2 TRUE COPY OF THE ORDER IN OA NO. 173/2012 DATED 21-1-2013 BY THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE COMMUNICATION NO. R/13915985/DPR-1/DP/B-50 DATED 8-42013 BY THE ARMY MEDICAL CORPS RECORD OFFICE. EXHIBIT P4 TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER DATED 25-07-2015

Balakrishnan.v.P v. Union of India

Case brief

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Balakrishnan.v.P v. Union of India

Case brief

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