2015 (1) TMI 1521 - HC - Indian Laws

Doctrine of forum conveniens - Jurisdiction of Principal Bench of the Armed Forces Tribunal at Delhi to entertain the original application in view of Rule 6 of the Armed Forces Tribunal (Procedure) Rules 2008 - place of cause of action - applicability of the legal maxim Generalia Specialibus Non Derogant in interpreting Rule 6(1) sub-clauses (i) and (ii) of the Procedure Rules - levy of original penalty order of censure - HELD THAT - Treating as if cause of action having accrued in Delhi had been pleaded with respect to the statutory appeal filed being rejected by the Central Government at Delhi noting the law declared by the Supreme Court in Kusum Ingots s case 2004 (4) TMI 342 - SUPREME COURT (LB) and the decision of this Court in Sterling Agro s case 2012 (6) TMI 76 - DELHI HIGH COURT - LB and the decision in Hav.Venkatagireppa s case 2012 (1) TMI 434 - DELHI HIGH COURT the Tribunal has held that the Principal Bench at Delhi would have no jurisdiction. An additional reason has been given by the Tribunal interpreting Rule 6 of the Armed Forces (Procedure) Rules 2008 applying the maxim Generalia Specialibus Non Derogant . The view taken by the Tribunal is that in view of clause (i) sub-Rule (1) of Rule 6 the place where the applicant is posted for the time being or was last posted or attached jurisdiction would be determined with respect to the territory thereof and said clause was the special provision made on the matter of jurisdiction and hence would exclude the general provision. The language of the Rule admits of no two meanings and we see no scope for a debate on the subject. The two sub-clauses are not competing with each other. One sub-clause deals with territorial jurisdiction with reference to the place of posting of the applicant for the time being or the place of last posting or attachment and independent of said clause the other clause deals with territorial jurisdiction with reference to the place where the cause of action wholly or in part has arisen. It cannot be said that sub-clause (i) is a special provision vis- -vis sub-clause (ii) - the view taken by the Tribunal interpreting Rule 16 of the Armed Forces (Procedure) Rules 2008 is incorrect and is overruled. The place where an original application can be filed could either be where the applicant is posted for the time being or was last posted or attached and it can well be the place where the cause of action wholly or in part has arisen. In the instant case the original penalty order of censure has been passed by an authority in Delhi. The appellate order has been passed by the appellate authority in Delhi. The entire record is available in the Army Headquarters at Delhi. There is no scope to relegate the petitioner to some other place applying the principle of forum conveniens because the convenient forum in the instant case would be the Tribunal at Delhi. Further a part of cause of action has accrued in Delhi because the penalty order as also the appellate order have emanated from Delhi. Conclusion - i) It is declared that the Principal Bench of the Armed Forces Tribunal at Delhi has the jurisdiction to entertain the original application and the place of convenient forum is the Armed Forces Tribunal at Delhi. ii) The impugned order set aside returning the original application and declared that the Principal Bench of the Armed Forces Tribunal at Delhi has jurisdiction to entertain the application and that Delhi is the place of convenient forum. The impugned order dated August 06 2014 returning OA No. 47/2014 to the petitioner is set aside - petition allowed.

The core legal questions considered by the Court revolve around the territorial jurisdiction of the Armed Forces Tribunal (AFT) Principal Bench at Delhi to entertain an original application filed by a petitioner challenging penalty and appellate orders. Specifically, the issues include:

Whether the Principal Bench of the Armed Forces Tribunal at Delhi had territorial jurisdiction to entertain the original application under Rule 6 of the Armed Forces Tribunal (Procedure) Rules, 2008.
The proper interpretation and application of Rule 6(1)(i) and (ii) regarding territorial jurisdiction-whether the place of posting or last posting of the applicant, or the place where the cause of action arose (wholly or in part), determines jurisdiction.
The applicability of the legal maxim "Generalia Specialibus Non Derogant" in interpreting Rule 6(1) sub-clauses (i) and (ii) of the Procedure Rules.
The relevance of the cause of action, including appellate orders, in determining territorial jurisdiction.
The role of the doctrine of forum conveniens in deciding whether the Court or Tribunal should entertain a petition despite having territorial jurisdiction.

Issue-wise Detailed Analysis

1. Territorial Jurisdiction under Rule 6 of the Armed Forces Tribunal (Procedure) Rules, 2008

The legal framework is Rule 6 of the Armed Forces Tribunal (Procedure) Rules, 2008, which provides that an application shall ordinarily be filed with the Registrar of the Bench within whose jurisdiction:

(i) The applicant is posted for the time being, or was last posted or attached; or
(ii) Where the cause of action, wholly or in part, has arisen.

There is also a proviso allowing filing with the Principal Bench with the Chairperson's leave and a separate provision for persons who have ceased to be in service.

The Tribunal had held that clause (i) is a special provision and clause (ii) a general provision, applying the maxim "Generalia Specialibus Non Derogant" to exclude clause (ii) in favor of clause (i). The Tribunal concluded that the Principal Bench at Delhi lacked jurisdiction because the petitioner's last posting was not within its territorial jurisdiction.

The Court rejected this interpretation, noting that the language of Rule 6 admits no ambiguity and that the two sub-clauses are not mutually exclusive or in conflict. Clause (i) deals with jurisdiction based on posting, while clause (ii) independently deals with jurisdiction based on cause of action, wholly or in part. The Court held that clause (ii) is not excluded by clause (i) and that both can independently confer jurisdiction.

Regarding the maxim "Generalia Specialibus Non Derogant," the Court explained that it applies only where there is a conflict between a special and a general statute or provision, and that no such conflict exists between the two sub-clauses of Rule 6(1). The Court cited authoritative texts and precedents to clarify that the maxim is not applicable here, as the sub-clauses address different aspects of jurisdiction and are not contradictory.

2. Cause of Action and Its Impact on Jurisdiction

The Court relied heavily on the decision of the Five Judge Bench of the same High Court in Sterling Agro Industries Ltd. vs. Union of India & Ors., which clarified the concept of cause of action for territorial jurisdiction in writ petitions. The Court noted that:

The appellate order of an appellate authority forms part of the cause of action, making the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is located.
Even if a minuscule part of the cause of action arises within a Court's jurisdiction, the writ petition is maintainable there.
The doctrine of forum conveniens remains relevant and may lead a Court to refuse to exercise jurisdiction despite territorial jurisdiction existing.
The situs of the tribunal or appellate authority alone does not determine the forum conveniens; it depends on the facts and nature of the lis.

The Court observed that the Division Bench decision in Hav. Venkatagireppa's case, which held that rejection of a statutory complaint does not give rise to a cause of action even in part, misconstrued this law. The Court emphasized that a part of cause of action arising within the territorial jurisdiction suffices to confer jurisdiction.

3. Forum Conveniens and Its Application

The Court distinguished between territorial jurisdiction and the discretionary power of a Court or Tribunal to refuse to entertain a petition on the ground of forum conveniens. It clarified that:

Having territorial jurisdiction does not mandate the Court or Tribunal to adjudicate the matter if forum conveniens principles suggest otherwise.
Forum conveniens is applied based on convenience factors such as availability of evidence, witnesses, and the interests of justice.
If a Court or Tribunal refuses jurisdiction on forum conveniens grounds, it must state the factual basis for such refusal.

In the instant case, the Court found no reason to apply forum conveniens to refuse jurisdiction to the Principal Bench at Delhi because:

The penalty order and appellate order were passed in Delhi.
The entire record was available at Delhi.
Therefore, Delhi was the convenient forum for adjudication.

4. Application of Law to Facts and Key Findings

The petitioner was granted a Short Service Commission in the Indian Army and later a permanent commission, attaining the rank of Lieutenant Colonel. After being found unsuitable for promotion to Colonel, he was posted to an NCC unit. A Court of Inquiry was held due to allegations of leave without handing over charge, and a penalty of censure was imposed by the Director General, NCC at Delhi. The petitioner's statutory representation was rejected by the Central Government in Delhi.

The petitioner filed an original application before the Principal Bench of the Armed Forces Tribunal at Delhi challenging the penalty and appellate orders. The Tribunal initially declined jurisdiction relying on Rule 6 and the maxim "Generalia Specialibus Non Derogant," as well as precedent.

The Court, after detailed analysis, held that the Tribunal had jurisdiction based on the cause of action arising in Delhi (penalty and appellate orders) and that the principle of forum conveniens favored Delhi as the convenient forum.

5. Treatment of Competing Arguments

The Tribunal's argument that clause (i) of Rule 6(1) excludes clause (ii) was rejected. The Court found no conflict between the two sub-clauses and held that both independently confer jurisdiction.

The Tribunal's reliance on the maxim "Generalia Specialibus Non Derogant" was found misplaced because the sub-clauses do not conflict and do not represent a special-general provision relationship.

The Division Bench's decision in Hav. Venkatagireppa's case was criticized for misinterpreting the law on cause of action and jurisdiction.

The Court also rejected any suggestion that the Tribunal should refuse jurisdiction on forum conveniens grounds, given the facts of the case.

Significant Holdings

"The language of the Rule admits of no two meanings and we see no scope for a debate on the subject. The two sub-clauses are not competing with each other. One sub-clause deals with territorial jurisdiction with reference to the place of posting of the applicant for the time being or the place of last posting or attachment, and independent of said clause, the other clause deals with territorial jurisdiction with reference to the place where the cause of action, wholly or in part has arisen. It cannot be said that sub-clause (i) is a special provision vis-`a-vis sub-clause (ii)."

"The maxim, 'Generalia Specialibus non Derogant' means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. This legal maxim is ordinarily attracted where there is a conflict between a special and a general statute and an argument of implied repeal is raised."

"A place where even a part of a cause of action has arisen would confer territorial jurisdiction."

"Merely because a Court, which would include even a Tribunal, would have territorial jurisdiction because some part of cause of action has accrued within the territorial jurisdiction of the Court would not mandate upon the Court, and which would include the Tribunal, to adjudicate the lis brought before it and that on the principles of forum conveniens, the Court, and which would include a Tribunal, can refuse to entertain the petition directing the petitioner before it to approach a Court where it would be convenient for the parties to litigate."

"In the instant case, the original penalty order of censure has been passed by an authority in Delhi. The appellate order has been passed by the appellate authority in Delhi. The entire record is available in the Army Headquarters at Delhi. There is no scope to relegate the petitioner to some other place applying the principle of forum conveniens because the convenient forum in the instant case would be the Tribunal at Delhi. Further, a part of cause of action has accrued in Delhi because the penalty order as also the appellate order have emanated from Delhi."

The Court set aside the impugned order returning the original application and declared that the Principal Bench of the Armed Forces Tribunal at Delhi has jurisdiction to entertain the application and that Delhi is the place of convenient forum. The Tribunal was directed to adjudicate the matter on merits.

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