Ritul Chatterjee vs Union Of India And Others

Vide this OA, applicant has invoked the jurisdiction of this Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007 (hereinafter referred

to as 'the AFT Act') and has called in question tenability of the Show Cause Notice (SCN) issued on 16.05.2019 at Annexure A-1, whereby he has

been asked to show cause as to why he should not be discharged from service on account of the fact that he was appointed in a direct recruitment

process on a quota reserved for meritorious sportsman in the rank of `Naib Subedar', it is alleged that he failed to achieve qualit ative requirements for

retention in service, while on probation, and, therefore, the Show Cause Notice has been issued, as his achievements and services have not been

satisfactory. Challenging the Show Cause Notice, the jurisdiction of this Tribunal is invoked.

Finding some substance in the allegations made in the application filed under Section 14 of the AFT Act, at the time of issuing notice to the

respondents on 17.09.2019, all coercive action were directed to be kept in abeyance as an interim measure.

Now the respondents have filed a detailed counter affidavit and have tried to justify their action and during the course of hearing, learned counsel

vehemently argued that, at this stage, when only Show Cause Notice has been issued to the applicant and he has already submitted his reply thereto,

even before the Competent Authority takes a decision in the matter, invoking the jurisdiction of this Tribunal is not called for, particularly when, after a

final decision is taken by the Competent Authority, the petitioner has statutory departmental remedy available and it is only after exhausting the

departmental remedy, in view of Section 21 of the AFT Act, this Tribunal can interfere into the matter.

We have considered the rival contentions of the parties and we find that the applicant, after due scrutiny and approval of the Competent Authority

and finding him to be outstanding sportsperson, was recruited as `Naib Subedar (Sportsman)'. However, the grievance of the applicant is that, even

though he was recruited in the 'Sports Quota', he was allotted the trade of 'Gunner (Driver Mechanical Transport). Thereafter, this was changed and

after amendment in the order of appointment, the applicant was classified as `Naib Subedar (Sportsman)'. It is contended that by putting him for

training as the regular army service recruit, the applicant could not concentrate on his sports activities, could not take up the required training and,

therefore, in the absence of proper training, his performance as a Sportsman was adversely affected. Contending that contrary to the rules and

policies, the applicant was not given proper posting and he was not provided proper training facilities, which affected his performance, jurisdiction of

this Tribunal has been invoked.

Respondents have filed a detailed counter affidavit and have indicated that contentions of the applicant are not correct. Merely because the

applicant is recruited in the 'Sports Quota', it does not mean that except for indulging in sports activities, he is not required to perform any other army

related activities. It is the case of the respondents that as per the rules and policies, the requirement of training and attending to sports curriculum are

adequately taken care of. Even though detailed submissions in rebuttal were made in this regard by the applicant and were disputed by the

respondents, at this stage, the moot question is as to whether this Tribunal is required to go into all these aspects on merit and interfere, when only a

Show Cause Notice has been issued and based on the reply filed by the applicant, a final decision into the matter is yet to be taken by the Competent

Authority. In our considered view, the contentions of the applicant cannot be looked into by us, for the present, and by stepping into the shoes of the

Competent Authority, who is yet to take a decision in the matter, we cannot substitute our decision for that of the Competent Authority and proceed to

grant any benefit to the applicant. There being a Show Cause Notice only, which is issued to the applicant, the explanations and justifications given by

the applicant for his performance and various other grounds canvassed before us, which do form part of the reply to the Show Cause Notice, should

be appreciated by the Competent Authority, at the first instance, a decision taken by application of mind and passing a speaking order, thereafter the

applicant should take recourse to the departmental remedy(s) available, it is then only that the statutory powers available to us could be invoked.

Accordingly, in the facts and circumstances of the case, in our considered view, at this stage, when only a Show Cause Notice has been issued and

a decision is yet to be taken by the Competent Authority, no interference is called for. We, accordingly, dispose of this application with liberty to the

applicant to make additional submissions to the Show Cause Notice, if advised, and further direct the Competent Authority to take a decision on the

Show Cause Notice issued within a reasonable period of time and thereafter the parties are free to proceed in the matter in accordance with law.

With the aforesaid, the application stands disposed of. Accordingly, the interim order passed on 17.09.2019 also stands vacated. No order as to

costs.

Pronounced in open Court on this 4th day of November, 2020.