1. This is an application filed by the Appellant under Section 14(4(d) & 14(5) of the Armed Forces Tribunal Act, 2007 (AFT Act) challenging the attachment order dated 3.11.2016 passed by the Respondents under Army Instruction 30/86. The appellant has claimed the following reliefs:—
i) Quash attachment order dated 03.11.2016 (Annedurte-A-1) and
ii) Quash the Tentative Charge Sheet (Annexure-A2) and hearing of charge proceedings and,
iii) Quash the Summary of Evidence proceedings and/or
iv) Pass any other order or further orders, instruction/s, direction/s as this Hon'ble Court may deem just and appropriate in the facts and circumstances of the case.
v) Allow this application with costs.
2. The main question involved in the instant matter is with regard to the challenge to the attachment order. So far as quashing of attachment order dated 03.11.2016 is concerned, the matter was referred to the Full Bench of the Tribunal to consider as to whether the attachment order is in the nature of a transfer and posting order and, therefore, it does not constitute a service matter within the definition of Section 3(o)(ii) of the AFT Act.
3. The Full Bench of the Tribunal has heard the instant OA and observed that the attachment order issued under Army Instruction 30/1986 will fall under the exception provided under Section 3(o)(ii) of the AFT Act so as to exclude it from the service matter inasmuch as in a case a very compelling and extra-ordinary and exceptional case is carved out. Meaning thereby that unless and until the attachment order is shown to be prima facie malicious or punitive or is actuated by any extraneous consideration, the attachment order is not treated as a service matter. In the instant case, no fact is pleaded, much less prima facie established by the appellant or that the attachment order is falling in any of the exceptional or extraordinary circumstances which may warrant entertaining the challenge to the same. Therefore, the challenge to the attachment order cannot be treated as a service matter.
4. So far as the prayer of the appellant for quashing of tentative charge sheet or quashing of summary of evidence of proceedings is concerned, both these prayers have become infructuous as on date because a formal charge-sheet was given to the appellant and on the strength of the same Court Martial proceedings have been conducted and the sentence has been pronounced, though the same is stated to be pending for confirmation.
5. Nevertheless, the very fact that the Court Martial proceeding culminated into finding of guilt and sentence, therefore, all these three prayers at this point of time have become infructuous. Accordingly, the OA is dismissed.
6. File be consigned to the record room.