TMI Blog2015 (11) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGEMENT SUDHANSU JYOTI MUKHOPADHAYA, J In these appeals the question raised is whether the right of appeal under Section 30 of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as the 'ct'), against an order of Armed Forces Tribunal (hereinafter referred to as the 'Tribunal') with the leave of the Tribunal under Section 31 of the Act or leave granted by the Supreme Court, or bar of leave to appeal before the Supreme Court under Article 136(2) of the Constitution of India, will bar the jurisdiction of the High Court under Article 226 of the Constitution of India regarding matters related to Armed Forces. Union of India and others are the appellants in all these appeals except in C.A.No.7338, C.A.No. 7399 of 2013 and C.A.No.96/2014 wherein they are the respondents. The respondents in all these appeals except the three mentioned above are-Army Personnel who moved before the Tribunal for adjudication or trial of disputes and complaints with respect to condition of service. Having not granted relief, the Army personnel assailed the order passed by the Tribunal before the respective High Courts under Article 226 of the Constitution. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions. (iii) Article 227(4) of the Constitution does not exclude the jurisdiction of the High Court over the Armed Forces Tribunal as no such Tribunal existed when Article 227(4) of the Constitution was substituted. Similar submissions were made by the learned Senior Counsel for the respondent-Army Personnel. 5. For the determination of the present issue it is necessary to refer the relevant provisions of the Armed Forces Tribunal Act, 2007, the power of the High Court under Sections 226 and 227 of the Constitution, and the power of Supreme Court under Articles 32 and 136 of the Constitution. 6. The Armed Forces Tribunal Act, 2007 has been enacted to provide for adjudication or trial by Armed Forces Tribunal of disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force At, 1950 and also to provide for appeals arising out of orders, findings or sentences of Courts-Martial held under the said Acts and for matters connected therewith or incidental thereto. 7. As per Section 14 of the Act, the Armed Forces Tribunal has been establishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction, powers and authority, exercisable by all the Courts except the power of Supreme Court or a High Court exercising jurisdiction under Section 226 and 227 of the Constitution. 8. Section 15 specifies the jurisdiction, powers and authority to be exercised by the Tribunal relating to matters of appeal against the Court- Martial. The said Section reads as fellows: Section 15. Jurisdiction, powers and authority in matters of appeal against court-martial.-(1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a court martial or any matter connected therewith or incidental therto. (2) Any person aggrieved by an order, decision, finding or sentence passed by a court martial may prefer an appeal in such form, manner and within such time as may be prescribed. (3) The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it considers necessary: Provided that no accused pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 175, 178, 179, 180, 193, 195, 196 or 228 (45 of 1860) of the Indian Penal Code and Chapter XXVI of the Code of Criminal Procedure, 1973. (2 of 1974). Sub-section (2) of Section 15 specifies the right of any person to prefer an appeal against order, decision, finding or sentence passed by a Court-Martial. 9. Chapter V of the Act relates to appeal. Section 30 which provides for an appeal to the Supreme Court and Section 31 deals with leave to appeal. The said Sections read as under: Section 30. Appeal to Supreme Court :-(1) Subject to the provisions of section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19): Provided that such appeal is preferred within a period of ninety days of the said decision or order: Provided further that there shall be no appeal against an interlocutory order of the Tribunal. (2) An appeal shall lie to the Supreme Court as of right from any order or decision of the Tribunal in the exercise of its jurisdiction to punish for contempt: . Provided that an appeal under this sub-section shall be filed in the Supreme Court within sixty days from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f jurisdiction of civil courts .- On and from the date from which any jurisdiction, powers and authority becomes exercisable by the Tribunal in relation-to service matters under this Act, no Civil Court shall have, or be entitled to exercise, such jurisdiction, power or authority in relation to those service matters. 34. Transfer of pending cases .- (1) Every suit, or other proceeding pending before any court including a High Court or other authority immediately before the date of establishment of the Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen after such establishment within the jurisdiction of such Tribunal, stand transferred on that date to such Tribunal. (2) Where any suit, or other proceeding stands transferred from any court including a High Court or other authority to the Tribunal under sub-section (1),- the court or other authority shall, as soon as may be, after such transfer, forward the records of such suit, or other proceeding to the Tribunal; the Tribunal may, on receipt of such records, proceed to deal with such suit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be filed in the Supreme Court within sixty days from the date of the order appealed against. 3. Pending any appeal under sub-section (2), the Supreme Court may order that:- (a) the execution of the punishment or the order appealed against be suspended; (b) if the appellant is in confinement, he be released on bail; Provided that where an appellant satisfies the Tribunal that he intends to prefer an appeal, the Tribunal may also exercise any of the powers conferred under clause (a) or clause (b), as the case may be. 85. The Committee enquired about the nature of the proposed Tribunal, whether it would be a judicial, quasi judicial body in the line of Central Administrative Tribunal, the Ministry replied:- Since the Armed Forces Tribunal would be dealing with offences,legally awardable punishments and termination of service etc. and the Tribunal is being armed with the powers of contempt, it would be a judicial body. It would be a permanent Tribunal and a Court of record. 86. When Committee asked, whether appeal would be preferred in High Courts or Supreme Court, the Ministry stated: Clause 30 of the Armed Forces Tribunal Bill, 2005 provides that an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is a Constitutional violation of certain fundamental rights or there is a gross arbitrariness in an order of the Tribunal, then it will exercise its jurisdiction under article 226. In this connection, the Ministry of Defence in a written note stated: The proposed Armed Forces Tribunal Bill, 2005 does not envisage a situation where an accused can approach the High Court in an appeal against the order of the Tribunal. There can be no equation between the High Court and any other Tribunal. On the other hand, analogy can be drawn between the CAT and the proposed Armed Forces Tribunal. In CAT, single member also constitutes a Bench [section 5(6)]. However, in the Armed Forces Tribunal, the minimum number of members to constitute a Bench is two. Further, as opposed to the CAT where the Chairperson is a serving or retired High Court judge, the Chairperson of the Armed Forces Tribunal is a retired Supreme Court Judge or retired Chief Justice of the High Court. Further Article 227(iv) of the Constitution excludes the power of superintendence of High Courts over any court or Tribunal constituted by or under any law relating to the Armed Forces. Therefore, an accused cannot go t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. 16. Article 33 empowers the Parliament to restrict or abrogate the application of fundamental rights in relation to Armed Forces, Para Military Forces, the Police etc. (refer: Ous Kutilingal Achudan Nair vs.Union of India, (1976) 2 SCC 780). The said article reads as follows: Article 33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.-Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,- (a) the members of the Armed Forces; or (b) the members of the Forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or (d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32. 18. Article 227 relates to power of superintendence of High Courts over all Courts and Tribunals. It reads as follows: Article 227. Power of superintendence over all courts by the High Court.- (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. (2) Without prejudice to the generality of the foregoing provision, the High Court may- call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar vs. Union of India, (1997)3 SCC 261 a Bench of seven-Judge while dealing with the essential and basic features of Constitution - power of review and jurisdiction conferred on the High Court under Article 226/227 and on the Supreme Court under Article 32 held as follows: 75. In Keshav Singh, (1965) 1 SCR 413 while addressing this issue, Gajendragadkar, C.J. stated as follows: (SCC at pp. 493-494) If the power of the High Courts under Article 226 and the authority of this Court under Article 32 are not subject to any exceptions, then it would be futile to contend that a citizen cannot move the High Courts or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf; otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of the citizens' fundamental rights, and so, in the existence of the said judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh case, Beg, J. and Khanna, J. in Kesavananda Bharati [pic]case, Chandrachud, C.J. and Bhagwati, J. in Minerva Mills, Chandrachud, C.J. in Fertilizer Kamgar[(1981) 1 scc 568], K.N. Singh, J. in Delhi Judicial Service Assn. [(1991)4 scc 406], etc.] the rest have made general observations highlighting the significance of this feature. 23. In S.N. Mukherjee vs.Union of India, (1990)4 SCC 594, this Court noticed the special provision in regard to the members of the Armed Forces in the Constitution of India and held as follows: [pic] 42. Before referring to the relevant provisions of the Act and the Rules it may be mentioned that the Constitution contains certain special provisions in regard to members of the Armed Forces. Article 33 empowers Parliament to make law determining the extent to which any of the rights conferred by Part III shall, in their application to the members of the Armed Forces be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them. By clause (2) of Article 136 the appellate jurisdiction of this Court under Article 136 of the Constitution has been excluded in relation to any judgment, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to provide alternative institutional mechanism or arrangement for judicial [pic]review, provided it is no less efficacious than the High Court. It must, therefore, be read as implicit in the constitutional scheme that the law excluding the jurisdiction of the High Court under Articles 226 and 227 permissible under it, must not leave a void but it must set up another effective institutional mechanism or authority and vest the power of judicial review in it which must be equally effective and efficacious in exercising the power of judicial review. The tribunal set up under the Administrative Tribunals Act, 1985 was required to interpret and apply Articles 14, 15, 16 and 311 in quite a large number of cases. Therefore, the personnel manning the administrative tribunal in their determinations not only require judicial approach but also knowledge and expertise in that particular branch of constitutional and administrative law. The efficacy of the administrative tribunal and the legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage would definitely impair the efficacy and effectiveness of the Administrative Tribunal. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respect. 27. In Mafatlal Industries Ltd. and others vs.Union of India and others, (1997) 5 SCC 536, a nine-Judge Bench of this Court while considering the Excise Act and Customs Act held that the jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. This Court held: 108. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. (i)...........While the jurisdiction of the High Courts under Article 226 - and of this Court un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. The Court further noticed the previous decisions of this Court wherein the Court adverted to the rule of self-restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person as follows: 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court observed: (SCC pp. 440-41, para 11) 11. ... It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: (ER p. 495) '... There are three classes of cases in which a liability may be established founded upon a statute. ... But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ... The remedy provided by the statute must be followed, and it is not competent to the party to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited (SOUTHCO) and another vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108, a three-Judge Bench held: 80. It is a settled canon of law that the High Court would not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The courts, including this Court, have taken the view that the statutory remedy, if provided under a specific [pic]law, would impliedly oust the jurisdiction of the civil courts. The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can entertain writ or appropriate proceedings despite availability of an alternative remedy. This jurisdiction, the High Court would exercise with some circumspection in exceptional cases, particularly, where the cases involve a pure question of law or vires of an Act are challenged. This class of cases we are mentioning by way of illustration and should not be understood to be an exhaustive exposition of law which, in our opinion, is neither practical nor possible to state with precision. The availability of alternative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on are incapable of being questioned under the writ jurisdiction of the High Court, as a statutory appeal in terms of Section 27-A(1)(c) lies to this Court. Therefore, we have no hesitation in issuing a direction of caution that it will not be a proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission. 32. Another Division Bench of this Court in Commissioner of Income Tax and others vs. Chhabil Dass Agrawal, (2014)1 SCC 603 held: 11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon an alternative remedy provided by the statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.' 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court observed: (SCC pp. 440-41, para 11) '11. ... It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: (ER p. 495) xxx xxx xxx xxx 14. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) '77. ... So far as the jurisdiction of the High Court under Article 226-or for tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is sanctioned by the Tribunal granting leave to file such an appeal. Section 31(1) in no uncertain terms forbids grant of leave to appeal to this Court unless the Tribunal certifies that a point of law of general public importance is involved in the decision. This implies that Section 31 does not create a vested, indefeasible or absolute right of filing an appeal to this Court against a final order or decision of the Tribunal to this Court. Such an appeal must be preceded by the leave of the Tribunal and such leave must in turn be preceded by a certificate by the Tribunal that a point of law of general public importance is involved in the appeal. 9. The second and the only other route to access this Court is also found in Section 31(1) itself. The expression or it appears to the Supreme Court [pic]that the point is one which ought to be considered by that Court empowers this Court to permit the filing of an appeal against any such final decision or order of the Tribunal. 10. A conjoint reading of Sections 30 and 31 can lead to only one conclusion viz. there is no vested right of appeal against a final order or decision of the Tribunal to this Court other than those fallin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has a right of appeal against the final order or decision of the Tribunal to this Court other than those falling under Section 30(2) of the Act, but it is statutory appeal which lies to this Court. 34. The aforesaid decisions rendered by this Court can be summarised as follows: The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.(Refer: L. Chandra and S.N. Mukherjee). (ii)The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act.(Refer: Mafatlal Industries Ltd.). (iii)When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma). (iv)The High Court wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation. Therefore, it is always desirable for the High Court to act in terms of the law laid down by this Court as referred to above, which is binding on the High Court under Article 141 of the Constitution of India, allowing the aggrieved person to avail ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
