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TMI Blog2015 (11) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 appellant in C.A.No.7338 of 2013 on being aggrieved by the order passed by the Armed Forces Tribunal, Regional Bench, Chennai challenged the same before the High Court of Judicature of Andhra Pradesh at Hyderabad. In the cases in hand except C.A.No.7338 of 2013 and C.A.No.96 of 2014 the High Court entertained the writ petitions and adjudicated the disputes. The High Court having granted relief after reversing the order of Tribunal, the Union of India has challenged the same. In C.A.No.7338 of 2013 and C.A.No.96 of 2014, the appellants-Army Personnel have challenged the orders by which High Courts refused to entertain their writ petitions. In C.A. No. 7399 of 2013, the appellant- Army Personnel has challenged the order of Delhi High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 established by the Central Government to exercise the jurisdiction, powers and authority conferred on it by the said Act. Section 14 specifies the jurisdiction, powers and authority of the Tribunal in relation to service matters as follows: "Section 14. Jurisdiction, powers and authority in service matters.- (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 immediately before that day by all courts (except the Supreme Court or a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) in relation to all service matters. (2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 person shall be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. (4) The Tribunal shall allow an appeal against conviction by a court martial where - the finding of the court martial is legally not sustainable due to any reason whatsoever; or the finding involves wrong decision on a question of law; or there was a material irregularity in the course of the trial resulting in miscarriage of justice, but, in any other case, may dismiss the appeal where the Tribunal considers that no miscarriage of justice is likely to be caused or has actually resulted to the appellant: Provided that no order dismissing the appeal by the Tribunal shall be passed unless such order is made after recording reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the date of the order appealed against. (3) Pending any appeal under sub-section (2), the Supreme Court may order that- the execution of the punishment or the order appealed against be suspended; or 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. Section 31. Leave to appeal.- (1) An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court. (2) An applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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, or other proceeding, so far as may be, in the same' manner as in the case of an application made under sub-section (2) of section 14, from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit." 12. A plain reading of the above provisions shows: A remedy of appeal to Supreme Court against any final order passed by the Tribunal under Section 30 with the leave of the Tribunal is provided under Section 31 of the Act. In case leave is refused by the Tribunal, an application to the Supreme Court for leave can be made as provided under sub-section (1) and (2) of Section 31 of the Act. Against any order or decision of the Tribunal made under Section 19 in exercise of its jurisdiction to punish for contempt, an appeal under sub- section (2) of Section 30 lies to the Supreme Court as of right. Section 33 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 against the final decision or order of Armed Forces Tribunal shall lie to the Supreme Court. Under the Constitution, the power of superintendence of High Court is already excluded against a Court Martial verdict." 87. On a specific query to the representatives of the Ministry of Law & Justice, on the issue of appeal against the order of the Tribunal, they stated:- "In a case, L. Chandrakumar's case, which was relating to the Central Administrative Tribunal, which was established by an Act of Parliament, similar provisions were there where an appeal against the orders of the Central Administrative Tribunal was preferred to the Supreme Court but for some time it was entertained by the Supreme Court. But later on, subsequently in L. Chandrakumar's case, the Supreme Court said that the powers of the High Court under articles 226 and 227 cannot be taken away by an Act of Parliament. Thus, you know again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 to the High Court in appeal against the order of the Armed Forces Tribunal." 90. The Committee note that clause 30 provides that subject to provisions of section 31, an appeal shall lie to Supreme Court against the final decision or order of the Tribunal. The Committee, however, are given to understand that in the case of L. Chanderkumar, where appeal against the order of the Central Administrative Tribunal was preferred to Supreme Court, the Court stated that powers of the High Court under Articles 226 and 227 cannot be taken away by an Act of Parliament. The Committee are of the view that the appeal against the Tribunal should be preferred as per the provisions of the Constitution. NEW DELHI; BALASAHEB VIKHE PATIL, 16 May, 2006 Chairman, 26 Vaisakha, 1928 (Saka)Standing Committee on Defence." 14. Therefore, it is clear from the scheme of the Act that jurisdiction of the Tribunal constituted under the Armed Forces Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rganisation 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 referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them." 17. Article 226 empowers High Court to issue prerogative writs. The said Article reads as under: "Article 226.Power of High Courts to issue certain writs.- (1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, toissue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including 1[writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein: 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 the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces." 19. In this context, it is also necessary to notice Article 136 of the Constitution which provides special leave to appeal to Supreme Court: "136.Special leave to appeal by the Supreme Court.-(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces." In view of clause (2) of Article 136 which expressly excludes the judgments or orders passed by any Court or Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten 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 power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case." (emphasis added) 76. To express our opinion on the issue whether the power of judicial review vested in the High Courts and in the Supreme Court under Articles 226/227 and 32 is part of the basic structure of the Constitution, we must first attempt to understand what constitutes the basic structure of the Constitution. The doctrine of basic structure was evolved in Kesavananda Bharati case (1993 4 SCC 225). However, as already mentioned, that case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution. Indeed, in the judgments of Shelat and Grover, JJ., Hegde and Mukherjea, JJ. and Jaganmohan Reddy, J., there are specific observations to the effect that their list of essential features comprising the basic structure of the Constitution are illustrative and are not intended to be exhaustive. In Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pline 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, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces. Similarly clause (4) of Article 227 denies to the High Courts the power of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. This Court under Article 32 and the High Courts under Article 226 have, however, the power of judicial review in respect of proceedings of courts martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record." 24. A three-Judge Bench of this Court in R.K. Jain vs. Union of India & ors., (1993) 4 SCC 119, observed: "66. In S.P. Sampath Kumar v. Union of India this Court held that the primary duty of the judiciary is to interpret the Constitution and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e important and sacrificing the legal input and not giving it sufficient weightage would definitely impair the efficacy and effectiveness of the Administrative Tribunal. Therefore, it was held that an appropriate rule should be made to recruit the members; and to consult the Chief Justice of India in recommending appointment of the Chairman, Vice-Chairman and Members of the Tribunal and to constitute a committee presided over by Judge of the Supreme Court to recruit the members for appointment. In M.B. Majumdar v. Union of India when the members of CAT claimed parity of pay and superannuation as is available to the Judges of the High Court, this Court held that they are not on a par with the judges but a separate mechanism created for their appointment pursuant to Article 323-A of the Constitution. Therefore, what was meant by this Court in Sampath Kumar case ratio is that the tribunals when exercise the power and functions, the Act created institutional alternative mechanism or authority to adjudicate the service disputations. It must be effective and efficacious to exercise the power of judicial review. This Court did not appear to have meant that the tribunals are substitutes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under Article 32 - cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the [pic]provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. Xxx xxx xxx xxx 28. In Kanaiyalal Lalchand and Sachdev and others vs. State of Maharasthra and others, (2011) 2 SCC 782, this Court considered the question of maintainability of the writ petition while an alternative remedy is available. This Court upheld the decision of the Bombay High Court dismissing the writ petition filed by the appellants therein on the ground of existence of an efficacious alternative remedy under Section 17 of SARFASI Act and held: "23. In our opinion, therefore, the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d particular remedy for enforcing it. ... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. and Secy. of State v. Mask and Co. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." 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 that matter, the jurisdiction of this Court under Article 32-is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while [pic]exercising the power under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of law which, in our opinion, is neither practical nor possible to state with precision. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the courts. It will normally depend upon the facts and circumstances of a given case. The further question that would inevitably come up for consideration before the Court even in such cases would be as to what extent the jurisdiction has to be exercised. 81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh, Titaghur Paper Mills Co. Ltd. v. State of Orissa, Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and State of H.P. v. Gujarat Ambuja Cement Ltd. 12. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission, Sangram Singh v. Election Tribunal, Union of India v. T.R. Varma, State of U.P. v. Mohd. Nooh2 and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 607, para 77) '77. ... So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32-is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.'" (See G. Veerappa Pillai v. Raman & Raman Ltd., CCE v. Dunlop India Ltd., Ramendra Kishore Biswas v. State of Tripura, Shivgonda Anna Patil v. State of Maharashtra, C.A. Abraham v. ITO, Titaghur Paper Mills Co. Ltd. v. State of Orissa, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath and Sons, Whirlpool Corpn. v. Registrar of Trade Marks, [pic]Tin Plate Co. of India Ltd. v. State of Bihar, Sheela Devi v. Jaspal Singh and Punjab National Bank v. O.C. Krishnan.) 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accorda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al against a final order or decision of the Tribunal to this Court other than those falling under Section 30(2) of the Act. The only mode to bring up the matter to this Court in appeal is either by way of certificate obtained from the Tribunal that decided the matter or by obtaining leave of this Court under Section 31 for filing an appeal depending upon whether this Court considers the point involved in the case to be one that ought to be considered by this Court. 11. An incidental question that arises is: whether an application for permission to file an appeal under Section 31 can be moved directly before the Supreme Court without first approaching the Tribunal for a certificate in terms of the first part of Section 31(1) of the Act? 12. In the ordinary course the aggrieved party could perhaps adopt one of the two routes to bring up the matter to this Court but that does not appear to be the legislative intent evident from Section 31(2) (supra). A careful reading of the section shows that it not only stipulates the period for making an application to the Tribunal for grant of leave to appeal to this Court but also stipulates the period for making an application to this Court fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atutory dispensation. (Refer: Nivedita Sharma). (iv)The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer: Nivedita Sharma). Article 141 of the Constitution of India reads as follows: "Article 141.Law declared by Supreme Court to be binding on all courts.- The law declared by the Supreme Court shall be binding on all courts within the territory of India." 36. In Executive Engineer, Southern Electricity Supply Company of Orissa Limited(SOUTHCO) this Court observed that it should only be for the specialised tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case. In Chhabil Dass Agrawal this Court held that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. In Cicily Kallarackal this Court issued a direction of caution that it will not be a proper exercise of the jurisdiction by the High Court to ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution of India, allowing the aggrieved person to avail the remedy under Section 30 read with Section 31 Armed Forces Act. 38. The High Court (Delhi High Court) while entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of Act. However, we find that Andhra Pradesh High Court and the Allahabad High Court had not entertained the petitions under Article 226 and directed the writ petitioners to seek resort under Sections 30 and 31 of the Act. Further, the law laid down by this Court, as referred to above, being binding on the High Court, we are of the view that Delhi High Court was not justified in entertaining the petition under Article 226 of the Constitution of India. 39. For the reasons aforesaid, we set aside the impugned judgments passed by the Delhi High Court and upheld the judgments and orders passed by the Andhra Pradesh High Court and Allahabad High Court. Aggrieved persons are given liberty to avail the remedy under Section 30 with leave to appeal under Section 31 of the Act, and if so necessary may file petition for condonation of delay to avail remedy before this Court. 40. The Civil Appeal Nos.74 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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