TMI Blog2022 (3) TMI 1575X X X X Extracts X X X X X X X X Extracts X X X X ..... ision for direct appeal to the Supreme Court against an order of a Tribunal for the reason that the Apex Court exercises jurisdiction under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 only if a point of law of general public importance is involved. The Armed Forces Tribunal Act, 2007 excludes the administrative supervision of the High Court under Article 227(4) of the Constitution but not judicial superintendence and certainly not jurisdiction under Article 226 of the Constitution. In ROJER MATHEW VERSUS SOUTH INDIAN BANK LTD. OTHERS [ 2019 (11) TMI 716 - SUPREME COURT] , a Constitution Bench of the Supreme Court has held that Article 226 of the Constitution does not restrict writ jurisdiction of High Courts over the Armed Forces Tribunal observing the same can neither be tampered with nor diluted. Instead, the Supreme Court has held that High Court s jurisdiction has to be zealously protected and cannot be circumscribed by the provisions of any enactment. The preliminary objection raised by Union of India with regard to the maintainability of the present writ petitions is rejected. List the present batch of matters before the roster bench for considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y denying litigants the right to approach High Court in writ jurisdiction against the judgment and orders passed by Armed Forces Tribunal. 2. While learned counsel for the petitioners stated that a coordinate Division Bench of this Court in Brijlal Kumar Ors. vs. Union of India Ors., W.P.(C) 98/2020 decided on 24th November, 2020 has held that a writ petition is maintainable against the final order passed by Armed Forces Tribunal, learned counsel for the Respondents stated that the said judgment is per incuriam as it is contrary to the judgment passed by the Apex Court in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr.(supra) and the said judgment has not been set aside/overruled till date. PRELIMINARY OBJECTION ON BEHALF OF THE RESPONDENTS 3. Mr.Harish Vaidyanathan Shankar as well as Mr. Anurag Ahluwalia, learned counsel for Union of India while relying upon Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr (supra) submitted that the Supreme Court has specifically held that High Courts should not entertain writ petitions against judgments passed by Armed Forces Tribunal as the parties have an alternative effective remedy of filing an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6th November, 2015, has referred the case of Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr. (supra) to a larger Bench, yet no order of interim stay of the said judgment has been passed till date. They submitted that till the time the referred question of law is decided by the larger bench, the judgment in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr. (supra) constitutes a binding precedent. 5. They emphasised that an appeal is a statutory right and the Armed Forces Tribunal Act, 2007 expressly prohibits an appeal against an interim order. Thus, according to them, this Court should not entertain any writ petition against the interim orders passed by Armed Forces Tribunal. ARGUMENTS ON BEHALF OF THE PETITIONERS 6. Mr. Ankur Chhibber, Mr.Varun Singh, Mr.S.M. Dalal, Mr.Randhir Singh Kalkal, Mr.P.K.Dhaka, Mr.Manoj Kumar Gupta, Mr.Deepak Bansal and Mr.Girindra Kumar Pathak, learned counsel for the Petitioners admitted that Sections 30 31 of Armed Forces Tribunal Act, 2007, provide for an appeal to the Supreme Court against the final order passed by Armed Forces Tribunal. They, however, stated that an appeal to the Supreme Court lies only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to entertain a writ petition against a final order passed by Armed Forces Tribunal. 9. Thus, according to them the only way to challenge the matters involving pay, pension, promotion and discipline and not involving a substantial question of law of general public importance, is to challenge the same before the High Court by way of a writ petition, as the jurisdiction of the Supreme Court is barred. REJOINDER ARGUMENTS ON BEHALF OF THE RESPONDENTS 10. In rejoinder, learned counsel for the Union of India submitted that paragraph 215 of the judgment passed by Constitution Bench in Rojer Mathew (supra) does not constitute a binding precedent as it is not the ratio decidendi of the said judgment. In support of their submission they relied upon the judgment passed by the Supreme Court in State of Gujarat vs. Utility Users Association (2018) 6 SCC 21, wherein it has been held that in order to determine what is ratio decidendi, the Inversion Test has to be applied. The relevant portion of the said judgment is reproduced hereinbelow:- 114. In order to test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or abrogated so as to ensure the proper discharge of duties and maintenance of discipline amongst them. Article 33 does not obligate that Parliament must specifically adumbrate each fundamental right enshrined in Part III and to specify in the law enacted in exercise of the power conferred by Article 33 the degree of restriction or total abrogation of each right. That would be reading into Article 33 a requirement which it does not enjoin. In fact, after the Constitution came into force, the power to legislate in respect of any item must be referable to an entry in the relevant list. Entry 2 in List I: Naval, Military and Air Forces; any other Armed Forces of the Union would enable Parliament to enact the Army Act and armed with this power the Act was enacted in July 1950. It has to be enacted by the Parliament subject to the requirements of Part III of the Constitution read with Article 33 which itself forms part of Part III. Therefore, every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33 as being enacted with a view to either restricting or abrogating other fundamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cases pending before the High Courts. They stated that, in the event, the contentions of the Petitioners were to be accepted, it would lead to the same situation once again which was precisely why the Armed Forces Tribunal Act, 2007 was enacted. COURT S REASONING THE POWER OF JUDICIAL REVIEW UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION IS A PART OF THE BASIC STRUCTURE OF THE CONSTITUTION. SECTION 14 OF THE ACT, 2007 ITSELF PRESERVES THE WRIT JURISDICTION OF THE HIGH COURTS 16. The Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah and Anr., (1955) 2 SCR 1 1 has held that the jurisdiction of the High Court under Article 226 and of the Supreme Court under Article 136 of the Constitution entitles the Constitutional Courts to examine as to whether the Tribunals have acted illegally and these powers cannot be ousted by a statute. It was further held that Articles 226 and 136 of the Constitution are part of the law of the land which cannot be finally determined and altered by any Tribunal of limited jurisdiction. 17. This Court finds that Section 14 of the Armed Forces Tribunal Act, 2007 itself explicitly stipulates that though the Tribunal has wide po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The remedy of appeal to Apex Court in a large number of cases may also prove to be ineffective for the members of the Armed Forces posted all over India, as they may find it expensive and difficult to approach the Apex Court. 23. Further, appeals in the highest Court would result in clogging of dockets and preventing the Apex Court from discharging its primary Constitutional role. The Supreme Court in Gujarat Urja Vikas Nigam Limited Vs. Essar Power Limited, (2016) 9 SCC 103 4 has held that it can hardly be gainsaid that routine appeals to the highest Court results in obstruction of the constitutional role assigned to the highest Court. 24. In fact, in Gujarat Urja (supra), the Supreme Court of India made a reference to the Law Commission to examine and submit a Report pertaining to various issues including providing of direct statutory appeals to the Supreme Court from the order passed by Tribunals bypassing the High Courts. The Law Commission 5 has opined that High Courts have unquestionable power of superintendence and control over the Tribunals and the parties aggrieved by the Armed Forces Tribunal Act, 2007 can approach the High Courts under writ jurisdiction. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Forces Tribunal Act, 2007 which provide for leave to appeal to the Supreme Court constitute an alternative effective remedy in all cases where the parties are aggrieved by the decision passed by Armed Forces Tribunal and where the Tribunal refuses leave to appeal. PARAGRAPH 215 OF THE CONSTITUTION BENCH S JUDGMENT IN ROJER MATHEW (SUPRA) CONSTITUTES RATIO DECIDENDI OF THE SAID JUDGMENT 31. The decision passed in Rojer Mathew (supra) is not a case where the Constitution Bench made a passing reference to the decision passed in Union of India Ors. vs Maj. Gen. Shri Kant Sharma (supra). In fact, it was pursuant to specific Question No.7 framed by the Constitution Bench that the same was answered in paragraph 215 of Rojer Mathew (supra). 32. It is settled law that in the light of the question before the Court, the principal underlying the decision constitutes the ratio decidendi 7 . 33. This Court is also of the view that reference order in Union of India vs. Thomas Vaidyan (supra) does not constitute a bar on the Constitution Bench from deciding the issue. 34. Consequently, paragraph 215 of the Constitution Bench s judgment in Rojer Mathew (supra) constitutes ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat would effectively mean that writ Court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in L.Chandra Kumar (supra). The Supreme Court in Balkrishna Ram (supra) 8 has also held that it will be for the High Courts to decide in the peculiar facts and circumstances of each case whether they should exercise its extraordinary writ jurisdiction or not. Consequently, the Supreme Court in Balkrishna Ram (supra) reinstated the right to challenge verdicts of the AFT in the High Courts. THE JURISDICTION OF A WRIT COURT IS VASTLY DIFFERENT AND DISTINCT FROM THAT OF AN APPELLATE COURT 40. However, this Court would like to clarify that a right to appeal is a creation of Statute and it cannot be claimed as a matter of right. The right to appeal has to exist. It cannot be created by acquiescence of the parties or by the order of the Court. It is neither a natural nor an inherent right attached to the litigant being a substantive, statutory right. [See: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Kondiba Dagdu Kodam v. Savitribai Sopan Gujar, AIR 1999 SC 2213; and UP Power Corporation Ltd. v. Virenddra Lal, (2013) 10 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld to be one of the basic features of the Constitution. Basic feature i.e. forming core structure of the Constitution. The said core structure cannot be affected even by way of constitutional amendment. (See: Kesavananda Bharati Sripadagalveru versus State of Kerala, (1973) 4 SCC 225) 44. The jurisdiction of High Court under Articles 226 and 227 of the Constitution cannot be bypassed merely by making a provision for direct appeal to the Supreme Court against an order of a Tribunal for the reason that the Apex Court exercises jurisdiction under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 only if a point of law of general public importance is involved. In Ex. Lac Yogesh Pathania (supra), the Supreme Court has clarified that appeals under the Armed Forces Tribunal Act are considered only if a point of general public importance is involved. 45. The Armed Forces Tribunal Act, 2007 excludes the administrative supervision of the High Court under Article 227(4) of the Constitution but not judicial superintendence and certainly not jurisdiction under Article 226 of the Constitution. 46. In Rojer Mathew (supra) judgment, a Constitution Bench of the Supreme Court has he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the judgment of the Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah and Anr. (supra) is reproduced hereinbelow: 13. The jurisdiction which Articles 226 and 136 confer entitles the High Courts and this Court to examine the decisions of all tribunals to see whether they have acted illegally. That jurisdiction cannot be taken away by a legislative device that purports to confer power on a tribunal to act illegally by enacting a statute that its illegal acts shall become legal the moment the tribunal chooses to say they are legal. The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior tribunal. It is a part of the law of the land which cannot be finally determined or altered by any tribunal of limited jurisdiction. The High Courts and the Supreme Court alone can determine what the law of the land is vis-a-vis all other courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles 226 and 136. Therefore, the jurisdiction of the High Courts under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, this Court observed that the manner in which justice is dispensed with by the tribunals left much to be desired. The remedy of appeal to this Court from the order of the tribunals was too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such remedy was that the docket of this Court was crowded with decisions of the tribunals and this Court was forced to perform the role of a first appellate court. It was necessary that the High Courts are able to exercise judicial superintendence over decisions of the tribunals. With these observations this Court directed that all decisions of the tribunals will be subject to the High Court's writ jurisdiction under Articles 226/227 [L. Chandra Kumar case, (1997) 3 SCC 261, para 91]. It was further observed that the then existing position of direct appeal to this Court from orders of the tribunal will stand modified. xxx xxx xxx 37. In Mathai v. George [Mathai v. George, (2010) 4 SCC 358 : (2010) 2 SCC (Civ) 142 : (2010) 2 SCC (Cri) 835 : (2010) 1 SCC (L S) 1035], this Court referred to R.K. Jain Memorial Lecture delivered on 30-1-2010 by Shri K.K. Venugopal, Senior Advocate to the effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the States. In the Constitutional scheme, the High Court is not stricto-senso subordinate to the Supreme Court. They are assigned a broad Constitutional role with extensive Constitutional responsibilities. Their power to issue writs is wider than the Supreme Court. Besides, the power of judicial review is also vested in them..... The High Courts have unquestionable power of superintendence and control over the Tribunals under the Constitution. However, the overriding effect in Articles 323-A and 323-B under Part IXV-A cannot in any case denude the High Court of its power of superintendence under Article 227 of the Constitution. The exclusion of jurisdiction of all the Courts except the Supreme Court cannot be construed to mean that the power of judicial review vested in the High Court is also excluded . ..As a general rule, the writ court may entertain a petition if substantial injustice has ensued or is likely to ensue or there has been a breach of fundamental principle of justice. The existence of an equally efficacious, adequate and suitable legal remedy is a point of consideration in the matter of granting writs. Under the rule of self-imposed restraint, the writ cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An obiter dictum as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see Ballab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in L. Chandra Kumar [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L S) 577] . 9 Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Ors., (1955) 1 SCR 1104 21. On these authorities, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction (2) Certiorari will also be issued when the court or Tribunal acts illegally as when it . violates the principles of natural justice (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction .. (4) when the decision of the inferior Court or Tribunal is erroneous in law . 22. It may therefore be taken as settled that a writ of certiorari could be issued to correct .. an error apparent on the face of the record?.....an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. 11 85. The power of superintendence conferred by Article 227 is, however, supervisory and not appellate. It is settled law that this power of judicial superintendence must be exercised sparingly, to keep subordinate courts and tribunals within the limits of their authority. When a Tribunal has acted within its jurisdiction, the High Court does not interfere in exercise of its extraordinary writ jurisdiction unless there is grave miscarriage of justice or flagrant violation of law. Jurisdiction under Article 227 cannot be exercised in the cloak of an appeal in disguise . 86. In exercise of its extraordinary power of superintendence and/or judicial review under Articles 226 and 227 of the Constitution of India, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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