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2010 DIGILAW 786 (KER)

Joby Varghese v. Armed Forces Tribunal

2010-10-12

C.N.RAMACHANDRAN NAIR, K.SURENDRA MOHAN

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Judgment :- C.N. Ramachandran Nair, J. This W.P.(C) filed under Art.226 of the Constitution of India challenging the orders of the Army Forces Tribunal, Cochin Bench, was initially not numbered by the Registry for the reason that the very same Bench of the Tribunal in the decision in Indeevarakshan Nair M.P. v. A.S.C. Records (MT) reported in 2010 (3) KHC 517 held that Writ Petition under Art.226 or Art.227 of the Constitution is not maintainable in the High Court against the orders of the Armed Forces Tribunal. However, considering the Constitution Bench decision of the Supreme Court in L. Chandrakumar v. Union of India reported in (1997 (2) KLT SN 11 (C.No.11) SC = (1997) 3 SCC 261) and S.14(1) of the Armed Forces Tribunal Act, 2007 (Hereinafter called “the Act”) which specifically retains the jurisdiction of the High Court under Arts.226 and 227 of the Constitution, we felt that the view taken by the Tribunal is prima facie incorrect and therefore, we directed numbering the W.P. (C). Since Writ Petitions are likely to be filed in this Court under Art.226 or 227 against the orders of the Tribunal, we have to necessarily consider the correctness of the above decision of the Armed Forces Tribunal on maintainability of such petitions in this Court and for this purpose we heard counsel for the petitioner and Assistant Solicitor General appearing for the respondents. 2. Counsel for the petitioner heavily relied on the Constitution Bench decision of the Supreme Court in L. Chandrakumar’s case referred above wherein the Supreme Court categorically held that the jurisdiction of the High Court under Arts.226 and 227 of the Constitution of India are not affected by provisions to the contrary that may be contained in statutes by which Tribunals are constituted under Art.323A or 323B of the Constitution. Assistant Solicitor General appearing for the respondents submitted that the Armed Forces Tribunal was constituted by Act 18 of 2007, which was enacted by the Parliament after Chandrakumar’s case and probably taking into account the said decision of the Supreme Court the jurisdiction of the High Court under Arts.226 and 227 of the Constitution is specifically retained under S.14 of the Act. Even though the Constitution Bench of the Supreme Court in the above referred case unequivocally declared that the powers and jurisdiction of the High Court under Arts.226 and 227 of the Constitution are part of the basic structure of the Constitution which cannot be taken away by statutory provisions, we feel some detailed consideration is required about the nature of jurisdiction of the High Court against the orders of the Armed Forces Tribunal, S.14(1) of the Act states 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 Art.226 and 227 of the Constitution) in relation to all service matters.” What is clear from the above provision is that from the appointed day the Tribunal is conferred with exclusive jurisdiction on service matters covered by the Act except the jurisdiction of the Supreme Court as well as jurisdiction and powers of the High Courts under Arts.226 and 227 which are specifically retained and unaffected by the Act. S.2 of the Act makes it clear that the Act applies to all persons covered by the three separate statutes mentioned therein relating to Army, Navy and Air Force. Under sub-s.(2) of S.2, the Act is made applicable to even retired defence personnel and their dependents and legal heirs after death or disability, in relation to service matters, in general, the Tribunal is vested with the authority to handle all service matters of serving, retired and deceased service personnel. There is specific exclusion of the jurisdiction of the tribunal contained in items (i) to (iv) provided in the second part of S.3(o) of the Act. S.34 provides for transfer of all cases pending before any Court including the High Court over which Tribunal is vested with jurisdiction under the Act. Obviously all service cases filed in the High Court by Defence personnel or their legal representatives after their death, pending in the High Court should be transferred to the Tribunal for their decision. S.34 provides for transfer of all cases pending before any Court including the High Court over which Tribunal is vested with jurisdiction under the Act. Obviously all service cases filed in the High Court by Defence personnel or their legal representatives after their death, pending in the High Court should be transferred to the Tribunal for their decision. However, if any matter pertaining to the Army, Navy or Air Force is pending before the High Court over which the Tribunal’s jurisdiction is excluded under second part of S.3(o) of the Act referred above, the same should not be transferred by the registry for decision by the Tribunal and if at all the same is transferred by mistake, the Tribunal should return it for decision by the High Court. 3. Section 14 f the Act confers original jurisdiction on Tribunal on all service matters pertaining to service personnel. S.15 confers jurisdiction on the Tribunal to hear appeals against orders of the Court-material. S.34 of the Act provides for transfer of cases pending in the High Court over which Tribunal is now conferred with jurisdiction under the Act. Similarly S.35 provides for filing appeal to the Tribunal against orders passed by any Court other than a High Court or any other authority in any suit or proceeding over which the Tribunal is now vested with jurisdiction under the Act. What is clear from S.34 is that all matters pending in the High Court over which the Tribunal is vested with jurisdiction under the Act, should be transferred from the High Court to the Tribunal for their decision. However, the transfer of cases pending before the High Court does not mean that the cases so transferred carry with it the jurisdiction of the High Court under Art.226 or Art.227 of the Constitution. In other words the process of transfer of cases pending before the High Court does not involve conferment of High Court’s jurisdiction under Arts.226 or 227 of the Constitution on the Tribunal. The cases transferred from the High Court are decided by the Tribunal only by virtue of the jurisdiction conferred on it by the Act and so much so, the transferred cases on transfer to the Tribunal cease to be petitions filed in the High Court under Arts.226 and 227 of the Constitution. The cases transferred from the High Court are decided by the Tribunal only by virtue of the jurisdiction conferred on it by the Act and so much so, the transferred cases on transfer to the Tribunal cease to be petitions filed in the High Court under Arts.226 and 227 of the Constitution. Most of the cases pending in the High Court relating to Defence personnel are matters over which the Tribunal is vested with jurisdiction under the Act. So much so, the purpose of transfer of such cases is to get the same decided by the Tribunal which has jurisdiction. However, the Tribunal has no jurisdiction to entertain challenge against the constitutional validity of the provisions of the Act under which it is created, which is in the exclusive domain of the Supreme Court and the High Courts. The operation of these provisions do not involve vesting of jurisdiction of the High Court conferred under Art.226 or 227 of the Constitution on the Tribunal. So much so, we hold that the High Court’s jurisdiction under Arts.226 and 227 remain unaffected by the Constitution and conferment of jurisdiction on the Tribunal on service matters under the Act. 4. The remaining question to be considered is with regard to restrictions on jurisdiction of the High Court on account of the provision for appeal to the Supreme Court provided under S.30 of the Act and by virtue of the express bar contained in Art.227(4) of the Constitution excluding the supervisory jurisdiction of the High Court over any Court or Tribunal constituted under any law relating to Armed Forces. What is clear from Ss.30 and 31 of the Act is that a right of appeal to the Supreme Court is available against orders of the Tribunal only in matters pertaining to jurisdiction of the Tribunal to punish for Contempt. Under the second proviso to S.30(1) there is an express bar against filing of appeal to the Supreme Court against interim orders of the tribunal. So far as other matters are concerned, the aggrieved person will have a right of appeal only if either the Tribunal certifies that the point of law involved in their order is one of general public importance or if the Supreme Court is of the opinion that the point arising from the order of the Tribunal is one which ought to be considered by that Court. When the aggrieved person gets a certificate from the Tribunal for filing appeal to the Supreme Court, there is no scope for High Court entertaining any Writ Petition against such an order of the tribunal which is certified fit for appeal to the Supreme Court. Similarly if certificate is declined by the Tribunal, the aggrieved person can always approach the Supreme Court with a petition for leave to file appeal as provided under S.31(2) of the Act. However, nothing in the Act prohibits an aggrieved person to challenge an order of the Tribunal before the High Court by filing a Writ Petition under Art.226, if the grievance is such that the High Court should exercise jurisdiction and grant relief to the party. In fact a provision for leave to appeal to the Supreme Court is specifically provided under the statute probably because of the bar contained in Art.136(2) of the Constitution which is similar to Art.227(4) of the Constitution. A Full Bench of this Court in the case of Mammootty v. Food Inspector reported in 1986 KLT 113 (F.B.) held that a right of appeal after obtaining leave to file appeal from Supreme Court cannot be treated as a statutory right of appeal. So much so, the availability of right of appeal against the orders of the Tribunal through certificate granted by the Tribunal or leave granted by the Supreme Court will not bar the jurisdiction of the High Court under Art.226 of the Constitution. Therefore in our view, if the orders of the Tribunal are such that the High Court could correct the same in exercise of powers under Art.226 of the Constitution, the Court is free to entertain in Writ Petitions against the orders of the Tribunal. 5. So far as interim orders of the Tribunal are concerned, we have already noted the express prohibition against right of appeal under second proviso to S.30(1) of the Act. So much so, the only remedy available to aggrieved persons against interim orders of the Tribunal is to approach the High Court under Art.226 of the Constitution. We are, therefore, of the view that writ is maintainable against interim orders of the Tribunal. 6. The last question to be considered is the scope of restriction contained under Art.227 (4) of the Constitution. For easy reference Art.227 is extracted hereunder: “227. We are, therefore, of the view that writ is maintainable against interim orders of the Tribunal. 6. The last question to be considered is the scope of restriction contained under Art.227 (4) of the Constitution. For easy reference Art.227 is extracted hereunder: “227. Power of superintendence over all Courts by the High court.-(1) Every High Court shall have superintendence over all Courts and Tribunal throughout the territories in relation to which it exercises jurisdiction. (2) without prejudice to the generality of the foregoing provisions, the High Court may- (a) call for returns from such Courts; (b) 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 tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to attorneys, advocates and pleaders practicing 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 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.” While considering the scope of restriction on the jurisdiction of the High Court contained in sub-art.(4) of Art.227, we have to keep in mind the Constitution Bench decision of the Supreme Court in Chandrakumar’s case wherein the Supreme Court held that the jurisdiction of the High Court under Art.227 is part of the basic structure of the Constitution. Sub-art.(1) of Art.227 provides that the High Court shall have superintendence over all Courts and Tribunals within the territories in relation to which it exercise jurisdiction. Sub-art.(2) gives the details of power of superintendence which include the authority to call for returns from Courts or Tribunals, make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts and prescribe forms in which books, entries and accounts shall be kept by the offices of such Courts. Sub-art.(3) deals with settlement of table of fees to be paid to clerks, officers, attorneys, advocates etc. Sub-art.(3) deals with settlement of table of fees to be paid to clerks, officers, attorneys, advocates etc. It is a settled position that the power of superintendence of the High Courts over the Courts and Tribunals under Art.227 not only covers administrative matters, but judicial matters as well. Considering the scope of powers of the High Court explained by the Supreme Court in the above referred case and by virtue of the specific retention of jurisdiction of the High Court under Arts.226 and 227 in S.14 of the Act. We are of the view that restriction on the superintendence of the High Court over the Armed Forces Tribunal under sub-art.(4) of Art.227 only covers administrative matters and not judicial matters. In otherwords, the High Court will not have any supervisory jurisdiction in administrative matters of the Tribunal, However, in our view, the High Court will have jurisdiction under Art.227 in respect of orders issued by the Tribunal and on the failure of the Tribunal to exercise their jurisdiction in matters covered by the statue. For example, there may be cases where interim applications may not be considered by the Tribunal or petitions filed may be rejected on ground of delay or for want of jurisdiction and there may be ever so many other situations where Tribunal may decline to exercise jurisdiction, in all such cases where the High Court is satisfied in a petition to be filed under Art.227 that the Tribunal’s action or inaction complained is to be corrected by it, the High Court can issue appropriate direction to the Tribunal in exercise of powers conferred by the said Article. To sum up the jurisdiction of the High Court, in our view, in matters pertaining to the Armed Forces Tribunal are the following: 1. To entertain Writ Petitions under Art.226 of the Constitution of India pertaining to challenge against constitutional validity of any of the provisions of the Act under which the Tribunal is constituted: 2. To entertain Writ Petitions under Art.226 of the Constitution on matters pertaining to Armed Forces outside the jurisdiction of the Tribunal, particularly of the cases covered by the second part of S.3(o) of the Act; 3. To entertain Writ Petitions under Art.226 against final orders of the Tribunal where the Tribunal has not granted certificate for fitness for appeal under S.31 of the Act. To entertain Writ Petitions under Art.226 against final orders of the Tribunal where the Tribunal has not granted certificate for fitness for appeal under S.31 of the Act. However, no writ will lie to the High Court in Contempt matters over which statutory appeal is provided to the Supreme Court; 4. To entertain Writ Petitions under Art.226 against all interim orders passed by the Tribunal; 5. To entertain writ Petition under Art.227 seeking direction to the Tribunal to exercise their jurisdiction or to refrain from exercising jurisdiction wherever the Tribunal has filed to exercise their jurisdiction or exercises jurisdiction not conferred on it. 7. We make it clear that our above findings should not be misunderstood to mean thaw the High Court will entertain Writ Petition filed against each and every order of the Tribunal. It is neither desirable nor possible for this Court to visualize what orders of the Tribunal should be interfered with by the High Court in writ proceedings. There are enough judgments of the High Courts and the Supreme Court on the guidelines to be followed in the exercise of writ jurisdiction by the High Court under Arts.226 and 227 of the Constitution of India. However, the settled position of law that a matter should be taken to the lowest Court which has jurisdiction to decide it will apply so far as jurisdiction of the High Courts and the Supreme Court are concerned in the matter of challenge against orders of the Tribunal. In other words, merely because Supreme Court is vested with statutory power under S.31 to grant leave to file appeal against orders of the Tribunal does not mean that the Supreme Court expects every order of the tribunal to be taken to the Supreme Court with a leave petition. It is the settled position that if orders of the Tribunal could be corrected by the High Court in the exercise of jurisdiction under Arts.226 and 227, then the Supreme Court will hesitate to exercise it’s jurisdiction under Art.136 which is virtually the jurisdiction specifically conferred on the Supreme Court under S.31 probably because of the bar contained in Art.136(2) of the Constitution. Therefore, in our view, any person aggrieved by order of the Tribunal except where the point of law arising from such order is of general public importance, should challenge the said order in the High Court, if tenable under Art.226 or 227 of the Constitution of India. However, if an application for certificate of fitness for appeal to the Supreme Court against the orders of the Tribunal is filed by either party before them, necessarily the remedy against rejection of the same by the Tribunal is only to file petition for leave to file appeal before the Supreme Court under S.31(2) of the Act. 8. In view of our findings above, we reverse the orders of the Tribunal in Indeevarakshan Nair’s case referred above to the extent the same is contrary to our findings. 9. So far as numbering of Writ Petitions is concerned. Registry will number all Writ Petitions filed against orders of the Armed Forces Tribunal under Art.226 as regular Writ Petitions and in respect of Writ Petitions of the kind referred above and filed under Art.227 seeking direction to the Tribunal, such cases will be numbered as O.P. (AFT) as those are not Writ Petitions filed under Art.226 of the Constitution of India.