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2011 DIGILAW 439 (PAT)

Uday Shankar Upadhyay v. Union Of India

2011-03-26

R.M.DOSHIT

body2011
JUDGEMENT 1. This group of writ petitions arise from the orders of the disciplinary action taken against the members of the Armed Forces subject to the Army Act, 1950 or the Navy Act, 1957 or the Air Force Act, 1950. 2. A question has arisen whether these writ petitions shall stand transferred to the Armed Forces Tribunal, Calcutta constituted under the Armed Forces Tribunal Act, 2007 by virtue of Section 34 of the said Act. 3. The Armed Forces Tribunal Act, 2007 (Act No. 55 of 2007) (hereinafter referred to as the Act) has been enacted by the Parliament to provide for a Tribunal to adjudicate or try disputes and complaints with respect to commission, appointments, enrollment and conditions of service in respect of persons subject to the Army Act, 1950; the Navy Act, 1957 and the Air Force Act, 1950 and aiso to provide for appeals against orders, findings, or sentences of court martial and for connected and incidental matters. Section 4 of the Act provides for establishment of the Tribunal. Chapter-Ill of the Act provides for jurisdiction, powers and authority of the Tribunal. Chapter-llI comprises Sections 14 to 20. Sub-section (1) of Section 14 of the Act confers upon the Tribunal the jurisdiction, powers and authority, exercisable 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. Section 22 of the Act provides for limitation. Sub-section (1). of Section 34 of the Act provides for transfer of every suit or other proceeding pending, before any Court including a High Court or other authority as under: "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." 4. As to the matters pending before the High Court filed under Article 226 or 227 of the Constitution the Honble Supreme Court is consistent. As to the matters pending before the High Court filed under Article 226 or 227 of the Constitution the Honble Supreme Court is consistent. In the matter of L. Chandra Kumar V/s. The Union of India and Others [1997(1) PLJR (SC)84], the seven-Judges Bench of the Supreme Court considered the very issue in respect of the Administrative Tribunals established under Article 323-A of the Constitution. The Honble Court held, "In respect of power of judicial review, the jurisdiction of the High Courts under Articles 226/227 cannot wholly be excluded". The Court held that, "Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B, to the extent they excluded the jurisdiction of the High Courts and the Supreme Court under Articles 226/ 227 and 32 of the Constitution, are unconstitutional..... The jurisdiction conferred upon the High Courts under Article 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplementary role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution". 5. Once again the Honble Supreme Court following the above judgment and the other judgments, in the matter of Union of India V/s. R. Gandhi, President, Madras Bar Association [ (2010)11 SCC 1 ] reiterated, "A legislature can enact a law transferring the jurisdiction exercised by courts in regard to any specified subject (other than those which are vested in courts by express provisions of the Constitution) to any tribunal". 6. In my view, the language of Section 14 of the Act incorporates the soul of the above judgments, of the Honble Supreme Court. In other words, the Tribunal constituted under the Act is empowered to exercise jurisdiction of all Courts but the jurisdiction conferred upon the Supreme Court and the High Courts under Articles 226 and 227 of the Constitution. Therefore, a petition under Article 226 or 227 of the Constitution pending before the High Court on the appointed day would not stand transferred to the Tribunal under Section 34 of the Act by operation of law. "Suits or other proceedings" referred to in Section 34 of the Act would necessarily mean the proceedings pending before the High Court such as an appeal arising from a suit but not a petition filed under Article 226 or 227 of the Constitution. "Suits or other proceedings" referred to in Section 34 of the Act would necessarily mean the proceedings pending before the High Court such as an appeal arising from a suit but not a petition filed under Article 226 or 227 of the Constitution. 7. The learned Advocates have sub- mitted that Section. 34 of the Act would apply only in the cases where the cause of action has arisen after the establishment of the Tribunal. I am unable to accept the argument. The language of Section 34 6f the Act in this respect is clear and unambiguous. It says that such suit or proceeding shall also stand transferred as if the cause of action had arisen after the establishment of the Tribunal. Hence, any proceeding other, than the petitions under Article 226 or 227 of the Constitution pending before the High Court on the date the Tribunal is established will stand transferred to the Tribunal established under the Act having territorial jurisdiction. 8. In view of the above discussion, all these matters filed under Articles 226 and 227 of the Constitution do not stand transferred as envisaged by Section 34 of the Act. The matters will be heard and decided by the High Court on merits. 9. Registry shall maintain, copy of this order in each of the petitions. 10. Notify the petitions in accordance with the prevalent roster.