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2012 DIGILAW 1121 (AP)

Acting Cdr. C. Gopinathan v. Union of India

2012-11-09

C.PRAVEEN KUMAR, G.ROHINI

body2012
JUDGMENT Ms. G. ROHINI, J :- These three writ petitions are filed assailing the orders passed by the Armed Forces Tribunal, Regional Bench, Chennai in OA No.64 of 2011 dated 23.11.2011, TA No.32 of 2010, dated 16.7.2010 and OA No.49 of 2011 dated 4.1.2012 respectively. 2. At the outset a preliminary objection has been raised on behalf of the respondents as to the very maintainability of the writ petitions on the ground that against the orders impugned a remedy of appeal is provided to the Supreme Court under Section 30 of the Armed Forces Tribunal Act, 2007. Since the said objection goes to the root of the matter, we propose to consider the said issue relating to maintainability of the writ petitions in the first place. 3. The Armed Forces Tribunal Act, 2007 has been enacted providing for the 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 Act, 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. Under Section 4 of the said Act, Tribunals known as the Armed Forces Tribunal has been established by the Central Government to exercise the jurisdiction, powers and authority conferred on it by or under the said Act. Section 14 of the Armed Forces Tribunal Act, 2007 provides that save as otherwise expressly provided in the said 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. Section 29 further provides that subject to the other provisions of the said Act and the Rules made there under the order of the Tribunal disposing of an application shall be final and shall not be called in question in any Court and such order shall be executed accordingly. Section 30 which provides for an appeal to the Supreme Court and Section 31 which deals with leave to appeal read as under : "30. Section 30 which provides for an appeal to the Supreme Court and Section 31 which deals with leave to appeal read as under : "30. Appeal to the Supreme Court.- (l) 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 exercise of its jurisdiction to punish for contempt : Provided that an appeal under this subsection 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 the suspended; or (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. 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 application to the Tribunal for leave to appeal to the Supreme Court shall be made within a period of thirty days beginning with the date of the decision of the Tribunal and an application to the Supreme Cow1 for leave shall be made within a period of thirty days beginning with the date on which the application for leave is refused by the Tribunal. (3) An appeal shall be treated as pending until any application for leave to appeal is disposed of and if leave to appeal is granted, until the appeal is disposed of; and an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it might have been made, but it is not made within that time." 4. A plain reading of the above provision shows that a remedy of appeal is available under Section 30 against any final order passed by the Tribunal with the leave of the Tribunal as 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 (2) of Section 31 of the Act. So far as any order or decision of the Tribunal made under Section 19 in exercise of its jurisdiction to punish for contempt is concerned, under sub-section (2) of Section 30 an appeal lies to the Supreme Court as of right. 5. It is also clear from the scheme of the Act that the jurisdiction of the Tribunal constituted under the said Act is in substitution of the civil Courts and the High Court so far as all matters relating to the conditions of service of the persons subject to the Army Act, 1950 and the Navy Act, 1957 and the Air Force Act, 1950, which are special laws enacted by the Parliament by virtue of exclusive legislative power vested under Article 246 of the Constitution of India read with Entries 1 and 2 of List-1 of the VII Schedule. 6. In this context, it is also necessary to notice Article 136 of the Constitution of India which provides for special leave to appeal by the 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, detem1ination, sentence or order passed or made by any Court or Tribunal constituted by or under any law relating to the Armed Forces." 7. (2) Nothing in clause (1) shall apply to any judgment, detem1ination, sentence or order passed or made by any Court or Tribunal constituted by or under any law relating to the Armed Forces." 7. As could be seen, in view of clause (2) of Article 136 which expressly excludes the judgments or orders passed by any Court or Tribunal constituted by or under any law relating to the Armed Forces, the aggrieved person cannot straightaway seek leave under Article 136 of the Constitution of India, but the remedy of appeal is available only under Section 30 read with Section 31 of the Armed Forces Tribunal Act, 2007. 8. We may also refer to Section 227(4) of the Constitution of India which reads as under: 227(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. The above clause also shows that the High Courts are exempted from exercising the power of superintendence over the Courts or Tribunals constituted under any law relating to the Armed Forces. 9. In the light of the constitutional bar under Article 136(2) as well as Article 227(4) of the Constitution of India, particularly in view of Section 29 of the Armed Forces Tribunal Act, 2007 which gives finality to the order of the Tribunal subject to the appeal as provided under Sections 30 and 31 of the Act, the remedy of appeal provided under the Act against the decisions of the Armed Forces Tribunal assumes importance and it manifests the intention of the Legislature to provide for the statutory remedy of appeal to the Supreme Court. 10. However, placing reliance upon the decision of the Constitution Bench of the apex Court in L. Chandra Kumar v. Union of India, (1997) 3 SCC 267, the learned Counsel for the writ petitioners vehemently contended that the power of judicial review conferred on this Court under Article 226 of the Constitution of India cannot be held to have been ousted. 11. Having carefully gone through the decision in L. Chandra Kumar's case (supra), it appears to us that the reliance placed by the learned Counsel for the writ petitioners on the said decision is misplaced. 12. 11. Having carefully gone through the decision in L. Chandra Kumar's case (supra), it appears to us that the reliance placed by the learned Counsel for the writ petitioners on the said decision is misplaced. 12. At the outset, we may point out that in L. Chandra Kumar's case (supra), the Supreme Court was dealing with the controversy relating to the exclusion of the power of judicial review conferred under Article 226 of the Constitution of India whereas the question that arises for consideration by us is whether the remedy of appeal provided under Section 30 read with Section 31 of the Armed Forces Tribunal Act, 2007 operates as a bar to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 13. It is relevant to notice that L. Chandra Kumar's case (supra), was rendered in the light of the provisions of the Administrative Tribunals Act, 1985 which was enacted in terms of Article 323-A of the Constitution of India providing for adjudication or trial by Administrative Tribunal of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services. Under Section 28 of the Administrative Tribunals Act, 1985, on and from the date from which the jurisdiction, power and authority becomes exercisable under the said Act by a Tribunal in relation to recruitment and matters concerning recruitment to any service or post or service matters concerning members of any service the jurisdiction of all the Courts including the High Courts under Article 226 of the Constitution of India and the Supreme Court under Article 32 of the Constitution of India was ousted to exercise any jurisdiction, powers or authority in relation to such recruitment or service matters. In that context, one of the questions that fell for consideration in L. Chandra Kumar's case (supra), was whether the power conferred upon the Parliament and the State Legislatures by Article 323-A(2)(d) and Article 323-B(3)(d) of the Constitution of India to totally exclude the jurisdiction of all Courts except that of the Supreme Court under Article 136 runs counter to the power of judicial review conferred on the High Courts under Article 226/227 and on the Supreme Court under Article 32 of the Constitution. After reviewing the various decisions on the subject, it was reiterated by the Supreme Court that the power of judicial review over legislative action vested in the High Courts and the Supreme Court under Articles 226 and 32 respectively is an integral and essential feature of the Constitution constituting part of its basic structure and therefore, ordinarily the power of High Courts and the Supreme Court to test the constitutional validity of the legislations can never be ousted or excluded. It was further held by the Constitution Bench: “..... ... ... we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Article 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. 14. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. 14. We may also point out that the Tribunals constituted under the Administrative Tribunals Act, 1985 exercise the original jurisdiction and the Act does not contain a provision for appeal, whereas the Armed Forces Tribunal constituted under the Armed Forces Tribunal Act, 2007 provides for both original and appellate jurisdiction. Hence the ratio laid down in L. Chandra Kumar's case (supra), in the light of the provisions of the Administrative Tribunals Act, 1985, in our considered opinion is of no assistance to substantiate the contention of the petitioners that a writ petition under Article 226 of the Constitution of India is maintainable notwithstanding the remedy of appeal provided under Section 30 of the Act. 15. However, referring to the observations made by the apex Court in Para 91 of L. Chandra Kumar's case (supra), Sri N. Vijay, the learned Counsel appearing for the petitioner in WP No.22955 of 2012 further contended that the remedy of appeal under Section 30 of the Armed Forces Tribunal Act being circumscribed by the condition of grant of leave under Section 31 of the Act being too costly and inaccessible, cannot be termed as an efficacious alternative remedy to exclude the power of judicial review conferred under Article 226 of the Constitution of India. 16. We do not find any substance even in the said contention since Section 31 provides for appeal with the leave of the Tribunal itself which passed the order. An application to the Supreme Court for leave is provided only where the leave is refused by the Tribunal. At any rate, the said issue was neither specifically considered nor decided in L. Chandra Kumar's case (supra). Moreover it appears to us that the observations made in Para 91 were only in the context of power of the High Courts to exercise judicial superintendence over the decisions of the Tribunals under Article 227 of the Constitution of India. We have already noticed that Article 227(4) expressly excludes the powers of superintendence of the High Court over the Tribunal constituted by any law relating to the Armed Forces. 17. We have already noticed that Article 227(4) expressly excludes the powers of superintendence of the High Court over the Tribunal constituted by any law relating to the Armed Forces. 17. Therefore, in our considered opinion, the petitioners cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India against the orders passed by the Tribunal constituted under the Armed Forces Tribunal Act, 2007. 18. For the aforesaid reasons, we uphold the preliminary objection raised by the respondents that the writ petitions are not maintainable in view of the remedy of appeal provided under Section 30 read with Section 31 of the Armed Forces Tribunal Act, 2007. 19. Accordingly, all the writ petitions are hereby dismissed as not maintainable. However, this shall not preclude the petitioners to workout the remedy of appeal provided under the Act. No costs.