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2013 DIGILAW 393 (MP)

Ravindra Nath Tripathi v. Union of India

2013-03-21

AJIT SINGH, S.A.BOBDE

body2013
JUDGMENT : As per S.A. Bobde; CJ.:- A question is raised by the respondents whether the petitioner has an alternative remedy under Section 14 of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as "the AFT Act"). 2. The petitioner has approached this Court for relief against the order dated 27-7-2000 imposing a punishment of discharge from service on him. In addition, he has questioned the constitutionality of Sections 82, 83, 84 and 86 of the Air Force Act, 1950 being ultra vires Article 14 of the Constitution of India; Rules 24 and 31 of the Air Force Rules, 1969 being ultra vires Article 14 of the Constitution of India; Section 50 (b) of the Air Force Act, 1950 being ultra vires Article 22 (2) of the Constitution of India and Rule 15 (2) (g) (ii) of the Air Force Rules, 1969 being ultra vires Article 20 (2) of the Constitution of India. According to the respondents the petitioner has equally efficacious alternative remedy under Section 14 of the AFT Act, which enables a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal for redressal. Since the question raised on behalf of the respondents is of general importance we requested Shri Rajendra Tiwari, learned Senior Counsel to assist the Court as amicus curiae. 4. According to the amicus curiae and the respondents, Section 14 of the AFT Act provides an alternative remedy to the petitioner even when he challenges the constitutional validity of provisions of a statute such as Air Force Act, 1950. The main submission of Shri Tiwari is based on the observations of the Supreme Court in the case of L. Chandra Kumar Vs. Union of India and others, (1997) 3 SCC 261 , wherein the question raised was whether Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not involved. The Supreme Court rejected the contention that the matters relating to constitutional validity of statute cannot be raised before the Tribunals. The Supreme Court observed as follows :- "90.......It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. The Supreme Court observed as follows :- "90.......It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. 91. It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the rule of a First Appellate Court. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the rule of a First Appellate Court. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of Tribunals under Article 227 of the Constitution." 5. In conclusion, the Supreme Court declared Clause 3 (d) of the Article 323-B to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/226 and 32 of the Constitution as unconstitutional in the following words :- "In view of the reasoning adopted by us, 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 Articles 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 concerned Tribunal. Section 5 (6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated." 6. Section 5 (6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated." 6. According to Shri Tiwari, the same position in law would operate in relation to the jurisdiction conferred by AFT Act on the Tribunal constituted under that Act and, therefore, the petitioner must not only approach that Tribunal as an alternative remedy provided to him by law, but this Court cannot entertain the petition since the Supreme Court has observed that it is the Tribunal alone which should act as a Court of first instance, and not this Court. Shri Tiwari further contended that the statement of law by Supreme Court is binding on this Court, which indeed it is, and if this Court exercises jurisdiction, the same shall be contrary to the statutory provisions. We must, therefore, examine the statutory provisions. Section 14 of the Armed Forces Tribunal Act reads as follows :- "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 service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed. (3) On receipt of an application relating to service matters, the Tribunal shall, if satisfied after due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the Tribunal is not so satisfied, it may dismiss the application after recording its reasons in writing. (3) On receipt of an application relating to service matters, the Tribunal shall, if satisfied after due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the Tribunal is not so satisfied, it may dismiss the application after recording its reasons in writing. (4) For the purpose of adjudicating an application, the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely :- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872) requisitioning any public record or document or copy of such record or document from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing an application for default or deciding it ex parte; (h) setting aside any order of dismissal of any application for default or any order passed by it ex parte; and (i) any other matter which may be prescribed by the Central Government. (5) The Tribunal shall decide both questions of law and facts that may be raised before it." 7. We find that on plain reading of Section 14 of the AFT Act, which in sharp contrast to Section 14 of the Administrative Tribunals Act, the AFT Act confers the jurisdiction, powers and authority exercisable by all Courts except the Supreme Court or the High Court exercising jurisdiction under Articles 226 and 227 of the Constitution of India on the Tribunal on and from the appointed day. In other words, it does not confer the jurisdiction, power and authority of the High Court under Articles 226 and 227 of the Constitution of India on the Tribunal. 8. On the other hand, Section 14 of the Administrative Tribunals Act, 1985 reads as follows :- "14. In other words, it does not confer the jurisdiction, power and authority of the High Court under Articles 226 and 227 of the Constitution of India on the Tribunal. 8. On the other hand, Section 14 of the Administrative Tribunals Act, 1985 reads as follows :- "14. Jurisdiction, powers and authority of the Central Administrative Tribunal.- (1) Save as otherwise expressly provided in this Act, the Central Administrative 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) in relation to- (a) recruitment, and matters concerning recruitment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filed by a civilian; (b) all service matters concerning- (i) a member of any All India Service; or (ii) a person not being a member of an All India Service or a person referred to in clause (c), appointed to any civil service of the Union or any civil post under the Union; or (iii) a civilian not being a member of an All India Service or a person referred to in clause (c) appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation or society owned or controlled by the Government; (c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation or society or other body, at the disposal of the Central Government for such appointment. Explanation :- For the removal of doubts, it is hereby declared that references to 'Union' in this sub-section shall be construed as including references also to a Union Territory. Explanation :- For the removal of doubts, it is hereby declared that references to 'Union' in this sub-section shall be construed as including references also to a Union Territory. (2)*** *** *** (3) *** *** *** This provision purports to confer the jurisdiction, power and authority of all Courts (except the Supreme Court) and on Administrative Tribunal. 9. In the circumstances, we find that there is no exclusion of the jurisdiction of this Court under Articles 226/227 of the Constitution in relation to subject matters, but on the contrary what is conferred on the Tribunal is the jurisdiction, powers and authority exercisable by all Courts except the powers and authority of the Supreme Court and the High Court under Articles 226 and 227 of the Constitution of India. L. Chandra Kumar's case (supra), cannot be treated as authority for the proposition as contended by Shri Tiwari that every Tribunal established under Articles 323-A and 323-B of Constitution alone has jurisdiction to decide upon the matters involving the constitutional validity of statutes. Undoubtedly, Clause 2 (b) 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 have been held to be unconstitutional, but that is clearly on the ground that the jurisdiction conferred upon the High Court under Articles 226/227 of the Constitution of India and upon the Supreme Court under Article 32 of the Constitution of India is a part of the inviolable basic structure of our Constitution. Thus, the point can be viewed from two aspects; one, what powers have been conferred on the Tribunal under the AFT Act and two, correspondingly whether there is any exclusion of jurisdiction of the High Courts. This can be done only by considering the plain meaning of the Parliamentary Legislation by which jurisdiction has been conferred on the Tribunal. As noted earlier the plain words of Section 14 of the AFT Act only confers the jurisdiction, power and authority exercisable by all Courts and in the same breath carves out an exception in relation to the powers of the Supreme Court or the High Court exercising jurisdiction under Articles 226/227 of the Constitution. As noted earlier the plain words of Section 14 of the AFT Act only confers the jurisdiction, power and authority exercisable by all Courts and in the same breath carves out an exception in relation to the powers of the Supreme Court or the High Court exercising jurisdiction under Articles 226/227 of the Constitution. Considering the matter from the point of view of exclusion of jurisdiction of the High Court, Parliament has left no doubt in expressing its intention to retain the jurisdiction of the High Court under Articles 226/227 of the Constitution in relation to the service matters governed by the AFT Act. 10. It is well settled that clauses which purported to exclude the jurisdiction of the Courts must be read strictly. 11. We may add that the observations apply with greater force while considering the subject of exclusion of jurisdiction of High Court under Articles 226/227 of the Constitution, which in fact cannot be excluded vide L. Chandra Kumar (supra). 12. In the result, we are of the view that this matter is liable to be entertained by this Court. Hence issue Rule, Returnable within six weeks. Notice be issued to the Attorney General.