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2017 DIGILAW 373 (JK)

Darshan Singh v. Union of India

2017-07-18

ALOK ARADHE, SANJEEV KUMAR

body2017
Alok Aradhe, J When the matter was taken up today, Mrs. Sindhu Sharma, learned ASGI raised an objection that this Bunch of the writ petitions is required to transferred to the Armed Forces Tribunal (in brevity, the AFT) in view of Section 34 of the Armed Forces Tribunal Act, 2007. It is further submitted that a Circuit Bench of AFT has become operative in Jammu, and, therefore, by virtue of Section 34 of the aforesaid Act, 2007, the proceedings which are pending before this Court deserve to be transferred to the AFT. It is further submitted that petitioners in all the cases have alleged violation of either the provisions of the Army Act, Navy Act and the Air Force Act and since they have alleged violation of the provisions of the aforesaid Acts, the cases filed by them are triable under the Armed Forces Tribunal Act. 1. In support of her submissions, learned ASGI has referred to the decision of Hon’ble Supreme Court in the case titled “Kendriya Vidyalaya Sangathan and Another Vs. Subhash Sharma etc., (2002) 4 SCC 145 ” and has submitted that in the aforesaid decision, the Full Bench decision rendered by this Court in the case of “Kuldip Khoda Vs. Masud Ahmad Choudhary and others” reported in 1994 SLJ 287, by which the Full Bench of this Court has held that the provisions of Article 323-A of the Constitution of India do not apply to the State of Jammu and Kashmir has been considered and it has been held that the employees, retired personnel, their legal heirs, dependants and successors as well, are governed by the provisions of the Central Administrative Tribunal (in brevity, the CAT) and have to take resort to the provisions of the Administrative Tribunals Act by filing an original application before the CAT. 2. Mrs. Sindhu Sharma, learned ASGI has also referred to the decision of the Supreme Court in the case of “Union of India and others Vs. Major General Shri Kant Sharma and another, (2015) 6 SCC 773 ” and has submitted that the aforesaid decision has been referred for consideration before the Larger Bench for consideration of the question whether against an order passed by the AFT, an appeal would lie to the Supreme Court or the High Court can still exercise the powers under Articles 226 and 227 of the Constitution of India. It is further submitted that the Supreme Court has held that the decision rendered by it in the in the case of “Union of India and others Vs. Major General Shri Kant Sharma and another” (supra) needs to be re-visited and no direction has been passed with regard to the pending cases or the observations made with regard to the appeal, which are required to be filed under Section 30 of the AFT Act. 3. On the other hand, Mrs. Surinder Kour, learned senior counsel for the petitioners has submitted that Article 323 (A) of the Constitution of India does not apply to the State of Jammu and Kashmir and, therefore, the writ petitions pending before this Court cannot be transferred. In support of her submission, learned counsel for the petitioner has placed reliance on Full Bench decision in case of “Kuldip Khoda (supra) . 4. It is further submitted that by establishing the Tribunal under Article 323-A of the Constitution of India, the Parliament cannot take away the powers of the High Court conferred on them under Articles 226 and 227 of the Constitution of India, which corresponds to the Sections 103/104 of the Constitution of Jammu and Kashmir. It is further submitted that the decision in the case of Kendriya Vidyalaya Sangathan (supra) has no application to the obtaining factual matrix of the case. Learned senior counsel has also invited the attention of this Court to Section 14 (1) of the AFT Act and has submitted that the aforesaid Section does not bar the jurisdiction of the High Court and the powers under Articles 226 and 227 of the Constitution of India cannot be taken away. 5. Mr. U.K. Jalali, learned senior counsel for the petitioner has invited our attention to Article 32 (2A) of the Constitution of India and has submitted that for violation of fundamental rights, a person has the right to approach the High Court for ventilation of his grievance, which cannot be taken away by the Parliament by enacting the AFT Act. It is further submitted that Article 32 (2 A) of the Constitution of India is a special provision in respect of State of Jammu and Kashmir and has been retained in the Constitution of India. 6. It is further submitted that Article 32 (2 A) of the Constitution of India is a special provision in respect of State of Jammu and Kashmir and has been retained in the Constitution of India. 6. M/S Abhinav Sharma and Rajnesh Raina, Advocates submitted that since the decision in the case of Major General Shri Kant Sharma’s case (supra) is pending consideration before the Larger Bench of the Hon’ble Supreme Court, therefore, the decision with regard to transfer of the cases to the AFT be deferred. It is further submitted that in case the writ petition is decided, the petitioner will be rendered remediless. 7. We have considered the submissions made by the learned counsel for the parties and have perused the record. Before proceeding further, we deem it appropriate to take note of the well settled legal position, which reads as under:- “In stating the principle that “a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective”, the Supreme Court quoted with approval the reason of the rule as expressed in MAXWELL: “No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode.” See:-Principles of Statutory interpretation by Justice J.P. Singh (13th Edition), Page 537. 8. Thus, from the aforesaid enunciation of law, it is evident that no person has a vested right in any course of procedure and he has only right of prosecution or defence in the manner prescribed for the time being by or for the Court in which, case is pending and if by an Act of Parliament, the mode of procedure is altered, he has no other right than to proceed according to the altered mode. 9. At this stage, we may refer to Section 34 of the Armed Forces Tribunal Act, which reads as under:- “34. 9. At this stage, we may refer to Section 34 of the Armed Forces Tribunal Act, which reads 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. (2) Where any suit, or other proceeding stands transferred from any Court including a High Court or other authority to the Tribunal under sub-section (1)- (a) The Court or other authority shall, as soon as may be, after such transfer, forward the records of such suit, or other proceeding to the Tribunal; (b) The Tribunal may, on receipt of such records, proceed to deal with such suit, or other proceeding, so far as may be, in the same manner as in the cse of an application made under sub-section (2) of section 14 from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.” 10. Undisputedly, the writ petitions pending before this would be covered by the expression proceeding under Section 34 of the Act. Section 34 of the Act provides transfer of pending proceedings before the AFT Act. Therefore, in view of the mandate contained in Section 34 of the Act, the proceeding pending before the AFT Act as well as taking into account the well settled legal position that a litigant has no vested right in a particular forum, in our considered opinion, the proceedings, which are pending before this Court are required to be transferred to the Tribunal. 11. Besides that, the Full Bench decision of this Court in the case of Kuldip Khoda’s case (supra) was considered by the Hon’ble Supreme Court in the case of Kendriya Vidyalaya Sangathan and another (supra). The relevant extract of which is reproduced below for the facility of reference:- “8. In view of the above legal provision, we hold that the Act applies to all categories of Central Government servants and others posted to work in the State of Jammu and Kashmir as well. The relevant extract of which is reproduced below for the facility of reference:- “8. In view of the above legal provision, we hold that the Act applies to all categories of Central Government servants and others posted to work in the State of Jammu and Kashmir as well. We are, therefore, of the opinion that the contention of Mr. B.D. Sharma, learned counsel for the respondent has no force. We may add here that the Full Bench of the High Court in Kuldip Khoda’s case (supra) has also taken the view that the Act extends to the whole of India, which includes the State of Jammu and Kashmir. 18. We shall proceed on the assumption that the view of the Full Bench regarding the applicability of Article 323-A to J&K State is correct. If so, as pointed out by the Full Bench, the bar contained in Clause 2 (d) of Article 323-A excluding the jurisdiction of all Courts except the jurisdiction of the Supreme Court under Article 136 with respect to the service matters of persons appointed to public services and posts in connection with the affairs of the Union and others specified in Clause (1) will not apply and in such a case, the J&K High Court could entertain the writ petitions filed by such public servants subject, of course, to the usual self-imposed limitations, such as the existence of alternative remedy. Whether the reasoning of the Full Bench of the High Court is correct or not need not be gone into in view of the Constitution Bench decision of this Court in Chandra Kumar’s case (1997) 3 SCC 261 , wherein this Court struck down the Clause 2(d) of Article 323-A on the ground that it offends one of the basic and essential features of the Constitution, viz, the power of judicial review vested in the High Court and the Supreme Court. Thus, the embargo on the constitutional jurisdiction of the High Court stands lifted by virtue of the decision in Chandra Kumar’s case. The offending provision in Article 323-A eroding the constitutional powers of the High Court goes out of existence. Thus, the embargo on the constitutional jurisdiction of the High Court stands lifted by virtue of the decision in Chandra Kumar’s case. The offending provision in Article 323-A eroding the constitutional powers of the High Court goes out of existence. The High Courts, under Articles 226/227 of the Constitution of India or the corresponding provisions in J&K Constitution, namely, Sections 103/104 will, therefore, retain their jurisdiction even in relation to the service matters falling within the sweep of Clause (1) of Article 323-A. To this extent, the ultimate conclusion reached by the Full Bench of the J&K High Court on an entirely different ground accords with the Constitution Bench Judgment in Chandra Kumar’s case. But, then, the effect and implications of the ruling in Chandra Kumar’s case have to be considered in order to see whether the impugned order of the High Court can be sustained. This Court having struck down the offending clause of Article 323-A proceeded to hold that the power conferred on the Administrative Tribunals should be preserved without sacrificing the judicial review power of the High Court and the Supreme Court inhering from Articles 226/227 and 32 respectively. With this objection in view, to keep the mechanism of Administrative Tribunals in fact, this Court deemed it expedient to impose certain restraints on the entertainment of petitions under Articles 226/227. The Court held that an Administrative Tribunal can still perform its supplementary role in relation to the service matters and it can even test the constitutional validity of the statutory provision or rule except the Act or the Rule under which it was created. It was laid down that the Tribunal will continue to act as Court of first instance in respect of matters falling within in its jurisdiction and it was not open to the aggrieved person to directly approach the High Court by overlooking the jurisdiction of the Tribunal concerned. In this context, my learned brother has quoted the relevant passage from the decision in Chandra Kumar’s case, AIR 1997 SC 1125 : (1997 SC W 1345). 19. I must say that the decision in Chandra Kumar’s case is a product of judicial craftsmanship and a landmark in the development of constitutional law in our republic. In this context, my learned brother has quoted the relevant passage from the decision in Chandra Kumar’s case, AIR 1997 SC 1125 : (1997 SC W 1345). 19. I must say that the decision in Chandra Kumar’s case is a product of judicial craftsmanship and a landmark in the development of constitutional law in our republic. Even if this judgment does not ipso facto apply to the J&K State Constitution, there is no apparent reason why the ratio of this judgment should not be applied to the exercise of jurisdiction by the J&K High Court under Sections 103 and 104 of J&K Constitution. The wholesome principle evolved by this Court in Chandra Kumar, could be extended to Sections 103 and 104 as well; otherwise it would lead to an anomalous result of the Central Government servants/employees of Central Government controlled Corporations, etc. working in J&K being left with the option of bypassing the Tribunal, without falling in line with their counterparts working elsewhere” 12. Thus, it is evident that Full Bench decision of this Court has been taken into consideration by the Supreme Court. The position with regard to non-applicability of Article 323-A has also been taken into account by the Supreme Court and it has been held by the Hon’ble Supreme Court that the employees, retired personnel, their legal heirs, dependants and successors as well governed by the provisions of the Administrative Tribunals Act, 1985 are required to resort to the remedy under the provisions of the Administrative Tribunal Act, at the first instance. It has further been held that the powers under Sections 103 and 104 of the Constitution of Jammu and Kashmir can be exercised in respect of the matters arising out from the orders passed by the CAT. 13. Though the contention has been raised before us by the learned senior counsel for the petitioner by referring to Article 32 (2 A) of the Constitution of India, which is a special provision, dealing with the State of Jammu and Kashmir as well as the fact that the decision rendered in the case of Major General Shri Kant Sharma (supra) is pending consideration before the Larger Bench of the Hon’ble Supreme Court, we refrain ourselves from expressing any opinion with regard to the issues raised on behalf of the petitioner, at this stage, as the matter is sub judice before the Supreme Court. 14. 14. Needless to state that in case of violation of a fundamental right, it is always open to a person to approach this Court by filing a writ petition under Section 103 of the Constitution of the State of Jammu and Kashmir as well as under Article32 (2 A) of the Constitution of India. 15. We are afraid that the submission made on behalf of the petitioners that they would be rendered remediless cannot be accepted as Section 30 of the Act provides for remedy of an appeal and the question whether the powers of judicial review under Articles 226 and 227 of the Constitution of India can be taken away and whether this Court has the power to entertain the writ petition against an order passed by the AFT Act is pending consideration before the Larger Bench of the Supreme Court. 16. In view of the preceding analysis, we direct transfer of all the writ petitions to AFT Bench at Jammu. 17. The Registry is directed to transmit the records of the cases to the AFT Bench at Jammu, forthwith. Accordingly, the writ petitions are disposed of.