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2022 DIGILAW 1080 (KER)

Ravindran K. v. Union of India

2022-12-14

A.K.JAYASANKARAN NAMBIAR, C.P.MOHAMMED NIAS

body2022
ORDER : A.K. Jayasankaran Nambiar, J. 1. In all these cases, a preliminary issue as regards maintainability arises for consideration, and hence, they are taken up together for hearing on the said issue. 2. The O.P.(AFT)'s have been filed impugning orders passed by the Armed Forces Tribunal [AFT] and by invoking the jurisdiction of this Court under Article 227 of the Constitution of India. The writ petition, on the other hand, has been filed impugning an order of the AFT by invoking the jurisdiction of this Court under Article 226 of the Constitution. The preliminary issue that arises for consideration is whether a person aggrieved by an order passed by the AFT can approach this Court by invoking its jurisdiction either under Article 226 or Article 227 of the Constitution of India. 3. The following judgments of the Supreme Court were cited before us by the learned counsel appearing for the parties: Sangram Singh v. Election Tribunal, Kotah and Another, (1955) 2 SCR 1 , Union of India and Others v. Major General Shri Kant Sharma and Another – (2015) 6 SCC 773 , L. Chandra Kumar v. Union of India and Others – (1997) 3 SCC 261 , Balkrishna Ram v. Union of India and Others – (2020) 2 SCC 442 , Rojer Mathew v. South Indian Bank Ltd. - (2020) 6 SCC 1 , Shalini Shyam Shetty and another v. Rajendra Shankar Patil – (2010) 8 SCC 329 and interim order dated 16.11.2015 in Civil Appeal No.5327 of 2015 – [Union of India and Others v. Thomas Vaidyan M.]. 4. On a consideration of the above judgments, we find that the following principles can be culled out from them; (i) The jurisdiction which Articles 226 and 136 of the Constitution confer entitles the High Courts and the Supreme Court to examine the decisions of all Tribunals to see whether they have acted illegally. The said jurisdiction cannot be taken away by a legislative device that purports to confer power on a Tribunal to act illegally by stipulating that its illegal acts shall become legal the moment the Tribunal chooses to say they are legal. The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior Tribunal. It is a part of the law of the land which cannot be finally determined or altered by any Tribunal of limited jurisdiction. The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior Tribunal. It is a part of the law of the land which cannot be finally determined or altered by any Tribunal of limited jurisdiction. The High Courts and the Supreme Court alone can determine what the law of the land is vis-a-vis all other Courts and Tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior Tribunal can do is to reach a tentative conclusion which is subject to review under Article 226 and 136 of the Constitution. [See Sangram Singh (supra)] (ii) In L. Chandra Kumar (supra), a seven Judges' Bench of the Supreme Court held that judicial review is a part of the basic structure of the Constitution and that the power of judicial review of the High Courts and the Supreme Court cannot be taken away. This position was reiterated in Rojer Mathew (supra). In the case of the AFT, this position is also made clear under Section 14 of the Armed Forces Tribunal's Act itself. In the light of the judgments in L. Chandra Kumar (supra) and Rojer Mathew (supra) as also the specific provisions in the Armed Forces Tribunal Act, we are perhaps justified in viewing the finding in Major General Shri Kant Sharma (supra) that holds that a writ petition under Article 226 would not lie against an order of the AFT, as impliedly overruled. This is especially so because, we find that the correctness of Major General Shri Kant Sharma (supra) was doubted by the Supreme Court in Thomas Vaidyan (supra) and the issue referred to a bench of three Judges and it was while so that the Constitution bench pronounced on the issue in Rojer Mathew (supra). (iii) Although the decisions in L. Chandra Kumar (supra) and Rojer Mathew (supra) also hold that that power vested with the High Court to exercise judicial superintendence over decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution, we must remind ourselves that those were cases that dealt with challenges against orders passed by the Administrative Tribunal and the Debt Recovery Tribunal and not against orders passed by the AFT. (iv) At paragraph 215 of its judgment in Rojer Mathew (supra), the Supreme Court observed in the context of orders passed by the Debt Recovery Tribunal that it was clear post L. Chandra Kumar that the writ jurisdiction under Article 226 does not limit the powers of the High Courts expressly or by implication against military or armed forces disputes. The Court also observed that the limited ouster made by Article 227(4) only operates qua administrative supervision by the High Court and not judicial review; that while Article 136(2) prohibits direct appeals before the Supreme Court from an order of the AFT, it would not prohibit an appeal to the Supreme Court against the judicial review exercised by the High Court under Article 226 of the Constitution. It was once again reiterated that the jurisdiction under Article 226, being part of the basic structure, can neither be tampered with nor diluted, but instead had to be zealously protected and could not be circumscribed by the provisions of any enactment, even if it be formulated for expeditious disposal and early finality of disputes. The Court found that the High Courts were conscious enough to understand that such power must be exercised sparingly by them to ensure that they do not become alternate forums of appeal. (v) Although the above observations in Rojer Mathew (supra) and L. Chandra Kumar (supra), seem to suggest that a petition under Article 227 can also be preferred against orders of the AFT, we have to remind ourselves that the observations of the Supreme Court in those cases were made in the context of orders passed by the Administrative Tribunals under the Administrative Tribunals Act and the Debt Recovery Tribunals under the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act. In the case of Armed Forces Tribunals, Article 227(4) of the Constitution specifically excludes the supervisory power of the High Court over such Tribunals inasmuch as it is constituted by or under a law relating to the Armed Forces. We would think therefore that the jurisdiction of the High Courts under Article 227 is excluded by the express provisions of the Constitution itself more so because the judicial interference that this Court exercises under Article 227 is nothing but a mode of the supervision that is envisaged under Article 227 of the Constitution. We would think therefore that the jurisdiction of the High Courts under Article 227 is excluded by the express provisions of the Constitution itself more so because the judicial interference that this Court exercises under Article 227 is nothing but a mode of the supervision that is envisaged under Article 227 of the Constitution. (vi) The above aspect becomes more clear when we consider the judgment of the Supreme Court in Shalini Shyam Shetty (supra), where, after considering the precedents on the point the principles informing the exercise of the High Court's jurisdiction under Article 227 of the Constitution were formulated as under: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) A petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'. It must ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (e) The High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (e) The High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (f) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (g) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (h) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (i) The reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality. (vii) The judicial intervention under Article 227 is therefore merely an aspect of the superintendence over Subordinate Courts and Tribunals envisaged for the High Court under the said provision and when Article 227(4) specifically excludes that superintendence over the Armed Forces Tribunals, we have to understand the Constitutional scheme as excluding the jurisdiction of the High Court under Article 227 in relation to orders passed by the Armed Forced Tribunal. 5. 5. The upshot of the aforesaid discussion is that while we find that the orders of the AFT can be challenged before this Court by invoking its discretionary jurisdiction under Article 226 of the Constitution, we also hold that a petition under Article 227 of the Constitution will not lie before this Court against an order of the AFT in view of the express bar under Article 227(4) of the Constitution. We also feel that in view of the observation of the Supreme Court in paragraph 214 of Rojer Mathew (supra) that it was in an attempt to respect the intent of facilitating speedy disposal expressed by the Parliament that in L. Chandra Kumar (supra), the Court had directed that orders of the Administrative Tribunals be heard by a Division Bench of the High Court if challenged under Article 226, the Scheme of expediency manifest in the provisions of the Armed Forces Tribunal Act would require us to hold that writ petitions filed under Article 226 of the Constitution, impugning orders of the AFT, should be heard by a Division Bench of this Court. 6. We are therefore of the view that against the orders of the AFT, only a writ petition under Article 226 of the Constitution will be maintainable before this Court, and in that event, the Registry should number the petitions as Writ Petitions and post them for hearing before a Division Bench of this Court in accordance with roster. For the sake of clarity, we reiterate that petitions under Article 227 of the Constitution cannot be filed before this Court impugning an order of the AFT, in view of the express bar contained in Article 227(4) of the Constitution. The O.P.(AFT)'s dealt with in these proceedings, shall be renumbered by the Registry as Writ Petitions and posted before the Division Bench in accordance with the roster. W.P.(C).No.18234 of 2022 is found maintainable, and posted for disposal in its turn.