Dr. Manjula Chellur, C.J@mdashThe above appeal is directed against the order dated 11.10.2007 in W.P. 1532 of 2006. When the matter came up for hearing before the Division Bench, Division Bench opined, since Union of India had set up a Tribunal to deal with disputes including service matters pertaining to Armed Forces personnel, in the light of Section 34 of the Armed Forces Tribunal Act of 2007 (for short hereinafter referred to as A.F.T. Act of 2007), whether the matter needs to be transferred to Armed Force Tribunal or could be decided by this Court.
2. In this regard, the Division Bench after referring to decision of Allahabad High Court in Special Appeal Defective No. 445 of 2005 opined as under:--
"We have also heard Mr. Kaushik Chandra, learned senior Counsel appearing for the Union of India. We are in doubt whether this appeal could be transferred to the Tribunal giving them opportunity to sit on appeal over the judgment and order of the learned Single Judge of this Court. The bench decision of the Allahabad High Court might have a persuasive value. However, we beg to differ.
This is a transitional period. Once the learned Single Judge dealt with the issue and disposed of the writ petition, the intra court appeal under Clause 15 is only available to this Court and not to the Tribunal. Hence, this appeal, if proceeded with, could only be heard by the Division Bench of this Court and nobody else. However, since the issue would have a national repercussion, we feel, a larger Bench should decide the issue. We, thus, request the Hon''ble Chief Justice to form and constitute a larger Bench to decide as to whether intra court appeal under Clause 15 of the Letters Patent could be included within the meaning of Section 34 of the Armed Forces Tribunal Act, 2007 for being transferred to the Tribunal."
3. In the light of above reference, this came up for consideration before the Larger Bench. We have heard learned Counsel, Sri Pradip Tarafdar for the appellant and the learned standing Counsel, Sri Kaushik Chandra for Union of India. In order to understand the controversy before us, we have to first analyse the relevant provisions under the A.F.T. Act of 2007. These are Sections 14, 15, 29, 34 and 35. Since application of Letters Patent applies to this Charter High Court, we have to refer to Clause 15 of Letters Patents which provides for intra court appeal.
4. The relevant provisions under A.F.T. Act read as under:--
"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 article 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 maters, 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 section 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.
15. Jurisdiction, powers and authority in matters of appeal against court-martial.--(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 under this Act in relation to appeal against any order, decision, finding or sentence passed by a court-martial or any matter connected therewith or incidental thereto.
(2) Any person aggrieved by an order, decision, finding or sentence passed by a court-martial may prefer an appeal in such form, manner and within such time as may be prescribed.
(3) The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it considers necessary.
Provided that no accused person shall be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life.
(4) The Tribunal shall allow an appeal against conviction by a court-martial where-
(a) the finding of the court-martial is legally not sustainable due to any reason whatsoever; or
(b) the finding involves wrong decision on a question of law; or
(c) there was a material irregularity in the course of the trial resulting in miscarriage of justice'' but, in any other case, may dismiss the appeal where the Tribunal; considers that no miscarriage of justice is likely to be caused or has actually resulted to the appellant:
Provided that no order dismissing the appeal by the Tribunal shall be passed unless such order is made after recording reasons therefor in writing.
(5) The Tribunal may allow an appeal against conviction, and pass appropriate order thereon.
(6) Notwithstanding anything contained in the foregoing provisions of this section the Tribunal shall have the power to-
(a) substitute for the findings of the court-martial, a finding of guilty for any other offence for which the offender could have been lawfully found guilty by the court-martial and pass a sentence afresh for the offence specified or involved in such findings under the provisions of the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 9f 1957) or the Air Force Act, 1950 (45 of 1950), as the case may be; or
(b) if sentence is found to be excessive, illegal or unjust, the Tribunal may-
(i) remit the whole or any part of the sentence, with or without conditions;-
(ii) mitigate the punishment awarded;
(iii) commute such punishment to any lesser punishment or punishments mentioned in the Army Act, 1950(46 of 1950) or the Navy Act, 1957 (62 9f 1957) and the Air Force Act, 1950 (45 of 1950), as the case may be;
(c) enhance the sentence awarded by a court-martial;
Provided that no such sentence shall be enhanced unless the appellant has been given an opportunity of being heard.
(d) release the appellant if sentenced to imprisonment, on parole with or without conditions;
(e) suspend a sentence of imprisonment;
(f) pass any other order as it may think appropriate.
(7) Notwithstanding any other provisions in this Act, for the purposes of this section, the Tribunal shall be deemed to be a criminal court for the purposes of Sections 175, 178, 179, 180, 193, 195, 196 or 228 of the Indian Penal Code (45 of 1860) and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
Section 29. Execution of order of the Tribunal.- Subject to the other provisions of this Act and the rules made thereunder, 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.
"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 or 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 case 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."
35. Provision for filing of certain appeals.- Where any decree or order has been made or passed by any court (other than a High Court) or any other authority in any suit or proceeding before the establishment of the Tribunal, being a suit or proceeding the cause of action whereon it is based, is such that it would have been, if it had arisen after such establishment, within the jurisdiction of the Tribunal, and no appeal has been preferred against such decree or order before such establishment or if preferred, the same is pending for disposal before any court including High Court and the time for preferring such appeal under any law for the time being in force had not expired before such establishment such appeal shall lie to the Tribunal, within ninety days from the date on which the Tribunal is established, or within ninety days from the date of receipt of the copy of such decree or order, whichever is later."
5. The Clause 15 of the Letters Patent which provides for intra court appeal reads as under:--
"15. Appeal from the courts of original jurisdiction to the High Court in its Appellate jurisdiction.- And we do further ordain, that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under provisions of Section 107 of the Government of India Act or in the exercise of Criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act made on or after the first day of February one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declared that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council as hereinafter provided."
6. Section 14 of A.F.T. Act deals with the jurisdiction, powers and authority in service matters which could be exercised by the Tribunal. It says that the Tribunal has the jurisdiction, power and authority in relation to all service matters except the matters which have to be dealt with by the Supreme Court or a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution.
7. Section 15 deals with the appellate authority of the Tribunal in all matters that is order, decision, finding and sentence passed by a court martial or any matter connected therewith or incidental thereto. It also refers to other incidental matters pertaining to appeals before the Tribunal.
8. Section 29 refers to execution of order of Tribunal. Subject to the other provisions of A.F.T. Act, the decision, order passed by the Tribunal on any application filed before it shall become final and cannot be questioned in any court of law.
9. Section 34 refers to transfer of pending cases to Tribunal on coming into force of the provisions of A.F.T. Act of 2007. So far as Section 35 is concerned, it refers to provisions for filing an appeal where time prescribed for filing an appeal has not yet expired.
10. Clause 15 of Letters Patent refers to how an appeal shall lie to the High Court from the orders of the original jurisdiction of the High Court in its appellate jurisdiction.
11. According to learned Counsel for the appellant, the present appeal deserves to be transferred to the Tribunal as Section 34 of the Act has clearly put an embargo on the jurisdiction of the High Court to hear and decide appeals pending before the High Court in relation to service matters of Armed Force personnel once the Act has come into force. He contends, Section 34 of the Act refers to every suit or proceeding pending before any court including a High Court or other authority shall stand transferred to Tribunal, therefore, according to learned senior Counsel for appellant, the present appeal cannot be entertained before this Court.
12. He relies upon
13.
14.
15. Lastly, he relies upon Mil
16. As against this, learned standing Counsel for Union of India places reliance
"87. The Constitution contemplates judicial power being exercised by both courts and tribunals. Except the powers and jurisdictions vested in superior courts by the Constitution, powers and jurisdiction of courts are controlled and regulated by Legislative enactments. The High Courts are vested with the jurisdiction to entertain and hear appeals, revisions and references in pursuance of provisions contained in several specific legislative enactments. If jurisdiction of High Courts can be created by providing for appeals, revisions and references to be heard by the High Courts, jurisdiction can also be taken away by deleting the provisions for appeals, revisions or references. It also follows that the legislature has the power to create tribunals with reference to specific enactments and confer jurisdiction on them to decide disputes in regard to matters arising from such special enactments. Therefore it cannot be said that legislature has no power to transfer judicial functions traditionally performed by courts to tribunals.
88. The argument that there cannot be "wholesale transfer of powers" is misconceived. It is nobody''s case that the entire functioning of courts in the country is transferred to tribunals. The competence of Parliament to make a law creating tribunals to deal with disputes arising under or relating to a particular statute or statutes cannot be disputed. When a Tribunal is constituted under the Companies Act, empowered to deal with disputes arising under the said Act and the statute substitutes the word "tribunal" in place of "the High Court" necessarily there will be "wholesale transfer" of company law matters to the tribunals. It is an inevitable consequence of creation of a tribunal for such disputes and will no way affect the validity of the law creating the tribunal."
17. Reading of above paragraphs indicate Constitutional Bench opined, tribunalisation if leads to affect independency of judiciary or tinker with the standards of the judiciary, courts may interfere to preserve the independence and standards of judiciary, however, it has to be part of the exercise as checks and balances measure to preserve and maintain separation of powers and to prevent any encroachment intentional or unintentional by other constitutional entities of the State, either legislature or executive. In the above context, paragraphs 87 and 88 are relevant.
18. He further places reliance in Special Appeal (Defective) No. 610 of 2002 and No. 14226029 in the case of
19. As on the date of A.F.T. Act coming into force one has to see with reference to Section 34 what types of appeals could be said as pending in relation to the service matters of the Armed Force personnel.
"1. A Letters Patent Appeal or any other High Court Appeal.
2. Regular First Appeal from order/decree within the scope of Code of Civil Procedure.
3. Second Appeal as contemplated under the provision of Code of Civil Procedure.
4. Any other statutory appeal from the order passed by a competent authority."
20. In the light of Sections 34 and 35 of A.F.T. Act whether or not some of the appeals mentioned above remain with the High Court irrespective of the A.F.T. Act of 2007 coming into force? It is well settled now that a final order/judgment in a petition under Article 226 of Constitution of India by the High Court, even if passed by a learned Single Judge, cannot be judicially reviewed by the Tribunal [Reference is made to
21. The Constitution confers the power and authority on the High Court and the Apex Court to strike down laws made by the Legislature. Apart from the task of upholding the Constitution, it is clothed with the authority of interpreting the Constitution as well. The object is to see and balance each constitutional authority discharge their respective functions within their domain without transgressing constitutional limitations. It is the responsibility of the Constitutional Court to oversee the judicial functions including the decisions rendered by subordinate courts and tribunals, by stepping in whenever required to maintain strict standard of legal and judicial independence. Similarly, several constitutional checks are provided under the Constitution to maintain judicial independence of the Judges of the higher judiciary. The exercise of judicial superintendence by the High Court over the decisions of all Courts and Tribunals is nothing but part of basic structure of Constitution.
22. There is no doubt that Tribunals should not adjudicate upon matters which require the attention of higher judiciary, in other words, the Tribunals cannot act as total substitute of the High Court and the Supreme Court. All the decisions of the Tribunal are subject to judicial review of the respective High Court. They are authorized to discharge their functions like court of first instance in respect of the areas of law for which purpose they have been constituted. This is so in the light of Article 323A and Article 323B. In the above perspective one has to understand what exactly the other proceedings mentioned in Section 34 of the A.F.T. Act means. Apart from the expression ''proceeding'', ''suit'' is also mentioned. As a matter of fact, the word ''other proceeding'' is preceded by the word ''suit''. Therefore, the ''genus'' is the ''suit'' and the proceeding is the ''specices''.
23. Reading of Section 34 clearly indicate any suit or proceeding pending even before the High Court, gets transferred to Tribunal by operation of law if the cause of action upon which the said suit or proceeding is based requires filing of said suit or proceeding within the jurisdiction of the Tribunal if it were to be in existence. This clearly indicates the nature of appeal if falls within the description stated above, i.e., categories 2 to 4 as they are not matters arising out of orders of the High Court since such appeals arise only from the orders passed by the Civil Courts or any statutory body subordinate to High Court.
24. Reading of Section 35 conjunctively with Section 34 would lead to proper understanding of the controversy. Section 35 provides filing of appeals only from a decree or order passed by any court or authority and specifically excludes the decree or order passed by the High Court. It does not deal with the transfer of appeals. The expression ''proceeding'' used in this Section 35 definitely cannot be understood to mean as an order or decree passed by the High Court prior to the Constitution of the Tribunal under the A.F.T. Act, because expressly order or decree of a High Court is excluded. It further provides that if no appeal has been preferred against the decree or order prior to the establishment of Tribunal and if such order or decree were to be by any Civil Court or any authority, appeal has to be filed in accordance with the procedure only before the Tribunal once it is established. Exception to this could be a case where an appeal has been preferred against a decree or an order before a High Court and such appeal was filed within the time prescribed under the law or as provided under Section 35, such an appeal ought to have been filed before the Tribunal. This would take us to conclude that an appeal pending as on the date of establishment of the Tribunal shall continue with the High Court only with the exception as stated above.
25. Reading of Sections 34 and 35 clearly indicate Section 34 does not include within its ambit Letters Patent appeal or Intra-Court appeal from the judgment of the learned Single Judge passed under Article 226 of the Constitution. Similarly, no appeal can be instituted before or transferred to the Tribunal against any order of the High Court. In other words, they are excluded from the appellate power of the Tribunal, hence, cannot be transferred by virtue of Section 34 of the A.F.T. Act.
26. It further makes it clear that any other appeal other than the Letters Patent appeal or Intra-Court appeal against an order of a High Court, would get transferred to Tribunal by operation of Section 34 of the A.F.T. Act. Therefore, we opine that Tribunal cannot sit as an appellate authority over the orders of the High Court and, therefore, appeals arising under Letters Patent or Intra-Court provisions cannot be transferred to Tribunal.
27. In the light of above discussion, we answer the reference accordingly.
Joymalya Bagchi, J.
I agree.
Arijit Banerjee, J.
I agree.
