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Supreme Court rules that when Armed Forces Tribunal Act provides for an appellate remedy, High Courts should not entertain A. 226 writ petitions

Murali Krishnan

Earlier last week, the Supreme Court ruled that when the Armed Forces Tribunal Act, 2007 (Act) expressly provides for an appellate remedy, aggrieved military personnel cannot move High Courts under Article 226 against the ruling of the Armed Force Tribunal (Tribunal).

The judgment was delivered by a Division Bench comprising Justices SJ Mukhopadhaya and NV Ramana in a batch of appeals – some filed by military personnel and some by the Central government against the judgments of various High Courts.

The disputes pertained to conditions of service of military personnel. The Tribunal had decided against the servicemen, who then moved various High Courts under Article 226 against the decision of the Tribunal. The Delhi High Court entertained the petitions and reversed the decision of the Tribunal while the Andhra Pradesh High Court and the Allahabad High Court refused to entertain the petitions. The servicemen and the Central government appealed against the decisions of different High Courts and the same were heard together and decided by the Supreme Court.

The question of law which the Court considered was whether High Courts can be moved under Article 226 when the Act specifically provides for an appellate remedy by way of appeal to the Supreme Court under Section 30.

Besides Section 30, the Court also considered Section 33 and Section 34 of the Act. Section 33 excludes jurisdiction of Civil Courts although it does not affect the jurisdiction of the High Court under Articles 226 and 227. Section 34 provides for transfer of pending suits from Civil Courts and High Courts to the Tribunal. The Court held that:

“….it is clear from the scheme of the Act that jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of Civil Court and the High Court so far as it relates to suit relating to condition of service of the persons subject to Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950, which are special laws 15 enacted by the Parliament…”

The Court admitted that,

“The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.”

It, however, held that if the if the High Court entertains a petition under Article 226 of the Constitution of India against an order passed by Armed Forces Tribunal under Section 14 or Section 15 of the Act bypassing the machinery of statute i.e. Sections 30 and 31 of the Act, there is likelihood of anomalous situation for the aggrieved person in praying for relief from the Supreme Court.

“The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation. Therefore, it is always desirable for the High Court to act in terms of the law laid down by this Court as referred to above, which is binding on the High Court under Article 141 of the Constitution of India, allowing the aggrieved person to avail the remedy under Section 30 read with Section 31 Armed Forces Act.”

The Court, therefore, reversed the decision of the Delhi High Court and upheld the decisions of the Allahabad High Court and the Andhra Pradesh High Court.

Read the full judgment below.

Union-of-India-Ors.-v.-Major-General-Shri-Kant-Sharma-Anr.pdf
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