TaxTMI 
TaxTMI 
2015 (11) TMI 1316
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....ts in all these appeals except in C.A.No.7338, C.A.No. 7399 of 2013 and C.A.No.96/2014 wherein they are the respondents. The respondents in all these appeals except the three mentioned above are-Army Personnel who moved before the Tribunal for adjudication or trial of disputes and complaints with respect to condition of service. Having not granted relief, the Army personnel assailed the order passed by the Tribunal before the respective High Courts under Article 226 of the Constitution. The appellant in C.A.No.7338 of 2013 on being aggrieved by the order passed by the Armed Forces Tribunal, Regional Bench, Chennai challenged the same before the High Court of Judicature of Andhra Pradesh at Hyderabad. In the cases in hand except C.A.No.7338 of 2013 and C.A.No.96 of 2014 the High Court entertained the writ petitions and adjudicated the disputes. The High Court having granted relief after reversing the order of Tribunal, the Union of India has challenged the same. In C.A.No.7338 of 2013 and C.A.No.96 of 2014, the appellants-Army Personnel have challenged the orders by which High Courts refused to entertain their writ petitions. In C.A. No. 7399 of 2013, the appellant- Army Personnel h....
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....n or trial by Armed Forces Tribunal of disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force At, 1950 and also to provide for appeals arising out of orders, findings or sentences of Courts-Martial held under the said Acts and for matters connected therewith or incidental thereto. 7. As per Section 14 of the Act, the Armed Forces Tribunal has been established by the Central Government to exercise the jurisdiction, powers and authority conferred on it by the said Act. Section 14 specifies the jurisdiction, powers and authority of the Tribunal in relation to service matters as follows: "Section 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 provisi....
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....r, decision, finding or sentence passed by a court martial or any matter connected therewith or incidental therto. (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 - the finding of the court martial is legally not sustainable due to any reason whatsoever; or the finding involves wrong decision on a question of law; or 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 ord....
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....ed under section 19): Provided that such appeal is preferred within a period of ninety days of the said decision or order: Provided further that there shall be no appeal against an interlocutory order of the Tribunal. (2) An appeal shall lie to the Supreme Court as of right from any order or decision of the Tribunal in the exercise of its jurisdiction to punish for contempt: . Provided that an appeal under this sub-section shall be filed in the Supreme Court within sixty days from the date of the order appealed against. (3) Pending any appeal under sub-section (2), the Supreme Court may order that- the execution of the punishment or the order appealed against be suspended; or if the appellant is in confinement, he be released on bail: Provided that where an appellant satisfies the Tribunal that he intends to prefer an appeal, the Tribunal may also exercise any of the powers conferred under clause (a) or clause (b), as the case may be. Section 31. Leave to appeal.- (1) An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importa....
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....ablishment 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),- 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; 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." 12. A plain reading of the above provisions shows: A remedy of appeal to Supreme Court against any final order passed by the Tribunal under Section 30 with the leave of the Tribunal is provided under Section 31 of the Act. In case leave is refused by the Tribunal, an application to the Supreme Court for leave can be made as provided under sub-section (1) and (2) of Section 31 of the Act. Against any order or decision of the Tribunal....
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....istry replied:- "Since the Armed Forces Tribunal would be dealing with offences,legally awardable punishments and termination of service etc. and the Tribunal is being armed with the powers of contempt, it would be a judicial body. It would be a permanent Tribunal and a Court of record." 86. When Committee asked, whether appeal would be preferred in High Courts or Supreme Court, the Ministry stated: "Clause 30 of the Armed Forces Tribunal Bill, 2005 provides that an appeal against the final decision or order of Armed Forces Tribunal shall lie to the Supreme Court. Under the Constitution, the power of superintendence of High Court is already excluded against a Court Martial verdict." 87. On a specific query to the representatives of the Ministry of Law & Justice, on the issue of appeal against the order of the Tribunal, they stated:- "In a case, L. Chandrakumar's case, which was relating to the Central Administrative Tribunal, which was established by an Act of Parliament, similar provisions were there where an appeal against the orders of the Central Administrative Tribunal was preferred to the Supreme Court but for some time it was entertained by the Supreme Court.....
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....umber of members to constitute a Bench is two. Further, as opposed to the CAT where the Chairperson is a serving or retired High Court judge, the Chairperson of the Armed Forces Tribunal is a retired Supreme Court Judge or retired Chief Justice of the High Court. Further Article 227(iv) of the Constitution excludes the power of superintendence of High Courts over any court or Tribunal constituted by or under any law relating to the Armed Forces. Therefore, an accused cannot go to the High Court in appeal against the order of the Armed Forces Tribunal." 90. The Committee note that clause 30 provides that subject to provisions of section 31, an appeal shall lie to Supreme Court against the final decision or order of the Tribunal. The Committee, however, are given to understand that in the case of L. Chanderkumar, where appeal against the order of the Central Administrative Tribunal was preferred to Supreme Court, the Court stated that powers of the High Court under Articles 226 and 227 cannot be taken away by an Act of Parliament. The Committee are of the view that the appeal against the Tribunal should be preferred as per the provisions of the Constitution. NEW DELHI; BALASAHE....
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....y of the rights conferred by this Part shall, in their application to,- (a) the members of the Armed Forces; or (b) the members of the Forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or (d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them." 17. Article 226 empowers High Court to issue prerogative writs. The said Article reads as under: "Article 226.Power of High Courts to issue certain writs.- (1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, toissue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including 1[writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or ....
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....e forms in which books, entries and accounts shall be kept by the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces." 19. In this context, it is also necessary to notice Article 136 of the Constitution which provides special leave to appeal to Supreme Court: "136.Special leave to appeal by the Supreme Court.-(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in claus....
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....iolated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf; otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of the citizens' fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case." (emphasis added) 76. To express our opinion on the issue whether the power of judicial review vested in the High Courts and in the Supreme Court under Articles 226/227 and 32 is part of the basic structure of the Constitution, we must first attempt to understand what constitutes the basic structure of the Constitution. The doctrine of basic structure was evolved in Kesavananda Bharati case (1993 4 SCC 225). However, as already mentioned, that case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution.....
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....of the Armed Forces. Article 33 empowers Parliament to make law determining the extent to which any of the rights conferred by Part III shall, in their application to the members of the Armed Forces be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them. By clause (2) of Article 136 the appellate jurisdiction of this Court under Article 136 of the Constitution has been excluded in relation to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces. Similarly clause (4) of Article 227 denies to the High Courts the power of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. This Court under Article 32 and the High Courts under Article 226 have, however, the power of judicial review in respect of proceedings of courts martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional e....
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....s. Therefore, the personnel manning the administrative tribunal in their determinations not only require judicial approach but also knowledge and expertise in that particular branch of constitutional and administrative law. The efficacy of the administrative tribunal and the legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage would definitely impair the efficacy and effectiveness of the Administrative Tribunal. Therefore, it was held that an appropriate rule should be made to recruit the members; and to consult the Chief Justice of India in recommending appointment of the Chairman, Vice-Chairman and Members of the Tribunal and to constitute a committee presided over by Judge of the Supreme Court to recruit the members for appointment. In M.B. Majumdar v. Union of India when the members of CAT claimed parity of pay and superannuation as is available to the Judges of the High Court, this Court held that they are not on a par with the judges but a separate mechanism created for their appointment pursuant to Article 323-A of the Constitution. Therefore, what was meant by this Court in Sampath Kumar case ratio is that the....
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....s of the Act. This Court held: "108. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. (i)...........While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the [pic]provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. Xxx xxx xxx xxx 28. In Kanaiyalal Lalchand and Sachdev and others vs. State of Maharasthra and others, (2011) 2 SCC 782, this Court considered the question of maintainability of ....
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....lles, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: (ER p. 495) '... There are three classes of cases in which a liability may be established founded upon a statute. ... But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. and Secy. of State v. Mask and Co. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." 14. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy, J. (speaking for the majority of the larger Be....
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....gs despite availability of an alternative remedy. This jurisdiction, the High Court would exercise with some circumspection in exceptional cases, particularly, where the cases involve a pure question of law or vires of an Act are challenged. This class of cases we are mentioning by way of illustration and should not be understood to be an exhaustive exposition of law which, in our opinion, is neither practical nor possible to state with precision. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the courts. It will normally depend upon the facts and circumstances of a given case. The further question that would inevitably come up for consideration before the Court even in such cases would be as to what extent the jurisdiction has to be exercised. 81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdi....
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....acious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh, Titaghur Paper Mills Co. Ltd. v. State of Orissa, Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and State of H.P. v. Gujarat Ambuja Cement Ltd. 12. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission, Sangram Singh v. Election Tribunal, Union of India v. T.R. Varma, State of U.P. v. Mohd. Nooh2 and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras have held that though Article 226 confers very wide powers in the matter of issuing writs on the Hi....
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....medy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: (ER p. 495) xxx xxx xxx xxx 14. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) '77. ... So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32-is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.'" (See G. Veerappa Pillai v. Raman & Raman Ltd., CCE v. Dunlop India Ltd., Ramendra Kishore Biswas v. State of Tripura, Shivgonda Anna Patil v. State of Maharashtra, C.A. Abraham v. ITO, Titaghur Paper Mills Co. Ltd. v. State of Orissa, Excise and Taxation Officer-cum-As....
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....rt is also found in Section 31(1) itself. The expression "or it appears to the Supreme Court [pic]that the point is one which ought to be considered by that Court" empowers this Court to permit the filing of an appeal against any such final decision or order of the Tribunal. 10. A conjoint reading of Sections 30 and 31 can lead to only one conclusion viz. there is no vested right of appeal against a final order or decision of the Tribunal to this Court other than those falling under Section 30(2) of the Act. The only mode to bring up the matter to this Court in appeal is either by way of certificate obtained from the Tribunal that decided the matter or by obtaining leave of this Court under Section 31 for filing an appeal depending upon whether this Court considers the point involved in the case to be one that ought to be considered by this Court. 11. An incidental question that arises is: whether an application for permission to file an appeal under Section 31 can be moved directly before the Supreme Court without first approaching the Tribunal for a certificate in terms of the first part of Section 31(1) of the Act? 12. In the ordinary course the aggrieved party could pe....
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....annot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act.(Refer: Mafatlal Industries Ltd.). (iii)When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma). (iv)The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer: Nivedita Sharma). Article 141 of the Constitution of India reads as follows: "Article 141.Law declared by Supreme Court to be binding on all courts.- The law declared by the Supreme Court shall be binding on all courts within the territory of India." 36. In Executive Engineer, Southern Electricity Supply Company of Orissa Limited(SOUTHCO) this Court observed that it should only be for the specialised tribunal or the appellate authorities ....