TaxTMI 
TaxTMI 
2020 (1) TMI 1483
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....s follows: " 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." 4. Section 15 provides that the Tribunal shall exercise jurisdiction, power and authority in relation to an appeal against any order, decision, finding or sentence passed by a court martial. 5. Section 34 of the Act reads as follows:" 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. &nb....
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.... appellant submits that the view of the Allahabad High Court is incorrect. She contends that it has been held by this Court in a number of decisions including Union of India And Others vs. Major General Shri Kant Sharma And Another (2015) 6 SCC 773 that the AFT exercises all the powers of the High Court. She submits that it virtually substitutes the High Court in so far as matters governed by the Act are concerned, and as such an LPA or Special Appeal against the judgment of a single judge is also required to be transferred to the AFT. 10. We are not at all in agreement with this submission. Section 14(1) of the Act quoted hereinabove clearly provides that the AFT will exercise powers of all courts except the Supreme Court or High Court exercising jurisdiction under Article 226 and 227 of the Constitution of India. Section 34 is very carefully worded. It states that 'every suit', or 'other proceedings' pending before any court including a High Court immediately before the establishment of the Tribunal shall stand transferred on that day to the Tribunal. The Legislature has clearly not vested the AFT with the power and jurisdiction of the High Court to be exercised under Article ....
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...., in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. 79. We also hold that the power vested in the High Cour....
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....he Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. 91. It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a first appellate court. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the deci....
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....gants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. xxx xxx xxx 99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Arti....
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.... 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." What this Court held was that though the power of the High Court under Article 226 of the Constitution is a basic essential feature of the Constitution which cannot be taken away, the High Court should not entertain a petition under Article 226 of the Constitution if any other effective alternative remedy is available to the aggrieved person or the statute, under which the action complained of has been taken, itself contains a maxim for redressal of grievance. We have our doubt, with regard to the correctness of the directions (iii) & (iv) of the judgment, since in our opinion it runs counter to the judgment rendered by the Constitution Bench. 14. It would be pertinent to add that the principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The writ courts normally refrain from exercising their extraordinary power if the pe....
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.... powers of the High Court. 16. In Rojer Mathew vs. South Indian Bank Ltd. & Ors. 2019 (15) SCALE 615 the Constitution Bench of this Court, of which one of us (Deepak Gupta, J. was a member), clearly held that though these tribunals may be manned by retired judges of High Courts and Supreme Court, including those established under Articles 323A and 323B of the Constitution, they cannot seek equivalence with the High Court or the Supreme Court. The following observations are relevant:" 194. Furthermore, that even though manned by retired judges of High Courts and the Supreme Court, such Tribunals established under Article 323A and 323B of the Constitution cannot seek equivalence with High Court or the Supreme Court. Once a judge of a High Court or Supreme Court has retired and he / she no longer enjoys the Constitutional status, the statutory position occupied by him / her cannot be equated with the previous position as a High Court or a Supreme Court judge. The rank, dignity and position of Constitutional judges is hence sui generis and arise not merely by their position in the Warrant of Precedence or the salary and perquisites they draw, but as a result of the Constitu....