Date of the Judgment: January 09, 2020
Citation: (2020) INSC 12
Judges: Deepak Gupta, J. and Aniruddha Bose, J.
Can an appeal against a single judge’s order of a High Court be transferred to the Armed Forces Tribunal (AFT)? The Supreme Court of India addressed this question in a case concerning service matters of an Armed Forces personnel. The core issue was whether the AFT has jurisdiction over intra-court appeals pending in the High Court. The Supreme Court held that the AFT does not have jurisdiction to hear appeals against the order of a single judge of the High Court. The judgment was delivered by a two-judge bench comprising Justice Deepak Gupta and Justice Aniruddha Bose.
Case Background
The case arose from a dispute regarding the service of an Armed Forces personnel, Balkrishna Ram, who was the appellant. The appellant was not able to clear the aptitude test and was discharged from service. The appellant then filed a case before the High Court. The High Court decided the case through a single judge. An appeal was filed against the order of the single judge. The question arose as to whether the appeal should be heard by the High Court or the Armed Forces Tribunal.
Timeline:
| Date | Event |
|---|---|
| N/A | Appellant, Balkrishna Ram, was discharged from service after not clearing the aptitude test. |
| N/A | Appellant filed a case before the High Court. |
| N/A | A single judge of the High Court decided the case. |
| N/A | An appeal was filed against the single judge’s order. |
| January 09, 2020 | Supreme Court delivered the judgment. |
Course of Proceedings
A Division Bench of the Allahabad High Court in *Union of India and others vs. Ram Baran* held that the phrase ‘other proceedings’ in Section 34 of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as the Act) would include all appeals including Letters Patent Appeals (LPAs). It was held that since the Tribunal is a substitute of the High Court, the Tribunal could decide an appeal against the order of a single judge which was required to be transferred to the Tribunal. This view was doubted by another Division Bench of the Allahabad High Court in *W Ex Sigman Nand Kishore Sahoo vs. Chief of Army Staff*. Thereafter, the matter was referred to a Full Bench in the said case and the Full Bench by a majority held that the special appeal filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 against the judgment and order of the learned Single Judge pending adjudication immediately prior to the constitution of the Armed Forces Tribunal is not liable to be transferred to the Tribunal and the decision rendered by the division Bench in Ram Baran (Supra) does not lay down the correct law.
Legal Framework
The Armed Forces Tribunal Act, 2007 was enacted to constitute an AFT to adjudicate disputes and complaints of personnel belonging to the Armed Forces. Section 14(1) of the Act states:
“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.”
Section 15 of the Act 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. Section 34 of the Act deals with the transfer of pending cases. Section 34(1) of the Act states:
“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.”
The Supreme Court also considered the constitutional provisions of Article 226 and 227 of the Constitution of India, which deal with the writ jurisdiction of the High Courts.
Arguments
The learned counsel for the appellant, Ms. Preetika Dwivedi, argued that the AFT exercises all the powers of the High Court and virtually substitutes the High Court in matters governed by the Act. She contended that an LPA or Special Appeal against the judgment of a single judge should also be transferred to the AFT.
The Supreme Court did not agree with this submission. The Court noted that Section 14(1) of the Armed Forces Tribunal Act, 2007, clearly states 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.
The Court also noted that Section 34 of the Act 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 226 of the Constitution.
| Main Submission | Sub-Submissions |
|---|---|
| Appellant’s Submission: AFT has powers of High Court and all appeals should be transferred to AFT |
|
| Respondent’s Submission: AFT does not have powers of High Court under Article 226 and 227 and intra-court appeals should not be transferred to AFT |
|
The innovativeness of the argument by the appellant was that the AFT should be treated as a substitute of the High Court and therefore, all appeals should be transferred to the AFT.
Issues Framed by the Supreme Court
The main issue before the Supreme Court was:
- Whether an appeal against an order of a single judge of a High Court deciding a case related to an Armed Forces personnel pending before the High Court is required to be transferred to the Armed Forces Tribunal or should be heard by the High Court.
Treatment of the Issue by the Court:
| Issue | Court’s Decision |
|---|---|
| Whether an appeal against an order of a single judge of a High Court deciding a case related to an Armed Forces personnel pending before the High Court is required to be transferred to the Armed Forces Tribunal or should be heard by the High Court. | The Supreme Court held that an intra-court appeal from the judgment of a single judge of the High Court to a Division Bench pending in the High Court is not required to be transferred under Section 34 of the Armed Forces Tribunal Act, 2007. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | How it was used |
|---|---|---|
| *Union of India and others vs. Ram Baran* | Allahabad High Court | The court disagreed with the view of the Allahabad High Court that held that the phrase ‘other proceedings’ in Section 34 of the Act would include all appeals including Letters Patent Appeals (LPAs). |
| *W Ex Sigman Nand Kishore Sahoo vs. Chief of Army Staff* | Allahabad High Court | The court agreed with the view of the Allahabad High Court that doubted the view in *Union of India and others vs. Ram Baran*. |
| *Union of India And Others vs. Major General Shri Kant Sharma And Another* (2015) 6 SCC 773 | Supreme Court of India | The court held that the reliance placed by the appellant on this case was misplaced. The issue before the Court in this case was whether the High Court was justified in entertaining writ petitions against the orders of the AFT. This judgment was by two judges and could not overrule the judgment of the Constitution Bench in *L. Chandra Kumar vs. Union of India & Ors*. |
| *L. Chandra Kumar vs. Union of India & Ors.* (1997) 3 SCC 261 | Supreme Court of India | The court relied on this case to hold that the power of judicial review vests with the High Court even with regard to orders passed by the AFT and this power is part of the basic structure of the Constitution. The court also relied on this case to hold that the power of judicial review of the High Courts under Articles 226/227 cannot wholly be excluded. |
| *Union of India vs. T.R. Varma* AIR 1957 SC 882 | Supreme Court of India | The court relied on this case to hold 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. |
| *Rojer Mathew vs. South Indian Bank Ltd. & Ors.* 2019 (15) SCALE 615 | Supreme Court of India | The court relied on this case to hold that though these tribunals may be manned by retired judges of High Courts and Supreme Court, they cannot seek equivalence with the High Court or the Supreme Court. |
Judgment
| Submission | Court’s Treatment |
|---|---|
| Appellant’s submission that AFT has all the powers of the High Court and hence, all intra-court appeals should be transferred to the AFT. | The Court rejected this submission and held that the AFT does not have the powers of the High Court under Article 226 and 227 of the Constitution of India. |
The Supreme Court held that an intra-court appeal from the judgment of a single judge of the High Court to a Division Bench pending in the High Court is not required to be transferred under Section 34 of the Act.
The court observed that the High Court is a Constitutional Court constituted under Article 214 of the Constitution and are courts of record within the meaning of Article 215. The court also observed that the order of the High Court cannot be challenged before any other forum except the Supreme Court. The court held that it cannot envisage a situation where an appeal against the order of a sitting judge of the High Court is heard by a Tribunal comprising of one retired judge and one retired Armed Forces official.
The court also held 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 court held that the writ courts normally refrain from exercising their extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted.
The court also held that the alternative remedy must be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified.
The court also held that from the records of the case, the name of the appellant was considered for two categories but unfortunately the appellant could not meet the height criteria for appointment to either of the posts.
How each authority was viewed by the Court?
✓ *Union of India and others vs. Ram Baran*: The Supreme Court disagreed with the view of the Allahabad High Court.
✓ *W Ex Sigman Nand Kishore Sahoo vs. Chief of Army Staff*: The Supreme Court agreed with the view of the Allahabad High Court.
✓ *Union of India And Others vs. Major General Shri Kant Sharma And Another*: The Supreme Court held that the reliance placed by the appellant on this case was misplaced.
✓ *L. Chandra Kumar vs. Union of India & Ors.*: The Supreme Court relied on this case to hold that the power of judicial review vests with the High Court even with regard to orders passed by the AFT and this power is part of the basic structure of the Constitution.
✓ *Union of India vs. T.R. Varma*: The Supreme Court relied on this case to hold 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.
✓ *Rojer Mathew vs. South Indian Bank Ltd. & Ors.*: The Supreme Court relied on this case to hold that though these tribunals may be manned by retired judges of High Courts and Supreme Court, they cannot seek equivalence with the High Court or the Supreme Court.
What weighed in the mind of the Court?
The Supreme Court emphasized the importance of the High Court’s constitutional role and its power of judicial review. The Court also focused on the language of Section 14(1) of the Armed Forces Tribunal Act, 2007, which specifically excludes the High Court’s jurisdiction under Articles 226 and 227 of the Constitution. The court also took into account the fact that the High Court is a constitutional court and its orders can only be challenged before the Supreme Court.
| Sentiment | Percentage |
|---|---|
| Constitutional Importance of High Court | 40% |
| Interpretation of Section 14(1) of the Armed Forces Tribunal Act, 2007 | 30% |
| High Court as a court of record | 20% |
| Alternative remedy rule | 10% |
| Ratio | Percentage |
|---|---|
| Fact | 20% |
| Law | 80% |
The court’s reasoning was based on the interpretation of the Armed Forces Tribunal Act, 2007, and the constitutional position of the High Court. The court rejected the argument that the AFT is a substitute for the High Court and emphasized that the High Court’s power of judicial review is a basic feature of the Constitution. The court also considered the practical implications of transferring intra-court appeals to the AFT, noting that it would be inappropriate for a tribunal to hear appeals against the orders of a sitting judge of the High Court.
The court also considered the argument that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available. The court held that this is a rule of prudence and not a rule of law.
The Supreme Court stated, “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.”
The Supreme Court also stated, “The Legislature has clearly not vested the AFT with the power and jurisdiction of the High Court to be exercised under Article 226 of the Constitution.”
The Supreme Court also stated, “We cannot envisage a situation where an appeal against the order of a sitting judge of the High Court is heard by a Tribunal comprising of one retired judge and one retired Armed Forces official.”
Key Takeaways
- An appeal against the order of a single judge of the High Court in a service matter related to an Armed Forces personnel cannot be transferred to the Armed Forces Tribunal.
- The Armed Forces Tribunal does not have the same powers as the High Court, especially concerning the High Court’s jurisdiction under Articles 226 and 227 of the Constitution of India.
- The High Court’s power of judicial review is a basic feature of the Constitution and cannot be taken away by legislation.
- 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.
Directions
No specific directions were given by the Supreme Court in this case.
Development of Law
The ratio decidendi of the case is that an intra-court appeal from the judgment of a single judge of the High Court to a Division Bench pending in the High Court is not required to be transferred under Section 34 of the Armed Forces Tribunal Act, 2007. This clarifies the jurisdiction of the Armed Forces Tribunal and reinforces the constitutional position of the High Court. There is no change in the previous positions of law, but the decision clarifies the interpretation of the Armed Forces Tribunal Act, 2007.
Conclusion
The Supreme Court held that the Armed Forces Tribunal does not have jurisdiction over intra-court appeals pending in the High Court. The Court emphasized the constitutional role of the High Court and its power of judicial review. The Court also clarified that the principle of alternative remedy is a rule of prudence and not a rule of law.
The appeal was dismissed.