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SUPREME COURT OF INDIA
DEEPAK GUPTA, ANIRUDDHA BOSE, JJ.
Balkrishna Ram – Appellant
Versus
Union Of India And Anr. – Respondents
Civil Appeal No.131 of 2020 (@ Special Leave Petition (Civil) No. 6999 of 2017)
Decided on : 09-01-2020
(A) Armed Forces Tribunal Act, 2007 – Sections 14(1), 15 and 34 – Appeal – Transfer to Armed Forces Tribunal (AFT) – AFT will exercise powers of all courts except Supreme Court or High Court exercising jurisdiction under Article 226 and 227 of Constitution of India – Legislature has clearly not vested AFT with power and jurisdiction of High Court to be exercised under Article 226 of Constitution – High Court can exercise its writ jurisdiction even in respect of orders passed by AFT – Since an appeal lies to Supreme Court against an order of AFT, High Court may not exercise their extraordinary writ jurisdiction because there is an efficacious alternative remedy available but that does not mean that jurisdiction of High Court is taken away – In a given circumstance, High Court may and can exercise its extraordinary writ jurisdiction even against orders of High Court – Power of judicial review vests with High Court even with regard to orders passed by AFT and this power is part of basic structure of Constitution – There may be cases where High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by AFT – 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 Supreme Court in every case may not be justified – It is extremely difficult and beyond monetary reach of an ordinary litigant to approach Supreme Court – It will be for High Court to decide in peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not – There cannot be a blanket ban on exercise of such jurisdiction because that would effectively mean that writ court is denuded of its jurisdiction to entertain such writ petitions. (Paras 10, 11 and 14)
(B) Armed Forces Tribunal Act, 2007 – Section 34 – Appeal – Transfer to Armed Forces Tribunal (AFT) – Intra-court appeal from judgment of a single judge of High Court to a Division Bench pending in High Court is not required to be transferred under Section 34 of Act – Provision of intra-court appeal whether by way of Letters Patents or special enactment is a system that provides for correction of judgments within High Courts where a judgment rendered by a single judge may be subject to challenge before a Division Bench – This appeal to Division Bench does not lie in all cases and must be provided for either under Letters Patent or any other special enactment – Even where such appeal lies appeal is heard by two or more judges of High Court – Court cannot envisage a situation where an appeal against order of a sitting judge of High Court is heard by a Tribunal comprising of one retired judge and one retired Armed Forces official. (Para 17)
(C) Constitution of India – Article 226 – Writ jurisdiction – Alternative efficacious remedy – 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 – Writ courts normally refrain from exercising their extraordinary power if petitioner has an alternative efficacious remedy – Existence of such remedy however does not mean that jurisdiction of High Court is ousted – At the same time, such jurisdiction should not be exercised when there is an alternative remedy available – Rule of alternative remedy is a rule of discretion and not a rule of jurisdiction – Merely because Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. (Para 14)
Facts of the case:
One of issues raised in this appeal is 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 High Court is required to be transferred to the Armed Forces Tribunal or should be heard by the High Court.
Findings of Court:
Provision of intra-court appeal whether by way of Letters Patents or special enactment is a system that provides for correction of judgments within High Courts where a judgment rendered by a single judge may be subject to challenge before a Division Bench. This appeal to Division Bench does not lie in all cases and must be provided for either under the Letters Patent or any other special enactment. Even where such appeal lies appeal is heard by two or more judges of High Court.
Result : Appeal dismissed.
JUDGMENT :
Deepak Gupta, J.
Leave granted.
2. One of the issues raised in this appeal is 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.
3. The Armed Forces Tribunal (AFT for short) was constituted under the Armed Forces Tribunal Act, 2007 (hereinafter referred to as the Act), enacted with the purpose of constituting an AFT to adjudicate disputes and complaints of personnel belonging to the Armed Forces. Chapter III of the Act, deals with the jurisdiction, power and authority of the Tribunal. Section 14(1) of the Act which is relevant reads as 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.
(2) Where any suit, or other proceeding stands transferred from any court including a High Court or other authority to the Tribunal under subsection (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 subsection (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.”
6. A Division Bench of the Allahabad High Court in Union of India and others vs. Ram Baran, Special Appeal Defective No. 445 of 2005 held that the phrase ‘other proceedings’ in Section 34 of the Act would include all appeals including Letters Patent Appeals (hereinafter referred to as 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.
7. We may point out that after the enactment of the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962 Letters Patents are no longer applicable to the High Court of Allahabad. However, Special Appeals are provided against the judgment of a single judge to a Division Bench. The High Court held that the term ‘other proceedings’ include all such intra-court appeals.
8. 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, 2012 (1) ESC 386 (All); Special Appeal (Defective) No.610 of 2002. Thereafter, the matter was referred to a Full Bench in the said case and the Full Bench by a majority held as follows:
“In view of the foregoing discussions, we are of the considered opinion 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
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