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2015 Supreme(Cal) 243
CALCUTTA HIGH COURT
MANJULA CHELLUR, JOYMALYA BAGCHI & ARIJIT BANERJEE, JJ.
Lieutenant Colonel C.K. Agarwal – Appellant
Vs.
Union of India and Others – Respondents
A.P.O. No. 49 of 2015
Decided On : 8.5.2015
The Armed Forces Tribunal Act, 2007 does not include Letters Patent appeals or Intra-Court appeals from judgments of a single judge passed under Article 226 of the Constitution within its ambit, and no appeal can be instituted before or transferred to the Tribunal against any order of the High Court.
Headnote:
ARMED FORCES TRIBUNAL ACT, 2007 - JURISDICTION - TRANSFER OF PENDING CASES - INTER-COURT APPEAL - INTERPRETATION OF STATUTES - SECTIONS 14, 15, 29, 34, 35 - LETTERS PATENT CLAUSE 15 - SCOPE AND APPLICABILITY.
Fact of the Case:
The case pertains to the transfer of an appeal pending before the High Court to the Armed Forces Tribunal (AFT) under Section 34 of the Armed Forces Tribunal Act, 2007 (AFT Act). The appellant contended that the appeal should be transferred to the AFT as Section 34 barred the High Court from hearing appeals related to service matters of Armed Forces personnel once the Act came into effect. The Union of India, represented by the standing counsel, argued that the jurisdiction of the AFT was not supplementary but in substitution of Civil Courts and High Courts, and that the Tribunal had the same jurisdiction as the High Court.
Finding of the Court:
The Court held that Section 34 of the AFT Act did not include Letters Patent appeals or Intra-Court appeals from judgments of a single judge passed under Article 226 of the Constitution within its ambit. It further held that no appeal could be instituted before or transferred to the Tribunal against any order of the High Court. Therefore, such appeals were excluded from the appellate power of the Tribunal and could not be transferred under Section 34 of the AFT Act.
Issues: 1. Whether Section 34 of the AFT Act barred the High Court from hearing appeals related to service matters of Armed Forces personnel once the Act came into effect. 2. Whether the jurisdiction of the AFT was supplementary or in substitution of Civil Courts and High Courts. 3. Whether the Tribunal had the same jurisdiction as the High Court and could decide special appeals.
Ratio Decidendi: 1. The Court interpreted Sections 34 and 35 of the AFT Act conjunctively to understand the controversy. It held that Section 34 transferred any suit or proceeding pending before the High Court to the Tribunal if the cause of action required filing within the jurisdiction of the Tribunal. 2. The Court distinguished between Letters Patent appeals or Intra-Court appeals from judgments of a single judge passed under Article 226 of the Constitution and other appeals arising from orders passed by Civil Courts or statutory bodies subordinate to the High Court. It held that the former could not be transferred to the Tribunal under Section 34, while the latter could. 3. The Court emphasized that the Tribunal could not sit as an appellate authority over the orders of the High Court, and therefore, appeals arising under Letters Patent or Intra-Court provisions could not be transferred to the Tribunal.
Final Decision: The Court answered the reference accordingly, holding that the Tribunal could not sit as an appellate authority over the orders of the High Court and, therefore, appeals arising under Letters Patent or Intra-Court provisions could not be transferred to the Tribunal.
MANJULA CHELLUR, J.
1. The above appeal is directed against the order dated 11.10.2007 in W.P. 1532 of 2006. When the matter came up for hearing before the Division Bench, Division Bench opined, since Union of India had set up a Tribunal to deal with disputes including service matters pertaining to Armed Forces personnel, in the light of Section 34 of the Armed Forces Tribunal Act of 2007 (for short hereinafter referred to as AFT Act of 2007), whether the matter needs to be transferred to Armed Force Tribunal or could be decided by this Court.
2. In this regard, the Division Bench after referring to decision of Allahabad High Court in Special Appeal Defective No. 445 of 2005 opined as under :
"We have also heard Mr. Kaushik Chandra, learned senior counsel appearing for the Union of India. We are in doubt whether this appeal could be transferred to the Tribunal giving them opportunity to sit on appeal over the judgment and order of the learned single Judge of this Court. The bench decision of the Allahabad High Court might have a persuasive value. However, we beg to differ.
This is a transitional period. Once the learned single Judge dealt with the issue and disposed of the writ petition, the intra court appeal under Clause 15 is only available to this Court and not to the Tribunal. Hence, this appeal, if proceeded with, could only be heard by the Division Bench of this Court and nobody else. However, since the issue would have a national repercussion, we feel, a larger Bench should decide the issue. We, thus, request the Hon'ble Chief Justice to form and constitute a larger Bench to decide as to whether intra court appeal under Clause 15 of the Letters Patent could be included within the meaning of Section 34 of the Armed Forces Tribunal Act, 2007 for being transferred to the Tribunal."
3. In the light of above reference, this came up for consideration before the Larger Bench. We have heard learned Counsel, Sri Pradip Tarafdar for the appellant and the learned standing Counsel, Sri Kaushik Chandra for Union of India. In order to understand the controversy before us, we have to first analyse the relevant provisions under the AFT Act of 2007. These are Sections 14, 15 29, 34 and 35. Since application of Letters Patent applies to this Charter High Court, we have to refer to Clause 15 of Letters Patents which provides for intra court appeal.
4. The relevant provisions under AFT Act read as under :
"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 provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed.
(3) On receipt of an application relating to service maters, the Tribunal shall, if satisfied after due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the Tribunal is not so satisfied, it may dismiss the application after recording its reasons in writing.
(4) For the purpose of adjudicating an application, the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely :
(a) Summoning and enforcing the attendance of any person and examining him on oath.
(b) Requiring the discovery and production of documents.
(c) Receiving evidence on affidavits.
(d) Subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public reco
