# UNION OF INDIA & ORS v. MAJOR GENERAL SHRI KANT SHARMA & ANR

- **Citation:** [2015] 4 S.C.R. 676
- **Court:** Supreme Court of India
- **Decided:** 2015-03-11
- **Case number:** Civil Appeal No. A 7400 of 2013
- **Bench:** Sudhansu Jyoti Mukhopadhaya, N.V. Ramana
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-ors-v-major-general-shri-kant-sharma-anr-30712
- **Pages:** 50

## Headnote

Armed Forces Tribunal Act, 2007: ss.30, 31 - Whether
ss.30 and 31 bar the jurisdiction of High Court from hearing
writ petition u!Art.226 against the order of the Armed Forces
Tribunal - Held: Right of appeal uls.30 against an order of
D Armed Forces Tribunal with the leave of the Tribunal u/s.31
or leave granted by the Supreme Court or bar of leave to
appeal u/Art. 136(2), bar the jurisdiction of the High Court u/
Art.226 regarding matters related to Armed Forces -
Constitution of India, 1950 -Art.226 - Jurisdiction.
E
Disposing of the appeals, the Court
HELD: 1. The Armed Forces Tribunal Act, 2007 has
been enacted to provide for adjudication or trial by
F 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
Act, 1950 and also to provide for appeals arising out of
G orders, findings or sentences of Courts-Martial held
under the said Acts and for matters connected therewith
or incidental thereto. As per Section 14, in relation to
service matters, the Tribunal has been empowered to
H
676
UNION OF INDIA v. MAJOR GENERAL SHRI KANT
677
SHARMA
exercise the jurisdiction, powers and authority, A
exercisable by all the Courts except the power of
Supreme Court or a High Court exercising jurisdiction
under Section 226 and 227 of the Constitution. [Paras
6, 7] [684-A-C; 686-8, C]
2. Chapter V of the Act relates to appeal. Section 30
provides for an appeal to the Supreme Court and
Section 31 deals with leave to appeal. A plain reading
B
of Sections 33, 34 shows that a remc;:!y of appeal to
Supreme Court against any final order passed by the c
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. It D
is clear from the scheme of the Act that jurisdiction of
the Tribunal constituted under the Armed :-orces
Tribunal Act is in substitution of the jurisdiction of Civil
Court and the High Court so far as it relates to suit
relating to condition of service of the persons subject E
to Army Act, the Navy Act and the Air Force Act, which
are special laws enacted by the Parliament by virtue of
exclusive legislative power vested under Article 246 of
the Constitution read with Entries 1 & 2 of List I of the
Seventh Schedule. [Paras 9, 11, 12, 14] [689-B, .C; 692F
C-E; 697-D-F]
Constitution of India, 1950
3. Article 32 falls under Chapter Ill of the Constitution
which deals witli fundamental right. Article 33 empowers G
, the Parliament to restrict or abrogate the application of
fundamental rights in relation to Armed Forces, Para
Military Forces, the Police etc. Article 226 empowers
High Court to issue prerogative writs. Article 227 relates H
678
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A to power of superintendence of High Courts over all
Court and Tribunals. Article 136 of the Constitution
provides special leave to appeal to Supreme Court. In
view of clause (2) of Article 136 which expressly
excludes the judgments or orders passed by any Court
B or Tribunal constituted by or under any law relating to
Armed Forces, the aggrieved persons cannot seek
leave under Article 136 of Constitution; to appeal from
such judgment or order. But right to appeal is available
under Section 30 with leave to appeal under Section 31
c of the Armed Forces Tribunal Act, 2007. Thus, there is a
constitutional bar not only under Article 136(2) but also
under Article 227(4) with regard to entertaining any
determination or order passed by any court or Tribunal
under law relating to Armed Forces. Judicial review
0
under Article 32 and 226 is a basic feature of the
Constitution beyond the plea of amendability. While
under Article 32 of the Constitution a person has a right
to move before Supreme Court by appropr

## Text

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A
B
c
[2015] 4 S.C.R. 676
UNION OF INDIA & ORS.
V.
MAJOR GENERAL SHRI KANT SHARMA & ANR.
(Civil Appeal No .. 7400 of 2013)
MARCH 11, 2015
[SUDHANSU JYOTI MUKHOPADHAYA AND
N.V. RAMANA, JJ.]
Armed Forces Tribunal Act, 2007: ss.30, 31 - Whether
ss.30 and 31 bar the jurisdiction of High Court from hearing
writ petition u!Art.226 against the order of the Armed Forces
Tribunal - Held: Right of appeal uls.30 against an order of
D Armed Forces Tribunal with the leave of the Tribunal u/s.31
or leave granted by the Supreme Court or bar of leave to
appeal u/Art. 136(2), bar the jurisdiction of the High Court u/
Art.226 regarding matters related to Armed Forces -
Constitution of India, 1950 -Art.226 - Jurisdiction.
E
Disposing of the appeals, the Court
HELD: 1. The Armed Forces Tribunal Act, 2007 has
been enacted to provide for adjudication or trial by
F 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
Act, 1950 and also to provide for appeals arising out of
G orders, findings or sentences of Courts-Martial held
under the said Acts and for matters connected therewith
or incidental thereto. As per Section 14, in relation to
service matters, the Tribunal has been empowered to
H
676
UNION OF INDIA v. MAJOR GENERAL SHRI KANT
677
SHARMA
exercise the jurisdiction, powers and authority, A
exercisable by all the Courts except the power of
Supreme Court or a High Court exercising jurisdiction
under Section 226 and 227 of the Constitution. [Paras
6, 7] [684-A-C; 686-8, C]
2. Chapter V of the Act relates to appeal. Section 30
provides for an appeal to the Supreme Court and
Section 31 deals with leave to appeal. A plain reading
B
of Sections 33, 34 shows that a remc;:!y of appeal to
Supreme Court against any final order passed by the c
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. It D
is clear from the scheme of the Act that jurisdiction of
the Tribunal constituted under the Armed :-orces
Tribunal Act is in substitution of the jurisdiction of Civil
Court and the High Court so far as it relates to suit
relating to condition of service of the persons subject E
to Army Act, the Navy Act and the Air Force Act, which
are special laws enacted by the Parliament by virtue of
exclusive legislative power vested under Article 246 of
the Constitution read with Entries 1 & 2 of List I of the
Seventh Schedule. [Paras 9, 11, 12, 14] [689-B, .C; 692F
C-E; 697-D-F]
Constitution of India, 1950
3. Article 32 falls under Chapter Ill of the Constitution
which deals witli fundamental right. Article 33 empowers G
, the Parliament to restrict or abrogate the application of
fundamental rights in relation to Armed Forces, Para
Military Forces, the Police etc. Article 226 empowers
High Court to issue prerogative writs. Article 227 relates H
678
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A to power of superintendence of High Courts over all
Court and Tribunals. Article 136 of the Constitution
provides special leave to appeal to Supreme Court. In
view of clause (2) of Article 136 which expressly
excludes the judgments or orders passed by any Court
B or Tribunal constituted by or under any law relating to
Armed Forces, the aggrieved persons cannot seek
leave under Article 136 of Constitution; to appeal from
such judgment or order. But right to appeal is available
under Section 30 with leave to appeal under Section 31
c of the Armed Forces Tribunal Act, 2007. Thus, there is a
constitutional bar not only under Article 136(2) but also
under Article 227(4) with regard to entertaining any
determination or order passed by any court or Tribunal
under law relating to Armed Forces. Judicial review
0
under Article 32 and 226 is a basic feature of the
Constitution beyond the plea of amendability. While
under Article 32 of the Constitution a person has a right
to move before Supreme Court by appropriate
proceedings for enforcement of the rights conferred by
Part Ill of the Constitution, no fundamental right can be
E claimed by any person to move before the High Court
by appropriate proceedings under Article 226 for
enforcement of the rights conferred by the Constitution
or Statute. [Paras 15 to 19, 21 and 25] [697-F; 698-E; 699C-D; 700-F-G; 701-F; 702-B-C, E-H; 703-A]
F
Statutory remedy
4. Though under Section 30, no person has a right
of appeal against the final order or decision of the
Tribunal to this Court other than those falling under
G Section 30(2) of the Act, but it is statutory appeal which
lies to this Court. [Para 33] [721-G, HJ
likelihood of anomalous situation
5. If the High Court entertains a petition under Article
H 226 against order passed by Armed Forces Tribunal
UNION OF INDIA v. MAJOR GENERAL SHRI KANT
679
SHARMA
under Section 14 or Section 15 of the Act bypassing the A
machinery of statute i.e. Sections 30 and 31 of the Act,
there is likelihood of anomalous situation for the
aggrieved person in praying for relief from this Court. If
any person aggrieved by the order of the Tribunal,
moves before the High Court under Article 226 and the B
High Court entertains the petition and passes a
judgment or order, the person who may be aggrieved
againstboth the orders passed by the Armed Forces
Tribunal and the High Court, cannot challenge both the
orders in one joint appeal. The aggrieved person may C
file leave to appeal under Article 136 of the Constitution
against the judgment passed by the High Court but in
view of the bar of jurisdiction by clause (2) of Article 136,
this Court cannot entertain appeal against the order of
the Armed Forces Tribunal. Once, the High Court D
entertains a petition under Article 226 of 'the
Constitution against the order of Armed Forces Tribunal
and decides the matter, the person who thus
approached the High Court, will also be precluded from E
filing an appeal under Section 30 with leave to appeal
under Section 31 of the Act against the order of the
Armed Forces Tribunal as he cannot challenge the
order passed by the High Court under Article 226 of the
Constitution under Section 30 read with Section 31 of F
the Act. Thereby, there is a chance of anomalous
situation. The High Court (Delhi High Court) while
entertaining the writ petition under Article 226 of the
Constitution bypassed the machinery created under
Sections 30 and 31 of Act. (Paras 37, 38] (723-E-H; 724G
A-F]
Ous Kutilingal Achudan Nair vs.Union of India (1976)
2 SCC 780: 1976 (2) SCR 769; L. Chandra kumar vs. Union
of India (1997)3 sec 261: 1997 (2) SCR 1186; S.N.
Mukherjee vs.Union of India (1990) 4 SCC 594: 1990 (1) H
680
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
Suppl. SCR 44; R.K. Jain vs. Union of India & Ors. (1993)
4 SCC 119: 1993 (3) SCR 802; Babubhai Muljibhai Patel
vs. Nandlal Khodidas Barot and others AIR 1974 SC 2105:
1975 (2) SCR 71; Mafatlal Industries Ltd. and others
vs.Union of India and Ors. (1997) 5 SCC 536: 1996 (10)
B Suppl. SCR 585; Kanaiyalal Lalchand and Sachdev and
others vs. State of Maharasthra and others (2011) 2 SCC
782:2011 (2) SCR 602; Nivedita Sharma vs. Cellular
Operators Association of India and others (2011)14 SCC
c 337; Executive Engineer, Southern Electricity Supply
Company of Orissa Limited (SOUTHCO) and another vs.
Sri Seetaram Rice Mill (2012) 2 SCC 108:'2011 (15) SCR
211; Cicily Ka/larackal vs. Vehicle Factory 2012(8) SCC
524: 2012 (8) SCR 95;Commissioner of Income Tax and
D others vs. Chhabil Dass Agrawal (2014)1 SCC 603 - relied
on.'
Case Law Reference
1976 (2) SCR 769
Relied on.
Para 16
E
1997 (2) SCR 1186
Relied on.
Para 22
1990 (1) Suppl. SCR 44
Relied on.
Para 23
1993 (3) SCR 802
Relied on.
Para 24
F
1975 (2) SCR 71
Relied on.
Para 26
1996 (10) Suppl. SCR 585 Relied on.
Para 27
2011 (2) SCR 602
Relied on.
Para 28
G
(2011)14 sec 337
Relied on.
Para 29
2011 (15) SCR 211
Relied on.
Para 30
2012 (8) SCR 95
Relied on.
Para 31
H
(2014)1 sec 603
Relied on.
Para 32
UNION OF INDIA v. MAJOR GENERAL SHRI KANT
681
SHARMA
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
A
7400 of 2013.
From the Judgment and Order dated 11.01.2013 of the
High Court of Delhi in CWP No. 7208 of 2011.
with
Civil Appeal Nos. 7338, 7375-7376, 7399, 9388, 9389
of 2013
and Civil Appeal No. 96 of 2014
B
c
Pinky Anand, ASG, B. Adi Narayana Rao, B. V. Balaram
Das, Binu Tamta, P. Bagchi, Amit Kumar, M. Srinivas R. Rao,
Abid Ali Beeran P., Arun Devdas, Sudha Gupta, Shekhar
Kumar, Janme Jay, Anil Katiyar, Sridhar Potaraju, for the D
Appellants.
Jyoti Singh, Tinu Bajwa, Arnandeep Joshi, Sameer
Sharma, Sudarshan Rajan, Shriya Raj Chauhan, Priya Puri,
Biswajit Ray, R. Kumar Dubey, for the Respondents.
E
Respondent-in-person.
The Judgment of the Court was delivered by
SUDHANSU JYOTI MUKHOPADHAYA, J. 1. In these
F
appeals the question raised is whether the right of appeal
under Section 30 of the Armed Forces Tribunal Act, 2007
(hereinafter referred to as the 'ct'), against an order of Armed
Forces Tribunal (hereinafter referred to as the Tribunal') with
the leave of the Tribunal under Section 31 of the Act or leave G
granted by the Supreme Court, or bar of leave to appeal
before the Supreme Court under Article 136(2) of the
Constitution of India, will bar the jurisdiction of the High Court
under Article 226 of the Constitution of India regarding matters
related to Armed Forces. Union of India and others are the
H
682
SUPREME COURT REPORTS
[2015]4 S.C.R.
A appellants 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
B 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
C 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
0
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 appellantsArmy Personnel have challenged the orders by which High
E Courts refused to entertain their writ petitions. In C.A. No.
7399 of 2013, the appellant-Army Personnel has challenged
the order of Delhi High Court allowing the writ petition of
respondent No.2 therein.
F
2. At the outset, in all the writ petitions preliminary
objection was raised on behalf of the Union of India as to the
maintainability of the writ petition on the ground that against
the orders impugned a remedy of appeal to the Supreme
Court is provided under Section 30 of the Armed Forces
G Tribunal Act, 2007.
3. Learned counsel appearing on behalf of the Union of
India submitted that the High Court cannot entertain writ
petitions under Article 226 of the Constitution of India contrary
H to the law enacted by the Parliament being the Armed Forces
UNION OF INDIA v. MAJOR GENERAL SHRI KANT
683
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Tribunal, 2007 which is a special enactment exclusively A
provided for an appellate remedy by way of leave before this
Court.
Further, according to learned counsel for the Union of
India as none of the respondents raised any issue of B
jurisdiction of the Tribunal and it was essentially a challenge
to the order of the Armed Forces Tribunal only on merits.
Therefore, the High Court was not correct in entertaining the
writ petitions under Article 226 of the Constitution against the
well considered and reasoned order passed by the Tribunal. C
4. Col. A.O. Nargolkar appeared in person made the
following submissions:
(i) The power of judicial review under Article 226 and 0
227 of the Constitution is an inviolable part of its basic
structures. This power cannot be ousted by an Act of
Parliament i.e. the Armed Forces Tribunal Act, 2007.
(ii) Section 14 of the Act itself provides for judicial
review by the High Court under Article 226 and 227 of E
the Constitution. There exists clear and recorded
legislative intent behind the specific provisions.
(iii) Article 227(4) of the Constitution does not exclude
the jurisdiction of the High Court over the Armed Forces
F
Tribunal as no such Tribunal existed when Article 227(4)
of the Constitution was substituted.
Similar submissions were made by the learned Senior
Counsel for the respondent-Army Personnel.
G
5. For the determination of the present issue it is
necessary to refer the relevant provisions of the Armed
Forces Tribunal Act, 2007, the power of the High Court under
Sections 226 and 227 of the Constitution, and the power of H
684
SUPREME COURT REPORTS
[2015) 4 S.C.R.
A
Supreme Court under Articles 32 and 136 of the Constitution.
6. The Armed Forces Tribunal Act, 2007 has been
enacted to provide for adjudication or trial by Armed Forces
Tribunal of disputes and complaints with respect to
B 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
C 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
o it by the said Act. Section 14 specifies the jurisdiction, powers
and authority of the Tribunal in relation to service matters as
follows:
E
F
G
H
"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
(ex.::ept the Supreme Court or a High Court exercising
jurisdiction under articles 226 and 227 of the
Constitution) in relati~n 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
matters, the Tribunal shall, if satisfied after due inquiry,
UNION OF INDIA v. MAJOR GENERAL SHRI KANT
685
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
as it may deem necessary, that it is fit for adjudication A
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 B
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
c
D
Act, 1872, (1 of 1872) requisitioning any public record
E
or document or copy
of such record or document from any office;
(e) issuing commissions for the examination of
witnesses or documents;
F
(f) reviewing its decisions;
(g) dismissing an application for default or deciding it
ex pa rte;
G
(h) setting aside any order of dismissal of any
application for default or any order passed by it exparte;
and
(i) any other matter which may be prescribed by the H
686
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
Central Government.
B
(5) The Tribunal shall decide both questions of law and
facts that may be
raised before it."
It is clear that in relation to service matters the Tribunal
has been empowered to exercise the jurisdiction, powers and
authority, exercisable by all the Courts except the power of
Supreme Court or a High Court exercising jurisdiction under
C
Section 226 and 227 of the Constitution.
8. Section 15 specifies the jurisdiction, powers and
authority to be exercised by the Tribunal relating to matters
of appeal against the Court- Martial. The said Section reads
0
as fellows:
"Section 15. Jurisdiction, powers and authority in
matters of appeal against court-martial.-(1) Save as
otherwise expressly provided in this Act, the Tribunal
E
shall exercise, on and from the appointed day, all the
jurisdiction, powers and authority exercisable under this
Act in relation to appeal against any order, decision,
finding or sentence passed by a court martial or any
matter connected therewith or incidental therto.
F
G
(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:
H
Provided that no acc:used person shall be so released
UNION OF INDIA v. MAJOR GENERAL SHRI KANT
687
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.)
if there appears reasonable ground for believing that he A
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 -
B
•
(a) the finding of the court martial is legally not
sustainable due to any reason whatsoever; or
(b) the finding involves wrong decision on a question of
law; or
C
(c) there was a material irregularity in the course of the
trial resulting inmiscarriage of justice,
but, in any other case, may dismiss the appeal where D
the Tribunal considers that no miscarriage of justice is
likely to be caused or has actucilly resulted to the
appellant:
Provided that no order dismissing the appeal by the E
Tribunal shall be passed unless such order is made after
recording reasons therefor in writing.
(5) The Tribunal may allow an appeal against conviction,
and pass appropriate order thereon.
(6) Notwithstanding anything contained in the foregoing
provisions of this section, the Tribunal shall have the
power toF
(a) substitute for the findings of the court martial, a finding
G
of guilty for any other offence for which the offender could
have been lawfully found guilty by the court martial and
pass a sentence afresh for the offence specified or
involved in such findings under the provisions of the Army
Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of H
688
SUPREME COURT REPORTS
[2015) 4 S.C.R.
'
A
1957) or the Air Force Act, 1950, (45 of 1950) as the
B
case may be; or
(b) if sentence is found to be excessive, illegal or unjust,
the Tribunal may-
(J) remit the whole or any part of the sentence, with or
without conditions;
(ii) mitigate the punishment awarded;
C
(iii) commute such punishment to any lesser punishment
or punishments
D
mentioned in the Army Act, 1950, (46of1950) the Navy
Act, 1957 (62 of
1957) and the Air Force Act, 1950, (45 of 1950) as the
case may be;
(c) enhance the sentence awarded by a court -martial:
E
Provided that no such sentence shall be enhanced
F
G
H
unless the appellant has
been given an opportunity of being heard;
(d) release the appellant, if sentenced to imprisonment,
on parole with
or without conditions;
(d) suspend a sentence of imprisonment;
(e) pass any other order as it may think appropriate.
(7) Notwithstanding any other provisions in this Act, for
the purposes of this section, the Tribunal shall be
deemed to be a criminat court for the purposes of
UNION OF INDIA v. MAJOR GENERAL SHRI KANT
689
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
sections 175, 178, 179, 180, 193, 195, 196 or 228 (45 A
of 1860) of the Indian Penal Code and Chapter XXVI
of the Code of Criminal Procedure, 1973. (2 of 1974)."
Sub-section (2) of Section 15 specifies the right of any
person to prefer an appeal against order, decision, finding or s
sentence passed by a Court-Martial.
9. Chapter V of the Act relates to appeal. Section 30
which provides for an appeal to the Supreme Court and
Section 31 deals with leave to appeal. The said Sections c
read as under:
"Section 30. Appeal to Supreme Court :-(1) Subject to
the provisions of
section 31, an appeal shall lie to the Supreme Court D
against the final
decision or order of the Tribunal (other than an order
passed 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: .
E
F
Provided that an appeal under this sub-section shall be G
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 thatH
690
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
(a) the execution of the punishment or the order
appealed against be suspended; or
B
c
D
E
F
G
(b) 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
importance is involved in the decision, or it appears to
the Supreme Court that the point is one which ought to
be considered by that Court.
(2) An application to the Tribunal for leave to appeal to
the Supreme Court shall be made within a period of
thirty days beginning with the date of the decision of the
Tribunal and an application to the Supreme Court for
leave shall be made within a period of thirty days
beginning with the date on which the application for
leave is refused by the Tribunal.
(3) An appeal shall be treated as pending until any
application for leave to appeal is disposed of and if
leave to appeal is granted, until the appeal is disposed
of; and an application for leave to appeal shall be
treated as disposed of at the expiration of the time
within which it might have been made, but it is not made
within that time."
10. Section 32 empowers the Supreme Court to condone
H the delay i.e. to extend the time within which an appeal may
UNION OF INDIA v. MAJOR GENERAL SHRI KANT
691
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
be preferred by the person to the Court under Section 30 or A
sub-section (2) or Section 31. The said Section reads as
follows:
"Section 32.Condonation.- The Supreme Court may,
upon an application made at any time by the appellant,
B
extend the time within which an appeal may be preferred
by him to that Court under section 30 or sub-section (2)
of section 31."
11. Section 33 excludes the jurisdiction of Civil Courts. c
Section 34 deals with transfer of pending cases before any
court including a High Court or other authority immediately
before the date of establishment of the Tribunal, the cause of
action of which would have been within the jurisdiction of
Tribunal. Sections 33 and 34 read as under:
o
"Section 33. Exclusion of jurisdiction of civil courts.- On
and from the date from which any jurisdiction, powers
and authority becomes exercisable by the Tribunal in
relation-to service matters under this Act, no Civil Court E
shall have, or be entitled to exercise, such jurisdiction,
power or authority in relation to those service matters.
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 F
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 G
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 ),-
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(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 sub-section (2) of section 14,
from the stage which was reached before such transfer
or from any earlier stage or de novo as ~he Tribunal may
deem fit."
12. A plain reading of the above provisions shows:
(i) A remedy of appeal to Supreme Court against any final
order passed by the Tribunal under Section 30 with the
D
leave of the Tribunal is provided under Section 31 of
•
the Act.
(ii) In case leave is refused by the Tribunal, an application
to the Supreme Court for leave can be made as
E
provided under sub-section (1) and (2) of Section 31
of the Act.
(iii) Against any order or decision of the Tribunal made
under Section 19 in exercise of its jurisdiction to punish
F
for contempt, an appeal under sub- section (2) of
Section 30 lies to the Supreme Court as of right.
Section 33 excludes the jurisdiction of the Civil Courts
and not the High Court under Article 226 and 227.
However, Section 34 relates to transfer of pending
G
cases, suits and cases pending in other courts
including the High Court. The suit pending before any
Court or High Court may stand transferred if the cause
of action comes under the jurisdiction of the Arms
Forces Tribunal Act but it does not affect the power of
.H
the High Court under Section 226 and 227 of the
UNION OF INDIA v. MAJOR GENERAL SHRI KANT
693
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Constitution.
A
13. The Parliamentary 1 oth Standing Committee for
Defence in May, 2006 deliberated on the proposed Section
30 and 31 of the Act. Chapter XIV of the recorded
deliberations provides insight into the legislative intent and 8
replies/advice of the Law Ministry, relevant portion of which
is reproduced below:
"CHAPTER XIV
CLAUSE 30 : JURISDICTION OF TRIBUNAL AND c
HIGH COURT IN MATTERS RELATING TO APPEAL
84. Clause 30 provides:-
1. Subject to the provision of section 31, an appeal shall D
lie to the Supreme Court against the final decision or
order of the Tribunal (other than an order passed under
section 19):
Provided that such appeal is preferred within a period E
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
F
-
from any order or decisions 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 G
of the order appealed against.
3. Pending any appeal under sub-section (2), the
Supreme Court may order that:-
(a) the execution of the punishment or the order H
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A
appealed against be suspended;
(b) 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
8
may also exercise any of the powers conferred under
clause (a) or clause (b), as the case may be.
85. The Committee enquired about the nature of the
proposed Tribunal, whether it would be a judicial, quasi
c
judicial body in the line of Central Administrative Tribunal,
the Ministry replied:-
"Since the Armed Forces Tribunal would be dealing with
offences, legally awardable punishments and termination
D
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
E
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
F
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
G
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
H
established by an Act of Parliament, similar provisions
UNION OF INDIA v. MAJOR GENERAL SHRI KANT
695
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
were there where an appeal against the orders of the A
Central Administrative Tribunal was preferred to the
Supreme Court but for some time it was entertained
by the Supreme Court. But later on, subsequently in L.
Chandrakumar's case, the Supreme Court said that the
powers of the High Court under articles 226 and 227 B
cannot be taken away by an Act of Parliament. Thus,
you know again from the orders of Central
Administrative Tribunal, we have started preferring
appeals to the High Court under article 226."
c
88. They further supplemented:
"It is not only in one case but also subsequently in a
number of cases, the Supreme Court reiterated that
principle. Many High Courts have reiterated that D
principle. When in another Bill, that is, National Tax
Tribunal was being processed in this Committee Room
by another Committee, there also many hon. Members
of the Standing Committee said that in view of L.
Chandrakumar's case, you cannot have a touch tribunal
E
from which you can directly go to the Supreme Court and
we had accede that before that Committee tha article
226 is still there with the High Court. The minute you
abolish article 226, then it will be treated by the Supreme
Court as a violation of the essential characteristics of F
the basic structure of the Constitution, which is a
limitation even on the power of Parliament to amend the
Constitution."
89. When the Committee asked the Ministry of Law & G
Justice regarding possible solution of it, they stated that
"We have processed the Bill. In the Bill we have taken
the precaution that the Chairman of the Tribunal should
be a retired judge or a sitting judge of the Supreme H
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Court. If the Chairman of the Tribunal himself is a
Supreme ~ourt judge, then you know the High Courts
are slightly hesitant in interfering with the judgment.
That is only thing but if a judge finds that there is a
s
Constitutional violation of certain fundamental rights or
there is a gross arbitrariness in an order of the Tribunal,
then it will exercise its jurisdiction under article 226."
In this connection, the Ministry of Defence in a written note
c stated:
D
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G
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"The proposed Armed Forces Tribunal Bill, 2005 does
not envisage a situation where an accused can
approach the High Court in an appeal against the order
of the Tribunal. There can be no equation between the
High Court and any other Tribunal. On the other hand,
analogy can be drawn between the CAT and the
proposed Armed Forces Tribunal. In CAT, single
member also constitutes a Bench [section 5(6)].
However, in the Armed Forces Tribunal, the minimum
number 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
UNION OF INDIA v. MAJOR GENERAL SHRI KANT
697
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
the Tribunal. The Committee, however, are given to A
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 tiigh Court under Articles 226
and 227 cannot be taken away by an Act of Parliament.
B
The Committee are of the view that the appeal against
the Tribunal should be preferred as per the provisions
of the Constitution.
NEW DELHI; BALASAHEB VIKHE PATIL,
16 May, 2006 Chairman,
26 Vaisakha, 1928 (Saka)Standing Committee on
Defence."
c
D
14. Therefore, it is clear from the scheme of the Act that
jurisdiction of the Tribunal constituted under the Armed Forces
Tribunal Act is in substitution of the jurisdiction of Civil Court
and the High Court so far as it relates to suit relating to
condition of service of the persons subject to Army Act, 1950,
E
the Navy Act, 1957 and the Air Force Act, 1950, which are
special laws enacted by the Parliament by virtue of exclusive
legislative power vested under Article 246 of the Constitution
of India read with Entries 1 & 2 of List I of the Seventh
F
Schedule.
15. Constitution of India In this context, it is also necessary
to notice Articles 32 and 33 of the Constitution. Article 32 falls
under Chapter Ill of the Constitution which deals with
fundamental right. The said article guarantees the right to G
move before the Supreme Court by appropriate proceedings
for the enforcement of the fundamental rights conferred by the
Part Ill. Article 32 reads as follows:
"Article 32. Remedies for enforcement of rights H
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conferred by this Part.-(1) The right to move the
Supreme Court by appropriate proceedings for the
enforcement bf the rights conferred by this Part is
guaranteed.
B
(2) The Supreme Court shall have power to issue
directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the
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enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the
Supreme Court by clauses (1) and (2), Parliament may
by law empower any other court to exercise within the
local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2). (4)
The right guaranteed by this article shall not be
suspended except as otherwise provided for by this
Constitution."
16. Article 33 empowers the Parliament to restrict or
abrogate the application of fundamental rights in relation to
Armed Forces, Para Military Forces, the Police etc. (refer:
Ous Kutilingal Achudan Nair vs.Union of India, (1976) 2 SCC
780). The said article reads as follows:
"Article 33. Power of Parliament to modify the rights
conferred by this Part in their application to Forces, etc.-
Parliament may, by law, determine to what extent any 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
UNION OF INDIA v. MAJOR GENERAL SHRI KANT
699
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
(c) persons emplo;ed in any bureau or other A
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 B
any Force, bureau or organization 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 c
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 D
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,
E
orders or writs, including 1 [writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any of
the rights conferred by Part Ill and for any other purpose.
F
(2) The power conferred by clause (1) to issue
directions, orders or writs to any Government, authority
or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for G
the exercise of such power, notwithstanding that the seat
of such Government or authority or the residence of such
person is not within those territories.
(3) Where any party against whom an interim order,
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whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to,
a petition under clause (1), without-
(a) furnishing to such party copies of such petition and
B
all documents in support of the plea for such interim
order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation
c
of such order and furnishes a copy of such application
to the party in whose favour such order has been made
or the counsel of such party, the High Court shall dispose
of the application within a period of two weeks from the
date on which it is received or from the date on which
o
the copy of such application is so furnished, whichever
is later, or where the High Court is closed on the last
day of that period,,before the expiry of the next day
afterwards on which the High Court is open; and if the
application is not so disposed of, the interim order shall,
E
on the expiry of that period, or, as the case may be, the
expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article
shall not be in derogation of the power conferred on the
F
Supreme Court by clause (2) of article 32."
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18. Article 227 relates to power of superintendence of
High Courts over all Courts and Tribunals. It reads as follows:
"Article 227. Power of superintendence over all
courts by the High Court.- 1) Every High Court shall
have superintendence over all courts and tribunals
throughout the territories in relation to which it exercises
jurisdiction.
(2) Without prejudice to the generality of the foregoing
UNION OF INDIA v.