JOBY VARGHESE Vs. ARMED FORCES TRIBUNAL

JUDGEMENT

(1.) This WP (C) filed under Art.226 of the Constitution of India challenging the orders of the Army Forces Tribunal, Cochin Bench, was initially not numbered by the Registry for the reason that the very same Bench of the Tribunal in the decision in Indeevarakshan Nair M.P. v. A.S.C. Records (MT) reported in 2010 (3) KHC 517 held that writ petition under Art.226 or Art.227 of the Constitution is not maintainable in the High Court against the orders of the Armed Forces Tribunal. However, considering the Constitution Bench decision of the Supreme Court in L. Chandrakumar v. Union of India reported in 1997 KHC 503 : 1997 (3) SCC 261 : 1997 (2) KLT SN 11 : 1997 SCC (L&S) 577 : AIR 1997 SC 1125 : 1997 (1) CLR 778 : 1997 (1) MPLJ 621 : 1997 (105) STC 618 : 1997 Lab IC 1069 : 1997 (92) ELT 318 : 1997 (2) SLR 1 and S.14(1) of the Armed Forces Tribunal Act, 2007 (hereinafter called 'the Act') which specifically retains the jurisdiction of the High Court under Art.226 and Art.227 of the Constitution, we felt that the view taken by the Tribunal is prima facie incorrect and, therefore, we directed numbering the WP (C). Since writ petitions are likely to be filed in this Court under Art.226 or 227 against the orders of the Tribunal, we have to necessarily consider the correctness of the above decision of the Armed Forces Tribunal on maintainability of such petitions in this Court and for this purpose we heard counsel for the petitioner and Assistant Solicitor General appearing for the respondents.

(2.) Counsel for the petitioner heavily relied on the Constitution Bench decision of the Supreme Court in L.Chandrakumar's case referred above wherein the Supreme Court categorically held that the jurisdiction of the High Court under Art.226 and Art.227 of the Constitution of India are not affected by provisions to the contrary that may be contained in statutes by which Tribunals are constituted under Art.323A or 323B of the Constitution. Assistant Solicitor General appealing for the respondents submitted that the Armed Forces Tribunal was constituted by Act 18 of 2007, which was enacted by the Parliament after Chandrakumar's case and probably taking into account the said decision of the Supreme Court the jurisdiction of the High Court under Art.226 and Art.227 of the Constitution is specifically retained under S.14 of the Act. Even though the Constitution Bench of the Supreme Court in the above referred case unequivocally declared that the powers and jurisdiction of the High Court under Art.226 and Art.227 of the Constitution are part of the basic structure of the Constitution which cannot be taken away by statutory provisions, we feel some detailed consideration is required about the nature of jurisdiction of the High Court against the orders of the Armed Forces Tribunal. S.14(1) of the Act states as follows:

(3.) S.14 of the Act confers original jurisdiction on Tribunal on all service matters pertaining to service personnel. S.15 confers jurisdiction on the Tribunal to hear appeals against orders of the Court - martial. S.34 of the Act provides for transfer of cases pending in the High Court over which Tribunal is now conferred with jurisdiction under the Act. Similarly S.35 provides for filing appeal to the Tribunal against orders passed by any Court other than a High Court or any other authority in any suit or proceeding over which the Tribunal is now vested with jurisdiction under the Act. What is clear from S.34 is that all matters pending in the High Court over which the Tribunal is vested with jurisdiction under the Act, should be transferred from the High Court to the Tribunal for their decision. However, the transfer of cases pending before the High Court does not mean that the cases so transferred carry with it the jurisdiction of the High Court under Art.226 or Art.227 of the Constitution. In other words, the process of transfer of cases pending before the High Court does not involve conferment of High Court's jurisdiction under Art.226 or 227 of the Constitution on the Tribunal. The cases transferred from the High Court are decided by the Tribunal only by virtue of the jurisdiction conferred on it by the Act and so much so, the transferred cases on transfer to the Tribunal cease to be petitions filed in the High Court under Art.226 and Art.227 of the Constitution. Most of the cases pending in the High Court relating to Defence personnel are matters over which the Tribunal is vested with jurisdiction under the Act. So much so, the purpose of transfer of such cases is to get the same decided by the Tribunal which has jurisdiction. However, the Tribunal has no jurisdiction to entertain challenge against the constitutional validity of the provisions of the Act under which it is created, which is in the exclusive domain of the Supreme Court and the High Courts. The operation of these provisions do not involve vesting of jurisdiction of the High Court conferred under Art.226 or 227 of the Constitution on the Tribunal. So much so, we hold that the High Court's jurisdiction under Art.226 and Art.227 remain unaffected by the constitution and conferment of jurisdiction on the Tribunal on service matters under the Act.