SURESH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, a disabled Ex Serviceman, who was discharged from service, on medical grounds, under the Army Rules, challenges the constitutional validity of S.30, 31 and 32 of the Armed Forces Tribunal Act, 2007 (for short 'the Act'). The petitioner, who is stated to be suffering psychic problems, is represented by his wife. He commenced service in the army on 16/05/1989, as a Recruit Washer Man. Apparently, he met with an accident, while practising gymnastics and thereafter, the medical board had recommended him for pension. He was boarded out of service after 9 years, 3 months and 9 days of Army service. The petitioner's claim for disability pension was rejected. He challenged the said order in WP (C) No. 20683/05 and by Ext. P1 judgment, the 4th respondent was directed to take a fresh decision in the matter. By Ext. P2, an order was passed declaring that the degree of disablement of the petitioner is 50% for life with effect from 05/04/2006. The said order was also challenged in WP (C) No. 33342/07 and the same is pending consideration before this Court.

(2.) The Armed Forces Tribunal Act was brought into force, essentially providing for the constitution of a Tribunal for adjudication of disputes and complaints with respect to commission, appointments / enrolment and conditions of service in respect of persons, subject to Army Act, 1950, Navy Act, 1957 and the Air Force Act, 1950. The Act also provides for appeals arising out of orders, finding or sentences of Court Martial held under the said Acts. The petitioner refers to S.30, 31 and 32 of the Act, which read as follows:

(3.) The validity of the aforementioned provisions are challenged on the ground that the right available to a person, to seek a judicial review of any decision taken by the Tribunal, constituted under the Act, before the High Court under Art.226 and 227 of the Constitution of India has been taken away, by virtue of S.30 to 32 of the Act and the said provisions, therefore, run clearly counter to the dictum laid down by the Supreme Court in Chandrakumar v. Union of India, 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 . It is further contended that the power of judicial review available to the High Court under Art.226 and 227 of the Constitution of India has been held to be part of the basic structure of the Constitution, but S.30 to 32 of the Act, which provide for a right of appeal against the decision of the Tribunal, before the Supreme Court, impliedly excludes the power of judicial review of the High Court under Art.226 and 227 of the Constitution.