THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE NOUSHAD ALI W.P. No. 3451 of 2010 Dated. 21–04-2010 Between: JC-219552 M Subedar Major P.L. Pradeep, …Petitioner Vs. The Union of India, Rep., by its Secretary, Ministry of Defence, Government of India, New Delhi—110 011 and others. …Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE NOUSHAD ALI W.P.No. 3451 of 2010 Oral order: (Per: THE HON’BLE SRI JUSTICE GODA RAGHURAM) The petitioner, a Junior Commissioned Officer while serving as Subedar Major was discharged by the order of the 3rd respondent dated 13-04-2003, before he attained the age of superannuation of 52 years after he had put in only 16 years of service. The discharge was affected in terms of Paragraph 163 (a) (iii) of the letter of the Government of India dated 14-10-1989. Aggrieved by the discharge the petitioner preferred W.P.No. 3894 of 2007. An order of status-quo was granted as an interim measure on 01-03-2007, which was later vacated by the order dated 01-05-2007. The said writ petition is pending consideration before this Court and requires to be transferred to the Armed Forces Tribunal in view of the provisions of Section 34 (1) of the Armed Forces Tribunal Act, 2007 (Act 55 of 2007) (for short ‘the 2007 Act’). Aggrieved, this writ petition is filed challenging the vires of Sub-section (1) and (2) of Section 34 of the 2007 Act. The learned counsel for the petitioner contends that the transfer of cases pending before any Court including a High Court or other authority, to the Tribunal constituted under the 2007 Act is a subversion of the rule of law. Section 34 (1) of the 2007 Act reads as under: 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. On a true and fair construction of the provisions of Section 34 (1) of the 2007 Act it is apparent that where any suit or other proceeding is pending in any Court including the High Court or other authority, immediately before the date of establishment of the Tribunal under the 2007 Act, where the cause of action of such suit or other proceeding would have been within the jurisdiction of the Tribunal under the provisions of the 2007 Act, if it had arisen after the establishment of the Tribunal, such suit or other proceeding is required to be transferred to the Tribunal. Section 14 in Chapter-III of the 2007 Act sets out the jurisdiction, powers and authority of the Tribunal (established under the Act in relation to the service matters). Section 14 of the 2007 Act enjoins that save as otherwise expressly provided in the Act (the Tribunal to be established and constituted under Section 5 of the 2007 Act), 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 Article 32, 226 and 277 of the Constitution) in relation to all service matters. Service matters is defined in Section 3 (o) of the 2007 Act as under: “(o). Service matters, in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950), mean all matters relating to the conditions of their service and shall include--- (i) remuneration (including allowances), pension and other retirement benefits; (ii) tenure, including commission, appointment, enrolment, probation, confirmation, seniority, training, promotion, reversion, premature retirement, superannuation, termination of service and penal deductions; (iii) summary disposal and trials where the punishment of dismissal is awarded; (iv) any other matter, whatsoever, but shall not include matters relating to--- (i) orders issued under Section 18 of the Army Act, 1950 (46 of 1950), sub-section (1) of Section 15 of the Navy Act, 1957 (62 of 1957) and section 18 of the Air Force Act, 1950 (45 of 1950); and (ii) transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950). (iii) Leave of any kind; (iv) Summary Court Martial except where the punishment is of dismissal or imprisonment for more than three months; On a textual interpretation of plenitude of the jurisdiction of a Tribunal constituted under the 2007 Act (as enumerated in Section 14 of the 2007Act) read with definition of service matters in Section 3 (o) of the 2007 Act, it is clear that the petitioner’s grievance as to his discharge by the order dated 13-04-2003 is a service matter falling within the jurisdiction of the Tribunal. Section 34 of the 2007 Act enjoins that all matters including matters pending before any Court in respect of a cause of action in a suit or other proceeding which falls within the jurisdiction of the Tribunal shall be transferred to the appropriate Tribunal. I n L. Chandra Kumar v. Union of India[1] a Constitution Bench of the Supreme Court has held inter alia that while the jurisdiction of the High Court under Article 226/227 and the Supreme Court under Article 32 of the Constitution of India are part of the basic structure of the Constitution and cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharge of the powers conferred under Articles 226/227 and 32 of the Constitution. The Apex Court further held that Tribunals created under Articles 323A and 323B of the Constitution possess the competence to test the constitutional validity of statutory provisions as well as rules and that all decisions of these Tribunals will however be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. It is also observed by the Constitution Bench that the Tribunals will continue to act as Courts of first instance in respect of the areas of law for which they have been constituted and that it will not therefore be open for litigants to directly approach the High Courts even in cases where they question the vires of legislations, except where the legislation which creates the particular Tribunal is challenged. In view of the ratio in L. Chandra Kumar (1 supra) and applying the same to Section 34 of the 2007 Act what is inferable is that even in pending writ petition, the jurisdiction to decide the dispute in matters falling within the jurisdiction of the Tribunal is relegated to the Tribunal by way of transfer of pending cases and that the Tribunal in such transferred matter acts as a Court of first instance, supplementing the jurisdiction of the High Court under Article 226 or 227 of the Constitution. It is always open to an aggrieved party after the decision of a Tribunal under the Act, to pursue appropriate remedies including under Article 226/227 of the Constitution just as happens in a case of Tribunal constituted under the provisions of the Administrative Tribunals Act, 1985. On the aforesaid analysis, we find no infirmity in the provisions of Section 34 of the 2007 Act. The writ petition is without merits and is accordingly dismissed at the stage of admission. No costs. JUSTICE GODA RAGHURAM JUSTICE NOUSHADALI Dated: 21-04-200 Pvks [1] AIR 1997 SC 1125