IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WP(C).No. 21772 of 2009(N) -------------------------- PETITIONER(S): SURESH KUMAR K., AGED 41 YEARS, S/O. C.KRISHNAN NAIR, REPRESENTED BY HIS W/O. V.S.BINDU KUMARI, PULIVILA PUTHEN VEEDU, ARAYALLOOR, THIRUMALA P.O. THIRUVANANTHAPURAM. BY ADV. SRI.B.HARISH KUMAR RESPONDENT(S): 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT (DEFENCE), MINISTRY OF DEFENCE, NEW DELHI. 2. THE DEFENCE SECRETARY, CENTRAL SECRETARIATE, NEW DELHI. 3. THE SECRETARY MINISTRY OF LAW AND JUSTICE, GOVERNMENT OF INDIA, NEW DELHI. 4. THE OFFICER IN CHARGE, RECORDS MADRAS ENGINEER GROUP, SIVANCHETTY GARDEN P.O., POST BOX NO.4201, BANGALORE. ADV. SRI.P.PARAMESWARAN NAIR, ASST. SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. --------------------------- W.P.(C) No.21772 of 2009 --------------------------- Dated this the 15th day of October, 2009 JUDGMENT The petitioner, a disabled Ex-Serviceman, who was discharged from service, on medical grounds, under the Army Rules, challenges the constitutional validity of Sections 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 16.5.1989, 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 W.P.(C)No.20683/05 and by Ext.P1 judgment, the 4th respondent was directed to take a fresh W.P.(C)No.21772 of 2009 :: 2 :: 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 5.4.2006. The said order was also challenged in W.P. (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 Sections 30, 31 and 32 of the Act , which read as follows: 30. Appeal to the Supreme Court:- (1) Subject to the provisions of Section W.P.(C)No.21772 of 2009 :: 3 :: 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under Section 19): 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. 32. Condonation:- The Supreme Court may, upon an application made at any time by the appellant, 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.” 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 W.P.(C)No.21772 of 2009 :: 4 :: Act, before the High Court under Articles 226 and 227 of the Constitution of India has been taken away, by virtue of Sections 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(3) SCC 261}. It is further contended that the power of judicial review available to the High Court under Articles 226 and 227 of the Constitution of India has been held to be part of the basic structure of the Constitution, but Sections 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 Articles 226 and 227 of the Constitution. 4. I heard Mr.B.Harish Kumar, learned counsel for the petitioner and learned Assistant Solicitor General Mr.P.Parameswaran Nair. W.P.(C)No.21772 of 2009 :: 5 :: 5. The challenge mounted by the petitioner against the validity of Sections 30 to 32 of the Act, in my opinion, is misconceived. Section 30 of the Act provides for an appeal to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under Section 19 of the Act, which confers on the Tribunal the power to punish for contempt). Section 31 deals with the manner in which the appeal could be preferred before the Supreme Court under Section 30 of the Act. The period within which an application for leave to appeal can be preferred before the Tribunal in the first instance and thereafter before the Supreme Court itself is provided under Section 31 of the Act. Section 32 deals with the power of condonation that is available to the Supreme Court in an appeal preferred under Section 31 of the Act. 6. A provision conferring a right of appeal before the Supreme Court against an order of the W.P.(C)No.21772 of 2009 :: 6 :: Tribunal constituted under the Act, obviously cannot be construed as violative of any of the provisions of the Constitution. I proceed on the premise that the petitioner has not intended any such far fetched argument. The petitioner's contention seems to be that the provision for an appeal before the Supreme Court directly, as it were, against an order passed by the Tribunal precludes a challenge before the High Court under Articles 226 and 227 of the Constitution of India. The power of judicial review of the High Court under Articles 226 and 227 of the Constitution has been construed as part of the basic structure of the Constitution, and therefore, Sections 30 to 32 of the Act are unconstitutional, it is contended. I do not find any substance in this contention. After all, right of appeal before the Supreme Court would mean that the order of the Tribunal by itself does not become final, but it is vulnerable to an appeal before the Supreme Court. It seems to be the intention of the W.P.(C)No.21772 of 2009 :: 7 :: legislature is that a Tribunal constituted under the Act should be a high powered Tribunal and therefore, an order passed by the tribunal must normally be treated as final, subject to an appeal before the Supreme Court. The right available to a person aggrieved by an order passed by the Tribunal to seek a judicial review before the Supreme Court itself would, therefore, be a valuable right. Significantly, the Tribunal is a judicial body. The right of a person comprehended by the Army Act, Navy Act and the Air Force Act, to get an adjudication of his grievance by an independent high powered Tribunal, a judicial body, is vouchsafed by the provisions of the Act. If he is still aggrieved by the order of the Tribunal, he has a remedy by way of an appeal before the Supreme Court. 7. Learned counsel for the petitioner submits that Sections 30, 31 and 32 of the Act providing for an appeal against an order/decision of W.P.(C)No.21772 of 2009 :: 8 :: the Tribunal before the Supreme Court is against the dictum laid down by the Supreme Court in Chandrakumar v. Union of India {1997(3) SCC 261}. The Supreme Court had, in the said judgment, considered the constitutional validity of the 'exclusive jurisdiction clause' contained in the Administrative Tribunals Act. Sections 27 and 28 of the Administrative Tribunals Act are relevant and are extracted hereunder: 27. Execution of orders of a Tribunal:- Subject to the other provisions of this Act and the Rules, (the order of a Tribunal finally disposing of an application or an appeal shall be final and shall not be called in question in any court (including a High Court) and such order] shall be executed in the same manner in which any final 'order' of the nature referred to in Clause (a) of sub-section (2) of Section 20 (whether or not such final order had actually been made) in respect of the grievance to which the application relates would have been executed. W.P.(C)No.21772 of 2009 :: 9 :: 28. Exclusion of jurisdiction of courts except the Supreme Court under article 136 of the Constitution:- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, [no court except-- (a) The Supreme Court; or (b) any Industrial Tribunal, Labour Court or other authority constituted under the industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have] or be entitled to exercise any jurisdiction powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.” 8. Construing the ouster clause in Section 28 of the Act, the Supreme Court found that the power of judicial review available to the High Court W.P.(C)No.21772 of 2009 :: 10 :: under Articles 226 and 227 of the Constitution is part of the basic structure of the Constitution. This jurisdiction cannot be ousted by any legislation. Paragraph 99 of the judgment of the Supreme Court is apposite in this context: 99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323-A and Clause 3(d) of Article 323- B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the 'exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental W.P.(C)No.21772 of 2009 :: 11 :: role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.” W.P.(C)No.21772 of 2009 :: 12 :: 9. There are certain provisions in the Armed Forces Tribunal Act, which are in pari materia with the provisions in the Administrative Tribunals Act. The provisions providing for an overriding effect for the provisions of the Act are similarly worded in the Armed Forces Tribunal Act (Section 39) and the Administrative Tribunals Act (Section 33). The power to remove difficulties as contained in section 40 of the Armed Forces Tribunal Act, 2007 is also strikingly similar to Section 34 of the Administrative Tribunals Act. So also, the provision providing for laying of rules before each House of Parliament as contained in Section 43 of the Armed Forces Tribunal Act is similar to Section 37 of the Administrative Tribunals Act. 10. But the crucial provision contained in the Administrative Tribunals Act, which the Supreme Court had construed as an 'exclusion of jurisdiction' viz., Section 28 of the Administrative Tribunals Act, 1985 cannot be found in the Armed Forces Tribunal W.P.(C)No.21772 of 2009 :: 13 :: Act. In fact, the 'exclusion of jurisdiction' clause is contained in Section 33 of the Armed Forces Tribunal Act which reads as follows: “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 shall have, or be entitled to exercise, such jurisdiction, power or authority in relation to those service matters.” 11. Significantly, it is only the jurisdiction of the Civil Court, that has been ousted under Section 33 of the Armed Forces Tribunal Act. The difference in the wording in Section 33 of the Armed Forces Tribunal Act and Section 28 of the Administrative Tribunals Act (which was considered by the Supreme Court in Chandrakumar) is striking. In fact, that portion of the provisions in Section 28 of the W.P.(C)No.21772 of 2009 :: 14 :: Administrative Tribunals Act, which rendered it unconstitutional is conspicuously absent in Section 33 of the Armed Forces Tribunal Act. 12. Thus, the impugned provisions in the Armed Forces Tribunal Act would not fall foul of any specific provision in the Constitution, nor can it be considered as violative of the basic structure of the Constitution, going by the parameters laid down by the Supreme Court in Chandrakumar. 13. It is also significant to take note of the fact that the Administrative Tribunals Act did not specifically provide for an appeal even to the Supreme Court, whereas the Armed Forces Tribunal Act provides for a right of appeal under Sections 30 to 32 of the said Act. 14. The question as to whether the judgment/order passed by the Tribunal under the Armed Forces Tribunal Act can be called in question by an aggrieved person before the High Court by W.P.(C)No.21772 of 2009 :: 15 :: invoking its powers under Article 226 and 227 of the Constitution, is obviously a matter, that has to be considered by the Court at the appropriate stage. The law laid down by the Supreme Court in Chandrakumar, like any other binding precedent of the Supreme Court would guide the High Court at that stage. That is a far cry from the contention that Sections 30 to 32 of the Act are unconstitutional as such. For all these reasons, I am of the view that the writ petition is bereft of merit and it is accordingly dismissed. Sd/- (V.GIRI) Judge sk/ //true copy// P.S. to Judge