Dinesh Kumar Singh ... vs U.O.I. Thru. Secy. Ministry Of ...
2017 Latest Caselaw 7586 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 1
 

 
Case :- MISC. BENCH No. - 29200 of 2017
 

 
Petitioner :- Dinesh Kumar Singh (No.15398393-A Sigmn)
 
Respondent :- U.O.I. Thru. Secy. Ministry Of Defence & Others, New Delhi
 
Counsel for Petitioner :- Parijat Mishra Belavra,Rajendra Pratap Singh
 
Counsel for Respondent :- A.S.G.
 

 
Hon'ble Vikram Nath,J.

Hon'ble Abdul Moin,J.

(Dictated by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the petitioner and Sri S.B. Pandey, learned counsel representing the respondents.

2. By means of the present petition, the petitioner has prayed for the following reliefs:-

"1. Issue a writ, order or direction in the nature of Certiorari to quash Rule 18 of the Armed Forces Tribunal (Procedure) Rules, 2008 being illegal, arbitrary and ultra vires.

2. Issue writ, order or direction to set aside impugned order dated 09.09.2017 passed in Review Application No.-84 of 2016 In Re: OA No-261/2013 passed by Armed Forces Tribunal Lucknow contained in Annexure No-1 to this Writ Petition.

3. Issue writ, order or direction in the nature of Mandamus Commanding the Armed Forces Tribunal to decide the Review Application No-84/2016 afresh on merit."

3. The facts have not been indicated in the writ petition by the petitioner, rather we have culled them out from the order passed by the learned Armed Forces Tribunal, Regional Bench, Lucknow (hereinafter referred to as "the learned Tribunal") dated 9.9.2017 passed in Review Application No.84 of 2016 in Original Application No.261 of 2013 as annexed as Annexure-1 to the writ petition which indicate that the petitioner had preferred a review application No.84 of 2016 praying for review of the final order dated 18.8.2015 passed by the learned Tribunal in O.A. No.261 of 2013. The review application was preferred under the provisions of Rule 18 of the Armed Forces Tribunal (Procedure) Rules, 2008 (hereinafter referred to as "Rules 2008").

4. Taking the rule position in view, the learned Tribunal vide order dated 9.9.2017 held that as the review had been filed after the statutory period of limitation i.e. after 30 days with a delay of 10 months and 8 days and Rule 18 of the Procedure Rules, 2008 (erroneously referred to as Section 18 of the Armed Forces Tribunal Act, 2007 in the order of the learned Tribunal) did not empower the learned Tribunal to condone the delay, accordingly the review application was rejected.

5. Being aggrieved with the said order dated 9.9.2017 and challenging the vires of Rule 18 of the Rules, 2008, the present writ petition has been preferred.

6. For the sake of convenience Rule 18 of the Rules, 2008 is being reproduced below:-

"18 Application for review.

(1) No application for review shall be entertained unless it is filed within thirty days from the date of receipt of copy of the order sought to be reviewed.

(2) An application for review shall ordinarily be heard by the same Bench which has passed the order, unless the Chairperson may, for reasons to be recorded in writing, direct it to be heard by any other Bench.

(3)  Unless otherwise ordered by the Bench concerned, an application for review shall be disposed of by circulation where the Bench may either dismiss the application or direct notice to be issued to the opposite party.

(4)  Where an application for review of any judgment or order has been disposed of, thereafter no application for further review shall lie.

(5) No application for review shall be entertained unless it is supported by a duly sworn affidavit indicating therein the source of knowledge, personal or otherwise. The counter-affidavit in review application will also be a duly sworn affidavit wherever any averment of fact is disputed."

7. A perusal of Rule 18 of the Rules, 2008 would indicate that there is specific bar to an application for review being entertained unless it is filed within 30 days from the date of receipt of copy of the order sought to be reviewed. Thus no power to condone the delay in the filing of a review application has been given to the learned Tribunal.

8. Learned counsel for the petitioner contends that because no power has been given to the learned Tribunal to condone the delay under the provisions of Rule 18 of the Rules, 2008, as such, Rule 18 of the Rules, 2008 is arbitrary and unjust and the same would also be ultra vires.

9. The grounds taken to challenge the vires of Rule 18 would indicate that the challenge has been made in a very cursory manner, rather in the grounds to challenge the same it has been contended that Rule 18 of the Rules, 2008 is arbitrary and unjust and the same is ultra vires. A further ground has been taken that as Section 14(4) of the Armed Forces Tribunal Act, 2007 provides that the Tribunal shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, while trying a suit in respect of certain matters which include reviewing its decision and as the power of review under the Civil Procedure Code is vested in Order XLVII of the Civil Procedure Code where the provisions of Section 5 of the Limitation Act is applicable, as such there was no need to frame Rule 18 of the Rules, 2008 and the same would be ultra vires. The other grounds taken to challenge the vires are that the Central Government acted beyond its power in making Rule 18 of Rules 2008; the powers of the learned Tribunal for condoning the delay in case a person made out sufficient cause for not making the application (for review) within such period, is sought to be curtailed; since power of review has been conferred on the learned Tribunal, as such the impediment (for having no power to condone the delay) has to be read down and that the provisions of Section 29(2) of the Limitation Act do not exclude the application of Limitation Act upon the learned Tribunal.

10. Per contra, Sri S.B. Pandey, learned Assistant Solicitor General of India, appearing for respondents No.1 to 4, has contended that the Hon'ble Supreme Court in the case of Union of India and others vs. Major General Shri Kant Sharma and another reported in 2015(6) S.C.C. 773, has considered the provisions of Armed Forces Tribunal Act, 2007 and accordingly this Court should not interfere in the matter.

11. We have gone through the judgment of the Hon'ble Supreme Court in Major General Shri Kant Sharma's case (supra) wherein the question before the Hon'ble Supreme Court was as to whether the right of appeal under Section 30 of the Armed Forces Tribunal Act, 2007 against an order of the Armed Forces Tribunal with the leave of the Tribunal under Section 31 of the said Act or leave 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. Thus no where the vires of either the Armed Forces Tribunal Act, 2007 or the Rules, 2008 was under challenge before the Hon'ble Supreme Court. However, the said judgment would be relevant so far as the challenge raised by the petitioner to the order passed by the learned Tribunal in the review application is concerned by which the review application has been dismissed inasmuch as by raising a challenge to the vires of Rule 18 of the Rules, 2008, the petitioner cannot be allowed to challenge the judgment of the learned Tribunal passed in the review application before this Court.

12. So far as the vires to Rule 18 of the Procedure Rules, 2008 is concerned, it is submitted that the Hon'ble Supreme Court in the case of State of Tamilnadu vs. P. Krishnamurthy reported in 2006(4) SCC 317, has enumerated the principles for considering the validity and vires of subordinate legislation as under:-

"15. There is a presumption in favour of constitutionality or validity of a sub-ordinate Legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a sub-ordinate legislation can be challenged under any of the following grounds :-

a) Lack of legislative competence to make the sub-ordinate legislation.

b) Violation of Fundamental Rights guaranteed under the Constitution of India.

c) Violation of any provision of the Constitution of India.

d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act.

e) Repugnancy to the laws of the land, that is, any enactment .

f) Manifest arbitrariness/unreasonableness (to an extent where court might well say that Legislature never intended to give authority to make such Rules).

16. The court considering the validity of a sub-ordinate Legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate Legislation conforms to the parent Statute. Where a Rule is directly inconsistent with a mandatory provision of the Statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non- conformity of the Rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the Parent Act, the court should proceed with caution before declaring invalidity.

13. Further, the Hon'ble Supreme Court in the case of Indian Express Newspapers (Bombay) vs. Union of India and others reported in (1985)1 S.C.C. 641, has held that:-

"75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. In England, the judges would say "Parliament never intended authority to make such rules. They are unreasonable and ultra vires". The present position of law bearing on the above point is stated by Diplock, L.J. in Mixnam Properties Ltd. v. Chertsey U.D.C.(1) thus:

"The various grounds upon which subordinate legislation has sometimes been said to be void -...- - can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid must be shown to be within the powers conferred by the statute. Thus the kind of unreasonableness which invalid dates a by-law is not the antonym of 'reasonableness' in the sense of which that expression is used in the common law, but such mainfest arbitrariness, injustice or partiality that a court would say: 'Parliament never intended to give authority to make such rules: they are unreasonable and ultra vires.. -' If the courts can declare subordinate legislation to be invalid for 'uncertainty,' as distinct from unenforceable-this must be because Parliament is to be presumed not to have intended to authorise the subordinate legislative authority to make changes in the existing law which are uncertain. "

76. Prof. Alan Wharam in his Article entitled 'Judicial Control of Delegated Legislation: The Test of Resonableness' in 36 modern Law Review 611 at pages 622-23 has summarised the present position in England as follows:

"(i) It is possible that the courts might invalidate statutory instrument on the grounds of unreasonableness or uncertainty, vagueness or aribitrariness; but the writer's (1) [1964] 1 Q.B.. 214.

view is that for all practical purposes such instruments must be read as forming part of the parent statute, subject only to the ultra vires test.

(ii) The courts are prepared to invalidate by- laws, or any other form of legislation, emanating from an elected, representative authority, on the grounds of unreasonableness uncertainty or repugnance to the ordinary law; but they are reluctant to do so and will exercise their power only in clear cases.

(iii) The courts may be readier to invalidate by-laws passed by commercial undertakings under statutory power, although cases reported during the present century suggest that the distinction between elected authorities and commercial undertakings, as explained in Kruse v. Johnson, might not now be applied so stringently.

(iv) As far as subordinate legislation of non- statutory origin is concerned, this is virtually obsolete, but it is clear from In re French Protestant Hospital [1951] ch. 567 that it would be subject to strict control."

(See also H.W.R. Wade: Administrative Law (5th Edn.) pp. 747-748).

77. In India arbitrariness is not a separate ground since it will come within the embargo ofArticle 14 of the Constitution. In India any enquiry into the vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned, to the ground that it is contrary to the statute under which it is made, to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution."

14. Keeping in view the aforesaid principles of law, it is appropriate to consider the nature, object and scheme of the enabling Act i.e. the Armed Forces Tribunal Act, 2007 (hereinafter referred to as "the 2007 Act) and the area over which power has been delegated and further consider whether the Rules, 2008 are in conformity with the 2007 Act.

15. The statement of objects and reasons of the 2007 Act are being reproduced below:-

"The existing system of administration of justice in the Army and Air Force provides for submission of statutory complaints against grievances relating to service matters and pre and post confirmation petitions to various authorities against the findings and sentences of court-martial. In Navy, an aggrieved person has a right to submit a complaint relating to service matters and has a right of audience before the Judge Advocate General in the Navy in regard to the finding and sentence of a court-martial before the same are finally put up to the Chief of the Naval Staff.

2. Having regard to the fact that a large number of cases relating to service matters of the members of the abovementioned three armed forces of Union have been pending in the courts for a long time, the question of constituting an independent adjudicatory forum for the Defence Personnel has been engaging the attention of the Central Government for quite some time. In 1982, the Supreme Court in Prithi Pal Singh Bedi v. Union of India and Ors.  AIR 1982 SC 1413 held that the absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment in the laws relating to the armed forces was a distressing and glaring lacuna and urged the Government to take steps to provide for at least one judicial review in service matters. The Estimates Committee of the Parliament in their 19th Report presented to the Lok Sabha on 20th August, 1992 had desired that the Government should constitute an independent statutory Board or Tribunal for service personnel.

3. In view of the above, it is proposed to enact a new legislation by constituting an Armed Forces Tribunal for adjudication of complaints and disputes regarding service matters and appeals arising out of the verdicts of the courts-martial of the members of the three service (Army, Navy and Air Force) to provide for quicker and less expensive justice to the members of the said Armed Forces of the Union.

4. Establishment of an independent Armed Forces Tribunal will fortify the trust and confidence amongst members of the three services in the system of dispensation of justice in relation to their service matters.

5. The Bill seeks to provide for a judicial appeal on points of law and facts against the verdicts of courts-martial which is a crying need of the day and lack of it has often been adversely commented upon by the Supreme Court. The Tribunal will oust the jurisdiction of all courts except the Supreme Court whereby resources of the Armed Forces in terms of manpower, material and time will be conserved besides resulting in expeditious disposal of the cases and reduction in the number of cases pending before various courts. Ultimately, it will result in speedy and less expensive dispensation of justice to the Members of the abovementioned three Armed Forces of the Union.

6. The Notes on clauses explain in detail the various provisions contained in the Bill.

7. The Bill seeks to achieve the above objectives."

16. From a perusal of the statement of objects and reasons it clearly comes out that setting up of the Armed Forces Tribunal was for the adjudication of the complaints and disputes regarding service matters and appeals arising out of the verdicts of the court martials of the members of the three services to provide for quicker and less expensive justice to the members of the armed forces. Thus the very purpose of setting up of the Tribunal was expeditious disposal of the cases and speedy and less expensive dispensation of justice to the members of the armed forces.

17. Section 23 of the 2007 Act gives the procedure and power of the Tribunal, which is reproduced below:-

"23 Procedure and powers of the Tribunal.

(1) The Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and subject to the other provisions of this Act and any rules made thereunder, the Tribunal shall have the power to lay down and regulate its own procedure including the fixing of place and time of its inquiry and deciding whether to sit in public or in camera.

(2) The Tribunal shall decide every application made to it as expeditiously as possible after a perusal of documents, affidavits and written representations and after hearing such oral arguments as may be advanced: Provided that where the Tribunal deems it necessary, for reasons to be recorded in writing, it may allow oral evidence to be adduced.

(3) No adjournment shall be granted by the Tribunal without recording the reasons justifying the grant of such adjournment and cost shall be awarded, if a party requests for adjournment more than twice."

18. Section 41 of the 2007 Act provides as under:-

"41. Power of Central Government to make rules

1. The Central Government may, by notification, make rules for the purposes of carrying out the provisions of this Act.

2. Without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--

a. the case or cases which shall be decided by a Bench composed of more than two Members under clause (c) of sub-section (3) of section 5;

b. the procedure under sub-section (3) of section 9 for the investigation of misbehaviour or incapacity of Chairperson or other Member;

c. the salaries and allowances payable to, and the other terms and conditions of service of the Chairperson and other Members under section 10;

d. the financial and administrative powers which the Chairperson may exercise over the Benches of the Tribunal under section 12;

e. the salaries and allowances payable to, and other terms and conditions of service of the officers and other employees of the Tribunal under sub-section (2) of section 13;

f. the form in which an application may be made under sub-section (2) of section 14, the documents and other evidence by which such application shall be accompanied and the fee payable in respect of the filing of such application or for the service of execution of processes;

g. the other matter which may be prescribed under clause (i) of sub-section (4) of section 14;

h. the form and manner in which an appeal may be filed, the fee payable thereon and the time within which such appeal may be filed under sub-section (2) of section 15;

i. the rules subject to which the Tribunal shall have power to regulate its own procedure under sub-section (1) of section 23;

j. competent authority who may authorise legal practitioners or law officers to act as counsel under sub-section (2) of section 25;

k. any other matter which may be prescribed or in respect of which rules are required to be made by the Central Government."

19. Accordingly Section 41(2) (f), (g), (i) & (k) of the 2007 Act gives the power to the Central Government to make rules for the purpose of the form in which an application may be made under the provisions of Section 14(2), the other matters which may be prescribed under Clause (1) of sub-section (4) of Section 14, any other matter which may be prescribed or in respect of which rules are required to be made by the Central Government and make rules subject to which the Tribunal shall have the power to regulate its own procedure under sub-section (1) of Section 23 of the 2007 Act.

20. The Rules, 2008 have been formulated by exercising the powers conferred by Clauses (f), (g) and (k) of sub-section (2) of Section 41 of the 2007 Act by the Central Government. Thus the rule making power is very well available with the Central Government in pursuance of which the Rules, 2008 have been formulated.

21. As regards the ground of applicability of Section 29(2) of the Limitation Act the same not having been specifically excluded in its applicability upon Rule 18 of the Rules, 2008 suffice to state that Rule 18 is couched in negative form and disentitles the person from seeking a review under Section 14(4)(f) of the Act, in case review is not filed within 30 days of the order. However, in the 2007 Act the method or manner or time limit to file such review has not been given except in Rule 18. In view of the same, the power of Tribunal to condone the delay under Section 22 of the Act is applicable only to the applications filed under Section 14, but the same cannot be made applicable to the review sought under Section 14(4)(f). This would be amply clear from a perusal of Section 22(2) of the 2007 Act which gives the power to the Tribunal to admit and entertain an application if the Tribunal is satisfied that the applicant has sufficient cause for not making the application within such period meaning thereby that the Tribunal has been given the power to condone the delay in filing the application. The ''application' has been defined in Section 3(b) of the 2007 Act as "an application made under sub-section (2) of Section 14". Thus an application for review is not contained in the definition clause of Section 3(b) of the 2007 Act. Thereafter we find the ''application for review' being defined under the definition clause of the Rules 2008 in Rule 2(1)(iv) where an ''application' has been defined as including a review application. Thus in the absence of any provision prescribing for condoning the delay either in the Act or in the Rules for a review application, the Tribunal will not have jurisdiction to condone the delay by taking aid and assistance of Section 5 of the Limitation Act on the premise that Limitation Act is made applicable in view of Sub-section (2) of Section 29 of the Limitation Act.

23. In this regard we may also refer to the judgment of the Hon'ble Supreme Court in the case of K. Ajit Babu vs. Union of India reported in 1997(6) S.C.C. 473, wherein the Hon'ble Supreme Court had occasion to consider the power of the Central Administrative Tribunal to exercise review under Rule 17 of the Central Administrative Tribunal (Procedure) Rules, which are pari materia to Rule 18 of the Rules 2008, and it was held as under:-

""......The right of review is not a right of appeal where all questions decided are open to challenge. The right of review is possible only on limited grounds, mentioned in Order 47 of the Code of Civil Procedure. Although strictly speaking Order 47 of the Code of Civil Procedure may not be applicable to the tribunals but the principles contained therein surely have to be extended. Otherwise there being no limitation on the power of review it would be an appeal and there would be no certainty of finality of a decision. Besides that, the right of review is available if such an application is filed within the period of limitation. The decision given by the Tribunal, unless reviewed or appealed against, attains finality. If such a power to review is permitted, no decision is final, as the decision would be subject to review at any time at the instance of the party feeling adversely affected by the said decision. A party in whose favour a decision has been given cannot monitor the case for all times to come. Public policy demands that there should be an end to law suits and if the view of the Tribunal is accepted the proceedings in a case will never come to an end. We, therefore, find that a right of review is available to the aggrieved persons on restricted ground mentioned in Order 47 of the Code of Civil Procedure if filed within the period of limitation."

24. Therefore when the Rules, 2008 are seen in the light of the discussions made above and the principles for considering the validity of the subordinate legislation as laid down by the Hon'ble Supreme Court then it clearly comes out that the Central Government had the legislative competence to make the said rules. There is neither any violation of rights guaranteed under the Constitution of India nor any provisions of the Constitution of India that have been violated and further neither the Central Government failed to conform to the statutes under which the rules were made nor exceeded the limit of the authority. Rule 18 of the Rules, 2008 are thus not repugnant to the law of the land and when seen in the light of the statements of objects and reasons, there is no manifest arbitrariness or unreasonableness in not giving any power to condone the delay to the Tribunal while reviewing its own judgment.

25. Thus none of the grounds raised by the petitioner seeking to challenge Rule 18 of the Rules 2008 are within the parameters of the grounds laid down by the Hon'ble Supreme Court to challenge the vires of any rule and accordingly the challenge to Rule 18 of the Rules 2008 fails.

26. There is another interesting aspect of the matter inasmuch as already observed above, the petitioner has also prayed for quashing of the order dated 9.9.2017 passed on his review application and further prayed for a direction commanding the learned Tribunal to decide the review application afresh on merits. By raising a feeble challenge to the vires of Rule 18 of the Rules, 2008, in effect, the petitioner is seeking to challenge the order passed by the learned Tribunal by which his review application has been dismissed, i.e. he is seeking to challenge the order of the learned Tribunal before this Court which cannot be done by the petitioner keeping in view the law laid down in the case of Union of India vs. Major General Shri Kant Sharma (supra). As such the circuitous route adopted by the petitioner is also not liable to succeed on this ground.

27. Keeping in view the aforesaid discussions, the writ petition lacks merit and is accordingly dismissed.

Order Date: 4.12.2017.

 
Rakesh
 
(Abdul Moin)     (Vikram Nath)