Kerala High Court
Ravindran. K (Ex. Nk-10358331 H) vs Union Of India on 14 December, 2022
OP(AFT) No.1/2022 1 / 11
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
Wednesday, the 14th day of December 2022 / 23rd Agrahayana, 1944
OP(AFT) NO. 1 OF 2022
(AGAINST THE ORDER DATED 18.08.2022 IN OA 372/2017 OF ARMED FORCES
TRIBUNAL,REGIONAL BENCH, ERNAKULAM)
PETITIONER/APPELLANT:
RAVINDRAN. K (EX. NK-10358331 H), AGED 64 YEARS DSC RECORDS, KANNUR
- 670013. RESIDING AT "SURYODAM", ALACHERY P.O, CHITTARIPARAMBA
(VIA), KANNUR -670650.
BY ADVS.M/S.B.HARISH KUMAR & ANJALY JOSEPH,
RESPONDENTS/RESPONDENTS:
1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT
(DEFENCE), MINISTRY OF DEFENCE, NEW DELHI, PIN - 110011
2. THE DEPUTY DIRECTOR GENERAL, DIRECTOR GENERAL DSC, GENERAL STAFF
BRANCH INTEGRATED HQ OF MOD (ARMY) WEST BLOCK- III, R K PURAM, NEW
DELHI-, PIN - 110066
3. SENIOR RECORD OFFICER, DSC RECORDS, MILL ROAD, KANNUR, KERALA-, PIN
- 670013
This OP (Armed Forces Tribunal - Art.227) having come up for orders
on 14.12.2022, the court on the same day passed the following:
OP(AFT) No.1/2022 2 / 11
A.K.JAYASANKARAN NAMBIAR, J.
&
MOHAMMED NIAS C.P., J.
-------------------------------
O.P.(AFT).NOS.2 OF 2021 & 1 & 2 OF 2022
&
W.P.(C).NO.18234 OF 2022
-----------------------------------
Dated this the 14th day of December, 2022
ORDER
A.K. Jayasankaran Nambiar, J.
In all these cases, a preliminary issue as regards
maintainability arises for consideration, and hence, they are taken up
together for hearing on the said issue.
2. The O.P.(AFT)'s have been filed impugning orders passed by
the Armed Forces Tribunal [AFT] and by invoking the jurisdiction of
this Court under Article 227 of the Constitution of India. The writ
petition, on the other hand, has been filed impugning an order of the
AFT by invoking the jurisdiction of this Court under Article 226 of the
Constitution. The preliminary issue that arises for consideration is
whether a person aggrieved by an order passed by the AFT can
approach this Court by invoking its jurisdiction either under Article
226 or Article 227 of the Constitution of India.
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3. The following judgments of the Supreme Court were cited
before us by the learned counsel appearing for the parties: Sangram
Singh v. Election Tribunal, Kotah and Another - [(1955) 2 SCR
1], Union of India and Others v. Major General Shri Kant
Sharma and Another - [(2015) 6 SCC 773], L. Chandra Kumar
v. Union of India and Others - [(1997) 3 SCC 261], Balkrishna
Ram v. Union of India and Others - [(2020) 2 SCC 442], Rojer
Mathew v. South Indian Bank Ltd. - [(2020) 6 SCC 1], Shalini
Shyam Shetty and another v. Rajendra Shankar Patil - [(2010)
8 SCC 329] and interim order dated 16.11.2015 in Civil Appeal
No.5327 of 2015 - [Union of India and Others v. Thomas
Vaidyan M.].
4. On a consideration of the above judgments, we find that the
following principles can be culled out from them;
(i) The jurisdiction which Articles 226 and 136 of the Constitution
confer entitles the High Courts and the Supreme Court to
examine the decisions of all Tribunals to see whether they
have acted illegally. The said jurisdiction cannot be taken
away by a legislative device that purports to confer power on a
Tribunal to act illegally by stipulating that its illegal acts shall
become legal the moment the Tribunal chooses to say they are
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legal. The legality of an act or conclusion is something that
exists outside and apart from the decision of an inferior
Tribunal. It is a part of the law of the land which cannot be
finally determined or altered by any Tribunal of limited
jurisdiction. The High Courts and the Supreme Court alone
can determine what the law of the land is vis-a-vis all other
Courts and Tribunals and they alone can pronounce with
authority and finality on what is legal and what is not. All that
an inferior Tribunal can do is to reach a tentative conclusion
which is subject to review under Article 226 and 136 of the
Constitution. [See Sangram Singh (supra)]
(ii) In L. Chandra Kumar (supra), a seven Judges' Bench of the
Supreme Court held that judicial review is a part of the basic
structure of the Constitution and that the power of judicial
review of the High Courts and the Supreme Court cannot be
taken away. This position was reiterated in Rojer Mathew
(supra). In the case of the AFT, this position is also made
clear under Section 14 of the Armed Forces Tribunal's Act
itself. In the light of the judgments in L. Chandra Kumar
(supra) and Rojer Mathew (supra) as also the specific
provisions in the Armed Forces Tribunal Act, we are perhaps
justified in viewing the finding in Major General Shri Kant
Sharma (supra) that holds that a writ petition under Article
226 would not lie against an order of the AFT, as impliedly
overruled. This is especially so because, we find that the
correctness of Major General Shri Kant Sharma (supra)
was doubted by the Supreme Court in Thomas Vaidyan
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(supra) and the issue referred to a bench of three Judges and
it was while so that the Constitution bench pronounced on the
issue in Rojer Mathew (supra).
(iii) Although the decisions in L. Chandra Kumar (supra) and
Rojer Mathew (supra) also hold that that power vested with
the High Court to exercise judicial superintendence over
decisions of all Courts and Tribunals within their respective
jurisdictions is also part of the basic structure of the
Constitution, we must remind ourselves that those were cases
that dealt with challenges against orders passed by the
Administrative Tribunal and the Debt Recovery Tribunal and
not against orders passed by the AFT.
(iv) At paragraph 215 of its judgment in Rojer Mathew (supra),
the Supreme Court observed in the context of orders passed by
the Debt Recovery Tribunal that it was clear post L. Chandra
Kumar that the writ jurisdiction under Article 226 does not
limit the powers of the High Courts expressly or by implication
against military or armed forces disputes. The Court also
observed that the limited ouster made by Article 227(4) only
operates qua administrative supervision by the High Court and
not judicial review; that while Article 136(2) prohibits direct
appeals before the Supreme Court from an order of the AFT, it
would not prohibit an appeal to the Supreme Court against the
judicial review exercised by the High Court under Article 226
of the Constitution. It was once again reiterated that the
jurisdiction under Article 226, being part of the basic
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structure, can neither be tampered with nor diluted, but
instead had to be zealously protected and could not be
circumscribed by the provisions of any enactment, even if it be
formulated for expeditious disposal and early finality of
disputes. The Court found that the High Courts were
conscious enough to understand that such power must be
exercised sparingly by them to ensure that they do not become
alternate forums of appeal.
(v) Although the above observations in Rojer Mathew (supra)
and L. Chandra Kumar (supra), seem to suggest that a
petition under Article 227 can also be preferred against orders
of the AFT, we have to remind ourselves that the observations
of the Supreme Court in those cases were made in the context
of orders passed by the Administrative Tribunals under the
Administrative Tribunals Act and the Debt Recovery Tribunals
under the Securitisation and Reconstructions of Financial
Assets and Enforcement of Security Interest Act. In the case
of Armed Forces Tribunals, Article 227(4) of the Constitution
specifically excludes the supervisory power of the High Court
over such Tribunals inasmuch as it is constituted by or under a
law relating to the Armed Forces. We would think therefore
that the jurisdiction of the High Courts under Article 227 is
excluded by the express provisions of the Constitution itself
more so because the judicial interference that this Court
exercises under Article 227 is nothing but a mode of the
supervision that is envisaged under Article 227 of the
Constitution.
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(vi) The above aspect becomes more clear when we consider the
judgment of the Supreme Court in Shalini Shyam Shetty
(supra), where, after considering the precedents on the point
the principles informing the exercise of the High Court's
jurisdiction under Article 227 of the Constitution were
formulated as under:
(a) A petition under Article 226 of the Constitution is different from a
petition under Article 227. The mode of exercise of power by High Court
under these two Articles is also different.
(b) A petition under Article 227 cannot be called a writ petition. The history
of the conferment of writ jurisdiction on High Courts is substantially
different from the history of conferment of the power of Superintendence on
the High Courts under Article 227.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of
superintendence under Article 227 of the Constitution, interfere with the
orders of tribunals or Courts inferior to it. Nor can it, in exercise of this
power, act as a Court of appeal over the orders of Court or tribunal
subordinate to it. In cases where an alternative statutory mode of redressal
has been provided, that would also operate as a restrain on the exercise of
this power by the High Court.
(d) The High Court in exercise of its jurisdiction of superintendence can
interfere in order only to keep the tribunals and Courts subordinate to it,
`within the bounds of their authority'. It must ensure that law is followed by
such tribunals and Courts by exercising jurisdiction which is vested in them
and by not declining to exercise the jurisdiction which is vested in them.
(e) The High Court can interfere in exercise of its power of superintendence
when there has been a patent perversity in the orders of tribunals and Courts
subordinate to it or where there has been a gross and manifest failure of
justice or the basic principles of natural justice have been flouted.
(f) In exercise of its power of superintendence High Court cannot interfere to
correct mere errors of law or fact or just because another view than the one
taken by the tribunals or Courts subordinate to it, is a possible view. In other
words the jurisdiction has to be very sparingly exercised.
(g) The High Court's power of superintendence under Article 227 cannot be
curtailed by any statute. The power is discretionary and has to be exercised
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on equitable principle. In an appropriate case, the power can be exercised
suo motu.
(h) The object of superintendence, both administrative and judicial, is to
maintain efficiency, smooth and orderly functioning of the entire machinery
of justice in such a way as it does not bring it into any disrepute. The power
of interference under Article 227 is to be kept to the minimum to ensure that
the wheel of justice does not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain public confidence in the
functioning of the tribunals and Courts subordinate to High Court.
(i) The reserve and exceptional power of judicial intervention is not to be
exercised just for grant of relief in individual cases but should be directed for
promotion of public confidence in the administration of justice in the larger
public interest whereas Article 226 is meant for protection of individual
grievance. Therefore, the power under Article 227 may be unfettered but its
exercise is subject to high degree of judicial discipline. An improper and a
frequent exercise of this power will be counter-productive and will divest this
extraordinary power of its strength and vitality.
(vii) The judicial intervention under Article 227 is therefore merely
an aspect of the superintendence over Subordinate Courts and
Tribunals envisaged for the High Court under the said
provision and when Article 227(4) specifically excludes that
superintendence over the Armed Forces Tribunals, we have to
understand the Constitutional scheme as excluding the
jurisdiction of the High Court under Article 227 in relation to
orders passed by the Armed Forced Tribunal.
5. The upshot of the aforesaid discussion is that while we find
that the orders of the AFT can be challenged before this Court by
invoking its discretionary jurisdiction under Article 226 of the
Constitution, we also hold that a petition under Article 227 of the
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Constitution will not lie before this Court against an order of the AFT
in view of the express bar under Article 227(4) of the Constitution.
We also feel that in view of the observation of the Supreme Court in
paragraph 214 of Rojer Mathew (supra) that it was in an attempt
to respect the intent of facilitating speedy disposal expressed by the
Parliament that in L. Chandra Kumar (supra), the Court had
directed that orders of the Administrative Tribunals be heard by a
Division Bench of the High Court if challenged under Article 226, the
Scheme of expediency manifest in the provisions of the Armed Forces
Tribunal Act would require us to hold that writ petitions filed under
Article 226 of the Constitution, impugning orders of the AFT, should
be heard by a Division Bench of this Court.
6. We are therefore of the view that against the orders of the
AFT, only a writ petition under Article 226 of the Constitution will be
maintainable before this Court, and in that event, the Registry should
number the petitions as Writ Petitions and post them for hearing
before a Division Bench of this Court in accordance with roster. For
the sake of clarity, we reiterate that petitions under Article 227 of the
Constitution cannot be filed before this Court impugning an order of
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the AFT, in view of the express bar contained in Article 227(4) of the
Constitution.
The O.P.(AFT)'s dealt with in these proceedings, shall be
renumbered by the Registry as Writ Petitions and posted before the
Division Bench in accordance with the roster. W.P.(C).No.18234 of
2022 is found maintainable, and posted for disposal in its turn.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
MOHAMMED NIAS C.P.
JUDGE
prp/
OP(AFT) No.1/2022 11 / 11
APPENDIX OF OP(AFT) 1/2022
Exhibit P4 A TRUE COPY OF THE ORDER DATED 18/08/2022 IN O.A. NO.
372 OF 2017 PASSED BY THE ARMED FORCES TRIBUNAL
REGIONAL BENCH, KOCHI
