Manjula Chellur, C.J. - (1.) THE above appeal is directed against the order dated 11.10.2007 in W.P. 1532 of 2006. When the matter came up for hearing before the Division Bench, Division Bench opined, since Union of India had set up a Tribunal to deal with disputes including service matters pertaining to Armed Forces personnel, in the light of Section 34 of the Armed Forces Tribunal Act of 2007 (for short hereinafter referred to as A.F.T. Act of 2007), whether the matter needs to be transferred to Armed Force Tribunal or could be decided by this Court.
(2.) IN this regard, the Division Bench after referring to decision of Allahabad High Court in Special Appeal Defective No. 445 of 2005 opined as under: - - "We have also heard Mr. Kaushik Chandra, learned senior Counsel appearing for the Union of India. We are in doubt whether this appeal could be transferred to the Tribunal giving them opportunity to sit on appeal over the judgment and order of the learned Single Judge of this Court. The bench decision of the Allahabad High Court might have a persuasive value. However, we beg to differ. This is a transitional period. Once the learned Single Judge dealt with the issue and disposed of the writ petition, the intra court appeal under Clause 15 is only available to this Court and not to the Tribunal. Hence, this appeal, if proceeded with, could only be heard by the Division Bench of this Court and nobody else. However, since the issue would have a national repercussion, we feel, a larger Bench should decide the issue. We, thus, request the Hon'ble Chief Justice to form and constitute a larger Bench to decide as to whether intra court appeal under Clause 15 of the Letters Patent could be included within the meaning of Section 34 of the Armed Forces Tribunal Act, 2007 for being transferred to the Tribunal." In the light of above reference, this came up for consideration before the Larger Bench. We have heard learned Counsel, Sri Pradip Tarafdar for the appellant and the learned standing Counsel, Sri Kaushik Chandra for Union of India. In order to understand the controversy before us, we have to first analyse the relevant provisions under the A.F.T. Act of 2007. These are Sections 14, 15, 29, 34 and 35. Since application of Letters Patent applies to this Charter High Court, we have to refer to Clause 15 of Letters Patents which provides for intra court appeal.
(3.) THE relevant provisions under A.F.T. Act read as under: - - "14. Jurisdiction, powers and authority in service matters. - -(1) Save as otherwise expressly provided in this Act, the Tribunal 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 226 and 227 of the Constitution) in relation to all service matters. (2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed. (3) On receipt of an application relating to service maters, the Tribunal shall, if satisfied after due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the Tribunal is not so satisfied, it may dismiss the application after recording its reasons in writing. (4) For the purpose of adjudicating an application, the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely: - - (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of section 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing an application for default or deciding it ex parte; (h) setting aside any order of dismissal of any application for default or any order passed by it ex parte; and (i) any other matter which may be prescribed by the Central Government. (5) The Tribunal shall decide both questions of law and facts that may be raised before it. 15. Jurisdiction, powers and authority in matters of appeal against court -martial. - -(1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a court -martial or any matter connected therewith or incidental thereto. (2) Any person aggrieved by an order, decision, finding or sentence passed by a court -martial may prefer an appeal in such form, manner and within such time as may be prescribed. (3) The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it considers necessary. Provided that no accused person shall be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. (4) The Tribunal shall allow an appeal against conviction by a court -martial where - (a) the finding of the court -martial is legally not sustainable due to any reason whatsoever; or (b) the finding involves wrong decision on a question of law; or (c) there was a material irregularity in the course of the trial resulting in miscarriage of justice' but, in any other case, may dismiss the appeal where the Tribunal; considers that no miscarriage of justice is likely to be caused or has actually resulted to the appellant: Provided that no order dismissing the appeal by the Tribunal shall be passed unless such order is made after recording reasons therefor in writing. (5) The Tribunal may allow an appeal against conviction, and pass appropriate order thereon. (6) Notwithstanding anything contained in the foregoing provisions of this section the Tribunal shall have the power to - (a) substitute for the findings of the court -martial, a finding of guilty for any other offence for which the offender could have been lawfully found guilty by the court -martial and pass a sentence afresh for the offence specified or involved in such findings under the provisions of the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 9f 1957) or the Air Force Act, 1950 (45 of 1950), as the case may be; or (b) if sentence is found to be excessive, illegal or unjust, the Tribunal may - (i) remit the whole or any part of the sentence, with or without conditions; - (ii) mitigate the punishment awarded; (iii) commute such punishment to any lesser punishment or punishments mentioned in the Army Act, 1950(46 of 1950) or the Navy Act, 1957 (62 9f 1957) and the Air Force Act, 1950 (45 of 1950), as the case may be; (c) enhance the sentence awarded by a court -martial; Provided that no such sentence shall be enhanced unless the appellant has been given an opportunity of being heard. (d) release the appellant if sentenced to imprisonment, on parole with or without conditions; (e) suspend a sentence of imprisonment; (f) pass any other order as it may think appropriate. (7) Notwithstanding any other provisions in this Act, for the purposes of this section, the Tribunal shall be deemed to be a criminal court for the purposes of Sections 175, 178, 179, 180, 193, 195, 196 or 228 of the Indian Penal Code (45 of 1860) and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). Section 29. Execution of order of the Tribunal. - Subject to the other provisions of this Act and the rules made thereunder, the order of the Tribunal disposing of an application shall be final and shall not be called in question in any Court and such order shall be executed accordingly. "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 or 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. (2) Where any suit, or other proceeding stands transferred from any court including a High Court or other authority to the Tribunal under sub -section (1). - (a) the court or other authority shall, as soon as may be, after such transfer, forward the records of such suit, or other proceeding to the Tribunal; - (b) the Tribunal may, on receipt of such records, proceed to deal with such suit, or other proceeding, so far as may be, in the same manner as in the case of an application made under sub -section (2) of section 14 from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit." 35. Provision for filing of certain appeals. - Where any decree or order has been made or passed by any court (other than a High Court) or any other authority in any suit or proceeding before the establishment of the Tribunal, being a suit or proceeding the cause of action whereon it is based, is such that it would have been, if it had arisen after such establishment, within the jurisdiction of the Tribunal, and no appeal has been preferred against such decree or order before such establishment or if preferred, the same is pending for disposal before any court including High Court and the time for preferring such appeal under any law for the time being in force had not expired before such establishment such appeal shall lie to the Tribunal, within ninety days from the date on which the Tribunal is established, or within ninety days from the date of receipt of the copy of such decree or order, whichever is later.";