- (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 AFT 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."
(3.) 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 AFT 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. 14. The relevant provisions under AFT 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." The Clause 15 of the Letters Patent which provides for intra court appeal reads as under:- "15. Appeal from the courts of original jurisdiction to the High Court in its Appellate jurisdiction.- And we do further ordain, that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under provisions of Section 107 of the Government of India Act or in the exercise of Criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act made on or after the first day of February one thousand nine hundred and twentynine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declared that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council as hereinafter provided." Section 14 of AFT Act deals with the jurisdiction, powers and authority in service matters which could be exercised by the Tribunal. It says that the Tribunal has the jurisdiction, power and authority in relation to all service matters except the matters which have to be dealt with by the Supreme Court or a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution. Section 15 deals with the appellate authority of the Tribunal in all matters that is order, decision, finding and sentence passed by a court martial or any matter connected therewith or incidental thereto. It also refers to other incidental matters pertaining to appeals before the Tribunal. Section 29 refers to execution of order of Tribunal. Subject to the other provisions of AFT Act, the decision, order passed by the Tribunal on any application filed before it shall become final and cannot be questioned in any court of law. Section 34 refers to transfer of pending cases to Tribunal on coming into force of the provisions of AFT Act of 2007. So far as Section 35 is concerned, it refers to provisions for filing an appeal where time prescribed for filing an appeal has not yet expired. Clause 15 of Letters Patent refers to how an appeal shall lie to the High Court from the orders of the original jurisdiction of the High Court in its appellate jurisdiction. According to learned Counsel for the appellant, the present appeal deserves to be transferred to the Tribunal as Section 34 of the Act has clearly put an embargo on the jurisdiction of the High Court to hear and decide appeals pending before the High Court in relation to service matters of Armed Force personnel once the Act has come into force. He contends, Section 34 of the Act refers to every suit or proceeding pending before any court including a High Court or other authority shall stand transferred to Tribunal, therefore, according to learned senior Counsel for appellant, the present appeal cannot be entertained before this Court. He relies upon in the case of Commissioner of Income Tax, Kerala v. M/s. Tara Agencies, 2007 9 JT 65 to contend that one has to understand the intention of the legislature from the language used in the statute to analyse what has been said and also what has not been said. Therefore, according to him, the statute has to be interpreted as it is since the bounden duty of the court is to do so. The court is not obliged to incorporate deliberately or liberally its own wisdom to read into the statute is the stand of the appellant. in the case of Sanjay Singh & Anr. Vs. U.P. Public Service Commission, Allahabad & Anr., 2007 3 SCC 720 was relied upon to contend that where there is conflict between the general statute and special statute, so far as inconsistency between the two, the special statute prevails upon the general one. In the above case, the dispute was with regard to the State Judicial Service Rules framed by the Governor vis- -vis rules framed by the State Public Service Commission. It was held that rules framed by Public Service Commission will yield to the judicial service rules if both the said rules have made provisions to a particular matter. Therefore, it is contended that since AFT Act of 2007 is a special statute, the provisions of said Act alone are applicable and not Letters Patent. In the case of Satheedevi Vs. Prasanna & Anr., 2010 5 SCC 622 was relied upon again to seek the attention of the court with regard to principle applicable while interpreting the statute to contend that 'the intention of the legislature must be found in the words used by the legislature itself' and the court cannot accede to any hypothetical construction opining that such construction would be more consistent with the alleged object and policy of the Act. Lastly, he relies upon Mil LJ 2010 All 150 in the case of Union of India & ors. Vs. Ram Baran to persuade us that a coordinate Bench of Allahabad High Court while interpreting Section 34 of the AFT Act opined that the jurisdiction of the Tribunal under the Act in question is not supplementary but in substitution of the Civil Courts and High Courts, therefore, the Tribunal is having same jurisdiction as that of the High Court and can decide the special appeal. In other words, Their Lordships opined that the words 'other proceedings' appearing in Section 34(1) of the AFT Act would include intra court special appeals provided under Chapter VIII Rule 5 of Allahabad High Court Rules of 1952. Therefore, special appeals will fall within the jurisdiction of the Tribunal under Section 14 of the AFT Act. As against this, learned standing Counsel for Union of India places reliance in the case of UOI Vs. R. Gandhi, President, Madras Bar Association, 2010 11 SCC 1 where para 87 and 88 are relevant which read as under: "87. The Constitution contemplates judicial power being exercised by both courts and tribunals. Except the powers and jurisdictions vested in superior courts by the Constitution, powers and jurisdiction of courts are controlled and regulated by Legislative enactments. The High Courts are vested with the jurisdiction to entertain and hear appeals, revisions and references in pursuance of provisions contained in several specific legislative enactments. If jurisdiction of High Courts can be created by providing for appeals, revisions and references to be heard by the High Courts, jurisdiction can also be taken away by deleting the provisions for appeals, revisions or references. It also follows that the legislature has the power to create tribunals with reference to specific enactments and confer jurisdiction on them to decide disputes in regard to matters arising from such special enactments. Therefore it cannot be said that legislature has no power to transfer judicial functions traditionally performed by courts to tribunals. 88. The argument that there cannot be "wholesale transfer of powers" is misconceived. It is nobody's case that the entire functioning of courts in the country is transferred to tribunals. The competence of Parliament to make a law creating tribunals to deal with disputes arising under or relating to a particular statute or statutes cannot be disputed. When a Tribunal is constituted under the Companies Act, empowered to deal with disputes arising under the said Act and the statute substitutes the word "tribunal" in place of "the High Court" necessarily there will be "wholesale transfer" of company law matters to the tribunals. It is an inevitable consequence of creation of a tribunal for such disputes and will no way affect the validity of the law creating the tribunal.";