Union of India &
Ors. Vs. Brigadier P.S. Gill
[Criminal Appeal No.
564 of 2012 CRL. Appeal D. No. (S) 38094 of 2011]
[Civil Appeal No.
3046 of 2012]
Krite Kumar Awasthi Vs.
Union of India & Ors.
[Civil Appeal D.No. (S)
40571 of 2011]
J U D G M E N T
T.S. THAKUR, J.
common question of law as to the maintainability of an appeal before this Court
against a final decision and/or order of the Armed Forces Tribunal arises for
consideration in these two appeals that purport to have been filed under Section
30 of the Armed Forces Tribunal Act, 2007.
question precisely is whether an aggrieved party can file an appeal against any
such final decision or order of the Tribunal under Section 30 of the Act aforementioned
before this Court without taking resort to the procedure prescribed under Section
31 thereof. The appellant's case is that since the orders under challenge in these
appeals are final orders of the Tribunal , an appeal against the same lies to this
Court as a matter of right, no matter the right to file such an appeal under
Section 30 of the Act is subject to the provisions of Section 31thereof.
The respondents, on
the other hand, contended that a conjoin treading of Sections 30 and 31 of the
Act leaves no manner of doubt that an appeal under Section 30 is maintainable
only in accordance with and subject to the provisions of Section 31. In as much
as Section 31 provides for an appeal to this Court either with the leave of the
Tribunal or with the leave of this Court, no absolute right of appeal against even
a final order or decision is available to the aggrieved party except in cases where
the order passed by the Tribunal is in exercise of its jurisdiction to punish for
contempt. What is the true legal position would necessarily require a careful
reading of the two provisions that may be extracted at this stage: "30.
Appeal to Supreme Court:
1. Subject to the provisions
of Section 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): Provided that such appeal is preferred within a period of ninety days of
the said decision or order: Provided further that there shall be no appeal
against an interlocutory order of the Tribunal.
2. An appeal shall lie
to the Supreme Court as of right from any order or decision of the Tribunal in the
exercise of its jurisdiction to punish for contempt: Provided that an appeal under
this sub-section shall be filed in the Supreme Court within sixty days from the
date of the order appealed against.
3. Pending any appeal under
sub-section (2), the Supreme Court may order that –
a. the execution of the
punishment or the order appealed against be suspended;
b. if the appellant is
in confinement, he be released on bail:
Provided that where an
appellant satisfies the Tribunal that he intends to prefer an appeal, the
Tribunal may also exercise any of the powers conferred under clause (a) or clause
(b), as the case may be.
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.
2. An application to the
Tribunal for leave to appeal to the Supreme Court shall be made within a period
of thirty days beginning with the date of the decision of the Tribunal and an application
to the Supreme Court for leave shall be made within a period of thirty days
beginning with the date on which the application for leave is refused by the Tribunal
3. An appeal shall be treated
as pending until any application for leave to appeal is disposed of and if leave
to appeal is granted, until the appeal is disposed of; and an application for
leave to appeal shall be treated as disposed of at the expiration of the time
within which it might have been made, but it is not made within that
plain reading of Section 30 would show that the same starts with the expression
"subject to the provision of Section 31". Given their ordinary
meaning there is no gainsaying that an appeal shall lie to this Court only in
accordance with the provisions of Section 31.
It is also evident
from a plain reading of sub-section (2) of Section 30 (supra) that unlike other
final orders and decisions of the Tribunal, those passed in exercise of the
Tribunal 's jurisdiction to punish for contempt are appealable as of right. The
Parliament has made a clear distinction between cases where an appeal lies as a
matter of right and others where it lies subject to the provisions of Section
We are not, in the present
case, dealing with an appeal filed under Section 30 sub-section (2) of the Act,
for the Tribunal has not passed the orders under challenge in exercise of its
jurisdiction to punish for contempt. The orders passed by the Tribunal and
assailed in these appeals are orders that will be appealable under Section
30(1) but only subject to the provisions of Section 31.
31 of the Act extracted above specifically provides for an appeal to the
Supreme Court but stipulates two distinct routes for such an appeal. The first route
to this Court is sanctioned by the Tribunal granting leave to file such an appeal.
Section 31(1) in no uncertain terms forbids grant of leave to appeal to this Court
unless the Tribunal certifies that a point of law of general public importance is
involved in the decision. This implies that Section 31 does not create a vested,
indefeasible or absolute right of filing an appeal to this Court against a final
order or decision of the Tribunal to this Court. Such an appeal must be
preceded by the leave of the Tribunal and such leave must in turn be preceded
by a certificate by the Tribunal that a point of law of general public
importance is involved in the appeal.
second and the only other route to access this Court is also found in Section
31(1) itself. The expression "or it appears to the Supreme Court that the
point is one which ought to be considered by that Court" empowers this
Court to permit the filing of an appeal against any such final decision or
order of the Tribunal .
conjoint reading of Sections 30 and 31 can lead to only one conclusion viz.
there is no vested right of appeal against a final order or decision of the Tribunal
to this Court other than those falling under Section 30(2) of the Act. The only
mode to bring up the matter to this Court in appeal is either by way of
certificate obtained from the Tribunal that decided the matter or by obtaining
leave of this Court under Section31 for filing an appeal depending upon whether
this Court considers the point involved in the case to be one that ought to be considered
incidental question that arises is whether an application for permission to
file an appeal under Section 31 can be moved directly before the Supreme Court
without first approaching the Tribunal for a certificate in terms of the first
part of Section 31(1) of the Act. In the ordinary course the aggrieved party
could perhaps adopt one of the two routes to bring up the matter to this Court but
that does not appear to be the legislative intent evident from Section 31(2)
A careful reading of the
section shows that it not only stipulates the period for making an application
to the Tribunal for grant of leave to appeal to this Court but also stipulates
the period for making an application to this Court for leave of this Court to
file an appeal against the said order sought to be challenged. It is significant
that the period stipulated for filing application to this Court starts running
from the date beginning from the date the application made to the Tribunal for grant
of certificate is refused by the Tribunal .
This implies that the
aggrieved party cannot approach this Court directly for grant of leave to file an
appeal under Section 31(1) read with Section 31(2) of the Act. The scheme of Section
31being that an application for grant of a certificate must first be moved before
the Tribunal, before the aggrieved party can approach this Court for the grant
of leave to file an appeal.
underlying the provision appears to be that if the Tribunal itself grants a certificate
of fitness for filing an appeal, it would be unnecessary for the aggrieved party
to approach this Court for a leave to file such an appeal. An appeal by certificate
would then be maintainable as a matter of right in view of Section 30 which
uses the expression "an appeal shall lie to the Supreme Court". That
appears to us to be the true legal position on a plain reading of the
provisions of Sections 30 and 31.
Vivek Tankha, Additional Solicitor General, however, contended that Section 30
granted an independent right to file an appeal against the final decision or order
of the Tribunal and that Section 31 was only providing an additional mode for
approaching this Court with the leave of the Tribunal . We regret to say that
we have not been able to appreciate that argument.
If Section 30 of the
Act confers a vested right of appeal upon any person aggrieved of a final
decision or order of the Tribunal and if such appeal can be filed before this
Court without much ado, there is no reason why the Act would provide for an
appeal being filed on the basis of a certificate issued by the Tribunal nor
would it make any sense for a party to seek leave of this Court to prefer an
appeal where such an appeal was otherwise maintainable as a matter of right. The
interpretation suggested by Mr. Tankha shall, therefore, have the effect of not
only re-writing Section 30 which specifically uses the words "subject to the
provisions of Section 31" but would make Section 31 wholly redundant and meaningless.
The expression "subject
to the provisions of Section 31"cannot be rendered a surplus age for one of
the salutary rules of interpretation is that the legislature does not waste
words. Each word used in the enactment must be allowed to play its role
howsoever significant or insignificant the same may be in achieving the legislative
intent and promoting legislative object. Although it is unnecessary to refer to
any decisions on the subject, we may briefly re-count some of the pronouncements
of this Court in which the expression "subject to" has beeninterpreted.
K.R.C.S. Balakrishna Chetty & Sons & Co. v. State of Madras (1961)2 SCR
736 this Court was interpreting Section 5 of the Madras General Sales Tax Act,
1939 in which the words "subject to" were used by the legislature. This
Court held that the use of words "subject to" had reference to effectuating
the intention of law and the correct meaning of the expression was
"conditional upon". To the same effect is the decision of this Court in
South India Corporation (P) Ltd. v. The Secretary, Board of Revenue(1964) 4 SCR
280 where this Court held that the expression "subject to" conveyed
the idea of a provision yielding place to another provision or other provisions
to which it is made subject.
In State of Bihar v. BalMukund
Sah (2000) 4 SCC 640 this Court once again reiterated that the words" subject
to the provisions of this Constitution" used in Article 309,necessarily
means that if in the Constitution there is any other provision specifically
dealing with the topics mentioned in the said Article 309,then Article 309 will
be subject to those provisions of the Constitution. In B.S. Vadera v. Union of
India (1968) 3 SCR 575, this Court interpreted the words "subject to the
provisions of any Act", appearing in proviso to Article 309 and observed:
"It is also
significant to note the proviso to art. 309, clearly lays down that 'any rules
so made shall have effect, subject to the provisions of any such Act'. The
clear and unambiguous expression, used in the Constitution, must be given their
full and unrestricted meaning, unless hedged-in, by any limitations. The rules,
which have to be 'subject to the provisions of the Constitution', shall have
effect, 'subject to the provisions of any such Act'. That is, if the
appropriate Legislature has passed an Act, under Art. 309, the rules, framed
under the Proviso, will have effect, subject to that Act; but, in the absence of
any Act, of the appropriate Legislature, on the matter, in our opinion, the
rules, made by the President, or by such person as he may direct, are to have full
effect, both prospectively and, retrospectively."
Chandavarkar S.R. Rao v. Ashalata S. Guram (1986) 4 SCC 447, this Court
declared that the words "notwithstanding" is in contradistinction to the
phrase 'subject to' the latter conveying the idea of a provision yielding place
to another provision or other provisions to which it is madesubject.
is in the light of the above decisions no gainsaying that Section 30 of the Act
is by reason of the use of the words "subject to the provisions of Section
31" made subordinate to the provisions of Section 31.The question whether
an appeal would lie and if so in what circumstances cannot, therefore, be
answered without looking into Section 31 and giving it primacy over the
provisions of Section 30. That is precisely the object which the expression
"subject to the provisions of Section 31" appearing in Section 30(1)
intends to achieve. We have, therefore, no hesitation in rejecting the
submission of Mr. Tankha that the expression "subject to the provisions of
Section 31" are either ornamental or inconsequential nor do we have any
hesitation in holding that right of appeal under Section 30 can be exercised
only in the manner and to the extent it is provided for in Section 31 to which
the said right is made subject.
P.P. Rao, learned senior counsel appearing for the respondent in Criminal
Appeal D. No. 38094 of 2011 also drew our attention to several other statutes
in which an appeal is provided to the Supreme Court but where such provision is
differently worded. For instance, Section 116-A of the Representation of the
People Act, 1951 provides for an appeal to this Court and reads as under: "116-A.
Appeals to Supreme Court - (1) Notwithstanding anything contained in any other
law for the time being in force, an appeal shall lie to the Supreme Court on
any question (whether of law or fact) from every order made by a High Court under
Section 98 or Section 99."
also the Consumer Protection Act, 1986 provides for an appeal to this Court
under Section 23 thereof which reads as under: "23. Appeal - Any person, aggrieved
by an order made by the National Consumer in exercise of its powers by sub-clause
(i) of clause (a) of Section 21, may prefer an appeal against such order to the
Supreme Court within a period of thirty days from the date of the order."
the Terrorists Affected Areas (Special Courts) Act, 1984providing for an appeal
to the Supreme Court under Section 14, starts with a non obstante clause and
creates an in de feasible right of appeal against any judgment, sentence or
order passed by such Court both on facts and law. Similar was the case with
Terrorist and Disruptive Activities (Prevention) Act, 1987 which provided an appeal
to the Supreme Court against any judgment, sentence or order not being an interlocutory
order of a Designated Court both on facts and law. Section 55 of the Monopolies
and Restrictive Trade Practices Act, 1969 also provided an appeal to this Court
on one of the grounds specified in Section 100 of the Code of Civil Procedure,
1908. The Advocates Act, 1961, The Customs Act, 1962 and the Central Excise
Act, 1944 provide that an appeal shall lie to this Court using words different
from those that have been used in Sections 30 and 31 of the Armed Forces Tribunal
follows that the question whether an appeal lies to the Supreme Court and, if
so, in what circumstances and against which orders and on what conditions is a
matter that would have to be seen in the light of the provisions of each such
enactment having regard to the context and the other clauses appearing in the
Act. It is one of the settled canons of interpretation of statutes that every clause
of a statute should be construed with respect to the context and the other
clauses of the Act, so far as possible to make a consistent enactment of the whole
statute or series relating to the subject. Reference to the decisions of this
Court in M. Pentiah v. Muddala Veeramallapa (1961) 2 SCR 295 and Gammon India Ltd.
v. Union of India (1974) 1 SCC 596 should in this regard suffice. In Gammon India
Ltd. (supra) this Court observed: "Every clause of a statute is to be
construed with reference to the context and other provisions of the Act to make
a consistent and harmonious meaning of the statute relating to the subject-matter.
The interpretation of the words will be by looking at the context, the
collocation of the words and the object of the words relating to the
may also gainfully extract the following passage from V. Tulasammav. Sesha
Reddy (1977) 3 SCC 99 where this Court observed: "It is an elementary rule
of construction that no provision of a statute should be construed in isolation
but it should be construed with reference to the context and in the light of other
provisions of the Statute so as, as far as possible, to make a consistent
enactment of the whole statue..."
Tankha, Additional Solicitor General and Ms. Rachana Joshi Issar, counsel
appearing for the appellants in the connected matters lastly argued that there
may be circumstances in which urgent orders may be required to be issued in
which event an application for grant of certificate before the Tribunal may
prevent the aggrieved party from seeking such orders from this Court. The
answer to that question lies in Section 31(3) according to which an appeal is
presumed to be pending until an application for leave to appeal is disposed of
and if the leave is granted until the appeal is disposed of.
An application for
leave to appeal is deemed to have been disposed of at the expiration of the
time within which it may have been made but is not made within that time. That
apart an application for grant of certificate before the Tribunal can be made
even orally and in case the Tribunal is not inclined to grant the certificate
prayed for, the request can be rejected straightaway in which event the aggrieved
party can approach this Court for grant of leave to file an appeal under the second
part of Section 31(1). Once such an application is filed, the appeal is treated
as pending till such time the same is disposed of.
the result these appeals are dismissed reserving liberty to the appellants to
take recourse to Section 31 of the Act. To effectuate that remedy we direct
that the period of limitation for making an application for leave to appeal to
this Court by certificate shall start from the date of this order. We make it
clear that we have not heard learned counsel for the parties on merits of the
controversy nor have we expressed any opinion on any one of the contentions
that may be available to them in law or on facts. No costs.
(GYAN SUDHA MISRA)