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Report No. 169

Chapter VI

Other Conclusions

6.1. Examination of Views of the Armed Forces Personnel.-

Before finalising this report, the Law Commission had extensive discussions with the retired as well as serving officers of the three armed forces. They not only supported the proposals contained in Chapter V, but also requested that the tribunal so created should not be confined to the orders passed lay courts martial but should also have jurisdiction in respect of disputes relating to conditions of service of the members of these armed forces. They brought to our notice that every year hundreds of writ petitions were being filed by members of the armed forces in several High Courts in India concerning their service matters including questions of seniority, promotion, pension and other conditions of service.

They submitted that in many High Courts such matters were entertained and disposed of by a single judge, against whose orders a writ appeal/special appeal lies to the division bench of that High Court and against the orders of the division bench the appeals are being filed in the Supreme Court with the leave of the court under Article 136(1) of the Constitution. They submitted that in the interest of discipline of the Armed Forces and for the prompt redressal of any grievances concerning their conditions of service, there ought to be a special tribunal against whose orders an appeal should directly lie to the Supreme Court.

The present position, they submitted, was not satisfactory, apart from the fact that the remedy of writ was a restricted remedy where the courts interfered only on certain, limited grounds. They pointed out that even while adjudicating the disputes relating to service conditions, the adjudicating authority should be aware of the discipline and working culture of the Armed Forces to arrive at an appropriate decision.

6.2.1. It would be seen at once that the aforesaid request practically amounts to a request far creation of a service tribunal for Armed Forces more of less on the pattern of Administrative Tribunals created under the Administrative Tribunals Act, 1985 except for the fact that the proposal contemplates a direct statutory appeal to Supreme Court. If so, one must, in this connection, take note of the fact that such a tribunal may fall within the four corners of Article 323A of the Constitution. We must also take notice of the decision of the seven-Judge Bench of the Supreme Court in L. Chandra Kumar v. Union of India, 1997 (8) SCC 261 and the background and development leading up to the said decision.

One must also take note of the mechanism created by the said decision whereunder all service disputes are directed to be raised in the first instance before the administrative tribunal against whose decision, remedy of judicial review under Article 226 is made available, subject to the condition that such a petition for judicial review should be heard by a division bench. One of the considerations underlying this decision was to stop the unmanageable flow of appeals filed in Supreme Court under Article 136 against the decisions of the Administrative Tribunals-indeed even against the decisions rendered by administrative members sitting singly.

The Administrative Tribunals Act, however, did not provide for a statutory appeal as is provided by the Central Excise Act/Customs Act (in certain matters) and the Consumer Protection Act and, therefore, the appeals against the orders of the Administrative Tribunal had to be and were being filed under Article 136. Yet the reluctance of the Supreme Court to entertain appeals in service matters has to be taken into consideration. Of course, had the Administrative Tribunals Act provided a statutory appeal to Supreme Court against the orders of Administrative Tribunals, the decision in L. Chandra Kumar could not have created the alternative mechanism aforesaid. Keeping all the above considerations, we have objectively examined the request of these retired and serving members of the Armed Forces to create a forum for adjudication of their service disputes.

6.2.2. In Bonkya Alias Bharat Shivaji Mane v. State of Maharashtra, AIR 1996 SC 257 the Supreme Court held regarding exclusion of the jurisdiction of the High Court under section 19 of TADA as follows:-

"20. Learned counsel submitted that the appellants should not be denied the opportunity to get the first hearing in the High Court because in the event of their failure in the High Court, they still have a chance to approach this Court under Article 136 of the Constitution of India. The argument is fallacious and runs in the teeth of the express provisions of section 19 of TADA. Section 19(1) and (2) of TADA read as follows:-

"19. Appeal-(1) Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgement, sentence or order, not being an interlocutory order, of a Designated Court to the Supreme Court both on facts and on law.

(2) Except as aforesaid, no appeal or revision shall lie to any Court froth any judgement, sentence or order including an interlocutory order of a Designated Court."

21. A bare perusal of the above section shows that an appeal against the judgement sentence or order, of the Designated Court (except an interlocutory order) shall lie on facts and on law to the Supreme Court and that no appeal or revision shall life to any other Court. In the face of this express provision, there is no scope to urge that the appeal may be transferred to the High Court because of the acquittal of the appellants for the offence punishable under section 3, TADA by us. In a case where the Designated Court finds that no offence under TADA is made out, it is open to the said Court to transfer the case to the regular Criminal Court under section 18 TADA but once the charge is framed and the case is tried by the Designated Court, an appeal against conviction, sentence or acquittal lies only to the Supreme Court and to no other Court."

6.2.3. In S.S. Jain Samiti v. Management Committee, R.J.I. College, Agra, AIR 1996 SC 1211 it was observed:-

"8. The writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum."

6.2.4. An aggrieved party will not have a right of recourse to the writ jurisdiction under Article 226 against the decision of the proposed Tribunal since it is settled law that where adequate remedy of appeal is there, one cannot have recourse to the writ jurisdiction of the High Court under Article 226 of the Constitution of India. Thus when an aggrieved person is conferred right to appeal to the Supreme Court directly against the final judgement or order of the proposed Tribunal, then he will not have a right of recourse to the writ jurisdiction under Article 226 against the decision of the proposed Tribunal.

6.2.5. In the backdrop of the above legal position, we proceed to give our conclusions.

Amendment of Army, Navy and AIR Force Acts Back

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