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Report No. 169

6.3. Conclusions regarding adjudication of service disputes.-

Hereinbelow, we recommend the following.

6 3.1. The Army, Navy and Air Force Acts should be amended providing for creation of a Tribunal to adjudicate the disputes and complaints with respect to conditions of service of persons appointed to -Army, Navy and Air Force. The Amendment should further provide for a statutory appeal to the Supreme Court against the final decisions and orders pf such a Tribunal. An appeal against the interlocutory orders should be expressly barred. It is hoped that the High Courts would give due regard to the legislative intention behind such a provision, concerned in the public interest of discipline in the Armed Forces. In this behalf, the observations of the Supreme Court in para. 108 (x) of the decision in Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 (635), may be referred to:

"So far as the jurisdiction of the High Courts under Article 226 of the Constitution-or of this Court under Article 32-is concerned, it remains unaffected by the provisions of the Act. Even so, the Court would, while exercising the jurisdiction under the said articles, have due regard to the legislative intent manifested by the provisions of the Act. This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it. The power under Article 226 is conceived to serve the ends of law and not to transgress them."

6.3.2. It would be appropriate to provide further that every service matter should necessarily be decided by a Bench of two members, one of whom shall be a Judicial Member. In case of difference of opinion between the Members of the Bench, the matter shall be referred to the Bench of three members, one of whom shall be a Judicial Member. In such a situation, it would be easier to convince the Supreme Court of the desirability of such a direct appeal mainly on the ground that the necessity of prompt disposal of service disputes in the Armed Forces and in the interest of the discipline therein justify such a course.

While indiscipline in any public service is not desirable and every service dispute should be adjudicated promptly, their need is much more so in the case of Armed Forces. In this context, it must be remembered that the Armed Forces are treated as a separate class even by the Constitution; Article 33 provides that Parliament may, by law, determine to what extent any of the Fundamental Rights (in Part III) shall apply to Armed Forces. Article 311 including clause (2) thereof which contains very important protections to members of service is made inapplicable to defence forces; the article applies only to civil services.

The Service Tribunal so created shall be common to all three services. There shall be four Benches of the Tribunal, viz. at Delhi, Mumbai, Chennai and Calcutta, with the Delhi Bench being treated as the Principal Bench. (The machinery provisions of the Administrative Tribunals Act, 1985 can be imported to the extent necessary, for giving shape to this idea). Such a course will undoubtedly contribute towards a more satisfactory and prompt adjudication of such disputes. But this has to be an independent service tribunal apart from and in addition to the Appellate Tribunal recommended in Chapter V of this Report.

6.3.3. In case such a Tribunal is created, the Parliament may also consider to bring other paramilitary services too under the jurisdiction of this Tribunal.

6.4. Pending the amendment of Army, Navy and Air Force Acts on above lines, the proper thing to do so expedite disposal of petitions in High Courts would be for,the Central Government to make a request to all the Chief Justices of various High Courts in the country to amend the respective High Court rules and to provide that all service disputes concerning the Army, Navy and Air Force shall be entertained and adjudicated only by a division bench of the High Court and that such disputes should be given priority over other matters as far as possible. In such a case, the High Court would mean only one stage of litigation whereafter an appeal may lie to Supreme Court by special leave under Article 136 of the Constitution. This recommendation can be adopted straight away.

Amendment of Army, Navy and AIR Force Acts Back

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