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Report No. 169

Chapter VII

Recommendations

7.1 To sum up, the Law Commission makes the following recommendations:-

(a) The Army Act, 1950 be amended providing for the creation of an Armed Forces Appellate Tribunal which shall entertain appeals against the sentence/ finding/order of the courts martial under the Army Act. The appeals can be preferred against the final orders of the courts martial. It shall be open to the person concerned either to file an appeal before the tribunal directly against the final order, finding or sentence of the courts martial or to adopt the remedy under sub-section (2) of section 164 in the first instance and then approach the Appellate Tribunal. The choice should be left to the aggrieved person. Indeed, it would be more appropriate to delete sub-section (2) of section 164 of the Army Act and the corresponding provision in the Air Force Act. Similarly, the provisions in the Navy Act relating to judicial review by the Judge Advocate-General too may be deleted.

(Para. 5.1, Chapter V, supra)

(b) Such appellate tribunal shall consist of-(1) a retired Judge of the Supreme Court or a retired Chief Justice of the High Court who shall preside over the tribunal (President), (2) a retired officer of the Army of the rank of Major-General or above, or a retired officer of the Air Force of the rank of Air Vice Marshal or a retired officer of the Navy of the rank of Rear Admiral, and (3) a retired Judge Advocate-General of the Army/Air Force/Navy. The term of the President and members shall be four years.

However, if an appeal is preferred by a person holding a rank higher than the rank held by the person appointed as member at the time of his retirement from category 2 above, the President of the Tribunal will write to the Central Government to nominate a retired officer for the case as a member of the Tribunal, who shall be of a rank not lower than that of the person who has preferred an appeal, in place of the member from category 2. The terms and conditions of members shall be as may be prescribed by the Central Government.

[Para. 5.1.1, Chapter V, supra]

(c) The quorum for the tribunal shall be two, but no decision shall be rendered by the tribunal except with the participation of the President.

[Para. 5.1.2, Chapter V, supra]

(d) Against the orders of the tribunal, an appeal shall lie to the Supreme Court and subject to such appeal, if any, and the orders passed therein, the decision of the tribunal shall be final.

[Para. 5.1.4, Chapter V, supra]

(e) The Navy and Air Force Acts may be so amended as to adopt the appellate tribunal created by the Army Act for their purposes as well, with all the above features.

[Para. 5.1.3, Chapter V, supra]

7.2. (a) It would contribute to greater discipline and prompt disposal of service disputes pertaining to the three Armed Forces if a separate Service Tribunal is created. 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 of 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 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 ingnore the Saw nor can it override it. The power under Article 226 is conceived to serve the ends of law and not to transgress them."

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, 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.

[Paras. 6.3.1 and 6.3.2, Chapter VI, supra]

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

[Para. 6.3.3, Chapter VI, supra]

An aggrieved party will not have a right of recourse to the will 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.

[Para. 6.3.4, Chapter VI, supra]

(b) Pending the amendments of the Army. Navy and Air Force Acts as proposed in paragraph 7.2 (a), the Central Government may request the Hon'ble Chief Justices of various High Courts to amend their respective High Court rules to provide that all service disputes concerning the said three Armed Forces should be heard only by a division bench and that such disputes should be disposed of as promptly as possible in the circumstances but not later than six months.

[Para. 6.4, Chapter VI, supra]

Mr. Justice B.P. Jeevan Reedy (Retd.), Chairman.

Ms. Justice Leila Seth (Retd.), Member.

Dr. N.M. Ghatate, Member.

Dr. Subhash C. Jain, Member-secretary.

Delhi,
Dated: 29th April, 1999.



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