Sham Das D vs Union Of India And Others

M.A No. 2118 of 2019:

Heard learned counsel for the parties on the point of delay.

The delay of 87 days in filing M.A No. 2117 of 2019 has been explained by the applicant. Keeping in view the averments made in the application

and finding the same to be bona fide, we allow the application and condone the delay in filing the M.A.

M.A No. 2117 of 2019:

This is an application filed by the applicant seeking leave to appeal before the Hon`ble Supreme Court in exercise of the powers conferred on us under

Section 31 of the Armed Forces Tribunal Act, 2007, with regard to Annexure Al order dated 24.05.2019 passed by a Coordinate Bench of this

Tribunal.

The brief facts necessary for the disposal of the matter indicate that, the applicant herein challenged the constitutional validity of Rule 147A of the

Army Rules, 1954 (""Army Rules"", in short) on the ground that it is ultra vires to the provisions of Articles 14 and 21 of the Constitution of India.

Various other grounds were also raised before the Tribunal. While considering the powers available to this Tribunal with regard to the constitutional

validity of the statutory provision in the order in question dated 24.05.2019, the Coordinate Bench, after examining the legal position in detail,

particularly the law laid down by the Hon'ble Supreme Court in the case of L. Chandra Kumar v. Union of India and others (1997) 3 SCC 261, came

to the conclusion that there is a marked difference between the powers available to an Administrative Tribunal constituted under Section 14 of the

Central Administrative Tribunals Act and the Armed Forces Tribunal constituted under a different statute, i.e. the Armed Forces Tribunal Act, 2007, it

was spelt out in the order, after taking note of Section 14 of the Administrative Tribunals Act and Section 14 of the Armed Forces Tribunal Act, 2007

that under the Central Administrative Tribunal Act, power akin to Article 226 of the Constitution is available with the Tribunal, whereas the same is

not available under the Armed Forces Tribunal Act. Thereafter, a clear finding has been recorded from Paragraphs 11 onwards, wherein certain

judgments of the Hon'ble Supreme Court have also been referred to, that this Tribunal has no jurisdiction to examine the constitutional validity of a

statutory provision of the order. However, having done so, the Bench took note of the provisions of the Rule 147A of the Army Rules and made

certain observations, which indicate that the Bench was of the considered view that it seems to be constitutionally valid. The applicant is aggrieved by

this part of the order. It is the contention of the learned counsel that once the Tribunal came to the conclusion that it had no jurisdiction to examine the

constitutional validity of a statutory provision, it should have permitted the applicant to take recourse to the remedy available and by entering into

certain aspects of the matter on merits, according to the learned counsel, the finding recorded, in fact, is without jurisdiction as it has caused great

prejudice to the applicant. Under these circumstances, for challenging the second part of the finding, as indicated herein above, this application has

been filed seeking leave to appeal to the Hon'ble Supreme Court.

Mr. Bhati, learned Sr. CGSC appearing for the respondents tried to justify the action and argued that the statutory provision seems to be in order

and in accordance with law.

We have bestowed our anxious consideration and we find that once a Court or a Tribunal finds that it lacks jurisdiction to deal with a particular legal

issue or dispute, the principle of law is well settled that the Court or the Tribunal or the authority should refrain from entering into or making any

comment on the issue, instead should leave it to the litigants to take recourse to a remedy in accordance with law. When the Coordinate Bench took

the view that it had no jurisdiction to deal with the constitutional validity of the statutory provision, the Tribunal should have left it open to the applicant

to seek remedy available to him under the law. Instead, as stated by learned counsel for the applicant and in our considered view also, the

observations or finding on merit of the legal question would adversely affect the rights of the applicant. Even when the matter went to the Delhi High

Court in R.P No. 32 of 2019, in the order passed on 31.07.2019, the Division Bench of the High Court has made certain observations with regard to

the manner in which the issue has been dealt with by the Tribunal. However, in the facts and circumstances of the case, we need not refer to them in

detail.

Having held so, the question before us would be, as to whether the applicant should be permitted to take recourse to the remedies available to him

as prayed for or is it a fit case where we should exercise our suo motu power, and recall the second part of the order, which, in our considered

opinion, is not in accordance with law and leave the parties to take recourse to the remedies as may be available to them

We are of the considered view that the observations made with regard to the validity of the statutory provision is beyond the jurisdiction of the

Tribunal, the Tribunal should not have commented or made any observations on the legal issue. Having done so, it is a case where the Tribunal,

without jurisdiction, had entered into an area of adjudication which was not permissible. That being the factual position this is nothing but an error

apparent on the face of law and if there is an error apparent on the face of law, this Tribunal can always exercise its suo motu powers. That being so,

we are of the considered view that the interest of justice mandates us to exercise our suo motu powers, recall the order and grant liberty to the parties

to proceed in accordance with law.

Accordingly, instead of exercising powers under Section 31 of the AFT Act, we exercise the power to review (suo motu) and hold that the second

part of the order, wherein certain observations and considerations have been made with regard to the validity of the statutory provision viz. Rule 147A

of the Army Rules is an error apparent on the face of the law and all such observations and considerations made are recalled.

We, therefore, allow this application in part, recall the order wherein the provisions of Rule 147A of the Army Rules are considered, all observations

and comments made with regard to this Rule are recalled and the parties are granted liberty to take recourse to legal remedies available to them in the

matter of challenge to Rule 147A of the Army Rules.

We are informed that the Court Martial proceedings held against the applicant are pending consideration on its merit before a Coordinate Bench of

this Tribunal, it is part heard and the proceedings are going on. We clarify that nothing stated in this order would stand in the way of the pending

proceedings and the Bench, which is dealing with the Court Martial proceedings, is free to proceed with the matter in accordance with law, without

being influenced by the observations made in this order. Dasti.