2012 (10) TMI 634 - SC - Indian Laws

Armed Forces Tribunal Act maintainability of an appeal - The 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 31 thereof. Held that - According to Section 31(3) 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 - appeals are dismissed reserving liberty to the appellants to take recourse to Section 31 of the Act

Issues Involved:
1. Maintainability of an appeal to the Supreme Court against a final decision or order of the Armed Forces Tribunal under Section 30 of the Armed Forces Tribunal Act, 2007.
2. Interpretation of Sections 30 and 31 of the Armed Forces Tribunal Act, 2007.
3. The requirement of obtaining leave to appeal from the Tribunal or the Supreme Court.
4. The distinction between orders appealable as of right and those requiring leave.
5. The procedural route for filing an appeal to the Supreme Court.

Issue-wise Detailed Analysis:

1. Maintainability of Appeal:
The primary issue was whether an aggrieved party can file an appeal against a final decision or order of the Armed Forces Tribunal directly to the Supreme Court under Section 30 of the Armed Forces Tribunal Act, 2007, without adhering to the procedure outlined in Section 31. The appellants argued that the final orders of the Tribunal are appealable as a matter of right under Section 30. In contrast, the respondents contended that Section 30 must be read in conjunction with Section 31, which requires either the leave of the Tribunal or the Supreme Court for an appeal to be maintainable.

2. Interpretation of Sections 30 and 31:
A thorough reading of Sections 30 and 31 reveals that Section 30 starts with "subject to the provisions of Section 31," indicating that an appeal to the Supreme Court is conditional upon the requirements of Section 31. Section 30(2) explicitly states that orders passed in the exercise of the Tribunal's jurisdiction to punish for contempt are appealable as of right. However, other final orders or decisions require compliance with Section 31.

3. Requirement of Obtaining Leave to Appeal:
Section 31 outlines two distinct routes for appealing to the Supreme Court:
- The Tribunal granting leave to appeal, certifying that a point of law of general public importance is involved.
- The Supreme Court granting leave if it deems the point to be one that ought to be considered by the Court.
Thus, Section 31 does not provide an absolute right to appeal but requires either the Tribunal's certification or the Supreme Court's leave.

4. Distinction Between Orders Appealable as of Right and Those Requiring Leave:
The Act differentiates between orders appealable as of right (such as those punishing for contempt) and other final orders or decisions that require adherence to Section 31. The Parliament's intention was to restrict the right of appeal to cases involving significant legal questions, thereby preventing frivolous appeals.

5. Procedural Route for Filing an Appeal:
The Court clarified that an application for permission to appeal under Section 31 cannot be directly moved before the Supreme Court without first approaching the Tribunal for a certificate. Section 31(2) stipulates the period for making such an application to the Tribunal and then to the Supreme Court if the Tribunal refuses the certificate. This ensures that the Tribunal's certification process is exhausted before the Supreme Court's intervention is sought.

Conclusion:
The appeals were dismissed, affirming that there is no vested right of appeal to the Supreme Court against a final order or decision of the Tribunal except in cases of contempt. The correct procedural route involves first seeking a certificate from the Tribunal. If refused, the aggrieved party may then seek leave from the Supreme Court. The Court emphasized that the legislative intent and statutory interpretation must be respected, ensuring that each provision of the Act is given effect. The period for making an application for leave to appeal to the Supreme Court by certificate shall start from the date of this order. The Court did not express any opinion on the merits of the controversy.

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