Can Armed Forces Tribunal Adjudicate On Vires Of Statutory Legislations Other Than AFT Act? Delhi High Court Refers Issue To Full Bench

The Delhi High Court has referred the issue regarding competency of the Armed Forces Tribunal (AFT) to adjudicate on the vires of statutory legislations other than the AFT Act, 2007, to a Full Bench.

A Writ Petition was filed by a person seeking quashing of the Order by which he was discharged from his services from the Indian Navy.

A Division Bench of Justice C. Hari Shankar and Justice Om Prakash Shukla referred the following questions for adjudication by a Full Bench to be constituted by the Chief Justice –

“(i) Whether the Armed Forces Tribunal is competent to adjudicate on the vires of statutory legislations other than the Armed Forces Tribunals Act, such as the provisions of Section 9 of the Navy Act, which is involved in the present case?

(ii) Whether the decision in Neelam Chahar (supra) is to be understood as empowering the Armed Forces Tribunal with jurisdiction to adjudicate on the vires of statutory legislations, such as the provisions of the Navy Act?

(iii) Whether, if such an interpretation is adopted, it would extend to all Tribunals, even if they are not constituted under Articles 323A and 323B of the Constitution of India?”

Senior Advocate Trideep Pais represented the Petitioner while ASG Chetan Sharma represented the Respondents.

Factual Background

The Petitioner was enrolled as a sailor in the Indian Navy at Senior Secondary Recruit (SSR) whose services were administratively terminated as “Services No Longer Required” under Regulation 279 of Regulations Navy Part-III (statutory) in the year 2017. During his employment with the Indian Navy, he slowly started identifying as female and wanted to appear and express himself in his female gender identity. He informed the Naval authorities that he was suffering from gender dysphoria, and needed medical intervention. However, allegedly, the Respondent failed to pay any heed to his concern and subjected him to psychiatric counselling. Left with no option, the Petitioner underwent Sex Re-Assignment Surgery in a private hospital in Delhi in the year 2016. On finding out about the said surgery, the Respondents allegedly confined the Petitioner to a psychiatric ward for five months without any basis, whatsoever, and subjected him to innumerable medical assessments.

Subsequently, when the Petitioner re-joined work in 2017, he was served with a show-cause notice (SCN), to which he duly replied. However, thereafter, the Respondents communicated the order of discharge against the Petitioner from the Indian Navy on the basis that “the existing service rules and regulations do not permit the sailor’s continued employment owing to his altered gender status, medical condition and resultant employability restrictions.” However, as per the Respondents, the Petitioner was mainly discharged from service for ‘misconduct’ i.e., being absent without leave 8 times from enrolment. This order of discharge was challenged before the High Court. According to the Respondents, AFT was a Court of first instance and the Petitioner had an alternative and efficacious remedy available before the AFT and as such ought to have approached the same for the reliefs as sought in the Writ Petition.

Court’s Observations

The High Court in view of the facts and circumstances of the case, observed, “… this Court finds that the use of the words “jurisdiction” and “service matters” by the word “all”, provides an all-inclusive power to the learned AFT to adjudicate all matters relating to service of Armed Forces personnel.”

The Court noted that the Administrative Tribunals are constituted under Article 323A of the Constitution of India and in contrast, the AFT cannot be said to be a Tribunal constituted under Article 323A.

“The service disputes of the Armed Forces do not fall within the subjects enumerated in Article 323B either. Further, the AFT has been constituted by an Act of the Parliament i.e., the AFT Act of 2007, whereas the Administrative Tribunals, derive their power from the Constitution of India”, it added.

The counsel for the Petitioner tried to distinguish the ratio in Squardron Leader Neelam Chahar v. Union of India and others [W.P (C) 9139/2019] with the present case and submitted that the ratio in that case is not applicable to the present case, since Neelam Chahar case dealt with the issue of AFT being competent to entertain challenges to the validity of a policy and not a statutory provision, as is sought to be done in the present case.

The Court in view of the above case, said, “A reading of the aforesaid judgment brings out the fact that the Full Bench was merely examining the competency of the AFT to adjudicate the vires of the subordinate legislations, rules, regulations, notifications, and circulars etc., and not Central Acts like the Army Act, Navy Act or the Air Force Act. However, the underscored words in paragraph 12 of the above excerpt reveal that the Full Bench has also expressed the view that the AFT can adjudicate on the vires of statutory provisions. In fact, the Full Bench has upheld the jurisdiction of the AFT to adjudicate on the legality of the Air Headquarter Human Resource Policy because it falls within the term “vires of statutory provision”, as employed in L. Chandra Kumar (supra).”

The Court further remarked that since Neelam Chahar case has been rendered by a Full Bench of three Judges of the Court, it is appropriate, in the interests of judicial discipline, to refer these issues to the Full Bench for decision.

“An incidental aspect of concern is whether, if the AFT is to be held to be competent to adjudicate on the vires of parliamentary legislations, would this principle extend to all Tribunals, even though they are not constituted under Article 323A or Article 323B of the Constitution of India”, it also noted.

Accordingly, the High Court placed the case before the Chief Justice for appropriate Orders.

Cause Title- Manish Kumar Giri alias Sabi Giri v. Union of India and Ors. (Neutral Citation: 2025:DHC:8653-DB)

Appearance:

Petitioner: Senior Advocate Trideep Pais, Advocates Amritananda Chakravorty, Mihir Samson, Shreya Munoth, Sitamsini Cherukumalli, Saloni Ambastha, Sakshi Jain, and Pradip Kumar Singh.

Respondents: ASG Chetan Sharma, Advocates Piyush Beriwal, Ruchita Srivastava, Amit Gupta, and Vidur Dwivedi.

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