SC seeks Centre’s response on plea to divest defence ministry’s control over AFT

ByAbraham Thomas
Oct 14, 2023 11:29 AM IST

The association had challenged the transfer of judicial member Justice Dharam Chand Chaudhary from Chandigarh to the Kolkata bench of the tribunal

The Supreme Court on Friday sought the Centre’s response to a petition seeking to divest the Armed Forces Tribunal (AFT) from the control of the Ministry of Defence (MoD).

Supreme Court of India (Representative Photo)
Supreme Court of India (Representative Photo)

A three-judge bench presided by Chief Justice of India D Y Chandrachud was hearing a petition filed by an association of lawyers of the Armed Forces Tribunal Chandigarh Bar Association (AFTCBA), who alleged that the MoD, which is fighting several cases before the tribunal, could try to hijack the functioning of the AFT.

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The association had challenged the transfer of judicial member Justice Dharam Chand Chaudhary from Chandigarh to the Kolkata bench of the tribunal.

The order was issued last month by the AFT chairperson as he had initiated contempt proceedings against a senior government functionary in MoD over the non-execution of a December 2017 order of the tribunal directing payment of pension to retired Naib Subedars of the Indian Army.

The bar association also claimed that before the transfer, the execution petitions heard by Justice Chaudhary were transferred to the AFT principal bench in Delhi.

The bench also comprising Justice JB Pardiwala and Justice Manoj Misra refused to interfere with the transfer after going through a note submitted by AFT chairperson justice (retd) Rajendra Menon explaining the circumstances of the routine transfer.

The bench, however, agreed to examine a larger issue of whether AFT could remain under the administrative control of MoD considering the overarching interest of MoD in matters before AFT or the reins of the tribunal should go into the hands of the Ministry of Law and Justice. AFT since its inception in 2009 has been under the defence ministry’s administrative control.

The AFT Bar Association had flagged this concern in its petition highlighting past Supreme Court decisions which talked about the independence of tribunals.

Attorney General R Venkataramani appeared for MoD and rubbished the claims made by the petitioner calling it a “collusive” attempt that was an abuse of the process of law.

“The head of the institution must be trusted with what he is doing in the public interest or else it can open up a can of worms,” the AG said.

He further disclosed that the way execution and contempt petitions are being heard in the AFT, the ministry sensed “some kind of a racket” in the filing of disability pension claims. “It is deeply disturbing as it is a racket for seeking disability pension. It has become a business,” Venkataramani added.

The note shared by the AFT chairperson attested that justice Chaudhary’s transfer had nothing to do with the cases being heard by him.

The note further mentioned that the regional benches of Kolkata and Guwahati were not functioning due to the absence of a judicial member and since Chandigarh is the only bench having a surplus of judicial members, three to be precise, justice Chaudhary being the seniormost and experienced judicial member was temporarily shifted to Kolkata till the vacancy gets filled.

The chairperson also denied the claim that the matters heard by justice Chaudhary had been transferred to the principal bench. The top court said that such decisions were within the administrative power of the chairperson and some free play must be given in the joints for the chairperson to perform his duties.

“We have no reason to doubt the chairperson. Looking into the circumstances he has disclosed, we need not go into what the AG has said,” the bench noted.

Advocate K Parmeshwar appearing for the AFT bar association argued, “We fear the entire tribunal is hijacked by the MoD. There are several instances for saying so. Our petition also contains a prayer to divest the AFT from MoD’s control.”

The bench replied, “We would like to consider taking out the tribunal from the control of the Ministry (MoD) and directed the Centre to file its response on this aspect within a month.

Perusing the report, the CJI said that the chairperson had explained that it was a temporary transfer.

On Monday, the top court had observed that justice Chaudhary’s transfer merits “deeper scrutiny” and called for a report from the chairperson.

The transfer order was passed on September 25. The Court had further directed justice Chaudhary not to assume charge at Kolkata and ordered that the execution petition in question heard by justice Chaudhary shall not be disposed of without permission from the top court.

The Court gave the Union government three weeks to submit its reply.

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