ARMED FORCES TRIBUNAL (PB) BAR ASSOCIATION

(REGD), NEW DELHI
Web: www.aftpbba.in, email: aftpbba@gmail.com   
   

Dated: 09 Sep 2016

A.K. Trivedi To:

President The President
(M) 9810793387 Armed Forces Tribunal Bar Association
Regional Bench
Brig JS Yadav All AFT Bar Associations
Vice President __________________
(M) 9810768699
CALL FOR OBSERVANCE OF PROTEST BY
Rajiv Manglik WEARING BLACK RIBBON
Secretary
(M) 9811775549 COMPLETE BREAKDOWN OF THE SYSTEM OF
ADMINISTRATION OF JUSTICE FOR DEFENCE
Mohan Kumar PERSONNEL AND THEIR FAMILIES DUE TO NON-
Treasurer APPOINTMENT OF JUDICIAL MEMBERS AND ALSO
(M) 9899110120 INCOHERENT & DISJOINTED PROVISIONS OF THE
ARMED FORCES TRIBUNAL ACT, 2007
Ankur Chhibber
Joint Secretary Hon’ble Mr President,
(M) 9810082847
As you are aware, the non-appointment of Judicial Members
in various Benches of the Armed Forces Tribunal all over the
Executive country and also other problematic provisions of the Armed
Members Forces Tribunal Act, 2007, have resulted in a complete
breakdown of administration of justice for defence
Abhishek Tiwari personnel, ex-servicemen, disabled soldiers and their
(M) 9999478642 families insofar it relates to their pensionary benefits.

Ms.Jagrati Singh Concerned about the current sorry state of affairs, we have
(M) 9250208553 endorsed a letter to the Hon’ble Chief Justice of India with a
copy to the Defence Minister and also the Law Minister,
Ms. Archana which is self explanatory and enclosed.
Ramesh
(M) 9899777361 In view of the above and the issues elaborated in the
enclosed letter, we have decided to wear black ribbons/bands
Rohit Pratap to protest against the said sad and unfortunate situation.
(M) 9350424588 Being responsible citizens committed to litigants and the
society, we have decided this approach rather than abstaining
MK Gaur from work since the latter is against the dicta of the Supreme
(M) 9810278876 Court and it damages the cause of justice, the perception of
the profession of law and could result in injury to the interest
Rajesh Nandal of litigants.
(M) 9560871527
 
 

ARMED FORCES TRIBUNAL (PB) BAR ASSOCIATION

(REGD), NEW DELHI
Web: www.aftpbba.in, email: aftpbba@gmail.com   
   

A.K. Trivedi
President We would hence request you to show solidarity to the cause
(M) 9810793387 and observe a protest day by wearing black ribbons on 22nd
September 2016.
Brig JS Yadav
Vice President Thanking You.
(M) 9810768699
Yours faithfully
Rajiv Manglik
Secretary
(M) 9811775549

Mohan Kumar (Rajiv Manglik)

Treasurer Secretary
(M) 9899110120 Copy to

Ankur Chhibber The Hon’ble Chairperson

Armed Forces Tribunal
Joint Secretary
Principal Bench
(M) 9810082847 West Block – 8
R. K. Puram
New Delhi – 110066

Executive
Members

Abhishek Tiwari
(M) 9999478642

Ms. Jagrati Singh

(M) 9250208553

Ms. Archana
Ramesh
(M) 9899777361

Rohit Pratap
(M) 9350424588

MK Gaur
(M) 9810278876

Rajesh Nandal
(M) 9560871527
 
 ARMED FORCES TRIBUNAL (PB) BAR ASSOCIATION
(REGD), NEW DELHI
Web: www.aftpbba.in, email: aftpbba@gmail.com   
   
Dated: 09 Sep 2016

A.K. Trivedi
President To:
(M) 9810793387 Hon’ble Mr Justice TS Thakur
Chief Justice of India
Brig JS Yadav Supreme Court of India
Vice President New Delhi
(M) 9810768699
COMPLETE BREAKDOWN OF THE SYSTEM OF
Rajiv Manglik ADMINISTRATION OF JUSTICE FOR DEFENCE
Secretary PERSONNEL AND THEIR FAMILIES DUE TO NON-
(M) 9811775549
APPOINTMENT OF JUDICIAL MEMBERS AND ALSO
Mohan Kumar INCOHERENT & DISJOINTED PROVISIONS OF THE
Treasurer ARMED FORCES TRIBUNAL ACT, 2007
(M) 9899110120

Ankur Chhibber Hon’ble Sir,

Joint Secretary
(M) 9810082847
1. It is with great pain and anguish that we address this letter to
you in order to apprise you of the complete breakdown of the
system of administration of justice for defence personnel and their
families due to non-appointment of Judicial Members in the
Armed Forces Tribunal (AFT) and other arbitrary provisions of the
Executive
Armed Forces Tribunal Act, 2007, which have not only resulted in
Members
a grave threat to administration of justice but have also placed the
military community at a major disadvantage as compared to their
Abhishek Tiwari
civilian counterparts also resulting in blockage of effective access
(M) 9999478642
to justice and judicial review. To keep the subject brief, we would
like to highlight the following important issues in the succeeding
Ms.Jagrati Singh
paragraphs.
(M) 9250208553
FUNCTIONING OF THE AFT HAS COME TO A COMPLETE
Ms. Archana
Ramesh STANDSTILL DUE TO NON-APPOINTMENT OF JUDICIAL
(M) 9899777361 MEMBERS
2. Due to non-appointment of Judicial Members to the Tribunal,
Rohit Pratap the work at the AFT has come almost to a standstill since there are
(M) 9350424588 only 5 Benches functional out of a total of 17 which has resulted in
a lack of access to justice to military personnel, disabled soldiers
MK Gaur and even widows of defence personnel. While it is claimed that
(M) 9810278876 there are not enough applicants for the posts, it is learnt that
appointments already approved by the Selection Committee have
Rajesh Nandal not yet been notified. The Central Government has also taken no
(M) 9560871527 steps to bring Section 6(2) of the Act in line with Section 6(2)(b) of
 
the Administrative Tribunals Act, 1985, thereby making practicing
 
 

ARMED FORCES TRIBUNAL (PB) BAR ASSOCIATION

(REGD), NEW DELHI
Web: www.aftpbba.in, email: aftpbba@gmail.com   
   

A.K. Trivedi lawyers eligible for appointment in case of dearth of applicants,

President since if a lawyer is eligible to be appointed as a Judge of a
(M) 9810793387 Constitutional Court under Article 217(2), he/she is most definitely
eligible to be appointed as a Member of a Statutory Tribunal.
Brig JS Yadav Moreover, this aspect intertwined with the aspect of shortage of
Vice President Judges as recommended vide Paragraphs 4.9 to 4.16 of the Report
(M) 9810768699 of the Parliamentary Standing Committee on Defence (18th Report,
Lok Sabha, 2012-2013) has still not been acted upon by the
Rajiv Manglik Central Government.
Secretary
(M) 9811775549 THE MYTH OF QUICKER DISPENSATION OF JUSTICE
3. That the reason articulated by the Central Government to
Mohan Kumar create the AFT was ‘speedy and less expensive dispensation of
Treasurer justice’, but with the passing years, it emerges that perhaps the
(M) 9899110120 actual reason was simply to take out the jurisdiction of such
matters from our inherently independent Constitutional Courts and
Ankur Chhibber bring them under a departmental tribunal which functions under
Joint Secretary the Ministry of Defence. We say so since as per the dicta of Lt Col
(M) 9810082847 Prithi Pal Singh Bedi v. Union of India 1982 AIR on directions
of which the AFT was created, it was only to be constituted as an
appellate body for court martial appeals comprising of an
independent body of “non military personnel or civil personnel” to
sit in appeal over verdicts rendered by courts-martial, but
Executive ultimately a body was created which was not manned by civilians
Members but had one retired senior officer of the defence services as a
Member on every bench and was also given original jurisdiction
Abhishek Tiwari over service matters. The myth of quicker dispensation of justice
(M) 9999478642 and lowering of pendency evaporates in light of the fact that while
the total pendency of cases was only approximately 9000 when the
Ms.Jagrati Singh jurisdiction was with the regular judiciary at the time when the
(M) 9250208553 concept of the AFT was discussed by the Parliamentary
Committee just before enactment of the Act, it has now increased
Ms. Archana to more than 16000 after creation of the AFT.
Ramesh
(M) 9899777361 LACK OF ANY FORM OF JUDICIAL REVIEW OVER
ORDERS OF THE ARMED FORCES TRIBUNAL
Rohit Pratap
(M) 9350424588 4. The biggest disappointment with the creation of the AFT has
come in the form of a lack of any effective remedy of judicial
MK Gaur review over its orders thereby making it the first and the last court
(M) 9810278876 for litigants. Though an appeal in “points of law of general public
importance” or in matters which the Supreme Court considers so
Rajesh Nandal exceptional that the highest court of the land ought to hear them,
(M) 9560871527 was provided in the form of Section 31 of the Act, it was expected
that all other issues would be challengeable before the High Courts
 

in view of the fact that the powers of High Courts under Articles
 

ARMED FORCES TRIBUNAL (PB) BAR ASSOCIATION

(REGD), NEW DELHI
Web: www.aftpbba.in, email: aftpbba@gmail.com   
   

A.K. Trivedi 226 & 227 were preserved by Section 14 of the Act and since the
President Parliamentary Committee which had examined Section 31 had
(M) 9810793387 itself recommended judicial review by High Courts (Vide
Paragraph 90 of Parliamentary Standing Committee on Defence,
Brig JS Yadav 18th Report, Lok Sabha, 2012-2013) and which was also in line
Vice President with the law laid down by the Constitution Bench of the Supreme
(M) 9810768699 Court in L Chandra Kumar v. Union of India &Ors. (1997) 3
SCC 261 and the Three Judge Bench in Columbia Sportswear Co.
Rajiv Manglik v. DIT, (2012) 11 SCC 224. In any case, 99.9% of the cases before
Secretary the AFT are matters personal to litigants and without any hint of
(M) 9811775549 ‘general public importance’. While the High Courts continued to
entertain writs against AFT orders, the situation changed after a
Mohan Kumar plea to the effect filed by the Ministry of Defence which was later
Treasurer allowed, and has potentially left litigants remediless. On one hand
(M) 9899110120 while there is anyway minimal scope of appeal in the Supreme
Court, on the other hand, it is well known that defence personnel,
Ankur Chhibber ex-servicemen, disabled soldiers and their families can hardly
Joint Secretary afford to approach the Supreme Court from far off places thereby
(M) 9810082847 not only making justice inaccessible and unaffordable, but also
converting the Supreme Court into the first appellate Court for
such routine and even mundane service matters as was specifically
deprecated in L Chandrakumar’s case. The Central Government
has hence completely ignored the recommendation of the
Executive Parliamentary Standing Committee on Defence, 18th Report, Lok
Members Sabha, 2012-2013 made in Paragraph 90 which itself had approved
Section 31 with a caveat that challenges would still lie before the
Abhishek Tiwari High Courts as per L Chandrakumar’s dicta and also has not yet
(M) 9999478642 acted upon a similar recommendation contained in Paragraph 7.14
of the Report of the High Level Committee of Experts on
Ms.Jagrati Singh Litigation constituted by Ministry of Defence (2015) which has
(M) 9250208553 also favoured jurisdiction with the High Courts. It may be recalled
that while for defence community, the AFT is the first and the last
Ms. Archana court, their exactly similarly placed civilian counterparts can
Ramesh simply challenge orders of the Central Administrative Tribunal
(M) 9899777361 (CAT) before the accessible High Courts within their own States
and then also approach the Supreme Court in case they are still
Rohit Pratap dissatisfied. It is hard to imagine a disabled soldier or a widow in
(M) 9350424588 Kerala or West Bengal to approach the Supreme Court concerning
his or her case involving a few hundred rupees and then try to
MK Gaur prove that the case involves a ‘point of law of general public
(M) 9810278876 importance’. Hence, while civilians get a three tier system of
justice and judicial review, the military counterparts are
Rajesh Nandal encumbered with only the AFT which is practically the Court of
(M) 9560871527 first instance as also the last instance.
 
 

ARMED FORCES TRIBUNAL (PB) BAR ASSOCIATION

(REGD), NEW DELHI
Web: www.aftpbba.in, email: aftpbba@gmail.com   
   

A.K. Trivedi TRIBUNAL FUNCTIONING UNDER THE MINISTRY OF

President DEFENCE
(M) 9810793387
5. That the AFT continues to function under the Ministry of
Defence despite the fact that the Constitution Bench in Union of
Brig JS Yadav
India v. R Gandhi 2010 (6) SCR 857 directed in Para 56 (xiii) that
Vice President
tribunals cannot function under the Ministries against whom they
(M) 9810768699
have to pass orders and should be placed under the Ministry of
Law & Justice. Naturally, a Tribunal cannot be expected to rely for
Rajiv Manglik
facilities, rule-making, administration and appointments on that
Secretary
very Ministry which is the opposite party in all litigation and
(M) 9811775549
against which all orders are supposed to be passed. The Defence
Secretary also continues to be a part of the Selection Committee
Mohan Kumar
for Members of the AFT and also has a role to play in the same
Treasurer
Selection Committee at the time of re-appointment of Members.
(M) 9899110120
The Defence Secretary and other bureaucrats also have a role to
play in the committee for investigation of Complaints against
Ankur Chhibber
Members of AFT [Rule 4 of The Armed Forces Tribunal
Joint Secretary
(Procedure for investigation of misbehaviour or incapacity of
(M) 9810082847
Chairperson, Vice Chairperson and other Members) Rules, 2008],
which again threatens the very basic thread of judicial
independence and separation of powers. All such actions have
been deprecated by the Constitution Bench of the Supreme Court
in the famous National Tax Tribunal case Madras Bar
Association v. Union of India (2014) 10 SCC 1, on which the
Executive
Central Government has taken no action for other tribunals,
Members
including the AFT. The AFT happens to be the most affected by
such lack of independence and threat to separation of powers since
Abhishek Tiwari
unlike other Tribunals, the entire litigation in AFT is against the
(M) 9999478642
same Ministry which controls it.
Ms.Jagrati Singh LACK OF POWERS OF CIVIL CONTEMPT AND ANY
(M) 9250208553
NOTIFIED PROCEDURE FOR EXECUTION
Ms. Archana 6. That the AFT does not possess any power of civil contempt or
Ramesh even a procedure for execution of its orders or any other coercive
(M) 9899777361 means for implementation. The AFT only possesses the power of
Criminal Contempt. The AFT has been kept toothless despite the
Rohit Pratap fact that many jurists have raised this concern time and again. The
(M) 9350424588 implementation of its orders is hence personality-based and also
being effectuated only on the basis of decisions of the High Courts
MK Gaur and the Supreme Court which provide that orders of tribunals need
(M) 9810278876 to be implemented even in the absence of any such specific
statutory provision. No action has been taken inspite of the
Rajesh Nandal assurance given by the Govt. to the Hon’ble Supreme Court on 04
(M) 9560871527 Apr 2011 in case of Civil Appeal No 2145/2011 in Fyaz Kahn vs.
 
Union of India & Ors.
 

ARMED FORCES TRIBUNAL (PB) BAR ASSOCIATION

(REGD), NEW DELHI
Web: www.aftpbba.in, email: aftpbba@gmail.com   
   

A.K. Trivedi 7. We would hence request you, Hon’ble Sir, to ensure that
President appointments of Judicial Members are made at the earliest and also
(M) 9810793387
that an effective remedy to AFT orders is provided at par with
Brig JS Yadav similarly placed civilian employees, before the High Courts, which
Vice President being Constitutional Courts not only inspire confidence, but are
(M) 9810768699 also accessible and affordable for litigants. We further humbly
Rajiv Manglik request you to kindly address and consider other issues as raised
Secretary above.
(M) 9811775549
8. Hon’ble Sir, this communication may kindly be treated
Mohan Kumar
Treasurer as a ‘Letter Petition’ in case you may so deem appropriate.
(M) 9899110120

Ankur Chhibber Thanking You,

Joint Secretary
(M) 9810082847 Yours faithfully

Executive (Rajiv Manglik)

Members Secretary

Copy to: -
Abhishek Tiwari
(M) 9999478642 1. Sh Manohar Parrikar
Raksha Mantri
Ms.Jagrati Singh Ministry of Defence
(M) 9250208553 South Block
New Delhi- 110 011
Ms. Archana
Ramesh 2. Sh Ravi Shankar Prasad
(M) 9899777361 Minister of Law & Justice
Shastri Bhawan
Rohit Pratap New Delhi- 110 001
(M) 9350424588
3. Chairperson
MK Gaur Armed Forces Tribunal (PB)
(M) 9810278876 West Block – 8
R. K. Puram
Rajesh Nandal New Delhi - 110066
(M) 9560871527