Supreme Court Refuses To Interfere With Transfer Of AFT Chandigarh Bench Judge, Agrees To Examine Plea To Remove Tribunal From Defence Ministry's Control

The Supreme Court today (13.10.2023) sought the response of the Union of India on a plea seeking to divest the control of the Armed Forces Tribunal from the Ministry of Defence.

The bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra was hearing a plea filed by the Armed Forces Tribunal Chandigarh Bar Association (AFTCBA) alleging that Justice Dharam Chand Chaudhary, a Judicial Member of AFT Chandigarh, was transferred to the Calcutta bench of the AFT, just before he was about to hear a contempt case against an officer of Defence Accounts Department for not implementing orders regarding grant of disability pension to army personnel, upon the insistence of the Defence Ministry. As per the plea, the Defence Ministry was interfering in the judicial process and had "hijacked" the tribunal. 

While the bench rejected the prayer challenging the transfer of Justice Chaudhary, it kept the prayer concerning control of the tribunal alive. 

It may be recalled that the Supreme Court had directed the Chairperson of the Principal Bench of the Armed Forces Tribunal (AFT) to file in a sealed cover, a report to the Registrar General of Supreme Court, indicating the circumstances under which he had passed an order of transfer of Justice DC Chaudhary from the regional bench of AFT in Chandigarh to regional bench of AFT in Calcutta. Today, the report of the AFT Chairperson was produced before the bench.

As per the report, the transfer was made by the Chairperson of the Principal Bench of the AFT in his administrative capacity to fill the deficit of a judicial member in the Calcutta bench of the AFT. The report stated that both the Guwahati as well as the Calcutta benches of the AFT were not functioning owing to the non-availability of a judicial member in these benches. As an ad-hoc arrangement, judicial members were invited from time to time from the Lucknow bench or the Principal bench to Calcutta and Guwahati benches to conduct proceedings and make these regional tribunals functional. However, the same was not feasible. Since the Chandigarh bench was the only bench with a surplus judicial member, as per the report, Justice Chaudhary, being the senior most member, was transferred temporarily to Calcutta bench till the post of a judicial member in the Calcutta bench was filled up.

Attorney General for India R Venkataramani, appearing for the respondents in the matter opposed the plea and stated that it was "an abuse of process".  

"There are a lots of cases where there is a sense of impropriety."

Referring to the report, the AG then stated that "the head of the institution should be trusted with what he is doing in public interest".

After the AG's submission, the CJI asked the petitioner :

"Is this(transfer) not in the power of the chairperson? How can we say transfer this person and not that person?"

Advocate K Parmeshwar, appearing for the petitioner, submitted that the transfer was made at the behest of the government. However, the CJI was disinclined to accept the submission and remarked–

"The circumstances disclosed are purely administrative. How can the bar object? We issued notice and formulated what was worrying us. Now having looked at the report, we can't say that this report is malafide. Now we can't ask Justice Menon(Justice Rajendra Menon, AFT Chairperson) why can't you transfer someone else? He has said that this was the only bench with judicial surplus. He says Justice Chaudhary, being the senior most member, has been transferred temporarily till the post in Calcutta is filled up. We will record his statement that it is temporary."

At this juncture, Parmeshwar asserted that the entire tribunal was "hijacked by the Defence Ministry". 

Since the bench expressed disinclination to interfere with the transfer of Justice Chaudhary, the counsel pressed the second prayer in the petition - to divest the parent Ministry (in this case the Defence Ministry) of the control of the Tribunal. He submitted that the when Defence Ministry is the major litigant before the AFT, giving the same Ministry administrative control over the Tribunal will result in conflict of interest. He said that in the Madras Bar Association judgments, the Supreme Court has held that the Tribunals should be kept out of the control of the parent Ministries.

Noting the same, the bench passed an order dismissing the prayer challenging the transfer of Justice Chaudhary. The court stated that–

"There is no reason for this court to doubt the exercise of administrative discretion by the chairperson of the AFT. The posting of members to different benches lies within the administrative control of the chairperson...The administrative discretion of transferring Justice Chaudhary doesn't warrant interference under Article 32."

However, the bench decided to consider the prayer concerning the control of the tribunal being with the Ministry. Regarding the same, it granted two weeks time to the Union to file its response.

Case Title: Armed Forces Tribunal Bar Association Chandigarh v. Union of India W.P.(C) No. 1121/2023