Transfer Of AFT Judge Before Hearing Contempt Case Against Defence Ministry Requires 'Close Scrutiny', Says Supreme Court

The Supreme Court on Monday(October 9) 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.

It may be recalled that Justice Dharam Chand Chaudhary, a Judicial Member of AFT Chandigarh, was transferred to the Calcutta bench 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. Today, a bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra was hearing a plea of the Armed Forces Tribunal Chandigarh Bar Association (AFTCBA) alleging that Defence Ministry was interfering in the judicial process by causing the transfer of Justice Chaudhary.

Stating that the circumstances in which the Judge had been transferred from Chandigarh to Calcutta "would merit close scrutiny", the bench also held that pending further orders, Justice Chaudhary was not required to assume office at Calcutta. 

Advocate K Parmeshwar, appearing  for the AFT Bar Association, informed the bench that the petitioners were pressing for two reliefs, namely, a) a prayer challenging the transfer order of Justice Chaudhary and; b) a prayer to remove the financial and administrative control of the Defence Ministry over the Tribunal. Commencing his arguments in the matter, the counsel asserted–

"This is a case of res ipsa loquitur- the facts speak for itself."

He alleged that the entirety of the tribunal was being controlled by the Defence Ministry, which had on multiple occasions, refused to implement the orders of the Tribunal. He added–

"600 applicants are stuck before the court because the ministry doesn't implement orders. The Defence Ministry doesn't implement orders passed by the Armed Tribunal."

Highlighting the background of Justice Chaudhary's transfer, Parmeshwar stated that the issue arose in 2017 when an order was passed by the AFT bench at Chandigarh in a matter pertaining to disability pension. Underlining the role of Justice Chaudhary in the matter, he said–

"This was related to disability pension! It's not like the security of nation was at stake. The officer was not appearing and so a non bailable warrant was passed. They challenge this order before Punjab & Haryana High Court. The High Court says please comply with the order- we will keep the non bailable warrant in abeyance but if they don't comply, the tribunal is free to proceed."

This was followed by a direction of the Chairperson of the Principal Bench of the AFT at Delhi directing to stand over all execution petitions to September 15. On September 15, the Chairperson passed another order stating that all execution applications would be listed only before Court 1, presided over by the Chairperson. Along with this, the 2017 proceedings were also transferred to Principal bench in Delhi.

Later, a notification was issued by which Justice DC Chaudhary was transferred to Calcutta. Parmeshwar argued that this transfer was malafide. He stated–

"The matter was pending before the tribunal and yet the Principal bench exercises its jurisdiction and says this. The second prayer- the entire control of the tribunal- administrative, financial- is under the ministry. There are four judgements in which your lordships say that the department can't do this."

Respondents in the matter sought for the matter to be heard on Friday (12.10.2023) as the matter would be argued by the Attorney General for India. The same was permitted. 

Passing the order, the CJI remarked–

"Bearing in mind the conventional wisdom by which the exercise of the power of judicial review in matters of transfer is subject to self imposed restraint, it is necessary to notice the grievance of AFT Bar Association...The circumstances in which the Judge has been transferred from Chandigarh to Calcutta would merit close scrutiny."

The bench also said that the transfer of the cases which were dealt with by Justice Chaudhary to the Principal Bench also required to be scrutinised.

Thus, the Chairperson of Principal Bench was directed to submit to the Registrar General of the Supreme Court, a report in sealed cover indicating the circumstances in which the order of transfer of Justice DC Chaudhary was passed. Further, it was held–

"Pending further orders, Justice Chaudhary shall not be required to assume office at Calcutta. The execution applications shall not be disposed off without relief of this court. Issue notice, returnable on Friday. The report directed to be submitted by the chairperson shall be submitted before the next date of hearing to the registrar general."

The matter is now listed for October 12, 2023. 

Background

On October 4, the Armed Forces Tribunal Chandigarh Bar Association (AFTCBA) had written to Chief Justice DY Chandrachud alleging that Defence Minister had openly admitted interference of the Ministry in the transfer of Judicial Member Justice Dharam Chand Chaudhary, just before he could hear the case of contempt against an officer of Defence Accounts Department.

Referring to a video of an event conducted by the Defence Accounts Department on October 1, the letter stated that the Minister is heard saying, "that one cannot keep everybody happy and one of your officers just got saved and escaped."

Earlier in August, the Association had requested CJI DY Chandrachud to take suo moto cognizance of the allegedly "shockingly contemptuous communication" issued by the D(AFT) Cell of the Ministry of Defence to the Principal Bench of AFT on July 28. In the communication, the Defence Secretary is stated to have demanded a report on the recent decisions on pay/pension matters by AFT Chandigarh "with analysis thereof".

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

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