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2010 DIGILAW 2640 (ALL)

NANAK CHAND v. UNION OF INDIA

2010-08-30

DEVI PRASAD SINGH, VEDPAL

body2010
JUDGMENT By the Court.—Heard the learned counsel for the petitioner and Dr. Ashok Nigam, Additional Solicitor General of India assisted by Shri I.H.Farooqui, Assistant Solicitor General of India. 2. Writ Petition under Article 226 of the Constitution of India has been preferred by the petitioner against the order dated 19.5.2010 passed by the Armed Forces Tribunal, Regional Bench, Lucknow in Transfer Application No. 14 of 2010 as contained in Annexure No. 2 to the writ petition. 3. Learned counsel for the petitioner submits that the impugned order passed by the Tribunal is substantively illegal and has been passed on unfounded facts. 4. A preliminary objection has been raised by Dr. Ashok Nigam, learned Additional Solicitor General that the writ petition is not maintainable as the petitioner has got alternative appellate remedy before the Hon’ble Supreme Court under Section 30 of the Arms Forces Tribunal Act, 2007 (hereinafter referred to as the ‘Act’). 5. Petitioner’s counsel relied upon the cases in Minerva Mills Ltd. and others v. Union of India and others, (1980) 3 SCC 625 ; Union of India and others v. Pratibha Bonnerjea and another, (1995) 6 SCC 765 ; S.P. Sampath Kumar v. Union of India and others, (1987) 1 SCC 124 ; Delhi Judicial Service Association v. State of Gujarat and others, (1991) 4 SCC 40; M.B. Majumdar v. Union of India, (1990) 4 SCC 501 and Kihoto Hollohan v. Z. Achillhu and others, 1992 Supp. (2) SCC 651. It is submitted that the right of the petitioner to approach this Court under Article 226 of the Constitution of India co-relate to basic structure of the Indian Constitution and litigant cannot be prevented to approach this Court because of the availability of statutory and alternative remedy. 6. At the very threshold, we wish to observe that the submission made by the petitioner’s counsel are not disputed question of law. Power conferred to this Court under Article 226 of the Constitution of India is wide enough to interfere with each and every order passed by the Tribunal or the authority but it depend upon the facts and circumstances of each case. In case statute provides some alternative remedy in the form of appeal or revision, then ordinarily such remedy should not be bypassed. 7. In case statute provides some alternative remedy in the form of appeal or revision, then ordinarily such remedy should not be bypassed. 7. Hon’ble Supreme Court in various cases including the cases in Dwarka Prasad Agarwal and another v. Ramesh Chander Agarwal and others, 2003(6) SCC 220 ; Dipak Chandra Ruhidas v. Chandan Kumar Sarkar, 2003 (7) SCC 66 ; Bimal N.Desai v. State of Karnataka and others, 2003(5) SCC 395 ; National Highway Authority of India v. Ganga Enterprises, 2003(V7) SCC 410 and Union of India and others v. Ingersoll Rand (India) Ltd., 2001 (10) SCC 617 , has held that power conferred to appellate authority under a statute is much wide than the power conferred to this Court under Article 226 of the Constitution of India. 8. So far as the statutory remedy available to the petitioner under Section 30 of the Act is concerned, it is wide enough and the appellate authority has ample power to re-appreciate the evidence on record. The jurisdiction, power and authority in service matters of the Armed Forces has been conferred by Section 14 of the Act. Legislature on their own had categorically provided that the power conferred to Tribunal does not affect the power of Hon’ble Supreme Court or High Court under Articles 226 and 227 of the Constitution of India. For convenience, sub-section (1) and (2) of Section 14 of the Act is reproduced as under : “14. Jurisdiction, power and authority in service matters.—(1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise on and from the appointed day, all the jurisdiction, powers and authority, exercisable immediately before that day by all Courts (except the Supreme Court or a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution) in relation to all service matters. (2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed.” 9. However, Section 30 of the Act further provides that every final order passed by the Tribunal is subject to the appeal before the Supreme Court. For convenience, Sections 30 and 31 of the Act is reproduced as under : “30. However, Section 30 of the Act further provides that every final order passed by the Tribunal is subject to the appeal before the Supreme Court. For convenience, Sections 30 and 31 of the Act is reproduced as under : “30. Appeal to the Supreme Court.—(1) Subject to the provisions of Section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under Section 19). Provided that such appeal is preferred within a period of ninety days of the said decision or order Provided further that there shall be no appeal against an interlocutory order of the Tribunal. (2) An appeal shall lie to the Supreme Court as of right from any order or decision of the Tribunal in the exercise of its jurisdiction to punish for contempt: Provided that an appeal under this sub-section shall be filed in the Supreme Court within sixty days from the date of the order appealed against. (3) Pending any appeal under sub-section (2), the Supreme Court may order that— (a) the execution of the punishment or the order appealed against be suspended ; or (b) if the appellant is in confinement, he be released on bail. Provided that where an appellant satisfies the Tribunal that he intends to prefer an appeal, the Tribunal may also exercise any of the powers conferred under clause (a) or clause (b), as the case may be. ‘“31. Leave to appeal.—(1) An appeal to the Supreme Court shall lie with the leave of the Tribunal ; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to be Supreme Court that the point is one which ought to be considered by that Court. (2) An application to the Tribunal for leave to appeal to the Supreme Court shall be made within a period of thirty days beginning with the date of the decision of the Tribunal and an application to the Supreme Court for leave shall be made within a period of thirty days beginning with the date on which the application for leave is refused by the Tribunal. (3) An appeal shall be treated as pending until any application for leave to appeal is disposed of and if leave to appeal is granted, until the appeal is disposed of ; and an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it may have been made, but it is not made within that time.” 10. A perusal of Section 31 shows that an appeal to Supreme Court, shall lie with the leave of the Tribunal and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved. Every order passed by the Tribunal, authorities or this Court is also appellable under Article 136 of the Constitution of India. So far as the present case is concerned, under Section 31 of the Act, the petitioner has got option to approach the Tribunal to make a prayer for leave to appeal for Hon’ble Supreme Court. Appellate power conferred by Section 30 of the Act has been subjected to Section 31 of the Act i.e. to avail the leave to appeal from the Tribunal. 11. Petitioner’s counsel submits that some delay has been caused because of the pendency of the present writ petition. However, Appeal under Section 30 of the Act may be filed within the stipulated period from the date of prayer for leave to appeal is rejected or allowed. 12. Accordingly, so far as the present case is concerned, we permit the petitioner to approach the Tribunal within a week by moving an application under Section 31 of the Act and the Tribunal shall consider the same on merit and decide expeditiously. Thereafter the petitioner will have an option to approach the Hon’ble Supreme Court under Section 30 of the Act. 13. Before parting with the case, we may observe that the ordinarily statutory provision containing right to appeal should not be bypassed by this Court while exercising power conferred under Article 226 or 227 of the Constitution of India. Legislature under Section 14 had not encroached upon with the powers conferred by Article 226 or 227 of the Constitution of India. It is for this Court to impose self-restraint restrictions so that the litigant aggrieved with the order passed by the Tribunal may prefer an appeal. Legislature under Section 14 had not encroached upon with the powers conferred by Article 226 or 227 of the Constitution of India. It is for this Court to impose self-restraint restrictions so that the litigant aggrieved with the order passed by the Tribunal may prefer an appeal. Ordinarily, power of statutory appellate remedy should not be bypassed. 14. Accordingly we dispose of this writ petition with the observations aforesaid permitting the petitioner to approach the Tribunal under Section 31 of the Act and thereafter prefer the appeal under Section 30 of the Act. In case an application under Section 31 is moved within two weeks, that shall be considered and decided on merit expeditiously say in a month. 15. Office shall issue certified copy of this order written three days on payment of usual charges. —————