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2015 DIGILAW 391 (ORI)

SARAT KUMAR SAHANI v. UNION OF INDIA

2015-07-02

A.K.RATH

body2015
ORDER Dr. Akshaya Kumar Rath, J. - In this instant writ application, challenge is made to the order dated 23.8.2013 passed by the Armed Forces Tribunal (hereinafter referred to as the Tribunal'), Regional Bench, Kolkata in T.A. No. 1 of 2011, whereby and whereunder, the learned Tribunal has rejected the prayer of the petitioner for grant of disability pension. The petitioner, who is an ex-soldier, was invalidated our after two years of service in the Army on medical grounds. His disability pension having not been granted, he approached this Court in W.P.(C) No. 1259 of 2005. After constitution of the Armed Force Tribunal under the provision of Section 14 of the Armed Force Tribunal Act, 2007 (hereinafter referred to as the 'Act), the writ, application was transferred to the learned Tribunal. In an elaborate order, the learned Tribunal dismissed the said writ application. The same is the subject matter of dispute in the instant writ application. 2. Heard Mr. Pradhan, learned counsel for the petitioner and Mr. A.K. Bose, learned Assistant Solicitor General of India for the opposite parties. 3. The seminal point that hinges for consideration of this Court is as to whether the High Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India can entertain the writ application against the order passed by the learned Tribunal. 4. Section 14 of the Act specifies the jurisdiction, powers and authority in relation to service matters. Section 15 of the Act specifies the jurisdiction, powers and authority in the matters of appeal against the Court-Martial. 5. Chapter V of the Act relates to appeal. Section 30 provides for an appeal to the Supreme Court. Section 31 deals with leave to appeal. The said sections are quoted hereunder: "Section 30, Appeal to 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 man 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. Section 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 the 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 might have been made, but it is not made within that time." 6. In Union of India (UOI) and Others Vs. In Union of India (UOI) and Others Vs. Shri Kant Sharma and Others, the question raised before the Supreme Court was whether the right of appeal under Section 30 of the Act, against an order of the learned Tribunal with the leave of the Tribunal under Section 31 of the Act or leave granted by the Supreme Court, or bar of leave to appeal before the Supreme Court under Article 136 (2) of the Constitution of India, will bar the jurisdiction of the High Court under Article 226 of the Constitution of India regarding matters related to Armed Forces. Union of India and others were the appellants in all the appeals except in C.A. No. 7338 and C.A. No. 7399 of 2013 and C.A. No. 96/2014 wherein they were the respondents. The respondents in all the appeals except the three Army Personnel moved before the Tribunal for adjudication or trial of disputes and complaints with respect to condition of service. Having not granted relief, the Army Personnel assailed the order passed by the Tribunal before the respective High Courts under Article 226 of the Constitution. The Andhra Pradesh High Court entertained the writ application and adjudicated the dispute. The Union of India challenged the same before the Supreme Court. The Delhi High Court also allowed the writ application filed by the petitioner. Before the Supreme Court preliminary objection was raised on behalf of the Union of India as to the maintainability of the writ petition on the ground that against the orders impugned, a remedy of appeal to the Supreme Court is provided under Section 30 of the Act. Interpreting the provisions of the Act more particularly Sections 30 and 31 and Articles 226 and 136 of the Constitution of India, the Apex Court held that if the High Court entertains an application under Article 226 of the Constitution of India against the order passed by the learned Tribunal under Section 14 or Section 15 of the Act bypassing the machinery of statute i.e., Sections 30 and 31 of the Act, there is likelihood of anomalous situation for the aggrieved person in praying for relief before the Supreme Court. Their Lordships further held that there is a chance of anomalous situation. Their Lordships further held that there is a chance of anomalous situation. Therefore, it is always desirable for the High Court to act in terms of the law laid down by the Supreme Court, which is binding on the High Court under Article 141 of the Constitution of India, allowing the aggrieved person to avail the remedy under Section 30 read with Section 31 of the Act. 7. For better appreciation, paragraph-37 of the judgment is quoted hereunder: "37. Likelihood of anomalous situation If the High Court entertains a petition under Article 226 of the Constitution of India against order passed by Armed Forces Tribunal under Section 14 or Section 15 of the Act bypassing the machinery of statute i.e. Sections 30 and 31 of the Act, there is likelihood of anomalous situation for the aggrieved person in praying for relief from this Court. Section 30 provides for an appeal to this Court subject to leave granted under Section 31 of the Act. By clause (2) of Article 136 of the Constitution of India, the appellate jurisdiction of this Court under Article 136 has been excluded in relation to any judgment, determination, sentence or order passed or made by any court or Tribunal constituted by or under any law relating to the Armed Forces. If any person aggrieved by the order of the Tribunal, moves before the High Court under Article 226 and the High Court entertains the petition and passes a judgment or order, the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation. Therefore, it is always desirable for the High Court to act in terms of the law laid down by this Court as referred to above, which is binding on the High Court under Article 141 of the Constitution of India, allowing the aggrieved person to avail the remedy under Section 30 read with Section 31 Armed Forces Act." In view of the authoritative pronouncement of the Apex Court in the case cited supra, this Court is of the considered opinion that the instant writ application is not maintainable. It is open to the petitioner to file an appeal before the Supreme Court. The writ application is dismissed. Final Result : Dismissed