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2019 DIGILAW 34 (UTT)

Bhim Singh v. Union of India

2019-01-08

R.C.KHULBE, RAMESH RANGANATHAN

body2019
JUDGMENT : Ramesh Ranganathan, J. Heard Mr. T.P.S. Takuli, learned counsel for the petitioner and Ms. Monika Pant, learned Standing Counsel for the Government of India. 2. The petitioner has invoked the jurisdiction of this Court, under Article 226 of the Constitution of India, aggrieved by the order passed by the Armed Forces Tribunal, Regional Bench, Lucknow in OA No. 112 of 2017 dated 22.12.2017. He seeks a direction to quash Part-II of the impugned order dated 28.06.1999, and to direct the respondents to grant service pension to the petitioner with effect from the date of dismissal i.e. 30.04.1999. 3. Ms. Monika Pant, learned Standing Counsel for the Government of India, would raise a preliminary objection to the maintainability of the writ petition. She would submit, relying on the judgment of the Supreme Court in Civil Appeal No. 7400 of 2013 dated 11.03.2015, that the remedy available to the petitioner is under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007; and the petitioner cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 read 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. 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.” 4. On whether the petitioner could question the order of the Armed Forces Tribunal before the High Court by invoking its jurisdiction under Article 226 of the Constitution of India without availing the remedy under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007, the Supreme Court, in Union of India & Ors vs. Major General Shri Kant Sharma & Ors, (2015) 6 SCC 773 , observed:- “………. In Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and another vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108 , a three-Judge Bench held: "80. It is a settled canon of law that the High Court would not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The courts, including this Court, have taken the view that the statutory remedy, if provided under a specific [pic] law, would impliedly oust the jurisdiction of the civil courts. It is equally settled that this canon of law is not free of exceptions. The courts, including this Court, have taken the view that the statutory remedy, if provided under a specific [pic] law, would impliedly oust the jurisdiction of the civil courts. The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can entertain writ or appropriate proceedings despite availability of an alternative remedy. This jurisdiction, the High Court would exercise with some circumspection in exceptional cases, particularly, where the cases involve a pure question of law or vires of an Act are challenged. This class of cases we are mentioning by way of illustration and should not be understood to be an exhaustive exposition of law which, in our opinion, is neither practical nor possible to state with precision. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the courts. It will normally depend upon the facts and circumstances of a given case. The further question that would inevitably come up for consideration before the Court even in such cases would be as to what extent the jurisdiction has to be exercised. 81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better sub served if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act. However, it should only be for the specialised tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case." 34. However, it should only be for the specialised tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case." 34. The aforesaid decisions rendered by this Court can be summarised as follows: The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.(Refer: L. Chandra and S.N. Mukherjee). (ii)The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act.(Refer: Mafatlal Industries Ltd.). (iii)When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma). (iv)The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer: Nivedita Sharma). Article 141 of the Constitution of India reads as follows: "Article 141.Law declared by Supreme Court to be binding on all courts.- The law declared by the Supreme Court shall be binding on all courts within the territory of India." 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. 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. 38. The High Court (Delhi High Court) while entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of Act. However, we find that Andhra Pradesh High Court and the Allahabad High Court had not entertained the petitions under Article 226 and directed the writ petitioners to seek resort under Sections 30 and 31 of the Act. However, we find that Andhra Pradesh High Court and the Allahabad High Court had not entertained the petitions under Article 226 and directed the writ petitioners to seek resort under Sections 30 and 31 of the Act. Further, the law laid down by this Court, as referred to above, being binding on the High Court, we are of the view that Delhi High Court was not justified in entertaining the petition under Article 226 of the Constitution of India.” The judgment passed by the Delhi High Court entertaining the writ petition, by-passing the machinery created under Sections 30 and 31 of the Act, was set aside and liberty was granted to the persons concerned to avail the remedy under Section 30 with leave to appeal under Section 31 of the Act. 5. The law declared by the Supreme Court, in Shri Kant Sharma, required any person, aggrieved by the order passed by the Armed Forces Tribunal, to avail the remedy available under Sections 30 and 31 of the 2017 Act. Ordinarily, this Court would not exercise discretion, under Article 226 of the Constitution of India to entertain a writ petition where an effective statutory remedy, as stipulated under Sections 30 and 31 of the Armed Forces Tribunal Act, 2017, exists. We see no reason, therefore, to entertain the writ petition. Suffice to make it clear that the order now passed by us shall not disable the petitioner from availing his remedy under Sections 30 and 31 of the Armed Forces Tribunal Act, 2017. 6. The certified copy of the order of the Tribunal, filed along with the writ petition, shall be returned to the learned counsel for the petitioner forthwith, under due acknowledgement and on his making available a photocopy of the said order to the Registry. 7. The writ petition is dismissed. No costs.