# Ishwar Prasad v. Union of India & Ors

- **Citation:** (2014) 1 ILRA 310
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-02-03
- **Case number:** Civil Misc. Writ Petition No. 2029 of 2014
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishwar-prasad-v-union-of-india-ors-42786
- **Pages:** 3

## Headnote

Constitution of India, Art.-226-alternative
remedy-petitioner
ex-army
personalclaiming post retiral benefit-preliminary
objection to approach before Army Tribunalin view of Arm Force Tribunal Act 2007contention that where the question involve
interpretation of Constitutional provisionsheld-in view of L.Chandra Kumar-Tribunal
itself can decide this question-petition not
maintainable-on
ground
of
alternative
remedy.

Held:
Para-9
1 All] Ishwar Prasad Vs. Union of India & Ors.
311
In view of the above, I am of the opinion
that the petitioner has the remedy of
approaching the Armed Forces Tribunal,
in the first instance. Therefore, the writ
petition is dismissed, leaving it open to
the petitioner to avail the said remedy.

Case Law discussed:
(1997)3 SCC 261; (1998)8 SCC 1; 1985 SC
130; 2013 Lawsuit (SC) 819; AIR 2002 SC

## Text

310 INDIAN LAW REPORTS ALLAHABAD SERIES
even if there are minor discrepancies
between the narrations of the witnesses
when they speak on details, unless
contradictions are of material dimensions,
the same should not be used to discard the
evidence in its entirety.

54. Other circumstances, particularly
the nature of the injuries inflicted on the
person of the injured witnesses and the
deceased, arrest of the accused, recovery
of weapon, his disclosure statement prove
the prosecution case. There is no reason
not to believe the statements of the
injured eye witnesses.

55. In a feeble attempt learned
counsel for the appellant submits that this
is a case where the offence, if any, said to
be committed by the appellant would not
go beyond Section 304 I.P.C. as it was a
case of sudden provocation and appellant
did not intend to commit the crime.

56. The said confession does not stand
to reason as it is evident that the appellant was
carrying a 'Ustura" with him when he went to
meet Sannoo and moreover he did not attack
Sannoo only but two other persons also who
came to save her. He ran away only after
causing serious injuries to Sabboo who died
on the spot. The fact of carrying weapon with
him, clearly shows that the appellant had
intention to settle the dispute for ever at any
cost.

57. In view of the above we reach an
inescapable conclusion that the appellant is
guilty of the commission of the offence for
which he has been charged. We do not find
any force in the present appeal. The appeal
lacks merit and is dismissed accordingly.

58. The judgment and order dated
15.2.2007 convicting and sentencing the
accused-appellant with rigorous imprisonment
for life is affirmed. The accused-appellant
Parvej is in jail. He shall be kept there to serve
out the sentence awarded by the trial court and
affirmed by us.

59. The certified copy of the
judgment be sent to the lower court within
a week. The record of the case be also
transmitted
to
the
court
below
immediately. The compliance shall be
reported by the Chief Judicial Magistrate
Saharanpur within four weeks from date
of receiving the copy of this order.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2014

BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.

Civil Misc. Writ Petition No. 2029 of 2014

Ishwar Prasad..... Petitioner
Versus
Union of India & Ors...... Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar Singh

Counsel for the Respondents:
Sri R.B. Singhal(A.S.G.I.), Sri Sanjay Kr.
Yadav, Sri Satish Chaturvedi, Sri S.K. Rai

Constitution of India, Art.-226-alternative
remedy-petitioner
ex-army
personalclaiming post retiral benefit-preliminary
objection to approach before Army Tribunalin view of Arm Force Tribunal Act 2007contention that where the question involve
interpretation of Constitutional provisionsheld-in view of L.Chandra Kumar-Tribunal
itself can decide this question-petition not
maintainable-on
ground
of
alternative
remedy.

Held:
Para-9
1 All] Ishwar Prasad Vs. Union of India & Ors.
311
In view of the above, I am of the opinion
that the petitioner has the remedy of
approaching the Armed Forces Tribunal,
in the first instance. Therefore, the writ
petition is dismissed, leaving it open to
the petitioner to avail the said remedy.

Case Law discussed:
(1997)3 SCC 261; (1998)8 SCC 1; 1985 SC
130; 2013 Lawsuit (SC) 819; AIR 2002 SC
1295.

(Delivered by Hon'ble Manoj Kumar Gupta, J.)

1. The petitioner who is an ex-army
personnel has filed this writ petition
claiming retiral benefits.

2. Sri R.B. Singhal, senior advocate /
Assistant Solicitor General of India, assisted
by Sri S.K. Rai advocate has raised a
preliminary
objection
regarding
maintainability of the writ petition. It is
contended that in view of the provisions of
the Armed Forces Tribunal Act, 2007,
hereinafter referred to as 'Act', the petitioner
has efficacious remedy of approaching the
Tribunal, as laid down by the Apex court in
the case of L. Chandra Kumar vs. Union of
India, (1997)3SCC261. He has also placed
reliance on the judgement of learned single
judge of this court dated 26.11.2013 passed
in writ petition no. 64424 of 2013. Sri
Jitendra Kumar Pandey advocate who has
appeared on behalf of respondent no. 4, has
supported the contention of Shri Singhal.

3. Counsel for the petitioner, placing
reliance on the judgement of the Apex court
in the case of Whirlpool Corporation vs.
Registrar of Trade Marks(1998)8SCC1,
submitted that where there is violation of
fundamental rights, the availability of
alternative remedy is not an absolute bar for
exercise of jurisdiction by this court. He has
also placed reliance on the judgement of the
Apex court reported in AIR 1985 SC 130
D.S. Nakara and other vs. Union of India
wherein, it was held that the pension is not a
bounty but a right conferred on a retired
employee for the valuable services rendered
by him in the hey-day of his service time. He
has also placed reliance on another
judgement reported in 2013Lawsuit (SC)819
State of Jharkhand vs. Jitendra Kumar
Srivastava.

4. Armed Forces Tribunal, Act 2007
has been enacted in exercise of power under
Art.323-A of the Constitution. Section 3(o) of
the Armed Forces Tribunal Act, 2007
(hereinafter referred as the Act), defines 'the
service matters' and clause (1) thereof,
includes remuneration (including allowances),
pension and other retirement benefits. Section
14 of the Act confers jurisdiction to the
Armed Forces Tribunal in relation to all
service matters. Therefore, the dispute relating
to payment of retiral dues comes within the
purview of service matters as defined under
section 3(o) of the Act.

5. While interpreting the scheme of
Administrative
Tribunal
Act,1985
the
constitutional bench of the Apex Court in L.
Chandra Kumar vs. Union of India, (supra)
held that in matters coming under the
jurisdiction of the Tribunal, it will not be
open for the litigant, to directly approach the
High Courts. It was observed that :-

"The jurisdiction conferred upon the
High Courts under Articles 226/227 and
upon the Supreme Court under Article 32
of the Constitution is a part of the
inviolable
basic
structure
of
our
Constitution.
While
this
jurisdiction
cannot be ousted, other courts and
Tribunals may perform a supplemental
role in discharging the powers conferred
by Articles 226/227 and 32 of the
Constitution. The Tribunals created under
312 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 323-A and Article 323-B of the
Constitution are possessed of the competence
to test the constitutional validity of statutory
provisions and rules. All decisions of these
Tribunals will, however, be subject to scrutiny
before a Division Bench of the High Court
within whose jurisdiction the Tribunal
concerned
falls.
The
Tribunal
will,
nevertheless, continue to act like courts of first
instance in respect of the areas of law for
which they have been constituted. It will not,
therefore, be open for litigants to directly
approach the High Courts even in cases where
they question the vires of statutory legislations
(except where the legislation which creates the
particular
Tribunal
is
challenged)
by
overlooking the jurisdiction of the Tribunal
concerned."
(emphasis supplied)

6. Similar view was taken by the
supreme court in the case of Kendriya
Vidyalaya Sangathan and others vs. Dr.
R.D. Vishwakarma and others (AIR 2002
SC 1295). It was observed as under :-

"At the same time, as laid down in
Chandra Kumar, the High Court ought not
to permit the aggrieved person to bypass
the remedy of moving the Administrative
Tribunal in the first instance."

7. I am of the opinion that in cases
of Armed Forces Tribunal constituted
under the Act, the same analogy will
apply.

8. The question which now arises is
whether writ should be entertained
because the petitioner alleges violation of
constitutional rights. Controversy in this
regard is also no more res-integra, in view
of the authortative pronouncement of the
apex court in the same case of L. Chandra
Kumar vs. Union of India (supra),
wherein, it was held that the tribunal also
has the power to go into issues regarding
infraction of constitutional rights. It was
held as under:-

.............."It
has
been
contended
before us that the Tribunal should not be
allowed to adjudicate upon matters where
the vires of legislations is questioned, and
that they should restrict themselves to
handling matters where constitutional
issues are not raised. We cannot bring
ourselves to agree to this proposition as
that may result in splitting up proceedings
and may cause avoidable delay. If such a
view were to be adopted, it would be open
for litigants to raise constitutional issues,
many of which may be quite frivolous, to
directly approach the High Courts and
thus subvert the jurisdiction of the
Tribunals. Moreover, even in these
special branches of law, some areas do
involve the consideration of constitutional
questions on a regular basis; for instance,
in service law matters, a large majority of
cases involve an interpretation of Articles
14, 15 and 16 of the Constitution. To hold
that the Tribunals have no power to
handle matters involving constitutional
issues would not serve the purpose for
which they were constituted."
(emphasis supplied)

9. In view of the above, I am of the
opinion that the petitioner has the remedy
of
approaching
the
Armed
Forces
Tribunal, in the first instance. Therefore,
the writ petition is dismissed, leaving it
open to the petitioner to avail the said
remedy.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.03.2014

BEFORE