# NR-20124W, Lt. Col. (Military Nursing Services) Madhu Lata Gaur v. Armed Force Tribunal Regional Bench & Ors

- **Citation:** (2015) 2 ILRA 654
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-19
- **Case number:** Service Single No. 2200 of 2015
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nr-20124w-lt-col-military-nursing-services-madhu-lata-gaur-v-armed-force-43266
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.-226Maintainability of Writ Petition-against
order passed by Army Tribunal-Statutory
provision of appeal-cannot be allowed to
bypassed-petition dismissed.
Held: Para-17
In
view
of
the
aforesaid
legal
proposition, it is imminently clear that
the writ petition filed by the petitioner
assailing the order of the Tribunal is not
maintainable and as such this Court is
not inclined to exercise discretionary
writ jurisdiction under Article 226 of the
Constitution and the writ petition is
liable to be dismissed.
(B)Constitution of India, Art. 14-binding
precedent-Law laid down by Supreme
Court-binding upon all High Courts-can
not be ignored-even certain relevant
provisions not brought to notice of
Supreme Court.
Held: Para-16
Before parting, it may be pointed out
that
the
law
declared
by
Hon'ble
Supreme Court is binding on all courts,
including High courts, and High courts
2 All]
NR-20124W, Lt. Col. Military Nursing Services) Madhu Lata Gaur Vs. Armed Forced Tribunal, Regional Bench & Ors. 655
cannot ignore it on the ground that
relevant provisions were not brought to
the notice of the Apex Court or that the
Apex Court laid down the legal position
without considering all the points, and
therefore its decision is not binding. See:
[Ballabhdas versus Municipal Committee,
(1970) 2 SCC 267].
Case Law discussed:
Civil Appeal No. 7400 of 2013; [(2004) 3
UPLBEC 2389]; (2010) 8 SCC 110; AIR 1997
SC 1125; (2005) 7 SCC 492; (2001) 14 SCC
337; 2012 (8) SCC 524

## Text

654
 INDIAN LAW REPORTS ALLAHABAD SERIES
authority has not only considered the conduct
of the petitioner which has led to his
conviction based on the provisions of
criminal law under which he has been
convicted for indulging in corruption, but it
is also difficult to fathom that any other view
of the matter could have been taken by the
disciplinary authority in the facts of the
present case considering the seriousness of
the criminal offence for which the petitioner
has been convicted. We may also refer to the
decision of the Supreme Court in the case of
Allahabad Bank Vs. Deepak Kumar Bhola,
reported in (1998)9 SCC 265 wherein in a
matter of suspension the Supreme Court
observed that it would be unsuitable that a
Bank should allow an employee to continue
on duty when he is facing serious charges of
corruption and misappropriation of the
money. Accordingly it quashed the judgment
of the High Court quashing the order of
suspension of an employee of Allahabad
Bank. In the case at hand the petitioner has
already been convicted on charges of
corruption
under
the
Prevention
of
Corruption Act, therefore, he is not entitled
to continue in service unless the conviction is
set aside in the appeal filed by him against
the same.
7. We have also perused the relevant
rules which permit dismissal from service in
such circumstances and we do not find any
violation of the rules or the law in the present
case. In these circumstances we do not find it
a fit case for interference under Article 226
of the Constitution of India.
8. Consequently relief no. 2 prayed
in the writ petition also cannot be granted
by this Court at this stage.
9. The writ petition is, accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.05.2015
BEFORE
THE HON'BLE DR. DEVENDRA KUMAR
ARORA, J.
Service Single No. 2200 of 2015
NR-20124W, Lt. Col. (Military Nursing
Services) Madhu Lata Gaur ...Petitioner
Versus
Armed Force Tribunal Regional Bench &
Ors.
...Respondents
Counsel for the Petitioner:
P.N. Chaturvedi, Vinay Pandey
Counsel for the Respondents:
A.S.G.
(A)
Constitution
of
India,
Art.-226Maintainability of Writ Petition-against
order passed by Army Tribunal-Statutory
provision of appeal-cannot be allowed to
bypassed-petition dismissed.
Held: Para-17
In
view
of
the
aforesaid
legal
proposition, it is imminently clear that
the writ petition filed by the petitioner
assailing the order of the Tribunal is not
maintainable and as such this Court is
not inclined to exercise discretionary
writ jurisdiction under Article 226 of the
Constitution and the writ petition is
liable to be dismissed.
(B)Constitution of India, Art. 14-binding
precedent-Law laid down by Supreme
Court-binding upon all High Courts-can
not be ignored-even certain relevant
provisions not brought to notice of
Supreme Court.
Held: Para-16
Before parting, it may be pointed out
that
the
law
declared
by
Hon'ble
Supreme Court is binding on all courts,
including High courts, and High courts
2 All]
NR-20124W, Lt. Col. Military Nursing Services) Madhu Lata Gaur Vs. Armed Forced Tribunal, Regional Bench & Ors. 655
cannot ignore it on the ground that
relevant provisions were not brought to
the notice of the Apex Court or that the
Apex Court laid down the legal position
without considering all the points, and
therefore its decision is not binding. See:
[Ballabhdas versus Municipal Committee,
(1970) 2 SCC 267].
Case Law discussed:
Civil Appeal No. 7400 of 2013; [(2004) 3
UPLBEC 2389]; (2010) 8 SCC 110; AIR 1997
SC 1125; (2005) 7 SCC 492; (2001) 14 SCC
337; 2012 (8) SCC 524
(Delivered by Hon'ble Dr. Devendra
Kumar Arora, J.)
1. By means of present writ petition,
the
petitioner
has
questioned
the
correctness and validity of the judgment
and order dated 16.02.2015 passed by the
Armed Forces Tribunal, Regional Bench,
Lucknow, (in short referred to as
'Tribunal') in O.A. No. 274 of 2015 as
also the order dated 13.03.2015 passed in
Review Application No. 1 of 2015.
2. The petitioner, who was granted
commission in Military Nursing Service
was served with a show cause notice
dated
30.9.2014
by
the
competent
authority which was assailed by the
petitoner before the Tribunal by filing
Original Application No. 274 of 2014.
The said
Original
Application
was
dismissed by the Tribunal vide its
judgment and order dated 16.2.2015 being
premature.
3. Hence this writ petition.
4. A preliminary objection has been
raised by Shri S.B. Pandey, Assistant
Solicitor General of India regarding
maintainability of the writ petition.
According to him, the instant writ petition
has been filed challenging the order of the
Tribunal, which is not maintainable in
view of the recent judgment of the Apex
Court rendered in Civil Appeal No. 7400
of 2013; Union of India and others Vs.
Major General Srikant Sharma and
another, decided on 11.03.2015.
5. Elaborating his argument, learned
counsel for the respondents submitted that
when
an
alternative
and
equally
efficacious remedy is open to a litigant, he
should be required to pursue that remedy
and cannot be permitted to invoke the
extra- ordinary jurisdiction of the High
Court to issue a prerogative writ as the
writ jurisdiction is meant for doing justice
between the parties where it cannot be
done in any other forum.
6. It has further been argued on behalf
of Union of India that the High Court
cannot entertain writ petitions under Article
226 of the Constitution of India contrary to
the law enacted by the Parliament being the
Armed Forces Tribunal 2007 which is a
special enactment exclusively provided for
an appellate remedy by way of leave before
the Court.
7. Refuting the allegation of the
respondents, learned counsel for the
petitioner on the strength of Full Bench
Judgement of this Court in Mahesh
Chandra Ex-LNK/CI Vs. Union of India
and others; [(2004) 3 UPLBEC 2389],
vehemently argued that the instant writ
petition cannot be thrown away on the
ground of availability of alternative
remedy. In an attempt to substantiate his
assertions, Learned counsel for the
petitioner has drawn attention of the court
towards conclusion nos. iv, v, vi and vii
drawn in the aforesaid judgement, which
read as under:
656
 INDIAN LAW REPORTS ALLAHABAD SERIES
"(iv). Having said this, it needs to be
emphasised
that
the
existence
of
jurisdiction and the nature of its exercise
have
distinct
connotations
in
constitutional law. The Armed Forces
Tribunal is constituted by legislation
which provides for a specialized and
efficacious administration of justice in
matters falling within its jurisdiction
under the provisions of the Act. This is
coupled with the need to maintain
discipline in the Armed Forces;
(v) The Armed Forces Tribunal is a
Court of first instance and ordinarily,
matters which fall within the purview of
its jurisdiction have to proceed for
adjudication before the Tribunal and the
Tribunal alone. Against the decision of
the Tribunal, there is a statutory remedy
of an appeal which is provided under
Sections 30 and 31 to the Supreme Court;
(vi) Since a statutory remedy of an
appeal is provided, the principles which are
well established for the exercise of the
jurisdiction under Article 226, would
warrant that the High Court should be
circumspect and careful while determining
as to whether any case for the exercise of
jurisdiction under Article 226 of the
Constitution is made out;
(vii) The jurisdiction under Article
226 has not been abrogated as it could
not have been, being a basic and essential
feature of the Constitution."
8. Thus this court is required to first
answer
the
question
regarding
maintainability of the writ petition against
the order passed by the Armed Forces
Tribunal, Regional Bench, Lucknow.
9. With regard to maintainability of the
writ petition and availing alternative remedy,
it would be apt to reproduce the law
propounded by the Apex Court in United
Bank of India v. Satyawati Tondon (2010)8
SCC 110 observed as under:-
" It is true that the rule of exhaustion of
alternative remedy is a rule of discretion and
not one of compulsion, but there can be no
reason why the High Court should entertain a
petition filed under Article 226 of the
Constitution and pass interim order ignoring
the fact that the petitioner can avail effective
alternative remedy by filing application,
appeal, revision, etc and that the particular
legislation contains a detailed mechanism for
redressal of his grievance."
10. In Shri Kant Sharma's case [supra]
which has been relied by the Union of India,
the question raised before the Apex Court
was whether the right of appeal under
Section 30 of the Armed Forces Tribunal
Act, 2007 against an order of Armed Forces
Tribunal with the leave of the Tribunal under
Section 31 of the Act on 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.
11.
The Apex Court after examining
various case laws rendered on the subject and
provisions of the Armed Forces Tribunal
Act, 2007 summarized the conclusions as
under:-
"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,
2 All]
NR-20124W, Lt. Col. Military Nursing Services) Madhu Lata Gaur Vs. Armed Forced Tribunal, Regional Bench & Ors. 657
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.
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. 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.
12. It would be relevant to add that
in the case of L. Chandra Kumar Vs.
Union of India and others, reported in
AIR 1997 SC 1125, on which reliance has
been placed by the petitioner, a seven
Judges Constitution Bench of Hon'ble
Supreme Court held as under:-
"Though judicial review in the basic
feature of the Constitution, the vesting of
power of judicial review in an alternative
institutional mechanism, after taking it
away from the High Courts, would not do
violence to the basic structure so long as
it was ensured that the alternative
mechanism was an effective and real
substitute for the High Court."
13. In the case of Central Coalfields
Ltd. vs. State of Jharkhand and others
(2005) 7 SCC, 492, it has been held that :
"If there is statutory alternative
remedy available to a person under an
statute itself, in that case the writ petition
should not be entertained under Article
226 of the Constitution of India and the
petitioner is directed to avail the
alternative statutory remedy."
658
 INDIAN LAW REPORTS ALLAHABAD SERIES
14. In Nivedita Sharma Versus
Cellular Operator Assn Of India and
others; (2001)14 SCC 337 the Apex Court
noticed that when a statutory forum is
created by law for redressal of grievances,
a writ petition should not be entertained
ignoring the statutory dispensation.
15. In Cicily Kallarackal vs. Vehicle
Factory 2012(8) SCC 524 the Apex Court
issued a direction of caution that it will not
be proper exercise of the jurisdiction by the
High Court to entertain a writ petition
against such orders against which statutory
appeal lies before the Apex Court.
16. Before parting, it may be pointed
out that the law declared by Hon'ble
Supreme Court is binding on all courts,
including High courts, and High courts
cannot ignore it on the ground that
relevant provisions were not brought to
the notice of the Apex Court or that the
Apex Court laid down the legal position
without considering all the points, and
therefore its decision is not binding. See:
[Ballabhdas versus Municipal Committee,
(1970) 2 SCC 267].
17.
In view of the aforesaid legal
proposition, it is imminently clear that the
writ petition filed by the petitioner assailing
the order of the Tribunal is not maintainable
and as such this Court is not inclined to
exercise discretionary writ jurisdiction under
Article 226 of the Constitution and the writ
petition is liable to be dismissed.
18. For the reasons aforesaid, the
writ petition is dismissed being not
maintainable. It is clarified that this Court
has not delve into the merits of the case.
19. Costs easy.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.05.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
HON'BLE SHRI NARAYAN SHUKLA, J.
Misc. Bench No. 3146 of 2015 with Misc.
Bench No. 1779 of 2015
Lok Prahari Thru. General Secy. [PIL]
.Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
S.N. Shukla (In Person)
Counsel for the Respondents:
C.S.C., Abhinav N. Trivedi, V.K. Dubey
Constitution of India, Art. 226-Public
Interest
Litigation-Petitioner
seeking
direction-to declare MLA seat vacant-on
disqualification after conviction-in criminal
case-although conviction and execution of
sentense stayed-suspended by Appellate
Court-in view of provisions Section 8(3) of
Representation of people Act-held-once
similar prayer refused in shape of PILkeeping in view of decision of Lily Thomas
case-petition misconceived.
Held: Para-13
Thus, it is clear that notwithstanding the
declaration of Section 8(4) of the Act as
ultra
vires,
the
Supreme
Court
has
protected the consequence of the exercise
of the power contained in Section 389(1)
of the Code so that where the appellate
court in the exercise of the power stays
the conviction, the disqualification which
would otherwise stand attracted will not
operate from the date on which the
conviction has been stayed.
Case Law discussed:
(2007) 2 SCC 574; (2013) 7 SCC 653; (1995) 3
SCC 513; (2007) 1 SCC 673; (2001)7 SCC 231.