# Sandeep Yadav v. Armed Forces Tribunal, Lucknow & Ors

- **Citation:** (2022) 2 ILRA 433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-20
- **Case number:** Writ-A No. 19332 of 2021
- **Bench:** Anjani Kumar Mishra, Vikram D Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-yadav-v-armed-forces-tribunal-lucknow-ors-48126
- **Pages:** 11

## Headnote

A. Civil Law - Constitution of India1950-Article 226 - Armed Force Tribunal
Act, 2007-Section 30, 31 - challenge todismissal
order-Petitioner
was
discharged from his service being failed
in final-test in military training-Tribunal
dismissed the original application for
paying
salary
with
consequential
benefits during the pendency of the
434 INDIAN LAW REPORTS ALLAHABAD SERIES
case-petitioner
by-passed
statutory
alternative remedy provided under the
Act,
2007-petitioner
invoked
extraordinary jurisdiction Under Article
226 of the Constitution of India for
entertaining the writ petition on the
ground of economic disability-nothing
on the record to demonstrate the poor
financial condition of the petitionerremedy provided under the statute by
way of appeal before the Apex Court,
being not efficacious on the ground of
economic disability, is not permissible
unless the mechanisms under the Legal
Service Authority Act, 1987 and the
Supreme Court Middle Income Group
Legal Aid Scheme has been approached
and exercised by the petitioner in the
case of economic disability.( 1 to 32)

B. In exercise of powers under Article
226 of the Constitution bypassing the
statutory remedy, it is the duty of the
petitioner to bring complete facts and
circumstances by way of pleadings. if
the factual foundation for the cause of
action in approaching the court is
missing or is vague, then it is always
open for the court to deny the relief to
the
petitioner
in
the
facts
and
circumstances of the particular case.
The writ courts normally refrain from
exercising their extraordinary power if
the
petitioner
has
an
alternative
efficacious
remedy.
the
rule
of
alternative
remedy
is
a
rule
of
discretion and not a rule of jurisdiction.
The existence of such remedy does not
mean that the jurisdiction of the High
Court is ousted.(Para 19 to 27)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

2 All. Sandeep Yadav Vs. Armed Forces Tribunal, Lucknow & Ors.
433
services to citizens. Even during the
pandemic the courts have delivered justice
to the citizens without the citizens being
physically present at the place where the
court is situated and in this respect the role
of digital technology has been crucial. A
citizen has all the means in place to
approach the Supreme Court using the
digital
process
and
technology.
The
Internet,
emails,
e-filing
and
video
conference have revolutionised the way a
person can communicate and avail Justice.
In the recent past, the country has
witnessed "work from home" as an
important tool for the working class and on
the same footing various measures have
been taken by the apex court for enabling
the citizens to get "justice at doorstep" and
the distance between the citizen and the
apex court is of no consequence as a result
of the digital process. The alternative
digital channel being put in place by the
Apex Court for justice delivery can always
be availed by the petitioner to approach the
statutory remedy under the Armed Forces
Tribunal Act. Once the alternate channel is
available to the petitioner by using
telecommunication and digital technology,
the plea of the petitioner that the present
writ petition may be entertained is not
acceptable.

31. Once the petitioner has not
demonstrated before this Court that there
exists
special
circumstances
and
his
physical
disability
is
such
that
the
petitioner is not in a position to approach
the Apex Court, the writ petition cannot be
entertained.
A
generalized
and
bald
statement has been made by the petitioner
in the writ petition with regard to his
physical condition and ailment. However,
no specific ailment has been described in
the writ petition in order to permit this
Court to assess the physical condition of
the petitioner. On the basis of vague and
bald statement, the petitioner cannot be
permitted to bypass the alternative remedy
of appeal.

32. In the result, we do not find any
good reason to by-pass the statutory
alternative remedy provided under the
Armed Forces Tribunal Act, 2007. The writ
petition is dismissed on the ground of
statutory alternative remedy available to the
petitioner leaving it open for the petitioner
to file an appeal before the Hon'ble
Supreme Court in accordance with the
provisions of the Armed Forces Tribunal
Act, 2007.
----------
(2022)02ILR A433
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2022

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE VIKRAM D CHAUHAN, J.

Writ-A No. 19332 of 2021

Sandeep Yadav ...Petitioner
Versus
Armed Forces Tribunal, Lucknow & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Rang Nath Pandey, Sri Rahul Pandey

Counsel for the Respondents:
A.S.G.I., Sri Arvind Nath Agrawal

A. Civil Law - Constitution of India1950-Article 226 - Armed Force Tribunal
Act, 2007-Section 30, 31 - challenge todismissal
order-Petitioner
was
discharged from his service being failed
in final-test in military training-Tribunal
dismissed the original application for
paying
salary
with
consequential
benefits during the pendency of the
434 INDIAN LAW REPORTS ALLAHABAD SERIES
case-petitioner
by-passed
statutory
alternative remedy provided under the
Act,
2007-petitioner
invoked
extraordinary jurisdiction Under Article
226 of the Constitution of India for
entertaining the writ petition on the
ground of economic disability-nothing
on the record to demonstrate the poor
financial condition of the petitionerremedy provided under the statute by
way of appeal before the Apex Court,
being not efficacious on the ground of
economic disability, is not permissible
unless the mechanisms under the Legal
Service Authority Act, 1987 and the
Supreme Court Middle Income Group
Legal Aid Scheme has been approached
and exercised by the petitioner in the
case of economic disability.( 1 to 32)

B. In exercise of powers under Article
226 of the Constitution bypassing the
statutory remedy, it is the duty of the
petitioner to bring complete facts and
circumstances by way of pleadings. if
the factual foundation for the cause of
action in approaching the court is
missing or is vague, then it is always
open for the court to deny the relief to
the
petitioner
in
the
facts
and
circumstances of the particular case.
The writ courts normally refrain from
exercising their extraordinary power if
the
petitioner
has
an
alternative
efficacious
remedy.
the
rule
of
alternative
remedy
is
a
rule
of
discretion and not a rule of jurisdiction.
The existence of such remedy does not
mean that the jurisdiction of the High
Court is ousted.(Para 19 to 27)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. U.O.I. Vs Major General Shri Kant Sharma &
ors. (2015) 6 SCC 773

2. Ram Naresh Ram Vs U.O.I. & ors., Writ -A
No. 15281 of 2021

3. Mahesh Chand Ex-LNK/CI Vs U.O.I .(2014) 3
ESC 1614
4. Balkrishna Ram Vs U.O.I. & anr. (2020) 2
SCC 442
(Delivered by Hon'ble Vikram D Chauhan, J.)

1. The present writ petition is filed by
the petitioner challenging the order dated
28th October, 2021 passed by the Armed
Forces Tribunal (RB), Lucknow in Original
Application No.208 of 2017, Sandeep
Yadav Vs. Union of India and others. The
petitioner
has
further
challenged
discharge/dismissal order dated 7th March,
2017 passed by respondent no.5 and order
dated 10th January, 2017 passed by the
Director General Recruiting/Recruiting B
AG's Branch, Integrated Head Quarter of
Ministry of Defence (Army), New Delhi.

2. The brief facts of the case arising in
the present writ petition are that the
petitioner was enrolled in the Army on 4th
June, 2014 and he underwent basic military
training at The Parachute Regimental
Training Centre w.e.f. 4th August, 2014.
On completion of basic military training, he
was sent to Maratha Light Regimental
Centre for technical training of Clerk (Staff
Duties)
which
commenced
on
22nd
December, 2014. However, the petitioner
failed in midterm test and was relegated
thrice in terms of policy letter dated 6th
January, 1995 and 10th April, 1996.
According to aforesaid policy, a recruit
who could not pass even after relegating
and three months detention, should be remustered or discharged from service. The
petitioner failed in final test on 9th
February, 2016 and was returned to the
Parachute Regimental Centre. Petitioner
made a request for change of his trade from
Clerk (Staff Duties) to Soldier Tradesman
(Dresser) vide personal application dated
31st March, 2016. Accordingly, a case was
taken up with Ministry of Defence
(Infantry-6) and his case was turned down
2 All. Sandeep Yadav Vs. Armed Forces Tribunal, Lucknow & Ors.
435
on the ground that his height was 06 cms
short to become a soldier tradesman. A
show cause notice dated 25th January, 2017
was served upon the petitioner to which he
replied on 13th February, 2017 and after
receipt of reply he was discharged from
service w.e.f. 7th March, 2017 under Rule
13(3)(iv) of Army Rules, 1954 on the
ground of 'Unlikely to become a soldier'.

3. The petitioner thereafter, preferred
Original Application No.208 of 2017
before
the
Armed
Forces
Tribunal,
Regional
Bench,
Lucknow
with
the
following prayers:-

"i. That this Hon'ble Tribunal may
kindly be pleased and directed to the opp.
Parties to quash the dismissal/discharge
order
dated
7-3-2017
and
letter
No.62518/Rangroot
B(A)
dated
10.01.2017 or any adverse order which
was passed by the opposite parties after
summoning the same during the pendency
of
the
case
&
pay
salary
with
consequential
benefits
etc.
to
the
petitioner.

ii. That this Hon'ble Tribunal may
kindly be pleased to to pass any other
order or directions which is deem just &
proper in favour of the petitioner."

4. The above mentioned original
application
was
contested
by
the
respondents before the Tribunal below and
the Tribunal below by impugned judgment
dated 28th October, 2021 has dismissed the
above mentioned original application of the
petitioner.

5. It is the impugned order dated 28th
October, 2021 passed by the Armed Forces
Tribunal, Regional Bench, Lucknow, which
is subject matter of challenge in the present
writ petition.

6. Sri Arvind Nath Agrawal, learned
counsel appearing on behalf of respondents
has at the very outset raised a preliminary
objection with regard to the maintainability
of the writ petition under Article 226 of the
Constitution of India on the ground that the
petitioner has a statutory alternative remedy
of filing an appeal under Sections 30 and
31 of the Armed Forces Tribunal Act, 2007
(hereinafter referred to as the "Act No.55
of 2007") and in view of the aforesaid, the
present writ petition is liable to be
dismissed on the ground of alternative
remedy. In this reference, Shri Arvind Nath
Agrawal has relied upon the judgment of
the Apex Court in Union of India Vs
Major General Shri Kant Sharma and
others, reported in 2015 (6) SCC 773 and
judgment dated 1st November, 2021 passed
by this Court in Writ-A No 15281 of 2021 -
Ex-Hav Clerk (Stores) Ram Naresh Ram
Vs Union of India and others to contend
that the present writ petition is not liable to
be entertained on the ground of alternative
remedy of filing an appeal.

7. Confronted with the aforesaid
preliminary objection raised on behalf of
the respondents, counsel for the petitioner
has submitted that although there is an
alternative remedy under Sections 30 and
31 of the Act of 2007, by way of preferring
an appeal before the Hon'ble Supreme
Court, however, on account of the poor
financial condition of the petitioner, the
aforesaid remedy would not be efficacious
in the facts and circumstances of the case
and as such, the writ petition is liable to be
entertained. Further, the counsel for the
petitioner has also relied upon the order
dated 5th January, 2021 passed in Service
Bench No.26242 of 2020, annexure 16 and
order dated 8th December, 2015 in Service
Single No.6239 of 2015, annexure 17 to the
writ petition to contend that on previous
436 INDIAN LAW REPORTS ALLAHABAD SERIES
occasions
in
similar
facts
and
circumstances, the writ petition has been
entertained by this Court.

8. The Act No. 55 of 2007 has been
enacted to provide for the adjudication or
trial by the Armed Forces Tribunal of
disputes and complaints with respect to
commission, appointments, enrolment and
conditions of service in respect of persons
subject to the Army Act, 1950, the Navy
Act, 1957 and the Air Force Act, 1950 and
also to provide for appeals arising out of
orders, findings or sentences of court
martial held under the said Acts and for
matters connected therewith or incidental
thereto.

9. The aforesaid Act No. 55 of 2007
under Section 4 provides for establishment
of Armed Forces Tribunal to exercise the
jurisdiction, powers and authority conferred
on it by or under this Act. The jurisdiction
of the Tribunal has been provided under
Section 14 of the Act No. 55 of 2007.
Section 14 provides that a person aggrieved
by an order pertaining to any service matter
may make an application to the Tribunal in
relation to all service matters. Under
Section 14(4) of the Act, the Tribunal is
vested with the same powers as with the
civil court while trying a suit in respect of
matters enumerated under Section 14(4). It
is further to be seen that the Tribunal is the
authority under the aforesaid Act to decide
both the questions of law and facts as may
be raised before it.

10. The provisions of appeal under
Sections 30 and 31 of the Act of 2007 is
provided against an order passed by the
Armed Forces Tribunal to the Supreme
Court. It is not in dispute between the parties
that the remedy of appeal is provided under
the Act against the impugned order dated
27th August, 2021 passed by the Armed
Forces Tribunal, Regional Bench, Lucknow.
Further, Section 33 of the Armed Forces
Tribunal Act provides for exclusion of the
jurisdiction of the civil court.

11. It is trite of law that the power of
judicial review vested in the High Court
under Article 226 and 227 of the Constitution
to exercise judicial superintendents over the
decision of all Courts and Tribunals within
the respective jurisdiction is also part of the
basic structure of the Constitution. Broadly
speaking, judicial review in India comprises
three aspects: judicial review of legislative
action, judicial review of judicial decisions
and judicial review of administrative action.
The present case pertains to judicial review of
judicial decisions.

12. The jurisdiction under Article 226
of the Constitution of India is extraordinary
and discretionary in nature. It is also to be
noted that the powers to be exercised by the
High Court under Articles 226 and 227 are
constitutional powers and the same cannot be
excluded by legislation. The Armed Forces
Tribunal Act cannot curtail the powers under
the grand-norm being the constitution. The
legislations
under
the
constitutional
framework is required to be in consonance
with the scheme of the Constitution specially
the scheme of judicial review provided in the
Constitution under Articles 226 and 32 of the
Constitution.

13. The Full Bench of this Court in
Mahesh Chand Ex-LNK/CI Vs Union of
India (supra) in paragraph 71 has held as
follows:-

"(i) Our jurisprudence in over six
decades
since
the
adoption
of
the
Constitution has evolved a clear, categoric
and unambiguous recognition of the
2 All. Sandeep Yadav Vs. Armed Forces Tribunal, Lucknow & Ors.
437
importance of judicial review by the
Supreme Court under Article 32 and by the
High Courts under Article 226. Judicial
review is an indispensable safeguard to the
preservation of liberty, freedom and to the
realization of rights founded on the rule of
law. Without constitutionally entrenched
remedies, the realisation of fundamental
constitutional rights would be illusory or,
as Dr B R Ambedkar described it, a mere
'pious declaration': "It is the remedy that
makes a right real. If there is no remedy,
there is no right of all, and I am therefore
not prepared to burden the Constitution
with a number of pious declarations which
may sound as glittering generalities but for
which the Constitution makes no provision
by way of a remedy. It is much better to be
limited in the scope of our rights and to
make them real by enunciating remedies
than to have a lot of pious wishes embodied
in the Constitution. I am very glad that this
House has seen that the remedies that we
have provided constitute a fundamental
part of this Constitution..."50

(ii) The power of judicial review of the
Supreme Court and of the High Courts is
firmly entrenched as a basic feature of the
Constitution
which
lies
beyond
the
amending power. Even more so, ordinary
legislation
cannot
abrogate
the
constitutional power of judicial review that
is vested in the Supreme Court under
Article 32 and in the High Courts under
Article 226;

(iii) The Armed Forces Tribunal Act,
2007 does not contain, either expressly or by
necessary implication, any exclusion of the
power of judicial review that is conferred
upon the Supreme Court under Article 32 or
upon the High Courts under Article 226. The
legislation in fact contains a statutory
recognition in Section 14 that the jurisdiction
which is conferred upon the Armed Forces
Tribunal is a jurisdiction in relation to
service matters as defined in Section 3(o) as
was exercisable by all courts and tribunals
immediately before the appointed day, save
and except the jurisdiction exercisable by the
Supreme Court and the High Courts;

(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."

14. The Apex Court in Union of
India v. Major General Shri Kant Sharma
and another, (2015) 6 SCC 773 has held as
under:-

"The aforesaid decisions rendered by
this Court can be summarised as follows:
438 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) 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
the Armed Forces Tribunal Act, 2007
cannot override or curtail jurisdiction of
the High Court under Article 226 of the
Constitution of India.(Refer: L. Chandra
Kumar [L. Chandra Kumar v. Union of
India, (1997) 3 SCC 261 : 1997 SCC (L&S)
577] and S.N. Mukherjee [(1990) 4 SCC
594 : 1990 SCC (Cri) 669] .)

(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. [(1997) 5 SCC 536] )

(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 [(2011) 14 SCC 337 : (2012) 4
SCC (Civ) 947] .)

(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 [(2011)
14 SCC 337 : (2012) 4 SCC (Civ) 947].)"

15. The Apex Court in Union of
India v. Major General Shri Kant Sharma
(supra) has highlighted the anomalous
situation that will be created in case the
statutory alternative remedy is permitted to
be bypassed. In this reference, attention is
drawn to paragraph 43 and 44 of Union of
India v. Major General Shri Kant Sharma
(supra):-

"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 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 the 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
2 All. Sandeep Yadav Vs. Armed Forces Tribunal, Lucknow & Ors.
439
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 Armed Forces Tribunal Act.

The High Court (the Delhi High
Court) while entertaining the writ petition
under Article 226 of the Constitution
bypassed the machinery created under
Sections 30 and 31 of the Act. However, we
find that the 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 the
Delhi High Court was not justified in
entertaining the petition under Article 226
of the Constitution of India."

16. The Apex Court in Balkrishna
Ram Vs Union of India (supra) has held as
under:-

"1. Leave granted. One of the issues
raised in this appeal is whether an appeal
against an order of a Single Judge of a
High Court deciding a case related to an
Armed Forces personnel pending before
the High Court is required to be
transferred to the Armed Forces Tribunal
or should be heard by the High Court.

14. It would be pertinent to add that
the principle that the High Court should
not
exercise
its
extraordinary
writ
jurisdiction when an efficacious alternative
remedy is available, is a rule of prudence
and not a rule of law. The writ courts
normally refrain from exercising their
extraordinary power if the petitioner has
an alternative efficacious remedy. The
existence of such remedy however does not
mean that the jurisdiction of the High
Court is ousted. At the same time, it is a
well settled principle that such jurisdiction
should not be exercised when there is an
alternative remedy available [Union of
India v. T.R. Varma, AIR 1957 SC 882].
The rule of alternative remedy is a rule of
discretion and not a rule of jurisdiction.
Merely because the Court may not exercise
its discretion, is not a ground to hold that it
has no jurisdiction. There may be cases
where the High Court would be justified in
exercising its writ jurisdiction because of
some glaring illegality committed by AFT.
One
must
also
remember
that
the
alternative remedy must be efficacious and
in case of a Non-Commissioned Officer
(NCO), or a Junior Commissioned Officer
(JCO); to expect such a person to approach
the Supreme Court in every case may not
be justified. It is extremely difficult and
beyond the monetary reach of an ordinary
litigant to approach the Supreme Court.
Therefore, it will be for the High Court to
decide
in
the
peculiar
facts
and
circumstances of each case whether it
should exercise its extraordinary writ
jurisdiction or not. There cannot be a
blanket ban on the exercise of such
jurisdiction because that would effectively
mean that the writ court is denuded of its
jurisdiction to entertain such writ petitions
which is not the law laid down in L.
Chandra Kumar (supra)."

17. It is further to be seen that the
controversy involved before the Apex
Court in the matter of Balkrishna Ram Vs
Union of India and another (supra) was
whether an appeal against an order of
Single Judge of High Court deciding a case
related to an Armed Forces personnel
pending before the High Court is required
to be transferred to the Armed Forces
Tribunal or should be heard by the High
Court.
440 INDIAN LAW REPORTS ALLAHABAD SERIES

18. A Division Bench of this Court in
Writ- A No 15281 of 2021 by order dated
1st November, 2021 has considered a
similar issue and held as under:-

"5. The judgment in the case of
Balkrishna Ram (supra) and judgment in
the case of Major General Shri Kant
Sharma (supra) both were rendered by
Division Benches of Hon'ble Supreme
Court. In the case of Major General Shri
Kant
Sharma
(supra)
the
question
consdiered by Hon'ble Supreme Court was
as under :

"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 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.?"

6.
The
aforesaid
question
was
specifically answered by Hon'ble Supreme
Court in the aforequoted paragraphs 37,
38, 39 of the judgment.

7. The controversy involved before the
Hon'ble Supreme Court in the case of
Balkrishna Ram (supra) is reflected from
the paragraph 2 of the aforequoted
paragraph of the judgment which indicates
that the question involved was "whether an
appeal against an order of a single judge of
a High Court deciding a case related to an
Armed Forces personnel pending before
the High Court is required to be
transferred to the Armed Forces Tribunal
or should be heard by the High Court. ?"

8. The question so framed was
answered by Hon'ble Supreme Court with
the observations made in paragraph 14 as
aforequoted and ultimately the appeal was
dismissed with the observations made in
paragraph 19 of the judgment.

9. The question with respect to the
interpretation of Section 30 of the Armed
Forces Tribunal Act, 2007 was directly and
essentially in issue and consideration by
Hon'ble Supreme Court Union of India &
Ors. Vs. Major General Shri Kant Sharma
& Anr (supra) and it was held that no
person has a right of appeal against the
final order or decision of the Tribunal to
the Supreme Court other than those falling
under Section 30(2) of the Act, but it is
statutory appeal which lies to the Supreme
Court. Thus, against the impugned order
the petitioner has a right of appeal before
the Hon'ble Supreme Court under under
Section 30 read with Section 31 of the Act.
The judgment of Hon'ble Supreme Court in
the case of Balkrishna Ram (supra)
reiterates the well settled principle of law
with regard to the extraordinary and
discretionary jurisdiction of High Court
under Article 226 of the Constitution of
India."

19. The power of the High Court
under Article 226 of the Constitution for
judicial review of the order of the tribunal
below is not curtailed or restricted in any
manner. The remedy provided under
Article 226 of the Constitution is a
extraordinary and discretionary remedy.

20. It would be pertinent to add that
the principle that the High Court should not
exercise its extraordinary writ jurisdiction
when an efficacious alternative remedy is
available, is a rule of prudence and not a
rule of law. The writ courts normally
refrain from exercising their extraordinary
power if the petitioner has an alternative
efficacious remedy. The existence of such
remedy however does not mean that the
2 All. Sandeep Yadav Vs. Armed Forces Tribunal, Lucknow & Ors.
441
jurisdiction of the High Court is ousted. At
the same time, it is a well settled principle
that such jurisdiction should not be
exercised when there is an alternative
remedy available. The rule of alternative
remedy is a rule of discretion and not a rule
of jurisdiction. Merely because the Court
may not exercise its discretion, is not a
ground to hold that it has no jurisdiction.

21. It is further to be seen that from
the decisions stated herein above, it is clear
that the judicial review is part of the basic
structure of the Constitution and the High
Court under Article 226 of the Constitution
is not denuded of its power of judicial
review in view of Armed Forces Tribunal
Act. The power of the High Court under
Article
226
is
discretionary
and
extraordinary and is to exercise with great
caution. The exercise of the powers of
judicial review by the High Court under
Article 226 of the Constitution will depend
on the facts and circumstances of each
case. The discretion under Article 226 of
the Constitution is to be exercised by
objective assessment of the plea of the
petitioner that the statutory forum provided
under the Armed Forces Tribunal Act is not
efficacious remedy in the facts and
circumstances of the case.

22. It is the case of the petitioner that
although there is an alternative remedy of
filing an appeal under Sections 30 and 31
of the Armed Forces Tribunal Act, 2007
before the Apex Court. However, the
petitioner has approached under Article 226
of the Constitution as the remedy provided
by way of appeal under Sections 30 and 31
of the aforesaid Act is not efficacious for
the petitioner on account of financial
disability of petitioner who is not in a
position to afford the expenses of litigation
and the fees of the Advocates at the
Supreme
Court
which
is
also
very
exorbitant.

23. The petitioner on the basis of his
poor
financial
condition
has
sought
intervention of this Court under Article 226
of the Constitution against the impugned
order passed by the Armed Forces
Tribunal.

24. The pleadings are the foundation of
litigation. In pleadings, the necessary and
relevant particulars and material must be
included and unnecessary and irrelevant
material must be excluded. Pleadings in a
particular case are the factual foundation on
which the case of the litigant is based on. The
pleadings should be specific in the petition
and should disclose the complete cause of
action for approaching the court. In case
where
the
petitioner
is
praying
for
intervention of this court in exercise of
powers under Article 226 of the Constitution
by passing the statutory alternate remedy, it is
the duty of the petitioner to bring complete
facts and circumstances by way of pleadings
in the writ petition as to why the remedy of
appeal (statutory alternative remedy) is not an
efficacious
remedy
in
the
facts
and
circumstances of the case. If the factual
foundation for the cause of action in
approaching the court is missing or is vague,
then it is always open for the court to deny
the relief to the petitioner/litigant in the facts
and circumstances of the particular case.

25. In the present case, the factual
foundation with regard to the remedy of
appeal being not efficacious is pleaded in
paragraph 23 of the writ petition and the
same is quoted hereinbelow :-

"That, petitioner belongs to poor
labourer family and having responsibilities
of earning bread and butter for his entire
442 INDIAN LAW REPORTS ALLAHABAD SERIES
family members including old ailing
parents and has been discharged from
Army service and is unable to afford the
expenses of Hon'ble Apex Court to
challenge the impugned order dated
28.10.2021 passed by respondent no.1 as
advocates of Hon'ble Supreme Court are
very expensive, hence left with no options
filling the same before this Hon'ble court
and
this
Hon'ble
court
is
having
jurisdiction to entertain the same as per
power
vested
under
Article
226
of
Constitution of India."

26. A perusal of the aforesaid
paragraph 23 of the writ petition would
demonstrate that except for the bald
statement with regard to poor financial
condition of the petitioner, there is nothing
on record to demonstrate the poor financial
condition of the petitioner. Further, the
petitioner
has
also
alleged
that
the
Advocates in the Supreme Court are very
expensive and as such he is not in a
position to engage the aforesaid Advocates
and bear the litigation expenses.

27. The submission of the petitioner
that he is not in a position to prefer an
appeal before the Supreme Court on
account of his pity condition further cannot
be
accepted
as
the
Parliament
has
promulgated Legal Service Authority Act,
1987 to constitute legal services authorities
to provide free and competent legal
services to the weaker sections of the
society to ensure that opportunities for
securing justice are not denied to any
citizen by reason of economic or other
disabilities. Section 12 of the Legal Service
Authority Act, 1987 enlist the sections of
the society who are entitled to free legal
services. In furtherance thereof, Supreme
Court Legal Services Committee has been
constituted to provide legal aid and
assistance to the marginalized and weaker
sections of the Society.

28. Apart from the aforesaid, the
Apex Court has also constituted a scheme
known as "Supreme Court Middle Income
Group Legal Aid Scheme" to provide legal
services to the middle income group
citizens. The scheme is applicable to cases
intended to be filed before the Supreme
Court. The aforesaid scheme has been
constituted under the aegis of Supreme
Court Middle Income Group Legal Aid
Society of which the Chief Justice of India
is the patron-in-Chief.

29. The aforesaid Act of 1987 and the
Scheme for Middle-Income Group are
necessitated in furtherance of Article 39A
of the Constitution that provides the State
shall secure that the operation of the legal
system promotes justice on the basis of
equal opportunity, and shall, in particular,
provide
free
legal
aid,
by
suitable
legislation or schemes or in any other way,
to ensure that opportunities for securing
justice are not denied to any citizen by
reason of economic or other disabilities.

30. The Government and the Supreme
Court has constituted channels for free
legal service to all the persons who are not
in a position to access justice on account of
their weak financial position and as such,
the citizens are entitled to take the benefit
of the aforesaid free legal service where a
person finds himself not in a position to
approach the court on account of his
financial position.

31. It is also to be seen that once
various avenues for providing free legal aid
has been set up at the Supreme Court in
order to enable the litigant to secure justice
and that his distressed financial position
2 All. Rituraj Textiles & General Indus. (P) Ltd. Vs. Presiding Officer Labour Court (I)
 Ghaziabad & Ors.
443
may not come in the way of his securing
justice and the justice is not denied to the
litigant
by
reason
of
his
economic
disability, we do not find any reason to
entertain the present writ petition under
extraordinary jurisdiction under Article 226
of
the
Constitution.
The
economic
disability of a litigant has been addressed
by the Apex Court by constitution of
Supreme Court Legal Service Committee
and Supreme Court Middle Income Group
Legal Aid Scheme. Once the channels for
addressing the economic disability of the
litigant has been set up by the Apex Court
and the litigants have been provided fair
opportunity to secure justice by providing
free legal aid under the various scheme and
the Act of 1987, the financial/economic
disability may not be a ground for bypassing the statutory alternative remedy
provided under the Armed Forces Tribunal
Act, 2007. The economic disability of a
litigant has already been addressed and the
institutional framework for securing justice
to litigants having economic disability have
already been put in place. It is always open
for the petitioner to approach the aforesaid
mechanisms to secure justice and to prefer
appeal before the Supreme Court. The
question that the remedy provided under
the statute by way of appeal before the
Apex Court, being not efficacious on the
ground of economic disability, is not
permissible unless the mechanisms under
the Legal Service Authority Act, 1987 and
the Supreme Court Middle Income Group
Legal Aid Scheme has been approached
and exercised by the petitioner in the case
of economic disability.

32. In the result, we do not find any
good reason to by-pass the statutory
alternative remedy provided under the
Armed Forces Tribunal Act, 2007. The writ
petition is dismissed on the ground of
statutory alternative remedy available to the
petitioner leaving it open for the petitioner
to file an appeal before the Hon'ble
Supreme Court in accordance with the
provisions of the Armed Forces Tribunal
Act, 2007.
----------
(2022)02ILR A443
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ-C No. 9414 of 2017

Rituraj Textiles & General Indus. (P) Ltd.
 ...Petitioner
Versus
Presiding
Officer
Labour
Court
(I)
Ghaziabad & Ors. ...Respondents

Counsel for the Petitioner:
Sri Jamal Ahmad Khan

Counsel for the Respondents:
C.S.C., Sri Harish Chandra

A. Labour Law - Principle of natural justice
- Applicability - Award passed ex-parte -
No service of notice to the employer -
Restoration application was rejected solely
on the ground of delay - Held, the learned
court below while passing the impugned
order neglected to consider the fact that the
petitioner was not served notice of the
proceedings and hence could not prosecute
the case - The applicant was prevented by
good cause from contesting the case on
merits. The impugned award was passed in
violation of principles of natural justice.
(Para 6 and 8)
Writ petition allowed. (E-1)
List of Cases cited:
1. M/s Haryana Suraj Malting Ltd. Vs Phool
Chand; 2018 (16) SCC 567