# Union Of India & Ors v. Armed Forces Tribunal Regional Bench & Ors

- **Citation:** (2016) 4 ILRA 149
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-25
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-ors-v-armed-forces-tribunal-regional-bench-ors-43559
- **Pages:** 7

## Text

4 All. Union Of India & Ors. Vs Armed Forces Tribunal Regional Bench & Ors.
149
Gorakhpur and others) is hereby quashed. So far order passed by SOC dated 24.7.2002 is
concerned I do not find any error in the same considering the discussions made herein above.

12. The writ petition is allowed in part as discussed above.

13. However, the SOC is directed to decide the pending appeal expeditiously not later than six
months from the date of production of a certified copy of the order of this Court in accordance with
law after hearing all concerned.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.04.2016

BEFORE

THE HON'BLE RAJAN ROY, J.

Service Single No.- 5131 Of 2016

Union Of India & Ors. ...Petitioners
Versus
Armed Forces Tribunal Regional Bench & Ors. ...Respondents

Counsel for Petitioners:
Alok Mathur

The challenge is on the ground that the respondent was a trainee in the Indian Military Academy and,
therefore, the dispute raised in the original application was not amenable to the jurisdiction of the Tribunal in
view of the definition of "Service Matters" contained in Section 3 (o) of the Act of 2007.

The first and foremost question which arises for consideration in this writ petition is its maintainability under
Article 226 of the Constitution considering the provisions contained in Section 30 of the Act of 2007.

A writ petition under Article 226 of the Constitution of India involving a question of jurisdiction would be
maintainable, irrespective of availability of statutory remedy, but against the aforesaid backdrop and in view
of dictum of the Supreme Court in Srikant Sharma's case there being a statutory remedy available to the
petitioners under Section 30 read with Section 31 of the Act of 2007, which has not been availed, it would not
be desirable for this High Court under Article 226 of the constitution to entertain this writ petition as it will
lead to an anomalous situation

The writ petition is dismissed.

List of Cases Cited:

1. Union of India v. P.S. Gill 2012(4) SCC 413
2. Mahesh Chand v. Union of India 2014(6) Allahabad Law Journal 435
3. Ravindra Nath Tripathi v. Union of India
4. Col. Ad. Gargolkar v. Union of India
150 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Union of India v. Srikant Sharma 2015 (6) SCC 773

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard.

2. This is a writ petition filed by the Union of India challenging the impugned order dated
28.10.2015 (Annexure-1 to the writ petition) passed by the Armed Forces Tribunal, Regional
Bench, Lucknow in Original Application No.215 of 2012, N.K. Singh v. Union of India & ors.,
whereby the Tribunal has held the said original application to be maintainable before it under the
Armed Forces Tribunal Act 2007 (hereinafter referred as ''Act of 2007').

3. The challenge is on the ground that the respondent was a trainee in the Indian Military
Academy and, therefore, the dispute raised in the original application was not amenable to the
jurisdiction of the Tribunal in view of the definition of "Service Matters" contained in Section 3 (o)
of the Act of 2007 and a recent pronouncement by a division bench of this court dated 24.11.2015
rendered in Special Appeal No.833 of 2015 (Annexure-5 to the writ petition).

4. Learned counsel for the petitioner submits that the impugned order is an interlocutory order
which does not dispose of the proceedings before the Tribunal, therefore, the writ petition under
Article 226 of the Constitution of India (for short ''Constitution') is maintainable, as, against such
an order an appeal will not lie before the Supreme Court under Section 30 of the Act of 2007. In
this regard he relies upon judgments of the Supreme Court reported in A.I.R. 1968 SC 733, Mohan
Lal Magan Lal Thacker v. State of Gujrat and 1980 Supp. SCC 92, V.C. Shukla v. C.B.I.

5. The first and foremost question which arises for consideration in this writ petition is its
maintainability under Article 226 of the Constitution considering the provisions contained in
Section 30 of the Act of 2007 which reads as under:

"Section-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--
4 All. Union Of India & Ors. Vs Armed Forces Tribunal Regional Bench & Ors.
151

(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."

6. Under the aforesaid provision an appeal lies to the Supreme Court against the final decision
or order of the Tribunal (other than an order passed under Section 19). No appeal lies under the said
provision against an interlocutory order of the Tribunal. The remedy of appeal is of course subject
to the provisions of Section 31 i.e. it will lie only with the leave of the Tribunal which shall be
granted only if 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. If leave is refused by the Tribunal, an application to the Supreme Court
for leave can be filed. Thus, the appeal is not as a matter of right. (Reference may be made in this
regard to the pronouncement of the Supreme Court reported in 2012(4) SCC 413, Union of India v.
P.S. Gill.

7. The question of maintainability of a writ petition under Article 226 of the Constitution
against an order of the Tribunal fell for consideration before a Full Bench of this Court in the case
of Mahesh Chand v. Union of India reported in 2014(6) Allahabad Law Journal 435 and their
lordships opined that the writ petition under Article 226 of the Constitution was maintainable. The
Full Bench referred two decisions of the Delhi and Madhya Pradesh High Courts rendered in the
case of Ravindra Nath Tripathi v. Union of India and Col. Ad. Gargolkar v. Union of India
wherein the said High Courts had held the writ petition to be maintainable following the law laid
down in the case of L. Chandra Kumar. Relevant extracts of Full Bench decision are quoted
hereinbelow:

"59. Conclusion

(i) Our jurisprudence in over six decades since the adoption of the Constitution has
evolved a clear, categoric and unambiguous recognition of the 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
152 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

8. The aforesaid issue subsequently fell for consideration before the Supreme Court in the case
of Union of India v. Srikant Sharma reported in 2015 (6) SCC 773 wherein it took a different view
of the matter and reversed the decision of the Delhi High Court in the case of A.D. Nargolkar
(supra.) and other similar decisions. It recorded that the power of judicial review vested in the
High Court under Article 226 of the Constitution is one of the basic essential features of the
Constitution and any legislation including the Act of 2007 cannot over-ride or curtail jurisdiction of
the High Court under Article 226 of the Constitution of India, but, the High Court will certainly
4 All. Union Of India & Ors. Vs Armed Forces Tribunal Regional Bench & Ors.
153
have due regard to the legislative intent evidenced by the provisions of the Act and would exercise
their jurisdiction consistent with such provisions. It also held that when a statutory forum is created
by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory
dispensation. 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 the grievance. In
doing so the Supreme Court took into consideration various provisions of the Act of 2007 and its
own pronouncements including L. Chandra Kumar's case. In paras 42 and 43 the Supreme Court
referred to a anomalous situation which shall arise if the High Court entertains a petition under
Article 226 of the Constitution against an order passed by the Armed Forces Tribunal under Section
14 or Section 15 of the Act bypassing the machinery of statute i.e. Section 30 and 31 of the Act of
2007. It also took into consideration the provisions of Article 227(4) and 136(2) of the Constitution
which prohibit the exercise of power by the High Courts and the Supreme Court under respective
provisions in respect to orders and actions by any court or Tribunal constituted under law relating
to Armed Forces. It held that it is always desirable of the High Court to act in terms of the law laid
down by the Supreme Court as referred therein which is binding on the High Court under Article
141 of the Constitution allowing the aggrieved person to avail the remedy under Section 30 read
with Section 31 of the Armed Forces Tribunal.

9. Paragraphs 42,43,44,45 and 46 of the aforesaid decision are quoted herein below:

"42. If the High Court entertains a petition under Articled 226 of the Constitution of India
against an order passed by the 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.

43. 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 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
154 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Tribunal Act.

44. 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 the Delhi High Court was not justified in entertaining the
petition under Article 226 of the Constitution of India.

45. For the reasons aforesaid, we set aside the impugned judgments passed by the Delhi
High Court and uphold the judgments and orders passed by the Andhra Pradesh High Court and
Allahabad High Court. Aggrieved persons are given liberty to avail the remedy under Section 30
with leave to appeal under Section 31 of the Act, and if so necessary may file petition for
condonation of delay to avail remedy before this Court.

46. The Civil Appeal Nos.7400, 7375-76, 7399, 9388-89 of 2013 are allowed and the
Civil Appeal Nos.7338 of 2013 and 96 of 2014 are dismissed.

10. The Full Bench decision in Mahesh Chand's case (Supra) was rendered prior to the
judgment of the Supreme Court in Srikant Sharma's case (supra).

11. The ratio contained in the aforesaid decision in Shrikant Sharma's case (supra) does not
apply to a writ petition under Article 226 of the constitution challenging an interlocutory order, as,
no appeal lies against such an order to the Supreme Court under Section 30 read with Section 31 of
the Act of 2007 nor any petition under Article 227 lies before the High Court.

12. Now the question to be considered herein is as to whether the order impugned in this writ
petition (Annexure-1 to the writ petition) is a final decision or order as envisaged under Section 30
of the Act of 2007 or is an interlocutory order.

13. The impugned order decides the question of maintainability of the original application
filed by the respondent no.3 before the Tribunal under the provisions of the Act of 2007, meaning
thereby it decides the question of jurisdiction of the Tribunal to entertain the original application
based on the subject matter in issue therein and the relief claimed.

14. A jurisdictional issue goes to the root of the matter, therefore, a decision on such
jurisdictional issue determines valuable rights of the parties as to the forum available in law for
redressal of their grievances. An adverse decision will have the effect of disposing of the
proceedings. A favourable decision, even though it does not dispose of the proceedings which
ought to continue for the purposes of determination of the controversy on merits, disposes of the
4 All. Raman Gupta & Anr. Vs Shri Anil Kumar Goel
155
jurisdictional issue finally. There is an element of finality attached to such a decision. It operates as
res judicata not only to subsequent stages of the proceedings, but otherwise also, therefore, it
cannot be said that such an order is purely an interlocutory order which does not decide any issue
or right finally.

15. The Tribunal while passing the impugned order dated 28.10.2015 has held the original
application to be maintainable considering the definition of "Service Matters" under Section 3(o) of
the act of 2007, thus, it has decided the point of jurisdiction finally. It has also considered the
decision of the Principal Bench of the Tribunal in this regard and has observed that it is per
incurium. Whether it could have done so or not is another matter, but there is no doubt that the
impugned order decides the question of jurisdiction finally and there is no tentativeness attached to
the said order as far as proceedings before the Tribunal are concerned.

16. Though normally a writ petition under Article 226 of the Constitution of India involving a
question of jurisdiction would be maintainable, irrespective of availability of statutory remedy, but
against the aforesaid backdrop and in view of dictum of the Supreme Court in Srikant Sharma's
case there being a statutory remedy available to the petitioners under Section 30 read with Section
31 of the Act of 2007, which has not been availed, it would not be desirable for this High Court
under Article 226 of the constitution to entertain this writ petition as it will lead to an anomalous
situation as has already been pointed out by the Supreme Court in paragraphs 42 and 43 of its
judgment quoted hereinabove,

17. For the reasons aforesaid it would not be appropriate to entertain this writ petition. This
court accordingly declines to entertain it. The writ petition is dismissed only for the aforesaid
reason, with liberty to the petitioner to pursue the statutory remedies available.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.03.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Matters Under Article 227 No.- 6615 Of 2015

Raman Gupta & Anr. ...Petitioners
Versus
Shri Anil Kumar Goel ...Respondent

Counsel for Petitioners:
Rajesh Gupta

HELD: