Ex- Hav Clerk (Stores) Ram Naresh ... vs The Union Of India And 4 Others
2021 Latest Caselaw 11280 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 46
 

 
Case :- WRIT - A No. - 15281 of 2021
 

 
Petitioner :- Ex- Hav Clerk (Stores) Ram Naresh Ram
 
Respondent :- The Union Of India And 4 Others
 
Counsel for Petitioner :- Satyajit Mukerji
 
Counsel for Respondent :- A.S.G.I.,Sanjay Kumar Om
 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Vikas Budhwar,J.

1. Heard Sri Satyajit Mukerji, learned counsel for the petitioner and Sri Sanjay Kumar Om, learned Central Government standing counsel.

2. Against the impugned order dated 05.02.2018 in O.A. No.160 of 2016, passed by the Armed Forces Tribunal, Regional Bench, Lucknow, under Section 14 of the Armed Forces Tribunal Act 2007, the petitioner has a right of Appeal under Section 30 of the Act before the Supreme Court. In the case of Union of India & Ors. Vs. Major General Shri Kant Sharma & Anr. (2015) 6 SCC 773, Hon'ble Supreme Court held as under :

"33. Statutory Remedy

In Union of India vs. Brigadier P.S. Gill, (2012) 4 SCC 463, this Court while dealing with appeals under Section 30 of the Armed Forces Tribunal Act following the procedure prescribed under Section 31 and its maintainability, held as follows:

"8. Section 31 of the Act extracted above specifically provides for an appeal to the Supreme Court but stipulates two distinct routes for such an appeal. The first route to this Court is sanctioned by the Tribunal granting leave to file such an appeal. Section 31(1) in no uncertain terms forbids grant of leave to appeal to this Court unless the Tribunal certifies that a point of law of general public importance is involved in the decision. This implies that Section 31 does not create a vested, indefeasible or absolute right of filing an appeal to this Court against a final order or decision of the Tribunal to this Court. Such an appeal must be preceded by the leave of the Tribunal and such leave must in turn be preceded by a certificate by the Tribunal that a point of law of general public importance is involved in the appeal.

9. The second and the only other route to access this Court is also found in Section 31(1) itself. The expression "or it appears to the Supreme Court [pic]that the point is one which ought to be considered by that Court" empowers this Court to permit the filing of an appeal against any such final decision or order of the Tribunal.

10. A conjoint reading of Sections 30 and 31 can lead to only one conclusion viz. there is no vested right of appeal against a final order or decision of the Tribunal to this Court other than those falling under Section 30(2) of the Act. The only mode to bring up the matter to this Court in appeal is either by way of certificate obtained from the Tribunal that decided the matter or by obtaining leave of this Court under Section 31 for filing an appeal depending upon whether this Court considers the point involved in the case to be one that ought to be considered by this Court.

11. An incidental question that arises is : whether an application for permission to file an appeal under Section 31 can be moved directly before the Supreme Court without first approaching the Tribunal for a certificate in terms of the first part of Section 31(1) of the Act?

12. In the ordinary course the aggrieved party could perhaps adopt one of the two routes to bring up the matter to this Court but that does not appear to be the legislative intent evident from Section 31(2) (supra). A careful reading of the section shows that it not only stipulates the period for making an application to the Tribunal for grant of leave to appeal to this Court but also stipulates the period for making an application to this Court for leave of this Court to file an appeal against the said order which is sought to be challenged.

13. It is significant that the period stipulated for filing an application to this Court starts running from the date beginning from the date the application made to the Tribunal for grant of certificate is refused by the Tribunal. This implies that the aggrieved party cannot approach this Court directly for grant of leave to file an appeal under Section 31(1) read with Section 31(2) of the Act.

14. The scheme of Section 31 being that an application for grant of a certificate must first be moved before the Tribunal, before the aggrieved party can approach this Court for the grant of leave to file an appeal. The purpose underlying the provision appears to be that if the Tribunal itself grants a certificate of fitness for filing an appeal, it would be unnecessary for the aggrieved party to approach this Court for a leave to file such an appeal. An appeal by certificate would then be maintainable as a matter of right in view of Section 30 which uses the expression "an appeal shall lie to the Supreme Court". That appears to us to be the true legal position on a plain reading of the provisions of Sections 30 and 31."

Thus, we find that though under Section 30 no person has a right of appeal against the final order or decision of the Tribunal to this Court other than those falling under Section 30(2) of the Act, but it is statutory appeal which lies to this Court.

34. The aforesaid decisions rendered by this Court can be summarised as follows:

(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 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).

35. 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."

36. In Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) this Court observed that 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.

In Chhabil Dass Agrawal this Court 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.

In Cicily Kallarackal this Court issued a direction of caution that it will not be a proper exercise of the jurisdiction by the High Court to entertain a writ petition against such orders against which statutory appeal lies before this Court.

In view of Article 141(1) the law as laid down by this Court, as referred above, is binding on all courts of India including the High Courts.

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. 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.

39. For the reasons aforesaid, we set aside the impugned judgments passed by the Delhi High Court and upheld 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.

3. Learned counsel for the petitioner has relied upon a recent judgment of Hon'ble Supreme Court in the case of Balkrishna Ram Vs. Union of India and Anr. (2020) 2 SCC 442.

4. We have perused the judgment of Hon'ble Supreme Court in the case of Balkrishna Ram (supra) and we find that in paragraphs 2, 14 and 19, Hon'ble Supreme Court has observed as under :-

"2. 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 vs. 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 the 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).

19. In our view, it is not necessary to indicate in the order of discharge whether such consideration took place or not. From the records of the case, we find that before discharge, the name of the appellant was considered for two categories but unfortunately the appellant could not meet the height criteria for appointment to either of the posts. Thus, this clearly shows that his case was considered as per the extant policy but he was not fit for appointment. In this view of the matter, we find no merit in the appeal, and hence it is dismissed. Pending application(s) if any, stand(s) disposed of."

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.

10. The controversy involved before the Tribunal in the present set of facts was with regard to the rejection of statutory complaint and setting aside the annual confidential report of the petitioner for the year 1988 and promotion to him to the rank of Naib Subedar from ante date of seniority alongwith all consequential benefits.

11. Considering the facts and circumstances of the case and the impugned order of Tribunal, we do not find any good reason to exercise our discretion to entertain the present writ petition particularly in view of the law laid down by Hon'ble Supreme Court in the case of Union of India & Ors. Vs. Major General Shri Kant Sharma & Anr (supra). Consequently and without expressing any opinion on merits of the claim of the petitioner, the writ petition is dismissed 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.

Order Date :- 1.11.2021/vkg