Reserved On: 18.11.2022 vs Union Of India And Others
2023 Latest Caselaw 586 j&K/2

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR
                                     ...
                              CM No. 7066/2021
                            in SWP No. 1935/2015

                                                   Reserved on: 18.11.2022
                                                Pronounced on: 16.05.2023
Mushtaq Ahmad Sheikh
                                                         .........Petitioner(s)
                                      Through: Mr. T. A. Lone, Advocate

                                   Versus
Union of India and others
                                                         ......Respondent(s)
                                      Through: Mr. T. M. Shamsi, DSGI


CORAM:
           HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

                               JUDGEMENT

1. Applicant/writ petitioner, in the instant application, seeks revocation/

recalling/reviewing/setting-aside of the Order dated 31st August 2021,

passed by this Court in SWP no.1935/2021.

2. It is stated by petitioner that he was serving in Army. He was discharged

from services by respondent Army vide Discharge order dated 15.02.2008.

He challenged discharge order in SWP No. 165/2009. The writ petition

was transferred to Armed Forces Tribunal at Chandigarh (for short

"Tribunal") in view of Section 34 of Armed Forces Tribunal Act, 2007,

where the said petition was registered as T. A. No. 111/2012 and dismissed

vide order dated 30.04.2014. It is averred that the applicant challenged

the order dated 30.04.2014 along with discharge order before this Court

through the medium of a writ petition, being SWP No.1935/2015, in which

Page 1 CM No. 7066/2021 in SWP No. 1935/2015 respondents filed their Reply. According to petitioner, since the order

passed by the Tribunal was under challenge in SWP No. 1935/2015, as

such, the petition was to be listed before the Division Bench of this Court,

however, the Registry of this Court listed the matter before Single Bench.

3. It is being also stated by the petitioner that since the Tribunal has

jurisdiction over J&K and also holds sitting at Jammu/Srinagar as Regional

Bench, as such, the Tribunal's order dated 30.04.2014, falls within

territorial jurisdiction of the High Court of J&K and Ladakh. It is further

stated that writ petition was again listed before this Court on 31.08.2021,

and counsel for petitioner sought permission to withdraw the petition, and

this Court dismissed the writ petition with liberty to take recourse to such

remedy as may be available under law. It is averred that the remedy

available under law as laid down by the Supreme Court in L. Chandra

Kumar Vs. Union of India (1997) 3 SCC 261, is to throw challenge to the

order of Tribunal before the Division Bench of the High Court. Thus,

petitioner had already availed the remedy by filing writ petition before this

Court, challenging the final decision of the Tribunal, as such, the petitioner

has to pursue this remedy only.

4. It is also being stated by petitioner that writ petition (SWP No.1935/2015),

was not to be withdrawn from this Court to file a fresh/same writ petition

before this Court when there is no defect in the petition. Petitioner would

further submit that counsel for petitioner had made a submission for

withdrawal of writ petition without the consent/ permission of petitioner,

more particularly when petitioner did not make any such application

supported by an affidavit for withdrawal of petition, as such, petitioner has

been stepped out. It is also being stated that counsel for petitioner, who

Page 2 CM No. 7066/2021 in SWP No. 1935/2015 appeared in the matter had made a mistake in withdrawing the petition

without consent/permission of the petitioner.

5. It is also submission of petitioner that this Court is not powerless to revoke/

recall the order of dismissal of writ petition and allow revocation of

withdrawal of petition in exercise of its inherent powers. The reliance is

placed by the petitioner on judgment of Delhi High Court passed in a case

titled as Balwant Singh Vs. Indra Prastha Builders Private Limited,

reported in 1995 DLT Vol. 60, 136;1995 Supreme (Del) Vol. 0 page 700,

(paras 6 to 8). It is being submitted that though petitioner does not know

intention of previous counsel appearing for petitioner, yet it is understood

that submission made or consent given by previous counsel for withdrawal

of writ petition was under bona fide view that either the Appeal is to be

filed before the Supreme Court or a fresh petition in some other format is

to be filed differently before the Division Bench of this Court while as the

fact of the matter is that appeal is not to be filed before the Supreme Court.

Petitioner further submits that withdrawal of writ petition is neither

deliberate nor intentional on the part of petitioner, as such, petitioner

should not be made to suffer for said withdrawal of petition. The order of

the Tribunal is said to have been challenged in the writ petition but in the

prayer of the petition the quashment has been prayed firstly of the

discharge order and thereafter of the order of Tribunal, which fact has not

been brought to the notice of the Court and the Court has asked the counsel

for the petitioner to avail the remedy as may be available under law, as

such, the withdrawal order needs to be revoked. It is further submitted that

there is apparent error of law and mistake on the face of the record of the

Page 3 CM No. 7066/2021 in SWP No. 1935/2015 withdrawal order and there are sufficient reasons for reviewing the

withdrawal order, as such, withdrawal order needs to be recalled/revoked.

6. I have heard counsel for parties and considered the matter.

7. There is a substance in submission of counsel for petitioner that writ

petition against the order of the Tribunal is maintainable in view of the law

laid down by the Constitution Bench of the Supreme Court in L. Chandra

Kumar (supra). The Supreme Court has held that the jurisdiction conferred

upon the High Courts under Article 226/227 of the Constitution of India is

part of the inviolable basic structure of the Constitution and that the

Tribunals created under Articles 323A and 323B of the Constitution are

possessed of competence to test the constitutional validity of statutory

provisions and rules and all the decisions of these Tribunals will be subject

to scrutiny before a Division Bench of the High Court within whose

jurisdiction the concerned Tribunal falls inasmuch as the Tribunals will

continue to act like courts of first instance in respect of the areas of law for

which they have been constituted. Relevant portion of the judgement

would be appropriate to be reproduced hereunder:

"79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.

......

100. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article

Page 4 CM No. 7066/2021 in SWP No. 1935/2015 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."

8. The central topic of the decision in L. Chandra Kumar (supra) was that the

Tribunals cannot and will not serve as a substitute for the High Courts'

judicial review power granted by the Constitution. While the High Court

performs its job, the Tribunals will serve as auxiliary institutions to support

it. Furthermore, the Tribunals will be supervised by the High Courts and

cannot be regarded as independent organizations. The Tribunals

established under Articles 323A and 323B have the authority to investigate

the legality of subordinate legislation, but they are not permitted to

investigate the legality of their parent laws. Article 136 prohibits a direct

appeal to the Supreme Court. This strategy would be implemented in the

future. The Supreme Court held that under Articles 226/227 of the

Constitution of India, all the Tribunal rulings would be reviewed by a

Division Bench of their respective High Courts. Thus, there is force in the

application that order dated 31st August 2021 required to be recalled.

9. The law laid down by the Supreme Court in L. Chandra Kumar (supra) has

also been reiterated in Balkrishna Ram v. Union of India and others, 2020

(2) SCC 442. The Supreme Court has held the High Court is a

Constitutional Court constituted under Article 214 of the Constitution and

Page 5 CM No. 7066/2021 in SWP No. 1935/2015 the orders of the High Court cannot be challenged before any other forum

except the Supreme Court.

10.Perusal of order dated 22.08.2012, in SWP No. 165/2009, reveals that the

Writ Court while directing transfer of writ petition to the Tribunal, had

observed that cause agitated in writ petition was a service matter and fell

within purview of Section 14(1) of the Armed Forces Tribunal Act, 2007.

So, the case in hand is triable in exercise of powers under Article 226 of

the Constitution of India by a Division Bench of this Court.

11.In view of above, the instant application is allowed and Order dated 31st

August 2021, passed by this Court in SWP no.1935/2021 is recalled and

writ petition is restored to its original number.

12.Registry is directed to list writ petition (SWP no.19356/2021) before the

Division Bench of this Court.

13.CM disposed of.

(Vinod Chatterji Koul) Judge Srinagar 16.05.2023 Ajaz Ahmad, PS Whether the order is reportable: Yes/No.

Page 6 CM No. 7066/2021 in SWP No. 1935/2015