IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.17959 of 2009
Dinesh Sharma(Ex-Nayak Honorarary Havildar), s/o Girija Sharma,r/o village + P.O. Anandpur, Via- Bihta, P.S. Bihta, District- Patna --------------- Petitioner Versus
1. The Union of India through the Secretary, Ministry of Defence, South Block, New Delhi-
2. Major, Vidyut and Yantrik Engineer, Abhilekh Karyalaya, EME Records, Securderabad (A.P.)
3. Senior Records Officer (For OIC Records), EME Records, Securderabad (A.P.)
4. The Chief Records Officer, EME Records, Securderabad (A.P.)
5. The Officer Incharge, EME Records , Securderabad (A.P. )
6. The Officer Incharge, P.C.D. A.(P), G3, R.A. Section, Allahabad ( Uttar Pradesh)
7. The Officer Incharge, Pension Liaison Cell, C/O 508, Army Base Workshop, Allahabad (U.P.)
8. The Officer Incharge, Army Group Insurance Fund, A.I.I, Bhawan , Rao Tula Marg, P.B.No.14, P.O. Vasant Vihar, New Delhi
9. The Deputy Secretary, Government of India, Ministry of PPG & ( Deptt. Of P.& PW), Lok Nayak Bhawan, New Delhi.
10. Director ( Pension), Government of India, Ministry of Defence D( Pensions) Sone Bhawan, Wing "A", New Delhi
11. Army Headquarters AC's BR. PS 4 (b) DHQ, PO New Delhi
12. The Secretary, Ministry of Defence, South Block , New Delhi
13. The Chief of Army Staff, Army Headquarters, South Block , New Delhi -------------------------- Respondents
For the petitioner: M/S Ashok Jang Bahadur, Dev Das Srivastava, Advocates
For the Respondents: Mr. Sarvadeo Singh, Central Govt. Standing Counsel
11 22 -12-2010 Heard Sri Ashok Jang Bahadur, learned counsel for the
petitioner and Sri Sarvadeo Singh, learned Central Government
Standing Counsel for the Union of India on the point of
maintainability of the present writ petition.
The petitioner (Ex-Nayak (Honorary Havildar) was
initially appointed as Sepoy in Indian Army on 23rd December, 1978 2
and was discharged from his service with effect from 31.12.1998.
The petitioner, while invoking extraordinary writ jurisdiction of this
Court under Articles 226 of the Constitution of India , has prayed for
quashing of an Order No.14531839/RA4/PEN dated 9th July,2009 (
Annexure-14 to the petition), whereby the petitioner's application
with prayer for rounding off disability element was rejected. The
petitioner further prays for modifying the order of disability pension
dated 4.2.2000 (Annexure-6 to the petition), whereby he was
granted 20 % disability pension with effect from 9.1.1999 and
prayed to direct the Respondents to give 50 % disability pension
with effect from 1.1.1999.
In this case a counter affidavit was filed and by way of
filing an affidavit, a preliminary objection has been raised by the
Respondent Union of India questioning the maintainability of the
writ petition on the ground of availability of statutory alternative
remedy. Accordingly, learned counsel for the petitioner as well as
the Union of India had addressed the Court on the question of
maintainability of the writ petition.
By way of filing an affidavit, a preliminary objection has
been raised by the Union of India on the ground that after
establishment of Armed Forces Tribunal (hereinafter referred to as
"the Tribunal") under the Armed Forces Tribunal Act, 2007
(hereinafter referred to as "the Act"), the petitioner was required to
approach the Tribunal for the relief, which has been sought for in the
present writ petition. In its affidavit, Section 3(O) of the Act has
been quoted and it has been asserted that the dispute, which has been 3
raised in the present writ petition, is relating to service matter and all
the disputes relating to service matter is to be raised before the
Tribunal. Learned counsel for the Union of India has also referred
to Section 33 of the Act with a view to persuade the Court that the
jurisdiction of all the Court relating to service matter has been
excluded and further in view of Section-34 of the Act , all pending
matters were required to be transferred to the Armed Forces
Tribunal. The Armed Forces Tribunal, as per learned counsel for the
Union of India, has already been established in the month of
November, 2009 and the present writ petition was filed after the
establishment of the said Tribunal at Calcutta (West Bengal), which
is having jurisdiction over the matter.
Sri Ashok Jang Bahadur, learned counsel for the petitioner
submits that even by way of enactment of the Armed Forces
Tribunal Act, power under Article 226 of the Constitution of India
to the High Court has not been divested , rather by way of necessary
implication in view of Section 14 of the Act , this Court is having
full jurisdiction to entertain the writ petition and pass appropriate
order. As per learned counsel for the petitioner, the preliminary
objection raised by the Union of India is not sustainable in the eye of
law and the same is fit to be rejected out rightly. Learned counsel for
the petitioner in support of his stand has argued that recently a co-
ordinate Bench of this Court in C.W.J.C.No.14199 of 2010 vide its
order dated 19.11.2010 turned down the objection raised by the
Union of India on the point of maintainability in relation to the
member of the Armed Forces. Learned counsel for the petitioner at 4
the time of argument has produced certified copy of the order dated
19.11.2010 passed in C.W.J.C.No.14199 of 2010 (IC 38558Y
Colonel Sarat Chandra Mishra Vs. The Union of India & Ors.).
Learned counsel for the petitioner has heavily relied upon
paragraph-7 of the said order, wherein objection of maintainability
was considered and rejected by this Court. It would be appropriate
to quote paragraph-7 of the said order, which is as follows:
"7. Counsel for the Union of India has raised the question of maintainability of the writ petition in this court on two grounds, namely, that Drop in Performance of the petitioner vide Annexure-6 was recorded on 4.8.2007 while he was posted at Dehradun, the order dismissing the non- statutory and statutory appeal of the petitioner filed against the Drop in Performance recorded on 4.8.2007 passed by the Chief of Army Staff and the competent authority of the Ministry of Defence respectively, Annexures-11 and 12 was served on the petitioner at Deolali in the State of Maharastra, as such, the writ petition filed before this Court assailing the remarks and the order rejecting the appeal is not maintainable before this Court. Petitioner should have been well advised to challenge the impugned assessment and the order rejecting the non-statutory and statutory appeal either before the High Court of Uttarakhand or Bombay. The other ground about the maintainability of the writ petition, raised by the counsel for the Union of India, is that the Army Tribunal under the provisions of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as the Act) having been established at Kolkata in November, 2009, petitioner at the first instance should have been well advised to move the Tribunal for the relief prayed for in the writ case and the present writ case be dismissed to avail the alternative remedy before the 5
Tribunal at Kolkata. In this connection, he referred to Section 14 of the Act and submitted that service dispute of the Officers and Men of the Armed Forces is required to be first adjudicated by Tribunal and if the petitioner is not satisfied with the decision of the Tribunal, he should approach this Court and in support of such submission, he relied on the judgment of the Hon'ble Supreme Court in the case of L. Chandra Kumar Vrs. The Union of India & Ors., reported in 1997(1) PLJR (S.C.) 84, paragraph
101. Perusal of the judgment rendered by the Hon'ble Supreme Court in the case of L. Chandra Kumar (Supra) would indicate that thereunder the Hon'ble Supreme Court considered the scope of Article 323A, whereunder Parliament enacted the Administrative Tribunals Act, 1985 (hereinafter referred to as "the Administrative Tribunal Act") providing for Central Administrative Tribunal to adjudicate the service dispute of the Officers, Employees of the Government of India and others connected with the affairs of the Union. Section 14 of the Administrative Tribunals Act excluded the jurisdiction of all the courts including High Court from adjudicating the service dispute of the Central Government employees. Hon'ble Supreme Court having considered the import of the Constitutional provisions and the provisions of the Administrative Tribunal Act, concluded in paragraph 101 of the judgment that clauses 2(d), 3(d) of Articles 323A, 323B to the extent exclude the jurisdiction of the High Court under Articles 226, 227 of the Constitution of India to adjudicate the service dispute of the Officers and Employees of the Central Government is unconstitutional and directed that the service dispute of the Officers and Employees of the Central Government after adjudication by the Tribunal, shall be considered by the Division Bench of the High Court. Taking a cue from the aforesaid judgment of the 6
Hon'ble Supreme Court, Parliament in its wisdom while enacting the Armed Forces Tribunal Act providing for Armed Forces Tribunal to adjudicate the service dispute of the officers and men of the Armed Forces never excluded the High Court from adjudicating the service dispute of the Officers and Men of the Armed Forces under Article 226 of the Constitution of India, as such, in my opinion, this Court has the jurisdiction to adjudicate the service dispute of the Officers and the Men of the Armed Forces. The question, however, arises as to which of the service disputes of the Officers and Men of the Armed Forces may directly be entertained by the High Court and which of the disputes may be relegated for adjudication by the Tribunal. To my mind, order(s) impugned by the Officers and Men of the Armed Forces while raising the service dispute, which appear to be erroneous on mere perusal of the records may be entertained and adjudicated directly by the High Court and if the High Court is satisfied that the error in the decision of the authorities is apparent on the face of the record, such dispute may directly be entertained and adjudicated by the High Court without relegating the Officers/ Men raising the dispute to avail the alternative remedy before the Tribunal. In case the dispute involves adjudication of disputed question of fact, the Officer/ Men raising the dispute may be relegated to avail the remedy before the Tribunal. The other objection of the counsel for the Union that petitioner should have filed the writ petition either before the High Court of Uttarakhand or Bombay, I am to state that order rejecting the statutory appeal was served on the petitioner at Deolali in Maharastra on 13.9.2009 but he left Deolali to join Danapur within the jurisdiction of this Court on 30.9.2009, in the circumstances, petitioner hardly had any time to challenge the impugned orders before the Bombay High Court. In this 7
connection, I may also refer to the judgment of Hon'ble Supreme Court in the case of Dinesh Chandra Gahtori vrs Chief of Army Staff and another, reported in (2001) 9 SCC 525 laying down the law that Chief of Army Staff may be sued any where in the country. In the present case order rejecting the non-statutory appeal of the petitioner dated 24.4.2008, Annexure-11 was passed by the Chief of Army Staff which is also impugned in the case."
In view of the point settled by Single Bench of this Court,
it was argued by the learned counsel for the petitioner that this court
may not deviate from the law laid down by a Co-ordinate Bench of
this Court and with a view to maintain consistency, it is necessary to
follow the order of this Court in Col. Sarat Chandra Mishra's case
(supra) and reject the preliminary objection, which has been raised
by the Union of India. At the time of argument, learned counsel for
the petitioner has candidly submitted that the order, which has been
challenged in the present writ petition, is an erroneous order, which
is required to be set aside.
On the query made by the Court, it was admitted by
learned counsel for the petitioner that it is not a case, in which it can
be said that the petitioner has approached this Court for (i)
Enforcement of his fundamental right or (ii) the impugned order is
without jurisdiction, and (iii) the order was passed in violation of
principles of natural justice.
In sum and substance, it was submitted that since the
impugned order is an erroneous one, this Court may ignore the
alternative remedy available to the petitioner and interfere with the 8
matter. Accordingly, it has been prayed that preliminary objection
raised by the Union of India may be rejected.
So far as entertaining a writ petition, even in a case of
availability of alternative remedy is concerned, it is true that there is
no restriction on a court to exercise its constitutional jurisdiction, but
as a recognized principle of judicial discipline, the Court is required
to put self-restrain in such situation enabling the parties concerned
to first avail alternative remedy. In a case reported in AIR 2000 (SC)
3032 (A. Venkatasubbiah Naidu Vs. S. Chellappan & Ors.) the
Hon'ble Supreme Court has dealt with this issue and it was held that
though no hurdle can be put against the exercise of constitutional
power of the High Court, it is a well recognized principle, which
gained judicial recognition that the High Court should direct the
party to avail himself of such remedies one or the other before he
resorts to a constitutional remedy. Time without number, it has been
reiterated that in case of alternative remedy the aggrieved party may
be asked to first avail the same. However, there are certain
exceptions, in which even though there is alternative remedy
available to a party, this Court can exercise its writ jurisdiction.
Such exceptions have been carved out,in (1998) 8 SCC 1(Whirlpool
Corporation Vs. Registrar of Trade Marks) and the same has been
reiterated by the Apex Court in (2007) SCC 88 (M.P. State Agro
Industries Development Corpn. Ltd. &Another Vs. Jahan Khan).
While reiterating the law laid down in the Whirlpool Corporation's
case ( supra), the Hon'ble Supreme Court has held " There is no
gainsaying that in a given case, the High Court may not entertain a 9
writ petition under Article 226 of the Constitution on the ground of
availability of an alternative remedy, but the said rule cannot be
said to be of universal application. The rule of exclusion of writ
jurisdiction due to availability of an alternative remedy is a rule of
discretion and not one of compulsion. In an appropriate case, in spite
of the availability of an alternative remedy, a writ court may still
exercise its discretionary jurisdiction of judicial review, in at least
three contingencies, namely, (i) where the writ petition seeks
enforcement of any of the fundamental rights; (ii) where there is
failure of principles of natural justice; or (iii) where the orders or
proceedings are wholly without jurisdiction or the vires of an Act is
challenged. In these circumstances, an alternative remedy does not
operate as a bar."
In view of proposition laid by the Apex Court, it can be
inferred that in ordinary course except in the aforesaid
circumstances, an alternative remedy is considered as a bar for
exercising writ jurisdiction.
So far as the present case is concerned, at the very outset,
it was accepted by learned counsel for the petitioner that the order
impugned is an erroneous order and, as such, the Court is of the
opinion that the grievance of the petitioner may not be put under the
three categories, as mentioned above, and, accordingly, it would not
be appropriate for this Court to exercise its writ jurisdiction.
It is true that with a view to maintain judicial discipline,
consistency is required to be maintained in its letter and spirit.
However, in a case, where the Court considers that an 10
order/Judgment can be distinguished, in that event the Court can
pass appropriate order. The Single Bench of this Court in Col.Sarat
Chandra Mishra's case (supra), in its paragraph-7 has dealt with the
preliminary objection raised by the Union of India and it was
repelled. In the said case, of course, objection was raised but
specific statutory provisions contained in Armed Forces Tribunal
Act, 2007 was not brought to the notice of this Court. In the present
case, it has been said on an affidavit that there are certain provisions;
such as, Section 3(O), 33 and 34 of the Act, which are necessary to
be examined for determining the question of maintainability of the
writ petition. Besides the aforesaid provisions, there are other
provisions also in the Act for consideration and after going through
the same one can come to its conclusion that by necessary
implication, the Act puts a complete bar on entertaining a writ
petition in relation to the dispute of the present nature. At least for
just decision in the present case, it is necessary to know as to what
was the objects and reasons for enactment of the Tribunal Act, i.e.
Statement of Objects and reasons, which are as follows:
"Statement of Objects and Reasons:-The
existing system of administration of justice in the Army and Air Force provides for submission of statutory complaints against grievances relating to service matters and pre and post confirmation petitions to various authorities against the findings and sentences of court- martial. In Navy, an aggrieved person has a right to submit a complaint relating to service matters and has a right of audience before the Judge Advocate General in the Navy in regard to the finding and sentence of a court- 11
martial before the same are finally put up to the Chief of the Naval Staff.
2. Having regard to the fact that a large number of cases relating to service matters of the members of the above-mentioned three armed forces of Union have been pending in the courts for a long time, the question of constituting an independent adjudicatory forum for the Defence personnel has been engaging the attention of the Central Government for quite some time. In 1982, the Supreme Court in Prithi Pal Singb Bedi V. Union of India and others, (1982)3 SCC 140: 1982SCC (Cri): AIR 1982 SC 1413 held that the absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment in the laws relating to the armed forces was a distressing and glaring lacuna and urged the Government to take steps to provide for at least one judicial review in service matters. The Estimates Committee of the Parliament in their 19th Report presented to the Lok Sabha on 20th August, 1992 had desired that the Government should constitute an independent statutory Board or Tribunal for service personnel.
3. In view of the above, it is proposed to enact a new legislation by constituting an Armed Forces Tribunal for adjudication of complaints and disputes regarding service matters and appeals arising out of the verdicts of the courts-martial of the members of the three service (Army, Navy and Air Force) to provide for quicker and less expensive justice to the members of the said Armed Forces of the Union.
4. Establishment of an independent Armed
Forces Tribunal will fortify the trust and confidence amongst members of the three services in the system of dispensation of justice in relation to their service matters. 12
5. The Bill seeks to provide for a judicial appeal on points of law and facts against the verdicts of courts- martial which is a crying need of the day and lack of it has often been adversely commented upon by the Supreme Court. The Tribunal will oust the jurisdiction of all courts except the Supreme Court whereby resources of the Armed Forces in terms of manpower, material and time will be conserved besides resulting in expeditious disposal of the cases and reduction in the number of cases pending before various courts. Ultimately, it will result in speedy and less expensive dispensation of justice to the Members of the abovementioned three Armed Forces of the Union.
6. The Notes on clauses explain in detail the various provisions contained in the Bill.
7. The Bill seeks to achieve the above objective." Similarly , some of the relevant provisions of the
Act which are relevant for adjudication in the present case, are
necessary to be quoted as follows:
" 3. Definitions: In this Act, unless the context otherwise
(o) " Service matters" , in relation to the persons subject to the army Act,1950 (46 of 1950), the Navy Act, 1957 (62 of 1957 ) and the Air Force Act, 1950( 45 of 1950), mean all matters relating to the conditions of their service and shall include---- (i) remuneration( including allowances), pension and other retirement benefits;
(ii) tenure, including commission, appointment, enrolment, probation, confirmation, seniority, training, promotion, reversion, premature retirement , 13
superannuation, termination of service and penal deductions;
(iii) summary disposal and trials where the punishment of dismissal is awarded;
(iv) any other matter, whatsoever, but shall not include matters relating to-------- (i) order issued under Section 18 of the Army Act ,1950 (46 of 1950), subsection (1) of Section 15 of the Navy Act, 1957 ( 62 of 1957) and Section 18 of the Air Force Act,1950 ( 45 of 1950; and
(ii) transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950 ( 46 of 1950), the Navy Act,1957 ( 62 of 1957) and the Air Force Act, 1950 ( 45 of 1950);
(iii) leave of any kind;
(iv) summary court martial except where the punishment is of dismissal or imprisonment for more than three months;
14. Jurisdiction, powers and authority in service matters:-(1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on an from the appointed day, all the jurisdiction, powers and authority, exercisable immediately before that day by all courts (except the Supreme Court or a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution) in relation to all service matters. (2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed.
(3) On receipt of an application relating to service matters, 14
the Tribunal shall, if satisfied after due inquiry , as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the tribunal is not so satisfied , it may dismiss the application after recording its reasons in writing.
4. For the purpose of adjudicating an application, the tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure , 1908 (5 of 1908), while trying a suit in respect of the following matters, namely--- (a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents; ( c) receiving evidence on affidavits;
(d) subject to the provisions of Sections 123 and 124 of the Indian Evidence Act, 1872 ( 1 of 1872), requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decisions;
(g) dismissing an application for default or deciding it ex parte;
(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte ; and (i) any other matter which may be prescribed by the Central Government
(5) The Tribunal shall decide both questions of law and facts that may be raised before it.
30. Appeal to 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 then 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 15
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 --------
(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.
34. Transfer of pending Cases:--(1) Every suit, or other proceeding pending before any court including a High Court or other authority immediately before the date of establishment of the Tribunal under this Act, being a suit or proceeding the cause of actio9n whereon it is based, is such that it would have been within the jurisdiction of such Tribunal, stand transferred on that date to such Tribunal. (2) Where any suit , or other proceeding stands transferred from any court including a High Court or other authority to the Tribunal under sub-section(1)---
(a) the court or other authority shall, as soon as may be, after such transfer, forward the records of such suit, or other proceeding to the Tribunal;
(b) the Tribunal may, on receipt of such records, proceed to deal with such suit, or other proceeding, so far as may be, in the same manner as in the case of an application made under sub-section (2) of Section 14, from the stage which was 16
reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit."
In view of the aforesaid provisions, it is not in dispute
that the present matter is under the definition of "Service matter" as
per Section 3(O) of the Act. So far as jurisdiction of the Tribunal is
concerned, it has been clarified by Section 14 of the Act that except
the power of Supreme Court and the High Court, the Tribunal shall
exercise jurisdiction of all the Courts. Section 34 of the Act further
makes it clear that all the proceedings before any court including a
High Court or other authority shall stand transferred immediately in
view of establishment of the tribunal under the Act. If the legislation
has decided to introduce a provision like Section 34 of the Act for
even transferring of the proceeding of such matter, which were
pending before the High Court to the Tribunal then by necessary
implication , it can be inferred that by the enactment a bar has been
imposed in exercising writ jurisdiction in such context. It has
further been clarified by Section 30 of the Act that against the order
passed by the Tribunal, appeal lies before the Supreme Court. If the
act is read in its totality, there is no impediment to come to the
conclusion that in relation to the present dispute there is a bar for
entertaining a writ petition. In Col. Sarat Chandra Mishra's case
(Supra), the aforesaid provisions were not brought to the notice of
this Court. Accordingly, I am of the opinion that in view of statutory
provision as mentioned above, the petitioner may not get any help
from the Single Bench Judgment of this Court i.e. Col.Sarat Chandra
Mishra's case ( Supra).
In view of the facts and circumstances as discussed above,
the Court is of the opinion that the objection of maintainability of
the writ petition, which has been raised by Sri Sarvadeo Singh,
learned Central Government Standing Counsel has got substance
and the present writ petition is liable to be rejected on the ground of
Accordingly, the writ petition stands rejected on the
preliminary ground of its maintainability.
Since the present petition was filed on 17.12.2009, i.e. after
the establishment of the Tribunal under the Act, no order can be
passed for transferring the record of the present case to the Tribunal
at Kolkata (West Bengal). However, liberty is granted to the
petitioner to approach the appropriate Forum and the period, which
has been consumed, while pursuing the present petition, i.e. from
17.12.2009 till date shall be excluded while presenting the petition
before the appropriate forum.
( Rakesh Kumar, J.)