Exhaustion of alternative statutory remedy before seeking relief under Article 226 of the Constitution of India.

1. Petitioner was enrolled in Jammu and Kashmir Light Infantry Regiment on 29th October, 1995 and after completion of basic training, posted to 12th Battalion of Jammu and Kashmir Light Infantry Regiment w.e.f. 11.02.1997. He was sent on Extra Regimental Employment (ERE) to 31st Rashtriya Rifle and Jammu and Kashmir Light Infantry Centre. The petitioner after he was posted back to his parent unit i.e. 12th Battalion Jammu and Kashmir Light Infantry Regiment, was on 15.02.2008 discharged from service under Army Rule 13(3) Item III(V). The cause of discharge was "Service No Longer Required". The petitioner was found to be habitually remaining absent from duty to have been awarded punishment for overstaying on leave, six times during his service carrier and to have earned four red ink entries in his service record.

2. The petitioner questions the discharge order dated on 15.02.2008 on the grounds that the order has been passed in a mechanical manner and in colourable exercise and abuse of the power available to the respondent No. 3 under Rule 13 (3) Item III (V). The respondents are said to have failed to issue show cause notice to the petitioner before the impugned order. The petitioner also questions competence of the respondent No. 3 to issue the discharge order and alleges double jeopardy on the ground that in addition to his discharge he was also sentenced to imprison#31;ment. The discharge order is also questioned on the ground of proportionality and the order being stigmatic in character.

3. The respondents apart from opposing the writ petition on the grounds set out in their reply, question its maintainability on the ground that the petitioner has equally efficacious remedy available under the Army Act and Rules made thereun#31;der.

4. Mr. Makroo Assistant Solicitor General of India in addition to the grounds set out in the petition, questions maintainability of the petition on the ground that in wake of enactment of Armed Forces Tribunal Act, 2007, the petitioner has an efficacious remedy available under the Act and that the Court lacks jurisdiction to proceed with the petition. It is insisted that in terms of Section 34 of the Armed Forces Tribunal Act, 2007, the petition filed prior to 10.11.2009 i.e. the date the Armed Forces Tribunal, Bench, Chandigarh was set up, are to be transferred to the Tribunal for the disposal under law.

5. There is no disagreement between learned counsel for the parties that the preliminary objection raised by the respondents as regards maintainability of the petition in wake of enactment of Armed Forces Tribunal Act, 2007 deserves to be dealt with at the outset.

6. I have gone through the pleadings and have heard learned counsel for the parties.

7. The Armed Forces Tribunal Act, 2007, (hereinafter "Act") provides for 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. It also provides for appeals arising out of orders, findings or sentences of Courts martial, held under the aforesaid Acts and for matters con#31;nected therewith or incidental thereto.

8. Section 4 of the Act, provides for establishment of Armed Forces Tribunal and its Benches. Section 14(1) of the Act, in the context of present controversy, needs to be noticed. It reads:-

"Jurisdiction, powers and authority in service matters. — (1) Save as otherwise expressly provided in this Act; the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority, exercis-able immediately before that day by all courts (except the Supreme Court or a High Court exercising jurisdiction under article 226 and 227 of the Constitution)in relation to all service matters."

9. In terms of Section 34 of the Act all proceedings pending before any Court including High Court immediately before the date of establishment of the

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