Back
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
ANJANI KUMAR MISHRA, VIKRAM D. CHAUHAN, JJ.
Sandeep Yadav – Appellant
Versus
Armed Forces Tribunal, Regional Bench At Lucknow And 6 Others – Respondent
WRIT A No. - 19332 of 2021
Decided on : 20-01-2022
Judicial Review - Armed Forces Tribunal Act - Article 226 of the Constitution - [JUDICIAL REVIEW] - [ARMED FORCES TRIBUNAL ACT] - [Sections 4, 14, 30, 31, 33] - The court discussed the jurisdiction and powers of the Armed Forces Tribunal under the Act, the exclusion of civil court jurisdiction, and the constitutional power of judicial review under Article 226. The court emphasized that the power of judicial review is a basic feature of the Constitution and cannot be curtailed by legislation. It also highlighted the importance of exercising discretion in entertaining petitions under Article 226 when an alternative remedy is available, and the existence of such remedy does not oust the jurisdiction of the High Court. The court emphasized that the rule of alternative remedy is a rule of prudence and not a rule of law, and the High Court's jurisdiction should be exercised with caution based on the facts and circumstances of each case.
Fact of the Case:
The petitioner challenged the discharge/dismissal order from the Army and sought intervention under Article 226 of the Constitution, claiming financial disability as a reason for not pursuing the statutory alternative remedy of filing an appeal before the Supreme Court.
Finding of the Court:
The court dismissed the writ petition on the ground of statutory alternative remedy available to the petitioner, emphasizing that the economic disability of a litigant has been addressed through mechanisms such as the Legal Service Authority Act, 1987, and the Supreme Court Middle Income Group Legal Aid Scheme. The court held that the financial/economic disability may not be a ground for bypassing the statutory alternative remedy provided under the Armed Forces Tribunal Act, 2007.
Issues: The main issue was whether the petitioner's financial disability justified bypassing the statutory alternative remedy of filing an appeal before the Supreme Court under the Armed Forces Tribunal Act, 2007.
Ratio Decidendi: The court held that the existence of mechanisms for providing free legal aid to litigants with economic disability, such as the Legal Service Authority Act, 1987, and the Supreme Court Middle Income Group Legal Aid Scheme, meant that the financial/economic disability of the petitioner was not a valid ground for bypassing the statutory alternative remedy provided under the Act.
Final Decision: The writ petition was dismissed, leaving it open for the petitioner to file an appeal before the Supreme Court in accordance with the provisions of the Armed Forces Tribunal Act, 2007.
JUDGMENT :
VIKRAM D. CHAUHAN, J.
1. The present writ petition is filed by the petitioner challenging the order dated 28th October, 2021 passed by the Armed Forces Tribunal (RB), Lucknow in Original Application No.208 of 2017, Sandeep Yadav Vs. Union of India and others. The petitioner has further challenged discharge/dismissal order dated 7th March, 2017 passed by respondent no.5 and order dated 10th January, 2017 passed by the Director General Recruiting/Recruiting B AG's Branch, Integrated Head Quarter of Ministry of Defence (Army), New Delhi.
2. The brief facts of the case arising in the present writ petition are that the petitioner was enrolled in the Army on 4th June, 2014 and he underwent basic military training at The Parachute Regimental Training Centre w.e.f. 4th August, 2014. On completion of basic military training, he was sent to Maratha Light Regimental Centre for technical training of Clerk (Staff Duties) which commenced on 22nd December, 2014. However, the petitioner failed in midterm test and was relegated thrice in terms of policy letter dated 6th January, 1995 31 and 10th April, 1996. According to aforesaid policy, a recruit who could not pass even after relegating and three months detention, should be re-mustered or discharged from service. The petitioner failed in final test on 9th February, 2016 and was returned to the Parachute Regimental Centre. Petitioner made a request for change of his trade from Clerk (Staff Duties) to Soldier Tradesman (Dresser) vide personal application dated st March, 2016. Accordingly, a case was taken up with Ministry of Defence (Infantry-6) and his case was turned down on the ground that his height was 06 cms short to become a soldier tradesman. A show cause notice dated 25th January, 2017 was served upon the petitioner to which he replied on 13th February, 2017 and after receipt of reply he was discharged from service w.e.f. 7th March, 2017 under Rule 13(3)(iv) of Army Rules, 1954 on the ground of 'Unlikely to become a soldier'.
3. The petitioner thereafter, preferred Original Application No.208 of 2017 before the Armed Forces Tribunal, Regional Bench, Lucknow with the following prayers:-
ii. That this Hon'ble Tribunal may kindly be pleased to to pass any other order or directions which is deem just & proper in favour of the petitioner.”
4. The above mentioned original application was contested by the respondents before the Tribunal below and the Tribunal below by impugned judgment dated 28th October, 2021 has dismissed the above mentioned original application of the petitioner.
5. It is the impugned order dated 28th October, 2021 passed by the Armed Forces Tribunal, Regional Bench, Lucknow, which is subject matter of challenge in the present writ petition.
6. Sri Arvind Nath Agrawal, learned counsel appearing on behalf of respondents has at the very outset raised a preliminary objection with regard to the maintainability of the writ petition under Article 226 of the Constitution of India on the ground that the petitioner has a statutory alternative remedy of filing an appeal under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as the “Act No.55 of 2007”) and in view of the aforesaid, the present writ petition is liable to be dismissed on the ground of alternative remedy. In this reference, Shri Arvind Nath Agrawal has relied upon the judgment of the Apex Court in Union of India Vs Major General Shri Kant Sharma and others, reported in 2015 (6) SCC 773 and judgment dated 1st November, 2021 passed by this Court in Writ-A No 15281 of 2021 – Ex-Hav Clerk (Stores) Ram Naresh Ram Vs Un
The power of judicial review under Article 226 of the Constitution is a basic feature and cannot be curtailed by legislation. The rule of alternative remedy is a rule of prudence and not a rule of la....
The main legal point established in the judgment is that the power of judicial review vested in the High Court under Article 226 of the Constitution is discretionary and extraordinary, and should not....
The power of judicial review under Articles 226 and 227 of the Constitution is a basic and inalienable human right, forming part of the basic structure of the Constitution, and cannot be taken away b....
Point of Law : 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 ap....
The punishment of reduction in rank and deprivation of badges of good conduct awarded in summary trial are amenable to the Jurisdiction of the Armed Forces Tribunal.
Jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High....
The Court determined that minor punishments, including reprimands, fall under 'service matters,' thus the Armed Forces Tribunal has jurisdiction to hear such cases despite their non-dismissal nature.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
