1. Dilip Kumar age 41 years, son of Late Shivnath Mahto r/o Vill- Piri v. 1. Union of India through Secretary to the Ministry of Defence, Tughlak Road Police
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No.71 of 2023 1. Dilip Kumar age 41 years, son of Late Shivnath Mahto r/o Vill- Piri, Near Sri Narayan High School, Barkakana, P.O. Barkakana, P.S. Patratu, District Ramgarh, Jharkhand, PIN 829102 …….… Petitioner/Appellant Versus 1. Union of India through Secretary to the Ministry of Defence, Tughlak Road Police Station, South Block, P.O. Tughlak Road, New Delhi 110011. 2. The Chief of Air Staff Air Headquarters (Vayu Bhavan), Tughlak Road Police Station, P.O. New Delhi, 110106. 3. The Air-Officer-Commanding (AOC) Air Force Record Office, P.S. Dhaula Kuan, Subroto Park, P.O. New Delhi 110010. 4. The Principal Director, Directorate of Air Veterans, Air Headquarters, Subroto Park, P.S. Dhaula Kuan, P.O. New Delhi 110010. 5. Deputy Controller of Defence Accounts, Air Force (Dy. CDA, AF) Subroto Park, P.S. Dhaula Kuna, P.O. New Delhi 110010 …….Respondents. With L.P.A. No.72 of 2023 1. Dilip Kumar age 41 years, son of Late Shivnath Mahto r/o Vill- Piri, Near Sri Narayan High School, Barkakana, P.O. Barkakana, P.S. Patratu, District Ramgarh, Jharkhand, PIN 829102 …….… Petitioner/Appellant Versus 1. Union of India through Secretary to the Ministry of Defence, Tughlak Road Police Station, South Block, New Delhi 110011. 2. The Chief of Air Staff, Air Headquarters (Vayu Bhavan), Tughlak Road Police Station, P.O. New Delhi, 110106. 3. The Air-Officer-Commanding (AOC) Air Force Record Office, P.S. Dhaula Kuan, Subroto Park, P.O. New Delhi 110010. 4. The Principal Director, Directorate of Air Veterans, Air Headquarters, Subroto Park, P.S. Dhaula Kuan, P.O. New Delhi 110010. 5. Deputy Controller of Defence Accounts, Air Force (Dy. CDA, AF) Subroto Park, P.S. Dhaula Kuna, P.O. New Delhi 110010 ------- …….Respondents. CORAM:HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
Legal Reasoning
HON’BLE MR. JUSTICE SUBHASH CHAND ------- For the Appellants :Party in Person [2] For the Respondents :Mr. Shiv Kumar Sharma, C.G.C. ---------------------------- Per :Sujit Narayan Prasad, J. 05/Dated: 16th May, 2023 I.A. No.1926 of 2023 [in L.P.A. No.71 of 2023] 1. This interlocutory application has been filed for condoning the delay of 657 days, which has occurred in preferring this appeal. 2. It appears from the explanation furnished in the delay condonation application that against the order dated 9th April, 2019 passed in W.P.(S) No.547 of 2018, a review petition being Civil Review No.43 of 2019 was filed which was finally decided on 4th November, 2022 and, therefore, the instant appeal has been preferred. 3. After dismissal of the aforesaid review, the requisitions for obtaining the certified copies of orders dated 4th November, 2022 passed in Civil Review No.43 of 2019 and 9th April, 2019 passed in W.P.(S) No.547 of 2018 have been applied on 11th November, 2022 and 5th December, 2022 respectively and the certified copies of both the orders have been supplied on 27th January, 2023. Thereafter, the appeal has been filed on 10th February, 2023. The said interlocutory application has been filed by serving the copy of the same to the office of the learned ASGI. 4. Mr. Shiv Kumar Sharma, learned Central Government Counsel has submitted that although the counter affidavit has not been filed but admittedly there is delay of 657 days in filing the L.P.A. No.71 of 2023, hence, the instant interlocutory application may not be allowed. [3] 5. We have heard the learned counsel for the parties on the delay condonation application and taking into consideration the fact that the party in person since has filed a review petition seeking review of the order dated 9th April, 2019 passed in W.P.(S) No.547 of 2018 and its pendency has caused delay in filing the appeal, which according to our considered view is the sufficient cause to condone the delay. 6. Accordingly, this interlocutory application is allowed and the delay of 657 days in preferring the L.P.A. No.71 of 2023 is, hereby, condoned. 7. In view thereof, the instant interlocutory application stands disposed of. L.P.A. No. 71 of 2023 8. This intra court appeal is under Clause 10 of the Letters Patent directed against the order/judgment dated 9th April, 2019 passed by the learned Single Judge of this Court in W.P.(S) No.547 of 2018, whereby and whereunder, the writ petition has been dismissed on the ground of availability of alternative remedy as provided under Section 14 of the Armed Forces Tribunal Act, 2007 (hereinafter to be referred as the “the Act, 2007). 9. The appellant in person has appeared before this Court and submitted that in the State of Jharkhand still the Armed Forces Tribunal has not been constituted and, hence, he being 50% disabled cannot be compelled to go far of place for adjudication of [4] his right. The party in person has relied upon the judgment rendered by the Hon’ble Apex Court in the case of Rojer Mathew vs. South Indian Bank Ltd. through its Chief Manager reported in (2020) 6 SCC 1 more particularly paragraph 392 thereof. It has been submitted that in the case of Rojer Mathew (Supra), the Hon’ble Apex Court has considered that due to non- availability of the Tribunal, if not established or functioning, the litigants of the State will have right to invoke extraordinary jurisdiction of the jurisdictional High Court under Article 226 of the Constitution of the India for redressal of their grievances. In the facts of the present case, the Armed Forces Tribunal or its Bench has not yet been constituted within the territory of the State of Jharkhand and hence applying the ratio laid down by the Hon’ble Apex Court in the case of Rojer Mathew (Supra) as held in paragraph 392, the dismissal of the writ petition on the ground of availability of alternative remedy is not proper. 10. Mr. Shiv Kumar Sharma, learned Central Government Counsel appearing for the respondents in response by referring to the provisions of Sections 30 and 31 of the Act, 2007 has submitted that the Tribunal will oust the jurisdiction of all the courts except the Supreme Court and the aforesaid aspect of the matter has been considered by the Hon’ble Apex Court in the case of Union of India & Ors. vs. Major General Shri Kant Sharma reported in (2015) 6 SCC 773, wherein the law has been laid down that the order passed by the Tribunal is amenable directly to the Supreme [5] Court. Therefore, the submission has been made that since the order passed by the Armed Forces Tribunal is not amenable under Article 226 of the Constitution of the India, hence, there is no question to entertain the writ petition by the Writ Court in the original side. Learned counsel, therefore, has defended the order passed by the learned Single Judge. 11. We have heard the appellant In Person and learned counsel for the respondents, perused the order impugned as also the materials available on record. 12. The question which requires consideration, as to whether due to non-availability of the Tribunal within the territory of the State of Jharkhand or even its Bench, can the party suffering be restrained
Decision
from filing the writ petition under Article 226 of the Constitution of the India. It is not in dispute that the very object of the Armed Forces Tribunal Act, 2007 is to provide for adjudication or trial pertaining to 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 and also provide for appeal arising out of orders, findings or sentences of court martial held under the said Acts and for matters connected therewith or incidental thereunder. The provision stipulates that after creation of the Tribunal, the jurisdiction of all the Courts has been ousted save and except the Supreme Court. [6] The validity of the Act, 2007 was challenged before the Hon’ble Apex Court in the case of Major General Shri Kant Sharma (supra) on the ground that the High Court cannot be ousted to exercise the power conferred under Article 226 of the Constitution of the India and since the said power has been ousted, therefore, the same is in the teeth of basic structure of the Constitution of the India. The reliance was placed therein on the Constitution Bench’s Judgment rendered by the Hon’ble Apex Court in the case of L. Chandra Kumar vs. Union of India reported in (1997) 3 SCC 261, wherein it has been laid down therein that the creation of the Tribunal and ousting all Courts save and except the Supreme Court is not in the teeth of basic structure of the Constitution of the India. The aforesaid judgment has again been reconsidered by the Hon’ble Apex Court in the case of Union of India and Others vs. Parashotam Dass reported in (2023) SCC OnLine SC 314 and by considering the judgment rendered by the Constitution Bench of the Hon’ble Apex Court in the case of L. Chandra Kumar (Supra), the judgment rendered in the case of Major General Shri Kant Sharma (Supra) has been held to be not a good law and is in conflict with the judgment of the Constitution Benches rendered prior and later to it, including L. Chandra Kumar (Supra), S.N. Mukherjee reported in (1990) 4 SCC 594 and Union of India & Ors. vs. Parashotam Dass (Supra). 13. It is, thus, evident that after the judgment rendered in L. Chandra Kumar (Supra), S.N. Mukherjee (Supra) and Union of India [7] & Ors. vs. Parashotam Dass (Supra), the High Court now is to exercise power of judicial review in view of the judgment rendered by the Constitution Bench of the Hon’ble Apex Court in the case of L. Chandra Kumar (supra). Therefore as of now, the law is that, the order passed by the Armed Forces Tribunal is amenable under Article 226 of the Constitution of the India only subject to the self-imposed restrictions upon the High Court in exercising the power conferred under Article 226, meaning thereby as of now there is no embargo in entertaining the writ petition. 14. Coming to the facts of this case, the writ-petitioner claims to be 50% disabled and is contesting his case for disability pension. He has not approached the Armed Forces Tribunal for redressal of his grievance, reason being that he being the local resident of the State of Jharkhand is not in a position to go far to contest his case, at least for two reason as is being submitted at the Bar i.e, the financial crunch, since, he is out of service and is also suffering from disability to the extent of 50%. The writ petition has been filed before this Court in exercise of power conferred under Article 226 of the Constitution of the India but the same has been dismissed on the ground of availability of alternative remedy, as provided under Section 14 of the Act, 2007 in Chapter-III. 15. The argument which has been advanced by the appellant that since the personnel of the Armed Forces can also approach the High [8] Court in exercise of power conferred under Article 226 of the Constitution of the India after the law having been laid down by the Hon’ble Apex Court in the case of Union of India & Ors. vs. Parashotam Dass (Supra) and as such the writ petition cannot be dismissed on the ground of availability of alternative remedy, reason being that alternative remedy cannot be a ground not to entertain the writ petition, rather, there is no embargo under Article 226 of the Constitution of the India except if there is no efficacious and alternative remedy, then only, the jurisdiction of the Writ Court can be invoked. Herein also, the party In Person has submitted that within the territory of the State of Jharkhand, there is no Armed Forces Tribunal, even no Bench thereof and, hence, on the ground of availability of alternative remedy, in view of provision of Section 14 of the Act, 2007, the same cannot construed to be a efficacious and alternative remedy and, hence, the writ petition is maintainable. The party In Person in order to strengthen his argument has relied upon the judgment of the Hon’ble Apex Court in the case of Rojer Mathew (Supra). 16. We in order to appreciate the aforesaid argument is of the view that there is no embargo in entertaining the writ petition under Article 226 of the Constitution of the India and the writ petition cannot be thrown out merely because there is alternative statutory remedy. The Hon’ble Apex Court has set at rest this issue by holding that [9] merely because the alternative remedy is available, the writ petition cannot be thrown out, rather, High Court can entertain the writ petition and can threw it out on the basis of the principle of self- imposed restrictions as has been held by the Hon’ble Apex Court in the case of Maharashtra Chess Association v. Union of India reported in (2020) 13 SCC 285 , wherein, as under paragraphs 19, 20 and 22, has held as under:- “19. This argument of the second respondent is misconceived. The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court’s writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether or not to entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case. 20. This understanding has been laid down in several decisions of this Court. In U.P. State Spg. Co. Ltd. v. R.S. Pandey [U.P. State Spg. Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264 : 2006 SCC (L&S) 78] this Court held : (SCC p. 270, para 11) “11. Except for a period when Article 226 was amended by the Constitution (Forty-Second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy.” 22. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors.” The Hon’ble Apex Court in the case of M/s Godrej Sara Lee Ltd. Versus The Excise and Taxation Officer-cum-Assessing [10] Authority & Ors. reported in 2023 1 Supreme 257 wherein, as under paragraph 4, has held as under:- “4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as “not maintainable” merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition “not maintainable”. In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that “entertainability” and “maintainability” of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.” [11] 17. This Court is proceeding in the aforesaid premise that when the Tribunal has not been constituted as per the statutory command of the Act, 2007, so as to achieve the very object and intent of the aforesaid act and even the Bench has not constituted within the territorial jurisdiction of the State of Jharkhand, whether the writ petition can be thrown out on the ground of availability of alternative and efficacious remedy. The Hon’ble Apex Court has considered the aforesaid aspect in the case of Rojer Mathew (Supra) and by taking into consideration the judgment rendered by the Constitution Bench of the Hon’ble Apex Court in the case of L. Chandra Kumar (Supra) and Madras Bar Association vs. Union of India & Anr. reported in (2010) 11 SCC 1 has been pleased to hold that if the Government has not taken any action as per the statutory command in establishing the alternative forum then in that circumstances, the litigants cannot be deprived from invoking the extra ordinary writ jurisdiction of the jurisdictional High Court under Article 226 of the Constitution of the India for redressal of the grievance. The paragraph 392 of the Rojer Mathew’s case (Supra) reads as under : “392. The litigants cannot wait for judicial impact assessment and action by the Government which may or may not take place. Experience has shown that the judgments right from L. Chandra Kumar [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] to Madras Bar Assn., 2010 [Union of India v. Madras Bar Assn., (2010) 11 SCC 1] have not been complied with by the Union in letter and spirit. Citizens of this country cannot be denied justice which is the first promise made in the Preamble. Therefore, I am of the view that in whichever State/Union Territory the Bench of a particular tribunal is not established or functioning, the litigants of that [12] State will have a right to invoke the extraordinary writ jurisdiction of the jurisdictional High Court under Article 226 of the Constitution for redressal of their grievances. They cannot be expected to go to far off distant places and spend huge amounts of money, much beyond their means to ventilate their grievances. The alternative remedy of approaching a tribunal is an illusory remedy and not an efficacious alternative remedy. The self-imposed bar or restraint of an alternative efficacious remedy would not apply. Such litigants are entitled to file petitions under Article 226 of the Constitution of India before the jurisdictional High Court. In L. Chandra Kumar [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] it was clearly held that the right of judicial review is a part of the basic structure of the Constitution and this right must be interpreted in a manner that it is truly available to the litigants and should not be an illusory right.” 18. This Court applying the aforesaid principle in the facts of the present case and by considering the admitted fact that in the State of Jharkhand no Tribunal has been constituted by the Central Government and even no Bench or Circuit Bench are available and hence, the litigants cannot be allowed to suffer for redressal of their grievance by asking them to go far of place. Further writ petition cannot be thrown out on the ground of availability of alternative remedy as settled by the Hon’ble Apex Court in the judgment rendered in the case of Maharashtra Chess Association v. Union of India (Supra) and M/s Godrej Sara Lee Ltd. Versus The Excise and Taxation Officer-cum- Assessing Authority & Ors. (Supra), rather it is self-imposed restriction of High Court as held to be assessed on the basis of the given fact of the case. Herein considering the fact that as per mandate of Section 14 of Armed Forces Tribunal Act, no Tribunal/Bench is functioning in the State of Jharkhand, hence, ground of availability of alternative [13] remedy for not maintaining the writ petition will not said to be proper one. 19. This Court on the basis of the reasons as referred hereinabove and relying upon the judgment rendered by the Hon’ble Apex Court in the case of Rojer Mathew (Supra) is of the view that the order dated 9th April, 2019 passed by the learned Single Judge of this Court in W.P.(S) No.547 of 2018 requires interference . 20. Accordingly, the order dated 9th April, 2019 is, hereby, quashed and set aside. 21. The matter is remitted before the learned Single Judge for adjudication of the case on merit. 22. The instant appeal stands allowed. 23. Pending interlocutory application(s), if any, also stands disposed of L.P.A. No.72 of 2023 24. In consequence of the order being passed by this Court in L.P.A. No.71 of 2023, the order dated 4th November, 2022 passed in Civil Review No.46 of 2019 is also, hereby, quashed and set aside. 25. The instant appeal also stands allowed. 26. Pending interlocutory application(s), if any, also stands disposed of. (Sujit Narayan Prasad, J.) (Subhash Chand, J.) Rohit Pandey/-A.F.R.