Lt. Col Ranjodh Singh vs Union of India (UOI)

Heard learned Counsel for the Petitioner and Mr. Alok Mathur, learned Counsel appearing for the Union of India.

Present writ petition under Article 226 of the Constitution of India has been preferred against the impugned order dated 5.10.2010, passed by Armed Forces Tribunal (in short, AFT), in Transfer Application No. 68 of 2010 connected with Original Application No. 100 of 2010 by which the tribunal has authorized the Respondents to retrial the Petitioner by General Court Martial.

It has been admitted at bar that against the impugned order and for the same cause, the Petitioner had earlier filed a writ petition No. 60 (S/B) of 2011 before High Court of Uttarakhand at Nainital. The High Court of Uttarakhand after hearing the Petitioner''s counsel declined to interfere with the impugned order observing that the Petitioner has remedy to move an application for certificate u/s 31 of the Armed Force Tribunals Act to prefer an appeal before Hon''ble Supreme Court. Operative portion of the order dated 5.4.2011, passed by Uttarakhand High Court is reproduced as under:

Learned Counsel for the Respondents has raised a question of law as to whether the present writ petition under Article 226 of the Constitution is at all maintainable in view of Sections 30 and 31 of the Act. By considering Sections 30 and 31 of the Act, it does not appear to us that the Petitioner has any unfettered right to prefer an appeal to the Hon''ble Supreme Court. Petitioner would be entitled to prefer an appeal to the Hon''ble Supreme Court only when leave is granted there for by the Tribunal. In as much as the Petitioner has no unfettered right to prefer an appeal to the Hon''ble Supreme Court, he has in fact no other legal remedy available to him. In a situation of that nature, the Petitioner has right to seek judicial review under Article 226 of the Constitution. It is true that u/s 29 of the Act there is an embargo on the part of the Courts to call in question the decisions of the Tribunal, but then as held in by the Hon''ble Supreme Court in the case of L. Chandra Kumar Vs. Union of India and others, the Parliament cannot take away the constitutional right of citizens to have judicial review under Article 226 of the Constitution of India. There is, thus, no impediment on the part of the Petitioner to approach this Court under Article 226 of the Constitution of India.

However, we feel that when a conditional right to prefer an appeal to the Hon''ble Supreme Court has been given to the Petitioner by the Act, it was obligatory on the part of the Petitioner to exhaust the said remedy before approaching this Court under Article 226 of the Constitution of India. In other words, it was obligatory on the part of the Petitioner to approach the Tribunal to seek leave to prefer an appeal to the Hon''ble Supreme Court and only when such leave is refused the Petitioner could approach this Court.

For the reasons already indicated above, we refuse to entertain the writ petition on its merit, as discussed above.

It has been submitted by the Petitioner''s counsel at bar that after dismissal of the writ petition, the Petitioner has preferred a review petition which is pending. It is further submitted that an application has also been moved u/s 31 of the Act but the same is pending. In the pending review, a preliminary objection has been raised by the Respondents'' counsel with regard to maintainability of the petition before the High Court.

The Petitioner''s counsel has relied upon a judgment dated 26.4.2011 of Delhi High Court, passed in Writ Petition (c) No. 13360 of 2009 and other connected writ petitions where the Delhi High Court held that the High Court has jurisdiction to interfere with the order passed by the Armed Forces Tribunal under Articles 226 and 227 of the Constitution of India under the power of superintendence. The learned Counsel has relied upon para 8 of the judgment (supra) of Delhi High Court which is reproduced as under:

To summarize, the position would be that the Armed Forces Tribunal, being manned by personnel appointed by the Executive, albeit in consultation with the Chief Justice of India cannot be said to be truly a judicial review forum as a substitute to High Courts which are constitutional courts and the power of judicial review, being a basic feature of the Constitution, under Article 226 and Article 227 of the Constitution of India is unaffected by the Constitution of the Armed Forces Tribunal. Further, Article 227(4) of the Constitution of India takes away only the administrative supervisory jurisdiction of High Court over the Armed Forces Tribunal and does not impact the judicial supervisory jurisdiction over the Armed Forces Tribunal. Thus, decisions by the Armed Forces Tribunal would be amenable to judicial review by High Court under Article 226 as also Article 227 of the Constitution of India.

So far as the argument advanced by the learned Counsel for the Petitioner with regard to power conferred to the High Court under Article 226 or 227 is concerned, there appears to be no dispute over it. Not only under the power of superintendence conferred by Article 227 of the Constitution of India but also under Article 226 of the Constitution, the High Court has got right to interfere with the decision and order passed by Armed Forces Tribunal and in appropriate case, the Court may interfere to meet the ends of justice. However, whenever there is a statutory remedy like the one in the case in hand, the Petitioner has got remedy to move an application for reference to Hon''ble Supreme Court, we ordinarily decline to interfere with the decision of subordinate authority or the tribunal. Power conferred to this Court under Article 226 of the Constitution of India is discretionary power and the power conferred under Article 227 of the Constitution is a power of superintendence over the subordinate authority or the tribunal. Thus, whenever an alternative statutory remedy is available, the court ordinarily prefers to relegate the matter to alternative forum. Accordingly, there appears to be no dispute with regard to the proposition of law as discussed by the Delhi High Court but that too should be taken into account subject to the statutory provisions conferred by Armed Forces Tribunals Act, otherwise, it shall frustrate the very purpose of formation of the tribunal.

Moreover, in the present case, the Petitioner has already availed writ remedy. The Petitioner has approached the Uttarakhand High Court which had refused to entertain the writ petition on merit observing that the Petitioner has got remedy to approach the Hon''ble Supreme Court after seeking a reference from the tribunal. Once, a Division Bench of Uttarakhand High Court has declined to interfere on merit, then it is not open for this Court to interfere against the same cause of action under writ jurisdiction. Of course, things would have been different in case the Uttarakhand High Court would have dismissed the writ petition by a non-speaking order without considering the argument advanced by the Petitioner. As observed above, once the High Court of Uttarakhand has considered in detail the argument advanced by the Petitioner''s counsel and declined to interfere with the matter, then it is not open for this Court to interfere for the same cause of action.

Otherwise also, judicial propriety requires that in case one High Court exercised its jurisdiction, then the other High Court should not exercise its power with regard to same cause of action. For any pending grievance, appropriate remedy available to the Petitioner is to approach the Hon''ble Supreme Court.

In view of above, the writ petition seems to be not maintainable. However, keeping in view that the Petitioner has preferred a review petition before the tribunal which is pending, we direct the tribunal to decide it expeditiously, say within a period of ten weeks from the date of service of a certified copy of this order.

The writ petition is disposed of accordingly. No order as to costs.