Rajkumar and another appellants vs State of Madhya Pradesh

Heard on the question of admission.

In this petition under Article 227 of Constitution of India, the petitioner inter alia has assailed the final order dated 11/05/2015 (Annexure P/1) passed by the Armed Forces Tribunal, Circuit Bench at Jabalpur whereby, the prayer to quash the discharge order dated 15/09/2009 and appellate order dated 15/06/2010 has been rejected.

At the outset, a preliminary objection was raised on

behalf of Union of India as to maintainability of the writ petition on the ground that against the impugned order remedy of appeal to the Supreme Court is provided under Section 30 of Armed Forces Tribunal Act, 2007. Shri Vivek Khedkar, learned Assistant Solicitor General has placed reliance on the judgment of the Apex Court in the case of Union of India vs. Shrikant Sharma reported in (2015) 6 SCC 773 in support of his contention.

Relevant para 42 to 45 of the decision in Shrikant Sharma (supra) are reproduced here under for ready reference and convenience :- "42. If the High Court entertains a petition under Article 226 of the Constitution of India against order passed by Armed Forces Tribunal under Section 14 or Section 15 of the Act bypassing the machinery of statute i.e. Sections 30 and 31 of the Act, there is likelihood of anomalous situation for the aggrieved person in praying for relief from this Court.

Section 30 provides for an appeal to this Court subject to leave granted under Section 31 of the Act. By clause (2) of Article 136 of the Constitution of India, the appellate jurisdiction of this Court under Article 136 has been excluded in relation to any judgment, determination, sentence or order passed or made by any court or Tribunal constituted by or under any law relating to the Armed Forces. If any person aggrieved by the order of the Tribunal, moves before the High Court under Article 226 and the High Court entertains the petition and passes

a judgment or order, the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation. Therefore, it is always desirable for the High Court to act in terms of the law laid down by this Court as referred to above, which is binding on the High Court under Article 141 of the Constitution of India, allowing the aggrieved person to avail the remedy under Section 30 read with Section 31 of the Armed Forces Act.

The High Court (Delhi High Court) while entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of Act. However, we find that Andhra Pradesh High Court and the Allahabad High Court had not entertained the petitions under Article 226 and directed the writ petitioners to seek resort under Sections 30 and 31 of the Act. Further, the law laid down by this Court, as referred to above, being binding on the High Court, we are of the view that Delhi High Court was not

justified in entertaining the petition under Article 226 of the Constitution of India.

For the reasons aforesaid, we set aside the impugned judgments passed by the Delhi High Court and uphold the judgments and orders passed by the Andhra Pradesh High Court and Allahabad High Court. Aggrieved persons are given liberty to avail the remedy under Section 30 with leave to appeal under Section 31 of the Act, and if so necessary may file petition for condonation of delay to avail remedy before this Court."

In view of aforesaid enunciation of law, this court is not inclined to entertain this writ petition on merits, accordingly, the same is dismissed. However, the petitioner is at liberty to avail the alternative remedy under Section 30 & 31 of the Armed Forces Tribunal, Act, 2007. No cost.