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Armed Forces Tribunal Act Cannot Curtail High Court's Power Of Judicial Review U/A 226: Allahabad High Court

Shivang
8 March 2022 2:30 PM GMT
Armed Forces Tribunal Act Cannot Curtail High Courts Power Of Judicial Review U/A 226: Allahabad High Court
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The Allahabad High Court has made it clear that the Armed Forces Tribunal Act, 2007 cannot and does not oust the High Court's power of judicial review contained under Article 226 of the Constitution. "The jurisdiction under Article 226 of the Constitution of India is extraordinary and discretionary in nature. It is also to be noted that the powers to be exercised by the High Court...

The Allahabad High Court has made it clear that the Armed Forces Tribunal Act, 2007 cannot and does not oust the High Court's power of judicial review contained under Article 226 of the Constitution. 

"The jurisdiction under Article 226 of the Constitution of India is extraordinary and discretionary in nature. It is also to be noted that the powers to be exercised by the High Court under Articles 226 and 227 are constitutional powers and the same cannot be excluded by legislation. The Armed Forces Tribunal Act cannot curtail the powers under the grundnorm being the constitution," a Bench of Justice Anjani Kumar Mishra and Justice Vikram D. Chauhan observed.

The remarks were made while adjudicating upon a writ petition filed under Article 226 of the Indian Constitution by a former sepoy (cook) in the Indian Army, aggrieved by the order of the Tribunal and seeking interest on the arrears of pension and retiral dues.

The petition was opposed by the Union of India on the ground that the petitioner has a statutory alternative remedy of filing an appeal under Sections 30 and 31 of the 2007 Act.

Confronted with the aforesaid preliminary objection, the petitioner submitted that although there is an alternative remedy of preferring an appeal before the Supreme Court, however, on account of his pitiable condition, the aforesaid remedy would not be efficacious in the facts and circumstances of the case and as such, the writ petition is liable to be entertained.

Findings

At the outset, the Court made it clear that merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction.

It stated that judicial review is part of the basic structure of the Constitution and the High Court under Article 226 of the Constitution is not denuded of its power of judicial review in view of Armed Forces Tribunal Act. The power of the High Court under Article 226 of the Constitution for judicial review of the order of the tribunal below is not curtailed or restricted in any manner. The remedy provided under Article 226 of the Constitution is a extraordinary and discretionary remedy.

"The principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The writ courts normally refrain from exercising their extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted."
The Armed Forces Tribunal Act, the Court noted, was enacted to provide for the adjudication 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.
Section 4 thereof provides for establishment of Armed Forces Tribunal which is vested with the same powers as vested with the civil court while trying a suit.
The provisions of appeal under Sections 30 and 31 of the Act no 55 of 2007 is provided against an order passed by the Armed Forces Tribunal to the Supreme Court.
In this backdrop, the Court stated that the discretion under Article 226 of the Constitution is to be exercised by objective assessment of the plea of the petitioner that the statutory forum provided under the Armed Forces Tribunal Act is not efficacious remedy in the facts and circumstances of the case.
In the instant case, the petitioner had pleaded to be an old person with various age related ailments, unable to approach the Supreme Court. However, the High Court rejected this argument for the following reason:
"petitioner has not filed any medical certificate in support of his pleadings nor has brought on record any document to demonstrate that the petitioner is not physically fit to approach the Supreme Court. The petitioner has also not stated the details of the ailments on account of which the petitioner is seeking intervention of this court. It is also to be seen that the petitioner has not laid the foundation for bypassing the remedy of appeal in the writ petition nor has proved by documentary evidence that his physical condition is not such that the petitioner would be able to travel to New Delhi."
Furthermore, the Court noted that the Supreme Court has been functioning virtually for a long time now, and hence, the Petitioner is empowered to approach the Supreme Court from the comfort of his home, through Internet.
The High Court stated,
"The country is witnessing a revolution in the digitalisation activity. The digitalisation is not only about implementation of technology. It encompasses the transformation of the courts and justice delivery system using technology in order to enable the experiences to be better, effective and within the reach of the ordinary citizens. The digitalisation is bridging the gap between the courts and the litigant."
It continued,
"The process of digitalisation has enabled the litigant to approach the various forum of justice delivery system and the issue of distance of the courts have been effectively addressed. The Apex Court has put in place various digitalisation processes including addressing the court through video conference...The digitalisation and technology are playing a crucial role in ensuring the efficient last mile delivery of services to citizens...various measures have been taken by the apex court for enabling the citizens to get "justice at doorstep" and the distance between the citizen and the apex court is of no consequence as a result of the digital process."
The High was of the view that the alternate channel of appeal is available to the petitioner by using digital technology and thus, no ground is made out for bypassing the alternate remedy.
The writ petition was accordingly disposed of.
Case Title: Ram Harsh v. Union of India and 4 Others
Citation: 2022 LiveLaw (AB) 98


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