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Petition Under Art. 226&227 Cannot Be Entertained By HC Ignoring The Statutory Dispensation Under Armed Forces Tribunal Act: Kerala HC [Read Judgment]

Shreyasi Bhattacharya
4 July 2019 3:03 PM GMT
Petition Under Art. 226&227 Cannot Be Entertained By HC Ignoring The Statutory Dispensation Under Armed Forces Tribunal Act: Kerala HC  [Read Judgment]
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A Bench of Justices V. Chitambaresh and Ashok Menon of the Kerala High Court dismissed an original petition filed by the petitioner against an interlocutory order of the Armed Forces Tribunal established under the Armed Forces Tribunal Act, 2007, holding that the petitioner could prefer such application against the final order. The Court further observed that remedy provided under Article 226 and 227 could not resorted to by bypassing the statutory relief under the Act.

The petition filed under Article 226 and 227 disputed an interlocutory order passed in an original application on the file of Armed Forces Tribunal. The AFT declined the stay of the operation of such order of discharge of the petitioner from the services of Defence Security Corps purely on health grounds. It was alleged that the petitioner was suffering from obesity, hypertension, Pre-Diabetes and Chronic Kidney disease. A preliminary objection raised by the Union of India & Ors. was that an original petition of such nature was not maintainable against such order and the petitioner was to utilize the remedy to file an appeal against the final decision of AFT under section 30 of the Armed Forces Tribunal Act, 2007.

The second proviso to Section 30(1) of the Act states that there shall be no appeal against an interlocutory order and that the same shall only lie against the final decision or order of the AFT. The Court observed however that the power of judicial review vested in the Court under Article 226 of the Constitution of India is not curtailed or circumscribed by the provisions of the Act by referring to the law settled in Union of India & Ors. V. Major General Shri Kant Sharma & Anr. [(2015) 6 SCC 773]. Every interlocutory order cannot be assailed by invoking Article 226 of the Constitution of India without due regard to the legislative intent evidenced by the Act.

It further observed that an original petition under Article 226 of the Constitution could be entertained against an interlocutory order of the AFT for examining

"(i) Whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice?

(ii) Whether there has been violation of the principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act?"

The Court went on to observe that a reference to the decision in the aforementioned case was apposite and Article 226 of the Constitution could not be meant to confer supervisory jurisdiction. In the instant case, there was no indication as to any infraction of any mandatory provisions of the Act prescribing the procedure or any violation of the principles of natural justice.

The Court further observed that the purview of Article 227 of the Constitution of India excludes any court or tribunal constituted by or under any law relating to the Armed Forces. From there it followed that the High Court could not exercise the power of superintendence over AFT constituted under section 4 of the Act. Moreover, through the second proviso of Section 30 it was evident that the legislative intent was that the interlocutory orders of the AFT should not be corrected or interdicted by the power of superintendence of the High Court intermittently.

The Court held that frequent interference over interlocutory orders of the AFT would undermine the discipline of the Armed Forces which had to be averted at any cost. The question of discharge of the petitioner could only be agitated in an original application or appeal against the final decision. The alternate remedy under Article 226 and 227 of the Constitution could not be entertained ignoring the statutory dispensation. Thus, the Original petition was dismissed without costs.

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