High Court of KeralaDivision Bench2019-07-02Dismissed

Rajiv Kumar v. Union of India

Case / Petition Number:OP(AFT) No.1/2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: The Honourable Mr. Justice V. Chitambaresh
The Honourable Mr. Justice Ashok Menon
Judgment Date: 2019-07-02
Court Decision / Holding: Original Petition dismissed. No costs.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Rajiv Kumar

Respondents

Union of India
Deputy Director General, Defence Security Corps
The Commanding Officer, Defence Security Corps Records

Legal Representation & Advocates

Counsels for Petitioners

• Shri. P. Sreekumar
• Shri. S. Ganesh

Counsels for Respondents

• Sri. Jaishankar V. Nair, CGC

Case Synopsis & Summary

This petition challenges an interlocutory order of the Armed Forces Tribunal (AFT), Kochi, which declined to stay the discharge of Rajiv Kumar from the Defence Security Corps on health grounds. The petitioner argues that the High Court may exercise its jurisdiction under Articles 226 and 227 of the Constitution to examine the interlocutory order for violations of mandatory provisions or natural justice and to correct a gross miscarriage of justice, despite the statutory scheme established by the Armed Forces Tribunal Act, 2007. The Union of India and other respondents contend that an Original Petition under Articles 226/227 is not maintainable against an interlocutory order and that remedy lies in an appeal under Sections 30 and 31 of the Act; Section 30(1) second proviso bars appeals against interlocutory orders. In its decision, the Court reiterates that Article 226 power remains a basic feature of the Constitution and cannot be curtailed by legislation, and that the High Court will intervene only for limited purposes such as infraction of mandatory provisions or violation of natural justice. However, it also emphasizes that the AF Tribunal Act provides an effective alternate remedy and that Article 227(4) bars regular supervisory jurisdiction over armed-forces tribunals. Ultimately, the petition is dismissed, with no costs, leaving the remedy to challenge the AFT’s final decision.

Provisions of Law Cited

Constitution of India, Articles 226 and 227Constitution of India, Article 32Armed Forces Tribunal Act, 2007Section 2 (Act applies to Army, Navy and Air Force personnel)Section 4 (establishment of AFT)Section 30(1) (second proviso)Section 30Section 31Article 227(4)Army Act, 1950; Navy Act, 1957; Air Force Act, 1950

Legal Doctrines & Maxims

Judicial review is a basic essential feature of the Constitution and cannot be overridden by statute (Kant Sharma/Union of India v. Major General Shri Kant Sharma)
Due regard to legislative intent evidenced by the Act (Mafatlal Industries Ltd.)
A writ petition under Article 226 will not be entertained if an effective alternative remedy exists (Nivedita Sharma)
Article 227(4) bars High Courts from exercising supervisory jurisdiction over tribunals constituted by the Armed Forces (Himmat Singh Chahar)
Interlocutory orders of the AFT should not be frequently interfered with to preserve the discipline of the armed forces (general principle stated in the judgment)

Submissions & Arguments

Contentions of Appellants / Petitioners

Applicants contended that the High Court can exercise judicial review under Articles 226/227 of the Constitution to interrogate an interlocutory order of the AFT, especially where there is alleged illegality or violation of natural justice, and that the health-ground discharge order requires scrutiny given the constitutional safeguards. They argued that the AF Tribunal Act should not automatically bar High Court intervention when substantial questions of law or procedure arise.

Contentions of Respondents

Respondents argued that the second proviso to Section 30(1) bars appeals against interlocutory orders and that the remedy lies in filing an appeal against the final decision under the Act; Article 227(4) bars supervisory jurisdiction over Armed Forces tribunals; the petition should be dismissed on the ground of maintainability and on the existence of an effective alternative remedy under Sections 30/31 of the Act.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Union of India and others v. Major General Shri Kant Sharma and another	[(2015) 6 SCC 773]	Positive	Used to support that judicial review under Article 226 cannot be overridden by the AF Tribunal Act and that High Court jurisdiction must be respected in light of legislative intent.
L. Chandra Kumar and S. N. Mukherjee	(References cited in text)	Positive	Cited as part of the principle that High Court/Constitutional courts retain jurisdiction under Article 226 in the face of statutory enactments, respecting legislative intent.
Mafatlal Industries Ltd.	(Refer: Mafatlal Industries Ltd.)	Positive	Supports the proposition that the High Court’s jurisdiction under Article 226 must be exercised with due regard to the provisions and intent of the enabling Act.
Nivedita Sharma	(Refer: Nivedita Sharma)	Positive	Cited for the principle that an effective alternate remedy bars entertaining a writ petition under Article 226.
Union of India v. Himmat Singh Chahar	[(1999) 4 SCC 521]	Positive	Used to illustrate limits on using Article 226 as supervisory jurisdiction over tribunals related to armed forces.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941** ## **OP(AFT).No.1 of 2019** **AGAINST THE ORDER DATED 19-06-2019 IN OA 189/2019 OF** **ARMED FORCES TRIBUNAL,REGIONAL BENCH,KOCHI** ## **PETITIONER:** **RAJIV KUMAR,AGED 55,JC 843603, SUB/CLK (SD), DEFENCE SECURITY/ CORPS RECORDS, PIN-901277, C/O. 56 APO.** **BY ADVS. SHRI.P.SREEKUMAR SHRI.S.GANESH** ## **RESPONDENTS:** |**1**|**UNION OF INDIA,**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**MINISTRY OF DEFENCE, NEW DELHI-110 011.**| |**2**|**DEPUTY DIRECTOR GENERAL,**| ||**DEFENCE SECURITY CORPS,**| ||**INTEGRATED HQ OF MINISTRY OF**| ||**DEFENCE (ARMY),WEST BLCOK-III,**| ||**R.K.PURAM, NEW DELHI-110 066.**| |**3**|**THE COMMANDING OFFICER,**| ||**DEFENCE SECURITY CORPS RECORDS,**| ||**PIN-901277, C/O. 56 APO.**| ||**BY ADV. SRI.JAISHANKAR V. NAIR, CGC**| **THIS OP (ARMED FORCES TRIBUNAL - ART.227) HAVING COME UP FOR ADMISSION ON 02.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(AFT) No.1/2019 2 **==> picture [46 x 10] intentionally omitted <==** ## **JUDGMENT** ## **Chitambaresh, J.** An interlocutory order passed in an Original Application on the file of the Armed Forces Tribunal ('AFT' for short) is impugned in this Original Petition under Articles 226 and 227 of the Constitution of India. The AFT has declined to stay the operation of the order of Discharge of the petitioner from the services of the Defence Security Corps purely on health grounds. It is alleged that the petitioner is suffering from Obesity, Hypertension, Prediabetes and Chronic Kidney disease and that he did not tone up his health within the time stipulated. A preliminary objection is raised on behalf of the Union of India and others that an Original Petition of the nature is not maintainable against an interlocutory order. It is urged that the remedy of the petitioner is to file an appeal against the final decision of the AFT under Section 30 of the Armed Forces Tribunal Act, OP(AFT) No.1/2019 3 ## 2007 ('the Act' for short). 2. We heard Mr. P. Sreekumar, Advocate on behalf of the petitioner and Mr. Jaishankar V. Nair, Central Government Counsel at length. 3. The second proviso to Section 30 (1) of the Act is categoric that there shall be no appeal against an interlocutory order and that the same shall lie only against the final decision or order of the AFT. However the power of judicial review vested in this Court under Article 226 of the Constitution of India is not curtailed or circumscribed by the provisions of the Act. The law in this regard has been summarised in **Union of India and others v. Major General Shri Kant Sharma and another** [(2015) 6 SCC 773] which is extracted below: “36. The aforesaid decisions rendered by this Court can be summarised as follows: (i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including the Armed Forces Tribunal Act, 2007 cannot override or curtail OP(AFT) No.1/2019 4 jurisdiction of the High Court under Article 226 of the Constitution of India. (Refer: L.Chandra Kumar and S.N.Mukherjee) (ii) The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act. (Refer: Mafatlal Industries Ltd.) (iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer:Nivedita Sharma) (iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer:Nivedita Sharma)” But that does not mean that any and every interlocutory order can be assailed by invoking to Article 226 of the OP(AFT) No.1/2019 5 Constitution of India without due regard to the legislative intent evidenced by the Act. 4. An Original Petition under Article 226 of the Constitution of India can be entertained against an interlocutory order of the AFT for the limited purpose of examining the following: (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? A reference to the decision in **Union of India and others v. Himmat Singh Chahar** [(1999) 4 SCC 521] is apposite and a resort to Article 226 of the Constitution of India cannot be OP(AFT) No.1/2019 6 had akin to the supervisory jurisdiction. The grounds urged in this Original Petition pertain to the health of the petitioner wherein it is stated that he had the same weight even at the time of entry in service. There is no whisper that there has been infraction of any mandatory provisions of the Act prescribing the procedure or there has been violation of the principles of natural justice. The petitioner at one stage even conceded that he is willing to get discharged with effect from 31.07.2019 instead of 30.06.2019 for the purpose of getting one increment. The petitioner has also no case that the respondents have exercised a jurisdiction not vested under the Act and therefore Article 226 of the Constitution of India is out of bounds. 5. Article 227 of the Constitution of India dealing with the power of superintendence by the High Court excludes any court or tribunal constituted by or under any law relating to the Armed Forces. Article 227 (4) of the Constitution of India is as follows: ## “ **227. Power of superintendence over all Courts by the High Court -** - (1) x x x x x x x x x OP(AFT) No.1/2019 7 (2) x x x x x x x x x (3) x x x x x x x x x (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces.” Section 2 of the Act is explicit that it shall apply to all persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950 and the AFT has been established under Section 4 thereof. It follows that the High Court cannot exercise the power of superintendence over the AFT which is constituted under the law relating to the Armed Forces as explained above. The second proviso to Section 30 (1) of the Act barring an appeal against an interlocutory order of the AFT is in consonance with Article 227 (4) of the Constitution of India. The legislative intent is that the interlocutory orders of the AFT should not be corrected or interdicted by the power of superintendence of the High Court intermittently. The aggrieved person has to await the final decision or the order of the AFT in order to prefer an appeal under Sections 30 or 31 of the Act wherein the entire issues are at large. We should bear in mind that OP(AFT) No.1/2019 8 frequent interference over interlocutory orders of the AFT would undermine the discipline of the Armed Forces which has to be averted at any cost. The question whether the petitioner is liable to be discharged from services or not is a matter that can be agitated in the Original Application or in the appeal against the final decision. The petitioner has an effective alternate remedy and the Original Petition under Articles 226 and 227 of the Constitution of India cannot be entertained ignoring the statutory dispensation. The Original Petition is dismissed. No costs. **V. CHITAMBARESH JUDGE** **ASHOK MENON JUDGE** ncd OP(AFT) No.1/2019 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF OA NO. 189/2019 FILED BY THE PETITIONER BEFORE THE HON'BLE ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 19.06.2019 IN OA NO. 189/2019 PASSED BY THE HON'BLE ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI.**