The Armed Forces Tribunal Act, 2007 has been enacted to provide for adjudication by the Armed Forces Tribunal of disputes and complaints with respect to service matters in respect of persons subject to the Army Act, 1950; the Navy Act, 1957 and the Air Force Act, 1950 and also to provide for appeals arising out of orders, findings or sentences of court martial held under the said Acts.
Section 30 of this Act provides for an appeal to the Supreme Court and Section 31 deals with leave to appeal.
With this legal position, is it permissible for a High Court to entertain a writ petition against an order of the Armed Forces Tribunal, even though there is a specific provision in the Act allowing filing of an appeal to the Supreme Court?
In the case of Nivedita Sharma v. Cellular Operators Assn. of India, (2011) 14 SCC 337, it has been held that 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.
It is noteworthy that under the Armed Forces Tribunal Act, as mentioned above, there is a provision for a statutory appeal to the Supreme Court against the order of such Tribunal.
In the case of CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603, the Supreme Court held that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
In the case of Cicily Kallarackal v. Vehicle Factory, (2012) 8 SCC 524, the Supreme Court had issued a direction of caution that it will not be a proper exercise of the jurisdiction by the High Court to entertain a writ petition against such orders against which statutory appeal lies before this Court.
After discussing these decided cases, in Union of India v. Shri Kant Sharma, (2015) 6 SCC 773, the Supreme Court has clearly held that it is improper on the part of the High Court to entertain a writ petition against order of such Tribunal.
In this case, it was held by the Supreme Court that:
“42. If the High Court entertains a petition under Article 226 of the Constitution of India against an order passed by the 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.
43. Section 30 provides for an appeal to this [Supreme] 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 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 the 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 Tribunal Act.
44. The High Court (the Delhi High Court) while entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of the Act. However, we find that the 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 the Delhi High Court was not justified in entertaining the petition under Article 226 of the Constitution of India.”
Therefore, it is not justified for a High Court to entertain a writ petition against the order of the Armed Forces Tribunal.
