IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.223 of 2011 1. THE UNION OF INDIA THROUGH THE MILITARY SECRETARY, SOUTH BLOCK, INTEGRATED H.Q. OF THE MINISTRY OF DEFENCE ( ARMY ), BHQ P.O. NEW DELHI-11 2. THE DEPUTY SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI-11. 3. THE CHIEF OF THE ARMY STAFF, INTEGRATED HQ OF THE MINISTRY OF DEFENCE ( ARMY ) BHQ, P.O. NEW DELHI. 4. MILITARY SECRETARY, SOUTH BLOCK, INTEGRATED HQ OF THE MINISTRY OF DEFENCE ( ARMY ), BHQ. P.O. NEW DELHI-11…………………………………………. APPELLANTS Versus 1. IC 38558Y COLONEL SARAT CHANDR MISHRA, S/O LATE SRINIWAS MISHRA, POSTED AT HQ JHARKHAND, ORISSA AND BIHAR SUB AREA, DANAPUR CANTONMENT, DANAPUR, PATNA, BIHAR, R/O DANAPUR CANTONMENT……. WRIT PETITIONER/ RESPONDENT 2. LT. GEN. P.K. PAMPAL, EX COMMANDANT, INDIAN MILITARY ACADEMY, DEHRADUN- 248007. 3. MAJ GEN. T.P.S. BUXI, EX DEPUTY COMMANDANT, INDIAN MILITARY ACADEMY, DEHRADUM- 248007…… RESPONDENTS. -------------- FOR THE APPELLANTS :- MR. RAGHIB AHSAN, SR. ADVOCATE, ASST. S.G. FOR RESPONDENTS MR. SUDHIR SINGH, ADVOCATE, MR. RAGHWANAND, ADVOCATE, MR. RANJEET KUMAR, ADVOCATE, MR. RABINDRA KR. TIWARY,ADVOCATE ------------ 4 9-5-2011 Heard learned counsel for the Union of India and learned counsel for the respondent- writ petitioner. .2 Learned counsel for the appellants has submitted that the learned writ court should not have rejected the objection raised on behalf of the appellants in respect of territorial jurisdiction of this Court as well as a plea that the matter should be allowed to be decided first by the Armed 2 Forces Tribunal ( hereinafter referred to as the Tribunal) constituted under the Armed Forces Tribunal Act, 2007 which is available at Calcutta since November, 2009. 3. A perusal of the impugned order shows that the issue of territorial jurisdiction as well as objection on account of availability of statutory remedy before the Tribunal was seriously raised by the appellants before the learned single Judge. When this matter was decided against the Union of India by an interim order, the matter was taken to a Division Bench through L.P.A. No. 1777/2010 which was disposed of on 4-11-2010 with an observation that since the matter was pending before the learned single Judge the appeal will not be entertained but in the event the final order goes against the Union of India, it will be at liberty to challenge the same on all the grounds available including the ground of jurisdiction, territorial or otherwise. 4. This appeal has been pressed mainly on the same very ground that the matter should have been relegated to the statutory Tribunal and not heard on merit, specially when objection was raised at the initial stage itself on that ground and on the ground of territorial jurisdiction also. The 3 submissions advanced before the learned single Judge were reiterated 5. On the other hand, learned counsel appearing for respondent no.1 i.e. the writ petitioner, has submitted in reply that this Court has ample jurisdiction under Article 226 of the Constitution of India to decide the writ petition even if the statutory remedy available before the Tribunal has not been availed of. Another limb of the submission is that once the learned writ court decided to go into the merits, the order must be considered on merit without any regard to the plea relating to alternative remedy. 6. On behalf of the appellant special emphasis was laid upon observations of the Supreme Court in penultimate paragraph of judgment in the case of L.Chandra Kumar Vrs. Union of India, (1997) 3 Supreme Court Cases 261. That judgment was in the context of power of judicial review of the High Court and the effect of provisions for exclusion of such power in the Administrative Tribunals Act 1985. The apex court held that the power of judicial review vested under Articles 226 and 227 of the Constitution of India upon the High Court is a part of the inviolable basic structure of 4 Constitution, therefore, such jurisdiction cannot be ousted and the other courts and tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The powers to create such administrative tribunals for deciding disputes relating to recruitments and conditions of service of persons appointed to public services is available to the Parliament under Article 323-A of the Constitution of India. The Apex Court has observed “ that tribunals created under Article 323- A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal concerned falls. The tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question of vires of statutory provisions ( except where the legislation which creates the particular tribunal is challenged) by over looking the 5 jurisdiction of the tribunal concerned.” 7. On behalf of writ petitioner it has been submitted that the aforesaid observations are only in respect of Administrative Tribunals constituted under the Administrative Tribunals Act, 1985 and cannot apply to the tribunals constituted under the Armed Forces Tribunal Act, 2007. We do not find any force in the submission because the Parliament enacts laws to constitute such tribunals in exercise of power under Article 323-A of the Constitution of India and regardless of whether a particular Act attempts to save the power of the High Court under Articles 226/227 of the Constitution or not , the scope and ambit of the jurisdiction of such tribunals will not be eroded/adversely affected only because they are constituted under different Acts. The observations of the Apex Court in the context of Administrative Tribunals Act will be applicable with equal force to the tribunals constituted under the Armed Forces Tribunal Act, 2007. 8 Since this issue was decided by the writ court against the appellants almost as preliminary issue and has been left open for decision in this appeal, we find merit in the 6 contention advanced on behalf of the appellants that the writ petitioner had to approach first the tribunal before invoking power of judicial review of this Court at a later stage, if required, as per law. 9. Hence, in our considered view, there is no requirement to consider several other judgments which lay down the guidelines as to when the High Court can entertain a writ petition in spite of availability of statutory alternative remedy. Such exceptional situations are well settled by now but with creation of tribunals by the Parliament in exercise of constitutional power the view as noticed above, has taken a firm shape now that where such tribunals have been created, the litigants must first approach the Tribunal. 10. In that view of the matter we do not feel necessity of discussing the issue of territorial jurisdiction raised and argued. The preliminary issue raised by the appellants is decided in their favour to the extent that the writ petitioner was required to first approach the Armed Forces Tribunal and writ petition should not have been entertained on merits at the first instance. Hence, the judgment and order under appeal is set aside without going into the merits of the matter. The writ 7 petitioner, if so advised, may approach the Tribunal for seeking appropriate remedy in accordance with law. 11. It has been brought to our notice that the writ petitioner is to superannuate on 31st. October, 2011.In that view of the matter, it is expected that the Tribunal, if approached within 30 days, shall deal with the matter at hand expeditiously on merits. Naresh ( Shiva Kirti Singh, J.) ( Dr. Ravi Ranjan,J)