Final Orders Of Armed Forces Tribunal Can Be Challenged Before High Court: Delhi High Court Full Bench

A full bench of Delhi High Court has clarified that final orders of the Armed Forces Tribunal can be challenged before High Court.

A full bench of Justice Manmohan, Justice Suresh Kumar Kait and Justice Neena Bansal Krishna answered a reference seeking a clarification that whether the right of appeal against the final orders of the Armed Forces Tribunal excludes the remedy of judicial review by High Court in exercise of its writ jurisdiction.

The reference was made by a division bench of Justice Kait and Justice Krishna. 

The matter was referred to a larger bench in view of a “difference of opinion” between the two different benches in Major Nishant Kaushik v. Union of India and Ors. and Wing Commander Shyam Naithani v. Union of India and Ors.

In Shyam Naithani case decided on March 15, 2022, it was held by the division bench headed by Justice Manmohan that the Armed Forces Tribunal Act “excludes the administrative supervision of the High Court” under Article 227(4) “but not judicial superintendence and jurisdiction under Article 226.”

On October 10, 2022, the division bench headed by Justice Kait in Nishank Kaushik case said that ordinarily, no appeal from a final decision or order of the Armed Forces Tribunal can lie before the High Court. Although the bench had dismissed the plea, it had concurred with the observations in Shyam Naithani case which recognized the remedy of judicial review against the orders of the Armed Forces Tribunal under writ jurisdiction of a High Court.

Perusing the reference and the observations in both the judgments, the full bench held that both the decisions reiterate and acknowledge the jurisdiction of the High Court for judicial review against the orders passed by Armed Forces Tribunal.

“Thus, the conclusion is monosemus and there is no difference of opinion in Shyam Naithani (supra) and in Major Nishant Kaushik (supra) as both the decisions reiterate and acknowledge the jurisdiction of the High Court for Judicial Review against the Orders of the Armed Forces Tribunal. The reference is answered accordingly,” it held.

The court also noted that the Supreme Court in Balkrishna Ram v. Union of India and Anr has already held that the writ jurisdiction of the High Courts for judicial review is not completely ousted by the statutory appeal mechanism provided under the Armed Forces Tribunal Act, 2007.

The matter will now be listed before the roster bench on February 9.

Title: AMAR SINGH EX NB SUB & ORS. v. UNION OF INDIA & ORS. and other connected matters

Citation: 2023 LiveLaw (Del) 108

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