ISHWAR PRASAD Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner who is an ex-army personnel has filed this writ petition claiming retiral benefits.

(2.) Sri R.B. Singhal, senior advocate / Assistant Solicitor General of India, assisted by Sri S.K. Rai advocate has raised a preliminary objection regarding maintainability of the writ petition. It is contended that in view of the provisions of the Armed Forces Tribunal Act, 2007, hereinafter referred to as 'Act', the petitioner has efficacious remedy of approaching the Tribunal, as laid down by the Apex court in the case of L. Chandra Kumar vs. Union of India, 1997 3 SCC 261. He has also placed reliance on the judgement of learned single judge of this court dated 26.11.2013 passed in writ petition no. 64424 of 2013. Sri Jitendra Kumar Pandey advocate who has appeared on behalf of respondent no. 4, has supported the contention of Shri Singhal.

(3.) Counsel for the petitioner, placing reliance on the judgement of the Apex court in the case of Whirlpool Corporation vs. Registrar of Trade Marks, 1998 8 SCC 1, submitted that where there is violation of fundamental rights, the availability of alternative remedy is not an absolute bar for exercise of jurisdiction by this court. He has also placed reliance on the judgement of the Apex court D.S. Nakara and other vs. Union of India, 1983 AIR(SC) 130 wherein, it was held that the pension is not a bounty but a right conferred on a retired employee for the valuable services rendered by him in the hey-day of his service time. He has also placed reliance on another judgement State of Jharkhand vs. Jitendra Kumar Srivastava, 2013 Lawsuit(SC) 819.