HITESH BHATNAGAR Vs. UNION OF INDIA & ORS

JUDGEMENT

(1.) By this petition filed under Article 226 of the Constitution of India, the petitioner seeks to challenge the order dated 3rd September 2014 passed by the learned Armed Forces Tribunal.

(2.) The grievance raised by the petitioner in the instant petition is that the learned Armed Forces Tribunal has failed to appreciate the fact that the petitioner had withdrawn the Writ Petition being W.P. (C) No. 7102/2008 due to misrepresentation on the part of the respondents that the Officer who was the Initiating Officer apropos the two confidential reports of the petitioner was a Joint Director, but in fact he was a Deputy Director, thereby incompetent to act as an Initiating Officer. The learned counsel for the petitioner further submits that the said misrepresentation by the respondents came to the petitioner's knowledge sometime in the year 2004 and that he had no means to gain access to such information prior to that. The contention raised by the learned counsel for the petitioner is that it is for no other reason save the misrepresentation, that the said Writ Petition was withdrawn by the petitioner. Another contention raised by the learned counsel for the petitioner is that the principle of res judicata as enshrined under Section 11 of the Code of Civil Procedure, 1908 will not come in the way of the petitioner to seek his remedy by filing the petition under Section 14 of the Armed Forces Tribunal Act, 2007 under which an independent legal remedy was available to him to challenge the correctness and validity of the two ACRs for the period 1.9.2002 to 31.08.2003 and 1.9.2003 to 14.4.2004. To support his argument, the learned counsel for the petitioner has placed reliance on the following two judgments of the Apex Court:-

(3.) The learned counsel for the petitioner also submits that the learned Armed Forces Tribunal did not appreciate the fact that the remedy of the petitioner to file another Writ Petition under Article 226 of the Constitution of India on the same issue may be barred but not filing an independent petition under Section 14 of the Armed Forces Tribunal Act, 2007, which provides the complete mechanism to adjudicate the grievances raised by the petitioner concerning the said two ACRs and also the ACRs covering the period from 1.1.1995 to 30.9.1995.