UNION OF INDIA & ORS. versus PARASHOTAM DASS

[2023] 3 S.C.R. 598

[2023] 3 S.C.R.

UNION OF INDIA & ORS.

PARASHOTAM DASS

(Civil Appeal No. 447 of 2023)

BMARCH 21, 2023

[SANJAY KISHAN KAUL, B. V. NAGARATHNAAND ABHAY S. OKA, JJ.]

Constitution of India – Art. 226 – Service matters relating tomembers of three-armed forces – Whether the order passed by theCArmed Forces Tribunal would be amenable to challenge in the writjurisdiction under Art. 226 of the Constitution of India before anyHigh Court – Held: The judgment in Major General Shri Kant Sharma& Anr. case does not lay down the correct law and is in conflictwith judgments of the Constitution Benches rendered prior and laterDto it, including in L. Chandra Kumar case, S.N. Mukherjee case, andRojer Mathew case making it abundantly clear that there is no perse restriction on the exercise of power under Art. 226 of theConstitution by the High Court – However, in respect of matters ofself-discipline, the principles are already enunciated by the SupremeCourt.E

Constitution of India – Arts. 226 and 227 – Clarification under– It is clarified that the power of the High Court under Article 226of the Constitution is not inhibited, and superintendence and controlunder Article 227 of the Constitution are somewhat distinct fromthe powers of judicial review under Article 226 of the Constitution.F

Disposing of the appeals and writ petition, the Court

HELD:1. This Court is conscious of the importance of therole performed by the Armed Forces and the discipline levelrequired by these services. Thus, often many jurisprudentialGprinciples of other tribunals cannot be imported into the decisionsof the Armed Forces Tribunal. The Armed Forces have their ownrules and 16 procedures, and if there is proper exercise ofjurisdiction in accordance with the norms of the Armed Forces,the High Court or this Court have been circumspect in interfering

with the same, keeping in mind the significance of the roleperformed by the Armed Force. [Para 24][611-H; 612-A-B]

2. While this Court agrees with the aforesaid principle, thisCourt is unable to appreciate the observations in the case of MajorGeneral Shri Kant Sharma & Anr., which sought to put an embargoon the exercise of jurisdiction under Article 226 of theConstitution, diluting very significant provision of theConstitution which also forms the part of basic structure. Theprinciples of basic structure have withstood the test of time andare emphasized in many judicial pronouncements as an ultimatetest. This is not something that can be doubted. That being theposition, the self-restraint of the High Court under Article 226 ofthe Constitution is distinct from putting an embargo on the HighCourt in exercising this jurisdiction under Article 226 of theConstitution while judicially reviewing decision arising from anorder of the Tribunal. [Para 25][612-B-D]3. On the legislature introducing the concept of“Tribunalisation” (one may say that this concept has seen manyquestion marks vis-a-vis different tribunals, though it has alsoproduced some successes), the same was tested in L. ChandraKumar case before Bench of seven Judges of this Court. Thus,while upholding the principles of “Tribunalisation” under Article323A or Article 323B, the Bench was unequivocally of the viewthat decisions of Tribunals would be subject to the jurisdiction ofthe High Court under Article 226 of the Constitution, and wouldnot be restricted by the 42nd Constitutional Amendment whichintroduced the aforesaid two Articles. In view of this Court, thisshould have put the matter to rest, and no Bench of less thanseven Judges could have doubted the proposition. The need forthe observations in the five-Judges’ Bench in Rojer Mathew casequa the Armed Forces Tribunal really arose because of theobservations made in Major General Shri Kant Sharma & Anr.Thus, it is, reiterated and clarified that the power of the HighCourt under Article 226 of the Constitution is not inhibited, andsuperintendence and control under Article 227 of the Constitutionare somewhat distinct from the powers of judicial review underArticle 226 of the Constitution. [Para 26][612-E-G; 613-A]

DEF

A4. To deny the High Court to correct any error which theArmed Forces Tribunal may fall into, even in exercisingjurisdiction under Article 226, would be against the constitutionalscheme. The first independent judicial scrutiny is only by theArmed Forces Tribunal. To say that in some matters, judicialscrutiny would amount to second appeal, would not be the correctBway to look at it. What should be kept in mind is that inadministrative jurisprudence, at least two independent judicialscrutinies should not be denied. High Court Judge has immenseexperience. In any exercise of jurisdiction under Article 226, theHigh Courts are quite conscious of the scope and nature ofCjurisdiction, which in turn would depend on the nature of thematter. [Para 28][613-E-G]

5. There is no necessity to carve out certain cases fromthe scope of judicial review under Article 226 of the Constitution,as was suggested by the Additional Solicitor General. It wasDenunciated in the Constitution Bench judgment in S.N. Mukherjeecase that even in respect of courts-martial, the High Court couldgrant appropriate relief in certain scenario as envisaged therein,i.e., “if the said proceedings have resulted in denial of thefundamental rights guaranteed under Part III of the Constitutionor if the said proceedings suffer from jurisdictional error or anyEerror of law apparent on the face of the record.” [Para 29][613-G-H; 614-A-B]

6. How can courts countenance scenario where even inthe aforesaid position, party is left remediless? It would neitherbe legal nor appropriate for this Court to say something to theFcontrary or restrict the aforesaid observation enunciated in theConstitution Bench judgment in S.N. Mukherjee case. This Courtwould loath to carve out any exceptions, including the onesenumerated by the Additional Solicitor General extractedaforesaid as irrespective of the nature of the matter, if there is aGdenial of fundamental right under Part III of the Constitution orthere is jurisdictional error or error apparent on the face of therecord, the High Court can exercise its jurisdiction. Thereappears to be misconception that the High Court would re-appreciate the evidence, thereby making it into second appeal,etc. This Court believes that the High Courts are quite consciousH

of the parameters within which the jurisdiction is to be exercised,and those principles, in turn, are also already enunciated by thisCourt. [Para 30][614-B-E]

7. This Court has no hesitation in concluding that thejudgment in Major General Shri Kant Sharma & Anr. case doesnot lay down the correct law and is in conflict with judgments ofthe Constitution Benches rendered prior and later to it, includingin L. Chandra Kumar case, S.N. Mukherjee case, and Rojer Mathewcase making it abundantly clear that there is no per se restrictionon the exercise of power under Article 226 of the Constitutionby the High Court. However, in respect of matters of self-discipline, the principles already stand enunciated. [Para 32][614-F-G; 615-A]

L. Chandra Kumar v. Union of India & Others (1997)3 SCC 261 : [1997] 2 SCR 1186; S. N. Mukherjee v.Union of India (1990) 4 SCC 594 : [1990] 11 Suppl.SCR 44; Rojer Mathew v. South Indian Bank Ltd. &Ors. (2020) 6 SCC 1 : [2019] 16 SCR 1 – followed.

Lt. Col. Prithi Pal Singh Bedi Etc. v. Union of India &Others (1982) 3 SCC 140 : [1983] 1 SCR 393;Kesavananda Bharti v. State of Kerala AIR 1973 SC1461 : [1973] Suppl. SCR 1 – referred to.

Union of India Ors. v. Major General Shri Kant Sharma& Anr. (2015) 6 SCC 773 : [2015] 4 SCR 676 – heldnot correct law.

ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 447 of2023.

From the Judgment and Order dated 30.01.2013 of the High Courtof Punjab & Haryana at Chandigarh in CWP No. 662 of 2012.

WithB

Civil Appeal Nos. 457, 1807/2023, 5327/2015, 449, 448, 450, 451,452, 483, 454, 453/2023 and W.P. (C) No. 76/2016.

R Venkataramani, AG, K M Nataraj, Sanjay Jain, A.S.Gs., R Bala,Mrs. Sonia Mathur, Sr. Advs., Braj Kishore Mishra, Ms. Manju Jetley,CK. Parameshwar, Ms. Arti Gupta, Ms. Kanti, Mukesh Kumar Sharma,Mrs. Seema Bengani, Padmesh Mishra, Yuvraj Sharma, AnandhVenkataramani, Mrs. Vijayalakshmi Venkataramani, Vinayak Mehrotra,Ms. Mansi Sood, Chitvan Singhal, Ms. Sonali Jain, Abhishek KumarPandey, Raman Yadav, Arvind Kumar Sharma, Sidhant Kohli, NishankTripathi, Ms. Tanya Aggarwal, Arkaj Kumar, Ms. Harshita Sukhija,DMs. Ashima Gupta, Akash Kishore, Mukesh Kumar Maroria,Ms. Archana Pathak Dave, Rakesh Dahiya, Satyavan Kudalwal, AkshatJain, Shreekant Neelappa Terdal, Advs. for the appearing parties.

The Judgment of the Court was delivered by

SANJAY KISHAN KAUL, J.E

The prelude to the Armed Forces Tribunal Act, 2007:

1. large number of cases relating to service matters of membersof the three-armed forces of the Union of India had been pending inCourts for considerable period of time and, thus, the Central GovernmentFengaged in the question of constituting an independent adjudicatory forumfor defence personnel. In 1982, the Supreme Court in Lt. Col. PrithiPal Singh Bedi Etc. vs. Union of India & Others[1] had urged theCentral Government to take steps to provide for at least one judicialreview in service matters, and in 1992 the Estimate Committee ofParliament in their 19[th] Report desired as much.G

2. The then existing system of administration of justice in thesearmed services provided for the submission of statutory complaints againstgrievances relating to service matters and pre and post confirmationpetitions to various authorities against the findings and sentences of

courts-marital. The establishment of an independent Armed ForcesTribunal was, thus, conceived to fortify the trust and confidence amongstthe members of the three services. Bill was introduced to provide forjudicial appeal on points of law and facts against verdicts of Court martial,the absence of which had led to adverse comments from this Court. Onthe Bill ultimately being passed, the Armed Forces Tribunal Act, 2007,(hereinafter referred to as the ‘said Act’) came into being with effectfrom 15.06.2008 and saw some amendments subsequently.

Legal Conundrum:

3. On the said Act coming into force, various issues arose duringits implementation. One such issue which begs consideration before usis whether the order passed by the Armed Forces Tribunal would beamenable to challenge in the writ jurisdiction under Article 226 of theConstitution of India before any High Court. The issue needsconsideration in number of matters before us, and the decision on thisproposition would result in certain consequential orders being passed inthese different matters. Interestingly, in some of the matters includingthe lead matter, it appears that the objection to exercise jurisdiction underArticle 226 of the Constitution of India before the High Court was noteven raised, though that exercise is sought to be assailed before us.

Submissions on behalf of the private parties:

4. Mr. Arvind Datar, learned Senior counsel, and Mr. K.Parameshwar, learned counsel, led the arguments on behalf of thepersons who were serving in different armed forces. They stronglycontended that there could never be bar to the exercise of jurisdictionunder Article 226 of the Constitution of India by the High Court, albeit,sometimes, the High Court makes its discretion not to exercise itsjurisdiction. They relied on Constitution Bench of seven-Judges of thisCourt in L. Chandra Kumar v. Union of India & Others[2], whichunequivocally opined that the power of judicial review under Article 226is part of the basic structure of the Constitution and all the decisions of atribunal, whether constituted under Article 323A[3] or 323B[4] of theConstitution, would be subject to the High Court’s writ jurisdiction underArticle 226 of the Constitution.

2 (1997) 3 SCC 261.

3 323A. Administrative tribunals.

4 323B. Tribunals for other matters.

A5. The discussion in the case of L. Chandra Kumar[5]referred tothe judgment of this Court in the seminal case of Kesavananda Bhartiv. State of Kerala[6] and many other subsequent judgments. It would beuseful to extract the discussion in para 62 of L. Chandra Kumar[7]asunder:

B“62. In Kesvananda Bharati case, thirteen-Judge ConstitutionBench, by majority of 7:6, held that though, by virtue of Article368, Parliament is empowered to amend the Constitution, thatpower cannot be exercised so as to damage the basic features ofthe Constitution or to destroy its basic structure. The identificationof the features which constitute the basic structure of ourCConstitution has been the subject-matter of great debate in IndianConstitutional Law. The difficulty is compounded by the fact thateven the judgments for the majority are not unanimously agreedon this aspect. [There were five judgments for the majority,delivered by Sikri, C.J., Shelat & Grover, JJ. Hegde & Mukherjee,DJJ. Jaganmohan Reddy, J. and Khanna, J. While Khanna, J. didnot attempt to catalogue the basic features, the identification ofthe basic features by the other Judges are specified in the followingparas of the Court’s judgments : Sikri, C.J. (para 292), Shelat andGrover, JJ. (para 582), Hegde and Mukherjee, JJ. (paras 632 &661) and Jaganmohan Reddy, J. (paras 1159, 1161)]. The aspectEof judicial review does not find elaborate mention in all the majorityjudgments. Khanna, J. did, however, squarely address the issue(at para 1529):

..The power of judicial review is, however, confined not merelyto deciding whether in making the impugned laws the CentralFor State Legislatures have acted within the four corners of thelegislative lists earmarked for them; the courts also deal withthe question as to whether the laws are made in conformitywith and not in violation of the other provisions of theConstitution... As long as some fundamental rights exist andGare part of the Constitution, the power of judicial review hasalso to be exercised with view to see that the guaranteesafforded by those rights are not contravened.... Judicial review

5 (supra)

6 AIR 1973 SC 1461

H7 (supra)

has thus become an integral part of our constitutional systemand power has been vested in the High Courts and theSupreme Court to decide about the constitutional validity ofprovisions of statutes. If the provisions of the statute are foundto be violative of any article of the Constitution, which istouchstone for the validity of all laws, the Supreme Court andthe High Courts are empowered to strike down the saidprovisions.”

6. It was further submitted that the exclusion of judicial reviewunder Article 226 of the Constitution ought not to be countenancedbecause of lack of any viable alternative appeal mechanism. This, inturn, was based on: Firstly, Article 136(2) of the Constitution does notpermit any Special Leave to Appeal to the Supreme Court against theorder of court or tribunal constituted by or under any law relating tothe Armed Forces. Secondly, Section 31 of the said Act states that anappeal to this Court would only lie if “a point of law of general publicimportance” is involved.

7. Thus, as most matters are personal to litigants being in thenature of service matters, and may not involve point of law of “generalpublic importance”, litigant does not have any forum for grievanceredressal, except the High Court under Article 226, which it can approach,aggrieved by an order of the Armed Forces Tribunal. Furthermore, thelegislature was conscious of the seminality of the jurisdiction under Article226 of the Constitution while drafting Section 14 of the said Act, whichexpressly saves the jurisdiction of the High Court from entertainingappeals arising from the Armed Forces Tribunal under Article 226 andArticle 227 of the Constitution.

8. Section 14(1) of the said Act reads as under.

“14. Jurisdiction, powers and authority in service matters.– (1) Save as otherwise expressly provided in this Act, the Tribunalshall exercise, on and from the appointed day, all the jurisdiction,powers and authority, exercisable immediately before that day byall courts (except the Supreme Court or High Court exercisingjurisdiction under articles 226 and 227 of the Constitution) in relationto all service matters.”

9. Learned counsels contended that Articles 226 and 227 of theConstitution are not in pari materia and, thus, the limitation imposed

Aunder Article 227(4) could not be extended to Article 226 of theConstitution. Article 227(4) begins with the phrase “Nothing in thisArticle ….....” implying that the embargo in the provision is only limitedto that Article.

10. It would be worthwhile to reproduce Article 227(4), whichBreads as under:

227. Power of superintendence over all courts by the HighCourt –

C(4) Nothing in this article shall be deemed to confer on aHigh Court powers of superintendence over any court or tribunalconstituted by or under any law relating to the Armed Forces.”

11. Thus, even for the sake of argument, were it to be said thatArticle 227(4) takes away the power of superintendence of the HighDCourt for matters emanating from courts-martial under Section 15[8] ofthe said Act, the same will not dilute the power of the High Courts underArticle 226 even for matters dealing with courts-martial. In any case,the High Courts have been reluctant to entertain writ petitions againstorders under Section 15 of the said Act, and have refused to become acourt of second appeal.E

12. Learned counsels fortified their arguments on the basis ofobservations in S.N. Mukherjee v. Union of India[9], more specificallyparagraph 42, where the Supreme Court held that the High Courts, underArticle 226, have the power of judicial review even in respect of courts-martial and the High Courts can grant appropriate relief “if the saidFproceedings have resulted in denial of the fundamental rightsguaranteed under Part III of the Constitution or if the saidproceedings suffer from jurisdictional error or any error of lawapparent on the face of the record.”13. In the aforesaid context, it was sought to be urged that theGobservations of two-Judges’ Bench of this Court in Union of India &

Ors. v. Major General Shri Kant Sharma & Anr.[10], was against thewell-settled principle of law and established judicial precedent since that

8 Jurisdiction, powers and authority in matters of appeal against court-martial9 (1990) 4 SCC 594H10 (2015) 6 SCC 773

judgment sought to create complete bar to the High Court’s power toreview decisions arising from the Armed Forces Tribunal under Article226 of the Constitution of India. Such complete bar is contrary to theConstitution Bench decision of the Supreme Court in L. ChandraKumar[11]and S.N. Mukherjee[12]. What was significant, it was urged,that the decision in Major General Shri Kant Sharma & Anr.[13]failedto consider that an aggrieved person in service matter, if restrainedfrom approaching the High Court, would be left with no legal recourseto approach any appellate authority, including the Supreme Court, sinceservice matters are private in nature and do not involve “point of law ofgeneral public importance” under Section 31 of the said Act read withArticle 136(2) of the Constitution.

14. The view, thus, was stated to be in direct conflict with theobservations of the seven-Judges’ Bench in L. Chandra Kumar[14]inpara 79, which reads as under:-

“79. We also hold that the power vested in the High Courts toexercise judicial superintendence over the decisions of all courtsand tribunals within their respective jurisdictions is also part of thebasic structure of the Constitution. This is because situationwhere the High Courts are divested of all other judicial functionsapart from that of constitutional interpretation, is equally to beavoided.”

15. Lastly, it was submitted that the issues are no more res integrain view of the recent Constitution Bench Judgment of five-Judges’ Benchof this Court in Rojer Mathew v. South Indian Bank Ltd. & Ors.[15]where in paragraph 215, following L. Chandra Kumar[16], this Courtsettled that the writ jurisdiction under Article 226 does not limit the powerof the High Court, expressly or by implication, against military or armedforces dispute and that the restriction under Article 227(4) is only quaadministrative supervision by the High Courts and not qua judicial review.Para 215 reads as under:

11 (supra)

12 (supra)

13 (supra)

14 (supra)

15 (2020) 6 SCC 1

16 (supra)

A“215. It is hence clear post L. Chandra Kumar that writ jurisdictionunder Article 226 does not limit the powers of High Courtsexpressly or by implication against military or armed forcesdisputes. The limited ouster made by Article 227(4) only operatesqua administrative supervision by the High Court and not judicialreview. Article 136(2) prohibits direct appeals before the SupremeBCourt from an order of armed forces tribunals, but would notprohibit an appeal to the Supreme Court against the judicial reviewexercised by the High Court under Article 226.”

The pleas of Union of India and JAG Branch of the armedforcesC

16. Mr. Sanjay Jain and Col. Balasubramanium sought to contendthat the first half of Section 3(o) of the said Act is amenable to thejurisdiction of the Armed Forces Tribunal and the matters listed in thesecond half are not amenable to the jurisdiction of the Armed ForcesTribunal. Section 3(o) reads as under:D

“3. Definitions.- In this Act, unless the context otherwiserequires,-

............

(o) “service matters”, in relation to the persons subject to theEArmy Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957)and the Air Force Act, 1950 (45 of 1950), mean all matters relatingto the conditions of their service and shall include-

(i)remuneration (including allowances), pension and otherretirement benefits;F

(ii)tenure, including commission, appointment, enrolment,probation, confirmation, seniority, training, promotion, reversion,premature retirement, superannuation, termination of serviceand penal deductions;

(iii) summary disposal and trials where the punishment ofGdismissal is awarded;

(iv)any other matter, whatsoever,

but shall not include matters relating to-

(i) orders issued under section 18 of the Army Act, 1950 (46 of1950), sub-section (1) of section 15 of the Navy Act, 1957 (62 of1957) and section 18 of the Air Force Act, 1950 (45 of 1950); and

(ii) transfers and postings including the change of place or unit onposting whether individually or as part of unit, formation or shipin relation to the persons subject to the Army Act, 1950 (46 of1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act,1950 (45 of 1950).

(iii) leave of any kind;

(iv) Summary Court Martial except where the punishment is ofdismissal or imprisonment for more than three months;”

17. The appellate mechanism is also stated to be provided underSections 30 and 31 under Chapter V dealing with appeals of the saidAct. Sections 30 and 31 read as under:

“30. Appeal to the Supreme Court. - (1) Subject to theprovisions of section 31, an appeal shall lie to the Supreme Courtagainst the final decision or order of the Tribunal (other than anorder passed under section 19):

Provided that such appeal is preferred within period ofninety days of the said decision or order:

Provided further that there shall be no appeal against aninterlocutory order of the Tribunal.

(2) An appeal shall lie to the Supreme Court as of right from anyorder or decision of the Tribunal in the exercise of its jurisdictionto punish for contempt:

Provided that an appeal under this sub-section shall be filedin the Supreme Court within sixty days from the date of the orderappealed against.

(3) Pending any appeal under sub-section (2), the Supreme Courtmay order that-

(a) the execution of the punishment or the order appealedagainst be suspended; or

(b) if the appellant is in confinement, he be released on bail:

Provided that where an appellant satisfies the Tribunal thathe intends to prefer an appeal, the Tribunal may also exercise anyof the powers conferred under clause (a) or clause (b), as thecase may be.

31. Leave to appeal. - (1) An appeal to the Supreme Courtshall lie with the leave of the Tribunal; and such leave shall not begranted unless it is certified by the Tribunal that point of law ofgeneral public importance is involved in the decision, or it appearsto the Supreme Court that the point is one which ought to beCconsidered by that Court.

(2) An application to the Tribunal for leave to appeal to the SupremeCourt shall be made within period of thirty days beginning withthe date of the decision of the Tribunal and an application to theSupreme Court for leave shall be made within period of thirtyDdays beginning with the date on which the application for leave isrefused by the Tribunal.

(3) An appeal shall be treated as pending until any application forleave to appeal is disposed of and if leave to appeal is granted,until the appeal is disposed of; and an application for leave toEappeal shall be treated as disposed of at the expiration of the timewithin which it might have been made, but it is not made withinthat time.”

18. We must point out here that reading of Section 30 wouldshow that the appeal provision to the Supreme Court is subject to theFprovisions of Section 31. Such an appeal under Section 31 would lie withthe leave of the Armed Forces Tribunal. The Armed Forces Tribunalshall not grant such leave unless it certifies that point of law of generalpublic importance is involved in the decision, or it appears to the SupremeCourt that the point is one which is to be considered by the Court.

19. There is, thus, no doubt that the appeal mechanism is restrictiveGin character, something which the Government counsels could not getaway from. In the alternative, they urged that if this Court were to cometo the conclusion that the High Court would have jurisdiction under Article226 emanating out of the orders passed by the Armed Forces Tribunal,then that exercise should be restrictive in character. Sections 30 and 31

of the said Act, and Article 136(2) of the Constitution, while dealing withleave to appeal, also put such restriction.

20. Learned counsel sought embargo from the High Courtexercising jurisdiction under Article 226 of the Constitution in the followingcases:

i)All cases related to Courts of Inquiry, Court(s) Martial, andDiscipline;

ii)All cases related to pension and other retirement benefits,tenure, promotion, retirement, administrative termination ofservice, such as in cases involving moral turpitude, and leave;

iii)Matters pertaining to the Official Secrets Act; and

iv)Cases relating to espionage/sabotage.

21. The submission was that all disciplinary cases, including courts-martial, which may mandate re-appreciation of evidence may be keptout of the purview of the exercise of the High Court’s jurisdiction. Thesame may amount to second criminal appeal.

22. An additional plea was made that nothing said in the presentjudgment should be read as amounting to diluting the jurisdiction of theSupreme Court, which would remain intact. Thus, the observation, asregards adjudication of certain category of matters in the writ jurisdictionof the High Court, was only to facilitate smoother administration of justice.

23. Lastly, it was submitted that the nature of the Armed ForcesTribunal must be kept in mind, which is distinct from normaladministrative tribunal under Article 323A or other tribunals under Article323B of the Constitution and, thus, the High Court should not in routineinterfere with the orders of the Armed Forces Tribunal under Article226 seeking to exercise the jurisdiction akin to say Central AdministrativeTribunal.

Our observations:

24. We have given thought to the matter, keeping in mind the lastaspect emphasized by the learned Additional Solicitor General, dealingwith the importance of the Armed Forces Tribunal, and its jurisdictionbeing distinct from other tribunals. We are conscious of the importanceof the role performed by the Armed Forces and the discipline levelrequired by these services. Thus, often many jurisprudential principles

Aof other tribunals cannot be imported into the decisions of the ArmedForces Tribunal. The Armed Forces have their own rules and procedures,and if there is proper exercise of jurisdiction in accordance with thenorms of the Armed Forces, the High Court or this Court have beencircumspect in interfering with the same, keeping in mind the significanceof the role performed by the Armed Forces.B

25. While we agree with the aforesaid principle, we are unable toappreciate the observations in the case of Major General Shri KantSharma & Anr.[17], which sought to put an embargo on the exercise ofjurisdiction under Article 226 of the Constitution, diluting very significantprovision of the Constitution which also forms the part of basic structure.CThe principles of basic structure have withstood the test of time and areemphasized in many judicial pronouncements as an ultimate test. This isnot something that can be doubted. That being the position, the self-restraint of the High Court under Article 226 of the Constitution is distinctfrom putting an embargo on the High Court in exercising this jurisdictionDunder Article 226 of the Constitution while judicially reviewing decision

arising from an order of the Tribunal.

26. On the legislature introducing the concept of “Tribunalisation”(one may say that this concept has seen many question marks vis-a-visdifferent tribunals, though it has also produced some successes), theEsame was tested in L. Chandra Kumar[18] case before Bench of sevenJudges of this Court. Thus, while upholding the principles of“Tribunalisation” under Article 323A or Article 323B, the Bench wasunequivocally of the view that decisions of Tribunals would be subject tothe jurisdiction of the High Court under Article 226 of the Constitution,and would not be restricted by the 42[nd] Constitutional Amendment whichFintroduced the aforesaid two Articles. In our view, this should have putthe matter to rest, and no Bench of less than seven Judges could havedoubted the proposition. The need for the observations in the five-Judges’Bench in Rojer Mathew[19] case qua the Armed Forces Tribunal reallyarose because of the observations made in Major General Shri KantGSharma & Anr.[20]Thus, it is, reiterated and clarified that the power ofthe High Court under Article 226 of the Constitution is not inhibited, and

17 (supra)18 (supra)19 (supra)H20 (supra)

superintendence and control under Article 227 of the Constitution aresomewhat distinct from the powers of judicial review under Article 226of the Constitution.

27. We also find merit in the contention of the private parties thatwhile the said Act was introduced keeping in mind the earlier observationsof the Supreme Court inter alia in Lt. Col. Prithi Pal Singh Bedi[21]case, all that has been provided is single judicial review by the tribunalagainst the administrative/disciplinary decision as envisaged in the rulesapplicable to different Armed Forces. Section 31 of the said Act isundoubtedly restrictive in character as an appeal to the Supreme Courtwould only lie on point of law of general public importance. There are,as urged by the learned counsels, number of issues that cropped up,which are personal in character and do not raise issues of larger publicimportance.28. We can say with some experience of handling these mattersin exercise of jurisdiction under Article 226, prior to the creation of theArmed Forces Tribunal, that there used to be large number of pensionmatters. Persons who had served in the Armed Forces were left at bayat the stage of pension. This jurisdiction is also vested with the ArmedForces Tribunal. It would be difficult to say that there would be largerpublic interest involved in pension matter, but then, for that concernedperson, it is of great importance. To deny the High Court to correct anyerror which the Armed Forces Tribunal may fall into, even in exercisingjurisdiction under Article 226, would be against the constitutional scheme.The first independent judicial scrutiny is only by the Armed ForcesTribunal. To say that in some matters, judicial scrutiny would amountto second appeal, would not be the correct way to look at it. Whatshould be kept in mind is that in administrative jurisprudence, at leasttwo independent judicial scrutinies should not be denied, in our view. AHigh Court Judge has immense experience. In any exercise of jurisdictionunder Article 226, the High Courts are quite conscious of the scope andnature of jurisdiction, which in turn would depend on the nature of thematter.

29. We believe that there is no necessity to carve out certaincases from the scope of judicial review under Article 226 of theConstitution, as was suggested by the learned Additional Solicitor General.It was enunciated in the Constitution Bench judgment in S.N.21 (supra)

AMukherjee[22] case that even in respect of courts-martial, the High Courtcould grant appropriate relief in certain scenario as envisaged therein,i.e., “if the said proceedings have resulted in denial of thefundamental rights guaranteed under Part III of the Constitutionor if the said proceedings suffer from jurisdictional error or anyerror of law apparent on the face of the record.”B

30. How can courts countenance scenario where even in theaforesaid position, party is left remediless? It would neither be legalnor appropriate for this Court to say something to the contrary or restrictthe aforesaid observation enunciated in the Constitution Bench judgmentin S.N. Mukherjee[23] case. We would loath to carve out any exceptions,Cincluding the ones enumerated by the learned Additional Solicitor Generalextracted aforesaid as irrespective of the nature of the matter, if there isa denial of fundamental right under Part III of the Constitution or thereis jurisdictional error or error apparent on the face of the record, theHigh Court can exercise its jurisdiction. There appears to be aDmisconception that the High Court would re-appreciate the evidence,thereby making it into second appeal, etc. We believe that the HighCourts are quite conscious of the parameters within which the jurisdictionis to be exercised, and those principles, in turn, are also already enunciatedby this Court.

E31. We also fail to appreciate as to why there should be anyapprehension of diluting the jurisdiction of the Supreme Court as envisagedunder the Act or the constitutional scheme, based on observations madeby us in the present judgment.

Conclusion:

32. We have, thus, no hesitation in concluding that the judgment inMajor General Shri Kant Sharma & Anr.[24] case does not lay downthe correct law and is in conflict with judgments of the ConstitutionBenches rendered prior and later to it, including in L. Chandra Kumar[25]case, S.N. Mukherjee[26] case, and Rojer Mathew[27] case making itGabundantly clear that there is no per se restriction on the exercise of

22 (supra)23 (supra)24 (supra)25 (supra)26 (supra)H27 (supra)

power under Article 226 of the Constitution by the High Court. However,in respect of matters of self-discipline, the principles already standenunciated.

33. We having now dealt with the general propositions, turn to theindividual cases as they may require different nature of orders. In fact,a list of the matters and the nature of orders solicited have also been setout by Mr. K. Parameshwar, learned counsel, and are being dealt withas follows:

I.The first category of cases is one where the matters wereheard on merits by the respective jurisdictional High Courtsbut were disposed of as not maintainable in view of the judgmentCin Major General Shri Kant Sharma & Anr.[28] case. Theseare not matters raising points of law of general publicimportance and would have to be examined on merits by eachHigh Court under Article 226 of the Constitution. Thus, thesematters are required to be remanded to the respective HighDCourts for decision on merits. The case numbers and thename of the parties are as under:

i.SLP(C) No.20721/2015 titled Daxina Kumari v. Unionof India.

ii.SLP(C) No.17320/2017 titled K.C. Shibu v. Union ofIndia.

iii.SLP(C) No.20499/2015 titled Krishna Nandan Mishrav. Union of India.

iv.SLP(C) No.26617/2015 titled Nand Lal Verma v. Unionof India.F

v.SLP(C) No.26568/2015 titled Randeep Singh Guleriav. Union of India.

vi.SLP(C) No.26620/2015 titled Gopi Ram v. Union ofIndia.

vii.SLP(C) No.36386/2015 titled Avi Chander Sud v. Unionof India.

616SUPREME COURT REPORTS

viii.SLP(C) No.5111/2016 titled Gurcharan Singh v. Unionof India; SLP (C) No.28101/2016 titled Nirmal Singh v.Union of India.

ix.SLP(C) No.1788/2023 titled Davinder Singh v. Unionof India.

II.SLP(C) No.34797/2014 titled Union of India v. ParashotamDass, which was filed by the Union of India on meritschallenging the judgment of the High Court granting reliefto the respondent. The matter would have to be consideredby two Judges Bench of this Court on merits.

III.The Union of India in Civil Appeal No.5327/2015 titled Unionof India v. Thomas Vaidyan M., sought reference to largerBench as to, whether, challenge would lie directly to thisCourt or only before the High Court. As petitions filed underArticle 226 of the Constitution against orders of the ArmedForces Tribunal are held to be maintainable, this matterwould also require to be remanded to the High Court to bedecided on merits since it is service matter personal tothe litigant and does not involve point of law of generalpublic importance.

IV.The vires of Sections 31 and 32 of the said Act were underEchallenge in WP(C) No.76/2016 titled Gurbux Singh Dhindsav. Union of India, filed under Article 32 of the Constitutionby the father of an Air Force officer who was killed in anoperational area in J&K. He was claiming interest over therelief granted by the Armed Forces Tribunal but could notFhave filed direct appeal since the matter was personal tothe litigant and did not involve any point of law of generalpublic importance and High Courts were not entertainingmatters in view of the judgment in Major General ShriKant Sharma & Anr.[29] case.

It was submitted that prayer for declaring Sections 30 &31 as ultra vires would not be pressed in case the writjurisdiction under Article 226 is held to be maintainable and,thus, the prayer was to dispose of this matter with liberty to

approach the High Court. We accept the plea and orderaccordingly.

34. The larger question having been answered, the aforesaidindividual matters shall be dealt with depending on the facts of eachcase, as per the aforesaid directions passed by us.

35. The appeals and the writ petition are disposed of in the aforesaidterms leaving the parties to bear their own costs.

Ankit Gyan(Assisted by : Aarsh Choudhary, LCRA)

Appeals and Writ petition disposed of.