Union Of India vs Parashotam Dass

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.447 OF 2023

UNION OF INDIA & ORS. …APPELLANTS

Versus

PARASHOTAM DASS …RESPONDENT

With C.A.No.457 of 2023 @ S.LP(C) No. 1788/2023 C.A.No.1807 of 2023 @ SLP(C) No. 17320/2017 C.A. No. 5327/2015 C.A.No.449 of 2023 @ SLP(C) No. 20721/2015 C.A.No.448 of 2023 @ SLP(C) No. 20499/2015 C.A.No.450 of 2023 @ SLP(C) No. 26617/2015 C.A.No.451of 2023 @ SLP(C) No. 26568/2015 C.A.No.452 of 2023 @ SLP(C) No. 26620/2015 C.A.No.483 of 2023 @ SLP(C) No. 36386/2015 C.A.No.454 of 2023 @ SLP(C) No. 28101/2016 C.A.No.453 of 2023 @ SLP(C) No. 5111/2016 W.P.(C) No. 76/2016

JUDGMENT

SANJAY KISHAN KAUL, J.

The prelude to the Armed Forces Tribunal Act, 2007:

1. A large number of cases relating to service matters of members of Signature Not Verified Digitally signed by Charanjeet Kaur Date: 2023.03.22 14:55:10 IST the three-armed forces of the Union of India had been pending in Courts Reason:

for a considerable period of time and, thus, the Central Government 1 engaged in the question of constituting an independent adjudicatory

forum for defence personnel. In 1982, the Supreme Court in Lt. Col.

Prithi Pal Singh Bedi Etc. vs. Union of India & Others 1 had urged the

Central Government to take steps to provide for at least one judicial

review in service matters, and in 1992 the Estimate Committee of

Parliament in their 19th Report desired as much.

2. The then existing system of administration of justice in these

armed services provided for the submission of statutory complaints

against grievances relating to service matters and pre and post

confirmation petitions to various authorities against the findings and

sentences of courts-marital. The establishment of an independent Armed

Forces Tribunal was, thus, conceived to fortify the trust and confidence

amongst the members of the three services. A Bill was introduced to

provide for judicial appeal on points of law and facts against verdicts of

Court martial, the absence of which had led to adverse comments from

this Court. On the Bill ultimately being passed, the Armed Forces

Tribunal Act, 2007, (hereinafter referred to as the ‘said Act’) came into

being with effect from 15.06.2008 and saw some amendments

subsequently.

1

(1982) 3 SCC 140.

2 Legal Conundrum:

3. On the said Act coming into force, various issues arose during its

implementation. One such issue which begs consideration before us is

whether the order passed by the Armed Forces Tribunal would be

amenable to challenge in the writ jurisdiction under Article 226 of the

Constitution of India before any High Court. The issue needs

consideration in a number of matters before us, and the decision on this

proposition would result in certain consequential orders being passed in

these different matters. Interestingly, in some of the matters including

the lead matter, it appears that the objection to exercise jurisdiction

under Article 226 of the Constitution of India before the High Court was

not even 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 the

persons who were serving in different armed forces. They strongly

contended that there could never be a bar to the exercise of jurisdiction

under Article 226 of the Constitution of India by the High Court, albeit,

sometimes, the High Court makes its discretion not to exercise its 3 jurisdiction. They relied on a Constitution Bench of seven-Judges of

this Court in L. Chandra Kumar v. Union of India & Others 2, which

unequivocally opined that the power of judicial review under Article 226

is part of the basic structure of the Constitution and all the decisions of a

tribunal, whether constituted under Article 323A3 or 323B4 of the

Constitution, would be subject to the High Court’s writ jurisdiction

under Article 226 of the Constitution.

5. The discussion in the case of L. Chandra Kumar5 referred to the

judgment of this Court in the seminal case of Kesavananda Bharti v.

State of Kerala6 and many other subsequent judgments. It would be

useful to extract the discussion in para 62 of L. Chandra Kumar7 as

under:

“62. In Kesvananda Bharati case, a thirteen-Judge Constitution Bench, by a majority of 7:6, held that though, by virtue of Article 368, Parliament is empowered to amend the Constitution, that power cannot be exercised so as to damage the basic features of the Constitution or to destroy its basic structure. The identification of the features which constitute the basic structure of our Constitution has been the subject-matter of great debate in Indian Constitutional Law. The difficulty is compounded by the fact that even the judgments for the 2 (1997) 3 SCC 261.

3 323A. Administrative tribunals.

4 323B. Tribunals for other matters.

5 (supra) 6 AIR 1973 SC 1461 7 (supra) 4 majority are not unanimously agreed on this aspect. [There were five judgments for the majority, delivered by Sikri, C.J., Shelat & Grover, JJ. Hegde & Mukherjee, JJ. Jaganmohan Reddy, J. and Khanna, J. While Khanna, J. did not attempt to catalogue the basic features, the identification of the basic features by the other Judges are specified in the following paras of the Court's judgments : Sikri, C.J. (para 292), Shelat and Grover, JJ. (para 582), Hegde and Mukherjee, JJ. (paras 632 &

661) and Jaganmohan Reddy, J. (paras 1159, 1161)]. The aspect of judicial review does not find elaborate mention in all the majority judgments. Khanna, J. did, however, squarely address the issue (at para 1529):

..The power of judicial review is, however, confined not merely to deciding whether in making the impugned laws the Central or State Legislatures have acted within the four corners of the legislative lists earmarked for them; the courts also deal with the question as to whether the laws are made in conformity with and not in violation of the other provisions of the Constitution... As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened.... Judicial review has thus become an integral part of our constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of provisions of statutes. If the provisions of the statute are found to be violative of any article of the Constitution, which is touchstone for the validity of all laws, the Supreme Court and the High Courts are empowered to strike down the said provisions.”

6. It was further submitted that the exclusion of judicial review

under Article 226 of the Constitution ought not to be countenanced

because of lack of any viable alternative appeal mechanism. This, in 5 turn, was based on: Firstly, Article 136(2) of the Constitution does not

permit any Special Leave to Appeal to the Supreme Court against the

order of a court or tribunal constituted by or under any law relating to

the Armed Forces. Secondly, Section 31 of the said Act states that an

appeal to this Court would only lie if “a point of law of general public

importance” is involved.

7. Thus, as most matters are personal to litigants being in the nature

of service matters, and may not involve a point of law of “general public

importance”, a litigant does not have any forum for grievance redressal,

except the High Court under Article 226, which it can approach,

aggrieved by an order of the Armed Forces Tribunal. Furthermore, the

legislature was conscious of the seminality of the jurisdiction under

Article 226 of the Constitution while drafting Section 14 of the said Act,

which expressly saves the jurisdiction of the High Court from

entertaining appeals arising from the Armed Forces Tribunal under

Article 226 and Article 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 Tribunal shall exercise, on and from the appointed day, all the 6 jurisdiction, powers and authority, exercisable immediately before that day by all courts (except the Supreme Court or a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) in relation to all service matters.”

9. Learned counsels contended that Articles 226 and 227 of the

Constitution are not in pari materia and, thus, the limitation imposed

under Article 227(4) could not be extended to Article 226 of the

Constitution. Article 227(4) begins with the phrase “Nothing in this

Article ….....” implying that the embargo in the provision is only limited

to that Article.

10. It would be worthwhile to reproduce Article 227(4), which reads

as under:

227. Power of superintendence over all courts by the High Court –

......

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

11. Thus, even for the sake of argument, were it to be said that Article

227(4) takes away the power of superintendence of the High Court for

7 matters emanating from courts-martial under Section 158 of the said Act,

the same will not dilute the power of the High Courts under Article 226

even for matters dealing with courts-martial. In any case, the High

Courts have been reluctant to entertain writ petitions against orders

under Section 15 of the said Act, and have refused to become a court of

second appeal.

12. Learned counsels fortified their arguments on the basis of

observations in S.N. Mukherjee v. Union of India9, more specifically

paragraph 42, where the Supreme Court held that the High Courts, under

Article 226, have the power of judicial review even in respect of courts-

martial and the High Courts can grant appropriate relief “if the said

proceedings have resulted in denial of the fundamental rights

guaranteed under Part III of the Constitution or if the said proceedings

suffer from a jurisdictional error or any error of law apparent on the

face of the record.”

13. In the aforesaid context, it was sought to be urged that the

observations of a two-Judges’ Bench of this Court in Union of India &

8 Jurisdiction, powers and authority in matters of appeal against court-martial 9 (1990) 4 SCC 594 8 Ors. v. Major General Shri Kant Sharma & Anr. 10, was against the

well-settled principle of law and established judicial precedent since that

judgment sought to create a complete bar to the High Court’s power to

review decisions arising from the Armed Forces Tribunal under Article

226 of the Constitution of India. Such a complete bar is contrary to the

Constitution Bench decision of the Supreme Court in L. Chandra

Kumar11 and S.N. Mukherjee12. What was significant, it was urged, that

the decision in Major General Shri Kant Sharma & Anr. 13 failed to

consider that an aggrieved person in a service matter, if restrained from

approaching the High Court, would be left with no legal recourse to

approach any appellate authority, including the Supreme Court, since

service matters are private in nature and do not involve “point of law of

general public importance” under Section 31 of the said Act read with

Article 136(2) of the Constitution.

14. The view, thus, was stated to be in direct conflict with the

observations of the seven-Judges’ Bench in L. Chandra Kumar14 in para

79, which reads as under:-

10

(2015) 6 SCC 773 11 (supra) 12 (supra) 13 (supra) 14 (supra) 9 “79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.”

15. Lastly, it was submitted that the issues are no more res integra in

view of the recent Constitution Bench Judgment of five-Judges’ Bench

of this Court in Rojer Mathew v. South Indian Bank Ltd. & Ors. 15

where in paragraph 215, following L. Chandra Kumar16, this Court

settled that the writ jurisdiction under Article 226 does not limit the

power of the High Court, expressly or by implication, against military or

armed forces dispute and that the restriction under Article 227(4) is only

qua administrative supervision by the High Courts and not qua judicial

review. Para 215 reads as under:

“215. It is hence clear post L. Chandra Kumar that writ jurisdiction under Article 226 does not limit the powers of High Courts expressly or by implication against military or armed forces disputes. The limited ouster made by Article 227(4) only operates qua administrative supervision by the High Court and not judicial review. Article 136(2) prohibits direct appeals before the Supreme Court from an order of armed forces tribunals, but would not prohibit an appeal to the Supreme Court against the judicial review exercised by the High Court under Article 226.”

15 (2020) 6 SCC 1 16 (supra) 10 The pleas of Union of India and JAG Branch of the armed forces

16. Mr. Sanjay Jain and Col. Balasubramanium sought to contend that

the first half of Section 3(o) of the said Act is amenable to the

jurisdiction of the Armed Forces Tribunal and the matters listed in the

second half are not amenable to the jurisdiction of the Armed Forces

Tribunal. Section 3(o) reads as under:

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

requires, -

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

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

(i) remuneration (including allowances), pension and other retirement benefits;

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

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

(iv) any other matter, whatsoever,

but shall not include matters relating to-

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

(ii) transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950 (46 of 1950), 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 of dismissal or imprisonment for more than three months;”

17. The appellate mechanism is also stated to be provided under

Sections 30 and 31 under Chapter V dealing with appeals of the said

Act. Sections 30 and 31 read as under:

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

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

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

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

12 Provided that an appeal under this sub-section shall be filed in the Supreme Court within sixty days from the date of the order appealed against.

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

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

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

Provided that where an appellant satisfies the Tribunal that he intends to prefer an appeal, the Tribunal may also exercise any of the powers conferred under clause (a) or clause

(b), as the case may be.

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

31. Leave to appeal. - (1) An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court.

(2) An application to the Tribunal for leave to appeal to the Supreme Court shall be made within a period of thirty days beginning with the date of the decision of the Tribunal and an application to the Supreme Court for leave shall be made within a period of thirty days beginning with the date on which the application for leave is refused by the Tribunal.

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

18. We must point out here that a reading of Section 30 would show

that the appeal provision to the Supreme Court is subject to the

provisions of Section 31. Such an appeal under Section 31 would lie

with the leave of the Armed Forces Tribunal. The Armed Forces

Tribunal shall not grant such leave unless it certifies that a point of law

of general public importance is involved in the decision, or it appears to

the Supreme Court that the point is one which is to be considered by the

Court.

19. There is, thus, no doubt that the appeal mechanism is restrictive in

character, something which the Government counsels could not get

away from. In the alternative, they urged that if this Court were to come

to the conclusion that the High Court would have jurisdiction under

Article 226 emanating out of the orders passed by the Armed Forces

Tribunal, then that exercise should be restrictive in character. Sections

14 30 and 31 of the said Act, and Article 136(2) of the Constitution, while

dealing with leave to appeal, also put such a restriction.

20. Learned counsel sought embargo from the High Court exercising

jurisdiction under Article 226 of the Constitution in the following cases:

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

ii) All cases related to pension and other retirement benefits, tenure, promotion, retirement, administrative termination of service, 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 kept out

of the purview of the exercise of the High Court’s jurisdiction. The

same may amount to a second criminal appeal.

22. An additional plea was made that nothing said in the present

judgment should be read as amounting to diluting the jurisdiction of the

Supreme Court, which would remain intact. Thus, the observation, as

15 regards adjudication of a certain category of matters in the writ

jurisdiction of the High Court, was only to facilitate smoother

administration of justice.

23. Lastly, it was submitted that the nature of the Armed Forces

Tribunal must be kept in mind, which is distinct from a normal

administrative tribunal under Article 323A or other tribunals under

Article 323B of the Constitution and, thus, the High Court should not in

routine interfere with the orders of the Armed Forces Tribunal under

Article 226 seeking to exercise the jurisdiction akin to say a Central

Administrative Tribunal.

Our observations:

24. We have given thought to the matter, keeping in mind the last

aspect emphasized by the learned Additional Solicitor General, dealing

with the importance of the Armed Forces Tribunal, and its jurisdiction

being distinct from other tribunals. We are conscious of the importance

of the role performed by the Armed Forces and the discipline level

required by these services. Thus, often many jurisprudential principles

of other tribunals cannot be imported into the decisions of the Armed

Forces Tribunal. The Armed Forces have their own rules and 16 procedures, and if there is proper exercise of jurisdiction 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 role performed by the Armed Forces.

25. While we agree with the aforesaid principle, we are unable to

appreciate the observations in the case of Major General Shri Kant

Sharma & Anr.17, which sought to put an embargo on the exercise of

jurisdiction under Article 226 of the Constitution, diluting a very

significant provision of the Constitution which also forms the part of

basic structure. The principles of basic structure have withstood the test

of time and are emphasized in many judicial pronouncements as an

ultimate test. This is not something that can be doubted. That being the

position, the self-restraint of the High Court under Article 226 of the

Constitution is distinct from putting an embargo on the High Court in

exercising this jurisdiction under Article 226 of the Constitution while

judicially reviewing a decision arising from an order of the Tribunal.

17

(supra) 17

26. On the legislature introducing the concept of “Tribunalisation”

(one may say that this concept has seen many question marks vis-a-vis

different tribunals, though it has also produced some successes), the

same was tested in L. Chandra Kumar18 case before a Bench of seven

Judges of this Court. Thus, while upholding the principles of

“Tribunalisation” under Article 323A or Article 323B, the Bench was

unequivocally of the view that decisions of Tribunals would be subject

to the jurisdiction of the High Court under Article 226 of the

Constitution, and would not be restricted by the 42nd Constitutional

Amendment which introduced the aforesaid two Articles. In our view,

this should have put the matter to rest, and no Bench of less than seven

Judges could have doubted the proposition. The need for the

observations in the five-Judges’ Bench in Rojer Mathew19 case qua the

Armed Forces Tribunal really arose because of the observations made in

Major General Shri Kant Sharma & Anr. 20 Thus, it is, reiterated and

clarified that the power of the High Court under Article 226 of the

Constitution is not inhibited, and superintendence and control under

18 (supra) 19 (supra) 20 (supra) 18 Article 227 of the Constitution are somewhat distinct from the powers of

judicial review under Article 226 of the Constitution.

27. We also find merit in the contention of the private parties that

while the said Act was introduced keeping in mind the earlier

observations of the Supreme Court inter alia in Lt. Col. Prithi Pal Singh

Bedi21 case, all that has been provided is a single judicial review by the

tribunal against the administrative/disciplinary decision as envisaged in

the rules applicable to different Armed Forces. Section 31 of the said

Act is undoubtedly restrictive in character as an appeal to the Supreme

Court would only lie on a point of law of general public importance.

There are, as urged by the learned counsels, a number of issues that

cropped up, which are personal in character and do not raise issues of

larger public importance.

28. We can say with some experience of handling these matters in

exercise of jurisdiction under Article 226, prior to the creation of the

Armed Forces Tribunal, that there used to be a large number of pension

matters. Persons who had served in the Armed Forces were left at bay at

the stage of pension. This jurisdiction is also vested with the Armed

Forces Tribunal. It would be difficult to say that there would be a larger 21 (supra) 19 public interest involved in a pension matter, but then, for that concerned

person, it is of great importance. To deny the High Court to correct any

error which the Armed Forces Tribunal may fall into, even in exercising

jurisdiction under Article 226, would be against the constitutional

scheme. The first independent judicial scrutiny is only by the Armed

Forces Tribunal. To say that in some matters, a judicial scrutiny would

amount to a second appeal, would not be the correct way to look at it.

What should be kept in mind is that in administrative jurisprudence, at

least two independent judicial scrutinies should not be denied, in our

view. A High Court Judge has immense experience. In any exercise of

jurisdiction under Article 226, the High Courts are quite conscious of the

scope and nature of jurisdiction, which in turn would depend on the

nature of the matter.

29. We believe that there is no necessity to carve out certain cases

from the scope of judicial review under Article 226 of the Constitution,

as was suggested by the learned Additional Solicitor General. It was

enunciated in the Constitution Bench judgment in S.N. Mukherjee22 case

that even in respect of courts-martial, the High Court could grant

appropriate relief in a certain scenario as envisaged therein, i.e., “if the 22 (supra) 20 said proceedings have resulted in denial of the fundamental rights

guaranteed under Part III of the Constitution or if the said proceedings

suffer from a jurisdictional error or any error of law apparent on the

face of the record.”

30. How can courts countenance a scenario where even in the

aforesaid position, a party is left remediless? It would neither be legal

nor appropriate for this Court to say something to the contrary or restrict

the aforesaid observation enunciated in the Constitution Bench judgment

in S.N. Mukherjee23 case. We would loath to carve out any exceptions,

including the ones enumerated by the learned Additional Solicitor

General extracted aforesaid as irrespective of the nature of the matter, if

there is a denial of a fundamental right under Part III of the Constitution

or there is a jurisdictional error or error apparent on the face of the

record, the High Court can exercise its jurisdiction. There appears to be

a misconception that the High Court would re-appreciate the evidence,

thereby making it into a second appeal, etc. We believe that the High

Courts are quite conscious of the parameters within which the

jurisdiction is to be exercised, and those principles, in turn, are also

already enunciated by this Court.

23

(supra) 21

31. We also fail to appreciate as to why there should be any

apprehension of diluting the jurisdiction of the Supreme Court as

envisaged under the Act or the constitutional scheme, based on

observations made by us in the present judgment.

Conclusion:

32. We have, thus, no hesitation in concluding that the judgment in

Major General Shri Kant Sharma & Anr. 24 case does not lay down the

correct law and is in conflict with judgments of the Constitution Benches

rendered prior and later to it, including in L. Chandra Kumar25 case,

S.N. Mukherjee26 case, and Rojer Mathew27 case making it abundantly

clear that there is no per se restriction on the exercise of power under

Article 226 of the Constitution by the High Court. However, in respect

of matters of self-discipline, the principles already stand enunciated.

33. We having now dealt with the general propositions, turn to the

individual 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 set

24 (supra) 25 (supra) 26 (supra) 27 (supra) 22 out by Mr. K. Parameshwar, learned counsel, and are being dealt with as

follows:

I. The first category of cases is one where the matters were

heard on merits by the respective jurisdictional High Courts

but were disposed of as not maintainable in view of the

judgment in Major General Shri Kant Sharma & Anr. 28

case. These are not matters raising points of law of general

public importance and would have to be examined on

merits by each High Court under Article 226 of the

Constitution. Thus, these matters are required to be

remanded to the respective High Courts for a decision on

merits. The case numbers and the name of the parties are as

under:

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

v. Union of India.

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

Union of India.

iii. SLP(C) No.20499/2015 titled Krishna Nandan

Mishra v. Union of India.

28 (supra) 23 iv. SLP(C) No.26617/2015 titled Nand Lal Verma

v. Union of India.

v. SLP(C) No.26568/2015 titled Randeep Singh

Guleria v. Union of India.

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

Union of India.

vii. SLP(C) No.36386/2015 titled Avi Chander

Sud v. Union of India.

viii. SLP(C) No.5111/2016 titled Gurcharan Singh

v. Union of India; SLP (C) No.28101/2016

titled Nirmal Singh v. Union of India.

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

Union of India.

II. SLP(C) No.34797/2014 titled Union of India v. Parashotam

Dass, which was filed by the Union of India on merits

challenging the judgment of the High Court granting relief

to the respondent. The matter would have to be considered

by a two Judges Bench of this Court on merits.

24 III. The Union of India in Civil Appeal No.5327/2015 titled

Union of India v. Thomas Vaidyan M., sought reference to

a larger Bench as to, whether, a challenge would lie directly

to this Court or only before the High Court. As petitions

filed under Article 226 of the Constitution against orders of

the Armed Forces Tribunal are held to be maintainable, this

matter would also require to be remanded to the High Court

to be decided on merits since it is a service matter personal

to the litigant and does not involve a point of law of general

public importance.

IV. The vires of Sections 31 and 32 of the said Act were under

challenge in WP(C) No.76/2016 titled Gurbux Singh

Dhindsa v. Union of India, filed under Article 32 of the

Constitution by the father of an Air Force officer who was

killed in an operational area in J&K. He was claiming

interest over the relief granted by the Armed Forces

Tribunal but could not have filed a direct appeal since the

matter was personal to the litigant and did not involve any

point of law of general public importance and High Courts 25 were not entertaining matters in view of the judgment in

Major General Shri Kant Sharma & Anr.29 case.

It was submitted that prayer for declaring Sections 30 & 31

as ultra vires would not be pressed in case the writ

jurisdiction 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

order accordingly.

34. The larger question having been answered, the aforesaid

individual matters shall be dealt with depending on the facts of each

case, as per the aforesaid directions passed by us.

35. The appeals and the writ petition are disposed of in the aforesaid

terms leaving the parties to bear their own costs.

...................……………………J. [Sanjay Kishan Kaul]

29 (supra) 26 ...................……………………J. [Abhay S. Oka]

....................……………………J. [B.V. Nagarathna] New Delhi.

March 21, 2023.

27