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TMI Blog2023 (3) TMI 1567X X X X Extracts X X X X X X X X Extracts X X X X ..... yal, Amit Kumar Chawla, Narendra Pal Sharma, Sandhya Singh, Advs., Manju Jetley, K. Parameshwar, AORs, Navdeep Singh, Arti Gupta, Kanti, Advs., Mukesh Kumar Sharma, Braj Kishore Mishra, AORs, Ankit Mishra, Abhishek Yadav, Advs., K.M. Nataraj, Sanjay Jain, A.S.Gs., R. Balasubramanian, Sr. Adv., Sonia Mathur, Seema Bengani, Padmesh Mishra, Yuvraj Sharma, Anandh Venkataramani, Vijayalakshmi Venkataramani, Vinayak Mehrotra, Mansi Sood, Chitvan Singhal, Sonali Jain, Abhishek Kumar Pandey, Raman Yadav, Advs., Arvind Kumar Sharma, Mukesh Kumar Maroria, Shreekant Neelappa Terdal, AORs, Arvind P. Datar, Sr. Adv., Archana Pathak Dave, AOR, Chitrangada Rastravara, Dashrath Singh, Abhijeet Singh, Aditya Pratap Singh, Aishwarya Mishra, Yasha Goyal, Manvendra Singh, Advs., Rakesh Dahiya, AOR, Aditya Dahiya and Kapil Dahiya, Advs. 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 the three-armed forces of the Union of India had been pending in Courts for a considerable period of time and, thus, the Central Government engaged in the question of constituting an independent adjudicatory forum f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exercise its jurisdiction. They relied on a Constitution Bench of seven-Judges of this Court in L. Chandra Kumar v. Union of India and Ors. (1997) 3 SCC 261, 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 323A (323A. Administrative tribunals). or 323B (323B. Tribunals for other matters) 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 Kumar (supra) referred to the judgment of this Court in the seminal case of Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461 and many other subsequent judgments. It would be useful to extract the discussion in para 62 of L. Chandra Kumar3 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 jurisdiction, powers and authority, exercisable immediately before that day by all courts (except the Supreme Court or a High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Kumar3 and S.N. Mukherjee3. What was significant, it was urged, that the decision in Major General Shri Kant Sharma and Anr.3 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 Kumar3 in para 79, which reads as under: 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, but shall not include matters relating to- (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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 kep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 26. On the legislature introducing the concept of "Tribunalisation" (one may say that this concept has seen many question marks vis-à-vis different tribunals, though it has also produced some successes), the same was tested in L. Chandra Kumar3 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 Mathew3 case qua the Armed Forces Tribunal really arose because of the observations made in Major General Shri Kant Sharma and Anr.3 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Mukherjee3 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 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. Mukherjee3 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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