UNION OF INDIA & ORS. Versus PARASHOTAM DASS
UNION OF INDIA & ORS. Versus PARASHOTAM DASS
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
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
J U D G M E N T
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
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 & Others1
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 & Others2
, 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 courtsmartial 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 to11
(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 courtsmartial, 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
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