UNION OF INDIA & Ors. v. PARASHOTAM DASS

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. 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. [Para 28][613-E-G]

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 Additional Solicitor General. It was enunciated in the Constitution Bench judgment in S.N. Mukherjee 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.

[Para 29][613-G- H; 614-A-B]

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. Mukherjee case. This Court would loath to carve out any exceptions, including the ones enumerated by the 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. This Court believes that the High Courts are quite conscious A B C D E F G H UNION OF INDIA & ORS. v. PARASHOTAM DASS 601 of the parameters within which the jurisdiction is to be exercised, and those principles, in turn, are also already enunciated by this Court. [Para 30][614-B-E]

This Court has no hesitation in concluding that the judgment in Major General Shri Kant Sharma & Anr. 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 Kumar case, S.N. Mukherjee case, and Rojer Mathew 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. [Para 32][614- F-G; 615-A]