ARCHANA CHATTERJEE Vs. UNION OF INDIA

JUDGEMENT

(1.) The matter has appeared today under the heading 'To be mentioned'. Very clearly it was indicated that regardless of the heading under which the matter has appeared, the matter will be considered on merits today.

(2.) On April 23, 2019 I had repelled the jurisdictional challenge made by Mr Jha appearing for the Union of India for the reasons mentioned in the said order. Mr Jha had not been armed with the precedent he was referring to on such occasion. Today, with the leave of court Mr Jha has relied upon a judgment in the case of Union of India and Ors. v. Major General Shri Kant Sharma and Anr. reported in (2015) 6 SCC 773. He continues his submission that where a statutory mechanism has been enacted by the Parliament despite the availability of the writ jurisdiction, possibly the writ court will not rush in where angels fear to tread. He has referred to paragraphs 42 and 43 of the said judgement wherein the Supreme Court held as follows:

(3.) Section 30 provides for an appeal to the Supreme Court subject to leave granted under Section 31 of the Act. By clause (2) of Article 136 of the Constitution, the appellate jurisdiction of the Supreme Court under Article 136 has been excluded in relation to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces. If any person aggrieved by the order of the Tribunal, moves the High Court under Article 226 and the High Court entertains the petition and passes a judgment or order, the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, the Supreme Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of the Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order o the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation. Therefore, it is always desirable for the High Court to let the aggrieved person avail the remedy under Section 30 read with Section 31 of the Armed Forces Tribunal Act."