Sec.18,19 of Army Act and Art.309,310 and 311 - Doctrine of Pleasure -Doctrine of finality- whether amenable to judicial review on the ground of camouflage- Apex court held No - Some army officers were dismissed from service - all writ petitions are dismissed - wrong corregedum of issued unnecessarily adding 5% cut of in gratuity fund and the word dismissed was mentioned as termination - later the 5% cut of in gratuity fund was rectified - this raised to file several writ petitions alleging illegality, bias or malafide or based on any other extraneous ground, and camouflage. - Apex court held that review of it's own orders on the doctrine of finality is not maintainable when the petitioners failed to prove any illegality, bias or malafide or based on any other extraneous ground and no court should exercise it's right on mere camouflage =
High Court allowed the appeals preferred by the
respondents and quashed not only their termination orders but also the
General Court Martial (hereinafter referred to as ‘GCM’) proceedings
held against Captain Ashok Kumar Rana and Captain R.S. Rathaur.=
Out of the 19 officers, 3 officers were tried by GCM, two were
convicted, namely, Captain Ranbir Singh Rathaur and Captain A.K. Rana,
and one was acquitted. Captain Ranbir Singh Rathaur and Captain A.K.
Rana were sentenced to RI for 14 years each and were cashiered. Against
13 officers, disciplinary actions were initiated. However, a decision
was taken not to try them and an administrative order under Section 18
of the Army Act, 1950 (in short “the Army Act”) was passed terminating
their services.
3. The present appeals arise out of the order passed way back in 1980
terminating the services of the respondents herein which were brought
invoking the doctrine of pleasure as enshrined under Article 310 of the
Constitution of India, 1950 (hereinafter referred to as the
‘Constitution’) coupled with the powers to be exercised under Section
18 of the Army Act.
Initially, the orders of dismissal were passed on
11.1.1980, which were assailed in nine writ petitions that were
dismissed by the High Court of Delhi on 21.4.1980. The special leave
petitions against these writ petitions came to be dismissed by this
Court on 1.9.1980.
In the meanwhile, a corrigendum came to be issued, as a result whereof,
the orders of dismissal were described as orders of termination.
On
account of the substituted termination order, a decision for deducting
5% of the gratuity amount was taken, which was communicated afresh.=
One of the appeals, being LPA
No.116 of 1985, filed by one N.D. Sharma, was decided vide judgment
dated 19.8.1986 upholding the order of termination approving the
applicability of the doctrine of pleasure. However, at the same time,
the appeal was partly allowed in relation to the post-retiral benefits
keeping in view the provisions under the Army Act and Rules and it was
found that the proposed 5% cut-off was not in accordance with the
Act/Rules applicable therein.
Several LPAs were filed by other officers relying on the Division Bench
judgment extending the post-retiral benefits, and a plea for similar
relief was raised.
7. When these appeals came up for hearing, the Division Bench of the Delhi
High Court hearing the matter differed with the view on the issue of
the applicability of doctrine of pleasure and maintainability of the
writ petitions on the ground of malafides vide order dated 15.5.1991.
Consequently, this question of law was referred to be decided by a
larger bench.
The Full Bench so constituted to answer this reference held that an
order under Section 18 of the Army Act invoking the doctrine of
pleasure was subject to judicial review if it is assailed on
malafides. It was held that the onus lay on the petitioner/person
alleging malafides and to bring material on record to satisfy the court
in order to justify the interference. Aggrieved, the Union of India
filed the Special Leave Petition, which stood dismissed.=
In the case arising out of these very proceedings reported in Union of
India & Ors. v. Ranbir Singh Rathaur & Ors., (2006) 11 SCC 696, this
Court held:
a) That review of the earlier orders passed by this court was
"impermissible": approach of the High Court of reopening the case
was "erroneous"; the issue of maintainability of the petitions was
of paramount importance:
b) The finding recorded by the High Court that the entire record was
not produced by the Union of India was not factually correct;
c) To say that "justice stood at the higher pedestal" then the
finality of litigation was not an answer enabling the court to
reopen a finally decided case;
(d) Persons behind the false implication were not impleaded as
parties; and
(e) Newspaper reports/statement made by any officer could not be
considered as evidence.
84. Violation of Fundamental Rights guaranteed under the Constitution have
to be protected, but at the same time, it is the duty of the court to
ensure that the decisions rendered by the court are not overturned
frequently, that too, when challenged collaterally as that was
directly affecting the basic structure of the Constitution
incorporating the power of judicial review of this Court. There is no
doubt that this Court has an extensive power to correct an error or to
review its decision but that cannot be done at the cost of doctrine of
finality. An issue of law can be overruled later on, but a question of
fact or, as in the present case, the dispute with regard to the
termination of services cannot be reopened once it has been finally
sealed in proceedings inter-se between the parties up to this Court
way back in 1980.
85. The term ‘dismissal’ in the original order was substituted by the
term ‘termination’ issuing the corrigendum to ratify a mistake
committed while issuing the order. In fact, the competent authority
had taken a decision only to terminate, and therefore it was found
necessary to issue the corrigendum. However, in view of such
substitution of word ‘dismissal’ by the term ‘termination’, does not
tilt the balance in favour of the respondents. More so, as pointed out
by Mr. Paras Kuhad, learned ASG that the proposed 5% deduction had
been withdrawn, and therefore the issue did not survive.
86. Analysing entire facts of the case and the material produced in Court
and upon an exhaustive consideration of the matter, we are of the
definite opinion that the power of pleasure exercised by the President
in terminating the services of the respondents does not suffer from
any illegality, bias or malafide or based on any other extraneous
ground, and the same cannot be challenged on the ground that it is a
camouflage. As discussed above, the onus lay on the respondent-
officers who alleged malafides. No credible evidence or material
produced before the Court impels us to come to the conclusion that the
order of termination is baseless or malafide.
87. For the reasons aforesaid, these appeals are allowed and the judgment
and order passed by the Delhi High Court is set aside. Ordered
accordingly. No costs.
B.S. CHAUHAN, J. CHELAMESWAR, M.Y. EQBAL
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.2951-2957 OF 2001
UNION OF INDIA AND OTHERS … APPELLANT(S)
VERSUS
MAJOR S.P. SHARMA AND OTHERS … RESPONDENT(S)
JUDGMENT
M.Y. EQBAL, J.:
1. These appeals have been filed against the common judgment and order
dated 21.12.2000 passed by Delhi High Court in L.P.A. Nos. 4, 43, 139,
148 of 1987, 21 of 1988, 77 of 1993 and 86 of 1994. By the said
judgment, the High Court allowed the appeals preferred by the
respondents and quashed not only their termination orders but also the
General Court Martial (hereinafter referred to as ‘GCM’) proceedings
held against Captain Ashok Kumar Rana and Captain R.S. Rathaur.
2. Before we proceed with the matter, it would be appropriate to highlight
the factual background and brief history of the case.
In February 1971, Gunner Sarwan Dass was cultivated by Pakistan
Intelligence. In 1972 Captain Ghalwat and Gunner Sarwan Dass crossed
the international border. In 1973 Captain Ghalwat and Gunner Sarwan
Dass were posted in Babina (M.P.). In 1974 Gunner Aya Singh was
cultivated by Gunner Sarwan Dass for Pak Intelligence. Captain Nagial
was then cultivated by Aya Singh for Pak Intelligence. In 1975 for the
first time the espionage racket came to be noticed. Aya Singh and
Sarwan Dass were arrested. In 1976-77 pursuant to the investigation,
three more jawans were arrested. They corroborated the involvement of
Sarwan Dass. Sarwan Dass and Aya Singh on further interrogation
disclosed the names of Captain Ghalwat and Captain Nagial. In 1976-77
Captain Ghalwat and Captain Nagial were tried by GCM and were
convicted. Ghalwat was cashiered and given 14 years’ RI. Nagial was
given 7 years’ RI and was also cashiered. In addition, 12 jawans were
tried and they were given RI of various descriptions and were dismissed
from services. Aya Singh and Sarwan Dass were also among the 12 jawans
tried and held guilty. Later in 1978 it was discovered that Aya Singh
was holding back certain relevant information relating to espionage
activities under certain alleged threat and pressure. Wife of Aya Singh
claimed to be killed. Reeling under the shock of the circumstances, he
made further disclosures wherein he named Captain Rathaur and Captain
A.K. Rana; disclosed that he had been receiving threats that if he
disclosed anything his wife would be killed. Accordingly, in 1978
Captain Rathaur and Captain A.K. Rana were interrogated. As a result,
42 army personnel i.e. 19 officers, 4 junior commissioned officers
(JCOs) and 19 other ranks (ORs), were arrested.
Out of the 19 officers, 3 officers were tried by GCM, two were
convicted, namely, Captain Ranbir Singh Rathaur and Captain A.K. Rana,
and one was acquitted. Captain Ranbir Singh Rathaur and Captain A.K.
Rana were sentenced to RI for 14 years each and were cashiered. Against
13 officers, disciplinary actions were initiated. However, a decision
was taken not to try them and an administrative order under Section 18
of the Army Act, 1950 (in short “the Army Act”) was passed terminating
their services.
3. The present appeals arise out of the order passed way back in 1980
terminating the services of the respondents herein which were brought
invoking the doctrine of pleasure as enshrined under Article 310 of the
Constitution of India, 1950 (hereinafter referred to as the
‘Constitution’) coupled with the powers to be exercised under Section
18 of the Army Act. Initially, the orders of dismissal were passed on
11.1.1980, which were assailed in nine writ petitions that were
dismissed by the High Court of Delhi on 21.4.1980. The special leave
petitions against these writ petitions came to be dismissed by this
Court on 1.9.1980.
4. In the meanwhile, a corrigendum came to be issued, as a result whereof,
the orders of dismissal were described as orders of termination. On
account of the substituted termination order, a decision for deducting
5% of the gratuity amount was taken, which was communicated afresh.
These orders made a fresh ground of challenge before a learned Single
Judge of the Delhi High Court. The learned Single Judge dismissed the
petition by a detailed judgment dated 22.3.1985. Simultaneously, one
Captain R.S. Rathaur had filed a Writ Petition No.1577 of 1985 under
Article 32 of the Constitution before this Court, which stood dismissed
refusing to re-open the issues already decided.
5. Against the order of the learned Single Judge dated 22.3.1985, several
Letters Patent Appeals were filed. One of the appeals, being LPA
No.116 of 1985, filed by one N.D. Sharma, was decided vide judgment
dated 19.8.1986 upholding the order of termination approving the
applicability of the doctrine of pleasure. However, at the same time,
the appeal was partly allowed in relation to the post-retiral benefits
keeping in view the provisions under the Army Act and Rules and it was
found that the proposed 5% cut-off was not in accordance with the
Act/Rules applicable therein.
6. Several LPAs were filed by other officers relying on the Division Bench
judgment extending the post-retiral benefits, and a plea for similar
relief was raised.
7. When these appeals came up for hearing, the Division Bench of the Delhi
High Court hearing the matter differed with the view on the issue of
the applicability of doctrine of pleasure and maintainability of the
writ petitions on the ground of malafides vide order dated 15.5.1991.
Consequently, this question of law was referred to be decided by a
larger bench.
8. The Full Bench so constituted to answer this reference held that an
order under Section 18 of the Army Act invoking the doctrine of
pleasure was subject to judicial review if it is assailed on
malafides. It was held that the onus lay on the petitioner/person
alleging malafides and to bring material on record to satisfy the court
in order to justify the interference. Aggrieved, the Union of India
filed the Special Leave Petition, which stood dismissed.
9. It appears that after the answer of reference, the pending appeals
were taken up for decision by the High Court. On account of the answer
given by the Full Bench, fresh petitions were filed by those officers
whose petitions had been dismissed earlier upto this Court as referred
to hereinabove, in 1980. Some writ petitioners, whose petitions had
been dismissed by learned Single Judge, filed Letters Patent Appeals
with applications for condonation of delay. Appeals were also filed
against those judgments that were given in the second round of
litigation proposing to refuse 5% of the terminal benefits referred to
hereinabove. These categories of petitions were described by the
Division Bench hearing the matter in its order dated 2.5.1995, as under
:-
“LPA 77/93 & CM 823/95
In these batch of cases, we find there are at least two LPAs
which are directed against the Judgments of dismissal of the
writ petitions holding that the particular issue cannot be gone
into in writ jurisdiction. Learned counsel for the appellants in
those two cases rely upon the Full Bench Judgment and the recent
Supreme Court Judgment to contend that the issue can be gone
into by the Court. They have also wanted us to call for certain
records from the respondents and in regard to those records,
respondents are claiming privilege and that is a matter to be
decided.
There is another group of cases in which fresh writ petitions
are filed on the ground that notwithstanding the dismissal of
the earlier writ petitions or dismissal of the S.L.Ps, fresh
writ petitions are maintainable inasmuch as it is only now that
the Full Bench and the Supreme Court have decided that the
particular issue can be gone into by the High Court. In that
batch of cases the question of res judicata falls for
consideration.
There is yet another group of cases where writ petitions were
dismissed by the learned Single Judges on the ground that the
Court cannot go into the issue and the LPAs were preferred with
application for condonation of delay with delay of more than 9
years.
There is yet another group of cases where writ petitions were
filed against some latter orders passed by the Government
imposing a cut of 5% from the pension and upon dismissal of the
writ petitions challenging the said orders, LPAs have been filed
and in those appeals the appellants want to take up the issue,
that the Court can go into the validity of the order of
dismissal order once again.
Inasmuch as there are four classes of cases, we are of the view
that first we should decide the batch where fresh writ petitions
are filed, and in case we hold that fresh writ petitions are
maintainable, then the question of going into the privilege
claimed by the respondents will have to be decided. If the fresh
writ petitions are held to be maintainable, then the batch
wherein appeals are filed with delay condonation applications
can also be taken up for consideration. In one case the question
of laches is to be decided whereas in another the question of
sufficient cause for condonation of delay fall for
consideration. In the matters challenging the orders imposing
cut in pension, it will be for the parties to watch the view the
court may take in other three batches mentioned above so that
they can pursue one or the other remedies which the Court will
be able to accept.
Therefore, we will first take up fresh writ petitions filed
after the passing of the full Court Judgment and the Supreme
Court Judgment.”
10. Thereafter two writ petitions that were filed afresh, namely, in the
case of Major Subhash Juneja and Harish Lal Singh, were heard
separately and dealt with the principle of res judicata and
constructive res judicata. The said writ petitions were held to be
barred by law vide judgment dated 8.3.1996. The other connected
petitions also appeared to have been dismissed as not maintainable by
another Division Bench vide order dated 7.9.1992.
11. The Letters Patent Appeals which were filed with applications for
condonation of delay and also against the judgment proposing 5% cut-off
in the terminal benefits were heard by another Division Bench that
reserved the judgment on 14.8.1998 by passing the following order:
"LPA Nos.4/87, 43/87, 139/87, 148/87, 21/88, 77/93, 86/94 and
C.W. Nos.3063/95, 4082/95:
Synopses have been placed on record. Mr. Tikku states that by
17.8.1998, photocopy of the relevant record will be made
available to Court. Originals have been shown to us.
Judgment reserved."
12. The Division Bench that went on to reserve the said judgment
delivered it after almost 3 years and allowed the appeals. Therein, it
was held that the proceedings initiated against the writ petitioners as
also against other officers, who were appellants in the other LPAs,
were vitiated as there was no material to support the impugned orders
of termination which were camouflaged and thus, the same were subject
to judicial review. Accordingly, vide judgment dated 21.12.2000, the
relief of consequential benefits was granted after setting aside the
order of termination. The relevant part thereof is extracted herein:
"On a consideration of all the facts and circumstances we are
of the view that there is no other conclusion possible except to
say that the orders which are the subject matter of the writ
petitions and in the Letters Patent Appeals are merely
camouflage and orders have been passed for extraneous reasons
under the cloak of innocuous form of orders of termination. To
give an air on verisimilitude the respondents had held the Court
Martial proceedings which are wholly void.
Accordingly, we declare that the proceedings initiated against
the petitioners in the two writ petitions are void in law and
the orders passed against the other officers, the appellants in
L.P.As. are vitiated being without any material and being
camouflage. Having dropped the idea not to conclude Court
Martial proceedings knowing fully well that the officers were
likely to be acquitted, without producing relevant record before
the concerned authority orders of termination were passed
flouting all norms. The appellants in the L.P.A's and the
petitioners in the two writ petitions are entitled to all the
consequential benefits. We also hereby declare that the orders
passed against the appellants in the L.P.As are void in law and
the conviction and sentence by the GCMs against the writ
petitioners are void in law. Consequently, the judgments of the
learned Single Judge which are subject matter in Latent Patent
Appeals are set aside and the writ petitions in those cases are
allowed and the Letters Patent Appeals stand allowed and the two
writ petitions also stand allowed. All the writ petitions stand
allowed to the above extent indicated and other reliefs prayed
for cannot be considered by this Court and it is for the law
makers to attend to the same. There shall be no order as to
costs."
13. Another relevant event in this journey of judicial conflict which is
worth mentioning is that two officers, namely, Subhash Juneja and
Harish Lal Singh, whose writ petitions had been dismissed on the ground
of constructive res judicata, filed special leave petitions that were
converted to Civil Appeal Nos. 1931 and 1932 of 1997 and were finally
dismissed by a three-Judge Bench of this Court vide order dated
23.4.2003, which is quoted as under:
"The grievance of the appellants that is sought to be agitated
in these appeals is already settled by an earlier judgment of
the Delhi High Court in a Writ Petition filed by the appellants
themselves. The appellants herein challenged the said judgment
by filing Special Leave Petitions and those Special Leave
Petitions having been dismissed by this Court, the contentions
raised by them have been finally decided against the appellants
herein.
The appellants are now trying to re-agitate those
issues because the High Court in some other case has taken a
different view. Mr. Yogeshwar Prasad, the learned senior counsel
appearing for the appellants states that these cases should be
heard along with the cases of Union of India which are pending
against the latter view of the High Court. We find no reason to
do so. The contention of the appellant raised was rightly
dismissed by the High Court in the impugned judgment by applying
the principles of constructive res judicata. The appeals are
accordingly dismissed."
(Emphasis added)
14. Thus, it can be seen from the narration of facts hereinabove that with
regard to some of the officers, who were involved in this very
incident, the evidence which had already been assessed by the High
Court, had been looked into and it was found that the doctrine of
pleasure had been upheld in the earlier round of litigation and,
therefore, the matter stood foreclosed and could not be reopened. The
adjudication, therefore, between the Union of India who is the present
appellant and the officers who were involved in the same set of
incidents had attained finality up to this Court. It was in this
background that the Union of India filed the appeals in the year 2001
against the judgment dated 21.12.2000 referred to hereinabove. The
judgment dated 21.12.2000 in relation to all the four sets of
litigations that have been referred to by the High Court in its order
dated 2.5.1995 is, therefore, extracted hereinabove.
15. The appeals filed by the Union of India, pending before this Court
against the judgment dated 21.12.2000, were split into two parts by the
order of this Court dated 14.2.2006, which is extracted herein:
"C.A. Nos.2949-2950/2001:
Arguments heard.
Judgment reserved.
The entire original record including the administrative receipts
be called for either by FAX or by telephonic message immediately
by the Registrar (Judicial).
C.A.Nos.2951-2957/2001:
De-linked.
These matters shall be heard separately. List after four
months."
16. Accordingly, the arguments were heard and judgment was reserved in the
matter arising out of the two writ petitions filed by Ranbir Singh
Rathaur and Ashok Kumar Rana alongwith which delinked seven LPAs
were also disposed of even though it was observed by this Court
that they arose out of the same incident. This Court vide
judgment dated 22.3.2006 in the case of Union of India & Ors. vs.
Ranbir Singh Rathaur & Ors., (2006) 11 SCC 696 reversed the judgment
of the High Court dated 21.12.2000 vis-a-vis the two writ petitions
and held as follows:
"On a bare reading of the High Court's order and the averments
in the writ petitions, one thing is crystal clear that there was
no definite allegation against any person who was responsible
for the so-called manipulation. It is also not clear as to who
were the parties in the writ petitions filed. In the grounds
indicated in the writ petitions it was stated that there is no
bar or impediment on the High Court reviewing the petitioner's
case as also connected cases to enquire into the validity of the
acts done against the writ petitioner. Therefore, it was an
accepted position that the writ petitioners wanted review of the
High Court's order, which is clearly impermissible. No ground
for seeking such review apparently was made out. In any event we
feel that the High Court's approach is clearly erroneous. The
present appellants in the counter-affidavit filed had raised a
preliminary objection as regards the maintainability of the writ
petitions and had requested the High Court to grant further
opportunity if the necessity so arises to file a detailed
counter-affidavit after the preliminary objections were decided.
The High Court in fact in one of the orders clearly indicated
that the preliminary objections were to be decided first. But
strangely it did not do so. It reserved the judgment and
delivered the final judgment after about three years. There is
also dispute as to whether the relevant documents were produced.
What baffles us is that in the High Court, records with original
documents were shown to it and the Bench wanted the copies to be
filed. In the impugned judgment the High Court proceeded on the
basis as if only a few pages of the files were shown. If that
was really the case, there was no necessity for the High Court
to direct the present appellants to file copies. If after
perusal of the documents the High Court felt that these were not
sufficient the same would have been stated. But that does not
appear to have been done. The High Court also had not discussed
as to how the matters which stood concluded could he reopened in
the manner done. No sufficient grounds have been even indicated
as to why the High Court felt it necessary to do so. To say that
though finality had been achieved, justice stood at a higher
pedestal is not an answer to the basic question as to whether
the High Court was competent to reopen the whole issue which had
become concluded. The persons whom the High Court felt were
responsible for alleged manipulation or persons behind false
implication were not impleaded as parties. Newspaper reports are
not to be considered as evidence. The authenticity of the
newspaper reports was not established by the writ petitioners.
Even otherwise, this could not have been done in a writ
petition, as disputed questions of fact were apparently
involved. The matters which the High Court found to have been
established were really not so. The conclusions were based on
untested materials, and the writ petitioners had not established
them by evidence. Since the High Court has not dealt with the
matter in the proper perspective we feel that it would be proper
for the High Court to rehear the matter. The High Court shall
first decide the preliminary objections raised by the present
appellants about the non-maintainability of the writ petitions.
Normally such a course is not to be adopted. But in view of the
peculiar facts involved, it would be the appropriate course to
be adopted in the present case. Therefore, we remit the matter
to the High Court for fresh hearing. We make it clear that
whatever we have observed should not be treated to be the
conclusive findings on the subject-matter of controversy. The
appeals are allowed without any order as to costs. Since the
matter is pending since long, we request the High Court to
dispose of the matter as early as practicable, preferably within
four months from the date of receipt of the judgment. No costs.
" (Emphasis added)
On remand, the High Court dismissed the writ petitions vide judgment dated
20.12.2007 and the same has been placed on record by the appellants.
So far these appeals are concerned, the High Court by the impugned common
order dated 21.12.2000, not only quashed the termination orders but also
court martial proceedings held against some of the officers.
The Division Bench of this Court, after hearing the counsel appearing for
the parties and legal contentions urged, formulated the following points
for consideration by a larger bench [Union of India vs. S.P. Sharma, (2013)
10 SCC 150]:-
“31. With reference to the aforesaid rival factual and legal
contentions urged, the following points would arise for
consideration in these appeals:
31.1. Whether the orders of termination passed by the first
appellant in absence of material evidence and improper exercise
of power by the first appellant amount to fraud being played on
the respondent officers and are vitiated in law on account of
legal malafides and legal malice?
31.2. Whether the order of dismissal of earlier writ proceedings
and confirming the same by this Court vide order dated 1-9-1980
in relation to the same respondent officers in C.As. Nos. 2951,
2954, 2955, 2956 and 2957 of 2001 amounts to doctrine of merger
and operates as res judicata against the present appeals?
31.3. Whether the exercise of doctrine of pleasure under Section
18 of the Army Act read with Article 310 of the Constitution by
the first appellant in the absence of any material evidence
against the respondent officers and non-production of the
relevant records/files of these officers render the orders of
termination as illegal and invalid?
31.4. Whether the order of termination is arbitrary, capricious,
unreasonable and violative of Articles 14, 16, 19 and 21 of the
Constitution of India?
31.5. Whether the impugned judgment and order of the High Court
is vitiated either on account of erroneous reasoning or error in
law and warrant interference by this Court?”
20. The learned Additional Solicitor General at the very outset submitted
that issues involving security of the State were extremely complex and
the issue related to the expediency and desirability of retaining
officers in the Army who had become security suspects. The instant
cases of the respondent officers were examined at various levels in the
Army Headquarters as also in the Central Government and the final
decision to exercise the power to pass an order of termination was
taken by it under Section 18 of the Army Act. Learned counsel relied
upon the judgment of this Court in B.P. Singhal vs. Union of India &
Ors. (2010) 6 SCC 331 and contended that the parameters that are
required to be taken into consideration for exercise of power under
Article 310 of the Constitution are varied. Several of these parameters
entail evaluation of issues relevant to the security of the State. The
factors that form the basis of exercise of power under Article 310 of
the Constitution cannot be said to be objective parameters that are
amenable to judicially manageable standards. The reasons that form the
basis of exercise of power under Article 310 can extend to varied
levels of subjective assessments and evaluations in entailing expert
knowledge as to issues of security of the State. In that view of the
matter it is submitted that exercise of power of judicial review would
accord great latitude to the bona fide evaluation made by the competent
authorities in the course of discharge of the duties. The correctness
of the opinion formed or the sufficiency of material forming the basis
of their decision to pass an order of termination would not be
subjected to judicial scrutiny of either the High Court or this Court.
Further, placing strong reliance upon B.P. Singhal case, (supra) it is
contended by the learned Additional Solicitor General that exercise of
power of judicial review under Article 310 is extremely narrow and is
limited to only one parameter, namely, violation of fundamentals of
constitutionalism. The standard of judicial review which applies to the
case of exercise of executive or statutory or quasi-judicial power
cannot be extended to the case of judicial review of constitutional
power under Article 310. Learned counsel submitted that the fact that
Article 311 does not apply to the case of officers/employees of armed
forces, the power under Article 309 also cannot be exercised for
limiting the ambit of Article 310. The Army Act is an enactment under
Article 309. The aforesaid legal principle has been followed
consistently in all subsequent decisions of this Court. In this
connection learned counsel relied upon the judgment of this Court in
Moti Ram Deka vs. North East Frontier Railways (1964) 5 SCR 683.
Further, the Constitution Bench of this Court in Ram Sarup vs. Union of
India, AIR 1965 SC 247 with reference to Article 33 of the
Constitution, has laid down limitations provided on the applicability
of fundamental rights guaranteed to the officers/employees of the Army
under Articles 14, 16 and 21 of the Constitution and under Section 21
of the Army Act. He has further contended that each of the provisions
of the Army Act also carries the sanction of Parliament against the
applicability of all other fundamental rights contained under Part III
of the Constitution to the extent to which the rights contained in the
fundamental rights are inconsistent with the provisions of the Army
Act. The aforesaid enunciation of law has again been followed
consistently by this Court in subsequent decisions.
21. The learned Additional Solicitor General further contended that in a
matter of civilian employees, Article 311 represents a limitation over
the absoluteness of pleasure doctrine contained in Article 310. In Moti
Ram Deka (supra) and in the subsequent cases, this Court laid down
that Article 311 introduces a twofold procedural safeguard in favour of
an employee/officer in relation to the exercise of pleasure doctrine.
However, Article 311 applies only in cases of punishment and not
otherwise. The availability of the safeguards provided for under
Article 311 is contingent upon and limited to cases where the power of
termination of services of an employee/officer is exercised by the
disciplinary authority by way of punishment. The applicability of
Article 311 of the Constitution being dependent on the factum of the
order of termination being in the nature of a punishment, judicial
review undertaken in case of civilian employees entails the necessity
for and the power of determining as to whether the order impugned is in
the nature of a punishment or not. The doctrine of “foundation”,
“camouflage” and the principles of judicial review, encompassing the
necessity and the power of determining, whether the order impugned is
by way of a punishment is thus a direct emanation and a logical
corollary of the nature of enquiry warranted when Article 311 applies
to a case.
22. Since the provisions of Article 311 of the Constitution admittedly do
not apply to these cases, it relates to the domain of civilian
employees/officers service jurisprudence, which is controlled by
Article 311, cannot be invoked in the case of employees/officers of
armed forces. Since the protection of Article 311 cannot be claimed in
the case of employees of armed forces, no enquiry as to whether the
order is by way of a punishment, which is the sine qua non for
applicability of Article 311, is warranted. The legal issue requires to
be considered by this Court in the context of the fact as to whether by
virtue of anything contained in the language of Article 310 or the
other provisions of the Constitution, the constitutional power under
Article 310 can be construed to be limited to cases of termination
simpliciter. It is contended on behalf of the appellants that neither
the language of Article 310 nor any other provision of the Constitution
warrants adoption of such a narrow construction. Further, the learned
Additional Solicitor General has contended that this Court has
consistently held that the ambit of the doctrine of pleasure, contained
under Article 310, is an absolute power, save to the extent provided
otherwise by an express provision of the Constitution. The only express
limitation on the power of Article 310 exists under the Constitution in
relation to the tenure of certain constitutional functionaries such as
the Hon’ble Judges of the High Court and the Supreme Court. He further
contends, placing reliance upon Moti Ram Deka (supra) that this Court
has laid down the legal principle; that the ambit of Article 310 is
circumscribed only by the provisions of Article 311 and that even
Article 309 does not circumscribe the said power. The conferment of
power upon the President of India under Article 310 is in absolute
terms. Therefore, there is no basis for suggesting that the power under
Article 310 ought to be construed as excluding the power to dismiss an
employee or officer for misconduct. The very fact that Article 310
makes the tenure subject to the absolute pleasure of the President
means that the President can exercise the said power for any reason and
without assigning any cause or reason and this is precisely what has
been laid down by this Court in B.P. Singhal (supra). He further
contends that the power under Article 310 also encompasses the power to
dismiss an employee or officer for misconduct and Article 311 is
inapplicable in respect of an employee or officer of the armed forces.
It is further submitted that in case of armed forces scrutiny of an
order passed under Article 310 would neither warrant an enquiry as to
the foundation of the order nor an enquiry as to whether the order is
in the nature of punishment. Therefore, he submits that the necessary
corollary thereof would be that the competent authority is also free to
abandon any statutory procedure at any stage and take resort to the
constitutional power under Article 310 by the President to terminate
the services of an employee/officer of the armed forces. The ambit of
such power cannot be circumscribed with reference to the concepts that
govern the exercise of the power in relation to civilian
employees/officers.
23. Learned Additional Solicitor General put reliance on Chief of Army
Staff vs. Major Dharam Pal Kukrety, (1985) 2 SCC 412 where this Court
has also upheld the competent authority’s power to switch over to its
power under Section 18 of the Army Act upon abandonment of the GCM
proceedings against its employees/officers. The authorities are
competent to take recourse to their statutory power under Section 19 in
a case where the court martial exercise initiated by them becomes
futile. It cannot be contended by the officer that where alternative
powers under the statute can be resorted to in such situations the
authority cannot resort to its constitutional power under Article 310
but pass an order of termination against the officer of the Army. Such
provision of the statutory power including Section 19 of the Army Act
can be said to be subject to the limitations of the scheme of the Army
Act. Power under Article 310, which is constitutional power, is wider
and certainly cannot be subjected to the constraints flowing from the
scheme of the Army Act. It is further contended that this Court has
examined the legality and validity of similar orders of termination in
exercise of power under Article 310 of the Constitution by the
President upholding the orders of termination passed in exercise of the
aforesaid constitutional statutory provisions.
24. Shri P.P. Rao, learned senior counsel appearing for respondent Major
S.P. Sharma, firstly brought to our notice the sequence of the events
happened so far as this respondent is concerned. According to the
learned counsel in spite of unblemished career and academic experience
Major Sharma was arrested in 1979 and was lodged in a cell and was
denied the basic facilities. The said respondent represented to the
Chief of Army Staff and Deputy Chief of Army Staff-GOC about the
inhuman treatment. However, in 1979 a charge report was handed over to
the respondent on 14.04.1979 for which he was arrested. It was alleged
by the respondent that the army authorities released false, defamatory
and fabricated press release stating that the respondent was the ring
leader of the group with 15 others and was spying for Pakistan, having
received huge sum in Indian currency for passing of information to
Pakistan about the Indian Army. A second charge report was handed over
to the respondent. Later on a summary of evidence was commenced on the
basis of false allegation.
Mr. Rao, then contended that about 27 prosecution witnesses
were examined and all of them spoke about his honesty and integrity and
uprightness. Learned senior counsel submitted that when the charges
against the present respondent were not substantiated he was released
from arrest and suspended from duties. He was granted leave and after
that he was recalled for duty and an order of dismissal dated
11.01.1980 was served and handed over to the respondent. Subsequently,
by a corrigendum the order of dismissal of the respondent was
substituted by an order of termination.
25. Mr. Rao, has not disputed the fact that the said respondent Major S.P.
Sharma filed a writ petition being W.P. No.418 of 1980 challenging the
order of dismissal dated 11.01.1980. The said writ petition was
dismissed by a Division Bench of the Delhi High Court and against the
said order the respondent preferred a Special Leave Petition before
this Court being 7225 of 1980 which was also dismissed. When the order
of dismissal attained finality, the respondent was served with a show
cause notice as to why a cut-off 5% in the retirement gratuity and
Death-Cum-Retirement Gratuity be not imposed as his service was not
satisfactory. The respondent Sharma again challenged the said notice
by filing a writ petition in the High Court being W.P. No.1643 of 1982.
In the said Writ Petition the respondent also challenged the order
dated 03.03.1980 by which the dismissal was substituted by an order of
termination. The said writ petition was dismissed by the High Court on
22.03.1985 holding that the said order of termination is a termination
simpliciter without being any stigma attached. The said order was
challenged by the respondent by filing LPA No.77 of 1993. The matter
then travelled to a Full Bench and finally concluded by the impugned
order passed by the Division Bench of the Delhi High Court.
26. Mr. P.P. Rao, learned senior counsel advanced his argument on the
points formulated by this Court and submitted that the second writ
petition cannot, at any stretch of imagination, be held to be barred by
the principles of res judicata. Learned counsel further submitted that
by issuing an order of termination in place of dismissal, the entire
finding recorded by the Court while considering the order of dismissal
got washed off, hence there can be no res judicata.
27. Mr. Rao then drew our attention to the counter affidavit filed by the
appellant Union of India before the High Court and submitted that if
the offence was so grave then the respondent should have been punished
instead of dismissal from service.
28. Mr. Rao vehemently argued by giving reference to the finding recorded
by the High Court that non-production of records and the materials
which are the basis for passing the order of termination is wholly
illegal, arbitrary and unjustified. He reiterated that for the non-
production of materials and records in spite of being directed by the
Court, adverse inference has to be drawn. According to the learned
senior counsel, withholding of documents by the constitutional
authority and the Government is a serious matter and, therefore, the
High Court has rightly held the order of termination bad in law. In
this regard learned counsel referred and relied upon the decisions of
this Court in Gopal Krishnaji Ketkar vs. Mahomed Haji Latif & Ors.
1968 (3) SCR 862 and Ghaio Mall & Sons vs. State of Delhi & Ors., 1959
SCR 1424.
29. On the question of doctrine of pleasure, Mr. Rao firstly contended
that the constitutional provisions contained in Article 309, 310 and
311 are subject to Article 14 of the Constitution. According to the
learned counsel, Article 14, 15 and 21 constitute the core values and
such right cannot be taken away on the plea of doctrine of pleasure.
In this connection he relied on I.R. Coelho vs. State of Tamil
Nadu, (2007) 2 SCC 1.
30. Mr. Rao then contended that Article 33 of the Constitution is in the
nature of exception but it does not abrogate the fundamental rights.
In other words, Article 33 does not speak about the basic structure of
the Constitution. Learned counsel relied upon the decision of this
Court in B.P. Singhal vs. U.O.I., (2010) 6 SCC 331.
31. Mr. Rao then contended that Article 33 in any event shall be given
restricted interpretation for the reason that any law which restricts
the fundamental rights shall be strictly interpreted. In this
connection learned counsel referred to (1974) 1 SCC 645: Bhut Nath Mete
vs. State of West Bengal. Mr. Rao addressed on legal malice and
malice in law and referred a decision of this Court in Ravi Yashwant
Bhoir vs. District Collector, Raigad & Ors., (2012) 4 SCC 407.
32. Mr. Rao submitted that only notings were produced before the High Court
but the material on the basis of which opinion was formed was not
produced. The detailed summary of evidence, different memos and other
documents produced in the court martial proceeding were also not
produced before the High Court. Learned counsel submitted that those
notings produced before the High Court are not material, rather
advisory material. Learned counsel referred to some of the paragraphs
of the judgment rendered in S.R. Bommai and Ors. vs. Union of India
and Ors., (1994) 3 SCC 1.
Learned counsel lastly submitted that although 5% cut in
gratuity has been withdrawn by the appellant, the termination has to be
held as bad.
33. Mr. Deepak Bhattacharya, learned counsel appearing on behalf of Major
Ajwani in C.A. No.2953 of 2001, firstly submitted that the order of
termination under Section 18 of the Army Act is a colourable exercise
of power which is arbitrary, capricious and unreasonable. Learned
counsel submitted that the pleasure doctrine is the residual executive
power under Section 53 of the Constitution and hence amenable to
judicial review to ensure that the same follows the satisfaction of the
President after due application of mind and without any arbitrary,
capricious and un-reasonable exercise of power. According to the
learned counsel the respondent Major Ajwani was arrested and kept in
solitary confinement without being informed of any reason for the same
and, thereafter, criminal proceedings were initiated against him. It
was contended that the criminal proceedings against him was abandoned
without informing him any reason for the same and finally he was
illegally terminated under Section 18 of the Army Act.
34. On the question of res judicata, learned counsel submitted that
there is no pleading of res judicata ever raised by the appellant.
However, learned counsel adopted the argument advanced by Mr. P.P. Rao
on the question of res judicata.
35. Mrs. Kiran Suri, learned counsel appearing for Capt. Arun
Sharma and Capt. J.S. Yadav in C.A.No.2954 of 2001 and C.A.No. 2957 of
2001, firstly submitted that there is no decision on merit in the
earlier writ petition and, therefore, the question of application of
res judicata does not arise. The writ petition was dismissed since the
pleasure doctrine was invoked and it is open to judicial review.
Learned counsel relied upon the decision of this Court in Mathura
Prasad Bajoo Jaiswal vs. Dossibai N.B. Jeejeebhoy (1970) 1 SCC 613;
Supreme Court Employees’ Welfare Association vs. Union of India and
Anr. (1989) 4 SCC 187; Isabella Johnson (Smt.) vs. M.A. Susai(dead)
by LRs. (1991) 1 SCC 494 and Kishan Lal vs. State of J&K (1994) 4
SCC 422. Learned counsel then contended that the issue involved in the
later proceedings was not an issue in the earlier proceedings inasmuch
as the later writ petition was filed challenging the subsequent order
converting the order of dismissal to order of termination and also a
notification as to cut of gratuity.
36. Mrs. Suri then submitted that the order in the first proceeding
is an order which has been the result of suppression of documents/facts
by the appellant when these facts/documents were only within the
knowledge of the appellant. Hence suppression of facts and documents
would not entitle the appellant to raise the technical plea of res
judicata and to take advantage of the same. It was contended that the
appellant is under the public duty to disclose the true facts to the
court which has not been done and it will amount to obtaining the order
by fraud.
37. On the issue of doctrine of pleasure Mrs. Suri submitted that
exercise of doctrine of pleasure in the absence of any material
evidence against the respondent and non-production of relevant records
of these officers render the order of termination as illegal and
invalid. Learned counsel submitted that the justiciability of an
action by the executive government is open to challenge on the ground
of malafide and also that the formation of opinion is on irrelevant
material. Learned counsel in this regard referred to a decision of
this Court in the case of B.P. Singhal (supra) and Jay Laxmi Salt
Works (P) Ltd. vs. State of Gujarat (1994) 4 SCC 1. Lastly, it was
contended that the President has been misled without producing the
relevant material and on the basis of false and misleading noting,
order was obtained which amount to fraud and legal malafide.
38. Mr. A.K. Panda, learned senior counsel appearing on behalf of
respondent Capt. V.K. Diwan in C.A. No.2956 of 2001, made his
submission with regard to the interpretation of Articles 309, 310 and
311 of the Constitution. According to the learned counsel Article 310
is not controlled by any legislation, on the contrary it is contended
that Article 310 is subject to Article 309 or 311 of the Constitution.
It was contended that the respondent would have been exonerated had the
court-martial proceedings been continued. But just to avoid court
martial the appellant took recourse to terminate the services by
applying the ‘pleasure’ doctrine. On the point of res judicata learned
counsel relied upon the decision in the case of V. Rajeshwari (Smt)
vs. T.C. Saravanabava, (2004) 1 SCC 551 and Maneka Gandhi vs. Union
of India & another, (1978) 1 SCC 248.
39. Mr. Panda, learned senior counsel further contended that in spite of
the several opportunities given by the Delhi High Court, the
appellants failed to produce any material against the present
respondents to satisfy the Court that the termination was justified.
Learned counsel submitted that the High Court has carefully analysed
all the facts of the case and recorded a finding that the termination
was wholly malafide and devoid of any substance.
40. Mr. Kameshwar Gumber, learned counsel appearing on behalf of
Ex.Major R.K. Midha (now deceased) in C.A. No. 2952 of 2009, at the
very outset submitted that although the respondent is dead now, the
instant appeal is contested only with an object to restore the honour
and to remove the stigma cast on him and the family. Learned counsel,
however, admitted that the family of the deceased respondent has been
getting all pensionary benefits.
41. Ms. Amrita Sanghi, learned counsel appearing for the respondent in
C.A. No.2955 of 2001 on the issue of res judicata, firstly contended
that the earlier writ petition filed by the respondent challenging the
order of dismissal was dismissed up to this Court without going into
the merit of the case and the issue of malafide was not discussed. It
was contended that the second writ petition challenging the order of
termination and the show cause notice for deducting 5% of the gratuity
was on the basis of a fresh cause of action inasmuch as the dismissal
of writ petition up to this Court put an end to the proceedings of
dismissal until the Government came out with the order of termination
with ulterior motives. Learned counsel then contended that this Court
in the order dated 17.11.1994 in Special Leave Petition agreed with the
Full Bench and the matter was sent back to the High Court for decision
on merit. It was for the first time the appellant-Union of India made
out a case that petitioners had been caught doing espionage activity
and thus considered a security suspect. Adopting the argument of Mr.
P.P. Rao, learned senior counsel submitted that Article 33 of the
Constitution does not contemplate restricting or abrogating the basic
structure of the Constitution or the core values of the Constitution.
42. First of all, we shall deal with the following important points
formulated by this Court referred hereinabove i.e.
a) Whether the exercise of doctrine of pleasure under Section
18 of the Army Act read with Article 310 of the Constitution
in absence of any material evidence against the respondent-
officer and the non production of relevant records/files of
these officers rendered the order of termination as illegal
and invalid?
b) Whether the order of termination is arbitrary, capricious,
unreasonable and violative of Articles 14,16,19 and 21 of
the Constitution of India.
c) xxxxxxxx
d) Whether the order of termination passed by the first
appellant in absence of material evidence and improper
exercise of power by the first appellant amount to fraud
being played on the respondent officers and are vitiated in
the law on account of legal malafides and legal malice?
43. All these three points are interconnected and, therefore, will be
discussed together. Admittedly, the Division Bench while hearing the
matter called for the relevant records from the appellant and same
were produced in the Court. The Division Bench took notice of those
files and observed:-
“55. The respondents had submitted for our perusal four thin
files without proper pagination and indexing.
56. From a reading of the files one could see
that the proposal had come from the Army Headquarters
Directorate of Military Intelligence for termination of services
of certain officers under Section 18 of the Army act, 1950 and
that was accepted by the concerned Ministry. The circumstances
under which the Directorate Military Intelligence formed the
opinion has not been disclosed. A single sheet file has been
submitted to show that on 17.12.1980 there was a review of the
decision taken earlier and it appears from a note typed out
without any signature of any authority, that the very Director
of the Military Intelligence who proposed action have been a
party to the review meeting. From the records produced no
authority can come to any conclusion on the decision to be taken
by the authorities concerned for terminating service of the
officers. We wanted to satisfy ourselves about the basis on
which the action was proposed by the Directorate Military
Intelligence. Apparently, the Directorate of Military
Intelligence though that they are not obliged in law to produce
any record before the Court and the decision of the Directorate
Military Intelligence cannot be scrutinised by this Court.
xxxxx
xxxxx
129. It has now become absolutely necessary to
Notice the records produced by the respondents. When one the
learned addl. Solicitor General submitted that though the
respondents had claimed privilege they had no objection to place
all the records for the perusal of this Court to satisfy whether
the respondents had acted in accordance with law. It is a little
disturbing to note that respondents instead of producing the
relevant records pertaining to the officers involved in the
cases had just produced three flaps. No numbers are given. On
flap contains three sheets. The first sheet is mentioned as
Index sheet. Index sheet itself mentions that there is only one
page in the file. The other sheet contains a note which states
that all the cases have been thoroughly reviewed at Army
Headquarters. The other sheet shows that the matter was
discussed in a meeting held in the Home Secretary's Room on
1.10.1980.
130. The next flap is empty. The same note, as found in the
earlier flap, is found pinned on to the flap itself. In the
third flap there are 15 sheets. The first sheet is typed as
Index Sheet. It states that "this file contains a total of 12
pages". When there are 14 sheets besides the Index Sheet and in
some sheets both sides are typed. Therefore, the flap contains
12 pages is not accurate. These sheets also do not give us any
relevant material to form an opinion about the action taken
by the respondents. Therefore, - the irresistible
conclusion is that the respondents have suppressed the material
records from this Court and are not willing to part with or
produce the same for perusal of the Court. It cannot be
pretended by the respondents that there are no other files
available with them except the three flaps produced before this
Court, as in the written notes submitted by the learned Addl.
Solicitor General reference is made to file No. 9, 10, 18, 1, 2
and pages of the files are also given in the written notes,
some files containing more than 600 pages.”
44. On the basis of the aforesaid findings, the Division Bench held that
the respondent-appellant has not placed any material justifying their
action. The Court has, therefore, concluded its findings in para 168
of the judgment which is reproduced hereunder:-
“168. The whole of the bundle of facts in the instant batch of
cases would appear to be a pot boiler to project the image of
the Military Intelligence Directorate, leaving us at the
end with the cliff hanger without any iota of materials
to form an opinion about the involvement of the appellants and
the petitioners. They have chosen not to produce the entire
records without realising their constitutional obligation. Just
to make an apology they have produced some flaps as if they
constitute all the records in the case. In a system where rule
of law reigns supreme the deportment of the respondents cannot
at all be tolerated. Justice Holmes of the Supreme Court of the
United States of America Speaking for the Supreme Court in
Wisconsin vs. Illinois, 281 US 179.
"The State "must... yield to an authority that is paramount
to the State".
45. Mr. Paras Kuhad, learned Additional Solicitor General assailed the
aforesaid finding as being incorrect and submitted that all the
relevant materials were produced before the Court and after hearing
was concluded, all those original papers were returned back to the
appellant. The appellant had submitted the photocopy of all the
relevant material.
46. During the course of hearing, Learned Additional Solicitor General
produced before us all those files and documents which were produced
before the High Court. The Additional Solicitor General also produced
the link file as directed by us.
47. Mrs. Kiran Suri, learned senior counsel appearing in one of the
Civil Appeal No.2954 of 2001, submitted a note wherein she has
mentioned that on 3.1.2001 the Advocate received back the following
original file from the High Court as per the receipt produced by the
appellant in L.P.A. No.43 of 1987 and other connected matters.
i) GCM proceedings in respect of Capt. A.K. Rana IC 23440H
(Page 1-615)
ii) GCM Proceedings in respect of Capt
R.S. Rathaur IC 23720 N (Page 1-
577)
iii) File containing analysis of Espionage
cases in the respect of all the Appellants.
(Page 1-13)
iv) Brief of Samba spy Cases (Page 1-6)
v) File showing approval of Chief of Army
Staff in respect of all cases. (Page 1-9)
vi) File showing approval of Govt, of India in
respect of all the cases. (Page 1-12)
vii) File showing note from PMO's Office
regarding review note of review at office of
Home Secretary (Page 1-2)
48. We have minutely perused all the records including notings along with
link file produced by the Additional Solicitor General. On perusal
and scrutiny of all those materials we are of the view that the High
Court has committed grave error of record and there is total non-
application of mind in recording the aforesaid findings. From the
record, it is evidently clear that the inquiry against these
respondents were initiated by the Army Headquarters, Director of
Military Intelligence. The file traveled from Chief of the Army Staff
to Ministry of Defence with the strong recommendation to terminate the
services of the respondents in the interest of security of the State
as there was some material to show that these officers were involved
in espionage cases. The recommendation for termination of their
services up to the Defence Ministry was finally approved by the Prime
Minister who also happened to be the Defence Minister of India at that
time. The file was then placed before the President of India who in
exercise of the constitutional power terminated the services of these
officers.
49. The link file further reveals that confessional statements of Captain
Rana and other officers were also recorded and strong prima facie case
was found relating to the involvement of these officers in espionage
activities and sharing information with the Pakistani intruders.
50. On assessing the materials contained in link file and the notings
showing the suggestions and recommendations up to the level of
defence ministry and the Prime Minister, it cannot be held that the
impugned order of termination of services have been passed without any
material available on record. There is no dispute that order of
termination passed against the Army personnel in exercise of ‘pleasure
doctrine’, is subject to judicial review, but while exercising
judicial review, this court cannot substitute its own conclusion on
the basis of materials on record. The Court exercising the power of
judicial review has certain limitations, particularly in the cases of
this nature. The safety and security of the nation is above
all/everything. When the President in exercise of its constitutional
power terminates the services of the Army officers, whose tenure of
services are at the pleasure of the President and such termination is
based on materials on record, then this court in exercise of powers of
judicial review should be slow in interfering with such pleasure of
President exercising constitutional power. In a constitutional set
up, when office is held during the pleasure of the President, it means
that the officer can be removed by the Authority on whose pleasure he
holds office without assigning any reason. The Authority is not
obliged to assign any reason or disclose any cause for the removal.
51. Thus, it is not a case where the decisions to terminate the services
of these officers were taken under the ‘pleasure doctrine’ without any
material against the officers. On the contrary, as noticed above,
charges were leveled that these officers were involved in certain
espionage activities.
52. In the instant case, on perusal of the link file it is further
revealed that detailed investigation was conducted and all evidence
recorded were examined by the Intelligence Department and finally the
Authority came to the finding that retention of these officers were
not expedient in the interest and security of the State. In our view,
sufficiency of ground cannot be questioned, particularly in a case
where termination order is issued by the President under the pleasure
doctrine.
53. A Constitution Bench of this Court in the case of the State of
Rajasthan & Ors. vs. Union of India & Ors. 1977 (3) SCC 592, while
considering a constitutional power of the President under Article 356
of the Constitution observed:-
“81. A challenge to the exercise of power to issue a
proclamation under Article 352 of the Constitution would be even
more difficult to entertain than to one under Article 356(1) as
all these considerations would then arise which Courts take into
account when the Executive, which alone can have all the
necessary information and means to judge such an issue, tells
Courts that the nation is faced with a grave national emergency
during which its very existence or stability may be at stake.
That was the principle which governed the decision of the House
of Lords in Liversidge v. Anderson. The principle is summed up
in the salutary maxim: Salus Populi Supreme Lex. And it was that
principle which this Court, deprived of the power to examine or
question any materials on which such declarations may be based,
acted in Additional District Magistrate, Jabalpur v. Shivakant
Shukla We need not go so far as that when we have before us only
a proclamation under Article 356(1).
xxxxxxxx
xxxxxxxx
87. Courts have consistently held issues raising questions of
mere sufficiency of grounds of executive action, such as the one
under Article 356(1) no doubt is to be non-justiciable. The
amended Article 356(5) of the Constitution indicates that the
Constitution-makers did not want such an issue raising a mere
question of sufficiency of grounds to be justiciable. To the
same effect are the provisions contained in Articles 352(5),
360(5). Similarly, Articles 123(4), 213(4), 239 B(4) bar the
jurisdiction of courts to examine matters which lie within the
executive discretion. Such discretion is governed by a large
element of policy which is not amenable to the jurisdiction of
courts except in cases of patent or indubitable malafides or
excess of power. Its exercise rests on materials which are not
examinable by courts. Indeed, it is difficult to imagine how
the grounds of
action under Article 356(1) could be examined when Article 74(2)
lays down that “the question whether any, and if so, what advice
was tendered by the Ministers to the President, shall not be
inquired into in any court”.
54. In order to appreciate the application of constitutional provisions
in respect of defence services, it would be appropriate to quote
Articles 309, 310 and 311 of the Constitution. These articles read as
under:-
“Article 309:- Recruitment and conditions of service of
persons serving the Union or a State Subject to the provisions
of this Constitution, Acts of the appropriate Legislature may
regulate the recruitment, and conditions of service of persons
appointed, to public services and posts in connection with the
affairs of the Union or of any State: Provided that it shall be
competent for the President or such person as he may direct in
the case of services and posts in connection with the affairs of
the Union, and for the Governor of a State or such person as he
may direct in the case of services and posts in connection with
the affairs of the State, to make rules regulating the
recruitment, and the conditions of service of persons appointed,
to such services and posts until provision in that behalf is
made by or under an Act of the appropriate Legislature under
this article, and any rules so made shall have effect subject to
the provisions of any such Act.”
Article 310:- Tenure of office of persons serving the Union or a
State
(1) Except as expressly provided by this Constitution, every
person who is a member of a defence service or of a civil
service of the Union or of an all India service or holds any
post connected with defence or any civil post under the Union,
holds office during the pleasure of the President, and every
person who is a member of a civil service of a State or holds
any civil post under a State holds office during the pleasure of
the Governor of the State.
(2) Notwithstanding that a person holding a civil post under the
Union or a State holds office during the pleasure of the
President or, as the case may be, of the Governor of the State,
any contract under which a person, not being a member of a
defence service or of an all India service or of a civil service
of the Union or a State, is appointed under this Constitution to
hold such a post may, if the President or the Governor as the
case may be, deems it necessary in order to secure the services
of a person having special qualifications, provide for the
payment to him of compensation, if before the expiration of an
agreed period, that post is abolished or he is, for reasons not
connected with any misconduct on his part, required to vacate
that post.”
Article 311:- Dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a State
(1) No person who is a member of a civil service of the Union or
an all India service or a civil service of a State or holds a
civil post under the Union or a State shall be dismissed or
removed by a authority subordinate to that by which he was
appointed
(2) No such person as aforesaid shall be dismissed or removed or
reduced in rank except after an inquiry in which he has been
informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges Provided
that where it is proposed after such inquiry, to impose upon him
any such penalty, such penalty may be imposed on the basis of
the evidence adduced during such inquiry and it shall not be
necessary to give such person any opportunity of making
representation on the penalty proposed: Provided further that
this clause shall not apply
(a) where a person is dismissed or removed or reduced in rank on
the ground of conduct which has led to his conviction on a
criminal charge; or
(b) where the authority empowered to dismiss or remove a person
or to reduce him in rank ins satisfied that for some reason, to
be recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is
satisfied that in the interest of the security of the State, it
is not expedient to hold such inquiry;
(3) If, in respect of any such person as aforesaid, a question
arises whether it is reasonably practicable to hold such inquiry
as is referred to in clause (2), the decision thereon of the
authority empowered to dismiss or remove such person or to
reduce him in rank shall be final.”
55. Article 309 empowers the appropriate legislature to regulate the
recruitment and conditions of services of persons appointed in public
services and posts in connection with the affairs of the Union or the
State. But Article 309 is subject to the provisions of the
Constitution. Hence, the Rules and Regulations made relating to the
conditions of service are subject to Articles 310 and 311 of the
Constitution. The Proviso to Article 309 confers powers upon the
President in case of services and posts in connection with the affairs
of the Union and upon the Governor of a State in connection with the
services and posts connected with the affairs of the State to make
rules regulating the recruitment and the conditions of services of the
persons appointed. The service condition shall be regulated according
to such rules.
56. Article 310 provides that every person, who is a member of the defence
service or of a civil service of the Union or All India Service, or
any civil or defence force shall hold such posts during the pleasure
of the President. Similarly, every person who is a Member of the
Civil Services of a State or holds any civil post under a State, holds
office during the pleasure of the Governor of the State. It is worth
to mention here that the opening word of Article 310 “Except as
expressly provided by this Constitution” makes it clear that a
Government servant holds the office during the pleasure of the
President or the Governor except as expressly provided by the
Constitution.
57. From bare perusal of the provisions contained in Article 311 of the
Constitution, it is manifestly clear that clauses (i) and (ii) of
Article 311 impose restrictions upon the exercise of power by the
President or the Governor of the State of his pleasure under Article
310 (1) of the Constitution. Article 311 makes it clear that any
person who is a member of civil services of the Union or the State or
holds civil posts under the Union or a State shall not be removed or
dismissed from service by an authority subordinate to that by which he
was appointed. Further, clause (ii) of Article 311 mandates that such
removal or dismissal or reduction in rank of the members of the civil
services of the Union or the State shall be only after giving
reasonable opportunity of hearing in respect of the charges leveled
against him. However, proviso to Article 311 (2) makes it clear that
this clause shall not apply inter-alia where the President or the
Governor, as the case may be, is satisfied that in the interest of the
security of the State it is not expedient to hold such enquiry.
58. The expression “except as otherwise provided in the Constitution” as
contained in Article 310 (1) means this Article is subject only to the
express provision made in the Constitution. No provision in the
statute can curtail the provisions of Article 310 of the Constitution.
At this juncture, I would like to refer Sections 18 and 19 of the
Army Act as under:-
“18. Tenure of service under the Act – Every person subject to
this Act shall hold office during the pleasure of the President.
19. Termination of service by Central Government. Subject to the
provisions of this Act and the rules and regulations made there
under the Central Government may dismiss, or remove from the
service, any person subject to this Act.
59. The aforesaid two Sections i.e. 18 and 19 are distinct and apply in
two different stages. Section 18 speaks about the absolute discretion
of the President exercising pleasure doctrine. No provisions in the
Army Act curtail, control or limit the power contained in Article
310(1) of the Constitution. Article 309 enables the legislature or
executive to make any law, rule or regulation with regard to condition
of services without impinging upon the overriding power recognized
under Article 310 of the Constitution. A Constitution Bench of this
Court in State of Uttar Pradesh and others vs. Babu Ram Upadhayay,
(1961) 2 SCR 679, held that the Constitution practically incorporated
the provisions of Sections 240 and 241 of the Government of India Act,
1935 in Articles 309 and 310 of the Constitution. But the
Constitution has not made “the tenure of pleasure” subject to any law
made by the legislature. On the other hand, Article 309 is expressly
made subject to the provisions of Article 310 which provides for
pleasure doctrine. Hence, it can safely be concluded that the Army
Act cannot in any way override or stand higher than Constitutional
provisions contained in Article 309 and consequently no provision of
the Army Act could cut down the pleasure tenure in Article 310 of the
Constitution. In another Constitution Bench Judgment of this Court in
Moti Ram Deka case (1964) 5 SCR, 683, their Lordships observed that
Article 309 cannot impair or affect the pleasure of the President
conferred by Article 310. There is no doubt, Article 309 has to be
read subject to Articles 310 and 311 and Article 310 has to be read
subject to Article 311.
60. In the case of B.P. Singhal (supra), a Constitution Bench of this
Court has elaborately discussed the application and object of the
doctrine of pleasure and considered most of the earlier decisions
rendered by this Court. Some of the paragraphs are worth to be quoted
herein below:-
“22. There is a distinction between the doctrine of pleasure
as it existed in a feudal set-up and the doctrine of pleasure
in a democracy governed by the rule of law. In a nineteenth
century feudal set-up unfettered power and discretion of the
Crown was not an alien concept. However, in a democracy
governed by rule of law, where arbitrariness in any form is
eschewed, no Government or authority has the right to do what
it pleases. The doctrine of pleasure does not mean a licence to
act arbitrarily, capriciously or whimsically. It is presumed
that discretionary powers conferred in absolute and unfettered
terms on any public authority will necessarily and obviously be
exercised reasonably and for the public good.
33. The doctrine of pleasure as originally envisaged in
England was a prerogative power which was unfettered. It meant
that the holder of an office under pleasure could be removed at
any time, without notice, without assigning cause, and without
there being a need for any cause. But where the rule of law
prevails, there is nothing like unfettered discretion or
unaccountable action. The degree of need for reason may vary.
The degree of scrutiny during judicial review may vary. But the
need for reason exists. As a result when the Constitution of
India provides that some offices will be held during the
pleasure of the President, without any express limitations or
restrictions, it should however necessarily be read as being
subject to the “fundamentals of constitutionalism”. Therefore
in a constitutional set-up, when an office is held during the
pleasure of any authority, and if no limitations or
restrictions are placed on the “at pleasure” doctrine, it means
that the holder of the office can be removed by the authority
at whose pleasure he holds office, at any time, without notice
and without assigning any cause.
34. The doctrine of pleasure, however, is not a licence to act
with unfettered discretion to act arbitrarily, whimsically, or
capriciously. It does not dispense with the need for a cause
for withdrawal of the pleasure. In other words, “at pleasure”
doctrine enables the removal of a person holding office at the
pleasure of an authority, summarily, without any obligation to
give any notice or hearing to the person removed, and without
any obligation to assign any reasons or disclose any cause for
the removal, or withdrawal of pleasure. The withdrawal of
pleasure cannot be at the sweet will, whim and fancy of the
authority, but can only be for valid reasons.”
61. In fact the ‘pleasure doctrine’ is a Constitutional necessity, for the
reasons that the difficulty in dismissing those servants whose
continuance in office is detrimental to the State would, in case
necessity arises to prove some offence to the satisfaction of the
court, be such as to seriously impede the working of public service.
62. There is no dispute with regard to the legal proposition that
illegality, irrationality and procedural non-compliance are grounds on
which judicial review is permissible. But the question is as to the
ambit of judicial review. This court in Civil Appeal filed by the
respondents challenging the order of termination passed under Section
18 of the Army Act observed that the order of termination can be
challenged only on the ground of malafide. It was further observed
that it is for the person alleging malafide to make out a prima facie
case. For better appreciation, the order passed by this Court is
quoted herein below.
“1. Special leave granted.
2. Heard both sides. According to us, all that the impugned
judgment holds is that an order passed under Section 18 of the
Army Act can be challenged on the ground of malafides. This
statement of law is unexceptional. However, it is for the
person who challenges it on the ground of malafides, to make out
a prima facie case in that behalf. It is only if he discharges
the said burden, that the Government is called upon to show that
it is not passed in the malafide exercise of its powers. While
doing so, the Government is not precluded from claiming the
privilege in respect of the material which may be in its
possession and on the basis of which the order is passed. The
Government may also choose to show the material only to the
court. With regard to the pleadings in respect of the challenge
to the order on the ground of malafides, no particular formula
can be laid down. The pleadings will depend upon the facts of
each case.
3. The appellants are permitted to withdraw from the appeal-memo,
pp. 221 to 232 which according to the learned Solicitor General
have been annexed to the memo inadvertently.
4. The appeals are disposed of accordingly with no order as to
costs.”
63. The Full Bench of the Delhi High Court while answering the reference
has observed in paragraphs 37 and 38 which is quoted hereunder:-
“37. Undoubtedly, the power under Section 18 cannot be
ordinarily invoked for dealing with cases of misconduct and the
other provisions in the Army Act dealing with the various kinds
of misconduct have to be invoked for dealing with such cases.
This power under Section 18 must be used sparingly only when it
is expedient to deal with such cases under the other provisions
of the Army Act. In view of the sensitive nature of cases
involving security of State that may come up in the case of
armed forces it cannot be said that in no case of misconduct
section 18 can be invoked. There may be cases where security of
State is involved and it may not be expedient to continue with
the inquiry provided under the Army Act for dealing with
misconduct. It appears that it is specifically for this reason
that section 18 has been incorporated in the Army Act despite
the fact that Article 310 of the Constitution already provided
that tenure of an Army personnel would be at the pleasure of the
President. This is a power given to the Supreme Commander of the
Armed Forces, i.e. the President of India to be invoked in such
cases where inquiry in other form is not advisable and is
inexpedient. This power is similar to second proviso (a), (b) &
(c) of Article 311 (2) which provides for dispensing with the
inquiry in certain cases even in the case of civil service. The
safeguard provided for a government servant by clause (2) of
Article 311 is taken away when second proviso to Article 311(2)
becomes applicable. The Supreme Court in Tulsi Ram Patel's case
(supra) observed that "the second proviso has been mentioned in
the Constitution as a matter of public policy and in public
interest for public good." The Supreme Court further observed
that much as it may seem harsh and oppressive to a government
servant, the court must repel the temptation to be carried away
by feelings of commiseration and sympathy in such cases.
Therefore, even if an order under Section 18 for removing a
defense personnel for misconduct is passed if it is found that
there were sufficient reasons for resorting to Section 18, the
same would not be open to challenge on merits. The Supreme Court
in Chief of Army Staff & Anr. v. Major Dharam Pal Kukrety, 1985
CriLJ 913, has held that even after Court Martial proceedings
had been concluded, the finding of the general court martial
having not been confirmed by the Chief of Army Staff, further
retention of the Army personnel being undesirable, the Chief of
Army Staff could resort to Rule 14, indicating thereby that even
after resorting to court martial proceedings if it is found
inexpedient to continue with the Court Martial proceedings it
was open to resort to proceedings under Section 19 of the Army
Act. The Supreme Court observed:
"The crucial question, therefore, is whether the Central
Government or the Chief of the Army Staff can have resort
to Rule 14 of the Army Rules. Though it is open to the
Central Government or the Chief of the Army Staff to have
recourse to that rule in the first instance without
directing trial by a court-martial of the concerned
officer, there is no provision in the Army Act or in Rule
14 or any of the other rules of the Army Rules which
prohibits the Central Government or the Chief of the Army
Staff from resorting in such a case to Rule 14. Can it,
however, be said that in such a case a trial by a court-
martial is inexpedient or impracticable? The Shorter Oxford
English Dictionary, Third Edition, defines the word
'inexpedient' as meaning "not expedient; disadvantageous in
the circumstances, inadvisable, impolite". The same
dictionary defines 'expedient' inter alias as meaning
"advantageous; fit, proper, or suitable to the
circumstances of the case". Webster's Third New
International Dictionary also defines the term 'expedient'
inter alias as meaning 'characterized by suitability,
practicality, and efficiency in achieving a particular end;
fit, proper or advantageous under the circumstances."
38. That being the position even after resorting to court
martial proceedings if it is found inexpedient to continue with
the same it is always open to the respondent to resort to either
section 18 or 19 of the Army Act.”
64. Indisputably, defence personnel fall under the category where
President has absolute pleasure to discontinue the services. Further
in our considered opinion as far as security is concerned, the
safeguard available to civil servants under Article 311 is not
available to defence personnel as judicial review is very limited. In
cases where continuance of Army officers in service is not practicable
for security purposes and there is loss of confidence and potential
risk to the security issue then such officers can be removed under the
pleasure doctrine. As a matter of fact, Section 18 of the Army Act is
in consonance with the constitutional powers conferred on the
President empowering the President to terminate the services on the
basis of material brought to his notice. In such cases, the Army
officers are not entitled to claim an opportunity of hearing. In our
considered opinion the pleasure doctrine can be invoked by the
President at any stage of enquiry on being satisfied that continuance
of any officer is not in the interest of and security of the State. It
is therefore not a camouflage as urged by the respondents.
65. The next question that arises for consideration is as to whether the
order of dismissal of the earlier writ petitions and confirmation of
the same by this court amounts to “Doctrine of Merger” and operates as
res judicata against the present appeals. As discussed above, the
services of the present respondents along with other permanent
commissioned officers of the Indian Army were terminated, since they
were found suspected to be involved in espionage activities.
Aggrieved by the termination order, the present respondents, except
Major R.K. Midha and Major N.R. Ajwani, filed writ petitions being
C.W.P. Nos. 418, 419, 421, 424 and 425 of 1980 before the Delhi High
Court. These respondents challenged the said termination order as
being illegal and malafide. The High Court vide order dated 21.4.1980
dismissed the writ petitions. The Order dated 21.4.1980 reads as
under:-
“Dismissal from service is under Section 18 of the Army
act which is complimentary to Article 310 of the
Constitution. This means that the Officer held the tenure
during the pleasure of the President. It has been contended
that it was not in accordance with the provisions of the
Act and that due procedure for dismissal for misconduct has
not been followed. The impugned order does not say whether
the dismissal is for misconduct or otherwise. It only sets
out the pleasure doctrine. In this view of the matter, no
case made out for interference. Dismissed.”
66. Respondents then preferred special leave petitions against the
aforesaid order dated 21.4.1980 being SLP Nos. 7225 and 7233 of 1980.
A three-Judge Bench of this Court dismissed the special leave petition
by order dated 1.9.1980. In the year 1982, the show cause notices
dated 10.5.1982 were issued to the officers whose services were
terminated informing them that their services were not considered
satisfactory by the Pensionary Authority and, therefore, why not 5% of
the gratuity or pension be deducted. On receipt of the said show
cause notices, eight of the officers, whose services were terminated
initiated the second round of litigation by filing writ petitions
being C.W.P Nos. 1643-1646 of 1982, 1777 of 1982, 804 of 1982, 1666 of
1982 praying not only to quash the show cause notices, but also to
quash the order of termination of their services. All those writ
petitions were finally heard and came to be dismissed by the Delhi
High Court vide judgment dated 22.3.1985. Aggrieved by the said
order, the respondents filed Letters Patent Appeal before the Delhi
High Court. The Division Bench of the High Court after hearing the
appeal formulated questions of law and referred the same to the Full
Bench by order dated 15.5.1991. The question of law framed by the
Division Bench was “whether the order of termination passed by and in
the name of President under Section 18 of the Army Act read with
Article 310 of the Constitution invoking doctrine of pleasure of the
President be challenged on the ground that it is camouflage and as
such is violative of principles of natural justice and the fundamental
rights guaranteed under Article 14 of the Constitution?”.
67. From the above, it is clear that the Union of India has been
consistently contesting these petitions and this Court has found
substance in the argument of the appellants that the High Court while
delivering the judgment dated 21.12.2000 overlooked this important
legal aspect of finality coupled with the doctrine of res judicata.
In our considered opinion, this aspect cannot be ignored and the issue
of fact cannot be re-opened in the instant case as well as has been
done under the impugned judgment by relying on certain material which
the High Court described to have been fraudulently withheld from the
courts. In our opinion, fraud is not a term or ornament nor can it be
presumed to exist on the basis of a mere inference on some alleged
material that is stated to have been discovered later on. The
discovery of a reinvestigated fact could have been a ground of review
in the same proceedings, but the same cannot be in our opinion made
the basis for re-opening the issue through a fresh round of
litigation. A fresh writ petition or Letters Patent Appeal which
is in continuation of a writ petition cannot be filed
collaterally to set aside the judgment of the same High Court rendered
in earlier round of litigation upholding the termination order. In
our view, the High Court has committed a manifest error by not
lawfully defining the scope of the fresh round of litigation on the
principles of res judicata and doctrine of finality. To establish
fraud, it is the material available which may lead to the conclusion
that the failure to produce the material was deliberate or suppressed
or even otherwise occasioned a failure of justice. This also, can be
attempted if legally permissible only in the said proceedings and not
in a collateral challenge raised after the matter has been finally
decided in the first round of litigation. It is to be noticed that the
judgment which had become final in 1980 also included writ petition
no.418 of 1980 filed by the respondent S.P. Sharma. Once, this Court
had put a seal to the said litigation vide judgment dated 1.9.1980
then a second round of litigation by the same respondents including
S.P. Sharma in writ petition no. 1643 of 1982 was misplaced.
68. The very genesis of an identical challenge relating to the same
proceedings of termination on the pretext of a 5% cut in terminal
benefits was impermissible apart from the attraction of the principle
of merger. This aspect of finality, therefore, cannot be disturbed
through a collateral challenge.
69. In Naresh Shridhar Mirajkar vs. State of Maharashtra & Anr. AIR 1967 SC
1, this Court by a majority decision laid down the law that when a
Judge deals with the matter brought before him for his adjudication,
he first decides the questions of fact on which the parties are at
issue, and then applies the relevant law to the said facts. Whether
the findings of fact recorded by the Judge are right or wrong, and
whether the conclusion of law drawn by him suffers from any infirmity,
can be considered and decided if the party aggrieved by the decision
of the Judge takes up the matter before the appellate court.
70. A decision rendered by a competent court cannot be challenged in
collateral proceedings for the reason that if it is permitted to do so
there would be "confusion and chaos and the finality of proceedings
would cease to have any meaning".
71. In the case of Mohd. Aslam vs. Union of India, AIR 1996 SC 1611, a
writ petition under Article 32 of the Constitution was filed seeking
reconsideration of the judgment rendered by this Court on the ground
that the said judgment is incorrect. Rejecting the prayer, this Court
held that Article 32 of the Constitution is not available to assail
the correctness of the decision on merit or to claim its
reconsideration.
72. In the case of Babu Singh Bains etc. versus Union of India and others
etc., AIR 1997 SC 116, this Court reiterated the settled principal of
law that once an order passed on merit by this Court exercising the
power under Article 136 of the Constitution has become final no writ
petition under Article 32 of the Constitution on the self-same issue
is maintainable. The principle of constructive res judicata stands
fast in his way in his way to raise the same contention once over.
73. In Khoday Distilleries Limited & Anr. vs. The Registrar General,
Supreme Court of India, (1996) 3 SCC 114, this Court re-iterated the
view as under:
"In a case like the present, where in substance the challenge is
to the correctness of a decision on merits after it has become
final, there can be no question of invoking Article 32 of the
Constitution to claim reconsideration of the decision on the
basis of its effect in accordance with law. Frequent resort to
the decision in Antulay (AIR 1988 SC 1531) in such situations is
wholly misconceived and impels us to emphasis this fact."
74. In M. Nagabhushana vs. State of Karnataka & Ors., AIR 2011 SC 1113,
this Court held that doctrine of res-judicata was not a technical
doctrine but a fundamental principle which sustains the rule of law in
ensuring finality in litigation. The main object of the doctrine is to
promote a fair administration of justice and to prevent abuse of
process of the court on the issues which have become final between the
parties. The doctrine was based on two age old principles, namely,
'interest reipublicae ut sit finis litium' which means that it is in
the interest of the State that there should be an end to litigation
and the other principle is 'nemo debet bis vexari si constat curiae
quod sit pro una et eadem causa' meaning thereby that no one ought to
be vexed twice in a litigation if it appears to the Court that it is
for one and the same cause.
75. Thus, the principle of finality of litigation is based on a sound
firm principle of public policy. In the absence of such a principle
great oppression might result under the colour and pretence of law
inasmuch as there will be no end to litigation. The doctrine of res-
judicata has been evolved to prevent such an anarchy.
76. In a country governed by the rule of law, finality of judgment is
absolutely imperative and great sanctity is attached to the finality
of the judgment and it is not permissible for the parties to reopen
the concluded judgments of the court as it would not only tantamount
to merely an abuse of the process of the court but would have far
reaching adverse affect on the administration of justice. It would
also nullify the doctrine of stare decisis a well established valuable
principle of precedent which cannot be departed from unless there are
compelling circumstances to do so. The judgments of the court and
particularly the Apex Court of a country cannot and should not be
unsettled lightly.
77. Precedent keeps the law predictable and the law declared by this
Court, being the law of the land, is binding on all courts/tribunals
and authorities in India in view of Article 141 of the Constitution.
The judicial system "only works if someone is allowed to have the last
word" and the last word so spoken is accepted and religiously
followed. The doctrine of stare decisis promotes a certainty and
consistency in judicial decisions and this helps in the development of
the law. Besides providing guidelines for individuals as to what would
be the consequences if he chooses the legal action, the doctrine
promotes confidence of the people in the system of the judicial
administration. Even otherwise it is an imperative necessity to avoid
uncertainty, confusion. Judicial propriety and decorum demand that the
law laid down by the highest Court of the land must be given effect
to.
78. In Rupa Ashok Hurra v. Ashok Hurra & Anr., AIR 2002 SC 1771, this
Court dealt with the issue and held that reconsideration of a judgment
of this Court which has attained finality is not normally permissible.
A decision upon a question of law rendered by this Court was
conclusive and would bind the court in subsequent cases. The court
cannot sit in appeal against its own judgment.
79. In Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater
Bombay, AIR 1974 SC 2009, this Court held as under:
"At the same time, it has to be borne in mind that
certainty and continuity are essential ingredients of the
rule of law. Certainty in law would be considerably eroded
and suffer a serious setback if the highest court of the
land readily overrules the view expressed by it in earlier
cases, even though that view has held the field for a number
of years. In quite a number of cases which come up before
this Court, two views are possible, and simply because the
Court considers that the view not taken by the Court in the
earlier case was a better view of the matter would not
justify' the overruling of the view. The law laid down by
this Court is binding upon all courts in the country under
Article 141 of the Constitution, and numerous cases all over
the country are decided in accordance with the view taken by
this Court. Many people arrange their affairs and large
number of transactions also take place on the faith of the
correctness of the view taken by this Court. It would create
uncertainty, instability and confusion if the law propounded
by this Court on the basis of which numerous cases have been
decided and many transactions have taken place is held to be
not the correct law. "
Thus, in view of above, it can be held that doctrine of finality has
to be applied in a strict legal sense.
80. While dealing with the issue this court in Ambika Prasad Mishra v.
State of U.P. & Anr., AIR 1980 SC 1762, held as under:
"6. It is wise to remember that fatal flaws silenced by earlier
rulings cannot survive after death because a decision does
not lose its authority 'merely because it was badly argued,
inadequately considered and fallaciously reasoned'".
81. The view has been expressed by a three-Judge Bench of this Court in
these very proceedings while dismissing the special leave petitions of
Subhash Juneja and Harish Lal Singh vide order dated 23.4.2003. This
court applied the doctrine of finality of judgment and res-judicata and
refused to reopen these very proceedings.
82. Mrs. Kiran Suri, learned counsel appearing for the respondent, put
heavy reliance on a decision of this Court in the case of Mathura
Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jeejeebhoy, (1970)1 SCC
613, for the proposition that question relating to the jurisdiction of
a court cannot be deemed to have been finally determined by an
erroneous decision of the court. Further by an erroneous decision if
the court resumes jurisdiction which it does not possess under the
Statute, the question cannot operate as res judicata between the same
parties whether the cause of action in the subsequent litigation is
same or otherwise. In our opinion, the aforesaid decision is of no
help to the respondent for the simple reason that the facts and the law
involved in the instant case and the earlier round of litigation are
the same. In para 5 of the aforesaid judgment, this Court has laid
down the principle, which reads as under:-
“5. But the doctrine of res judicata belongs to the domain of
procedure: it cannot be exalted to the status of a legislative
direction between the parties so as to determine the question
relating to the interpretation of enactment affecting the
jurisdiction of a Court finally between them, even though no
question of fact or mixed question of law and fact and relating
to the right in dispute between the parties has been determined
thereby. A decision of a competent Court on a matter in issue
may be res judicata in another proceeding between the same
parties: the “matter in issue” may be an issue of fact, an issue
of law, or one of mixed law and fact. An issue of fact or an
issue of mixed law and fact decided by a competent Court is
finally determined between the parties and cannot be re-opened
between them in another proceeding. The previous decision on a
matter in issue alone is res judicata: the reasons for the
decision are not res judicata. A matter in issue between the
parties is the right claimed by one party and denied by the
other, and the claim of right from its very nature depends upon
proof of facts and application of the relevant law thereto. A
pure question of law unrelated to facts which give rise to a
right, cannot be deemed to be a matter in issue. When it is said
that a previous decision is res judicata, it is meant that the
right claimed has been adjudicated upon and cannot again be
placed in contest between the same parties. A previous decision
of a competent Court on facts which are the foundation of the
right and the relevant law applicable to the determination of
the transaction which is the source of the right is res
judicata. A previous decision on a matter in issue is a
composite decision: the decision on law cannot be dissociated
from the decision on facts on which the right is founded. A
decision on an issue of law will be as res judicata in a
subsequent proceeding between the same parties, if the cause of
action of the subsequent proceeding be the same as in the
previous proceeding, but not when the cause of action is
different, nor when the law has since the earlier decision been
altered by a competent authority, nor when the decision relates
to the jurisdiction of the Court to try the earlier proceeding,
nor when the earlier decision declares valid a transaction which
is prohibited by law.
83. In the case arising out of these very proceedings reported in Union of
India & Ors. v. Ranbir Singh Rathaur & Ors., (2006) 11 SCC 696, this
Court held:
a) That review of the earlier orders passed by this court was
"impermissible": approach of the High Court of reopening the case
was "erroneous"; the issue of maintainability of the petitions was
of paramount importance:
b) The finding recorded by the High Court that the entire record was
not produced by the Union of India was not factually correct;
c) To say that "justice stood at the higher pedestal" then the
finality of litigation was not an answer enabling the court to
reopen a finally decided case;
(d) Persons behind the false implication were not impleaded as
parties; and
(e) Newspaper reports/statement made by any officer could not be
considered as evidence.
84. Violation of Fundamental Rights guaranteed under the Constitution have
to be protected, but at the same time, it is the duty of the court to
ensure that the decisions rendered by the court are not overturned
frequently, that too, when challenged collaterally as that was
directly affecting the basic structure of the Constitution
incorporating the power of judicial review of this Court. There is no
doubt that this Court has an extensive power to correct an error or to
review its decision but that cannot be done at the cost of doctrine of
finality. An issue of law can be overruled later on, but a question of
fact or, as in the present case, the dispute with regard to the
termination of services cannot be reopened once it has been finally
sealed in proceedings inter-se between the parties up to this Court
way back in 1980.
85. The term ‘dismissal’ in the original order was substituted by the
term ‘termination’ issuing the corrigendum to ratify a mistake
committed while issuing the order. In fact, the competent authority
had taken a decision only to terminate, and therefore it was found
necessary to issue the corrigendum. However, in view of such
substitution of word ‘dismissal’ by the term ‘termination’, does not
tilt the balance in favour of the respondents. More so, as pointed out
by Mr. Paras Kuhad, learned ASG that the proposed 5% deduction had
been withdrawn, and therefore the issue did not survive.
86. Analysing entire facts of the case and the material produced in Court
and upon an exhaustive consideration of the matter, we are of the
definite opinion that the power of pleasure exercised by the President
in terminating the services of the respondents does not suffer from
any illegality, bias or malafide or based on any other extraneous
ground, and the same cannot be challenged on the ground that it is a
camouflage. As discussed above, the onus lay on the respondent-
officers who alleged malafides. No credible evidence or material
produced before the Court impels us to come to the conclusion that the
order of termination is baseless or malafide.
87. For the reasons aforesaid, these appeals are allowed and the judgment
and order passed by the Delhi High Court is set aside. Ordered
accordingly. No costs.
…………………………….J.
(Dr. B.S.
Chauhan)
…………………………….J.
(J.
Chelameswar)
…………………………….J.
(M.Y.
Eqbal)
New Delhi,
March 6, 2014.
-----------------------
3
High Court allowed the appeals preferred by the
respondents and quashed not only their termination orders but also the
General Court Martial (hereinafter referred to as ‘GCM’) proceedings
held against Captain Ashok Kumar Rana and Captain R.S. Rathaur.=
Out of the 19 officers, 3 officers were tried by GCM, two were
convicted, namely, Captain Ranbir Singh Rathaur and Captain A.K. Rana,
and one was acquitted. Captain Ranbir Singh Rathaur and Captain A.K.
Rana were sentenced to RI for 14 years each and were cashiered. Against
13 officers, disciplinary actions were initiated. However, a decision
was taken not to try them and an administrative order under Section 18
of the Army Act, 1950 (in short “the Army Act”) was passed terminating
their services.
3. The present appeals arise out of the order passed way back in 1980
terminating the services of the respondents herein which were brought
invoking the doctrine of pleasure as enshrined under Article 310 of the
Constitution of India, 1950 (hereinafter referred to as the
‘Constitution’) coupled with the powers to be exercised under Section
18 of the Army Act.
Initially, the orders of dismissal were passed on
11.1.1980, which were assailed in nine writ petitions that were
dismissed by the High Court of Delhi on 21.4.1980. The special leave
petitions against these writ petitions came to be dismissed by this
Court on 1.9.1980.
In the meanwhile, a corrigendum came to be issued, as a result whereof,
the orders of dismissal were described as orders of termination.
On
account of the substituted termination order, a decision for deducting
5% of the gratuity amount was taken, which was communicated afresh.=
One of the appeals, being LPA
No.116 of 1985, filed by one N.D. Sharma, was decided vide judgment
dated 19.8.1986 upholding the order of termination approving the
applicability of the doctrine of pleasure. However, at the same time,
the appeal was partly allowed in relation to the post-retiral benefits
keeping in view the provisions under the Army Act and Rules and it was
found that the proposed 5% cut-off was not in accordance with the
Act/Rules applicable therein.
Several LPAs were filed by other officers relying on the Division Bench
judgment extending the post-retiral benefits, and a plea for similar
relief was raised.
7. When these appeals came up for hearing, the Division Bench of the Delhi
High Court hearing the matter differed with the view on the issue of
the applicability of doctrine of pleasure and maintainability of the
writ petitions on the ground of malafides vide order dated 15.5.1991.
Consequently, this question of law was referred to be decided by a
larger bench.
The Full Bench so constituted to answer this reference held that an
order under Section 18 of the Army Act invoking the doctrine of
pleasure was subject to judicial review if it is assailed on
malafides. It was held that the onus lay on the petitioner/person
alleging malafides and to bring material on record to satisfy the court
in order to justify the interference. Aggrieved, the Union of India
filed the Special Leave Petition, which stood dismissed.=
In the case arising out of these very proceedings reported in Union of
India & Ors. v. Ranbir Singh Rathaur & Ors., (2006) 11 SCC 696, this
Court held:
a) That review of the earlier orders passed by this court was
"impermissible": approach of the High Court of reopening the case
was "erroneous"; the issue of maintainability of the petitions was
of paramount importance:
b) The finding recorded by the High Court that the entire record was
not produced by the Union of India was not factually correct;
c) To say that "justice stood at the higher pedestal" then the
finality of litigation was not an answer enabling the court to
reopen a finally decided case;
(d) Persons behind the false implication were not impleaded as
parties; and
(e) Newspaper reports/statement made by any officer could not be
considered as evidence.
84. Violation of Fundamental Rights guaranteed under the Constitution have
to be protected, but at the same time, it is the duty of the court to
ensure that the decisions rendered by the court are not overturned
frequently, that too, when challenged collaterally as that was
directly affecting the basic structure of the Constitution
incorporating the power of judicial review of this Court. There is no
doubt that this Court has an extensive power to correct an error or to
review its decision but that cannot be done at the cost of doctrine of
finality. An issue of law can be overruled later on, but a question of
fact or, as in the present case, the dispute with regard to the
termination of services cannot be reopened once it has been finally
sealed in proceedings inter-se between the parties up to this Court
way back in 1980.
85. The term ‘dismissal’ in the original order was substituted by the
term ‘termination’ issuing the corrigendum to ratify a mistake
committed while issuing the order. In fact, the competent authority
had taken a decision only to terminate, and therefore it was found
necessary to issue the corrigendum. However, in view of such
substitution of word ‘dismissal’ by the term ‘termination’, does not
tilt the balance in favour of the respondents. More so, as pointed out
by Mr. Paras Kuhad, learned ASG that the proposed 5% deduction had
been withdrawn, and therefore the issue did not survive.
86. Analysing entire facts of the case and the material produced in Court
and upon an exhaustive consideration of the matter, we are of the
definite opinion that the power of pleasure exercised by the President
in terminating the services of the respondents does not suffer from
any illegality, bias or malafide or based on any other extraneous
ground, and the same cannot be challenged on the ground that it is a
camouflage. As discussed above, the onus lay on the respondent-
officers who alleged malafides. No credible evidence or material
produced before the Court impels us to come to the conclusion that the
order of termination is baseless or malafide.
87. For the reasons aforesaid, these appeals are allowed and the judgment
and order passed by the Delhi High Court is set aside. Ordered
accordingly. No costs.
2014 (March. Part )judis.nic.in/supremecourt/filename=41300
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.2951-2957 OF 2001
UNION OF INDIA AND OTHERS … APPELLANT(S)
VERSUS
MAJOR S.P. SHARMA AND OTHERS … RESPONDENT(S)
JUDGMENT
M.Y. EQBAL, J.:
1. These appeals have been filed against the common judgment and order
dated 21.12.2000 passed by Delhi High Court in L.P.A. Nos. 4, 43, 139,
148 of 1987, 21 of 1988, 77 of 1993 and 86 of 1994. By the said
judgment, the High Court allowed the appeals preferred by the
respondents and quashed not only their termination orders but also the
General Court Martial (hereinafter referred to as ‘GCM’) proceedings
held against Captain Ashok Kumar Rana and Captain R.S. Rathaur.
2. Before we proceed with the matter, it would be appropriate to highlight
the factual background and brief history of the case.
In February 1971, Gunner Sarwan Dass was cultivated by Pakistan
Intelligence. In 1972 Captain Ghalwat and Gunner Sarwan Dass crossed
the international border. In 1973 Captain Ghalwat and Gunner Sarwan
Dass were posted in Babina (M.P.). In 1974 Gunner Aya Singh was
cultivated by Gunner Sarwan Dass for Pak Intelligence. Captain Nagial
was then cultivated by Aya Singh for Pak Intelligence. In 1975 for the
first time the espionage racket came to be noticed. Aya Singh and
Sarwan Dass were arrested. In 1976-77 pursuant to the investigation,
three more jawans were arrested. They corroborated the involvement of
Sarwan Dass. Sarwan Dass and Aya Singh on further interrogation
disclosed the names of Captain Ghalwat and Captain Nagial. In 1976-77
Captain Ghalwat and Captain Nagial were tried by GCM and were
convicted. Ghalwat was cashiered and given 14 years’ RI. Nagial was
given 7 years’ RI and was also cashiered. In addition, 12 jawans were
tried and they were given RI of various descriptions and were dismissed
from services. Aya Singh and Sarwan Dass were also among the 12 jawans
tried and held guilty. Later in 1978 it was discovered that Aya Singh
was holding back certain relevant information relating to espionage
activities under certain alleged threat and pressure. Wife of Aya Singh
claimed to be killed. Reeling under the shock of the circumstances, he
made further disclosures wherein he named Captain Rathaur and Captain
A.K. Rana; disclosed that he had been receiving threats that if he
disclosed anything his wife would be killed. Accordingly, in 1978
Captain Rathaur and Captain A.K. Rana were interrogated. As a result,
42 army personnel i.e. 19 officers, 4 junior commissioned officers
(JCOs) and 19 other ranks (ORs), were arrested.
Out of the 19 officers, 3 officers were tried by GCM, two were
convicted, namely, Captain Ranbir Singh Rathaur and Captain A.K. Rana,
and one was acquitted. Captain Ranbir Singh Rathaur and Captain A.K.
Rana were sentenced to RI for 14 years each and were cashiered. Against
13 officers, disciplinary actions were initiated. However, a decision
was taken not to try them and an administrative order under Section 18
of the Army Act, 1950 (in short “the Army Act”) was passed terminating
their services.
3. The present appeals arise out of the order passed way back in 1980
terminating the services of the respondents herein which were brought
invoking the doctrine of pleasure as enshrined under Article 310 of the
Constitution of India, 1950 (hereinafter referred to as the
‘Constitution’) coupled with the powers to be exercised under Section
18 of the Army Act. Initially, the orders of dismissal were passed on
11.1.1980, which were assailed in nine writ petitions that were
dismissed by the High Court of Delhi on 21.4.1980. The special leave
petitions against these writ petitions came to be dismissed by this
Court on 1.9.1980.
4. In the meanwhile, a corrigendum came to be issued, as a result whereof,
the orders of dismissal were described as orders of termination. On
account of the substituted termination order, a decision for deducting
5% of the gratuity amount was taken, which was communicated afresh.
These orders made a fresh ground of challenge before a learned Single
Judge of the Delhi High Court. The learned Single Judge dismissed the
petition by a detailed judgment dated 22.3.1985. Simultaneously, one
Captain R.S. Rathaur had filed a Writ Petition No.1577 of 1985 under
Article 32 of the Constitution before this Court, which stood dismissed
refusing to re-open the issues already decided.
5. Against the order of the learned Single Judge dated 22.3.1985, several
Letters Patent Appeals were filed. One of the appeals, being LPA
No.116 of 1985, filed by one N.D. Sharma, was decided vide judgment
dated 19.8.1986 upholding the order of termination approving the
applicability of the doctrine of pleasure. However, at the same time,
the appeal was partly allowed in relation to the post-retiral benefits
keeping in view the provisions under the Army Act and Rules and it was
found that the proposed 5% cut-off was not in accordance with the
Act/Rules applicable therein.
6. Several LPAs were filed by other officers relying on the Division Bench
judgment extending the post-retiral benefits, and a plea for similar
relief was raised.
7. When these appeals came up for hearing, the Division Bench of the Delhi
High Court hearing the matter differed with the view on the issue of
the applicability of doctrine of pleasure and maintainability of the
writ petitions on the ground of malafides vide order dated 15.5.1991.
Consequently, this question of law was referred to be decided by a
larger bench.
8. The Full Bench so constituted to answer this reference held that an
order under Section 18 of the Army Act invoking the doctrine of
pleasure was subject to judicial review if it is assailed on
malafides. It was held that the onus lay on the petitioner/person
alleging malafides and to bring material on record to satisfy the court
in order to justify the interference. Aggrieved, the Union of India
filed the Special Leave Petition, which stood dismissed.
9. It appears that after the answer of reference, the pending appeals
were taken up for decision by the High Court. On account of the answer
given by the Full Bench, fresh petitions were filed by those officers
whose petitions had been dismissed earlier upto this Court as referred
to hereinabove, in 1980. Some writ petitioners, whose petitions had
been dismissed by learned Single Judge, filed Letters Patent Appeals
with applications for condonation of delay. Appeals were also filed
against those judgments that were given in the second round of
litigation proposing to refuse 5% of the terminal benefits referred to
hereinabove. These categories of petitions were described by the
Division Bench hearing the matter in its order dated 2.5.1995, as under
:-
“LPA 77/93 & CM 823/95
In these batch of cases, we find there are at least two LPAs
which are directed against the Judgments of dismissal of the
writ petitions holding that the particular issue cannot be gone
into in writ jurisdiction. Learned counsel for the appellants in
those two cases rely upon the Full Bench Judgment and the recent
Supreme Court Judgment to contend that the issue can be gone
into by the Court. They have also wanted us to call for certain
records from the respondents and in regard to those records,
respondents are claiming privilege and that is a matter to be
decided.
There is another group of cases in which fresh writ petitions
are filed on the ground that notwithstanding the dismissal of
the earlier writ petitions or dismissal of the S.L.Ps, fresh
writ petitions are maintainable inasmuch as it is only now that
the Full Bench and the Supreme Court have decided that the
particular issue can be gone into by the High Court. In that
batch of cases the question of res judicata falls for
consideration.
There is yet another group of cases where writ petitions were
dismissed by the learned Single Judges on the ground that the
Court cannot go into the issue and the LPAs were preferred with
application for condonation of delay with delay of more than 9
years.
There is yet another group of cases where writ petitions were
filed against some latter orders passed by the Government
imposing a cut of 5% from the pension and upon dismissal of the
writ petitions challenging the said orders, LPAs have been filed
and in those appeals the appellants want to take up the issue,
that the Court can go into the validity of the order of
dismissal order once again.
Inasmuch as there are four classes of cases, we are of the view
that first we should decide the batch where fresh writ petitions
are filed, and in case we hold that fresh writ petitions are
maintainable, then the question of going into the privilege
claimed by the respondents will have to be decided. If the fresh
writ petitions are held to be maintainable, then the batch
wherein appeals are filed with delay condonation applications
can also be taken up for consideration. In one case the question
of laches is to be decided whereas in another the question of
sufficient cause for condonation of delay fall for
consideration. In the matters challenging the orders imposing
cut in pension, it will be for the parties to watch the view the
court may take in other three batches mentioned above so that
they can pursue one or the other remedies which the Court will
be able to accept.
Therefore, we will first take up fresh writ petitions filed
after the passing of the full Court Judgment and the Supreme
Court Judgment.”
10. Thereafter two writ petitions that were filed afresh, namely, in the
case of Major Subhash Juneja and Harish Lal Singh, were heard
separately and dealt with the principle of res judicata and
constructive res judicata. The said writ petitions were held to be
barred by law vide judgment dated 8.3.1996. The other connected
petitions also appeared to have been dismissed as not maintainable by
another Division Bench vide order dated 7.9.1992.
11. The Letters Patent Appeals which were filed with applications for
condonation of delay and also against the judgment proposing 5% cut-off
in the terminal benefits were heard by another Division Bench that
reserved the judgment on 14.8.1998 by passing the following order:
"LPA Nos.4/87, 43/87, 139/87, 148/87, 21/88, 77/93, 86/94 and
C.W. Nos.3063/95, 4082/95:
Synopses have been placed on record. Mr. Tikku states that by
17.8.1998, photocopy of the relevant record will be made
available to Court. Originals have been shown to us.
Judgment reserved."
12. The Division Bench that went on to reserve the said judgment
delivered it after almost 3 years and allowed the appeals. Therein, it
was held that the proceedings initiated against the writ petitioners as
also against other officers, who were appellants in the other LPAs,
were vitiated as there was no material to support the impugned orders
of termination which were camouflaged and thus, the same were subject
to judicial review. Accordingly, vide judgment dated 21.12.2000, the
relief of consequential benefits was granted after setting aside the
order of termination. The relevant part thereof is extracted herein:
"On a consideration of all the facts and circumstances we are
of the view that there is no other conclusion possible except to
say that the orders which are the subject matter of the writ
petitions and in the Letters Patent Appeals are merely
camouflage and orders have been passed for extraneous reasons
under the cloak of innocuous form of orders of termination. To
give an air on verisimilitude the respondents had held the Court
Martial proceedings which are wholly void.
Accordingly, we declare that the proceedings initiated against
the petitioners in the two writ petitions are void in law and
the orders passed against the other officers, the appellants in
L.P.As. are vitiated being without any material and being
camouflage. Having dropped the idea not to conclude Court
Martial proceedings knowing fully well that the officers were
likely to be acquitted, without producing relevant record before
the concerned authority orders of termination were passed
flouting all norms. The appellants in the L.P.A's and the
petitioners in the two writ petitions are entitled to all the
consequential benefits. We also hereby declare that the orders
passed against the appellants in the L.P.As are void in law and
the conviction and sentence by the GCMs against the writ
petitioners are void in law. Consequently, the judgments of the
learned Single Judge which are subject matter in Latent Patent
Appeals are set aside and the writ petitions in those cases are
allowed and the Letters Patent Appeals stand allowed and the two
writ petitions also stand allowed. All the writ petitions stand
allowed to the above extent indicated and other reliefs prayed
for cannot be considered by this Court and it is for the law
makers to attend to the same. There shall be no order as to
costs."
13. Another relevant event in this journey of judicial conflict which is
worth mentioning is that two officers, namely, Subhash Juneja and
Harish Lal Singh, whose writ petitions had been dismissed on the ground
of constructive res judicata, filed special leave petitions that were
converted to Civil Appeal Nos. 1931 and 1932 of 1997 and were finally
dismissed by a three-Judge Bench of this Court vide order dated
23.4.2003, which is quoted as under:
"The grievance of the appellants that is sought to be agitated
in these appeals is already settled by an earlier judgment of
the Delhi High Court in a Writ Petition filed by the appellants
themselves. The appellants herein challenged the said judgment
by filing Special Leave Petitions and those Special Leave
Petitions having been dismissed by this Court, the contentions
raised by them have been finally decided against the appellants
herein.
The appellants are now trying to re-agitate those
issues because the High Court in some other case has taken a
different view. Mr. Yogeshwar Prasad, the learned senior counsel
appearing for the appellants states that these cases should be
heard along with the cases of Union of India which are pending
against the latter view of the High Court. We find no reason to
do so. The contention of the appellant raised was rightly
dismissed by the High Court in the impugned judgment by applying
the principles of constructive res judicata. The appeals are
accordingly dismissed."
(Emphasis added)
14. Thus, it can be seen from the narration of facts hereinabove that with
regard to some of the officers, who were involved in this very
incident, the evidence which had already been assessed by the High
Court, had been looked into and it was found that the doctrine of
pleasure had been upheld in the earlier round of litigation and,
therefore, the matter stood foreclosed and could not be reopened. The
adjudication, therefore, between the Union of India who is the present
appellant and the officers who were involved in the same set of
incidents had attained finality up to this Court. It was in this
background that the Union of India filed the appeals in the year 2001
against the judgment dated 21.12.2000 referred to hereinabove. The
judgment dated 21.12.2000 in relation to all the four sets of
litigations that have been referred to by the High Court in its order
dated 2.5.1995 is, therefore, extracted hereinabove.
15. The appeals filed by the Union of India, pending before this Court
against the judgment dated 21.12.2000, were split into two parts by the
order of this Court dated 14.2.2006, which is extracted herein:
"C.A. Nos.2949-2950/2001:
Arguments heard.
Judgment reserved.
The entire original record including the administrative receipts
be called for either by FAX or by telephonic message immediately
by the Registrar (Judicial).
C.A.Nos.2951-2957/2001:
De-linked.
These matters shall be heard separately. List after four
months."
16. Accordingly, the arguments were heard and judgment was reserved in the
matter arising out of the two writ petitions filed by Ranbir Singh
Rathaur and Ashok Kumar Rana alongwith which delinked seven LPAs
were also disposed of even though it was observed by this Court
that they arose out of the same incident. This Court vide
judgment dated 22.3.2006 in the case of Union of India & Ors. vs.
Ranbir Singh Rathaur & Ors., (2006) 11 SCC 696 reversed the judgment
of the High Court dated 21.12.2000 vis-a-vis the two writ petitions
and held as follows:
"On a bare reading of the High Court's order and the averments
in the writ petitions, one thing is crystal clear that there was
no definite allegation against any person who was responsible
for the so-called manipulation. It is also not clear as to who
were the parties in the writ petitions filed. In the grounds
indicated in the writ petitions it was stated that there is no
bar or impediment on the High Court reviewing the petitioner's
case as also connected cases to enquire into the validity of the
acts done against the writ petitioner. Therefore, it was an
accepted position that the writ petitioners wanted review of the
High Court's order, which is clearly impermissible. No ground
for seeking such review apparently was made out. In any event we
feel that the High Court's approach is clearly erroneous. The
present appellants in the counter-affidavit filed had raised a
preliminary objection as regards the maintainability of the writ
petitions and had requested the High Court to grant further
opportunity if the necessity so arises to file a detailed
counter-affidavit after the preliminary objections were decided.
The High Court in fact in one of the orders clearly indicated
that the preliminary objections were to be decided first. But
strangely it did not do so. It reserved the judgment and
delivered the final judgment after about three years. There is
also dispute as to whether the relevant documents were produced.
What baffles us is that in the High Court, records with original
documents were shown to it and the Bench wanted the copies to be
filed. In the impugned judgment the High Court proceeded on the
basis as if only a few pages of the files were shown. If that
was really the case, there was no necessity for the High Court
to direct the present appellants to file copies. If after
perusal of the documents the High Court felt that these were not
sufficient the same would have been stated. But that does not
appear to have been done. The High Court also had not discussed
as to how the matters which stood concluded could he reopened in
the manner done. No sufficient grounds have been even indicated
as to why the High Court felt it necessary to do so. To say that
though finality had been achieved, justice stood at a higher
pedestal is not an answer to the basic question as to whether
the High Court was competent to reopen the whole issue which had
become concluded. The persons whom the High Court felt were
responsible for alleged manipulation or persons behind false
implication were not impleaded as parties. Newspaper reports are
not to be considered as evidence. The authenticity of the
newspaper reports was not established by the writ petitioners.
Even otherwise, this could not have been done in a writ
petition, as disputed questions of fact were apparently
involved. The matters which the High Court found to have been
established were really not so. The conclusions were based on
untested materials, and the writ petitioners had not established
them by evidence. Since the High Court has not dealt with the
matter in the proper perspective we feel that it would be proper
for the High Court to rehear the matter. The High Court shall
first decide the preliminary objections raised by the present
appellants about the non-maintainability of the writ petitions.
Normally such a course is not to be adopted. But in view of the
peculiar facts involved, it would be the appropriate course to
be adopted in the present case. Therefore, we remit the matter
to the High Court for fresh hearing. We make it clear that
whatever we have observed should not be treated to be the
conclusive findings on the subject-matter of controversy. The
appeals are allowed without any order as to costs. Since the
matter is pending since long, we request the High Court to
dispose of the matter as early as practicable, preferably within
four months from the date of receipt of the judgment. No costs.
" (Emphasis added)
On remand, the High Court dismissed the writ petitions vide judgment dated
20.12.2007 and the same has been placed on record by the appellants.
So far these appeals are concerned, the High Court by the impugned common
order dated 21.12.2000, not only quashed the termination orders but also
court martial proceedings held against some of the officers.
The Division Bench of this Court, after hearing the counsel appearing for
the parties and legal contentions urged, formulated the following points
for consideration by a larger bench [Union of India vs. S.P. Sharma, (2013)
10 SCC 150]:-
“31. With reference to the aforesaid rival factual and legal
contentions urged, the following points would arise for
consideration in these appeals:
31.1. Whether the orders of termination passed by the first
appellant in absence of material evidence and improper exercise
of power by the first appellant amount to fraud being played on
the respondent officers and are vitiated in law on account of
legal malafides and legal malice?
31.2. Whether the order of dismissal of earlier writ proceedings
and confirming the same by this Court vide order dated 1-9-1980
in relation to the same respondent officers in C.As. Nos. 2951,
2954, 2955, 2956 and 2957 of 2001 amounts to doctrine of merger
and operates as res judicata against the present appeals?
31.3. Whether the exercise of doctrine of pleasure under Section
18 of the Army Act read with Article 310 of the Constitution by
the first appellant in the absence of any material evidence
against the respondent officers and non-production of the
relevant records/files of these officers render the orders of
termination as illegal and invalid?
31.4. Whether the order of termination is arbitrary, capricious,
unreasonable and violative of Articles 14, 16, 19 and 21 of the
Constitution of India?
31.5. Whether the impugned judgment and order of the High Court
is vitiated either on account of erroneous reasoning or error in
law and warrant interference by this Court?”
20. The learned Additional Solicitor General at the very outset submitted
that issues involving security of the State were extremely complex and
the issue related to the expediency and desirability of retaining
officers in the Army who had become security suspects. The instant
cases of the respondent officers were examined at various levels in the
Army Headquarters as also in the Central Government and the final
decision to exercise the power to pass an order of termination was
taken by it under Section 18 of the Army Act. Learned counsel relied
upon the judgment of this Court in B.P. Singhal vs. Union of India &
Ors. (2010) 6 SCC 331 and contended that the parameters that are
required to be taken into consideration for exercise of power under
Article 310 of the Constitution are varied. Several of these parameters
entail evaluation of issues relevant to the security of the State. The
factors that form the basis of exercise of power under Article 310 of
the Constitution cannot be said to be objective parameters that are
amenable to judicially manageable standards. The reasons that form the
basis of exercise of power under Article 310 can extend to varied
levels of subjective assessments and evaluations in entailing expert
knowledge as to issues of security of the State. In that view of the
matter it is submitted that exercise of power of judicial review would
accord great latitude to the bona fide evaluation made by the competent
authorities in the course of discharge of the duties. The correctness
of the opinion formed or the sufficiency of material forming the basis
of their decision to pass an order of termination would not be
subjected to judicial scrutiny of either the High Court or this Court.
Further, placing strong reliance upon B.P. Singhal case, (supra) it is
contended by the learned Additional Solicitor General that exercise of
power of judicial review under Article 310 is extremely narrow and is
limited to only one parameter, namely, violation of fundamentals of
constitutionalism. The standard of judicial review which applies to the
case of exercise of executive or statutory or quasi-judicial power
cannot be extended to the case of judicial review of constitutional
power under Article 310. Learned counsel submitted that the fact that
Article 311 does not apply to the case of officers/employees of armed
forces, the power under Article 309 also cannot be exercised for
limiting the ambit of Article 310. The Army Act is an enactment under
Article 309. The aforesaid legal principle has been followed
consistently in all subsequent decisions of this Court. In this
connection learned counsel relied upon the judgment of this Court in
Moti Ram Deka vs. North East Frontier Railways (1964) 5 SCR 683.
Further, the Constitution Bench of this Court in Ram Sarup vs. Union of
India, AIR 1965 SC 247 with reference to Article 33 of the
Constitution, has laid down limitations provided on the applicability
of fundamental rights guaranteed to the officers/employees of the Army
under Articles 14, 16 and 21 of the Constitution and under Section 21
of the Army Act. He has further contended that each of the provisions
of the Army Act also carries the sanction of Parliament against the
applicability of all other fundamental rights contained under Part III
of the Constitution to the extent to which the rights contained in the
fundamental rights are inconsistent with the provisions of the Army
Act. The aforesaid enunciation of law has again been followed
consistently by this Court in subsequent decisions.
21. The learned Additional Solicitor General further contended that in a
matter of civilian employees, Article 311 represents a limitation over
the absoluteness of pleasure doctrine contained in Article 310. In Moti
Ram Deka (supra) and in the subsequent cases, this Court laid down
that Article 311 introduces a twofold procedural safeguard in favour of
an employee/officer in relation to the exercise of pleasure doctrine.
However, Article 311 applies only in cases of punishment and not
otherwise. The availability of the safeguards provided for under
Article 311 is contingent upon and limited to cases where the power of
termination of services of an employee/officer is exercised by the
disciplinary authority by way of punishment. The applicability of
Article 311 of the Constitution being dependent on the factum of the
order of termination being in the nature of a punishment, judicial
review undertaken in case of civilian employees entails the necessity
for and the power of determining as to whether the order impugned is in
the nature of a punishment or not. The doctrine of “foundation”,
“camouflage” and the principles of judicial review, encompassing the
necessity and the power of determining, whether the order impugned is
by way of a punishment is thus a direct emanation and a logical
corollary of the nature of enquiry warranted when Article 311 applies
to a case.
22. Since the provisions of Article 311 of the Constitution admittedly do
not apply to these cases, it relates to the domain of civilian
employees/officers service jurisprudence, which is controlled by
Article 311, cannot be invoked in the case of employees/officers of
armed forces. Since the protection of Article 311 cannot be claimed in
the case of employees of armed forces, no enquiry as to whether the
order is by way of a punishment, which is the sine qua non for
applicability of Article 311, is warranted. The legal issue requires to
be considered by this Court in the context of the fact as to whether by
virtue of anything contained in the language of Article 310 or the
other provisions of the Constitution, the constitutional power under
Article 310 can be construed to be limited to cases of termination
simpliciter. It is contended on behalf of the appellants that neither
the language of Article 310 nor any other provision of the Constitution
warrants adoption of such a narrow construction. Further, the learned
Additional Solicitor General has contended that this Court has
consistently held that the ambit of the doctrine of pleasure, contained
under Article 310, is an absolute power, save to the extent provided
otherwise by an express provision of the Constitution. The only express
limitation on the power of Article 310 exists under the Constitution in
relation to the tenure of certain constitutional functionaries such as
the Hon’ble Judges of the High Court and the Supreme Court. He further
contends, placing reliance upon Moti Ram Deka (supra) that this Court
has laid down the legal principle; that the ambit of Article 310 is
circumscribed only by the provisions of Article 311 and that even
Article 309 does not circumscribe the said power. The conferment of
power upon the President of India under Article 310 is in absolute
terms. Therefore, there is no basis for suggesting that the power under
Article 310 ought to be construed as excluding the power to dismiss an
employee or officer for misconduct. The very fact that Article 310
makes the tenure subject to the absolute pleasure of the President
means that the President can exercise the said power for any reason and
without assigning any cause or reason and this is precisely what has
been laid down by this Court in B.P. Singhal (supra). He further
contends that the power under Article 310 also encompasses the power to
dismiss an employee or officer for misconduct and Article 311 is
inapplicable in respect of an employee or officer of the armed forces.
It is further submitted that in case of armed forces scrutiny of an
order passed under Article 310 would neither warrant an enquiry as to
the foundation of the order nor an enquiry as to whether the order is
in the nature of punishment. Therefore, he submits that the necessary
corollary thereof would be that the competent authority is also free to
abandon any statutory procedure at any stage and take resort to the
constitutional power under Article 310 by the President to terminate
the services of an employee/officer of the armed forces. The ambit of
such power cannot be circumscribed with reference to the concepts that
govern the exercise of the power in relation to civilian
employees/officers.
23. Learned Additional Solicitor General put reliance on Chief of Army
Staff vs. Major Dharam Pal Kukrety, (1985) 2 SCC 412 where this Court
has also upheld the competent authority’s power to switch over to its
power under Section 18 of the Army Act upon abandonment of the GCM
proceedings against its employees/officers. The authorities are
competent to take recourse to their statutory power under Section 19 in
a case where the court martial exercise initiated by them becomes
futile. It cannot be contended by the officer that where alternative
powers under the statute can be resorted to in such situations the
authority cannot resort to its constitutional power under Article 310
but pass an order of termination against the officer of the Army. Such
provision of the statutory power including Section 19 of the Army Act
can be said to be subject to the limitations of the scheme of the Army
Act. Power under Article 310, which is constitutional power, is wider
and certainly cannot be subjected to the constraints flowing from the
scheme of the Army Act. It is further contended that this Court has
examined the legality and validity of similar orders of termination in
exercise of power under Article 310 of the Constitution by the
President upholding the orders of termination passed in exercise of the
aforesaid constitutional statutory provisions.
24. Shri P.P. Rao, learned senior counsel appearing for respondent Major
S.P. Sharma, firstly brought to our notice the sequence of the events
happened so far as this respondent is concerned. According to the
learned counsel in spite of unblemished career and academic experience
Major Sharma was arrested in 1979 and was lodged in a cell and was
denied the basic facilities. The said respondent represented to the
Chief of Army Staff and Deputy Chief of Army Staff-GOC about the
inhuman treatment. However, in 1979 a charge report was handed over to
the respondent on 14.04.1979 for which he was arrested. It was alleged
by the respondent that the army authorities released false, defamatory
and fabricated press release stating that the respondent was the ring
leader of the group with 15 others and was spying for Pakistan, having
received huge sum in Indian currency for passing of information to
Pakistan about the Indian Army. A second charge report was handed over
to the respondent. Later on a summary of evidence was commenced on the
basis of false allegation.
Mr. Rao, then contended that about 27 prosecution witnesses
were examined and all of them spoke about his honesty and integrity and
uprightness. Learned senior counsel submitted that when the charges
against the present respondent were not substantiated he was released
from arrest and suspended from duties. He was granted leave and after
that he was recalled for duty and an order of dismissal dated
11.01.1980 was served and handed over to the respondent. Subsequently,
by a corrigendum the order of dismissal of the respondent was
substituted by an order of termination.
25. Mr. Rao, has not disputed the fact that the said respondent Major S.P.
Sharma filed a writ petition being W.P. No.418 of 1980 challenging the
order of dismissal dated 11.01.1980. The said writ petition was
dismissed by a Division Bench of the Delhi High Court and against the
said order the respondent preferred a Special Leave Petition before
this Court being 7225 of 1980 which was also dismissed. When the order
of dismissal attained finality, the respondent was served with a show
cause notice as to why a cut-off 5% in the retirement gratuity and
Death-Cum-Retirement Gratuity be not imposed as his service was not
satisfactory. The respondent Sharma again challenged the said notice
by filing a writ petition in the High Court being W.P. No.1643 of 1982.
In the said Writ Petition the respondent also challenged the order
dated 03.03.1980 by which the dismissal was substituted by an order of
termination. The said writ petition was dismissed by the High Court on
22.03.1985 holding that the said order of termination is a termination
simpliciter without being any stigma attached. The said order was
challenged by the respondent by filing LPA No.77 of 1993. The matter
then travelled to a Full Bench and finally concluded by the impugned
order passed by the Division Bench of the Delhi High Court.
26. Mr. P.P. Rao, learned senior counsel advanced his argument on the
points formulated by this Court and submitted that the second writ
petition cannot, at any stretch of imagination, be held to be barred by
the principles of res judicata. Learned counsel further submitted that
by issuing an order of termination in place of dismissal, the entire
finding recorded by the Court while considering the order of dismissal
got washed off, hence there can be no res judicata.
27. Mr. Rao then drew our attention to the counter affidavit filed by the
appellant Union of India before the High Court and submitted that if
the offence was so grave then the respondent should have been punished
instead of dismissal from service.
28. Mr. Rao vehemently argued by giving reference to the finding recorded
by the High Court that non-production of records and the materials
which are the basis for passing the order of termination is wholly
illegal, arbitrary and unjustified. He reiterated that for the non-
production of materials and records in spite of being directed by the
Court, adverse inference has to be drawn. According to the learned
senior counsel, withholding of documents by the constitutional
authority and the Government is a serious matter and, therefore, the
High Court has rightly held the order of termination bad in law. In
this regard learned counsel referred and relied upon the decisions of
this Court in Gopal Krishnaji Ketkar vs. Mahomed Haji Latif & Ors.
1968 (3) SCR 862 and Ghaio Mall & Sons vs. State of Delhi & Ors., 1959
SCR 1424.
29. On the question of doctrine of pleasure, Mr. Rao firstly contended
that the constitutional provisions contained in Article 309, 310 and
311 are subject to Article 14 of the Constitution. According to the
learned counsel, Article 14, 15 and 21 constitute the core values and
such right cannot be taken away on the plea of doctrine of pleasure.
In this connection he relied on I.R. Coelho vs. State of Tamil
Nadu, (2007) 2 SCC 1.
30. Mr. Rao then contended that Article 33 of the Constitution is in the
nature of exception but it does not abrogate the fundamental rights.
In other words, Article 33 does not speak about the basic structure of
the Constitution. Learned counsel relied upon the decision of this
Court in B.P. Singhal vs. U.O.I., (2010) 6 SCC 331.
31. Mr. Rao then contended that Article 33 in any event shall be given
restricted interpretation for the reason that any law which restricts
the fundamental rights shall be strictly interpreted. In this
connection learned counsel referred to (1974) 1 SCC 645: Bhut Nath Mete
vs. State of West Bengal. Mr. Rao addressed on legal malice and
malice in law and referred a decision of this Court in Ravi Yashwant
Bhoir vs. District Collector, Raigad & Ors., (2012) 4 SCC 407.
32. Mr. Rao submitted that only notings were produced before the High Court
but the material on the basis of which opinion was formed was not
produced. The detailed summary of evidence, different memos and other
documents produced in the court martial proceeding were also not
produced before the High Court. Learned counsel submitted that those
notings produced before the High Court are not material, rather
advisory material. Learned counsel referred to some of the paragraphs
of the judgment rendered in S.R. Bommai and Ors. vs. Union of India
and Ors., (1994) 3 SCC 1.
Learned counsel lastly submitted that although 5% cut in
gratuity has been withdrawn by the appellant, the termination has to be
held as bad.
33. Mr. Deepak Bhattacharya, learned counsel appearing on behalf of Major
Ajwani in C.A. No.2953 of 2001, firstly submitted that the order of
termination under Section 18 of the Army Act is a colourable exercise
of power which is arbitrary, capricious and unreasonable. Learned
counsel submitted that the pleasure doctrine is the residual executive
power under Section 53 of the Constitution and hence amenable to
judicial review to ensure that the same follows the satisfaction of the
President after due application of mind and without any arbitrary,
capricious and un-reasonable exercise of power. According to the
learned counsel the respondent Major Ajwani was arrested and kept in
solitary confinement without being informed of any reason for the same
and, thereafter, criminal proceedings were initiated against him. It
was contended that the criminal proceedings against him was abandoned
without informing him any reason for the same and finally he was
illegally terminated under Section 18 of the Army Act.
34. On the question of res judicata, learned counsel submitted that
there is no pleading of res judicata ever raised by the appellant.
However, learned counsel adopted the argument advanced by Mr. P.P. Rao
on the question of res judicata.
35. Mrs. Kiran Suri, learned counsel appearing for Capt. Arun
Sharma and Capt. J.S. Yadav in C.A.No.2954 of 2001 and C.A.No. 2957 of
2001, firstly submitted that there is no decision on merit in the
earlier writ petition and, therefore, the question of application of
res judicata does not arise. The writ petition was dismissed since the
pleasure doctrine was invoked and it is open to judicial review.
Learned counsel relied upon the decision of this Court in Mathura
Prasad Bajoo Jaiswal vs. Dossibai N.B. Jeejeebhoy (1970) 1 SCC 613;
Supreme Court Employees’ Welfare Association vs. Union of India and
Anr. (1989) 4 SCC 187; Isabella Johnson (Smt.) vs. M.A. Susai(dead)
by LRs. (1991) 1 SCC 494 and Kishan Lal vs. State of J&K (1994) 4
SCC 422. Learned counsel then contended that the issue involved in the
later proceedings was not an issue in the earlier proceedings inasmuch
as the later writ petition was filed challenging the subsequent order
converting the order of dismissal to order of termination and also a
notification as to cut of gratuity.
36. Mrs. Suri then submitted that the order in the first proceeding
is an order which has been the result of suppression of documents/facts
by the appellant when these facts/documents were only within the
knowledge of the appellant. Hence suppression of facts and documents
would not entitle the appellant to raise the technical plea of res
judicata and to take advantage of the same. It was contended that the
appellant is under the public duty to disclose the true facts to the
court which has not been done and it will amount to obtaining the order
by fraud.
37. On the issue of doctrine of pleasure Mrs. Suri submitted that
exercise of doctrine of pleasure in the absence of any material
evidence against the respondent and non-production of relevant records
of these officers render the order of termination as illegal and
invalid. Learned counsel submitted that the justiciability of an
action by the executive government is open to challenge on the ground
of malafide and also that the formation of opinion is on irrelevant
material. Learned counsel in this regard referred to a decision of
this Court in the case of B.P. Singhal (supra) and Jay Laxmi Salt
Works (P) Ltd. vs. State of Gujarat (1994) 4 SCC 1. Lastly, it was
contended that the President has been misled without producing the
relevant material and on the basis of false and misleading noting,
order was obtained which amount to fraud and legal malafide.
38. Mr. A.K. Panda, learned senior counsel appearing on behalf of
respondent Capt. V.K. Diwan in C.A. No.2956 of 2001, made his
submission with regard to the interpretation of Articles 309, 310 and
311 of the Constitution. According to the learned counsel Article 310
is not controlled by any legislation, on the contrary it is contended
that Article 310 is subject to Article 309 or 311 of the Constitution.
It was contended that the respondent would have been exonerated had the
court-martial proceedings been continued. But just to avoid court
martial the appellant took recourse to terminate the services by
applying the ‘pleasure’ doctrine. On the point of res judicata learned
counsel relied upon the decision in the case of V. Rajeshwari (Smt)
vs. T.C. Saravanabava, (2004) 1 SCC 551 and Maneka Gandhi vs. Union
of India & another, (1978) 1 SCC 248.
39. Mr. Panda, learned senior counsel further contended that in spite of
the several opportunities given by the Delhi High Court, the
appellants failed to produce any material against the present
respondents to satisfy the Court that the termination was justified.
Learned counsel submitted that the High Court has carefully analysed
all the facts of the case and recorded a finding that the termination
was wholly malafide and devoid of any substance.
40. Mr. Kameshwar Gumber, learned counsel appearing on behalf of
Ex.Major R.K. Midha (now deceased) in C.A. No. 2952 of 2009, at the
very outset submitted that although the respondent is dead now, the
instant appeal is contested only with an object to restore the honour
and to remove the stigma cast on him and the family. Learned counsel,
however, admitted that the family of the deceased respondent has been
getting all pensionary benefits.
41. Ms. Amrita Sanghi, learned counsel appearing for the respondent in
C.A. No.2955 of 2001 on the issue of res judicata, firstly contended
that the earlier writ petition filed by the respondent challenging the
order of dismissal was dismissed up to this Court without going into
the merit of the case and the issue of malafide was not discussed. It
was contended that the second writ petition challenging the order of
termination and the show cause notice for deducting 5% of the gratuity
was on the basis of a fresh cause of action inasmuch as the dismissal
of writ petition up to this Court put an end to the proceedings of
dismissal until the Government came out with the order of termination
with ulterior motives. Learned counsel then contended that this Court
in the order dated 17.11.1994 in Special Leave Petition agreed with the
Full Bench and the matter was sent back to the High Court for decision
on merit. It was for the first time the appellant-Union of India made
out a case that petitioners had been caught doing espionage activity
and thus considered a security suspect. Adopting the argument of Mr.
P.P. Rao, learned senior counsel submitted that Article 33 of the
Constitution does not contemplate restricting or abrogating the basic
structure of the Constitution or the core values of the Constitution.
42. First of all, we shall deal with the following important points
formulated by this Court referred hereinabove i.e.
a) Whether the exercise of doctrine of pleasure under Section
18 of the Army Act read with Article 310 of the Constitution
in absence of any material evidence against the respondent-
officer and the non production of relevant records/files of
these officers rendered the order of termination as illegal
and invalid?
b) Whether the order of termination is arbitrary, capricious,
unreasonable and violative of Articles 14,16,19 and 21 of
the Constitution of India.
c) xxxxxxxx
d) Whether the order of termination passed by the first
appellant in absence of material evidence and improper
exercise of power by the first appellant amount to fraud
being played on the respondent officers and are vitiated in
the law on account of legal malafides and legal malice?
43. All these three points are interconnected and, therefore, will be
discussed together. Admittedly, the Division Bench while hearing the
matter called for the relevant records from the appellant and same
were produced in the Court. The Division Bench took notice of those
files and observed:-
“55. The respondents had submitted for our perusal four thin
files without proper pagination and indexing.
56. From a reading of the files one could see
that the proposal had come from the Army Headquarters
Directorate of Military Intelligence for termination of services
of certain officers under Section 18 of the Army act, 1950 and
that was accepted by the concerned Ministry. The circumstances
under which the Directorate Military Intelligence formed the
opinion has not been disclosed. A single sheet file has been
submitted to show that on 17.12.1980 there was a review of the
decision taken earlier and it appears from a note typed out
without any signature of any authority, that the very Director
of the Military Intelligence who proposed action have been a
party to the review meeting. From the records produced no
authority can come to any conclusion on the decision to be taken
by the authorities concerned for terminating service of the
officers. We wanted to satisfy ourselves about the basis on
which the action was proposed by the Directorate Military
Intelligence. Apparently, the Directorate of Military
Intelligence though that they are not obliged in law to produce
any record before the Court and the decision of the Directorate
Military Intelligence cannot be scrutinised by this Court.
xxxxx
xxxxx
129. It has now become absolutely necessary to
Notice the records produced by the respondents. When one the
learned addl. Solicitor General submitted that though the
respondents had claimed privilege they had no objection to place
all the records for the perusal of this Court to satisfy whether
the respondents had acted in accordance with law. It is a little
disturbing to note that respondents instead of producing the
relevant records pertaining to the officers involved in the
cases had just produced three flaps. No numbers are given. On
flap contains three sheets. The first sheet is mentioned as
Index sheet. Index sheet itself mentions that there is only one
page in the file. The other sheet contains a note which states
that all the cases have been thoroughly reviewed at Army
Headquarters. The other sheet shows that the matter was
discussed in a meeting held in the Home Secretary's Room on
1.10.1980.
130. The next flap is empty. The same note, as found in the
earlier flap, is found pinned on to the flap itself. In the
third flap there are 15 sheets. The first sheet is typed as
Index Sheet. It states that "this file contains a total of 12
pages". When there are 14 sheets besides the Index Sheet and in
some sheets both sides are typed. Therefore, the flap contains
12 pages is not accurate. These sheets also do not give us any
relevant material to form an opinion about the action taken
by the respondents. Therefore, - the irresistible
conclusion is that the respondents have suppressed the material
records from this Court and are not willing to part with or
produce the same for perusal of the Court. It cannot be
pretended by the respondents that there are no other files
available with them except the three flaps produced before this
Court, as in the written notes submitted by the learned Addl.
Solicitor General reference is made to file No. 9, 10, 18, 1, 2
and pages of the files are also given in the written notes,
some files containing more than 600 pages.”
44. On the basis of the aforesaid findings, the Division Bench held that
the respondent-appellant has not placed any material justifying their
action. The Court has, therefore, concluded its findings in para 168
of the judgment which is reproduced hereunder:-
“168. The whole of the bundle of facts in the instant batch of
cases would appear to be a pot boiler to project the image of
the Military Intelligence Directorate, leaving us at the
end with the cliff hanger without any iota of materials
to form an opinion about the involvement of the appellants and
the petitioners. They have chosen not to produce the entire
records without realising their constitutional obligation. Just
to make an apology they have produced some flaps as if they
constitute all the records in the case. In a system where rule
of law reigns supreme the deportment of the respondents cannot
at all be tolerated. Justice Holmes of the Supreme Court of the
United States of America Speaking for the Supreme Court in
Wisconsin vs. Illinois, 281 US 179.
"The State "must... yield to an authority that is paramount
to the State".
45. Mr. Paras Kuhad, learned Additional Solicitor General assailed the
aforesaid finding as being incorrect and submitted that all the
relevant materials were produced before the Court and after hearing
was concluded, all those original papers were returned back to the
appellant. The appellant had submitted the photocopy of all the
relevant material.
46. During the course of hearing, Learned Additional Solicitor General
produced before us all those files and documents which were produced
before the High Court. The Additional Solicitor General also produced
the link file as directed by us.
47. Mrs. Kiran Suri, learned senior counsel appearing in one of the
Civil Appeal No.2954 of 2001, submitted a note wherein she has
mentioned that on 3.1.2001 the Advocate received back the following
original file from the High Court as per the receipt produced by the
appellant in L.P.A. No.43 of 1987 and other connected matters.
i) GCM proceedings in respect of Capt. A.K. Rana IC 23440H
(Page 1-615)
ii) GCM Proceedings in respect of Capt
R.S. Rathaur IC 23720 N (Page 1-
577)
iii) File containing analysis of Espionage
cases in the respect of all the Appellants.
(Page 1-13)
iv) Brief of Samba spy Cases (Page 1-6)
v) File showing approval of Chief of Army
Staff in respect of all cases. (Page 1-9)
vi) File showing approval of Govt, of India in
respect of all the cases. (Page 1-12)
vii) File showing note from PMO's Office
regarding review note of review at office of
Home Secretary (Page 1-2)
48. We have minutely perused all the records including notings along with
link file produced by the Additional Solicitor General. On perusal
and scrutiny of all those materials we are of the view that the High
Court has committed grave error of record and there is total non-
application of mind in recording the aforesaid findings. From the
record, it is evidently clear that the inquiry against these
respondents were initiated by the Army Headquarters, Director of
Military Intelligence. The file traveled from Chief of the Army Staff
to Ministry of Defence with the strong recommendation to terminate the
services of the respondents in the interest of security of the State
as there was some material to show that these officers were involved
in espionage cases. The recommendation for termination of their
services up to the Defence Ministry was finally approved by the Prime
Minister who also happened to be the Defence Minister of India at that
time. The file was then placed before the President of India who in
exercise of the constitutional power terminated the services of these
officers.
49. The link file further reveals that confessional statements of Captain
Rana and other officers were also recorded and strong prima facie case
was found relating to the involvement of these officers in espionage
activities and sharing information with the Pakistani intruders.
50. On assessing the materials contained in link file and the notings
showing the suggestions and recommendations up to the level of
defence ministry and the Prime Minister, it cannot be held that the
impugned order of termination of services have been passed without any
material available on record. There is no dispute that order of
termination passed against the Army personnel in exercise of ‘pleasure
doctrine’, is subject to judicial review, but while exercising
judicial review, this court cannot substitute its own conclusion on
the basis of materials on record. The Court exercising the power of
judicial review has certain limitations, particularly in the cases of
this nature. The safety and security of the nation is above
all/everything. When the President in exercise of its constitutional
power terminates the services of the Army officers, whose tenure of
services are at the pleasure of the President and such termination is
based on materials on record, then this court in exercise of powers of
judicial review should be slow in interfering with such pleasure of
President exercising constitutional power. In a constitutional set
up, when office is held during the pleasure of the President, it means
that the officer can be removed by the Authority on whose pleasure he
holds office without assigning any reason. The Authority is not
obliged to assign any reason or disclose any cause for the removal.
51. Thus, it is not a case where the decisions to terminate the services
of these officers were taken under the ‘pleasure doctrine’ without any
material against the officers. On the contrary, as noticed above,
charges were leveled that these officers were involved in certain
espionage activities.
52. In the instant case, on perusal of the link file it is further
revealed that detailed investigation was conducted and all evidence
recorded were examined by the Intelligence Department and finally the
Authority came to the finding that retention of these officers were
not expedient in the interest and security of the State. In our view,
sufficiency of ground cannot be questioned, particularly in a case
where termination order is issued by the President under the pleasure
doctrine.
53. A Constitution Bench of this Court in the case of the State of
Rajasthan & Ors. vs. Union of India & Ors. 1977 (3) SCC 592, while
considering a constitutional power of the President under Article 356
of the Constitution observed:-
“81. A challenge to the exercise of power to issue a
proclamation under Article 352 of the Constitution would be even
more difficult to entertain than to one under Article 356(1) as
all these considerations would then arise which Courts take into
account when the Executive, which alone can have all the
necessary information and means to judge such an issue, tells
Courts that the nation is faced with a grave national emergency
during which its very existence or stability may be at stake.
That was the principle which governed the decision of the House
of Lords in Liversidge v. Anderson. The principle is summed up
in the salutary maxim: Salus Populi Supreme Lex. And it was that
principle which this Court, deprived of the power to examine or
question any materials on which such declarations may be based,
acted in Additional District Magistrate, Jabalpur v. Shivakant
Shukla We need not go so far as that when we have before us only
a proclamation under Article 356(1).
xxxxxxxx
xxxxxxxx
87. Courts have consistently held issues raising questions of
mere sufficiency of grounds of executive action, such as the one
under Article 356(1) no doubt is to be non-justiciable. The
amended Article 356(5) of the Constitution indicates that the
Constitution-makers did not want such an issue raising a mere
question of sufficiency of grounds to be justiciable. To the
same effect are the provisions contained in Articles 352(5),
360(5). Similarly, Articles 123(4), 213(4), 239 B(4) bar the
jurisdiction of courts to examine matters which lie within the
executive discretion. Such discretion is governed by a large
element of policy which is not amenable to the jurisdiction of
courts except in cases of patent or indubitable malafides or
excess of power. Its exercise rests on materials which are not
examinable by courts. Indeed, it is difficult to imagine how
the grounds of
action under Article 356(1) could be examined when Article 74(2)
lays down that “the question whether any, and if so, what advice
was tendered by the Ministers to the President, shall not be
inquired into in any court”.
54. In order to appreciate the application of constitutional provisions
in respect of defence services, it would be appropriate to quote
Articles 309, 310 and 311 of the Constitution. These articles read as
under:-
“Article 309:- Recruitment and conditions of service of
persons serving the Union or a State Subject to the provisions
of this Constitution, Acts of the appropriate Legislature may
regulate the recruitment, and conditions of service of persons
appointed, to public services and posts in connection with the
affairs of the Union or of any State: Provided that it shall be
competent for the President or such person as he may direct in
the case of services and posts in connection with the affairs of
the Union, and for the Governor of a State or such person as he
may direct in the case of services and posts in connection with
the affairs of the State, to make rules regulating the
recruitment, and the conditions of service of persons appointed,
to such services and posts until provision in that behalf is
made by or under an Act of the appropriate Legislature under
this article, and any rules so made shall have effect subject to
the provisions of any such Act.”
Article 310:- Tenure of office of persons serving the Union or a
State
(1) Except as expressly provided by this Constitution, every
person who is a member of a defence service or of a civil
service of the Union or of an all India service or holds any
post connected with defence or any civil post under the Union,
holds office during the pleasure of the President, and every
person who is a member of a civil service of a State or holds
any civil post under a State holds office during the pleasure of
the Governor of the State.
(2) Notwithstanding that a person holding a civil post under the
Union or a State holds office during the pleasure of the
President or, as the case may be, of the Governor of the State,
any contract under which a person, not being a member of a
defence service or of an all India service or of a civil service
of the Union or a State, is appointed under this Constitution to
hold such a post may, if the President or the Governor as the
case may be, deems it necessary in order to secure the services
of a person having special qualifications, provide for the
payment to him of compensation, if before the expiration of an
agreed period, that post is abolished or he is, for reasons not
connected with any misconduct on his part, required to vacate
that post.”
Article 311:- Dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a State
(1) No person who is a member of a civil service of the Union or
an all India service or a civil service of a State or holds a
civil post under the Union or a State shall be dismissed or
removed by a authority subordinate to that by which he was
appointed
(2) No such person as aforesaid shall be dismissed or removed or
reduced in rank except after an inquiry in which he has been
informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges Provided
that where it is proposed after such inquiry, to impose upon him
any such penalty, such penalty may be imposed on the basis of
the evidence adduced during such inquiry and it shall not be
necessary to give such person any opportunity of making
representation on the penalty proposed: Provided further that
this clause shall not apply
(a) where a person is dismissed or removed or reduced in rank on
the ground of conduct which has led to his conviction on a
criminal charge; or
(b) where the authority empowered to dismiss or remove a person
or to reduce him in rank ins satisfied that for some reason, to
be recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is
satisfied that in the interest of the security of the State, it
is not expedient to hold such inquiry;
(3) If, in respect of any such person as aforesaid, a question
arises whether it is reasonably practicable to hold such inquiry
as is referred to in clause (2), the decision thereon of the
authority empowered to dismiss or remove such person or to
reduce him in rank shall be final.”
55. Article 309 empowers the appropriate legislature to regulate the
recruitment and conditions of services of persons appointed in public
services and posts in connection with the affairs of the Union or the
State. But Article 309 is subject to the provisions of the
Constitution. Hence, the Rules and Regulations made relating to the
conditions of service are subject to Articles 310 and 311 of the
Constitution. The Proviso to Article 309 confers powers upon the
President in case of services and posts in connection with the affairs
of the Union and upon the Governor of a State in connection with the
services and posts connected with the affairs of the State to make
rules regulating the recruitment and the conditions of services of the
persons appointed. The service condition shall be regulated according
to such rules.
56. Article 310 provides that every person, who is a member of the defence
service or of a civil service of the Union or All India Service, or
any civil or defence force shall hold such posts during the pleasure
of the President. Similarly, every person who is a Member of the
Civil Services of a State or holds any civil post under a State, holds
office during the pleasure of the Governor of the State. It is worth
to mention here that the opening word of Article 310 “Except as
expressly provided by this Constitution” makes it clear that a
Government servant holds the office during the pleasure of the
President or the Governor except as expressly provided by the
Constitution.
57. From bare perusal of the provisions contained in Article 311 of the
Constitution, it is manifestly clear that clauses (i) and (ii) of
Article 311 impose restrictions upon the exercise of power by the
President or the Governor of the State of his pleasure under Article
310 (1) of the Constitution. Article 311 makes it clear that any
person who is a member of civil services of the Union or the State or
holds civil posts under the Union or a State shall not be removed or
dismissed from service by an authority subordinate to that by which he
was appointed. Further, clause (ii) of Article 311 mandates that such
removal or dismissal or reduction in rank of the members of the civil
services of the Union or the State shall be only after giving
reasonable opportunity of hearing in respect of the charges leveled
against him. However, proviso to Article 311 (2) makes it clear that
this clause shall not apply inter-alia where the President or the
Governor, as the case may be, is satisfied that in the interest of the
security of the State it is not expedient to hold such enquiry.
58. The expression “except as otherwise provided in the Constitution” as
contained in Article 310 (1) means this Article is subject only to the
express provision made in the Constitution. No provision in the
statute can curtail the provisions of Article 310 of the Constitution.
At this juncture, I would like to refer Sections 18 and 19 of the
Army Act as under:-
“18. Tenure of service under the Act – Every person subject to
this Act shall hold office during the pleasure of the President.
19. Termination of service by Central Government. Subject to the
provisions of this Act and the rules and regulations made there
under the Central Government may dismiss, or remove from the
service, any person subject to this Act.
59. The aforesaid two Sections i.e. 18 and 19 are distinct and apply in
two different stages. Section 18 speaks about the absolute discretion
of the President exercising pleasure doctrine. No provisions in the
Army Act curtail, control or limit the power contained in Article
310(1) of the Constitution. Article 309 enables the legislature or
executive to make any law, rule or regulation with regard to condition
of services without impinging upon the overriding power recognized
under Article 310 of the Constitution. A Constitution Bench of this
Court in State of Uttar Pradesh and others vs. Babu Ram Upadhayay,
(1961) 2 SCR 679, held that the Constitution practically incorporated
the provisions of Sections 240 and 241 of the Government of India Act,
1935 in Articles 309 and 310 of the Constitution. But the
Constitution has not made “the tenure of pleasure” subject to any law
made by the legislature. On the other hand, Article 309 is expressly
made subject to the provisions of Article 310 which provides for
pleasure doctrine. Hence, it can safely be concluded that the Army
Act cannot in any way override or stand higher than Constitutional
provisions contained in Article 309 and consequently no provision of
the Army Act could cut down the pleasure tenure in Article 310 of the
Constitution. In another Constitution Bench Judgment of this Court in
Moti Ram Deka case (1964) 5 SCR, 683, their Lordships observed that
Article 309 cannot impair or affect the pleasure of the President
conferred by Article 310. There is no doubt, Article 309 has to be
read subject to Articles 310 and 311 and Article 310 has to be read
subject to Article 311.
60. In the case of B.P. Singhal (supra), a Constitution Bench of this
Court has elaborately discussed the application and object of the
doctrine of pleasure and considered most of the earlier decisions
rendered by this Court. Some of the paragraphs are worth to be quoted
herein below:-
“22. There is a distinction between the doctrine of pleasure
as it existed in a feudal set-up and the doctrine of pleasure
in a democracy governed by the rule of law. In a nineteenth
century feudal set-up unfettered power and discretion of the
Crown was not an alien concept. However, in a democracy
governed by rule of law, where arbitrariness in any form is
eschewed, no Government or authority has the right to do what
it pleases. The doctrine of pleasure does not mean a licence to
act arbitrarily, capriciously or whimsically. It is presumed
that discretionary powers conferred in absolute and unfettered
terms on any public authority will necessarily and obviously be
exercised reasonably and for the public good.
33. The doctrine of pleasure as originally envisaged in
England was a prerogative power which was unfettered. It meant
that the holder of an office under pleasure could be removed at
any time, without notice, without assigning cause, and without
there being a need for any cause. But where the rule of law
prevails, there is nothing like unfettered discretion or
unaccountable action. The degree of need for reason may vary.
The degree of scrutiny during judicial review may vary. But the
need for reason exists. As a result when the Constitution of
India provides that some offices will be held during the
pleasure of the President, without any express limitations or
restrictions, it should however necessarily be read as being
subject to the “fundamentals of constitutionalism”. Therefore
in a constitutional set-up, when an office is held during the
pleasure of any authority, and if no limitations or
restrictions are placed on the “at pleasure” doctrine, it means
that the holder of the office can be removed by the authority
at whose pleasure he holds office, at any time, without notice
and without assigning any cause.
34. The doctrine of pleasure, however, is not a licence to act
with unfettered discretion to act arbitrarily, whimsically, or
capriciously. It does not dispense with the need for a cause
for withdrawal of the pleasure. In other words, “at pleasure”
doctrine enables the removal of a person holding office at the
pleasure of an authority, summarily, without any obligation to
give any notice or hearing to the person removed, and without
any obligation to assign any reasons or disclose any cause for
the removal, or withdrawal of pleasure. The withdrawal of
pleasure cannot be at the sweet will, whim and fancy of the
authority, but can only be for valid reasons.”
61. In fact the ‘pleasure doctrine’ is a Constitutional necessity, for the
reasons that the difficulty in dismissing those servants whose
continuance in office is detrimental to the State would, in case
necessity arises to prove some offence to the satisfaction of the
court, be such as to seriously impede the working of public service.
62. There is no dispute with regard to the legal proposition that
illegality, irrationality and procedural non-compliance are grounds on
which judicial review is permissible. But the question is as to the
ambit of judicial review. This court in Civil Appeal filed by the
respondents challenging the order of termination passed under Section
18 of the Army Act observed that the order of termination can be
challenged only on the ground of malafide. It was further observed
that it is for the person alleging malafide to make out a prima facie
case. For better appreciation, the order passed by this Court is
quoted herein below.
“1. Special leave granted.
2. Heard both sides. According to us, all that the impugned
judgment holds is that an order passed under Section 18 of the
Army Act can be challenged on the ground of malafides. This
statement of law is unexceptional. However, it is for the
person who challenges it on the ground of malafides, to make out
a prima facie case in that behalf. It is only if he discharges
the said burden, that the Government is called upon to show that
it is not passed in the malafide exercise of its powers. While
doing so, the Government is not precluded from claiming the
privilege in respect of the material which may be in its
possession and on the basis of which the order is passed. The
Government may also choose to show the material only to the
court. With regard to the pleadings in respect of the challenge
to the order on the ground of malafides, no particular formula
can be laid down. The pleadings will depend upon the facts of
each case.
3. The appellants are permitted to withdraw from the appeal-memo,
pp. 221 to 232 which according to the learned Solicitor General
have been annexed to the memo inadvertently.
4. The appeals are disposed of accordingly with no order as to
costs.”
63. The Full Bench of the Delhi High Court while answering the reference
has observed in paragraphs 37 and 38 which is quoted hereunder:-
“37. Undoubtedly, the power under Section 18 cannot be
ordinarily invoked for dealing with cases of misconduct and the
other provisions in the Army Act dealing with the various kinds
of misconduct have to be invoked for dealing with such cases.
This power under Section 18 must be used sparingly only when it
is expedient to deal with such cases under the other provisions
of the Army Act. In view of the sensitive nature of cases
involving security of State that may come up in the case of
armed forces it cannot be said that in no case of misconduct
section 18 can be invoked. There may be cases where security of
State is involved and it may not be expedient to continue with
the inquiry provided under the Army Act for dealing with
misconduct. It appears that it is specifically for this reason
that section 18 has been incorporated in the Army Act despite
the fact that Article 310 of the Constitution already provided
that tenure of an Army personnel would be at the pleasure of the
President. This is a power given to the Supreme Commander of the
Armed Forces, i.e. the President of India to be invoked in such
cases where inquiry in other form is not advisable and is
inexpedient. This power is similar to second proviso (a), (b) &
(c) of Article 311 (2) which provides for dispensing with the
inquiry in certain cases even in the case of civil service. The
safeguard provided for a government servant by clause (2) of
Article 311 is taken away when second proviso to Article 311(2)
becomes applicable. The Supreme Court in Tulsi Ram Patel's case
(supra) observed that "the second proviso has been mentioned in
the Constitution as a matter of public policy and in public
interest for public good." The Supreme Court further observed
that much as it may seem harsh and oppressive to a government
servant, the court must repel the temptation to be carried away
by feelings of commiseration and sympathy in such cases.
Therefore, even if an order under Section 18 for removing a
defense personnel for misconduct is passed if it is found that
there were sufficient reasons for resorting to Section 18, the
same would not be open to challenge on merits. The Supreme Court
in Chief of Army Staff & Anr. v. Major Dharam Pal Kukrety, 1985
CriLJ 913, has held that even after Court Martial proceedings
had been concluded, the finding of the general court martial
having not been confirmed by the Chief of Army Staff, further
retention of the Army personnel being undesirable, the Chief of
Army Staff could resort to Rule 14, indicating thereby that even
after resorting to court martial proceedings if it is found
inexpedient to continue with the Court Martial proceedings it
was open to resort to proceedings under Section 19 of the Army
Act. The Supreme Court observed:
"The crucial question, therefore, is whether the Central
Government or the Chief of the Army Staff can have resort
to Rule 14 of the Army Rules. Though it is open to the
Central Government or the Chief of the Army Staff to have
recourse to that rule in the first instance without
directing trial by a court-martial of the concerned
officer, there is no provision in the Army Act or in Rule
14 or any of the other rules of the Army Rules which
prohibits the Central Government or the Chief of the Army
Staff from resorting in such a case to Rule 14. Can it,
however, be said that in such a case a trial by a court-
martial is inexpedient or impracticable? The Shorter Oxford
English Dictionary, Third Edition, defines the word
'inexpedient' as meaning "not expedient; disadvantageous in
the circumstances, inadvisable, impolite". The same
dictionary defines 'expedient' inter alias as meaning
"advantageous; fit, proper, or suitable to the
circumstances of the case". Webster's Third New
International Dictionary also defines the term 'expedient'
inter alias as meaning 'characterized by suitability,
practicality, and efficiency in achieving a particular end;
fit, proper or advantageous under the circumstances."
38. That being the position even after resorting to court
martial proceedings if it is found inexpedient to continue with
the same it is always open to the respondent to resort to either
section 18 or 19 of the Army Act.”
64. Indisputably, defence personnel fall under the category where
President has absolute pleasure to discontinue the services. Further
in our considered opinion as far as security is concerned, the
safeguard available to civil servants under Article 311 is not
available to defence personnel as judicial review is very limited. In
cases where continuance of Army officers in service is not practicable
for security purposes and there is loss of confidence and potential
risk to the security issue then such officers can be removed under the
pleasure doctrine. As a matter of fact, Section 18 of the Army Act is
in consonance with the constitutional powers conferred on the
President empowering the President to terminate the services on the
basis of material brought to his notice. In such cases, the Army
officers are not entitled to claim an opportunity of hearing. In our
considered opinion the pleasure doctrine can be invoked by the
President at any stage of enquiry on being satisfied that continuance
of any officer is not in the interest of and security of the State. It
is therefore not a camouflage as urged by the respondents.
65. The next question that arises for consideration is as to whether the
order of dismissal of the earlier writ petitions and confirmation of
the same by this court amounts to “Doctrine of Merger” and operates as
res judicata against the present appeals. As discussed above, the
services of the present respondents along with other permanent
commissioned officers of the Indian Army were terminated, since they
were found suspected to be involved in espionage activities.
Aggrieved by the termination order, the present respondents, except
Major R.K. Midha and Major N.R. Ajwani, filed writ petitions being
C.W.P. Nos. 418, 419, 421, 424 and 425 of 1980 before the Delhi High
Court. These respondents challenged the said termination order as
being illegal and malafide. The High Court vide order dated 21.4.1980
dismissed the writ petitions. The Order dated 21.4.1980 reads as
under:-
“Dismissal from service is under Section 18 of the Army
act which is complimentary to Article 310 of the
Constitution. This means that the Officer held the tenure
during the pleasure of the President. It has been contended
that it was not in accordance with the provisions of the
Act and that due procedure for dismissal for misconduct has
not been followed. The impugned order does not say whether
the dismissal is for misconduct or otherwise. It only sets
out the pleasure doctrine. In this view of the matter, no
case made out for interference. Dismissed.”
66. Respondents then preferred special leave petitions against the
aforesaid order dated 21.4.1980 being SLP Nos. 7225 and 7233 of 1980.
A three-Judge Bench of this Court dismissed the special leave petition
by order dated 1.9.1980. In the year 1982, the show cause notices
dated 10.5.1982 were issued to the officers whose services were
terminated informing them that their services were not considered
satisfactory by the Pensionary Authority and, therefore, why not 5% of
the gratuity or pension be deducted. On receipt of the said show
cause notices, eight of the officers, whose services were terminated
initiated the second round of litigation by filing writ petitions
being C.W.P Nos. 1643-1646 of 1982, 1777 of 1982, 804 of 1982, 1666 of
1982 praying not only to quash the show cause notices, but also to
quash the order of termination of their services. All those writ
petitions were finally heard and came to be dismissed by the Delhi
High Court vide judgment dated 22.3.1985. Aggrieved by the said
order, the respondents filed Letters Patent Appeal before the Delhi
High Court. The Division Bench of the High Court after hearing the
appeal formulated questions of law and referred the same to the Full
Bench by order dated 15.5.1991. The question of law framed by the
Division Bench was “whether the order of termination passed by and in
the name of President under Section 18 of the Army Act read with
Article 310 of the Constitution invoking doctrine of pleasure of the
President be challenged on the ground that it is camouflage and as
such is violative of principles of natural justice and the fundamental
rights guaranteed under Article 14 of the Constitution?”.
67. From the above, it is clear that the Union of India has been
consistently contesting these petitions and this Court has found
substance in the argument of the appellants that the High Court while
delivering the judgment dated 21.12.2000 overlooked this important
legal aspect of finality coupled with the doctrine of res judicata.
In our considered opinion, this aspect cannot be ignored and the issue
of fact cannot be re-opened in the instant case as well as has been
done under the impugned judgment by relying on certain material which
the High Court described to have been fraudulently withheld from the
courts. In our opinion, fraud is not a term or ornament nor can it be
presumed to exist on the basis of a mere inference on some alleged
material that is stated to have been discovered later on. The
discovery of a reinvestigated fact could have been a ground of review
in the same proceedings, but the same cannot be in our opinion made
the basis for re-opening the issue through a fresh round of
litigation. A fresh writ petition or Letters Patent Appeal which
is in continuation of a writ petition cannot be filed
collaterally to set aside the judgment of the same High Court rendered
in earlier round of litigation upholding the termination order. In
our view, the High Court has committed a manifest error by not
lawfully defining the scope of the fresh round of litigation on the
principles of res judicata and doctrine of finality. To establish
fraud, it is the material available which may lead to the conclusion
that the failure to produce the material was deliberate or suppressed
or even otherwise occasioned a failure of justice. This also, can be
attempted if legally permissible only in the said proceedings and not
in a collateral challenge raised after the matter has been finally
decided in the first round of litigation. It is to be noticed that the
judgment which had become final in 1980 also included writ petition
no.418 of 1980 filed by the respondent S.P. Sharma. Once, this Court
had put a seal to the said litigation vide judgment dated 1.9.1980
then a second round of litigation by the same respondents including
S.P. Sharma in writ petition no. 1643 of 1982 was misplaced.
68. The very genesis of an identical challenge relating to the same
proceedings of termination on the pretext of a 5% cut in terminal
benefits was impermissible apart from the attraction of the principle
of merger. This aspect of finality, therefore, cannot be disturbed
through a collateral challenge.
69. In Naresh Shridhar Mirajkar vs. State of Maharashtra & Anr. AIR 1967 SC
1, this Court by a majority decision laid down the law that when a
Judge deals with the matter brought before him for his adjudication,
he first decides the questions of fact on which the parties are at
issue, and then applies the relevant law to the said facts. Whether
the findings of fact recorded by the Judge are right or wrong, and
whether the conclusion of law drawn by him suffers from any infirmity,
can be considered and decided if the party aggrieved by the decision
of the Judge takes up the matter before the appellate court.
70. A decision rendered by a competent court cannot be challenged in
collateral proceedings for the reason that if it is permitted to do so
there would be "confusion and chaos and the finality of proceedings
would cease to have any meaning".
71. In the case of Mohd. Aslam vs. Union of India, AIR 1996 SC 1611, a
writ petition under Article 32 of the Constitution was filed seeking
reconsideration of the judgment rendered by this Court on the ground
that the said judgment is incorrect. Rejecting the prayer, this Court
held that Article 32 of the Constitution is not available to assail
the correctness of the decision on merit or to claim its
reconsideration.
72. In the case of Babu Singh Bains etc. versus Union of India and others
etc., AIR 1997 SC 116, this Court reiterated the settled principal of
law that once an order passed on merit by this Court exercising the
power under Article 136 of the Constitution has become final no writ
petition under Article 32 of the Constitution on the self-same issue
is maintainable. The principle of constructive res judicata stands
fast in his way in his way to raise the same contention once over.
73. In Khoday Distilleries Limited & Anr. vs. The Registrar General,
Supreme Court of India, (1996) 3 SCC 114, this Court re-iterated the
view as under:
"In a case like the present, where in substance the challenge is
to the correctness of a decision on merits after it has become
final, there can be no question of invoking Article 32 of the
Constitution to claim reconsideration of the decision on the
basis of its effect in accordance with law. Frequent resort to
the decision in Antulay (AIR 1988 SC 1531) in such situations is
wholly misconceived and impels us to emphasis this fact."
74. In M. Nagabhushana vs. State of Karnataka & Ors., AIR 2011 SC 1113,
this Court held that doctrine of res-judicata was not a technical
doctrine but a fundamental principle which sustains the rule of law in
ensuring finality in litigation. The main object of the doctrine is to
promote a fair administration of justice and to prevent abuse of
process of the court on the issues which have become final between the
parties. The doctrine was based on two age old principles, namely,
'interest reipublicae ut sit finis litium' which means that it is in
the interest of the State that there should be an end to litigation
and the other principle is 'nemo debet bis vexari si constat curiae
quod sit pro una et eadem causa' meaning thereby that no one ought to
be vexed twice in a litigation if it appears to the Court that it is
for one and the same cause.
75. Thus, the principle of finality of litigation is based on a sound
firm principle of public policy. In the absence of such a principle
great oppression might result under the colour and pretence of law
inasmuch as there will be no end to litigation. The doctrine of res-
judicata has been evolved to prevent such an anarchy.
76. In a country governed by the rule of law, finality of judgment is
absolutely imperative and great sanctity is attached to the finality
of the judgment and it is not permissible for the parties to reopen
the concluded judgments of the court as it would not only tantamount
to merely an abuse of the process of the court but would have far
reaching adverse affect on the administration of justice. It would
also nullify the doctrine of stare decisis a well established valuable
principle of precedent which cannot be departed from unless there are
compelling circumstances to do so. The judgments of the court and
particularly the Apex Court of a country cannot and should not be
unsettled lightly.
77. Precedent keeps the law predictable and the law declared by this
Court, being the law of the land, is binding on all courts/tribunals
and authorities in India in view of Article 141 of the Constitution.
The judicial system "only works if someone is allowed to have the last
word" and the last word so spoken is accepted and religiously
followed. The doctrine of stare decisis promotes a certainty and
consistency in judicial decisions and this helps in the development of
the law. Besides providing guidelines for individuals as to what would
be the consequences if he chooses the legal action, the doctrine
promotes confidence of the people in the system of the judicial
administration. Even otherwise it is an imperative necessity to avoid
uncertainty, confusion. Judicial propriety and decorum demand that the
law laid down by the highest Court of the land must be given effect
to.
78. In Rupa Ashok Hurra v. Ashok Hurra & Anr., AIR 2002 SC 1771, this
Court dealt with the issue and held that reconsideration of a judgment
of this Court which has attained finality is not normally permissible.
A decision upon a question of law rendered by this Court was
conclusive and would bind the court in subsequent cases. The court
cannot sit in appeal against its own judgment.
79. In Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater
Bombay, AIR 1974 SC 2009, this Court held as under:
"At the same time, it has to be borne in mind that
certainty and continuity are essential ingredients of the
rule of law. Certainty in law would be considerably eroded
and suffer a serious setback if the highest court of the
land readily overrules the view expressed by it in earlier
cases, even though that view has held the field for a number
of years. In quite a number of cases which come up before
this Court, two views are possible, and simply because the
Court considers that the view not taken by the Court in the
earlier case was a better view of the matter would not
justify' the overruling of the view. The law laid down by
this Court is binding upon all courts in the country under
Article 141 of the Constitution, and numerous cases all over
the country are decided in accordance with the view taken by
this Court. Many people arrange their affairs and large
number of transactions also take place on the faith of the
correctness of the view taken by this Court. It would create
uncertainty, instability and confusion if the law propounded
by this Court on the basis of which numerous cases have been
decided and many transactions have taken place is held to be
not the correct law. "
Thus, in view of above, it can be held that doctrine of finality has
to be applied in a strict legal sense.
80. While dealing with the issue this court in Ambika Prasad Mishra v.
State of U.P. & Anr., AIR 1980 SC 1762, held as under:
"6. It is wise to remember that fatal flaws silenced by earlier
rulings cannot survive after death because a decision does
not lose its authority 'merely because it was badly argued,
inadequately considered and fallaciously reasoned'".
81. The view has been expressed by a three-Judge Bench of this Court in
these very proceedings while dismissing the special leave petitions of
Subhash Juneja and Harish Lal Singh vide order dated 23.4.2003. This
court applied the doctrine of finality of judgment and res-judicata and
refused to reopen these very proceedings.
82. Mrs. Kiran Suri, learned counsel appearing for the respondent, put
heavy reliance on a decision of this Court in the case of Mathura
Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jeejeebhoy, (1970)1 SCC
613, for the proposition that question relating to the jurisdiction of
a court cannot be deemed to have been finally determined by an
erroneous decision of the court. Further by an erroneous decision if
the court resumes jurisdiction which it does not possess under the
Statute, the question cannot operate as res judicata between the same
parties whether the cause of action in the subsequent litigation is
same or otherwise. In our opinion, the aforesaid decision is of no
help to the respondent for the simple reason that the facts and the law
involved in the instant case and the earlier round of litigation are
the same. In para 5 of the aforesaid judgment, this Court has laid
down the principle, which reads as under:-
“5. But the doctrine of res judicata belongs to the domain of
procedure: it cannot be exalted to the status of a legislative
direction between the parties so as to determine the question
relating to the interpretation of enactment affecting the
jurisdiction of a Court finally between them, even though no
question of fact or mixed question of law and fact and relating
to the right in dispute between the parties has been determined
thereby. A decision of a competent Court on a matter in issue
may be res judicata in another proceeding between the same
parties: the “matter in issue” may be an issue of fact, an issue
of law, or one of mixed law and fact. An issue of fact or an
issue of mixed law and fact decided by a competent Court is
finally determined between the parties and cannot be re-opened
between them in another proceeding. The previous decision on a
matter in issue alone is res judicata: the reasons for the
decision are not res judicata. A matter in issue between the
parties is the right claimed by one party and denied by the
other, and the claim of right from its very nature depends upon
proof of facts and application of the relevant law thereto. A
pure question of law unrelated to facts which give rise to a
right, cannot be deemed to be a matter in issue. When it is said
that a previous decision is res judicata, it is meant that the
right claimed has been adjudicated upon and cannot again be
placed in contest between the same parties. A previous decision
of a competent Court on facts which are the foundation of the
right and the relevant law applicable to the determination of
the transaction which is the source of the right is res
judicata. A previous decision on a matter in issue is a
composite decision: the decision on law cannot be dissociated
from the decision on facts on which the right is founded. A
decision on an issue of law will be as res judicata in a
subsequent proceeding between the same parties, if the cause of
action of the subsequent proceeding be the same as in the
previous proceeding, but not when the cause of action is
different, nor when the law has since the earlier decision been
altered by a competent authority, nor when the decision relates
to the jurisdiction of the Court to try the earlier proceeding,
nor when the earlier decision declares valid a transaction which
is prohibited by law.
83. In the case arising out of these very proceedings reported in Union of
India & Ors. v. Ranbir Singh Rathaur & Ors., (2006) 11 SCC 696, this
Court held:
a) That review of the earlier orders passed by this court was
"impermissible": approach of the High Court of reopening the case
was "erroneous"; the issue of maintainability of the petitions was
of paramount importance:
b) The finding recorded by the High Court that the entire record was
not produced by the Union of India was not factually correct;
c) To say that "justice stood at the higher pedestal" then the
finality of litigation was not an answer enabling the court to
reopen a finally decided case;
(d) Persons behind the false implication were not impleaded as
parties; and
(e) Newspaper reports/statement made by any officer could not be
considered as evidence.
84. Violation of Fundamental Rights guaranteed under the Constitution have
to be protected, but at the same time, it is the duty of the court to
ensure that the decisions rendered by the court are not overturned
frequently, that too, when challenged collaterally as that was
directly affecting the basic structure of the Constitution
incorporating the power of judicial review of this Court. There is no
doubt that this Court has an extensive power to correct an error or to
review its decision but that cannot be done at the cost of doctrine of
finality. An issue of law can be overruled later on, but a question of
fact or, as in the present case, the dispute with regard to the
termination of services cannot be reopened once it has been finally
sealed in proceedings inter-se between the parties up to this Court
way back in 1980.
85. The term ‘dismissal’ in the original order was substituted by the
term ‘termination’ issuing the corrigendum to ratify a mistake
committed while issuing the order. In fact, the competent authority
had taken a decision only to terminate, and therefore it was found
necessary to issue the corrigendum. However, in view of such
substitution of word ‘dismissal’ by the term ‘termination’, does not
tilt the balance in favour of the respondents. More so, as pointed out
by Mr. Paras Kuhad, learned ASG that the proposed 5% deduction had
been withdrawn, and therefore the issue did not survive.
86. Analysing entire facts of the case and the material produced in Court
and upon an exhaustive consideration of the matter, we are of the
definite opinion that the power of pleasure exercised by the President
in terminating the services of the respondents does not suffer from
any illegality, bias or malafide or based on any other extraneous
ground, and the same cannot be challenged on the ground that it is a
camouflage. As discussed above, the onus lay on the respondent-
officers who alleged malafides. No credible evidence or material
produced before the Court impels us to come to the conclusion that the
order of termination is baseless or malafide.
87. For the reasons aforesaid, these appeals are allowed and the judgment
and order passed by the Delhi High Court is set aside. Ordered
accordingly. No costs.
…………………………….J.
(Dr. B.S.
Chauhan)
…………………………….J.
(J.
Chelameswar)
…………………………….J.
(M.Y.
Eqbal)
New Delhi,
March 6, 2014.
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