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Union Of India And Ors vs Major S.P. Sharma And Ors on 6 March, 2014

Supreme Court of India Union Of India And Ors vs Major S.P. Sharma And Ors on 6 March, 2014Author: M Eqbal Bench: 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

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