UNION OF INDIA Vs MAJOR S.P. SHARMA
Bench: B.S. CHAUHAN,J. CHELAMESWAR,M.Y. EQBAL
Case number: C.A. No.-002951-002957 / 2001
Diary number: 5888 / 2001
Advocates: B. V. BALARAM DAS Vs
VIKAS MEHTA
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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
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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
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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.
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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
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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.
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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
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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
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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.
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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.
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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 o f 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:
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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
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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
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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
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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:
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"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 o f 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 f o r the so-called manipulation. I t is also not clear as to who were the parties in the writ petitions filed. In the grounds indicated in the writ petitions
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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 o f 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. I n 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 a f t e r 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. I t 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 ba f f l e s 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 i f only a few pages o f the files were shown. I f that was really the case, there was no necessity for the High Court to direct the present appellants to file copies. If a f t e r 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 o f 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
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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 o f 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 f o r fresh hearing. We make it clear that whatever we have observed should not be treated to be the conclusive findings on the subject-matter o f 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 o f the matter as early as practicable, preferably within four months from the date of receipt of the judgment. No costs. " (Emphasis added)
17.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.
18.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.
19.The Division Bench of this Court, after hearing the
counsel appearing for the parties and legal contentions
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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?”
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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Page 29
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
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Page 30
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
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Page 31
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.
31
Page 32
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,
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Page 33
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
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Page 34
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.
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Page 35
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.
35
Page 36
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
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Page 37
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
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Page 38
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
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Page 39
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.
39
Page 40
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
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Page 41
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
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Page 42
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:-
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Page 43
“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
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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
44
Page 45
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
Page 46
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
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Page 47
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.
47
Page 48
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
48
Page 49
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
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Page 50
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
50
Page 51
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
51
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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.
52
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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
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(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
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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
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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
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Page 57
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
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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
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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
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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
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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
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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
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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:-
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“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
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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.”
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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
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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
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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
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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?”.
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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 o f 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
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High Court has committed a manifest error by not lawfully defining the
scope of the fresh round of litigation on the principles o f 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.
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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
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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
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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
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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
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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.
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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 o f the correctness of the view taken by this Court. It would create uncertainty, instability and confusion i f the law propounded by this Court on the basis of which numerous cases have been decided and m any 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:
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"6. I t 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
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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
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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.
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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
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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
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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.
83