TaxTMI 
TaxTMI 
2014 (3) TMI 1165
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....at and Gunner Sarwan Dass were posted in Babina (M.P.). In 1974 Gunner Aya Singh was cultivated by Gunner Sarwan Dass for Pak Intelligence. Captain Nagial was then cultivated by Aya Singh for Pak Intelligence. In 1975 for the first time the espionage racket came to be noticed. Aya Singh and Sarwan Dass were arrested. In 1976-77 pursuant to the investigation, three more jawans were arrested. They corroborated the involvement of Sarwan Dass. Sarwan Dass and Aya Singh on further interrogation disclosed the names of Captain Ghalwat and Captain Nagial. In 1976-77 Captain Ghalwat and Captain Nagial were tried by GCM and were convicted. Ghalwat was cashiered and given 14 years' RI. Nagial was given 7 years' RI and was also cashiered. In addition, 12 jawans were tried and they were given RI of various descriptions and were dismissed from services. Aya Singh and Sarwan Dass were also among the 12 jawans tried and held guilty. Later in 1978 it was discovered that Aya Singh was holding back certain relevant information relating to espionage activities under certain alleged threat and pressure. Wife of Aya Singh claimed to be killed. Reeling under the shock of the circumstances, he made furthe....
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....e judgment dated 19.8.1986 upholding the order of termination approving the applicability of the doctrine of pleasure. However, at the same time, the appeal was partly allowed in relation to the post-retiral benefits keeping in view the provisions under the Army Act and Rules and it was found that the proposed 5% cut-off was not in accordance with the Act/Rules applicable therein. 6. Several LPAs were filed by other officers relying on the Division Bench judgment extending the post-retiral benefits, and a plea for similar relief was raised. 7. When these appeals came up for hearing, the Division Bench of the Delhi High Court hearing the matter differed with the view on the issue of the applicability of doctrine of pleasure and maintainability of the writ petitions on the ground of malafides vide order dated 15.5.1991. Consequently, this question of law was referred to be decided by a larger bench. 8. The Full Bench so constituted to answer this reference held that an order under Section 18 of the Army Act invoking the doctrine of pleasure was subject to judicial review if it is assailed on malafides. It was held that the onus lay on the petitioner/person alleging malafides....
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....a cut of 5% from the pension and upon dismissal of the writ petitions challenging the said orders, LPAs have been filed and in those appeals the appellants want to take up the issue, that the Court can go into the validity of the order of dismissal order once again. Inasmuch as there are four classes of cases, we are of the view that first we should decide the batch where fresh writ petitions are filed, and in case we hold that fresh writ petitions are maintainable, then the question of going into the privilege claimed by the respondents will have to be decided. If the fresh writ petitions are held to be maintainable, then the batch wherein appeals are filed with delay condonation applications can also be taken up for consideration. In one case the question of laches is to be decided whereas in another the question of sufficient cause for condonation of delay fall for consideration. In the matters challenging the orders imposing cut in pension, it will be for the parties to watch the view the court may take in other three batches mentioned above so that they can pursue one or the other remedies which the Court will be able to accept. Therefore, we will first take ....
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....ainst 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 th....
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.... hereinabove. 15. The appeals filed by the Union of India, pending before this Court against the judgment dated 21.12.2000, were split into two parts by the order of this Court dated 14.2.2006, which is extracted herein: "C.A. Nos.2949-2950/2001: Arguments heard. Judgment reserved. The entire original record including the administrative receipts be called for either by FAX or by telephonic message immediately by the Registrar (Judicial). C.A.Nos.2951-2957/2001: De-linked. These matters shall be heard separately. List after four months." 16. Accordingly, the arguments were heard and judgment was reserved in the matter arising out of the two writ petitions filed by Ranbir Singh Rathaur and Ashok Kumar Rana alongwith which delinked seven LPAs were also disposed of even though it was observed by this Court that they arose out of the same incident. This Court vide judgment dated 22.3.2006 in the case of Union of India & Ors. vs. Ranbir Singh Rathaur & Ors., (2006) 11 SCC 696 reversed the judgment of the High Court dated 21.12.2000 vis-a-vis the two writ petitions and held as follows: "On a bare reading of the ....
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.... persons whom the High Court felt were responsible for alleged manipulation or persons behind false implication were not impleaded as parties. Newspaper reports are not to be considered as evidence. The authenticity of the newspaper reports was not established by the writ petitioners. Even otherwise, this could not have been done in a writ petition, as disputed questions of fact were apparently involved. The matters which the High Court found to have been established were really not so. The conclusions were based on untested materials, and the writ petitioners had not established them by evidence. Since the High Court has not dealt with the matter in the proper perspective we feel that it would be proper for the High Court to rehear the matter. The High Court shall first decide the preliminary objections raised by the present appellants about the non-maintainability of the writ petitions. Normally such a course is not to be adopted. But in view of the peculiar facts involved, it would be the appropriate course to be adopted in the present case. Therefore, we remit the matter to the High Court for fresh hearing. We make it clear that whatever we have observed should not be treated t....
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....ce by this Court?" 20. The learned Additional Solicitor General at the very outset submitted that issues involving security of the State were extremely complex and the issue related to the expediency and desirability of retaining officers in the Army who had become security suspects. The instant cases of the respondent officers were examined at various levels in the Army Headquarters as also in the Central Government and the final decision to exercise the power to pass an order of termination was taken by it under Section 18 of the Army Act. Learned counsel relied upon the judgment of this Court in B.P. Singhal vs. Union of India & Ors. (2010) 6 SCC 331 and contended that the parameters that are required to be taken into consideration for exercise of power under Article 310 of the Constitution are varied. Several of these parameters entail evaluation of issues relevant to the security of the State. The factors that form the basis of exercise of power under Article 310 of the Constitution cannot be said to be objective parameters that are amenable to judicially manageable standards. The reasons that form the basis of exercise of power under Article 310 can extend to varied levels....
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....onal Solicitor General further contended that in a matter of civilian employees, Article 311 represents a limitation over the absoluteness of pleasure doctrine contained in Article 310. In Moti Ram Deka (supra) and in the subsequent cases, this Court laid down that Article 311 introduces a twofold procedural safeguard in favour of an employee/officer in relation to the exercise of pleasure doctrine. However, Article 311 applies only in cases of punishment and not otherwise. The availability of the safeguards provided for under Article 311 is contingent upon and limited to cases where the power of termination of services of an employee/officer is exercised by the disciplinary authority by way of punishment. The applicability of Article 311 of the Constitution being dependent on the factum of the order of termination being in the nature of a punishment, judicial review undertaken in case of civilian employees entails the necessity for and the power of determining as to whether the order impugned is in the nature of a punishment or not. The doctrine of "foundation", "camouflage" and the principles of judicial review, encompassing the necessity and the power of determining, whether the....
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....use or reason and this is precisely what has been laid down by this Court in B.P. Singhal (supra). He further contends that the power under Article 310 also encompasses the power to dismiss an employee or officer for misconduct and Article 311 is inapplicable in respect of an employee or officer of the armed forces. It is further submitted that in case of armed forces scrutiny of an order passed under Article 310 would neither warrant an enquiry as to the foundation of the order nor an enquiry as to whether the order is in the nature of punishment. Therefore, he submits that the necessary corollary thereof would be that the competent authority is also free to abandon any statutory procedure at any stage and take resort to the constitutional power under Article 310 by the President to terminate the services of an employee/officer of the armed forces. The ambit of such power cannot be circumscribed with reference to the concepts that govern the exercise of the power in relation to civilian employees/officers. 23. Learned Additional Solicitor General put reliance on Chief of Army Staff vs. Major Dharam Pal Kukrety, (1985) 2 SCC 412 where this Court has also upheld the competent aut....
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....ness. Learned senior counsel submitted that when the charges against the present respondent were not substantiated he was released from arrest and suspended from duties. He was granted leave and after that he was recalled for duty and an order of dismissal dated 11.01.1980 was served and handed over to the respondent. Subsequently, by a corrigendum the order of dismissal of the respondent was substituted by an order of termination. 25. Mr. Rao, has not disputed the fact that the said respondent Major S.P. Sharma filed a writ petition being W.P. No.418 of 1980 challenging the order of dismissal dated 11.01.1980. The said writ petition was dismissed by a Division Bench of the Delhi High Court and against the said order the respondent preferred a Special Leave Petition before this Court being 7225 of 1980 which was also dismissed. When the order of dismissal attained finality, the respondent was served with a show cause notice as to why a cut-off 5% in the retirement gratuity and Death-Cum-Retirement Gratuity be not imposed as his service was not satisfactory. The respondent Sharma again challenged the said notice by filing a writ petition in the High Court being W.P. No.1643 of 19....
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.... cannot be taken away on the plea of doctrine of pleasure. In this connection he relied on I.R. Coelho vs. State of Tamil Nadu, (2007) 2 SCC 1. 30. Mr. Rao then contended that Article 33 of the Constitution is in the nature of exception but it does not abrogate the fundamental rights. In other words, Article 33 does not speak about the basic structure of the Constitution. Learned counsel relied upon the decision of this Court in B.P. Singhal vs. U.O.I., (2010) 6 SCC 331. 31. Mr. Rao then contended that Article 33 in any event shall be given restricted interpretation for the reason that any law which restricts the fundamental rights shall be strictly interpreted. In this connection learned counsel referred to (1974) 1 SCC 645: Bhut Nath Mete vs. State of West Bengal. Mr. Rao addressed on legal malice and malice in law and referred a decision of this Court in Ravi Yashwant Bhoir vs. District Collector, Raigad & Ors., (2012) 4 SCC 407. 32. Mr. Rao submitted that only notings were produced before the High Court but the material on the basis of which opinion was formed was not produced. The detailed summary of evidence, different memos and other documents produced in the court ....
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..... Susai(dead) by LRs. (1991) 1 SCC 494 and Kishan Lal vs. State of J&K (1994) 4 SCC 422. Learned counsel then contended that the issue involved in the later proceedings was not an issue in the earlier proceedings inasmuch as the later writ petition was filed challenging the subsequent order converting the order of dismissal to order of termination and also a notification as to cut of gratuity. 36. Mrs. Suri then submitted that the order in the first proceeding is an order which has been the result of suppression of documents/facts by the appellant when these facts/documents were only within the knowledge of the appellant. Hence suppression of facts and documents would not entitle the appellant to raise the technical plea of res judicata and to take advantage of the same. It was contended that the appellant is under the public duty to disclose the true facts to the court which has not been done and it will amount to obtaining the order by fraud. 37. On the issue of doctrine of pleasure Mrs. Suri submitted that exercise of doctrine of pleasure in the absence of any material evidence against the respondent and non-production of relevant records of these officers render the order....
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....s. Amrita Sanghi, learned counsel appearing for the respondent in C.A. No.2955 of 2001 on the issue of res judicata, firstly contended that the earlier writ petition filed by the respondent challenging the order of dismissal was dismissed up to this Court without going into the merit of the case and the issue of malafide was not discussed. It was contended that the second writ petition challenging the order of termination and the show cause notice for deducting 5% of the gratuity was on the basis of a fresh cause of action inasmuch as the dismissal of writ petition up to this Court put an end to the proceedings of dismissal until the Government came out with the order of termination with ulterior motives. Learned counsel then contended that this Court in the order dated 17.11.1994 in Special Leave Petition agreed with the Full Bench and the matter was sent back to the High Court for decision on merit. It was for the first time the appellant-Union of India made out a case that petitioners had been caught doing espionage activity and thus considered a security suspect. Adopting the argument of Mr. P.P. Rao, learned senior counsel submitted that Article 33 of the Constitution does not....
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....e decision to be taken by the authorities concerned for terminating service of the officers. We wanted to satisfy ourselves about the basis on which the action was proposed by the Directorate Military Intelligence. Apparently, the Directorate of Military Intelligence though that they are not obliged in law to produce any record before the Court and the decision of the Directorate Military Intelligence cannot be scrutinised by this Court. xxxxx xxxxx 129. It has now become absolutely necessary to Notice the records produced by the respondents. When one the learned addl. Solicitor General submitted that though the respondents had claimed privilege they had no objection to place all the records for the perusal of this Court to satisfy whether the respondents had acted in accordance with law. It is a little disturbing to note that respondents instead of producing the releva....
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....w reigns supreme the deportment of the respondents cannot at all be tolerated. Justice Holmes of the Supreme Court of the United States of America Speaking for the Supreme Court in Wisconsin vs. Illinois, 281 US 179. "The State "must... yield to an authority that is paramount to the State". 45. Mr. Paras Kuhad, learned Additional Solicitor General assailed the aforesaid finding as being incorrect and submitted that all the relevant materials were produced before the Court and after hearing was concluded, all those original papers were returned back to the appellant. The appellant had submitted the photocopy of all the relevant material. 46. During the course of hearing, Learned Additional Solicitor General produced before us all those files and documents which were produced before the High Court. The Additional Solicitor General also produced the link file as directed by us. 47. Mrs. Kiran Suri, learned senior counsel appearing in one of the Civil Appeal No.2954 of 2001, submitted a note wherein she has mentioned that on 3.1.2001 the Advocate received back the following original file from the High Court as per the receipt produced by the appellant in L.P.A. No.43 ....
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....ormation with the Pakistani intruders. 50. On assessing the materials contained in link file and the notings showing the suggestions and recommendations up to the level of defence ministry and the Prime Minister, it cannot be held that the impugned order of termination of services have been passed without any material available on record. There is no dispute that order of termination passed against the Army personnel in exercise of 'pleasure doctrine', is subject to judicial review, but while exercising judicial review, this court cannot substitute its own conclusion on the basis of materials on record. The Court exercising the power of judicial review has certain limitations, particularly in the cases of this nature. The safety and security of the nation is above all/everything. When the President in exercise of its constitutional power terminates the services of the Army officers, whose tenure of services are at the pleasure of the President and such termination is based on materials on record, then this court in exercise of powers of judicial review should be slow in interfering with such pleasure of President exercising constitutional power. In a constitutional set up, when ....
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....s of executive action, such as the one under Article 356(1) no doubt is to be non-justiciable. The amended Article 356(5) of the Constitution indicates that the Constitution-makers did not want such an issue raising a mere question of sufficiency of grounds to be justiciable. To the same effect are the provisions contained in Articles 352(5), 360(5). Similarly, Articles 123(4), 213(4), 239 B(4) bar the jurisdiction of courts to examine matters which lie within the executive discretion. Such discretion is governed by a large element of policy which is not amenable to the jurisdiction of courts except in cases of patent or indubitable malafides or excess of power. Its exercise rests on materials which are not examinable by courts. Indeed, it is difficult to imagine how the grounds of action under Article 356(1) could be examined when Article 74(2) lays down that "the question whether any, and if so, what advice was tendered by the Ministers to the President, shall not be inquired into in any court". 54. In order to appreciate the application of constitutional provisions in respect of defence services, it would be appropriate to quote Articles 309, 310 and 311 of the Constitution. ....
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.... civil capacities under the Union or a State (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that author....
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....y person who is a member of civil services of the Union or the State or holds civil posts under the Union or a State shall not be removed or dismissed from service by an authority subordinate to that by which he was appointed. Further, clause (ii) of Article 311 mandates that such removal or dismissal or reduction in rank of the members of the civil services of the Union or the State shall be only after giving reasonable opportunity of hearing in respect of the charges leveled against him. However, proviso to Article 311 (2) makes it clear that this clause shall not apply inter-alia where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry. 58. The expression "except as otherwise provided in the Constitution" as contained in Article 310 (1) means this Article is subject only to the express provision made in the Constitution. No provision in the statute can curtail the provisions of Article 310 of the Constitution. At this juncture, I would like to refer Sections 18 and 19 of the Army Act as under:- "18. Tenure of service under the Act - Every person subject to this Act....
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.... by the rule of law. In a nineteenth century feudal set-up unfettered power and discretion of the Crown was not an alien concept. However, in a democracy governed by rule of law, where arbitrariness in any form is eschewed, no Government or authority has the right to do what it pleases. The doctrine of pleasure does not mean a licence to act arbitrarily, capriciously or whimsically. It is presumed that discretionary powers conferred in absolute and unfettered terms on any public authority will necessarily and obviously be exercised reasonably and for the public good. 33. The doctrine of pleasure as originally envisaged in England was a prerogative power which was unfettered. It meant that the holder of an office under pleasure could be removed at any time, without notice, without assigning cause, and without there being a need for any cause. But where the rule of law prevails, there is nothing like unfettered discretion or unaccountable action. The degree of need for reason may vary. The degree of scrutiny during judicial review may vary. But the need for reason exists. As a result when the Constitution of India provides that some offices will be held during the pleasure o....
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....aw is unexceptional. However, it is for the person who challenges it on the ground of malafides, to make out a prima facie case in that behalf. It is only if he discharges the said burden, that the Government is called upon to show that it is not passed in the malafide exercise of its powers. While doing so, the Government is not precluded from claiming the privilege in respect of the material which may be in its possession and on the basis of which the order is passed. The Government may also choose to show the material only to the court. With regard to the pleadings in respect of the challenge to the order on the ground of malafides, no particular formula can be laid down. The pleadings will depend upon the facts of each case. 3. The appellants are permitted to withdraw from the appeal-memo, pp. 221 to 232 which according to the learned Solicitor General have been annexed to the memo inadvertently. 4. The appeals are disposed of accordingly with no order as to costs." 63. The Full Bench of the Delhi High Court while answering the reference has observed in paragraphs 37 and 38 which is quoted hereunder:- "37. Undoubtedly, the power under Section 18 ca....
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....my personnel being undesirable, the Chief of Army Staff could resort to Rule 14, indicating thereby that even after resorting to court martial proceedings if it is found inexpedient to continue with the Court Martial proceedings it was open to resort to proceedings under Section 19 of the Army Act. The Supreme Court observed: "The crucial question, therefore, is whether the Central Government or the Chief of the Army Staff can have resort to Rule 14 of the Army Rules. Though it is open to the Central Government or the Chief of the Army Staff to have recourse to that rule in the first instance without directing trial by a court-martial of the concerned officer, there is no provision in the Army Act or in Rule 14 or any of the other rules of the Army Rules which prohibits the Central Government or the Chief of the Army Staff from resorting in such a case to Rule 14. Can it, however, be said that in such a case a trial by a court- martial is inexpedient or impracticable? The Shorter Oxford English Dictionary, Third Edition, defines the word 'inexpedient' as meaning "not expedient; disadvantageous in the circumstances, inadvisable, impolite". The same dictionary define....
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....425 of 1980 before the Delhi High Court. These respondents challenged the said termination order as being illegal and malafide. The High Court vide order dated 21.4.1980 dismissed the writ petitions. The Order dated 21.4.1980 reads as under:- "Dismissal from service is under Section 18 of the Army act which is complimentary to Article 310 of the Constitution. This means that the Officer held the tenure during the pleasure of the President. It has been contended that it was not in accordance with the provisions of the Act and that due procedure for dismissal for misconduct has not been followed. The impugned order does not say whether the dismissal is for misconduct or otherwise. It only sets out the pleasure doctrine. In this view of the matter, no case made out for interference. Dismissed." 66. Respondents then preferred special leave petitions against the aforesaid order dated 21.4.1980 being SLP Nos. 7225 and 7233 of 1980. A three-Judge Bench of this Court dismissed the special leave petition by order dated 1.9.1980. In the year 1982, the show cause notices dated 10.5.1982 were issued to the officers whose services were terminated informing them that their services w....
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.... petition cannot be filed collaterally to set aside the judgment of the same High Court rendered in earlier round of litigation upholding the termination order. In our view, the High Court has committed a manifest error by not lawfully defining the scope of the fresh round of litigation on the principles of res judicata and doctrine of finality. To establish fraud, it is the material available which may lead to the conclusion that the failure to produce the material was deliberate or suppressed or even otherwise occasioned a failure of justice. This also, can be attempted if legally permissible only in the said proceedings and not in a collateral challenge raised after the matter has been finally decided in the first round of litigation. It is to be noticed that the judgment which had become final in 1980 also included writ petition no.418 of 1980 filed by the respondent S.P. Sharma. Once, this Court had put a seal to the said litigation vide judgment dated 1.9.1980 then a second round of litigation by the same respondents including S.P. Sharma in writ petition no. 1643 of 1982 was misplaced. 68. The very genesis of an identical challenge relating to the same proceedings of term....
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....n the basis of its effect in accordance with law. Frequent resort to the decision in Antulay (AIR 1988 SC 1531) in such situations is wholly misconceived and impels us to emphasis this fact." 74. In M. Nagabhushana vs. State of Karnataka & Ors., AIR 2011 SC 1113, this Court held that doctrine of res-judicata was not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. The main object of the doctrine is to promote a fair administration of justice and to prevent abuse of process of the court on the issues which have become final between the parties. The doctrine was based on two age old principles, namely, 'interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is 'nemo debet bis vexari si constat curiae quod sit pro una et eadem causa' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. 75. Thus, the principle of finality of litigation is based on a sound firm principle of public policy. In the absence of such a pri....
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....ssential ingredients of the rule of law. Certainty in law would be considerably eroded and suffer a serious setback if the highest court of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years. In quite a number of cases which come up before this Court, two views are possible, and simply because the Court considers that the view not taken by the Court in the earlier case was a better view of the matter would not justify' the overruling of the view. The law laid down by this Court is binding upon all courts in the country under Article 141 of the Constitution, and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law. " Thus, in view of above, it can be held that doctrine of finality has to be a....
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....ded by a competent Court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent p....