Union Of India And Ors vs Major S.P. Sharma And Ors

2. Before we proceed with the matter, it would be appropriate to highlight the factual background and brief history of the case.

Out of the 19 officers, 3 officers were tried by GCM, two were convicted, namely, Captain Ranbir Singh Rathaur and Captain A.K. Rana, and one was acquitted. Captain Ranbir Singh Rathaur and Captain A.K. Rana were sentenced to RI for 14 years each and were cashiered. Against 13 officers, disciplinary actions were initiated. However, a decision was taken not to try them and an administrative order under Section 18 of the Army Act, 1950 (in short “the Army Act”) was passed terminating their services.

3. The present appeals arise out of the order passed way back in 1980 terminating the services of the respondents herein which were brought invoking the doctrine of pleasure as enshrined under Article 310 of the Constitution of India, 1950 (hereinafter referred to as the ‘Constitution’) coupled with the powers to be exercised under Section 18 of the Army Act. Initially, the orders of dismissal were passed on 11.1.1980, which were assailed in nine writ petitions that were dismissed by the High Court of Delhi on 21.4.1980. The special leave petitions against these writ petitions came to be dismissed by this Court on 1.9.1980.

5. Against the order of the learned Single Judge dated 22.3.1985, several Letters Patent Appeals were filed. One of the appeals, being LPA No.116 of 1985, filed by one N.D. Sharma, was decided vide judgment dated 19.8.1986 upholding the order of termination approving the applicability of the doctrine of pleasure. However, at the same time, the appeal was partly allowed in relation to the post-retiral benefits keeping in view the provisions under the Army Act and Rules and it was found that the proposed 5% cut-off was not in accordance with the Act/Rules applicable therein.

6. Several LPAs were filed by other officers relying on the Division Bench judgment extending the post-retiral benefits, and a plea for similar relief was raised.

9. It appears that after the answer of reference, the pending appeals were taken up for decision by the High Court. On account of the answer given by the Full Bench, fresh petitions were filed by those officers whose petitions had been dismissed earlier upto this Court as referred to hereinabove, in 1980. Some writ petitioners, whose petitions had been dismissed by learned Single Judge, filed Letters Patent Appeals with applications for condonation of delay. Appeals were also filed against those judgments that were given in the second round of litigation proposing to refuse 5% of the terminal benefits referred to hereinabove. These categories of petitions were described by the Division Bench hearing the matter in its order dated 2.5.1995, as under

10. Thereafter two writ petitions that were filed afresh, namely, in the case of Major Subhash Juneja and Harish Lal Singh, were heard separately and dealt with the principle of res judicata and constructive res judicata. The said writ petitions were held to be barred by law vide judgment dated 8.3.1996. The other connected petitions also appeared to have been dismissed as not maintainable by another Division Bench vide order dated 7.9.1992.

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:

25. Mr. Rao, has not disputed the fact that the said respondent Major S.P. Sharma filed a writ petition being W.P. No.418 of 1980 challenging the order of dismissal dated 11.01.1980. The said writ petition was dismissed by a Division Bench of the Delhi High Court and against the said order the respondent preferred a Special Leave Petition before this Court being 7225 of 1980 which was also dismissed. When the order of dismissal attained finality, the respondent was served with a show cause notice as to why a cut-off 5% in the retirement gratuity and Death-Cum-Retirement Gratuity be not imposed as his service was not satisfactory. The respondent Sharma again challenged the said notice by filing a writ petition in the High Court being W.P. No.1643 of 1982. In the said Writ Petition the respondent also challenged the order dated 03.03.1980 by which the dismissal was substituted by an order of termination. The said writ petition was dismissed by the High Court on 22.03.1985 holding that the said order of termination is a termination simpliciter without being any stigma attached. The said order was challenged by the respondent by filing LPA No.77 of 1993. The matter then travelled to a Full Bench and finally concluded by the impugned order passed by the Division Bench of the Delhi High Court.

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.

iii) File containing analysis of Espionage cases in the respect of all the Appellants.

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.”

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:-

66. Respondents then preferred special leave petitions against the aforesaid order dated 21.4.1980 being SLP Nos. 7225 and 7233 of 1980. A three-Judge Bench of this Court dismissed the special leave petition by order dated 1.9.1980. In the year 1982, the show cause notices dated 10.5.1982 were issued to the officers whose services were terminated informing them that their services were not considered satisfactory by the Pensionary Authority and, therefore, why not 5% of the gratuity or pension be deducted. On receipt of the said show cause notices, eight of the officers, whose services were terminated initiated the second round of litigation by filing writ petitions being C.W.P Nos. 1643-1646 of 1982, 1777 of 1982, 804 of 1982, 1666 of 1982 praying not only to quash the show cause notices, but also to quash the order of termination of their services. All those writ petitions were finally heard and came to be dismissed by the Delhi High Court vide judgment dated 22.3.1985. Aggrieved by the said order, the respondents filed Letters Patent Appeal before the Delhi High Court. The Division Bench of the High Court after hearing the appeal formulated questions of law and referred the same to the Full Bench by order dated 15.5.1991. The question of law framed by the Division Bench was “whether the order of termination passed by and in the name of President under Section 18 of the Army Act read with Article 310 of the Constitution invoking doctrine of pleasure of the President be challenged on the ground that it is camouflage and as such is violative of principles of natural justice and the fundamental rights guaranteed under Article 14 of the Constitution?”.

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.