IMPORTANT POINT
Powers of President under Article 310 in respect of defence personnel is not controlled or governed by my Article 309 or 311 of the Constitution or the Act.

Headnote:(a) Administration of Justice – Judicial Review – Constitution of India – Article 310 – Pleasure doctrine – Order terminating services of Army officers invoking Article 310 – Amenable to judicial review – No interference if decision based on materials on records – Authorities not obliged to assign any reason or disclose any cause for removal. (Para 50)
       (b) Army Act, 1950 – Section 18 r/w Article 310, Constitution of India – Authorities after detailed investigation terminating services of officers found involved in espionage case – Sufficiency of ground cannot be questioned. (Para 52)
       (1977) 3 SCC 592 – Relied upon
       (c) Constitution of India – Article 310 and 311 – Proviso to Article 311(2) – Not applicable in cases involving security of the State – Article 310 is subject only to express provision made in the Constitution – No provision in any statute, including Army Act, can curtail the provisions of Article 310 of the Constitution. (Para 57, 58)
       (1961) 2 SCR 679 – Referred
       (d) Constitution of India – Articles 309, 310 and 311 – Article 309 cannot impair or affect the pleasure of the President conferred by Article 310 – Article 309 has to be read subject to Articles 310 and 311 – Article 310 has to be read subject to Article 311. (Para 59)
       (1964) 5 SCR, 683; (2010) 6 SCC 331 – Relied upon
       (2013) 10 SCC 150 – Referred
       (e) Constitution of India – Article 310 – Pleasure doctrine – In case of defence personnel President has absolute pleasure to discontinue the services – Safeguard under Article 311 is not available to defence personnel – Section 18 of the Army Act is in consonance with Article 310. (Para 64)
       AIR 1965 SC 247; (1985) 2 SCC 412; 1968 (3) SCR 862; 1959 SCR 1424; (2007) 2 SCC 1; (1974) 1 SCC 645; (2012) 4 SCC 407; (1994) 3 SCC 1; (1989) 4 SCC 187; (1991) 1 SCC 494; (1994) 4 SCC 422; (1994) 4 SCC 1; (2004) 1 SCC 551; (1978) 1 SCC 248; AIR 2002 SC 1771 – Referred
       (f) Administration of Justice – Merger doctrine and principle of res judicata – Judgment and findings attaining finality – Reinvestigated facts coming to knowledge – Can be used to review the concerned judgment – Cannot be a basis to reopen the issue by fresh writ petition. (Para 67, 76, 77, 84)
       AIR 1967 SC 1; AIR 1996 SC 1611; AIR 1997 SC 116; (1996) 3 SCC 114; AIR 2011 SC 1113; AIR 2002 SC 1771; AIR 1974 SC 2009; AIR 1980 SC 1762; (2006) 11 SCC 696 – Relied upon
       (1970)1 SCC 613 – Distinguished
       Facts of the case:
       Some officers of the Army were charged tried and convicted by GCM for espionage. They were terminated.
       The High Court quashed the termination and in case of two officers also quashed the GCM proceedings.
       Finding of the Court:
       Termination order is based on materials on record.

JUDGMENT

M.Y. EQBAL, J. –

1. These appeals have been filed against the common judgment and order dated 21.12.2000 passed by Delhi High Court in L.P.A. Nos. 4, 43, 139, 148 of 1987, 21 of 1988, 77 of 1993 and 86 of 1994. By the said judgment, the High Court allowed the appeals preferred by the respondents and quashed not only their termination orders but also the General Court Martial (hereinafter referred to as ‘GCM’) proceedings held against Captain Ashok Kumar Rana and Captain R.S. Rathaur.

2. Before we proceed with the matter, it would be appropriate to highlight the factual background and brief history of the case. In February 1971, Gunner Sarwan Dass was cultivated by Pakistan Intelligence. In 1972 Captain Ghalwat and Gunner Sarwan Dass crossed the international border. In 1973 Captain Ghalwat and Gunner Sarwan Dass were posted in Babina (M.P.). In 1974 Gunner Aya Singh was cultivated by Gunner Sarwan Dass for Pak Intelligence. Captain Nagial was then cultivated by Aya Singh for Pak Intelligence. In 1975 for the first time the espionage racket came to be noticed. Aya Singh and Sarwan Dass were arrested. In 1976-77 pursuant to the investigation, three more jawans were arrested. They corroborated the involvement of Sarwan Dass. Sarwan Dass and Aya Singh on further interrogation disclosed the names of Captain Ghalwat and Captain Nagial. In 1976-77 Captain Ghalwat and Captain Nagial were tried by GCM and were convicted. Ghalwat was cashiered and given 14 years’ RI. Nagial was given 7 years’ RI and was also cashiered. In addition, 12 jawans were tried and they were given RI of various descriptions and were dismissed from services. Aya Singh and Sarwan Dass were also among the 12 jawans tried and held guilty. Later in 1978 it was discovered that Aya Singh was holding back certain relevant information relating to espionage activities under certain alleged threat and pressure. Wife of Aya Singh claimed to be killed. Reeling under the shock of the circumstances, he made further disclosures wherein he named Captain Rathaur and Captain A.K. Rana; disclosed that he had been receiving threats that if he disclosed anything his wife would be killed. Accordingly, in 1978 Captain Rathaur and Captain A.K. Rana were interrogated. As a result, 42 army personnel i.e. 19 officers, 4 junior commissioned officers (JCOs) and 19 other ranks (ORs), were arrested. Out of the 19 officers, 3 officers were tried by GCM, two were convicted, namely, Captain Ranbir Singh Rathaur and Captain A.K. Rana, and one was acquitted. Captain Ranbir Singh Rathaur and Captain A.K. Rana were sentenced to RI for 14 years each and were cashiered. Against 13 officers, disciplinary actions were initiated. However, a decision was taken not to try them and an administrative order under Section 18 of the Army Act, 1950 (in short “the Army Act”) was passed terminating their services.

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

4. In the meanwhile, a corrigendum came to be issued, as a result whereof, the orders of dismissal were described as orders of termination. On account of the substituted termination order, a decision for deducting 5% of the gratuity amount was taken, which was communicated afresh. These orders made a fresh ground of challenge before a learned Single Judge of the Delhi High Court. The learned Single Judge dismissed the petition by a detailed judgment dated 22.3.1985. Simultaneousl

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2014 Supreme(SC) 188

SUPREME COURT OF INDIADr. B.S. Chauhan, J. Chelameswar, M.Y. Eqbal, JJ.UNION OF INDIA AND OTHERS – APPELLANTSVERSUSMAJOR S.P. SHARMA AND OTHERS – RESPONDENTSCIVIL APPEAL NOs.2951-2957 OF 2001Decided On : 06-03-2014

IMPORTANT POINTPowers of President under Article 310 in respect of defence personnel is not controlled or governed by my Article 309 or 311 of the Constitution or the Act.

Cases Referred (29)

SUPREME COURT OF INDIA
Dr. B.S. Chauhan, J. Chelameswar, M.Y. Eqbal, JJ.
UNION OF INDIA AND OTHERS – APPELLANTS
VERSUS
MAJOR S.P. SHARMA AND OTHERS – RESPONDENTS
CIVIL APPEAL NOs.2951-2957 OF 2001
Decided On : 06-03-2014

IMPORTANT POINT
Powers of President under Article 310 in respect of defence personnel is not controlled or governed by my Article 309 or 311 of the Constitution or the Act.