( 1 ) IN the year 1977 a large number of Army personnel were suspected of being involved in espionage activities with Pakistan. This was known as the Samha Spy Scandal. Some of the personnel were tried and convicted while services of those personnel in respect of whom there was only a suspicion were terminated under Section 18 of the Army Act. These Letters Patent

( 2 ) APPEALS have been filed by those persons whose services were terminated under Section 18 of the Army Act.

( 3 ) WHEN the appeals came up for hearing before a Division Bench of this Court it was contended by the appellants that the order of termination though purported to have been passed under Section 18 of the Army Act by and in the name of the President by exercising his presidential prerogative, in fact, the order was one of dismissal on the ground of miscon3uct. lt was submitted that the order of termina- tion was a camouflage and on lifting the veil it would be apparent that the dismissal was by way of punishment. It was submitted that when it was found that adequate evidence was not available to convict the appellant before the court martial, the impugned order was passed by using the presidential prerogative. As such, the order was malafide. lt was contended that even though the order was passed under Article 310 of the Constitution of India read with Section 18 of the Army Act since it violates the fundamental right guaranteed to the same could not be sustained. It was contended that though Article 311 (2) of the Constitution of India is not applicable to Defence Services, rules of natural justice must be complied with because the de 63 fence personnel enjoy the protection guaranteed under Article 14 of the Constitution of India. A reference was also made to another judgment of this Court in another LPA being LPA No. ll6 of 1985. Para 22 of the said judgment reads thus:

"now turning to the question as to whether the termination is valid because Section 18 was not applicable, we are of the view that there are two possibilities. Either the termination order has to be set aside on the ground that it was passed without an enquiry on account of misconduct or some other way must be found to reconcile the provisions of Section 18 and 19 of the Army Act. The appellant who appeared in person submitted with a great deal of eloquence that he had served during two campaigns on the Front Line in the service of the country, but no one had said that his service was unsatisfactory. He submits that the termination orders were passed as a result of certain statements, which have later been found to be incorrect and we would bejustified in setting aside the termination because it was passed on the ground of alleged misconduct which was never inquired into. We see a great deal of force in this submission but we are reluctant to accept this point of view because it is against the discipline of an Armed Force. The fact that the President has used his pleasure to terminate the services of the appellant is a disincentive to hold that we can interfere with that pleasure in a writ petition. We are, therefore, inclined to take the opposite point of view to hold that the Presidential order terminating the services of the appellant was not passed on the ground that the service was unsatisfactory. The provisions of Regulation 3 referred to earlier, would show that a positive reason must exist for holding the services to be unsatisfactory. The mere fact that the services were terminated under the pleasure doctrine is no reason for holding that the services were not satisfactory We have taken this easier way out, as otherwise we would be compelled to hold that the termination was void and invalid. "

( 4 ) THE Division Bench, therefore, referred the following question of law for consideration by a larger Bench:

"whether the order of termination passed by and in the name of the President undersection 18 of the Army Act read with Article 310 of the Constitution invoking the