Union Of India And Others v. Major S.P Sharma And Others

Order

1. These appeals are filed by the appellants against the common judgment and order dated 21-12-2000 passed by the Delhi High Court in N.R Ajwani v. Union of India (2002) 95 DLT 770 wherein the High Court quashed not only the termination orders but also the court-martial proceedings held against Captain Ashok Kumar Rana and Captain R.S Rathaur, framing certain questions of law that would arise according to them for consideration of this Court and urging grounds in support of the same, praying for setting aside the impugned judgment and order (2002) 95 DLT 770 by allowing these appeals and dismissing the writ petitions filed by the respondents herein.

2. Relevant brief facts of the case are stated hereunder for the purpose of appreciating the rival legal contentions to answer the points that are formulated in these appeals. All the respondents, except respondents Captain Ashok Kumar Rana and Captain R.S Rathaur, challenged the termination order passed by the appellants which was affirmed by the High Court and this Court. During 1975-1980, on the basis of intelligence reports and on apprehension of some person, a large number of officers/JCOs/other rank officers were suspected to be involved in espionage activities with Pakistan and were considered a security threat to the nation. Considering the nature and extent of involvement in such activities some of the officers were tried by Court Martial and against other officers, administrative action was taken under Section 18 of the Army Act, 1950. Consequently, their services were terminated. According to the appellants, a total of 42 army personnel (19 officers, 4 JCOs and 19 other rank officers) were found suspected to be involved in the espionage activities. All the respondents in these appeals were permanent Commissioned Officers of the Indian Army. Vide order dated 11-1-1980 read with order dated 3-3-1980 their services were terminated under Section 18 of the Army Act.

3. Aggrieved by the termination order, the respondents, except Major R.K Midha and Major N.R Ajwani, filed writ petitions being CWPs Nos. 418, 419, 421, 424 and 425 of 1980 before the High Court of Delhi urging various grounds including the ground of mala fides. The High Court vide order dated 21-4-1980 dismissed the writ petitions. The respondents aggrieved by the said order challenged the same by filing SLPs (C) Nos. 7225-33 of 1980 urging the ground that the termination order was vitiated by mala fides. This Court vide its common order dated 1-9-1980 dismissed the special leave petitions.

4. It is also pertinent to point out that the Delhi High Court in the aforesaid writ petitions did not go into the merits of the case and upheld the order of termination. The appellants herein filed special leave petitions against the order dated 21-4-1980 which were also dismissed. The aforesaid persons have also filed second round of writ petitions before the Delhi High Court being WPs Nos. 804, 1643 to 1647, 1666 and 1777 of 1982, 970 and 1022 of 1980 questioning the order of termination and also order dated 3-3-1980 by which the appellants converted dismissal order into order of termination and served the order on all the aforesaid respondent officers by the end of July 1980 and the show-cause notice dated 10-5-1982 proposed to impose a 5% cut on the gratuity as their services were considered unsatisfactory which is punitive. Also, the foundation of the order of termination was unsatisfactory service for undisclosed reasons. The aforesaid order of termination and the show-cause notice dated 10-5-1982 were challenged by the respondent officers on the ground of mala fides as the said order was not preceded by an inquiry into the allegation of serious misconduct against them and no opportunity was given to them to defend themselves and that the earlier writ petitions were dismissed in limine and also that they were never tried by a Court Martial on the ground of alleged misconduct of espionage. In the said writ petitions, in the counter-affidavit filed by the Union of India, a specific plea was taken that the orders of termination were passed against the respondent officers because they were allegedly involved in espionage. The learned Single Judge dismissed the writ petitions on 22-3-1985. Aggrieved by the said order the respondent officers filed LPAs before the Delhi High Court. In the said proceedings, question of law was framed by the Division Bench and referred to the Full Bench on 15-5-1991.

5. Having regard to the nature of the termination order passed by the first appellant, the following question of law was framed:

“Whether the order of termination passed by and in the name of the President under Section 18 of the Army Act read with Article 310 of the Constitution invoking the doctrine of pleasure of President be challenged on the ground that it is camouflage and as such is violative of the principles of natural justice and the fundamental right guaranteed under Article 14 of the Constitution?”

6. The Full Bench of the Delhi High Court answered the aforesaid question of law on 8-7-1994 (1994) 30 DRJ 178, (1994) 55 DLT 217 in affirmative holding as under: (DRJ p. 204, paras 54-55)

“54. In our opinion, the concept of ‘camouflage’ is a facet of judicial review and the court would lift the veil in all the cases where it appears that power is used for a collateral purpose under the cloak or garb of innocuous form of an order and determine the true character of the order under challenge.

55. Under the circumstances, for the aforementioned reasons the answer to the reference is that an order under Section 18 of the Army Act read with Article 310 of the Constitution of India invoking the doctrine of pleasure of President is subject to judicial review to ascertain whether the same is exercised lawfully and not vitiated for mala fides or based on extraneous grounds and that the order can be challenged on the ground that it is a camouflage.”

7. The Full Bench of the Delhi High Court, following the decision of this Court regarding doctrine of pleasure in State of U.P v. Babu Ram Upadhya AIR 1961 SC 751, (1961) 1 Cri LJ 773 has held that judicial review of the order passed under Section 18 of the Army Act was justiciable and judicial review of the same is permissible in law. The Bench had examined the merits of the case and the said question on reference was answered in affirmative in favour of the respondent officers which was the subject-matter of special leave petitions before this Court. Aggrieved with the decision rendered by the Full Bench, the appellants filed special leave petitions before this Court and this Court sent back the case to the High Court for its decision on merits. Thereafter, the Division Bench of the High Court allowed (2002) 95 DLT 770 the writ petitions after deciding the case on merits.

8. In these proceedings the appellants herein did not object regarding the maintainability of the second round of writ petitions filed by the respondent officers contending that earlier writ petitions filed by them challenging the orders of termination were dismissed on 21-4-1980. In this view of the matter it is urged by Mr P.P Rao, learned Senior Counsel, Mr Dipak Bhattacharya and Ms Kiran Suri, learned counsel appearing on behalf of the respondent officers, that it is not open for the appellants to take a plea in these proceedings at this belated stage that the second round of writ petitions filed by the respondent officers, except Major R.K Midha and Major N.R Ajwani, are not maintainable as it operates as res judicata as contended by Mr Paras Kuhad, learned Additional Solicitor General appearing for the appellants.

9. Ms Kiran Suri, learned counsel appearing on behalf of respondent, J.S Yadav in Civil Appeal No. 2957 of 2001, contended that the plea raised by the Additional Solicitor General in respect of the respondent officer that it is res judicata, as he had filed earlier Writ Petition No. 421 of 1980 challenging the dismissal order removing the respondent from service is not maintainable and the said order of the High Court was merged with the order of this Court passed in the special leave petition. It is stated that the respondent officers, except the respondent officers referred to supra, were petitioners in the writ petitions, and that the second appellant mala fide obtained the order by falsely misrepresenting facts to the High Court stating that there was ample evidence against the aforesaid respondent officers and the case was time-barred. It is also stated that Appellants 1 and 2 did not communicate to the abovesaid officers any report adverse to them and they were not given any opportunity to give any explanation. Also, the principle of natural justice was violated as the respondent was not given the relevant documents to defend himself to show the allegations made against him. It is also contended on behalf of the respondent that on the basis of the facts narrated above the first legal contention raised regarding res judicata in these proceedings by the Additional Solicitor General was not an issue in the earlier proceedings. Therefore, the contention urged by the Additional Solicitor General is wholly untenable in law.

10. It is further contended by Ms Suri that if the appellants had brought correct facts to the notice of the High Court in the earlier writ proceedings the result could have been different. The order of the High Court in the first proceedings is an order which has been the result of suppression of facts and documents by the appellants herein when the same was within the knowledge of the appellants. Suppression of the same in the earlier judicial proceedings would not entitle them to raise the technical plea of res judicata and merger and take advantage of the same in these proceedings. It is also contended by the learned counsel that the order obtained by the appellants by fraud is non est in the eye of the law. In support of her contention, the learned counsel placed reliance on the judgments of this Court in Bhaurao Dagdu Paralkar v. State of Maharashtra (2005) 7 SCC 605 and in Meghmala v. G. Narasimha Reddy (2010) 8 SCC 383. Further, the learned counsel has placed reliance upon the decision on the issue that in the proceedings under Article 226 and Article 32 of the Constitution the principle of res judicata is applicable but the exception to the rule of res judicata is that it would not operate to the detriment or impairment of fundamental rights of the respondent officers. In support of this legal contention the learned counsel has placed reliance upon the judgment of this Court in Ashok Kumar Srivastav v. National Insurance Co. Ltd. (1998) 4 SCC 361 wherein this Court held that even though the decision on an issue in Article 226 and Article 32 would operate as res judicata but the exception in the rule of res judicata is that it would not operate to the detriment or impairment of fundamental rights.

11. Further, the learned counsel submitted that admittedly in the earlier writ proceedings, the appellants have not produced the documents on the basis of which orders of termination were passed against the respondent officers and suppressed the same and claimed that they are not required to give reasons in the orders when the first appellant has exercised the doctrine of pleasure under Section 18 of the Army Act. The reasons behind a cut of 5% in gratuity payable to the respondent officers on the ground that the service is not satisfactorily brought out to true colours and reasons for termination have also not been mentioned. This has taken away the very basis of the judgment passed in the earlier judicial proceedings. Further it is clear that the order of termination was penal and therefore the prescribed procedure for holding an enquiry under the provisions of the Army Act read with the principles of natural justice should have been followed as the actions of the appellants entail serious civil consequences upon the respondent officers. These facts would go to the root of the matter. Subsequent withdrawal of the cut on the proposed gratuity amount at 5% by the appellant will not change the situation in any manner. It is further contended that the appellants are under the public duty to disclose the true facts to the court especially when documents and facts were not within the knowledge of the respondents. The said principle has been followed in the aforesaid decisions with reference to the Constitution Bench decision rendered by this Court in Daryao v. State of U.P AIR 1961 SC 1457, (1962) 1 SCR 574 Therefore, she has requested this Court to reject the legal contention regarding res judicata and merger theory urged by the Additional Solicitor General and examine the case on its merits.

12. Mr Dipak Bhattacharya, learned counsel appearing on behalf of Major R.K Midha in Civil Appeal No. 2952 of 2001 submitted and sought to justify the order passed by the High Court which is impugned in these appeals that the best evidence which would throw light on the issues of controversy of withholding of record from the court ought to have drawn an adverse inference against the appellants and further rightly the Delhi High Court has drawn adverse inference against the appellants who had deliberately withheld the best evidence in their possession from the High Court including the finding of the Intelligence Bureau's investigation in the matter. The said finding of the High Court is supported by the ratio laid down by this Court in Gopal Krishnaji Ketkar v. Mohd. Haji Latif AIR 1968 SC 1413. After placing reliance upon the judgment, he further contends that the appellants have played fraud on the High Court in obtaining the order which is contrary to the judgment of the Constitution Bench of this Court in S. Partap Singh v. State of Punjab AIR 1964 SC 72.

13. It is further contended that it is a settled law that the judgment and decree obtained by fraud is a nullity and non est in the eye of the law. Such judgment and decree obtained by fraud by the appellants herein has to be treated as a nullity in the eye of the law by the court, whether superior or inferior and the same can be challenged by a party in any court even in the collateral proceedings. In such fact situation the principle of finality of litigation between the parties cannot be pressed into service as it becomes an engine of fraud in the hands of dishonest litigants.

14. Further, strong reliance has been placed by the learned counsel upon the decisions of this Court in S.P Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1, AIR 1994 SC 853, Gowrishankar v. Joshi Amba Shankar Family Trust (1996) 3 SCC 310 and State of A.P v. T. Suryachandra Rao (2005) 6 SCC 149 in support of the legal proposition that a litigant who approaches the court is bound to produce all the documents which are in his possession and relevant to the litigation and if he or she withholds a vital document to such lis in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. The learned counsel in support of his submissions has stated that all the relevant material documents and facts were certainly withheld from the court which is the best evidence of the espionage as their security suspects, as alleged in the counter-statement filed by the appellants which evidence was in the appellants' possession which would have helped the court to examine the legality and validity of orders of termination passed against the respondent officers in exercise of constitutional power under Article 310 of the Constitution as provided under Section 18 of the Army Act. Therefore, the High Court comes to the right conclusion on the contentious issue that orders of termination passed by the first appellant are not supported by material documents. Hence, quashing the orders of termination by the High Court by passing the impugned order is justified and the same is legal and valid and does not call for interference by this Court.

15. It is contended by Mr Paras Kuhad, the learned Additional Solicitor General that writ petitions filed by S.P Sharma, V.K Dewan, Arun Sharma, Kulwant Singh and J.S Jadav, came to be dismissed by the Delhi High Court wherein they challenged the orders of dismissal in CWPs Nos. 418, 419, 421, 424 and 425 of 1980. The same came to be challenged by them in Special Leave Petitions (C) Nos. 7225-33 of 1980. This Court vide order dated 1-9-1980 dismissed the special leave petitions. Therefore, the order passed in the writ petitions against the said respondent officers stood merged in the order passed by this Court in the aforesaid special leave petitions. Further, Writ Petition No. 294 of 1979 filed by the wife of R.S Rathaur also came to be dismissed on 27-4-1979. Writ Petition No. 1577 of 1985 filed by R.S Rathaur under Article 32 before this Court questioning the correctness of the order of termination dated 11-1-1980 was dismissed on 28-4-1986. The review petition filed by him also came to be dismissed on 23-1-1987. As the special leave petition filed by N.D Sharma against the order of letters patent appeal upholding the order of termination came to be dismissed vide order dated 27-2-1987 and civil appeals filed by Subhash Juneja and Harish Pal Singh against the order of the Division Bench dismissing the writ petitions against the order of termination came to be dismissed by this Court vide its order dated 23-4-2003 (2006) 14 SCC 384, the respondents S.P Sharma and other officers are not entitled for any relief as prayed in their letters patent appeals, as they have approached this Court against the orders of termination which came to be dismissed in the earlier writ proceedings referred to supra and affirmed by this Court in special leave petitions of some of the above five officers whose cases were covered in the present civil appeals. This Court also dismissed the appeals filed against the General Court Martial, therefore, they are not entitled for any relief. The aforesaid contentions are urged apart from the legal contention urged on behalf of Union of India and others contending that the principles of res judicata under Section 11 of the Code of Civil Procedure would apply to the case in hand except the two respondent officers, namely, Major R.K Midha and Major N.R Ajwani and therefore, he has requested this Court to interfere with the orders impugned in the civil appeals.

16. The learned Additional Solicitor General further submits that termination of service of army officers is the executive action of the President and the power to do so is the executive power of the Union of India within the meaning of Article 53 of the Constitution of India. The provision of Section 18 in the Army Act states that the persons who are governed by the provisions of the Army Act hold office during the pleasure of the President in exercise of the power under Article 310 of the Constitution. Further, the learned counsel submits that the exercise of executive power by the President must be exercised in accordance with the Constitution including the provisions of Articles 14, 16, 19 and 21 and the said provisions have not been excluded from the applicability to the officers of the Army. In view of Article 33 read with provision of Section 21 of the Army Act, the rights enumerated within Article 21 are prohibited to the extent of the provision of Section 21 of the Army Act. A careful reading of the aforesaid provisions of the section shows that fundamental rights guaranteed to the officers of the Army are not dispensed with. Therefore, the orders of termination are not excluded from examining the violation of fundamental rights guaranteed to the respondent officers as mentioned above. In support of his contention, he has placed reliance upon the judgment in U.N.R Rao v. Indira Gandhi (1971) 2 SCC 63, AIR 1971 SC 1002 and A. Sanjeevi Naidu v. State of Madras (1970) 1 SCC 443, AIR 1970 SC 1102.

17. The learned counsel for the respondents, Major S.P Sharma, Capt. Arun Sharma, Capt. Kulwant Singh and Capt. Vijay Dewan in CAs Nos. 2951, 2954, 2955 and 2956 of 2001, has submitted the written submissions on their behalf both on the question of res judicata as well as on the justification of the impugned judgment (2002) 95 DLT 770 quashing the orders of termination passed by the High Court on merits. It is urged in the written submissions that the aforesaid respondent officers were dismissed from the services of the Army in exercise of power under Section 18 of the Army Act which was subsequently changed into order of termination under Section 19 of the Army Act without holding an inquiry as required in law. Therefore, the orders of termination are rightly quashed by the High Court by passing the impugned judgment (2002) 95 DLT 770 and the same does not call for interference by this Court.

18. It is further contended that the termination of the aforesaid officers from their services without conducting proper inquiry under Section 69 of the Army Act could not have been passed by Appellant 1. In fact in the counter-statement filed by the Union of India before the High Court in the writ petitions, they have specifically pleaded that the orders of termination were passed against the officers for their involvement in the espionage activities. It is also pertinent to state that the persons who were closely involved in the investigation of the so-called espionage felt that there was not even an iota of evidence against the aforesaid respondent officers, for example General Chiman Singh, T.R Rajeshwar and V.K Kaul who were high-ranking officers of IB and RAW. It is further contended that this Court dismissed the special leave petitions filed by the Union of India against the order of the Full Bench of the Delhi High Court, wherein it has answered the reference in favour of the respondent officers holding that the orders of termination terminating the services of the officers under Section 18 of the Army Act are subject to judicial review. The said special leave petitions of the appellants were dismissed by this Court and the matter was sent back to the High Court for adjudication on merits.

19. It is further contended that the action on the part of Union of India in passing the orders of termination was actually tainted with mala fides as the same are based on extraneous considerations as there was not even a single circumstantial evidence to prove the allegations made in their counter-statement. Furthermore, all the witnesses spoke about the integrity of these officers and Capt. Rana was the sole testimony who was utilised to implicate the respondent officers, who has stated, when produced in person for cross-examination in the court-martial proceedings, that they were completely innocent of the charges made against them. The Union of India in its affidavit has stated that the officers were security threat to Army as charges made against them were so serious and, on the other hand, they were not tried by Court Martial and they were punished by passing the orders of termination, therefore, the action of the Union of India in exercise of its constitutional power read with Section 18 of the Army Act, which smacks mala fide exercise of power and has been rightly quashed by the High Court in exercise of judicial review. Therefore, the learned counsel has submitted that the same does not call for interference by this Court.

20. The correctness of the common judgment (2002) 95 DLT 770 and order passed in the LPAs by the High Court is under challenge in these civil appeals urging the following grounds:

20.1 That the High Court has exceeded its jurisdiction in re-examining the validity of the termination order dated 3-3-1980 passed under Section 18 of the Army Act, when some of the respondents, Maj. S.P Sharma, Capt. Arun Sharma, Capt. Kulwant Singh and Capt. Vijay Dewan challenged the orders of termination dated 11-1-1980 before the Delhi High Court and the same came to be dismissed on 21-4-1980 and the said orders were affirmed by this Court by dismissing the special leave petitions vide order dated 1-9-1980.

20.2 That the High Court has failed to see that vide its order dated 17-11-1994, in the letters patent appeals, the High Court unambiguously has clarified that termination orders passed under Section 18 of the Army Act can be challenged on the ground of mala fides. However, a fresh cause of action cannot accrue in favour of the respondent officers who had earlier approached the court to challenge the orders whose legality and validity had already attained finality by the order of this Court.

20.3 That the High Court has gravely erred in placing the onus on the appellants to establish their case against the respondent officers especially when in the orders of this Court it was observed that it was for the respondent officers to first make out a prima facie case on the ground of mala fides and it was only if and after they had discharged that obligation, the appellants could have been called upon by the High Court to show that those orders of termination were not passed in mala fide exercise of powers.

20.4 That the High Court could not have overruled the orders passed by the other Division Benches of the High Court in Subhash Juneja v. Union of India (1996) 37 DRJ 253, (1996) 62 DLT 167 and N.D Sharma v. Union of India WP (C) No. 4585 of 1995 on 8-3-1996 and 29-10-1996 wherein it has specifically declined to re-examine the termination orders passed against the said respondent officers and more specially when one of the Hon'ble Judges was the member of the earlier Division Bench and also in N.D Sharma v. Union of India RP No. 5897 of 1997 in CWP No. 4585 of 1995 was also dismissed by the Division Bench of the High Court.

20.5 That the High Court has further failed to see when it had in its order dated 14-8-1998 observed that it had seen the original record and had only directed the counsel for the appellants to make available their photocopies, the High Court could not have allowed the appeals on the ground that relevant records were not shown to it in the earlier round of litigation.

20.6 That the High Court has failed to see that when there is neither any allegation of mala fide against the Central Government which had passed the order nor is there any finding of mala fide against any of the officers of the appellants, the High Court could not have allowed the LPAs and quashed the same by holding that the orders of termination have been passed against the respondent officers for extraneous reasons.

20.7 That the High Court could not have re-examined or reopened the entire case when in its order dated 28-4-1986 in WP (Crl.) No. 1577 of 1985 filed by Captain R.S Rathaur in which affidavits of all the respondents were annexed it had declined to call for the record or to reopen the matter or to hear it.

20.8 That the impugned judgment (2002) 95 DLT 770 passed in the LPAs amounts to hearing an appeal from the orders passed by this Court in the special leave petitions arising out of earlier writ proceedings filed by some of the respondent officers referred to supra wherein some of them have challenged the very same orders of termination and the same were affirmed by this Court in the special leave petitions arising out of earlier writ proceedings initiated by some of the respondents referred to supra.

20.9 That the impugned judgment (2002) 95 DLT 770 passed by the High Court is not based on any subsequent facts but on a reappreciation of those very facts which had already been examined by this Court in 1980 and 1985 in the earlier writ proceedings initiated by some of the respondent officers.

20.10 That the High Court has failed to see that when one of the respondent specifically pleaded in his appeal that it was related only to grant of pensionary benefits, although the prayer sought was also for quashing of termination order, the High Court committed an error by not confining itself to the issue of the grant of pensionary benefits to him but it has granted the relief of quashing the said order.

20.11 That the High Court has failed to see that when there was a delay of almost 9 years in filing of one of the LPA, the High Court could not have allowed the appeal of that respondent officer without adverting to the delay in initiating such writ proceedings before it.

21. The said legal contentions have been rebutted by the learned Senior Counsel appearing on behalf of the respondent officers. It is contended that exercise of power by the first appellant under Article 310 of the Constitution read with Section 18 of the Army Act, extends to that of examining as to whether the application of mind was adequate and as to whether the material available on record was sufficient to justify exercise of the doctrine of pleasure flowing from the powers set out under the abovesaid provisions. The recording of reasons is an absolute requirement of the principles of natural justice and has to be necessarily read into the statutory provisions and norms governing exercise of executive power. This contention was examined at length by the Constitution Bench in S.N Mukherjee v. Union of India (1990) 4 SCC 594, (1991) 16 ATC 445. This Court, after detailed examination of the legal position in US, UK and India, arrived at a conclusion that law as applicable, did not carry an obligation to record reasons in the case of every exercise of executive power.

22. Further, the learned counsel has contended that the development of law over two decades was again examined at length by this Court in Ravi Yashwant Bhoir v. Collector (2012) 4 SCC 407 wherein this Court examined the issue in the context of the constitutional scheme and held that democratic set-up of the country is a basic feature of the Constitution along with other features such as the rule of law and power of judicial review. But in S.N Mukherjee (1990) 4 SCC 594, (1991) 16 ATC 445 the Constitution Bench of this Court has laid down that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons. Further reliance is placed upon the judgment in Krishna Swami v. Union of India (1992) 4 SCC 605 wherein this Court has observed that rule of law requires that any action or decision of the statutory or public authority must be founded on the reasons stated in the order or borne out from the record and concluded with the enunciation “that reasons reveal the inscrutable face of the sphinx” and that this requirement is an indispensable part of a sound judicial system.

23. The learned Senior Counsel has further contended that power under Article 310 of the Constitution is a constitutional power conferred on a constitutional functionary and is couched in absolute terms. The said constitutional power does not seek to control the exercise of power with reference to any declared parameters. The power is conferred in absolute terms and thus exercisable at the discretion of the President. Further strong reliance is placed upon the judgment of this Court in B.P Singhal v. Union of India (2010) 6 SCC 331, paras 33, 34 and 76 in which this Court, applying the principles flowing from the doctrine of rule of law, has laid down the parameters in regard to the control and exercise of power under Article 310 of the Constitution. In the aforesaid decision it has been held as under:( & 369)

“33. … Therefore in a constitutional set-up … if no limitations or restrictions are placed on the ‘at pleasure’ doctrine, it means, that the holder of office can be removed … at any time, without notice and without assigning any cause.

34. … In other words, ‘at pleasure’ doctrine enables the removal of a person … summarily, without any obligation to give any notice or hearing … 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 fancy of the authority, but can only be for valid reasons.

76. … Where reasons are given, the Court may interfere if the reasons are found to be irrelevant. However, when reasons are not given, the Court may interfere only where the exercise of power is vitiated by self-denial….”

24. Further, the learned counsel places strong reliance upon the said judgment and the view taken by this Court in Ravi Yashwant Bhoir (2012) 4 SCC 407 to justify the submission that in the case of exercise of executive and judicial powers the reasons are necessarily required to be recorded in the order in the case of exercise of constitutional power and more specifically the power under Article 310 of the Constitution. As the view taken in the aforesaid decision by the Constitution Bench (2010) 6 SCC 331 holding that exercise of power under Article 310 can be exercised without assigning any reasons, it cannot be exercised without valid reasons.

25. The learned Additional Solicitor General contended that issues involving security of the State are 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. It is further contended that according to the Full Bench judgment of the Delhi High Court and judgment of this Court in B.P Singhal (2010) 6 SCC 331, 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 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 (2010) 6 SCC 331, it is contended by the learned Additional Solicitor General that exercise of judicial review power 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 cannot be extended to the case of judicial review of constitutional power under Article 310.

26. Further, the learned Additional Solicitor General placing strong reliance upon another Constitution Bench judgment of this Court in Moti Ram Deka v. North East Frontier Railway AIR 1964 SC 600, (1964) 5 SCR 683 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. Further, the Constitution Bench of this Court in Ram Sarup v. Union of India AIR 1965 SC 247, (1965) 1 Cri LJ 236, (1964) 5 SCR 931, 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 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.

27. 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 AIR 1964 SC 600, (1964) 5 SCR 683 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 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.

28. 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 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 to 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 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 AIR 1964 SC 600, (1964) 5 SCR 683 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 (2010) 6 SCC 331. 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.

29. Mr Paras has also placed reliance on Chief of Army Staff v. 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 under Section 19 of the Army Act upon abandonment of the general court-martial 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 orders of termination passed in exercise of the aforesaid constitutional statutory provisions.

30. In a three-Judge Bench decision of this Court in Union of India v. N.R Ajwani (1996) 9 SCC 406 it was held that judicial review of the order passed under Section 18 of the Army Act would be exercised only on the ground of mala fides and that the challenge based on mala fides would be entertained only if the officers are able to establish a prima facie case of mala fides in the orders of termination passed against them. In such circumstances, the Central Government would be required to answer the challenge only after this threshold requirement is satisfied on the part of the officers. This Court has affirmed that the modifications stated above had declared the ambit of judicial review to be limited to the issue of mala fides and arbitrariness. The respondent officers did not succeed in establishing a prima facie case of mala fides in the earlier round of litigation. In that view of the matter no further scrutiny could have been undertaken by the Division Bench of the High Court in the subsequent writ petitions filed by them. This legal position is acknowledged by the High Court still it has interfered with the orders of termination on the ground that the appellants herein have wrongfully withheld the record from the scrutiny of the said court and that the pleadings of Capt. A.K Rana and Capt. R.S Rathaur suggested the case of mala fides and further contended that the High Court vide its order dated 20-12-2007 WP (C) No. 3063 of 1995, upon remand of the cases of Capt. R.S Rathaur and Capt. A.K Rana by this Court to the Delhi High Court, the writ petitions were rejected. This Court while remanding the cases of the aforesaid officers vide order dated 22-3-2006 (2006) 11 SCC 696 recorded that the finding of abuse of power in the case of these two officers was completely inadmissible in the eye of the law and that the said findings were thus completely unwarranted. While examining the case of these officers, after the order of remand passed by this Court, the Delhi High Court in its order dated 20-12-2007 WP (C) No. 3063 of 1995, while rejecting the writ petitions, recorded a finding that there was no withholding of records by the appellants and therefore the reasons assigned by the High Court in the impugned judgment in relation to these officers are erroneous in law. Further, Mr Paras contended that assignment of reasons or the recording of reasons in the orders of termination is not an absolute requirement in exercise of constitutional powers by the President which is couched in absolute terms under Article 310 of the Constitution. Having regard to the aforesaid legal contentions urged it is submitted by the learned Additional Solicitor General that if the impugned order is not interfered with, then the officers concerned will be allowed to retain themselves in the Indian Army whereas, in the facts and circumstances, they were “security suspects” and the implications that the security of the State will be at stake was examined at length up to the highest level of the officers of the Central Government and thereafter their services were terminated. Therefore, it is requested by him that the impugned judgment of quashing the orders of termination of the respondent officers is liable to be interfered with and set aside the same by allowing the appeals.

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 mala fides 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 CAs 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?

31.6 What order?

32. A relevant event in this journey of judicial conflict which is worth mentioning is that two officers, namely, Subhash Juneja and Harish Lal Singh whose writ petitions had been dismissed on the ground of constructive res judicata filed special leave petitions that were converted to Civil Appeals Nos. 1931 and 1932 of 1997 and were finally dismissed by a three-Judge Bench of this Court vide order dated 23-4-2003 (2006) 14 SCC 384, which is quoted hereunder:

“1. 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 reagitate those issues because the High Court in some other case has taken a different view.

2. Mr Yogeshwar Prasad, 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.

3. The appeals are accordingly dismissed.”

33. In view of the abovementioned case on the point of res judicata and the other rival factual and legal contentions and the issues raised in these appeals, we are of the view that the same are required to be answered by a larger Bench in the light of Articles 14, 16, 19, 21 and 310 of the Constitution and various decisions of this Court, some of them being Constitution Bench judgments, are mentioned hereunder: Union of India v. Tulsiram Patel (1985) 3 SCC 398, Jayantilal Amritlal Shodhan v. F.N Rana AIR 1964 SC 648, Sardari Lal v. Union of India (1971) 1 SCC 411, Bachan Singh v. State of Punjab (1982) 3 SCC 24, Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625, E.P Royappa v. State of T.N (1974) 4 SCC 3, AIR 1974 SC 555, D.S Nakara v. Union of India (1983) 1 SCC 305, Maneka Gandhi v. Union of India (1978) 1 SCC 248, I.R Coelho v. State of T.N (2007) 2 SCC 1, Olga Tellis v. Bombay Municipal Corpn. (1985) 3 SCC 545 and Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225. Therefore, the papers be placed before the Hon'ble Chief Justice for orders.