Full Judgment Text
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CASE NO.:
Appeal (civil) 2949-2950 of 2001
PETITIONER:
Union of India & Ors.
RESPONDENT:
Ranbir Singh Rathaur & Ors. etc.etc.
DATE OF JUDGMENT: 22/03/2006
BENCH:
ARIJIT PASAYAT & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
These two appeals are directed against the common
judgment of a Division Bench of the Delhi High Court. By the
impugned judgment the High Court disposed of two writ
petitions CW No. 3063 of 1995 filed by respondent\026Ranbir
Singh Rathaur and CW No. 4082 of 1995 filed by Ashok
Kumar Rana. Alongwith these two writ petitions seven Letter
Patent Appeals were also disposed of. These LPAs. are the
subject matter of challenge in Civil Appeal Nos.2951-57 of
2001 which were de-linked from the present two appeals by
order dated 14.2.2006. The LPAs. and these writ petitions
filed before the High Court were linked in the sense that in all
these cases concerned writ petitioners were dismissed from
service by the present appellants. They were all working at the
relevant point of time in 168 Infantry Brigade, deployed in a
place called Samba in the border areas. By the impugned
judgment the High Court held that the proceedings initiated
against the writ petitioners forming subject matter of the
present appeals were void in law and the orders passed
against these and the other officers who were appellants in the
LPAs were vitiated being without any material and being a
camouflage. The relevant portion of the High Court’s order
reads as follows :
"Accordingly we declare that the proceedings
initiated against the petitioners in the two writ
petitions are void in law and the orders passed
against 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 LPAs 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 LPAs are void in law and the conviction and
sentence by the GOMs against the writ
petitioners are void in law. Consequently, the
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judgment of the learned Single Judge which are
set aside and the writ petitions in those are
allowed and the Latent 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.
The respondents shall grant consequential
reliefs to all the officers including all monetary
benefits within a period of four months from
today."
Factual background as highlighted by the appellants is
essentially as follows:
In February 1971 Gunner Sarwan Dass was cultivated by
Pakistan Intelligence. In 1972 Capt. Ghalwat & Gnr. Sarwan
Dass crossed the international border. In 1973 Cap. Ghalwat
& Gnr. Sarwan Dass were posted in Babina (MP). In 1974 Gnr.
Aya Singh was cultivated by Gnr. Sarwan Dass for Pak
intelligence. Capt. 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 1976-1977 pursuant to the investigation 3 more
Jawans were arrested. They corroborated the involvement of
Sarwan Dass. Sarwan Dass and Aya Singh on further
interrogation disclosed the names of Capt. Ghalwat & Capt.
Nagial. In 1976-77 Capt. Ghalwat & Capt. Nagial were tried by
General Court Martial 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 came to be
killed. Reeling under the shock of the circumstances, he made
further disclosures wherein he named Capt. Rathaur and
Capt. A.K. Rana, the respondents in these appeals and he
disclosed that he was receiving threats that if he disclosed
anything his wife would be killed. Accordingly, in 1978 Capt.
Rathaur and Capt. A.K. Rana were interrogated. As a result,
42 Army personnel were arrested. The 42 Army personnel
included 19 officers, 4 junior commissioned officers (JCOs)
and 19 Other Ranks (ORs.)
Out of the 19 officers, 3 officers were tried by General
Court Martial, two were convicted, namely, Capt. Ranbir Singh
Rathaur and Capt. A.K. Rana and one was acquitted. Capt.
Ranbir Singh Rathaur and Capt. 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 administrative order under Section
18 of Army Act, 1950 (in short the ’Act’) was passed
terminating their services.
Present appeals relate to the 2 officers punished by
General Court Martial and the de-linked appeals relate to 7
officers out of 13 officers whose services were terminated
under Section 18 of the Act. The remaining 3 officers were not
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found blameworthy and no action was taken against them and
they continued in the Army. Out of 4 JCOs services of (3
JCOs) were terminated administratively and against 1 officer
no action was taken. Out of 19 others, 6 were tried by General
Court Martial and were convicted and sentenced for various
descriptions of imprisonment. Services of 9 others were
terminated by administrative order and the rest 4 were let off
and no action was taken against them.
At this juncture it would be appropriate to take note of
previous litigations.
On 22.10.1980 Criminal Writ Petition No. 90 of 1980 was
filed by Ex Captain Rana. On 4.6.1981 Criminal Writ Petition
No. 90 of 1981 came to be dismissed by the Division Bench of
Delhi High Court. It was observed that a number of points
were raised on points of law and jurisdiction. It did not want
these matters to be left undecided, therefore, arguments were
heard on these points and were dealt with.
On 19.2.1982, SLP (Crl.) No.2320 of 1981 filed by Capt.
A.K. Rana against the order dated 4.6.1981 came to be
dismissed.
On 17.10.1995 CWP No. 4082 of 1995 was filed by Capt.
AK Rana before the Delhi High Court. On 21.12.2000 the
impugned judgment was passed.
On 24.8.1978 Capt. Ranbir Singh Rathaur was arrested
and taken into custody on the basis of information collected by
the Military Intelligence that Ranbir Singh Rathaur had been
indulging in acts of espionage by passing secret and classified
military information to agents of a foreign country. On
28.3.1979 Smt. Swaran Rathaur, wife of Capt. Ranbir Singh
Rathaur filed a Habeas Corpus Petition under Article 32 of the
Constitution of India, 1950 (in short the ’Constitution’) in this
Court being Criminal Writ Petition No. 294/79, inter alia,
seeking the following reliefs:
(a) That Ranbir Singh Rathaur be forthwith
produced before this Hon’ble Court.
(b) That the Petitioner in the said writ petition, her
lawyers and medical advisors be permitted to
interview the said Capt. Rathaur in conditions
controlled by this Hon’ble Court and proper
medical care and facilities may be furnished to
him.
On 12.4.1979 General Court Martial was convened
against Capt. Rathaur. On 17.4.1979 two charges were framed
against Capt. R.S. Rathaur for offences under Section 69 of
the Act, read with Section 3(1)(c) of the Official Secrets Act,
1923 (in short ’Secrets Act’).
The Union of India filed a Counter Affidavit in Crl. WP No.
294 of 1979, inter alia, pointing out that detenu was being
tried by a General Court Martial and that sanction to the
detention was given by the Chief of Army Staff and the
Government. On 27.4.1979 this Court vide Order dated
27.4.1979 dismissed the Writ Petition No. 294/1979 as
infructuous. This Court observed that:
"It has also not been disputed that the
proceedings of the Court Martial have started
and the detenu has been allowed to appoint a
counsel of his own choice who is at the
moment representing the detenu. In these
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circumstances, therefore, the Habeas Corpus
Petition had become infructuous and does not
merit any interference by this Court."
As regards the allegations of torture it was recorded that
the Additional Solicitor General produced before the Court a
record of the doctor who had examined the detenu thoroughly
and found that the complaints made by him were without
substance.
However, the petitioner was given liberty to make an
application before the Military authorities for examination by
the Principal of the Medical College, Jammu. Such
examination by a civil doctor was not to be taken as casting
any reflection or aspersion on the impartiality or incompetence
of the doctor of the Military Department. With these
observations the petition was dismissed.
On 2.8.1979 Rathaur was convicted and sentenced to 14
years rigorous imprisonment. In 1981 Rathaur filed a Criminal
Writ Petition being Crl.W.P. No. 9 of 1981 in the Delhi High
Court challenging the Court Martial proceedings. On
23.3.1982 the High Court vide its order dated 23.3.1982
dismissed the petition of Rathaur relying upon its earlier
decision in Criminal Writ No. 90 of 1980 dated 4.6.1981. In
1985 SLP (Crl.) 3573/85 against the Order dated 23.3.1982 of
the High Court in Crl.W.P. No. 9 of 1981 was filed by RS
Rathaur. In 1985 Rathaur filed a Writ Petition in this Court
being Criminal Writ Petition No.1577 of 1985 again
challenging the legality of the court martial proceedings, the
sentence passed and the confirmation thereof. It was alleged
that the court martial proceedings and sentence passed were
arbitrary, illegal and that the procedure followed was in
violation of the Act and the rules made thereunder.
Prayer (B) of the Writ Petition reads as under :
"Issue a writ order or directions in the
nature of certiorari calling for the entire
proceedings of the General Court Martial and
quash the conviction and sentence of the
Petitioner and the order of COAS confirming
the said conviction and sentence."
On 10.2.1986 the Special leave Petition preferred by
Capt. Rathaur to this Court being SLP (Crl.) No.3573 of 1985
against the Order dated 23.3.1982 of the High Court in
Crl.W.P.No. 9 of 1981 was dismissed. On 28.4.1986 this Court
dismissed the Criminal Writ Petition No. 1577 of 1985. This
Court observed that the case was not a fit case for calling for
the records or for re-opening the matter and hearing it. On
the prayer of the Counsel for Rathaur, this Court directed that
the records be preserved for one more year.
On 23.1.1987 the Review Petition filed by Rathaur in
respect of the order of this Court dated 10.2.1986 in SLP (Crl.)
No.3573 of 1986 and the order dated 28.4.1986 in Criminal
Writ Petition No.1577 of 1985 (Review Petition Nos. 493 of
1986 and 463 of 1986 respectively) were dismissed.
The order reads as under :
"We have gone through the Review
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Petitions and connected papers. We find no
merit in the Review Petitions which are
accordingly dismissed."
In May 1989 Rathaur was released from custody. In 1995
Rathaur again challenged the validity of the Court Martial
proceedings which had been conclusively decided by this
Court, by filing a fresh Writ Petition being CWP No. 3063 of
1995. Rathaur, inter alia, prayed for quashing of the same
General Court Martial proceedings. Prayer (1) of Writ Petition
is extracted below:
"(1) To issue a Writ of Mandamus and
any other appropriate Writ, Order or direction,
inter alia commanding the Respondent Nos. 1
and 2 in accordance with Section 165 of the
Army Act, 1950 to annul the proceedings of
the General Court Martial affecting the
petitioner as they are malafide, irrational,
unjust and illegal and there has been a failure
of justice."
On 17.10.1996 the present appellants filed an affidavit
taking the preliminary objection relating to the maintainability
of the Writ Petition in view of the fact that the earlier Writ
Petition of Rathaur had already been dismissed by the High
Court on 23.3.1982 and the Special Leave Petition as well as
Review Petitions preferred against the same were also
dismissed by this Court.
It is also pertinent to note that this Court vide order
dated 28.4.1986 had dismissed Criminal Writ petition No.1577
of 1985 challenging the very same General Court Martial
Proceedings.
The appellant also submitted that they would file a
detailed counter affidavit on merits after the issue of
maintainability is decided.
On 14.8.1998 the Hon’ble High Court after hearing the
matter at length was pleased to reserve the judgment.
On 22.3.1985 all the writ petitions challenging orders
under Section 18 of the Act were dismissed.
In 1985, one of the writ petitioners Sri N.D. Sharma filed
LPA being LPA No. 116 of 1985 against the order of dismissal.
On 19.8.1986 the said LPA came to be disposed of by
quashing the 5% cut, however, orders of termination of
services were maintained.
In 1986 Sri N.D. Sharma preferred SLP(C) No. 13195 of
1986 against the order dated 19.8.1986. On 27.2.1987 SLP(C)
No. 13195 of 1986 was dismissed. In 1992 Sri N.D. Sharma
filed a fresh Writ Petition being Civil Writ Petition No. 3107 of
1992 before Delhi High Court. On 7.9.1992 Writ Petition No.
3107 of 1992 was dismissed on the ground of delay. In 1995
writ petition No. 4585 of 1995 was dismissed.
Similar petition has been dismissed by the Division
Bench in the case of Subhash Juneja v. Union of India (CW
271/95) as the said petitioner tried to re-open the decision
which had attained finality. In 1997, Review Petition was filed
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against the order of dismissal being RP No. 5897 of 1997. On
7.11.1997 RP No. 5897 was dismissed.
In 1987-1994 the balance 7 officers filed LPAs.
It was contended by the present appellants that these
LPAs were covered by the order in the case of Sri N.D. Sharma.
The matter came to be referred to a Full Bench of the High
Court to ascertain:
"Whether the order of termination passed by
and in the name of the President u/s 18 r/w
Art. 310 invoking the doctrine of pleasure of
the President can be challenged on the ground
that it is camouflage and as such violative of
principles of natural justice and the
fundamental right guaranteed under Article
14?"
On 8.7.1994 the Full Court rendered its judgment in Ex.
Maj.N.R. Ajwani & Ors. v. Union of India 55 (1994) SLT 217. It
was held that:
(a) The concept of camouflage is a facet of judicial
review and the Court would lift the veil in all
cases where it appears that the power is used
for collateral purposes under the cloak or garb
of innocuous form of an order and determine
the true character of the order under
challenge.
(b) Therefore, an order under Section 18 of the
Army Act read with Article 310 of the
Constitution invoking the doctrine of pleasure
of President is subject to judicial reivew to
ascertain whether the same is exercised
lawfully and not vitiated for mala fide or based
on extraneous grounds and that order can be
challenged on the ground that it is a
camouflage."
In 1994 the Union of India preferred Special Leave
Petition (Civil) Nos.18732-36 against the order of the Full
Bench of the High Court. On 17.11.1994 Special Leave
Petition (Civil) Nos.18732-36 was granted. Although the
judgment of the Full Bench was not disturbed it was held that
it is for the person who challenges the order passed u/s 18 on
the ground of malafide to make out a prima facie case. It is
only if he discharges the said burden, that the Government is
called upon to show that the said order is not passed in its
malafide exercise of powers.
On 2.5.1995 the High Court vide its order dated 2.5.1995
held that the issue of maintainability would be decided in the
first instance. The High Court in this regard observed:
"We are of the view that first we should decide
the batch whether fresh writ petitions are
maintainable, then the question of going into
the privilege claimed by the respondents will
have to be decided."
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On 8.3.1996 Division Bench of Delhi High Court
dismissed similar petition. It was contended by the writ
petitioner that the judgment of the Full Bench has given fresh
cause of action to them to challenge the order of termination of
service dated 3.3.1980 even if their challenge has been
adjudicated upon till the Supreme Court. Earlier decisions
were not based on lack of jurisdiction but it was not found to
be a fit case of interference. It was held that the petitions are
barred by the principles of res judicata and are accordingly
dismissed. This order has been affirmed by this Court.
On 6.1.1997 the present appellants filed the affidavit
bringing on record this order’s dated 17.11.1994. It was
submitted that it would be just and proper to decide the prima
facie case, if any, in favour of the appellant/petitioners. It is
only then the burden would shift to the respondent to show
that the order had not been passed in malafide exercise of
power.
On 14.8.1998 the relevant Original records pertaining to
the case were shown to the Court. The order does not indicate
that the records were insufficient or more papers were
required to be produced. It is pertinent to note that all the
LPAs and two abovesaid writ petitions were being taken up
together for hearing by the High Court.
On 21.12.2000 the LPAs Nos.4/87, 43/87, 139/87,
148/87, 21/88, 77/93 and 86/1994 were allowed. It was,
inter alia, observed by the High Court as follows:
(1) The case of the appellants and the case of the
writ petitioners are interconnected and
intertwined and they can be looked as a whole.
(2) Instead of producing all the relevant records,
the respondent had produced only three flaps.
(3) Perusal of the Counter Affidavit in all cases
gives the impression that the respondent had
withheld material facts.
(4) Respondents have not placed any material
justifying the action.
(5) Respondent think they are law unto
themselves.
(6) Respondents have chosen not to produce the
entire record.
(7) We may not have interfered in view of finality
reached on an adjudication by this court
provided the records were produced.
(8) On the consideration of all the facts and
circumstances we are of the view that there is
no other conclusion possible except to say that
the orders are merely camouflage and have
been passed for extraneous reasons under the
innocuous form of orders of termination.
(9) The appellants in the LPA are entitled to all
consequential benefits. Orders passed against
the appellants in LPA are void.
On 3.1.2001 the counsel for the present appellant
received back the files submitted to the High Court.
In these appeals, it has been urged as follows:-
(1) By application of the principles of res judicata,
the writ petitions were not maintainable.
(2) The order dated 17.11.1994 of this Court has
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been overlooked.
(3) Onus of proof wrongly shifted to the present
appellant.
(4) The earlier adjudications have not been taken
into account.
(5) Delay in filing the writ petitions has not been
considered.
(6) Records were produced before the High Court;
contrary to what has been recorded.
It was pointed out that the High Court lost sight of the
factual background and on mere surmises and conjectures
allowed the writ petitions; overlooking the fact that on same
grounds the writ petitions had been earlier filed, were
dismissed and even the writ petitions and the SLPs. filed in
this Court were dismissed. On clearly erroneous premises that
there was no material to justify the action, the High Court
came to the conclusion as noted above. It is submitted that
the High Court proceeded on the basis as if no material were
produced before it and this is contrary to the actual position.
In fact volumes of documents were filed which the High Court
unfortunately did not take note of. This presumably happened
because the judgment was reserved in 1998 and the impugned
judgment was delivered in December, 2000. The judgment is
full of erroneous conclusions factually, which shows complete
non-application of mind. An observation has been made by
the High Court that though finality in law is desirable justice
is of foremost importance. It has not been even indicated as to
in what manner the earlier proceeding suffered from legality.
The legality of the Court Marshal proceedings which was
assailed were challenged earlier and were rejected right up to
this Court. To substantiate the plea that original documents
were shown and the original files were filed reference has been
made to the receipt. Reference has also been made to the order
dated 14th August, 1998, which reads as follows:
"Synopsis have been placed on record.
Mr. Tikky states that by 17.8.1998, photocopy
of the relevant record will be made available to
Court. Originals have been shown to us.
Judgment reserved."
It was pointed out that the only basis for filing the fresh
writ applications as is evident from the averments made in the
writ petitions is that some press reports had stated about
irregularities in holding people guilty of espionage and the
orders passed in the cases which formed the subject matter of
challenge in the LPAs. The subject matter of the writ petitions
which were under consideration in the LPAs were entirely
different and had no connection with the legality of the Court
Marshal proceedings.
In response, learned counsel for the respondent
submitted that there was a great amount of manipulation and
objectionable activities which subsequently came to light and
on that basis the writ petitions were filed before the High
Court and have been rightly allowed. In spite of opportunity
as noted by the High Court, relevant documents were not
produced. The stand that documents were filed before the
High Court is refuted.
On a bare reading of the High Court’s order and the
averments in the writ petitions, one thing is crystal clear that
there was no definite allegation against any person who was
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responsible for the so called manipulation. It is also not clear
as to who were the parties in the writ petitions filed. In the
grounds indicated in the writ petitions it was stated that there
is no bar or impediment on the High Court reviewing the
petitioner’s case as also connected cases to enquire into the
validity of the acts done against the writ petitioner. Therefore,
it was an accepted position that the writ petitioners wanted
review of the High Court’s order, which is clearly
impermissible. No ground for seeking such review apparently
was made out. In any event we feel that the High Court’s
approach is clearly erroneous. The present appellants in the
counter affidavit filed had raised a preliminary objection as
regards the maintainability of the writ petitions and had
requested the High Court to grant further opportunity if the
necessity so arises to file a detailed counter affidavit after the
preliminary objections were decided. The High Court in fact in
one of the orders clearly indicated that the preliminary
objections were to be decided first. But strangely it did not do
so. It reserved the judgment and delivered the final judgment
after about three years. There is also dispute as to whether
the relevant documents were produced. What baffles us is
that the High Court records with original documents were
shown to it and the Bench wanted the copies to be filed. In the
impugned judgment the High Court proceeded on the basis as
if only a few pages of the files were shown. If that was really
the case, there was no necessity for the High Court to direct
the present appellants to file copies. If after perusal of the
documents the High Court felt that these were not sufficient
the same would have been stated. But that does not appear to
have been done. The High Court also had not discussed as to
how the matters which stood concluded could be reopened in
the manner done. No sufficient grounds have been even
indicated as to why the High Court felt it necessary to do so.
To say that though finality had been achieved justice stood at
a higher pedestal is not an answer to the basic question as to
whether the High Court was competent to re-open the whole
issue which had become concluded. The 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 it would be proper for the High Court to re-
hear 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 to be the conclusive
findings on the subject matter of controversy. The appeals are
allowed without any order as to costs. Since the matter is
pending since long, we request the High Court to dispose of
the matter as early as practicable, preferably within four
months from the date of receipt of the judgment. No costs.