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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.