# UNION OF INDIA AND OTHERS v. MAJOR S.P. SHARMA AND OTHERS

- **Citation:** [2014] 4 S.C.R. 327
- **Court:** Supreme Court of India
- **Decided:** 2014-03-06
- **Case number:** Civil Appeal Nos.2951-2957 of 2001
- **Bench:** Dr. B.S. Chauhan, J. Chelameswar, M.Y. Eqbal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-and-others-v-major-s-p-sharma-and-others-29839
- **Pages:** 68

## Headnote

Administrative law:
Doctrine of pleasure - Judicial review - Scope of -
Termination of Armed Forces Personnel - Held: The order
of termination passed against the Army personnel in exercise
A
B
c
of pleasure doctrine is subject to judicial review - But while
exercising judicial review, the Supreme Court cannot D
substitute its own conclusion on the ba~is of material on
record - When the President in exercise of its constitutional
power terminates the services of the Army officers, whose
tenure of services are at the pleasure of the President and
such termination is based on materials on record, then the
Court in exercise of powers of judicial review should be slow E
in interfering with such pleasure of President exercising
constitutional power - Analysis of entire facts of the case and
the material produced in Court and an exhaustive
consideration of the matter showed that the power of pleasure
exercised by the President in terminating the services of the
F
respondents did not suffer from any illegality, bias or ma/afide
or based on any other extraneous ground, and the same
cannot be challenged on the ground that it was a· camouflage
-
The onus lay on the respondent-officers who alleged
malafides - There was no credible evidence to hold that the G
order of termination was baseless or malafide - Constitution
of India, 1950 - Doctrine of pleasure.
Constitution of India, 1950:
327
H
328
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A
Art. 311 - Applicability to Armed Forces Personnel -
Held: Not applicable - Therefore, no enquiry as to whether
the order was by way of punishment sine qua non for
applicability of Art.311, was warranted.
8
Art.310(1)- Scope of- Held: No provision in any statute
can curtail the provision of Art.310.
Army Act, 1959:
ss.18 and 19 - Held: Army Act cannot in any way
c override or stand higher than constitutional provisions
contained in Art.309 and consequently no provision of Army
Act could cut down the pleasure doctrine as enshrined in
Art.310 - Constitution of India, 1950 - Arts.309, 310 -
Doctrine of pleasure.
D
s. 18 - Where continuance of Army officers in service is
not practicable for security purposes and there is loss of
confidence and potential risk to the security issue then such
offic~rs can be removed under pleasure doctrine - s. 18 is in
consonance with constitutional power conferred on President
E
~mpowering the President to terminate his services brought
to his notices - In such cases, the Army officers are not
entitled to claim an opportunity of hearing - Constitution of
India, 1950-Arts.309, 310- Doctrine of pleasure - Doctrine
F
of natural justice.
Res judicata:
Reopening of issues through fresh round of litigation on
discovery of a fact - Held: The discovery of a reinvestigated
fact could be a ground of review in the same proceedings,
G but the same cannot be made ba$iS for re-opening the issue
through a fresh round of litigation - A fresh writ petition or
Letters Pat~nt Appeal which is in continuation of a writ petition
cannot be filed co/laterally to set aside the judgment of the
same High Court rendered in earlier round of litigation
H upholding the termination order - The principle of finality of
UNION OF INDIA v. MAJOR S.P. SHARMA
329
litigation is based on a sound firm principle of public policy -
A
It is not permissible for the parties to reopen the concluded
judgments of the court as it would not only tantamount to
merely .an abuse of the process of the court but would have
far reaching adverse affect on the administration of justice -
It would also nullify the doctrine of stare decisis which cannot B
be departed from unless there are compelling circumstances
· to do so - The judgments of the court and particularly the
Apex Court of a country cannot and should not be unsettled
lightly - Doctrines of public policy - Doctrine of stare decisis.
Precedent:
c
Binding effect of - Held: Law declared by Supreme Court,
being the law of the land, is binding on all courts/tribunals and
authoritie

## Text

_Characters 0–39,132 of 132,060. This is a partial read: ask again with offset=39132 for what follows._

[2014] 4 S.C.R. 327
UNION OF INDIA AND OTHERS
v.
MAJOR S.P. SHARMA AND OTHERS
(Civil Appeal Nos.2951-2957 of 2001)
MARCH 6, 2014
[DR. B.S. CHAUHAN, J. CHELAMESWAR AND
M.Y. EQBAL, JJ.]
Administrative law:
Doctrine of pleasure - Judicial review - Scope of -
Termination of Armed Forces Personnel - Held: The order
of termination passed against the Army personnel in exercise
A
B
c
of pleasure doctrine is subject to judicial review - But while
exercising judicial review, the Supreme Court cannot D
substitute its own conclusion on the ba~is of material on
record - When the President in exercise of its constitutional
power terminates the services of the Army officers, whose
tenure of services are at the pleasure of the President and
such termination is based on materials on record, then the
Court in exercise of powers of judicial review should be slow E
in interfering with such pleasure of President exercising
constitutional power - Analysis of entire facts of the case and
the material produced in Court and an exhaustive
consideration of the matter showed that the power of pleasure
exercised by the President in terminating the services of the
F
respondents did not suffer from any illegality, bias or ma/afide
or based on any other extraneous ground, and the same
cannot be challenged on the ground that it was a· camouflage
-
The onus lay on the respondent-officers who alleged
malafides - There was no credible evidence to hold that the G
order of termination was baseless or malafide - Constitution
of India, 1950 - Doctrine of pleasure.
Constitution of India, 1950:
327
H
328
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A
Art. 311 - Applicability to Armed Forces Personnel -
Held: Not applicable - Therefore, no enquiry as to whether
the order was by way of punishment sine qua non for
applicability of Art.311, was warranted.
8
Art.310(1)- Scope of- Held: No provision in any statute
can curtail the provision of Art.310.
Army Act, 1959:
ss.18 and 19 - Held: Army Act cannot in any way
c override or stand higher than constitutional provisions
contained in Art.309 and consequently no provision of Army
Act could cut down the pleasure doctrine as enshrined in
Art.310 - Constitution of India, 1950 - Arts.309, 310 -
Doctrine of pleasure.
D
s. 18 - Where continuance of Army officers in service is
not practicable for security purposes and there is loss of
confidence and potential risk to the security issue then such
offic~rs can be removed under pleasure doctrine - s. 18 is in
consonance with constitutional power conferred on President
E
~mpowering the President to terminate his services brought
to his notices - In such cases, the Army officers are not
entitled to claim an opportunity of hearing - Constitution of
India, 1950-Arts.309, 310- Doctrine of pleasure - Doctrine
F
of natural justice.
Res judicata:
Reopening of issues through fresh round of litigation on
discovery of a fact - Held: The discovery of a reinvestigated
fact could be a ground of review in the same proceedings,
G but the same cannot be made ba$iS for re-opening the issue
through a fresh round of litigation - A fresh writ petition or
Letters Pat~nt Appeal which is in continuation of a writ petition
cannot be filed co/laterally to set aside the judgment of the
same High Court rendered in earlier round of litigation
H upholding the termination order - The principle of finality of
UNION OF INDIA v. MAJOR S.P. SHARMA
329
litigation is based on a sound firm principle of public policy -
A
It is not permissible for the parties to reopen the concluded
judgments of the court as it would not only tantamount to
merely .an abuse of the process of the court but would have
far reaching adverse affect on the administration of justice -
It would also nullify the doctrine of stare decisis which cannot B
be departed from unless there are compelling circumstances
· to do so - The judgments of the court and particularly the
Apex Court of a country cannot and should not be unsettled
lightly - Doctrines of public policy - Doctrine of stare decisis.
Precedent:
c
Binding effect of - Held: Law declared by Supreme Court,
being the law of the land, is binding on all courts/tribunals and
authorities in India in view of Art. 141 of the Constitution - The
doctrine of stare decisis promotes a certainty and consistency D
in judicial decisions and promotes confidence of the people
in the system of the judicial administration - Judicial propriety
and decorum demand that the law laid down by the highest
Court of the land must be given effect to - Violation of
Fundamental Rights guaranteed under the Constitution have E
to be protected, but at the same time, it is the duty of the court
to ensure that the decisions rendered by the court are not
overturned frequently, that too, when challenged collaterally
as that was directly affecting the basic structure of the
Constitution incorporating the power of judicial review of this F
Court - An issue of law can be overruled later on, but a
question of fact or, as in the instant case, the dispute with
regard to the termination of services cannot be reopened once
it has been finally sealed in proceedings inter-se between the
parties up to the Supreme Court way back in 1980 -
G
Constitution of India, 1950 - Art.141.
In 1980, respondents were found to be involved in
the espionage racket and were dismissed from service
by invoking the doctrine of pleasure as enshrined under
Article 310 of the Constitution of India, 1950 coupled with
H
330
SUPREME COURT REPORTS
[2014) 4 S.C.R.
A
the powers to be exercised under Section 18 of the Army
Act. The dismissal was unsuccessfully challenged before
the High Court and the Supreme Court. In the meanwhile,
a corrigendum came to be issued and the orders of
dismissal were described as orders of termination. On
B
account of the substituted termination order, a decision
for deducting 5% of the gratuity amount was taken, which
was communicated afresh. This resulted in a fresh
ground of challenge. The Division bench of the High
Court while refusing to interfere with the termination order
c allowed the appeal in relation to the post-retiral benefits
and held that the proposed 5% cut-off was not in
accordance with the Act/Rules. Several LPAs were filed
by other officers relying on the Division Bench judgment
extending the post-retiral benefits claimed a similar relief.
0
When these appeals came up for hearing, the Division
Bench of the High Court hearing the matter differed with
the view on the issue of the applicability of doctrine of
pleasure and maintainability of the writ petitions on the
ground of malafides. Consequently, this question of law
was referred to be a larger bench. The Full Bench held
E
that an order under Section 18 of the Army Act invoking
the doctrine of pleasure was subject to judicial review if
it is assailed on malafides. It was held that the onus lay
on the petitioner/person alleging malafides and to bring
F
material on record to satisfy the court in order to justify
the interference. Aggrieved, the Union of India filed the
Special Leave Petition, which stood dismissed.
After the answer of reference, the pending appeals
were taken up for decision by the High Court. On account
G of the answer given by the Full Bench, fresh petitions
were filed by those officers whose petitions had been
dismissed earlier upto this Court in 1980. Some writ
petitioners, whose petitions had been dismissed by
Single Judge, filed LPAs with applications for
H
condonation of delay. Appeals were also filed against
UNION OF INDIA v. MAJOR S.P. SHARMA
331
those judgments that were given in the second round of
litigation proposing to refuse 5% of the terminal benefits.
Thereafter two writ petitions that were filed afresh,
namely, in the case of Major SJ and HLS were heard
separately and dealt with the principle of res judicata and
constructive res judicata. The said writ petitions were
held to be barred by law. The LPAs which were filed with
applications for condonation of delay and also against
the judgment proposing 5% cut-off in the terminal
benefits were heard by another Division Bench. After
almost 3 years, the Division Bench allowed the appeals.
Therein, it was held that the proceedings initiated against
the writ petitioners as also against other officers, who
were appellants in the other LPAs, were vitiated as there
was no material to support the impugned orders of
termination which were camouflaged and thus, the same
were subject to judicial review. Accordingly, by judgment
dated 21.12.2000, the relief of consequential benefits was
granted after setting aside the order of termination. The
two officers, namely, SJ and HLS whose writ petitions had
been dismissed on the ground of constructive res
judicata, filed special leave petitions were finally
dismissed by applying the principles of constructive res
judicata.
A
B
c
D
E
The questions which have arisen in these appeals
were: Whether the exercise of doctrine of pleasure under
Section 18 of the Army Act read with Article 310 of the
Constitution in absence of any material evidence against
the respondent- officer and the non production of
relevant records/files of these officers rendered the order
G
of termination as illegal and invalid; whether the order of
termination is arbitrary, capricious, unreasonable and
violative of Articles 14,16,19 and 21 of the Constitution of
India; whether the order of termination passed by the first
appellant in absence of material evidence and improper
F
H
332
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A exercise of power by the first appellant amount to fraud
being played on the respondent officers and are vitiated
in the law on account of legal malafides and legal malice;
whether the order of dismissal of the earlier writ petitions
and confirmation of the same by this court amounts to
B "Doctrine of Merger" and operates as res judicata against
the instant appeals.
Disposing of the appeals, the Court
HELD: 1. The provisions of Article 311 of the
C Constitution, admittedly, cannot be invoked in the case
of employees/officers of Armed Forces. Article 311 relates
to the domain of civilian employees/officers service
jurisprudence. Since the protection of Article 311 cannot
be claimed in the case of employees of armed forces, no
D 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 required to
be considered by this Court in the context of the fact as
to whether by virtue of anything contained in the
E 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. [para 22] [358-C-E]
F
2. A perusal and scrutiny of all the materials showed
that the High Court has committed grave error of record
and there was total non-application of mind in recording
the findings. From the record, it is evidently clear that the
inquiry against the respondents were initiated by the
Army Headquarters, Director of Military Intelligence. The
G file traveled from Chief of the Army Staff to Ministry of
Defence with the strong recommendation to terminate the
services of the respondents in the interest of security of
the State as there was some material to show that these
officers were involved in espionage cases. The
H
UNION OF INDIA v. MAJOR S.P. SHARMA
333
recommendation for termination of their services up to the A
Defence Ministry was finally approved by the Prime
Minister who also happened to be the Defence Minister
of India at that time. The file was then placed before the
President of India who in exercise of the constitutional
power terminated the services of these officers.The link B
file further revealed that confessional statements of
officers were also recorded and strong prima facie case
was found relating to the involvement of these officers
in espionage activities and sharing information with the
Pakistani intruders. [para 48, 49] [371-A-E]
c
3. On assessing the materials contained in link file
and the notings showing the suggestions and
recommendations up to the level of defence ministry and
the Prime Minister, it cannot be held that the impugned
order of termination of services have been passed D
without any material available on record. There is no ·
dispute that order of termination passed against the Army
personnel in exercise of 'pleasure doctrine', is subject to
judicial review, but while exercising judicial review, this
court cannot substitute its own conclusion on the basis E
of materials on record. The Court exercising the power
of judicial review has certain limitations, particularly in the
cases of this nature. The safety and security of the nation
is above all/everything. When the President in exercise
of its constitutional power terminates the services of the
F
Army officers, whose tenure of services are at the
pleasure of the President and such termination is based
on materials on record, then this court in exercise of
powers of judicial review should be slow in interfering
with such pleasure of President exercising constitutional G
power. In a constitutional set up, when office is held
during the pleasure of the President, it means that the
officer can be removed by the Authority on whose
pleasure he holds office without assigning any reason.
H
334
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A
The Authority is not obliged to assign any reason or
disclose any cause for the removal. Thus, it is not a case
where the decisions to terminate the services of these
officers were taken under the 'pleasure doctrine' without
any material against the officers. On perusal of the link file
s it was further revealed that detailed investigation was
conducted and all evidence recorded were examined by
the Intelligence Department and finally the Authority came
to the finding that retention of these officers were not
expedient in the interest and security of the State.
c Sufficiency of ground cannot be questioned, particularly
in a case where termination order is issued by the
President under the pleasure doctrine. [Paras 50 to 52)
[371-F-H; 372-A-F]
State of Rajasthan & Ors. vs. Union of India & Ors. 1977
D (3) sec 592: 1978 (1) SCR 1 - relied on.
4. Article 309 empowers the appropriate legislature to
regulate the recruitment and conditions of services of
persons appointed in public services and posts in
E connection with the affairs of the Union or the State. But
Article 309 is subject to the provisions of the Constitution.
Hence, the Rules and Regulations made relating to the
conditions of service are subject to Articles 310 and 311
of the Constitution. The Proviso to Article 309 confers
F
powers upon the President in case of services and posts
in connection with the affairs of the Union and upon the
Governor of a State in connection with the services and
posts connected with the affairs of the State to make rules
regulating the recruitment and the conditions of services
G of the persons appointed. The service condition shall be
regulated according to such rules. Article 310 provides
that every person, who is a member of the defence service
or of a civil service of the Union or All India Service, or any
civil or defence force shall hold such posts during the
H
UNION OF INDIA v. MAJOR S.P. SHARMA
335
pleasure of the President. Similarly, every person who is A
a Member of the Civil Services of a State or holds any civil
post under a State, holds office during the pleasure of the
Governor of the State. The opening word of Article 310
"Except as expressly provided by this Constitution"
makes it clear that a Government servant holds the office B
during the pleasure of the President or the Governor
except as expressly provided by the Constitution. [Paras
55, 56] [376-C-H; 377-A]
5. Clauses (i) and (ii) of Article 311 impose restrictions
upon the exercise of power by the President or the C
Governor of the State of his pleasure under Article 310
(1) of the Constitution. Article 311 makes it clear that any
person who is a member of civil services of the Union or
the State or holds civil posts under the Union or a State
shall not be removed or dismissed from service by an D
authority subordinate to that by which he was appointed.
Further, clause (ii) of Article 311 mandates that such
removal or dismissal or reduction in rank of the members
of the civil services of the Union or the State shall be only
after giving reasonable opportunity of hearing in respect E
of the charges leveled against him. However, proviso to
Article 311 (2) makes it clear that this clause shall not
apply inter-alia where the President or the Governor, as
the case may be, is satisfied that in the interest of the
security of the State it is not expedient to hold such F
enquiry. The expression "except as otherwise provided
in the Constitution" as contained in Article 310 (1) means
this Article is subject only to the express provision made
in the Constitution. No provision in the statute can curtail
the provisions of Article 310 of the Constitution. [Paras G
57, 58] [377-B-F]
6. The two Sections i.e. 18 and 19 are distinct and
apply in two different stages. Section 18 speaks about the
absolute discretion of the President exercising pleasure
doctrine. No provisions in the Army Act curtail, control or H
336
SUPREME COURT REPORTS
[2014) 4 S.C.R.
A limit the power contained in Article 310(1) of the
Constitution. Article 309 enables the legislature or
executive to make any law, rule or regulation with regard
to condition of services without impinging upon the
overriding power recognized under Article 310 of the
B Constitution. The Army Act cannot in any way override
or stand higher than Constitutional provisions contained
in Article 309 and consequently no provision of the Army
Act could cut down the pleasure tenure in Article 310 of
the Constitution. There is no doubt, Article 309 has to be
c read subject to Articles 310 and 311 and Article 310 has
to be read subject to Article 311. In fact the 'pleasure
doctrine' is a Constitutional necessity, for the reasons
that the difficulty in dismissing those servants whose
continuance in office is detrimental to the State would, in
0
case necessity arises to prove some offence to the
satisfaction of the court, be such as to seriously impede
the working of public service. There is no dispute with
regard to the legal proposition that illegality, irrationality
and procedural non-compliance are grounds on which
E judicial review is permissible. But the question is as to
the ambit of judicial review. [Paras 59, 61 and 62] (378-AF; 380-B-D]
State of Uttar Pradesh and others vs. Babu Ram
Upadhayay (1961) 2 SCR 679; Moti Ram Deka (1964) 5 SCR
F 683; B.P. Singhal vs. U.0.1., (2010) 6 sec 331 - relied on.
7. Indisputably, defence personnel fall under the
category where President has absolute pleasure to
discontinue the services. Further as far as security is
concerned, the safeguard available to civil servants
G under Article 311 is not available to defence personnel as
judicial review is very limited. In cases where continuance
of Army officers in service is not practicable for security
purposes and there is loss of confidence and potential
risk to the security issue then such officers can be
H removed under the pleasure doctrine. As a matter of fact,
UNION OF INDIA v. MAJOR S.P. SHARMA
337
Section 18 of the Army Act is in consonance with the
A
constitutional powers conferred on the President
empowering the President to terminate the services on
the basis of material brought to his notice. In such cases,
the Army officers are not entitled to claim an opportunity
of hearing. The pleasure doctrine can be invoked by the
B
President at any stage of enquiry on being satisfied that
continuance of any officer is not in the interest of and
security of the State. It is therefore not a camouflage as
urged by the respondents. [Para 64] [383-F-H; 384-A-B]
8. The services of the respondents along with other C
permanent commissioned officers of the Indian Army
were terminated, since they were found suspected to be
involved in espionage activities. Aggrieved by the
termination order, the respondents, except two, filed writ
petitions before the High Court. These respondents
D
challenged the said termination order as being illegal and
malafide. The High Court by order dated 21.4.1980
dismissed the writ petitions and held that the termination
was on account of pleasure doctrine.The Union of India
has been consistently contesting these petitions and this
E
Court has found substance- in the argument of the
appellants that the High Court while delivering the
judgment dated 21.12.2000 overlooked this important
legal aspect of finality coupled with the doctrine of res
judicata. This aspect cannot be ignored and the issue of
F
fact cannot be re-opened in the instant case as well as
has been done under the impugned judgment by relying
on certain material which the High Court described to
have been fraudulently withheld from the courts. Fraud
is not a term or ornament nor can it be presumed to exist G
on the basis of a mere inference on some alleged
material that is stated to have been discovered later on.
The discovery of a reinvestigated fact could have been
a ground of review in the same proceedings, but the same
cannot be made the basis for re-opening the issue
H
338
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A through a fresh round of litigation. A fresh writ petition
or Letters Patent Appeal which is in continuation of a writ
petition cannot be filed collaterally to set aside the
judgment of the same High Court rendered in earlier
round of litigation upholding the termination order. The
B High Court has committed a manifest error by not lawfully
defining the scope of the fresh round of litigation on the
principles of res judicata and doctrine of finality. To
establish fraud, it is the material available which may lead
to the conclusion that the failure to produce the material
c was deliberate or suppressed or even otherwise
occasioned a failure of justice. This also, can be
attempted if legally permissible only in the said
proceedings and not in a collateral challenge raised after
the matter has been finally decided in the first round of
0 litigation. The judgment which had become final in 1980
also included writ petition filed by the respondent 'SPS'.
Once, this Court had put a seal to the said litigation vide
judgment dated 1.9.1980 then a second round of litigation
by the same respondents including 'SPS' in another writ
E petition was misplaced. [paras 65, 67) [384-D-E; 385-F-H;
386-A-F]
9. The very genesis of an identical challenge relating
to the same proceedings of termination on the pretext of
a 5% cut in terminal benefits was impermissible apart
F from the attraction of the principle of merger. This aspect
of finality, therefore, cannot be disturbed through a
collateral challenge. The principle of finality of litigation
is based on a sound firm principle of public policy. In the
absence of such a principle great oppression might
G result under the colour and pretence of law inasmuch as
there will be no end to litigation. The doctrine of resjudicata has been evolved to prevent such an anarchy.
In a country governed by the rule of law, finality of
judgment is absolutely imperative and great sanctity is
H attached to the finality of the judgment and it is not
UNION OF !NOIA v. MAJOR S.P. SHARMA
339
permissible for the parties to reopen the concluded A
judgments of the court as it would not only tantamount
to merely an abuse of the process of the court but would
have far reaching adverse affect on the administration of
justice. It would also nullify the doctrine of stare decisis
a well established valuable principle of precedent which B
cannot be departed from unless there are compelling
circumstances to do so. The judgments of the court and
particularly the Apex Court of a country cannot and
should not be unsettled lightly. [Paras 68, 75, 76] [386-G;
388-E-H; 389-A]
C
Naresh Shridhar Mirajkar vs. State of Maharashtra & Anr.
AIR 1967 SC 1: 1966 SCR 744; Mohd. Aslam vs. Union
of India AIR 1996 SC 1611: 1996 (3) SCR 782; Babu Singh
Bains etc. versus Union of India and Ors. etc., AIR 1997 SC
116: 1996 (6) Suppl. SCR 120; Khoday Distilleries Limited D
& Anr. vs. The Registrar General, Supreme Court of India,
(1996) 3 sec 114: 1995 (6) Suppl. SCR 190; M.
Nagabhushana vs. State of Kamataka & Ors., AIR 2011 SC
1113: 2011 (2) SCR 435 - relied on.
10. Precedent keeps the law predictable and the law E
declared by this Court, being the law of the land, is
binding on all courts/tribunals and authorities in India in
view of Article 141 of the Constitution. The judicial system
"only works if someone is allowed to have the last word"
and the last word so spoken is accepted and religiously F
followed. The doctrine of stare decisis promotes a
certainty and consistency in judicial decisions and this
helps in the development of the law. Besides providing
guidelines for individuals as to what would be the
consequences if he chooses the legal action, the doctrine G
promotes confidence of the people in the system of the
judicial administration. Even otherwise it is an imperative
necessity to avoid uncertainty, confusion. Judicial
propriety and decorum demand that the law laid down by
the highest Court of the land must be given effect to. H
340
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A
[Para 77) [389-A-D]
11. Violation of Fundamental Rights guaranteed
under the Constitution have to be protected, but at the
same time, it is the duty of the court to ensure that the
9
decisions rendered by the court are not overturned
frequently, that too, when challenged collaterally as that
was directly affecting the basic structure of the
Constitution incorporating the power of judicial review of
this Court. There is no doubt that this Court has an
extensive power to correct an error or to review its
C decision but that cannot be done at the cost of doctrine
of finality. An issue of law can be overruled later on, but
a question of fact or, as in the present case, the dispute
with regard to the termination of services cannot be
reopened once it has been finally sealed in proceedings
D inter-se between the parties up to this Court way back
in 1980. [Para 84) [393-B-D]
Rupa Ashok Hurra v. Ashok Hurra & Anr. AIR 2002 SC
1771: 2002 (2 ) SCR 1006; Magan/a/ Chhaganlal (P) Ltd.
E
v. Municipal Corporation of Greater Bombay AIR 1974 SC
2009: 1975 (1) SCR 1; Ambika Prasad Mishra v. State of
U.P. & Anr. AIR 1980 SC 1762: 1980 (3) SCR 1159 - relied
on.
12. The term 'dismissal' in the original order was
F substituted by the term 'termination' issuing the
corrigendum to ratify a mistake committed while issuing
the order. In fact, the competent authority had taken a
decision only to terminate, and therefore it was found
necessary to issue the corrigendum. However, in view of
G such substitution of word 'dismissal' by the term
'termination', does not tilt the balance in favour of the
respondents. More so, the proposed 5% deduction had
been withdrawn, and therefore the issue did not survive.
Analysing entire facts of the case and the material
H produced in Court and upon an exhaustive consideration
UNION OF INOIA v. MAJOR S.P. SHARMA
341
of the matter, the power of pleasure exercised by the A
President in terminating the services of the respondents
did not suffer from any illegality, bias or malafide or based
on any other extraneous ground, and the same cannot
be challenged on the ground that it is a camouflage. The
onus lay on the respondent-officers who alleged B
malafides. There was no credible evidence to hold that
the order of termination is baseless or malafide. [Paras
85, 86] [393-D-H; 394-A]
Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B.
Jeejeebhoy (1970) 1 SCC 613: 1970 (3) SCR 830 - held C
inapplicable
Union of India & Ors. vs. Ranbir Singh Rathaur & Ors.
(2006) 11 SCC 696: 2006 (3) SCR 193; Union of India vs.
S.P. Sharma (2013) 10 SCC 150; Moti Ram Deka vs. North D
East Frontier Railways (1964) 5 SCR 683; Ram Sarup vs.
Union of India AIR 1965 SC 247: 1964 (5) SCR 931; Chief
of Army Staff vs. ·Major Dharam Pal Kukrety (1985) 2 SCC
412: 1985 (3) SCR 415; Gopal Krishnaji Ketkar vs.
Mahomed Haji Latif & Ors. 1968 (3) SCR 862; Ghaio Mall & E
Sons vs. State of Delhi & Ors. 1959 SCR 1424; l.R. Coelho
vs. State of Tamil Nadu (2007) 2 SCC 1: 2007 (1) SCR 706;
Ravi Yashwant Bhoir vs. District Collector, Raigad & Ors.
(2012) 4 SCC 407: 2012 (3) SCR 775; S.R. Bommai and
Ors. vs. Union of India and Ors., (1994) 3 SCC 1: 1994 (2)
SCR 644; Mathura Prasad Bajoo Jaiswal vs. Dossibai N.B.
F
Jeejeebhoy (1970) 1 SCC 613: 1970 (3) SCR 830;
Supreme Court Employees' Welfare Association vs. Union of
India and Anr. (1989) 4 SCC 187: 1989 (3) SCR 488; Isabella
Johnson (Smt.) vs. M.A. Susai(dead) by LRs. (1991) 1 SCC
494: 1990 (2) Suppl. SCR 213; Kishan Lal vs. State of J&K G
(1994) 4 SCC 422: 1994 (2) SCR 149; Jay Laxmi Salt.
Works (P) Ltd. vs. State of Gujarat (1994) 4 SCC 1; V.
Rajeshwari (Smt) vs. T. C. Saravanabava (2004) 1 SCC 551:
2003 (6) Suppl. SCR 927; Maneka Gandhi vs. Union of
India & Anr. (1978) 1 SCC 248: 1978 (2) SCR 621; Union
H
342
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A
of India & Ors. v. Ranbir Singh Rathaur & Ors., (2006) 11 SCC
696: 2006 (3) SCR 193 - referred to.
B
c
Case Law Reference:
2006 (3) SCR 193
(2013) 10 sec 150
(201 O) 6 sec 331
(1964) 5 SCR 683
1964 (5) SCR 931
1985 (3) SCR 415
1968 (3) SCR 862
referred to
Para 16
referred to
Para 19
referred to
Para 20
referred to
Para 20
referred to
Para 20
referred to
Para 23
referred to
Para 28
D
1959 SCR 1424
2007 (1) SCR 706
referred to
Para 28
referred to
Para 29
E
F
(2010) 6 sec 331
2012 (3) SCR 775
1994 ( 2) SCR 644
1970 (3) SCR 830
1989 (3) SCR 488
relied on
Paras 30, 60
referred to
Para 31
referred to
Para 32
referred to
Para 35
referred to
Para 35
1990 (2) Suppl. SCR 213 referred to
Para 35
1994 (2) SCR 149
referred to
Para 35
(1994) 4 SCC 1
referred to
Para 37
G
2003 (6) Suppl. SCR 927 referred to
Para 38
1978 (2) SCR 621
referred to
Para 38
1978 (1) SCR 1
relied on
Para 53
H
(1961) 2 SCR 679
relied on
Para 59
UNION OF INDIA v. MAJOR S.P. SHARMA
343
(1964) 5 SCR 683
relied on
Para 59
A
1966 SCR 744
relied on
Para 60
1996 (3) SCR 782
relied on
Para 71
1996 (6) Suppl. SCR 120 relied on
Para 72
B
1995 (6) Suppl. SCR 190 relied on
Para 73
2011 (2) SCR435
relied on
Para 74
2002 (2) SCR 1006
relied on
Para 78
c
1975 (1) SCR 1
relied on
Para 79
1980 (3) SCR 1159
relied on
Para 80
1970 (3) SCR830
held inapplicable Para 82
2006 (3) SCR 193
referred to
Para 83
D
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
2951-2957 of 2001.
From the Judgment & Order dated 21.12.2000 of the High
Court of Delhi at New Delhi in LPAs No. 4/87, 43/87, 139/87,
E
148/87, 21/88, 77/93 and 86/94.
Paras Kuhad, ASG, P.P. Rao, Kiran Suri, A.K. Panda,
Jitin Chaturvedi, R. Balasubramaniam, Abhinav Mukherjee,
B.V. Bairam Das (A.C.), Amrita Sanghi, Aditi, Nar Hari Singh,
F
Vikas Mehta, Major K. Ramesh, Archana Ramesh, Dr. Kailash
Chand, Akshat Kulshrestha, Swarendu Chatterjee, Surajit
Bhaduri, Kameshwar Gumber, Koshima Arora, Kiran Mathur,
Dr. Kailash Chand, Dipak Bhattacharya, S. Shekhar, Harman
Guliani, Dr. Vipin Gupta, Ritika Gambhir, A.J. Amith for the G
Appearing parties.
1The Judgment of the Court was delivered by
H
344
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A
M.Y. EQBAL, J. 1. These appeals have been filed against
the common judgment and order dated 21.12.2000 passed by
Delhi High Court in LP.A. Nos. 4, 43, 139, 148of1987, 21 of
1988, 77 of 1993 and 86 of 1994. By the said judgment, the
High Court allowed the appeals preferred by the respondents
B
and quashed not only their termination orders but also the
General Court Martial (hereinafter referred to as 'GCM')
proceedings held against Captain Ashok Kumar Rana and
Captain R.S. Rathaur.
2. Before we proceed with the matter, it would be
C
appropriate to highlight the factual background and brief history
of the case.
In February 1971, Gunner Sarwan Dass was cultivated by
Pakistan Intelligence. In 1972 Captain Ghalwat and Gunner
D
Sarwan Dass crossed the international border. In 1973 Captain
Ghalwat and Gunner Sarwan Dass were posted in Sabina
(M.P.). In 1974 Gunner Aya Singh was cultivated by Gunner
Sarwan Dass for Pak Intelligence. Captain Nagial was then
cultivated by Aya Singh for Pak Intelligence. In 1975 for the first
E
time the espionage racket came to be noticed. Aya Singh and
Sarwan Dass were arrested. In 1976-77 pursuant to the
investigation, three more jawans were arrested. They
· corroborated the involvement of Sarwan Dass. Sarwan Dass
and Aya Singh on further interrogation disclosed the names of
F
Captain Ghalwat and Captain Nagial. In 1976-77 Captain
Ghalwat and Captain Nagial were tried by GCM and were
convicted. Ghalwat was cashiered and given 14 years' RI.
Nagial was given 7 years' RI and. was also cashiered. In
addition, 12 jawans were tried and they were given RI of various
G descriptions and were dismissed from services. Aya Singh and
Sarwan Dass were also among the 12 jawans tried and held
guilty. Later in 1978 it was discovered that Aya Singh was
holding back certain relevant information relating to espionage
activities under certain alleged threat and pressure. Wife of Aya
Singh claimed to be killed. Reeling under the shock of the
H
UNION OF INDIA v. MAJOR S.P. SHARMA
345
[MY EQBAL, J.]
circumstances, he made further disclosures wherein he named
A
Captain Rathaur and Captain AK. Rana; disclosed that he had
been receiving threats that if he disclosed anything his wife
would be killed. Accordingly, in 1978 Captain Rathaur and
Captain A.K. Rana were interrogated. As a result, 42 army
personnel i.e. 19 officers, 4 il!nior commissioned officers
B
(JCOs) and 19 other ranks (ORs), were arrested.
Out of the 19 officers, 3 officers were tried by GCM, two
were convicted, namely, Captain Ranbir Singh Rathaur and
Captain A.K. Rana, and one was acquitted. Captain Ranbir
C
Singh Rathaur and Captain A.K. Rana were sentenced to RI
for 14 years each and were cashiered. Against 13 officers,
disciplinary actions were initiated. However, a decision was
taken not to try them and an administrative order under Section
18 of the Army Act, 1950 (in short "the Army Act") was passed
D
terminating their services.
3. The present appeals arise out of the order passed way
back in 1980 terminating the services of the respondents
h.erein which were brought invoking the doctrine of pleasure as
enshrined under Article 310 of the Constitution of India, 1950
E
(hereinafter referred to as the 'Constitution') coupled with the
powers to be exercised under Section 18 of the Army Act.
Initially, the orders of dismissal were passed on 11.1.1980,
. which were assailed in nine writ petitions that were dismissed
by the High Court of Delhi on 21.4.1980. The special leave
F
petitions against these writ petitions came to be dismissed by
this Court on 1.9.1980.
4. In the meanwhile, a corrigendum came to be issued, as
a result whereof, the orders of dismissal were described as
orders of termination. On account of the substituted termination
G
order, a decision for deducting 5% of the gratuity amount was
taken, which was communicated afresh. These orders made
a fresh ground of challenge before a learned Single Judge of
the Delhi High Court. The learned Single Judge dismissed the
petition by a detailed judgment dated 22.3.1985.
H
346
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A Simultaneously, one Captain R.S. Rathaur had filed a Writ
Petition No.1577 of 1985 under Article 32 of the Constitution
before this Court, which stood dismissed refusing to re-open
the issues already decided.
B
5. Against the order of the learned Single Judge dated
22.3.1985, several Letters Patent Appeals were filed. One of
the appeals, being LPA No.116 of 1985, filed by one N.D.
Sharma, was decided vide judgment dated 19.8.1986
upholding the order of termination approving the applicability
of the doctrine of pleasure. However, at the same time, the
C appeal was partly allowed in relation to the post-retiral benefits
keeping in view the provisions under the Army Act and Rules
and· it was found that the proposed 5% cut-off was not in
accordance with the AcVRules applicable therein.
D
6. Several LPAs were filed by other officers relying on the
Division Bench judgment extending the post-retiral benefits, and
a plea for similar relief was raised.
7. When these appeals came up for hearing, the Division
E Bench of the Delhi High Court hearing the matter differed with
the view on the issue of the applicability of doctrine of pleasure
and maintainability of the writ petitions on the ground of
malafides vide order dated 15.5.1991. Consequently, this
question of law was referred to be decided by a larger bench.
F
8. The Full Bench so constituted to answer this reference
held that an order under Section 18 of the Army Act invoking
the doctrine of pleasure was subject to judicial review if it is
assailed on malafides. It was held that the onus lay on the
petitioner/person alleging malafides and to bring material on
G record to satisfy the court in order to justify the interference.
Aggrieved, the Union of India filed the Special Leave Petition,
which stood dismissed.
9. It appears that after the answer of reference, the pending
H appeals were taken up for decision by the High Court. On
UNION OF INDIA v. MAJOR S.P. SHARMA
347
[M.Y. EQBAL, J.]
account of the answer given by the Full Bench, fresh petitions A
were filed by those officers whose petitions had been dismissed
earlier upto this Court as referred to hereinabove, in 1980.
Some writ petitioners, whose petitions had been dismissed by
learned Single Judge, filed Letters Patent Appeals with
applications for condonation of delay. Appeals were also filed
B
against those judgments that were given in the second round
of litigation proposing to refuse 5% of the terminal benefits
referred to hereinabove. These categories of petitions were
described by the Division Bench hearing the matter in its order
dated 2.5.1995, as under :-
c
"LPA 77/93 & CM 823/95
In these batch of cases, we find there are at least two
LPAs which are directed against the Judgments of
dismissal of the writ petitions holding that the particular D
issue cannot be gone into in writ jurisdiction. Learned
counsel for the appellants in those two cases rely upon the
Full Bench Judgment and the recent Supreme Court
Judgment to contend that the issue can be gone into by
the Court. They have also wanted us to call for certain
E
records from the respondents and in regard to those
records, respondents are claiming privilege and that is a
matter to be decided.
There is another group of cases in which fresh writ
petitions are filed on the ground that notwithstanding the
F
dismissal of the earlier writ petitions or dismissal of the
S.L.Ps, fresh writ petitions are maintainable inasmuch as
it is only now that the Full Bench and the Supreme Court
have decided that the particular issue can be gone into by
the High Court.