of India & Ors Vs. Ranbir
Singh Rathaur & Ors Etc.Etc
 Insc 137 (22 March 2006)
Arijit Pasayat & Tarun
Chatterjee Arijit Pasayat, J.
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 respondentRanbir
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 :
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 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
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:
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.
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 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.
this juncture it would be appropriate to take note of previous litigations.
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.
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:
Ranbir Singh Rathaur be forthwith produced before this Hon'ble Court.
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.
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').
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
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 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.
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.
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 :
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 :
have gone through the Review 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:
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
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.
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 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.
matter came to be referred to a Full Bench of the High Court to ascertain:
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:
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.
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.
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
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." 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.
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:
The case of the appellants and the
case of the writ petitioners are interconnected and intertwined and they can be
looked as a whole.
Instead of producing all the
relevant records, the respondent had produced only three flaps.
Perusal of the Counter Affidavit in
all cases gives the impression that the respondent had withheld material facts.
Respondents have not placed any
material justifying the action.
Respondent think they are law unto
Respondents have chosen not to
produce the entire record.
We may not have interfered in view
of finality reached on an adjudication by this court
provided the records were produced.
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
The appellants in the LPA are
entitled to all consequential benefits. Orders passed against the appellants in
LPA are void.
3.1.2001 the counsel for the present appellant received back the files
submitted to the High Court.
these appeals, it has been urged as follows:-
By application of the principles of res judicata, the writ petitions
were not maintainable.
The order dated 17.11.1994 of this
Court has been overlooked.
Onus of proof wrongly shifted to the
The earlier adjudications have not
been taken into account.
Delay in filing the writ petitions
has not been considered.
Records were produced before the
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.
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.
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:
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
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.
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 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.
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.