Delhi High Court

Viveky Rai vs Union Of India & Ors on 3 April, 2017

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Reserved on : September 01, 2016
                                  Pronounced on: April 03, 2017

+                    W.P.(C) 3629/2015

VIVEKY RAI                                  ..... Petitioner
         Through:               Ms.Jyoti Singh, Sr. Adv. with
                                Mr.Sameer Sharma and Mr.Indraser
                                Singh, Advs.
                           Versus

UNION OF INDIA & ORS                          ..... Respondents

         Through:                 Mr.Arun Bhardwaj, CGSC with
                                  Mr.Mimansak Bhardwaj,
                                  Adv. with Mr.Satya Ranjan Swain,
                                  G.P. for UOI.
                                  Mr.Sunil Fernandes, Standing
                                  Counsel with Mr.Deepak Pathak,
                                  Advocate for R-6.

CORAM:
HON'BLE MS. JUSTICE INDIRA BANERJEE
HON'BLE MR. JUSTICE V. KAMESWAR RAO

%                                 JUDGMENT

INDIRA BANERJEE, J

1. In this writ petition the petitioner has challenged an Order dated

16(3)/2012/D(GS-III) issued by the Government of India,

Ministry of Defence, informing the petitioner that the President

=====================================================================. WP(C) NO.3629/2015

had, in exercise of powers conferred inter alia by Section 18 of

the Army Act, 1950, been pleased to be deemed to have

withdraw pleasure and order the services of the petitioner to be

deemed to have been terminated with effect from 11.09.2009.

2. On or about 05.05.1997, the petitioner was granted commission

in the Territorial Army by the President of India, in the rank of

Second Lieutenant. It was directed that the petitioner would be

embodied on permanent staff under the Territorial Army Act.

3. On 16.08.2001, the petitioner joined 129 Infantry Battalion

(TA), which was deployed in Jammu & Kashmir. After the

petitioner was deployed in the 129 Infantry Battalion, the

petitioner continued to remain subject to the provisions of the

Army Act 1950 and the Rules and Regulations framed

thereunder in the same manner and to the same extent as if he

held the rank of Major in the regular Army, by virtue of Section

9 of the Territorial Army Act, 1948.

4. It appears that on 06.11.2003, while the petitioner was on active

service in the State of Jammu & Kashmir in the 129 Infantry =====================================================================. WP(C) NO.3629/2015

Battalion, there was an incident of firing in the family quarters

of the petitioner in which the wife of the petitioner sustained

gunshot wound and died.

5. On or about 19.11.2003, a case was filed against the petitioner

under Section 302 of the Indian Penal Code read with Section

30 of the Arms Act and he was arrested by the Civil Police,

Samba.

6. According to the petitioner, the petitioner had to undergo trial

by criminal court and languish in jail for more than 5 years,

during which he had to undergo prolonged agony, harassment,

mental torture, loss of social status and his only son aged 2

years at the time of incident, had to go through loss of parental

care and affection. On 24.11.2008, the petitioner was acquitted

by the 1st Additional Session Judge, Jammu. According to the

petitioner, the petitioner was honourably acquitted. Pursuant to

his acquittal, the petitioner was released from jail.

7. On or about 03.01.2009, the petitioner made an application to

the respondent for reinstatement with consequential benefits in =====================================================================. WP(C) NO.3629/2015

view of his acquittal by the Trial Court. However, on

11.09.2009, the impugned order was issued terminating the

services of the petitioner under Section 18 of the Army Act

under the doctrine of the President's pleasure.

8. In January, 2010, the petitioner filed a writ petition in this Court

challenging the order of termination and for his reinstatement.

9. In the course of final hearing, this Court called for the relevant

records and on perusal thereof, came to the conclusion that the

real reason for the termination order was that the petitioner had

remained in jail for almost five years, where he had been in

contact with hardcore criminals and anti-social national

elements. His continuation in the Territorial Army, would,

therefore, be prejudicial to the discipline and organizational

interest.

10. By an order dated 30.08.2011, this Court, inter alia, quashed the

termination order under the Army Act on the ground that the

same was arbitrary as there was no material on record to justify

the reasons on which the order was passed. On or about =====================================================================. WP(C) NO.3629/2015

08.09.2011, the respondent wrote a letter addressed to the

Central Jail, Jammu, inter alia seeking information whether the

petitioner had during his incarceration in the said jail came in

contact with terrorists and antisocial elements, hardcore

criminals.

11. On 10.09.2011, the Superintendent, District Jail, Jammu,

furnished the information sought by the respondent thereby

practically ruling out the possibility of the petitioner having

come in contact with terrorists and antisocial elements/

hardcore criminals.

12. On 27.04.2012, the respondent no.1 issued the impugned

termination order under Section 18 of the Army Act, 1950. On

14.05.2012, an order of termination was communicated to the

petitioner through the Headquarter, TA Group, Central

Command, by an order dated 14.05.2012 and it was received by

the petitioner on his permanent home address at Lucknow on

15.05.2012.

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13. On 29.11.2012, the petitioner filed a writ petition in the

Lucknow Bench of the Allahabad High Court challenging the

termination order dated 27.04.2012. The writ petition was

dismissed by the Lucknow Bench of the Allahabad High Court

on the sole ground of lack of territorial jurisdiction holding that

no part of the cause of action had arisen within the territorial

jurisdiction of the said High Court. Thereafter the petitioner

filed this writ petition.

14. Learned counsel appearing on behalf of the petitioner argued

that the impugned order was totally arbitrary, unreasonable,

without application of mind and liable to be set aside. Learned

counsel argued that a perusal of the order reveals that what

weighed with the respondents in passing the order impugned

was the fact that the petitioner had been lodged in jail in Jammu

with other accused persons along with terrorists and antisocial

elements who might have indoctrinated the petitioner, an Army

man.

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15. A perusal of the order, however, reveals that there were two

grounds for invocation of the doctrine of pleasure. The first

ground was the heinous charge of murder, of which the

petitioner was acquitted by being given the benefit of doubt.

The acquittal was not an honourable acquittal. The second

ground was that the petitioner had been lodged in Jammu jail

along with other accused persons which could include hardcore

terrorists and antisocial elements who may have influenced the

ideas and views of the petitioner rendering his retention in the

Army a threat to the security of the country.

16. May be, the second ground is not sustainable in view of the

specific answer of the Jail Superintendent to the queries which

indicate that there was segregation of terrorists.

17. However, the ground of implication of the petitioner in a grave

and heinous offence of murder of his wife of which he was

acquitted by being given the benefit of doubt was ground

enough for invoking the doctrine of pleasure.

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18. In Union of India & Others v. Major S.P. Sharma and Others,

reported in (2014) 6 SCC 315, the Supreme Court held that

when the President in exercise of his constitutional power

terminates service of an Army officer whose tenure of service is

at the pleasure of the President and such termination is based on

materials on record, then the Court in exercise of its power of

judicial review should be slow in interfering with the exercise

of President's constitutional power.

19. It is true that the judgment in Major S.P.Sharma (Supra) was

rendered in the context of serious espionage charges. However,

the proposition of law which has emerged is, that the pleasure

doctrine is a constitutional necessity for the reason that there is

difficulty in dismissing a Government servant whose

continuance in office is detrimental to the state, by proving

offence to the satisfaction of the Court.

20. There can be no dispute that an order of termination passed

against army personnel in exercise of pleasure doctrine is

subject to judicial review, but while exercising its power of =====================================================================. WP(C) NO.3629/2015

judicial review the Court cannot substitute its own conclusion

on the basis of materials on record. The Court in exercise of

power of judicial review has certain limitations particularly in

cases where the safety and security of the nation is involved.

The safety and security of nation is above everything.

21. In A.K. Kaul and another v. Union of India and another,

reported in (1995) 4 SCC 73, cited on behalf of the respondents,

the Supreme Court held that a distinction has to be made

between judicial review and justiciability of a particular action.

In a written Constitution the powers of the various organs of the

state are limited by the provisions of the Constitution. The

extent of those limitations on the powers has to be determined

on an interpretation of the relevant provisions of the

Constitution. Since the task of interpreting the provisions of the

Constitution is entrusted to the Judiciary it is vested with the

power to test the validity of the action of every authority

functioning under the Constitution on the touchstone of the

Constitution in order to ensure that the authority exercising the =====================================================================. WP(C) NO.3629/2015

power conferred by the Constitution does not transgress the

limitations placed by the Constitution on exercise of that power.

The power of judicial review is, therefore, implicit in a written

Constitution and unless expressly excluded by a provision of

the Constitution, the power of review is available in respect of

exercise of powers under any of the provisions of the

Constitution. Justiciability relates to a particular field falling

within the purview of the power of judicial review. However,

in what cases the Court would interfere with an Act is a

different issue.

22. In our view, the exercise of the doctrine of pleasure of

terminating the service of an Army officer charged with the