Sunanda Bhandare, J.
1. In the year 1977 a large number of Army Personnel were suspected of being involved in espionage activities with Pakistan. This was known as the Samha Spy scandal. Some of the personnel were tried and convicted while services of those personnel in respect of whom there was only a suspicion were terminated under Section 18 of the Army Act. These Letters Patent Appeals have been filed by those persons whose services were terminated under Section 18 of the Army Act.
2. When the appeals came up for hearing before a Division Bench of this Court it was contended by the appellants that the order of termination though purported to have been passed under Section 18 of the Army Act by and in the name of the President by exercising his presidential prerogative, in facts, the order was one of dismissal on the ground of misconduct. It was submitted that the order of termination was a camouflage and on lifting the veil it would be apparent that the dismissal was by way of punishment. It was submitted that when it was found that adequate evidence was not available to convict the appellant before the court martial, the impugned order was passed by using the presidential prerogative. As such, the order was malafide. It was contended that even though the order was passed under Article 310 of the Constitution of India read with Section 18 of the Army Act since it violates the fundamental right guaranteed to the appellant, the same could not be sustained. It was contended that though Article 311(2) of the Constitution of India is not applicable to defense Services, rules of natural justice must be complied with because the defense personnel enjoy the protection guaranteed under Article 14 of the Constitution of India. A reference was also made to another judgment of this Court in another LPA being LPA No. 116 of 1985. Para 22 of the said judgment reads thus :
'Now turning to the question as to whether the termination is valid because Section 18 was not applicable, we are of the view that there are two possibilities. Either the termination order has to be set aside on the ground that it was passed without an enquiry on account of misconduct or some other way must be found to reconcile the provisions of Sections 18 and 19 of the Army Act. The appellant who appeared in person submitted with a great deal of eloquence that he had served during two campaigns on the Front Line in the service of the country, but no one had said that his service was unsatisfactory. He submits that the termination orders were passed as a result of certain statements, which have later been found to be incorrect and we would be justified in setting aside the termination because it was passed on the ground of alleged misconduct which was never inquired into. We see a great deal of force in this submission but we are reluctant to accept this point of view because it is against the discipline of an Armed Force. The fact that the President has used his pleasure to terminate the services of the appellant is a disincentive to hold that we can interfere with that pleasure in a writ petition. We are, thereforee, inclined to take the opposite point of view to hold that the Presidential order terminating the services of the appellant was not passed on the ground that the service was unsatisfactory. The provisions of Regulation 3 referred to earlier, would show that a positive reason must exist for holding the services to be unsatisfactory. The mere fact that the services were terminated under the pleasure doctrine is no reason for holding that the services were not satisfactory. We have taken this easier way out, as otherwise we would be compelled to hold that the termination was void and invalid.'
3. The Division Bench, thereforee, referred the following question of law for consideration by a larger Bench :
'Whether the order of termination passed by and in the name of the President under Section 18 of the Army Act read with Article 310 of the Constitution invoking the doctrine of pleasure of President be challenged on the ground that it is a camouflage and as such is vocative of principles of natural justice and fundamental right guaranteed under Article 14 of the Constitution?
4. Mr. Arun Jaitley, learned counsel for the appellant contended that though the impugned order is passed by the respondent under Section 18 of the Army Act, it is in fact an order passed under Section 19 of the Act and it was a fraud on power because the power under Section 18 of the Army Act was used for collateral purpose. It was submitted that the order was arbitrary and lacked in fairness and thus violated the appellant's fundamental right under Article 14 of the Constitution. It was submitted that on the basis of antecedent and surrounding facts it is necessary for this Court to lift the veil in order to see the real content of the order. It is necessary for the Court to pierce the veil to see the real nature of the action. It was submitted that an order passed under Section 18 of the Army Act is subject to judicial review particularly because the said action is in fact in exercise of the executive power of the State. Large number of cases were cited by the learned counsel in support of these contentions and it was submitted that the court should give construction which advances the constitutional spirit. National security cannot be used as an excuse for elimination of judicial review and exclusion of natural justice. It cannot give a license to the executive to act malafide or without any material or act on the basis non-existent and irrelevant material. It was submitted that unless the respondents claim privilege against production of record which is a matter to be decided by the Court, the respondents were duty bound to produce the record as and when the Court summoned the same.
5. Shri K. T. S. Tulsi, learned Additional Solicitor General submitted that while the pleasure of the President in respect of civilian employees under Article 310 of the Constitution of India is restricted and controlled by Articles 309 and 311 of the Constitution there is no such restriction on the pleasure of the President in the case of defense personnel. Article 311 of the Constitution is not specifically applicable to defense personnel and thus the pleasure of the President in cutting short of tenure of a defense Personnel is not controlled or governed by any restriction. It was submitted that the theory of lifting of veil is derivative of the restriction imposed on the pleasure of the President by Article 311 and since Article 311 itself is not applicable, the theory of lifting the veil by questioning the validity of an order passed under Section 18 of the Army Act read with Article 310 of the Constitution cannot be challenged. Section 18 of the Army Act confers an over-riding power of termination on the President who is the Supreme Commander of the Armed Forces since defense personnel cannot have a right to a fixed tenure. Section 18 of the Army Act confers a much wider discretion on the President than Article 310 which is controlled by Article 311 and regulated by rules under Article 309 of the Constitution.
6. Learned Additional Solicitor General submitted that in view of Article 33 of the Constitution, the fundamental rights of defense personnel are restricted or abrogated. If the Army Act or Army Rules do not provide for natural justice, no one can claim that rules of natural justice should be complied with and since Section 18 does not so stipulate, the appellant cannot make a grievance that rules of natural justice have not been complied with. It was submitted that the Army Personnel are required to give up their fundamental right to protect the fundamental rights of other citizens and thus in view of Article 33 of the Constitution, the defense personnel are not entitled to protection guaranteed under Articles 14 and 16 of the Constitution of India. As such, judicial review is totally barred and services of an Army Personnel can be terminated without assigning any reason under the pleasure doctrine and there is no compliance to adhere to the rules of natural justice.
7. As regards the submission of the appellant that the action has been actually taken against the appellant under Section 19 in the grab of Section 18 of the army Act it was submitted that it was open to the respondents to either terminate the services of the appellant under Section 18 of the Army Act or under Section 19 of the Army Act on the ground of misconduct after holding an inquiry as contemplated under Rule 14 or by way of summary trial under Section 83 of the Army Act and finally by way of court martial proceedings under section 109 of the Army Act. It was submitted that it was always open to the respondent to resort to Section 18 of the Army Act even if initially the action was initiated under sections 19, 83 or 109 of the Army Act. Learned counsel relied on Chief of Army Staff & Others v. Major Dharmpal Kukrety, : 1985CriLJ913 in support of this contention. It was submitted that merely because court martial proceedings were initiated against the appellant at the initial stage it did not preclude the respondents from passing an order under Section 18 of the Army Act.
8. Learned Additional Solicitor General submitted that in the case of Army Personnel, the extent of judicial review available to the High Court under Article 226 of the Constitution is far more restricted than in the case of civilian employees. This is so because under Clause 4 of Article 227 of the Constitution of India, the superintendence of the High Court over the defense force is excluded. As such, the order under Section 18 of the Army Act would not be subject to judicial review.
9. Article 309, 310 and 311(1) and (2) of the Constitution of India read thus :
'309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State :
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons, appointed to such services and posts until provision in that behalf is made by of under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of such Act.'
'310. (1) Except as expressly provided by this Constitution, every person who is a member of defense service or of a civil service or the Union or of an all-India service or holds any post connected with defense or any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.
(2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor of the State, any contract under which a person, not being a member of a defense service or of an all-India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.'
'311. (1) No person who is a member of a civil service of the Union or an all-India service or civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges :
Provided that where it is proposed after such inquiry, to impose upon him any such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed :
Provided further that this clause shall not apply -
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry, or
(c) 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 inquiry.'
10. The scope of Article 310 of the Constitution and the doctrine of pleasure of President came up for consideration before the Supreme Court in State of U.P. & Others v. Babu Ram Upadhaya : 1961CriLJ773 . The majority view was as follows :
'The discussion yields the following results : (1) In India every person who is a member of a public service described in Article 310 of the Constitution holds office during the pleasure of the President or the Governor, as the case may be, subject to express provisions therein. (2) The power to dismiss a public servant at pleasure is outside the scope of Article 154 and, thereforee, cannot be delegated by the Governor to a subordinate officer, and can be exercised by him, only in the manner prescribed by the Constitution. (3) This tenure is subject to the limitation or qualifications mentioned in Article 311 of the Constitution. (4) The Parliament or the Legislatures of States cannot make a law abrogating or modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Article 310, as qualified by Article 311. (5) The Parliament or the Legislatures of States can make a law regulating the conditions of service of such a member which includes proceedings by way of disciplinary action, without affecting the powers of the President or the Governor under Article 310 of the Constitution read with Article 311 thereof. (6) The Parliament and the Legislatures also make a law laying down doctrine of 'reasonable opportunity' embodied in Article 311 of the Constitution; but the said law would be subject to judicial review. (7) If a statue could be made by Legislatures within the foregoing permissible limits, the rules made by an authority in exercise of the power conferred there under would likewise be efficacious within the said limits.'
11. In Moti Ram Deka v. General Manager, NEF, Railways, ETC. : (1964)IILLJ467SC the doctrine of pleasures of President and power under Articles 310 and 311 of the Constitution of India came up for consideration before the Supreme Court and the Supreme Court observed that the pleasure of the President has lost some of its majesty and powers as it is controlled by the provisions of Article 311 and held :
'.... There is no doubt that the pleasure of the President on which the learned Additional Solicitor General so strongly relies has lost some of its majesty and power, because it is clearly controlled by the provisions of Article 311, and so, the field that is covered by Article 311 on a fair and reasonable construction of the relevant words used in that article, would be excluded from the operation of the absolute doctrine of pleasure. The pleasure of the President would still be there, but it has to be exercised in accordance with the requirements of Article 311.
Besides, as this Court has held in the State of Bihar v. Abdul Masjid, 1954 SCR 786, the rule of English Law pithily expressed in the latin phrase : duranto beneplacito ('during pleasure') has not been fully adopted either by section 240 of the Government of India Act 1935 or by Article 310(1). To the extent to which that rule has been modified by the relevant provisions of section 240 of the Government of India Act 1935, or Article 311 the Government servants are to relief like any other person under the ordinary law and that relief must be regulated by the Code of Civil Procedure. It is mainly on the basis of this principle that this Court refused to apply the doctrine against Abdul Majid that a civil servant cannot maintain suit against the Crown for the recovery of arrears of salary due to him. Thus, the extreme contention based on the doctrine of pleasure enshrined in Article 310(1) cannot be sustained. Similarly, we do not think it would be possible to accept the argument that the word 'removal' in Article 311(2) should receive the widest interpretation. Apart from the fact the said provision is in the nature of a proviso to Article 310(1) and must, thereforee, be strictly construed, the point raised by the contention is concluded by the decisions of this Court and we propose to deal with the present appeals on the basis that the word 'removal' like the two other words 'dismissal' and 'reduction in rank' used in Article 311(2) refer to cases of major penalties which were specified by the relevant service rules. thereforee, the true position is that Articles 310 and 311 must no doubt be read together, but once the true scope and effect of Article 311 is determined, the scope and effect of Article 310(1) must be limited in the sense that in regard to cases falling under Article 311(2) the pleasure mentioned in Article 310(1) must be exercised in accordance with the requirements of Article 311.....'
'Reverting then to the nature of the right which a permanent servant has under the relevant Railway Rules, what is the true position? A person who substantively holds a permanent post has a right to continue in service, subject, of course, to the rule of superannuation and the rule as to compulsory retirement. If for any reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such, it is in the nature of a penalty and amounts to removal. In other words, termination of services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement, must per se amount to his removal, and so, if by R. 148 (3) or R. 149(3) such a termination is brought about, the Rule clearly contravene Article 311(2) and must be held to be invalid. It is common ground that neither of the two Rules contemplates an enquiry and in none of the cases before us has the procedure prescribed by Article 311(2) been followed. We appreciate the argument urged by the learned Additional Solicitor General about the pleasure of the President and its significance; but since the pleasure has to be exercised subject to the provisions of Article 311, there would be no escape from the conclusion that in respect of cases falling under Article 311(2), the procedure prescribed by the said Article must be complied with and the exercise of pleasure regulated accordingly.
In this connection, it is necessary to emphasise that the rule-making authority contemplated by Article 309 cannot be validly exercised so as to curtail or affects the rights guaranteed to public servants under Article 311(1). Article 311(1) is intended to afford a sense of security to public servants who are substantively appointed to a permanent post and one of the principle benefits which they are entitled to except is the benefit of pension after rendering public service for the period prescribed by the Rules. It would, we think, not be legitimate to contend that the right to earn a pension to which a servant substantively appointed to a permanent post is entitled can be curtailed by Rules framed under Article 309 so as to make the said right either ineffective or illusory. Once the scope of Article 311(1) and (2) is duly determined, it must be held that no Rule framed under Article 309 can trespass on the rights guaranteed by Article 311. This position is of basic importance and must be borne in mind in dealing with the controversy in the present appeals.
At this stage, we ought to add that in a modern democratic State the efficiency and incorruptibility of public administration is of such importance that it is essential to afford to civil servants adequate protection against capricious action from their superior authority. If a permanent civil servant is guilty of misconduct, he should no doubt be proceeded against promptly under the relevant discipline rules, subject of course, to the safeguard prescribed by Article 311(2); but in regard to honest, straightforward and efficient permanent civil servants, it is of utmost importance even from the point of view of the State that they should enjoy a sense of security which alone can make them independent and truly efficient. In our opinion, the word of Damocles hanging over the heads of permanent railway servants in the form of R. 148(3) or R. 149(3) would inevitably create a sense of insecurity in the minds of such servants and would invest appropriate authorities with every wide powers which may conceivably be abused.'
12. In Shamsher Singh & Another v. State of Punjab : (1974)IILLJ465SC the Supreme Court on reconsideration of its previous judgments in Babu Ram Upadhaya, Moti Ram Deka, (supra), Rai Saheb Ramjawaya Kapur v. State of Punjab, : [1955]2SCR225 . A Sanjeevi Naidu v. State of Madras : [1970]3SCR505 , U. N. Rao v. Smt. Indira Gandhi : [1971]1SCR46 and Jayantilal Amritlal Shodhan v. F. N. Rana & Ors. : [1964]5SCR294 observed :
'The President as well as the governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the governor is required by our under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the governor for the exercise by the President or the governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet System of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the governor generally exercises all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two Article 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. thereforee, the decision for any delegation. thereforee, the decision of Minister or officer under the rules of business is the decision of the President or the Governor....................'
'In Babu Ram Upadhaya's case (supra) the majority view stated seven propositions at p. 701 of the report. Proposition No. 2 is that the power to dismiss a public servant at pleasure is outside the scope of Article 154 and thereforee cannot be delegated by the Governor to a subordinate officer and can be exercised by him only in the manner prescribed by the Constitution. Propositions No. 3 and 4 are these. The tenure of a public servant is subject to the limitations or qualifications mentioned in Article 311 of the constitution. The Parliament or the Legislature of States cannot make a law abrogating or modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Article 310 as qualified by Article 311. Proposition No. 5 is that the Parliament or the Legislatures of States can make a law regulating the conditions of service of such a member which includes proceedings by way of disciplinary action, without affecting the powers of the President or the Governor under Article 310 of the Constitution read with Article 311. Proposition No. 6 is that the Parliament and the Legislatures also can make a law laying down and regulating the scope and content of the doctrine of 'reasonable opportunity' embodied in Article 311 but the said law would be subject to judicial review.
All these propositions were reviewed by the majority opinion of this Court in Moti Ram Deka's case (supra) and this Court restated that proposition No. 2 must be read Along with the subsequent propositions specified as propositions No. 3, 4, 5 and 6. The ruling in Moti Ram Deka's case (supra) is that a law can be framed prescribing the procedure by which and the authority by who the said pleasure can be exercised. The pleasure of the President or the Governor to dismiss can thereforee not only be delegated but is also subject to Article 311. The true position as laid down in Moti Ram Deka's case (supra) is that Article 310 and 311 must no doubt be read together but once the true scope and effect of Article 311 is determined the scope of Article 310(1) must be limited in the sense that in regard to cases falling under Article 311(2) the pleasure mentioned in Article 310(2) must be exercised in accordance with the requirements of Article 311.
The majority view in Babu Ram Upadhaya's case (supra) is no longer good law after the decision in Moti Ram Deka's case (supra). The theory that only the President or the Governor is personally to exercise pleasure of dismissing or removing a public servant is repelled by express words in Article 311 that no person who is a member of the Civil Service or holds a civil post under the Union or a State shall be dismissed or removed by authority subordinate to that by which he was appointed. The words 'dismissed or removed by an authority subordinate to that by which he was appointed' indicate that the pleasure of the President or the Governor is exercised by such officer on whom the President or the Governor confers or delegates power...................'
For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the executive whether those functions are executive or legislative in character. Neither the President nor the governor is to exercise the executive functions personally.'
13. In Union of India v. Tulsi Ram Patel, 1985 2 CLR 117 the Supreme Court observed :
'The position, thereforee, is that the pleasure of the President or the governor is not required to be exercised by either of them personally, and that is indeed obvious from the language of Article 311. Under clause (1) of that article a government servant cannot be dismissed or removed by an authority subordinate to that by which he was appointed. The question of an authority equal or superior in rank to the appointing authority cannot arise if the power to dismiss or remove is to be exercised by the President or the governor personally. Clause (b) of the second proviso to Article 311 equally makes this clear when the power to dispense with an inquiry is conferred by it upon the authority empowered to dismiss, remove or reduce in rank a government servant in a case where such authority is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry, because if it was the personal satisfaction of the President or the Governor, the question of the satisfaction of any authority empowered to dismiss or remove or reduce in rank a government servant would not arise. Thus, though under Article 310(1) the tenure of a government servant is at the pleasure of the President or the governor, the exercise of such pleasure can be either by the President or the Governor acting with the aid and on the advice of the Council of Ministers or by the authority specified in Acts made under Article 309 or in rules made under such Acts or made under the proviso to Article 309; and in the case of clause (c) of the second proviso to Article 311(2), the inquiry is to be dispensed with not on the personal satisfaction of the President or the governor but on his satisfaction arrived at with the aid and on the advice of the Council of Ministers.'
14. It is thus well settled that the tenure of a government servant under Article 310(1) of the constitution of India though is at the pleasure of the President or the Governor, the exercise of such pleasure can be either by the President or the governor acting with the aid and advice of the council of Ministers or by the authority specified in Acts made under Article 309 or in rules made under such Acts or made under Proviso to Article 309. Article 310 and Article 311 must be read together and in regard to cases falling under Article 311 (2) the pleasure mentioned in Article 310(2) must be exercised in accordance with requirement of Article 311.
15. The pleasure of the President under Article 310 of the constitution of India is a part and parcel of the executive power of the Union vested in the President. The exercise of such pleasure can be either by the President directly acting with the aid and advice of the council of Ministers or through officers subordinate to him or the authorities specified in Acts made under Article 309 or Rules made under such Acts. In other words, the pleasure of the President is not required to be exercised by him personally.
16. Article 310 itself does not prescribe the manner in which the pleasure of the President shall be exercised. As provided in Article 53, the exercise of the executive power of the President, particularly matters concerning the supreme command of the defense Forces of the Union, shall be 'regulated by law'. In Shamsher Singh's case (supra), it has been explained....' a law can be framed prescribing the procedure by which and the authority by whom the said pleasure can be exercised.' It is reiterated in the case of Tulsi Ram Patel (supra) that the pleasure of the President can be exercised 'by the authority specified in Acts made under Article 309 or in rules made under such Acts'. In pursuance of these provisions made in the Constitution, the army Act lays down the law relating to the governance of the Army. Chapter IV prescribes the conditions of service of persons subject to the Act. At the outset, Section 18 manifests the pleasure of the President in its over-riding and unrestricted ambit and form postulated under Article 310 of the Constitution. Section 19 provides that subject to the provisions made in the Act and the rules and Regulations made there under, the Central Government may dismiss or remove from service, any person subject to the Act. The manner regulation the peculiar kind of proceedings that take place in the inquiry and trial of cases in the specially constituted Courts of Inquiry and Courts Martial is prescribed under the said Act, rules and regulations. Sections 20 and 22 to 24 confer upon the Chief of the Army Staff and the other authorities certain powers that they may exercise in relation to tenure of different classes of army personnel. Thus, provision has been made in this Chapter, particularly in Sections 18, 19 and 20 of the Act of the discharge of executive functions in relation to the Army in conformity with Clauses (1)(2) and (3) of Article 53 as well as Articles 309 and 310 of the Constitution.
17. Article 311 imposes upon the exercise of pleasure of the President two restrictions :(1) with respect to the authority empowered to dismiss or remove a person from Government service and (2) with respect to the procedure that shall be followed for such an action to be taken in respect of a civil servant. Any provision made in an Act or Rules made under Article 309 also shall conform to the provisions contained in Clauses (1) and (2) of Article 311, otherwise, it would be ultra virus and void. In other words, any act or Rules made for regulating the conditions of service of persons in civil service shall delineate machinery and procedure for enquiry of the particular kind postulated under Article 311 of the Constitution.
18. The position in relation to members of defense services is different. The provisions made in Article 311 are not applicable to defense personnel. Undoubtedly, the constitutional protection given to civil servants under Article 311 of the Constitution is not available to defense personnel. The prohibition against dismissal or removal of a person by an authority subordinate to that by which he was appointed stipulate in respect of a member of a civil service in Clause (1) of Article 311 is not available in the case of a person who is a member of a defense service. Likewise, the protection of enquiry and opportunity of the kind and in the form stipulated in Clause (2) of Article 311 is also not available to defense personnel.
19. However, it is difficult to accept the extreme contention of the learned Additional Solicitor General that since Article 311 is not applicable to defense personnel, it follows that pleasure of the President, so far as the defense personnel is concerned, is not controlled or governed by any restriction at all. In fact, the view of the Supreme Court in the aforementioned cases clearly indicated that the President when he or his subordinate officer exercises executive function, which includes the exercise of his pleasure under Article 310, must act in conformity with the provisions of the Constitution. The exercise of this power cannot be arbitrary or illegal. A somewhat similar argument was rejected by the Supreme Court in Moti Ram Deka's case (supra). The Supreme Court referring to the case of State of Bihar v. Abdual Majid, 1954 SCR 786 observed that rule of English law in the Latin Phrase 'duranto bene placito' (during pleasure) has not been adopted fully in article 310(1).
20. The effect of non-applicability of Article 311 to defense personnel does not, in any way, prevent the exercise of pleasure of the president from being 'regulated by law' under Article 53 or under Article 309 of the Constitution. Since Article 311 is not applicable to defense personnel, the restrictions contained therein do not inhibit the making of a law prescribing the procedure by which and the authority by whom the said pleasure can be exercised. Any provision made in this behalf shall not be vitiated on the ground that it does not conform to the provisions made either under clause (1) regarding the authority to take action or under Clause (2) regarding the manner in which the action shall be taken in the case of defense personnel. Indeed, Section 20 of the Army Act lays down the law authorising dismissal or removal of a person in certain cases by an authority subordinate to that by which he may have been appointed. As discussed above, the procedure and the form of inquiry and trial prescribed for taking such action under the Army Act, rules and regulations is also different.
21. It is obvious that breech or contravention of any of the express provisions made in the Army Act, rules and regulations would vitiate the action taken against a person employed in the Army. In Lekh Raj Khurana v. Union of India : [1971]3SCR908 , the appellant, who was a Surveyor in the Army Ordnance depot was found to be holding a post connected with defense and it was held that such a person could not claim the protection of Article 311(2) of the Constitution, yet, it was further held (in paragraph 7 at page 2113) that the breach of a statutory rule in relation to the conditions of service would entitle the aggrieved government servant to have recourse to a Court for redressal. In other words, even in the absence of the 'constitutional protection' under Article 311, a person in the Army is still entitled to the 'statutory protection' of the procedural safeguards, including the principles of natural justice, embodies in suitably modified form, for the purposes of fair enquiry and trial of cases by a peculiar kind of procedure in Courts of Inquiry and Courts Martial, specially provided under the Army Act.
22. Learned Additional solicitor General however contended that in view of Article 33 of the Constitution defense personnel do not enjoy fundamental rights guaranteed under Articles 14 and 16 unless the Army Act and the Rules expressly or impliedly confer the right of natural justice, the same must have been excluded. It was submitted that the pleasure of the President under Article 310 being unfettered judicial review of an order passed under Article 310 of the Constitution read with Section 18 of the Army Act was not permissible.
23. The scope of judicial review has under gone a sea change over the years. In Council of Civil Service Unions v. Minister for the civil Service, 1985 AC 374 it is observed that on three grounds an administrative action is subject to judicial review; (i) illegality, (ii) irrationality and (iii) procedural impropriety. The recent judgments of the Supreme Court in Kehar Singh & Another v. Union of India & Another : 1989CriLJ941 , Sarojini Ramaswamy v. Union of India & Others. : AIR1992SC2219 and S. R. Bommai & Others. Etc. v. Union of India & Ors. Etc. JT 1994 (2) 215 have extended the scope of judicial review even beyond administrative action.
24. In mattes relating to amend Forces, the exclusionary provisions contained in Clause (2) of Article 136 in respect of appellate jurisdiction of Supreme Court and Clause (4) of Article 226 dealing with supervisory jurisdiction of the High Court, do not trammel the power of judicial review separately vested in these superior Courts under Article 136 and Article 226 of the Constitution.
25. In Kehar Singh's case (supra) the Supreme Court observed :
11. In the course of argument, the further question raised was whether judicial review extends to an examination of the order passed by the President under Article 72 of the Constitution. At the outset we think it should be clearly understood that we are confined to the question as to the area and scope of the President's power an not with the question whether it has been truly exercised on the merits. Indeed, we think that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram v. Union of India. The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter for the Court. In Special Reference No. 1 of 1964, Gajendragadkar C.J. speaking for the majority of this Court observed.
'...... Whether or not there is distinct and rigid separation powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution........
This Court in fact proceeded in State of Rajasthan v. Union of India to hold : (SCC p. 661, para 149)
So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so... This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgress such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That in the essence of the rule of law.
and in Minerva Mills Ltd. v. Union of India Bhagwati, J said (SCC p. 677 para 87)
..... the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such limits are transgressed or exceeded... The Constitution has thereforee, created an independent machinery for resolving these disputes and this independent machinery is the judicatory which is vested with the power of judicial review.....
it will be noted that the learned Judges observed in S. P. Sampath Kumar v. Union of India that this was also the view of the majority Judges in Minerva Mills Ltd. v. Union of India.'
'14. Upon the considerations to which we have adverted, it appears to us clear that the question as to the area of the President's power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review.
26. In Sarojini Ramaswamy's case (supra) the Supreme Court observed :
'74. The clear indication, thereforee, is that mere parliamentary approval of an action or even a report by an outside authority when without such approval, the action or report is ineffective by itself, does not have the effect of excluding judicial review on the permissible grounds. In the present context, the only question for us to consider is whether judicial review of the finding of guilty in the report of the Inquiry Committee constituted under the Judges (Inquiry) Act, 1968 would be permissible on the available grounds of judicial scrutiny after the making of an order of removal by the President pursuant to adoption of the motion for removal by the Parliament based on the Inquiry Committee's report. There is no ground to hold that judicial review is barred for this reason.
75. In our opinion, availability of judicial review to the learned Judge, in case the need arises as a result of the order of removal made by the President, after the making of such an order cannot be doubted in view of the wide powers of the Supreme Court of India.
76. Judicial review is the exercise of the court's inherent power to determine legality of an action and award suitable relief and thereby uphold the rule of law. No further statutory authority is needed for the exercise of this power which is granted by the Constitution of India to the superior courts. There is no reason to take the view that an order of removal of a Judge made by the President of India under Article 124 (4) of the Constitution is immune from judicial review on permissible grounds to examine the legality of the finding of guilty made by the Inquiry Committee during the statutory process of removal which is the condition precedent for commencement of the parliamentary process culminating in the making of order of removal by the President.'
27. In S. R. Bommai & Ors. (supra) the Supreme Court by majority held that order passed by the President Under Article 356 of the Constitution of India is subject to judicial review and observed as follows :
'43. The question now is of the test applicable to determine the situation in which the power of judicial review is capable of exercise or, in other words, the controversy is justiciable. The deeming provision in Article 365 is an indication that cases falling within the ambit are capable of judicial scrutiny by application of objective standards. The facts which attract the legal fiction that the constitutional machinery has failed are specified and their existence is capable of objective determination. It is, thereforee, reasonable to hold that the cases falling under Article 365 are justiciable.
44. The expression 'or otherwise' in Article 356 indicates the wide range of the materials which may be taken into account for the formation of opinion by the President. Obviously, the material could consist of several imponderables including some matter which is not strictly legal evidence, the credibility is not strictly legal evidence, he credibility and authenticity of which is capable of being tested in law courts. The ultimate opinion formed in such case, would be mostly a subjective political judgment. There are no judicially manageable standards for scrutinising such materials and resolving such a controversy. By its very nature such controversy can be justiciable. It would appear that all such cases are, thereforee, no justiciable.
45. It would appear that situations wherein the failure of constitutional machinery has to be inferred subjectively from a variety of facts and circumstances, including some imponderables and inferences leading to a subjective political decision, judicial scrutiny of the same is not permissible for want of judicially manageable standard. These political decisions call for judicial hands off envisaging correction only by a subsequent electoral verdict unless corrected earlier in Parliament.
46. In other words, only cases which permit application of totally objective standards for deciding whether the constitutional machinery has failed, are amenable to judicial review and the remaining cases wherein there is any significant areas of subjective satisfaction dependent on some imponderables or inferences are not justiciable because there are no judicially manageable standards for resolving that controversy; and those cases are subject only to political scrutiny and correction for whatever its value in the existing political scenario. This appears to be the constitutional scheme.'
167. Our conclusions, thereforee, may be summarised as under :
1. The Validity of the Proclamation issued by the President under Article 356(1) is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the mala fide exercise of the power. When a prima facie case is made out in the challenge to the Proclamation, the burden is on the Union Government to prove that the relevant material did in fact exist. Such material may be either the report of the Governor or other than the report.
II. Article 74(2) is not bar against the scrutiny of the material on the basis of which the President had arrived at his satisfaction.'
266. Judicial review is a basic feature of the Constitution. This Court/High Courts have constitutional duty and responsibility to exercise judicial review as centinal quevive. Judicial review is not concerned with the merits of the decision, but with the manner in which the decision was taken. The exercise of the power under Article 356 is a constitutional exercise of the power, the normal subjective satisfaction of an administrative decision on objective basis applied by the Courts to administrative decisions by subordinate offices are quasi judicial or subordinate legislation does not apply to the decision of the President under Article 356.
267. Judicial review must be distinguished from the justifiability by the Court. The two concepts are not synonymous. The power of judicial review is a constituent power and cannot be abdicated by judicial process of interpretation. However, justifiability of the decision taken by the President is one of exercise of the power by the Court hedged by self imposed judicial restraint. It is a cardinal principle of our Constitution that no one. Howsoever lofty, can claim to be the sole Judge of the power given under the Constitution. Its actions are within the confines of the power given by the Constitution.
268. This Courts as final arbiter in interpreting the Constitution, declares what the law is. Higher judiciary has been assigned a delicate task to determine what powers the Constitution has conferred on each branch of the Government and whether the actions of that branch transgress such limitations, it is the duty and responsibility of this Court/High Court to lay down the law. It is the constitutional duty to uphold the constitutional values and to enforce the constitutional limitations as the ultimate interpreter of the Constitution. The judicial review, thereforee, extends to examine the constitutionality of the proclamation issued by the President under Article 356. It is a delicate task, though loaded with political over-tones to be exercised with circumspection and great care. In deciding finally the validity of the proclamation, there cannot be any hard and fast rule or fixed set of rules or principles as to when the President's satisfaction is justiciable and valid.
453(7) The Proclamation under Article 356(1) is not immune from judicial review. The Supreme Court or the High Court can strike down the proclamation if it is found to be malafide or based on wholly irrelevant or extraneous grounds. The deletion of clause (5) (which was introduced by the 38th (Amendment Act) by the 44th (Amendment) Act, removes the cloud on the review ability of the action. When called upon, the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so, if it seeks to defend the action. The Court will not go into the correctness of the material or its adequacy. It's enquiry is limited to see whether the material was relevant to the action. Even if part of the material is irrelevant, the court cannot interfere so long as there is some material which is relevant to the action taken.
(8) If the Court strikes down the proclamation, it has the power to restore the dismissed government to office and revive and re-activate the Legislative Assembly wherever it may have been dissolved or kept under suspension. In such a case, the court has the power to declare that acts done, orders passed and laws made during the period the proclamation was in force shall remain unaffected and be treated as valid. Such declaration, however, shall not preclude the government/Legislative Assembly or other competent authority to review, repeal or modify such acts, orders and laws.'
28. Learned Additional Solicitor General submitted that even though the Supreme Court has widened the scope of judicial review even in matters not governing administrative action of the President, the aforementioned decisions of the Supreme Court would have no learning on the present case. Learned counsel submitted that defense personnel give up their fundamental rights under Part III of the Constitution in view off Article 33 of the Constitution of India. thereforee, judicial review is barred.
29. This proposition so broadly placed is not borne out from the constitutional provision (Article 33), the Army Act or judicial precedent.
Article 33 of the Constitution reads thus :
'33 Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to -
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c).
be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.'
30. The Parliament enacted the Army Act 1950 to consolidate and amend the law relating to governing of the regular army. The conditions of service of defense personnel is governed by the Army Act 1950 under Chapter IV. Section 18 of the Army Act governs the tenure of service under the Army Act and it stipulates that every person subject to Army Act shall hold office during the pleasure of the President. This Section reiterates the constitutional position set out in Article 310 of the Constitution. Section 21 of the Army Act provides for power to modify certain fundamental rights in their application to persons subject to Army Act. Section 21 reads thus :
'21. Power to modify certain fundamental rights in their application to persons subject of this Act-Subject to the provisions of any law for the time being in force relating to the regular Army or to any branch thereof, the Central Government may, by notification, make rules restricting to such extent and in such manner as may be necessary the right of any person subject to this Act :
(a) to be a member of, or to be associated in any way with, any trade union or labour union, or any class of trade or labour unions, or any society, institution or association or any class of institution or associations;
(b) to attend or address any meeting or to take part in any demonstration organized by anybody of persons for any political or other purposes;
(c) to communicate with the press or to publish or cause to be published any book, letter or other document.'
31. In Ram Sarup v. Union of India & Anr. : 1965CriLJ236 the validity of Section 125 of the Army Act came up for consideration before the Supreme Court. The Supreme court observed :
'lastly, Mr. Rana, learned counsel for the petitioner, urged in support of the first that in the exercise of the power conferred on Parliament under Article 33 of the Constitution to modify the fundamental rights guaranteed by Part III, in their application to the armed forces, it enacted section 21 of the Act which empowers the Central Government, by notification, to make rule restricting to such extent and in such manner as may be necessary, the right of any person with respect to certain matters, that these matters do not cover the fundamental rights under Articles 14, 20 and 22 of the Constitution, and that this indicated the intention of Parliament not to modify any other fundamental right. The learned Attorney General has urged that the entire Act has been enacted by Parliament and if any of the provisions of the Act is not consistent with the provisions of any of the articles in Part III of the Constitution, it must be taken that to the extent of the inconsistency Parliament had modified the fundamental rights under those articles in their application to the person subject to that Act. Any such provision in the Act is as much law as the entire Act. We agree that each and every provision of the Act is a law made by parliament and that if any such provision tends to affect the fundamental rights under Part III of the constitution, that provision does not, on that account, become void, as it must be taken that Parliament has thereby, in the exercise of its power under Article 33 of the Constitution, made the requisite modification to affect the respective fundamental right. We are however of opinion that the provisions of Section 125 of the Act are not discriminatory and do not infringe the provisions of Article 14 of the Constitution.
32. The constitutional validity of Section 21 of the Army Act came up for consideration before the Supreme Court in R. Viswas & Others v. union of India & Ors. : (1983)IILLJ157SC . The Supreme Court observed :
'The power conferred on the Central Government to impose restrictions to these three categories of rights which are part of the fundamental Rights under sub-clauses (a) and (b) and (c) of Article 19(1) is uncanalised and unrestricted power permitting violation of the constitutional limitations. But, even so Section 21 cannot be condemned as invalid on this ground, as it is saved by Article 33 which permits the enactment of such a provision. Article 33 carves out an exception in so far as the applicability of Fundamental Rights to members of the Armed forces and the forces charged with the maintenance of public order is concerned. It is elementary that a highly disciplined and efficient Armed force is absolutely essential for the defense of the country. defense preparedness is in fact the only sure guarantee against aggression. Every effort has thereforee to be made to build up a strong and powerful army capable of guarding the frontiers of the country and protecting it from aggression. Now, obviously no army can continuously maintain its state of preparedness to meet any eventuality and successfully withstand aggression and protect the sovereignty and integrity of the country unless it is at all times possessed of high morale and strict discipline. Morale and discipline are indeed the very soul of an army and no other consideration, howsoever important, can outweigh the need to strength the morale of the Armed forces and to maintain discipline amongst them. Any relaxation in the matter of morale and discipline may prove disastrous and ultimately lead to chaos and ruination affecting the well being and imperiling the human rights of the entire people of the country. The constitution-makers thereforee placed the need for discipline above the fundamental rights so far as the members of the Armed forces and the Forces charged with the maintenance of public order are concerned and provided in Article 33 that Parliament may by law determine the extent to which any of the Fundamental Rights in their application to members of the Armed forces and the forces charged with the maintenance of public order, may be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. Article 33 on a plain grammatical construction of its language does not require that Parliament itself must by law restrict or abrogate any of the fundamental rights in order to attract the applicability of that Article. What it says is only this and no more, namely, that Parliament may be law determine the permissible extent to which any of the fundamental rights may be restricted or abrogated in their application to the members of the Armed Forces and the forces charged with the maintenance of public order. Parliament itself can, of course, by enacting a law restrict or abrogate any of the fundamental rights in rights in their application to the members of the armed forces and the forces charged with the maintenance of public order, as in, fact, it has done by enacting the Army Act, 1950, the provisions of which according to the decision of a Constitution Bench of this Court in Ram Swarup v. Union of India are protected by Article 33 even if found to affect one or more of the fundamental rights. But having regard to varying requirement of army discipline and the need for flexibility in this sensitive area, it would be inexpedient to insist that Parliament itself should determine what particular restrictions should be imposed and on which fundamental rights in the interest of proper discharge of duties by the members of the armed forces and the forces charged with the maintenance of public order and maintenance of discipline among them. The extent of restrictions necessary to be imposed on any of the Fundamental rights in their application to the members of the Armed forces and the forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance of discipline among them, would necessary on depend upon the prevailing situation at a given point of time and it would be advisable to encase it in a rigid statutory formula. The constitution makers were obviously anxious that no more restrictions should be placed on the fundamental Rights of the members of the Armed forces and the forces charged with the maintenance of public order than are absolutely necessary for ensuring proper discharge of their duties and the maintenance of discipline among them, and, thereforee they decide to introduce a certain amount of flexibility in the imposition of such restrictions and by Article 33, empowered Parliament to determine the permissible extent to which any of the fundamental rights in their application to the members of the Armed Forces and the forces charged with the maintenance of public order may be restricted or abrogated, so that within such permissible extent determined by Parliament, any appropriate authority authorised by Parliament may restrict or abrogate any such fundamental Rights. Parliament was thereforee, within its power under Article 33 to enact Section 21 laying down to what extent the Central government may restrict the fundamental Rights under sub-clauses (a), (b) and (c) of Article 19(1), of any person subject to the Army Act, 1950, every such person being clearly a member of the Armed forces. The extent to which restrictions may be imposed on the Fundamental Rights under sub-clauses (a), (b) and (c) of Article 19(1) is clearly indicated in clauses (a), (b) and (c) of Section 21 and the Central government is authorised to impose restrictions on these fundamental Rights only to the extent of the rights set out in clauses (a), (b) and (c) of Section 21 and no more. The permissible extent of the restrictions which may be imposed on the Fundamental Rights under sub-clauses (a), (b) and (c) of Article 19(1) having been laid down in clauses (a), (b) and (c) of Section 21, the Central Government is empowered to impose restrictions within such permissible limit, 'to such extent and in such manner as may be necessary.' The guideline for determining as to which restrictions should be considered necessary by the Central government within the permissible extent determined by Parliament is provided in Article 33 itself, namely, that the restrictions should be such as are necessary for ensuring the proper discharge of their duties by the members of the Armed Forces and the maintenance of discipline among them. The Central government has to keep this guideline before it in exercising the power of imposing restrictions under Section 21 though, it may be pointed out that once the Central government has imposed restrictions in exercise of this power, the Court will not ordinarily interfere with the decision of the Central Government that such restrictions are necessary because that is a matter left by Parliament exclusively to the Central Government which is best in a position to know what the situation demands. Section 21 must, in the circumstances, be held to be constitutionally valid as being within the power conferred under Article 33.'
33. In Lt. Col. Prithipal Singh Beedi v. Union of India : 1983CriLJ647 the Supreme Court observed :
'15. Article 33 confers power on the Parliament to determine to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces, be restricted or abrogated so as to ensure the proper discharge of duties and maintenance of discipline amongst them. Article 33 does not obligate that Parliament must specifically adumbrate each fundamental right enshrined in Part III and to specify in the law enacted in exercise of the power conferred by Article 33 the degree of restriction or total abrogation of each right. That would be reading into Article 33 a requirement which it does not enjoin. In fact, after the constitution came into force, the power to legislate in respect of any item must be referable to an entry in the relevant list. Entry 2 in List 1 : Naval, Military and Air Force and any other Armed Forces of the union, would enable Parliament of enact the Army Act and armed with this power the Act was enacted in July, 1950. It has to be enacted by the Parliament subject to the requirements of Part III of the Constitution read with
Article 33 which itself forms part of Part III. thereforee, every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part III of the Constitution and the Army Act. This is no more rest integra in view of the decision of the Constitution Bench of this Court in Ram Sarup v. Union of India : 1965CriLJ236 in which repelling the contention that the restriction or abrogation of the fundamental rights in exercise of the power conferred by Article 33 is limited to one set out in Section 21 of the Act, this Court observed as under (at p. 251 of the AIR) :
'The learned Attorney General has urged that the entire Act has been enacted by Parliament and if any of the provisions of the Act is not consistent with the provisions of any of the articles in Part III of the Constitution, it must be taken that to the extent of the inconsistency Parliament had modified the fundamental rights under those articles in their application to the person subject to that Act. Any such provision in the Act is as much law as the entire Act. We agree that even each and every provision of the Act is a law made by Parliament and that if any such provision tends to effect the fundamental rights under Part III of the Constitution, that provision does not, on that account, become void, as it must be taken that Parliament has thereby in the exercise of its power under Article 33 of the Constitution made the requisite modification to affect the respective fundamental rights.'
Section 21 merely confers an additional power to modify rights conferred by Article 19(1)(a) and (c) by Rules and such rules may set out the limits of restriction. But the specific provision does not derogate from the generality of power conferred by Article 33. thereforee, it is not possible to accept the submission that the law prescribing procedure for trial of offences by Court Martial must satisfy the requirement of Article 21 because to the extent the procedure is prescribed by law and if it stands in derogation Article 21, to that extent Article 21 in its application to the Armed Forces is modified by enactment of the procedure in the Army Act itself.
34. Thus, fundamental rights can be restricted only to the extent provided for in the Army Act and not otherwise. What is not specifically or impliedly taken away by the Army Act inheres in the Army personnel. The procedure prescribed for governing the tenure of service of an Army personnel governed by the Army Act even if it violates the fundamental rights the same cannot be challenged in view of Article 33 of the Constitution of India on the ground that it violates fundamental rights guaranteed under Part III of the Constitution of India.
35. Section 18 of the Army Act provides that every person subject to the Act shall hold office during the pleasure of the President. Undoubtedly, the section does not provide for procedure to be followed while passing an order under the said section. However, it does not permit passing of an order which is arbitrary, mala fide or illegal. As observed by the Supreme Court judicial review is the exercise of the Courts inherent power to determine legality of an action and award suitable relief and thereby uphold the rule of law. Thus, order under Section 18 of the Army Act is subject to judicial review. The Government is bound to disclose the materials upon which the pleasure of the President was exercised. If the decision arrived at is found to be mala fide or based on wholly extraneous and irrelevant facts the exercise if the pleasure becomes patently illegal. Of course, disclosure of material and documents would depend upon whether the documents in question fall within the class of privileged documents and whether in respect of them privilege has been properly claimed or not.
36. Mrs. Mahajan, learned counsel appearing for some of the appellants submitted that for interpreting the provisions of the Army Act, elementary rules of interpretation should be applied and while considering Section 18, other provisions of the Act must be taken into consideration. She submitted that safeguards provided to civil servants under Article 311 are incorporated in the Army Act itself and only cases which are not covered under Section 19 or other sections can be dealt with under Section 18 of the Army Act. Thus, no case of misconduct can be dealt with by invoking section 18. She submitted that absolute and arbitrary power has no place in the Army Act. The Army Act and the Rules will become redundant if Section 18 is invoked in cases of misconduct already enumerated in the Army Act.
37. Undoubtedly, the power under Section 18 cannot be ordinarily invoked for dealing with cases of misconduct and the other provisions in the Army Act dealing with the various kinds of misconduct have to be invoked for dealing with such cases. This power under Section 18 must be used sparingly only when it is expedient to deal with such cases under the other provisions of the Army Act. In view of the sensitive nature of cases involving security of State that may come up in the case of armed forces it cannot be said that in no case of misconduct section 18 can be invoked. There may be cases where security of State is involved and it may not be expedient to continue with the inquiry provided under the Army Act for dealing with misconduct. It appears that it is specifically for this reason that section 18 has been incorporated in the Army Act despite the fact that Article 310 of the Constitution already provided that tenure of an Army personnel would be at the pleasure of the President. This is a power given to the Supreme Commander of the Armed Forces, i.e. the President of India to be invoked in such cases where inquiry in other form is not advisable and is inexpedient. This power is similar to second proviso (a), (b) & (c) of Article 311 (2) which provides for dispensing with the inquiry in certain cases even in the case of civil service. The safeguard provided for a government servant by clause (2) of Article 311 is taken away when second proviso to Article 311(2) becomes applicable. The Supreme Court in Tulsi Ram Patel's case (supra) observed that 'the second proviso has been mentioned in the Constitution as a matter of public policy and in public interest for public good.' The Supreme Court further observed that much as it may seem harsh and oppressive to a government servant, the court must repel the temptation to be carried away by feelings of commiseration and sympathy in such cases. thereforee, even if an order under Section 18 for removing a defense personnel for misconduct is passed if it is found that there were sufficient reasons for resorting to Section 18, the same would not be open to challenge on merits. The Supreme Court in Chief of Army Staff & Anr. v. Major Dharam Pal Kukrety, : 1985CriLJ913 has held that even after Court Martial proceedings had been concluded, the finding of the general court martial having not been confirmed by the Chief of Army Staff, further retention of the Army personnel being undesirable, the Chief of Army Staff could resort to Rule 14, indicating thereby that even after resorting to court martial proceedings if it is found inexpedient to continue with the Court Martial proceedings it was open to resort to proceedings under Section 19 of the Army Act. The Supreme Court observed :
'The crucial question, thereforee, is whether the Central Government or the Chief of the Army Staff can have resort to Rule 14 of the Army Rules. Though it is open to the Central Government or the Chief of the Army Staff to have recourse to that rule in the first instance without directing trial by a court-martial of the concerned officer, there is no provision in the Army Act or in Rule 14 or any of the other rules of the Army Rules which prohibits the Central Government or the Chief of the Army Staff from resorting in such a case to Rule 14. Can it, however, be said that in such a case a trial by a court-martial is inexpedient or impracticable The Shorter Oxford English Dictionary, Third Edition, defines the word 'inexpedient' as meaning 'not expedient; disadvantageous in the circumstances, inadvisable, impolite'. The same dictionary defines 'expedient' inter alias as meaning 'advantageous; fit, proper, or suitable to the circumstances of the case'. Webster's Third New International Dictionary also defines the term 'expedient' inter alias as meaning 'characterized by suitability, practicality, and efficiency in achieving a particular end; fit, proper or advantageous under the circumstances.'
38. That being the position even after resorting to court martial proceedings if it is found inexpedient to continue with the same it is always open to the respondent to resort to either section 18 or 19 of the Army Act.
39. The Army Act provides for dealing with tenure of Army personnel by way of four distinct proceedings : a) section 18 where services of a defense employee is terminated without assigning any reason, (b) services are terminated on the ground of misconduct under section 19 after holding an inquiry as contemplated under Rule 14, (c) summary trial under section 83 and (d) court martial proceedings under Section 109 of the Army Act. If after resorting to Section 19, Section 83 or Section 109 of the Army Act it is found inexpedient to continue with such proceedings it is always open to resort to Section 18.
40. The very fact that the tenure of service of a person under the Act may be cut short without enquiry or trial under Section 18, or after inquiry and trial on the ground of misconduct under section 19, brings into play the plea of camouflage.
41. Camouflage, according to Oxford English Dictionary, means 'guise' 'deceive' disguising of any object raised in war, by means of paints, smoke screen etc. in such a way as to conceal it from the enemy. This term has been frequently used in the field of service law in cases where action by way of punishment it taken without enquiry, under the guise of an order made in innocuous form so as to pass muster under the cloak of simple termination of the tenure of service. In such cases, it is well settled that the innocuous form of the order is not conclusive and the Court can always pierce the veil and determine the real nature of the action.
42. In Shamsher Singh v. State of Punjab, (1975) 1 SCC 814, while dealing with the case of termination of the services of a probationer, the Supreme Court indicated certain situations which may arise in such cases. It was observed at page 837 as follows :-
'No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 31(2) of the Constitution.
Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved, in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an enquiry. But in those cases the authority may not hold an enquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services were terminated without following the provisions of Article 311(2) he can claim protection..........'
'The fact of holding an inquiry is not always conclusive. What is decision is whether the order is really by way of punishment.'
43. In Anoop Jaiswal v. Government of India and another : (1984)ILLJ337SC , relying upon the judgment in Shamsher Singh's case, Venkataramiah, J. stated the law in the subject as follows :-
'It is thereforee, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.'
44. In Jarnail Singh and others v. State of Punjab and others, 1986 2 CLR 192 B. C. Ray, J. observed in paragraph 24 at page 203 as follows :
'....... when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, is incumbent on the court to lift the veil and to see that real circumstances as well as the basis and foundation of the order complained of. In other words, the Court in such case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency, or not....'
45. These principles have been reiterated in Babu Lal v. State of Haryana and others, : (1991)IILLJ327SC and Om Prakash Goel v. Himachal Pradesh Tourism Development Corporation Ltd., Shimla and another, : [1991]2SCR701a .
46. The plea that the principle of lifting of the veil is derived from Article 311 of the Constitution has been raised on behalf of the respondents merely on the ground that the cases of Shamsher Singh, Jarnail Singh and Babu Lal were covered under Article 311 of the Constitution of India. The learned Additional Solicitor General was, however, unable to point out any observation made in of any of these judgments that the said principle of lifting the veil is derived from Article 311 of the Constitution. Apart from this, on the basis of the foregoing discussion, it has been found that Persons subject to the Army Act are entitled to certain procedural safeguards in the matter of termination of their services. For the very same reasons, we hold that the concept of camouflage and the principle of lifting the veil would be still be applicable in view of the dual provisions made in Sections 18 and 19 of the Army Act, notwithstanding the non-applicability of Article 311 of the Constitution in the present case. It is pertinent to point out that the case of Om Prakash Goel (supra) concerned an employee (an Accountant) in the Himachal Pradesh Tourism Development Corporation Ltd. Conditions of his service were governed by the Regulations made by the Board of Directors of the Corporation and Article 311 of the Constitution was not applicable. Yet, Jaichandra Reddy, J., applied the principles laid down in the earlier mentioned cases and proceeded to quash the termination order.
47. In our opinion, the concept of 'camouflage' is a facet of judicial review and the Court would lift the veil in all cases where it appears that power is used for a collateral purpose under the cloak or garb of innocuous form of an order and determine the true character of the order under challenge.
48. Under the circumstances, for the aforementioned reasons the answer to the reference is that an order under Section 18 of the Army Act read with Article 310 of the Constitution of India invoking the doctrine of pleasure of President is subject to judicial review to ascertain whether the same is exercised lawfully and not vitiated for mala fides or based on extraneous grounds and that the order can be challenged on the ground that it is a camouflage.
49. There will be no order as to costs.
50. The appeals may be listed before a Division Bench for disposal on merits.