N R AJWANI Vs. UNION OF INDIA

JUDGEMENT

(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

(2.) Appeals have been filed by those persons whose services were terminated under Section 18 of the Army Act.

(3.) 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 fact, the order was one of dismissal on the ground of miscon3uct.lt was submitted that the order of termina- tion 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.lt 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 same could not be sustained. It was contended that though Article 311 (2) of the Constitution of India is not applicable to Defence Services, rules of natural justice must be complied with because the de '63 fence 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.ll6 of 1985.Para 22 of the said judgment reads thus: