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TMI Blog2014 (3) TMI 1165X X X X Extracts X X X X X X X X Extracts X X X X ..... bina (M.P.). In 1974 Gunner Aya Singh was cultivated by Gunner Sarwan Dass for Pak Intelligence. Captain Nagial was then cultivated by Aya Singh for Pak Intelligence. In 1975 for the first time the espionage racket came to be noticed. Aya Singh and Sarwan Dass were arrested. In 1976-77 pursuant to the investigation, three more jawans were arrested. They corroborated the involvement of Sarwan Dass. Sarwan Dass and Aya Singh on further interrogation disclosed the names of Captain Ghalwat and Captain Nagial. In 1976-77 Captain Ghalwat and Captain Nagial were tried by GCM and were convicted. Ghalwat was cashiered and given 14 years' RI. Nagial was given 7 years' RI and was also cashiered. In addition, 12 jawans were tried and they were given RI of various descriptions and were dismissed from services. Aya Singh and Sarwan Dass were also among the 12 jawans tried and held guilty. Later in 1978 it was discovered that Aya Singh was holding back certain relevant information relating to espionage activities under certain alleged threat and pressure. Wife of Aya Singh claimed to be killed. Reeling under the shock of the circumstances, he made further disclosures wherein he named Captain Rath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermination approving the applicability of the doctrine of pleasure. However, at the same time, the appeal was partly allowed in relation to the post-retiral benefits keeping in view the provisions under the Army Act and Rules and it was found that the proposed 5% cut-off was not in accordance with the Act/Rules applicable therein. 6. Several LPAs were filed by other officers relying on the Division Bench judgment extending the post-retiral benefits, and a plea for similar relief was raised. 7. When these appeals came up for hearing, the Division Bench of the Delhi High Court hearing the matter differed with the view on the issue of the applicability of doctrine of pleasure and maintainability of the writ petitions on the ground of malafides vide order dated 15.5.1991. Consequently, this question of law was referred to be decided by a larger bench. 8. The Full Bench so constituted to answer this reference held that an order under Section 18 of the Army Act invoking the doctrine of pleasure was subject to judicial review if it is assailed on malafides. It was held that the onus lay on the petitioner/person alleging malafides and to bring material on record to satisfy the court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid orders, LPAs have been filed and in those appeals the appellants want to take up the issue, that the Court can go into the validity of the order of dismissal order once again. Inasmuch as there are four classes of cases, we are of the view that first we should decide the batch where fresh writ petitions are filed, and in case we hold that fresh writ petitions are maintainable, then the question of going into the privilege claimed by the respondents will have to be decided. If the fresh writ petitions are held to be maintainable, then the batch wherein appeals are filed with delay condonation applications can also be taken up for consideration. In one case the question of laches is to be decided whereas in another the question of sufficient cause for condonation of delay fall for consideration. In the matters challenging the orders imposing cut in pension, it will be for the parties to watch the view the court may take in other three batches mentioned above so that they can pursue one or the other remedies which the Court will be able to accept. Therefore, we will first take up fresh writ petitions filed after the passing of the full Court Judgment and the Supreme Court Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea not to conclude Court Martial proceedings knowing fully well that the officers were likely to be acquitted, without producing relevant record before the concerned authority orders of termination were passed flouting all norms. The appellants in the L.P.A's and the petitioners in the two writ petitions are entitled to all the consequential benefits. We also hereby declare that the orders passed against the appellants in the L.P.As are void in law and the conviction and sentence by the GCMs against the writ petitioners are void in law. Consequently, the judgments of the learned Single Judge which are subject matter in Latent Patent Appeals are set aside and the writ petitions in those cases are allowed and the Letters Patent Appeals stand allowed and the two writ petitions also stand allowed. All the writ petitions stand allowed to the above extent indicated and other reliefs prayed for cannot be considered by this Court and it is for the law makers to attend to the same. There shall be no order as to costs." 13. Another relevant event in this journey of judicial conflict which is worth mentioning is that two officers, namely, Subhash Juneja and Harish Lal Singh, whose writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of this Court dated 14.2.2006, which is extracted herein: "C.A. Nos.2949-2950/2001: Arguments heard. Judgment reserved. The entire original record including the administrative receipts be called for either by FAX or by telephonic message immediately by the Registrar (Judicial). C.A.Nos.2951-2957/2001: De-linked. These matters shall be heard separately. List after four months." 16. Accordingly, the arguments were heard and judgment was reserved in the matter arising out of the two writ petitions filed by Ranbir Singh Rathaur and Ashok Kumar Rana alongwith which delinked seven LPAs were also disposed of even though it was observed by this Court that they arose out of the same incident. This Court vide judgment dated 22.3.2006 in the case of Union of India & Ors. vs. Ranbir Singh Rathaur & Ors., (2006) 11 SCC 696 reversed the judgment of the High Court dated 21.12.2000 vis-a-vis the two writ petitions and held as follows: "On a bare reading of the High Court's order and the averments in the writ petitions, one thing is crystal clear that there was no definite allegation against any person who was responsible for the so-called manipulation. It is also not clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he newspaper reports was not established by the writ petitioners. Even otherwise, this could not have been done in a writ petition, as disputed questions of fact were apparently involved. The matters which the High Court found to have been established were really not so. The conclusions were based on untested materials, and the writ petitioners had not established them by evidence. Since the High Court has not dealt with the matter in the proper perspective we feel that it would be proper for the High Court to rehear the matter. The High Court shall first decide the preliminary objections raised by the present appellants about the non-maintainability of the writ petitions. Normally such a course is not to be adopted. But in view of the peculiar facts involved, it would be the appropriate course to be adopted in the present case. Therefore, we remit the matter to the High Court for fresh hearing. We make it clear that whatever we have observed should not be treated to be the conclusive findings on the subject-matter of controversy. The appeals are allowed without any order as to costs. Since the matter is pending since long, we request the High Court to dispose of the matter as earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspects. The instant cases of the respondent officers were examined at various levels in the Army Headquarters as also in the Central Government and the final decision to exercise the power to pass an order of termination was taken by it under Section 18 of the Army Act. Learned counsel relied upon the judgment of this Court in B.P. Singhal vs. Union of India & Ors. (2010) 6 SCC 331 and contended that the parameters that are required to be taken into consideration for exercise of power under Article 310 of the Constitution are varied. Several of these parameters entail evaluation of issues relevant to the security of the State. The factors that form the basis of exercise of power under Article 310 of the Constitution cannot be said to be objective parameters that are amenable to judicially manageable standards. The reasons that form the basis of exercise of power under Article 310 can extend to varied levels of subjective assessments and evaluations in entailing expert knowledge as to issues of security of the State. In that view of the matter it is submitted that exercise of power of judicial review would accord great latitude to the bona fide evaluation made by the competent au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroduces a twofold procedural safeguard in favour of an employee/officer in relation to the exercise of pleasure doctrine. However, Article 311 applies only in cases of punishment and not otherwise. The availability of the safeguards provided for under Article 311 is contingent upon and limited to cases where the power of termination of services of an employee/officer is exercised by the disciplinary authority by way of punishment. The applicability of Article 311 of the Constitution being dependent on the factum of the order of termination being in the nature of a punishment, judicial review undertaken in case of civilian employees entails the necessity for and the power of determining as to whether the order impugned is in the nature of a punishment or not. The doctrine of "foundation", "camouflage" and the principles of judicial review, encompassing the necessity and the power of determining, whether the order impugned is by way of a punishment is thus a direct emanation and a logical corollary of the nature of enquiry warranted when Article 311 applies to a case. 22. Since the provisions of Article 311 of the Constitution admittedly do not apply to these cases, it relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyee or officer of the armed forces. It is further submitted that in case of armed forces scrutiny of an order passed under Article 310 would neither warrant an enquiry as to the foundation of the order nor an enquiry as to whether the order is in the nature of punishment. Therefore, he submits that the necessary corollary thereof would be that the competent authority is also free to abandon any statutory procedure at any stage and take resort to the constitutional power under Article 310 by the President to terminate the services of an employee/officer of the armed forces. The ambit of such power cannot be circumscribed with reference to the concepts that govern the exercise of the power in relation to civilian employees/officers. 23. Learned Additional Solicitor General put reliance on Chief of Army Staff vs. Major Dharam Pal Kukrety, (1985) 2 SCC 412 where this Court has also upheld the competent authority's power to switch over to its power under Section 18 of the Army Act upon abandonment of the GCM proceedings against its employees/officers. The authorities are competent to take recourse to their statutory power under Section 19 in a case where the court martial exercise ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d handed over to the respondent. Subsequently, by a corrigendum the order of dismissal of the respondent was substituted by an order of termination. 25. Mr. Rao, has not disputed the fact that the said respondent Major S.P. Sharma filed a writ petition being W.P. No.418 of 1980 challenging the order of dismissal dated 11.01.1980. The said writ petition was dismissed by a Division Bench of the Delhi High Court and against the said order the respondent preferred a Special Leave Petition before this Court being 7225 of 1980 which was also dismissed. When the order of dismissal attained finality, the respondent was served with a show cause notice as to why a cut-off 5% in the retirement gratuity and Death-Cum-Retirement Gratuity be not imposed as his service was not satisfactory. The respondent Sharma again challenged the said notice by filing a writ petition in the High Court being W.P. No.1643 of 1982. In the said Writ Petition the respondent also challenged the order dated 03.03.1980 by which the dismissal was substituted by an order of termination. The said writ petition was dismissed by the High Court on 22.03.1985 holding that the said order of termination is a termination simpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords, Article 33 does not speak about the basic structure of the Constitution. Learned counsel relied upon the decision of this Court in B.P. Singhal vs. U.O.I., (2010) 6 SCC 331. 31. Mr. Rao then contended that Article 33 in any event shall be given restricted interpretation for the reason that any law which restricts the fundamental rights shall be strictly interpreted. In this connection learned counsel referred to (1974) 1 SCC 645: Bhut Nath Mete vs. State of West Bengal. Mr. Rao addressed on legal malice and malice in law and referred a decision of this Court in Ravi Yashwant Bhoir vs. District Collector, Raigad & Ors., (2012) 4 SCC 407. 32. Mr. Rao submitted that only notings were produced before the High Court but the material on the basis of which opinion was formed was not produced. The detailed summary of evidence, different memos and other documents produced in the court martial proceeding were also not produced before the High Court. Learned counsel submitted that those notings produced before the High Court are not material, rather advisory material. Learned counsel referred to some of the paragraphs of the judgment rendered in S.R. Bommai and Ors. vs. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of dismissal to order of termination and also a notification as to cut of gratuity. 36. Mrs. Suri then submitted that the order in the first proceeding is an order which has been the result of suppression of documents/facts by the appellant when these facts/documents were only within the knowledge of the appellant. Hence suppression of facts and documents would not entitle the appellant to raise the technical plea of res judicata and to take advantage of the same. It was contended that the appellant is under the public duty to disclose the true facts to the court which has not been done and it will amount to obtaining the order by fraud. 37. On the issue of doctrine of pleasure Mrs. Suri submitted that exercise of doctrine of pleasure in the absence of any material evidence against the respondent and non-production of relevant records of these officers render the order of termination as illegal and invalid. Learned counsel submitted that the justiciability of an action by the executive government is open to challenge on the ground of malafide and also that the formation of opinion is on irrelevant material. Learned counsel in this regard referred to a decision of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not discussed. It was contended that the second writ petition challenging the order of termination and the show cause notice for deducting 5% of the gratuity was on the basis of a fresh cause of action inasmuch as the dismissal of writ petition up to this Court put an end to the proceedings of dismissal until the Government came out with the order of termination with ulterior motives. Learned counsel then contended that this Court in the order dated 17.11.1994 in Special Leave Petition agreed with the Full Bench and the matter was sent back to the High Court for decision on merit. It was for the first time the appellant-Union of India made out a case that petitioners had been caught doing espionage activity and thus considered a security suspect. Adopting the argument of Mr. P.P. Rao, learned senior counsel submitted that Article 33 of the Constitution does not contemplate restricting or abrogating the basic structure of the Constitution or the core values of the Constitution. 42. First of all, we shall deal with the following important points formulated by this Court referred hereinabove i.e. a) Whether the exercise of doctrine of pleasure under Section 18 of the Army Act r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Directorate Military Intelligence cannot be scrutinised by this Court. xxxxx xxxxx 129. It has now become absolutely necessary to Notice the records produced by the respondents. When one the learned addl. Solicitor General submitted that though the respondents had claimed privilege they had no objection to place all the records for the perusal of this Court to satisfy whether the respondents had acted in accordance with law. It is a little disturbing to note that respondents instead of producing the relevant records pertaining to the officers involved in the cases had just produced three flaps. No numbers are given. On flap contains three sheets. The first sheet is mentioned as Index sheet. Index sheet itself mentions that there is only one page in the file. The other sheet contains a note which states that all the cases have been thoroughly reviewed at Army Headquarters. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncorrect and submitted that all the relevant materials were produced before the Court and after hearing was concluded, all those original papers were returned back to the appellant. The appellant had submitted the photocopy of all the relevant material. 46. During the course of hearing, Learned Additional Solicitor General produced before us all those files and documents which were produced before the High Court. The Additional Solicitor General also produced the link file as directed by us. 47. Mrs. Kiran Suri, learned senior counsel appearing in one of the Civil Appeal No.2954 of 2001, submitted a note wherein she has mentioned that on 3.1.2001 the Advocate received back the following original file from the High Court as per the receipt produced by the appellant in L.P.A. No.43 of 1987 and other connected matters. i) GCM proceedings in respect of Capt. A.K. Rana IC 23440H (Page 1-615) ii) GCM Proceedings in respect of Capt R.S. Rathaur IC 23720 N (Page 1-577) iii) File containing analysis of Espionage cases in the respect of all the Appellants. (Page 1-13) iv) Brief of Samba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easure doctrine', is subject to judicial review, but while exercising judicial review, this court cannot substitute its own conclusion on the basis of materials on record. The Court exercising the power of judicial review has certain limitations, particularly in the cases of this nature. The safety and security of the nation is above all/everything. When the President in exercise of its constitutional power terminates the services of the Army officers, whose tenure of services are at the pleasure of the President and such termination is based on materials on record, then this court in exercise of powers of judicial review should be slow in interfering with such pleasure of President exercising constitutional power. In a constitutional set up, when office is held during the pleasure of the President, it means that the officer can be removed by the Authority on whose pleasure he holds office without assigning any reason. The Authority is not obliged to assign any reason or disclose any cause for the removal. 51. Thus, it is not a case where the decisions to terminate the services of these officers were taken under the 'pleasure doctrine' without any material against the officers. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the executive discretion. Such discretion is governed by a large element of policy which is not amenable to the jurisdiction of courts except in cases of patent or indubitable malafides or excess of power. Its exercise rests on materials which are not examinable by courts. Indeed, it is difficult to imagine how the grounds of action under Article 356(1) could be examined when Article 74(2) lays down that "the question whether any, and if so, what advice was tendered by the Ministers to the President, shall not be inquired into in any court". 54. In order to appreciate the application of constitutional provisions in respect of defence services, it would be appropriate to quote Articles 309, 310 and 311 of the Constitution. These articles read as under:- "Article 309:- Recruitment and conditions of service of persons serving the Union or a State 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, 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 the authority empowered to dismiss or remove a person or to reduce him in rank ins 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; (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) makes it clear that this clause shall not apply inter-alia where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry. 58. The expression "except as otherwise provided in the Constitution" as contained in Article 310 (1) means this Article is subject only to the express provision made in the Constitution. No provision in the statute can curtail the provisions of Article 310 of the Constitution. At this juncture, I would like to refer Sections 18 and 19 of the Army Act as under:- "18. Tenure of service under the Act - Every person subject to this Act shall hold office during the pleasure of the President. 19. Termination of service by Central Government. Subject to the provisions of this Act and the rules and regulations made there under the Central Government may dismiss, or remove from the service, any person subject to this Act. 59. The aforesaid two Sections i.e. 18 and 19 are distinct and apply in two different stages. Section 18 speaks about the absolute discretion of the President exercising pleasure doctrine. No provisions in the Army Act curtail, control or limit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the public good. 33. The doctrine of pleasure as originally envisaged in England was a prerogative power which was unfettered. It meant that the holder of an office under pleasure could be removed at any time, without notice, without assigning cause, and without there being a need for any cause. But where the rule of law prevails, there is nothing like unfettered discretion or unaccountable action. The degree of need for reason may vary. The degree of scrutiny during judicial review may vary. But the need for reason exists. As a result when the Constitution of India provides that some offices will be held during the pleasure of the President, without any express limitations or restrictions, it should however necessarily be read as being subject to the "fundamentals of constitutionalism". Therefore in a constitutional set-up, when an office is held during the pleasure of any authority, and if no limitations or restrictions are placed on the "at pleasure" doctrine, it means that the holder of the office can be removed by the authority at whose pleasure he holds office, at any time, without notice and without assigning any cause. 34. The doctrine of pleasure, however, is not a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the challenge to the order on the ground of malafides, no particular formula can be laid down. The pleadings will depend upon the facts of each case. 3. The appellants are permitted to withdraw from the appeal-memo, pp. 221 to 232 which according to the learned Solicitor General have been annexed to the memo inadvertently. 4. The appeals are disposed of accordingly with no order as to costs." 63. The Full Bench of the Delhi High Court while answering the reference has observed in paragraphs 37 and 38 which is quoted hereunder:- "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 exped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 64. Indis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not say whether the dismissal is for misconduct or otherwise. It only sets out the pleasure doctrine. In this view of the matter, no case made out for interference. Dismissed." 66. Respondents then preferred special leave petitions against the aforesaid order dated 21.4.1980 being SLP Nos. 7225 and 7233 of 1980. A three-Judge Bench of this Court dismissed the special leave petition by order dated 1.9.1980. In the year 1982, the show cause notices dated 10.5.1982 were issued to the officers whose services were terminated informing them that their services were not considered satisfactory by the Pensionary Authority and, therefore, why not 5% of the gratuity or pension be deducted. On receipt of the said show cause notices, eight of the officers, whose services were terminated initiated the second round of litigation by filing writ petitions being C.W.P Nos. 1643-1646 of 1982, 1777 of 1982, 804 of 1982, 1666 of 1982 praying not only to quash the show cause notices, but also to quash the order of termination of their services. All those writ petitions were finally heard and came to be dismissed by the Delhi High Court vide judgment dated 22.3.1985. Aggrieved by the said order, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a collateral challenge raised after the matter has been finally decided in the first round of litigation. It is to be noticed that the judgment which had become final in 1980 also included writ petition no.418 of 1980 filed by the respondent S.P. Sharma. Once, this Court had put a seal to the said litigation vide judgment dated 1.9.1980 then a second round of litigation by the same respondents including S.P. Sharma in writ petition no. 1643 of 1982 was misplaced. 68. The very genesis of an identical challenge relating to the same proceedings of termination on the pretext of a 5% cut in terminal benefits was impermissible apart from the attraction of the principle of merger. This aspect of finality, therefore, cannot be disturbed through a collateral challenge. 69. In Naresh Shridhar Mirajkar vs. State of Maharashtra & Anr. AIR 1967 SC 1, this Court by a majority decision laid down the law that when a Judge deals with the matter brought before him for his adjudication, he first decides the questions of fact on which the parties are at issue, and then applies the relevant law to the said facts. Whether the findings of fact recorded by the Judge are right or wrong, and whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples, namely, 'interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is 'nemo debet bis vexari si constat curiae quod sit pro una et eadem causa' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. 75. Thus, the principle of finality of litigation is based on a sound firm principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end to litigation. The doctrine of res- judicata has been evolved to prevent such an anarchy. 76. In a country governed by the rule of law, finality of judgment is absolutely imperative and great sanctity is attached to the finality of the judgment and it is not permissible for the parties to reopen the concluded judgments of the court as it would not only tantamount to merely an abuse of the process of the court but would have far reaching adverse affect on the administration of justice. It would also nullify the doctrine of stare decisis a well estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law. " Thus, in view of above, it can be held that doctrine of finality has to be applied in a strict legal sense. 80. While dealing with the issue this court in Ambika Prasad Mishra v. State of U.P. & Anr., AIR 1980 SC 1762, held as under: "6. It is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority 'merely because it was badly argued, inadequately considered and fallaciously reasoned'". 81. The view has been expressed by a three-Judge Bench of this Court in these very proceedings while dismissing the special leave petitions of Subhash Juneja and Harish Lal Singh vide order dated 23.4.2003. This court applied the doctrine of finality of judgment and res-ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law. 83. In the case arising out of these very proceedings reported in Union of India & Ors. v. Ranbir Singh Rathaur & Ors., (2006) 11 SCC 696, this Court held: a) That review of the earlier orders passed by this court was "impermissible": approach of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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