Holding

The Supreme Court held that the High Court erred in allowing the fresh writ petitions without first deciding the preliminary objection on maintainability, and that a fresh writ petition cannot be used to review a High Court order; the matter is remitted to the High Court to determine maintainability.

Summary

The case concerns several army officers who were tried by General Court Martial for espionage, some convicted and others dismissed administratively under Section 18 of the Army Act, 1950. Their writ petitions challenging the Court Martial proceedings and the administrative dismissals were dismissed by the Delhi High Court, and subsequent Special Leave and Review Petitions were also rejected by the Supreme Court. The petitioners later filed fresh writ petitions alleging that the earlier proceedings were a camouflage and lacked material basis; the High Court allowed these petitions, declaring the proceedings void. The Union appealed, and the Supreme Court held that the High Court erred by not first deciding the preliminary objection on the maintainability of the fresh writ petitions and by effectively reviewing its own earlier order through a new writ petition, which is impermissible. The Court also ruled that newspaper reports cannot be treated as evidence in such writ proceedings and that the matter must be remitted to the High Court to first determine maintainability.

Issues considered

The maintainability of fresh writ petitions challenging orders that have already attained finality (res judicata).
Whether a High Court can reopen matters concluded by the Supreme Court without proper basis.
The permissibility of reviewing a High Court order by filing a fresh writ petition.
The admissibility of newspaper reports as evidence in writ petitions.
The scope of judicial review over administrative termination under Section 18 of the Army Act, 1950.

Legislation cited

Army Act, 1950s. 18, s. 69
Constitution of Indias. Article 14, s. Article 226, s. Article 310, s. Article 32
Official Secrets Act, 1923s. 3(1)(c)

Subjects

Court MartialArmy ActAdministrative dismissalWrit petitionMaintainabilityRes judicataCamouflageJudicial reviewEspionageOfficial Secrets Act

Judgment

UNION OF INDIA AND ORS. A
v.
RANBIR SINGH RA THAUR AND ORS.

MARCH 22, 2006

[ARIJIT PASAYAT AND TARUN CHATTERJEE, JJ.] B

Army Act 1950-Sections 18, 69.

Official Secrets Act 1923--Section 3 (I) (c)
c
Constitution of India-Article 226 and 310

. Writ Petition-Maintainability of fresh Writ Petiticfn-Court Martial
Proceedings-Dismissal from Service-Writ Petitions challenging the Orders
dismissed by High Court--SLP and Review Petitions also dismissed-Fresh
Writ Petition to High Court challenging the same orders allowed-Plea of D
maintainability offresh petition not decided-Remitting the matter td the High
Court, Held, Review of High Court order by jili~g afresh Writ Petition is not
permissible-Direction first to decide the objection about non-maintainability
of petitiont. ·

"Respondents were tried by Gene-ral Court Martial for espionage E
activities. Some of them were convicted and sentenced to imprisonment
and were cashiered. Against others disciplinary action was initiated and
it was decided not to try them. Their services were terminated u/s 18 of
the Army Act 1950 by an administrative order. Respondents' Writ
petitions to the Delhi High Court challenging the Court Martial p
proceedings were dismissed. Letters Patent Appeals against administrative
order of dismissal were also dismissed. SLPs as well as Review Petitions
and fresh W.P. to this Court were also dismissed.

Respondents again challenged the validity of Court Martial
proceedings by filing fresh Writ Petitions in High Court. Appellant took G
the preliminary objection relating to maintainability of petitions. High
Court allowed the petitions holding that proceedings initiated against the
petitioners and orders passed against them were void and vitiated being
without any material and being a camouflage. Appeals to this Court were
193 H
194 SUPREME COURT REPORTS [2006) 3 S.C.R.

A preferred by the appellants against the impugned order.

Allowing the appeals and remitting the matter to the High Court,
the Court

HELD: 1. On a bare reading of the High Court's order and the
B 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. The Writ Petitioners wanted review of the High
Court's order, which is clearly impermissible. No ground for seeking such
review apparently was made out. The High Court's approach is clearly
erroneous. The present appellants in the counter affidavit filed had raised
c a preliminary objection as regards the maintainability of the writ petitions
and had requested the High Court to grant further opportunity if the
necessity so arises to file a detailed counter affidavit after the preliminary
objections were decided. The High Court in fact in one of the orders clearly
indicated that the preliminary objections were to be de~ided first. But
D strangely it did not do so. It reserved the judgment and delivered the final
judgment after about three years. 1205-B-Ci

2. The High Court also had not discussed as to how the matters which
stood concluded could be reopened in the manner done. No sufficient
grounds have been even indicated as to why the High Court felt it
E necessary to do so. To say that though finality had been achieved justice
stood at a higher pedestal is not an answer to the basic question as to
whether the High Court was competent to re-open the whole issue which
had become concluded. 1205-F-Gl

3. Newspaper reports are not to be considered as evidence. The
F authenticity of the newspaper reports was not established by the writ-
petitioners. Even otherwise, this could not have been done in a writ
petition, as disputed questions of fact were apparently involved. The
matters which the High Court found to have been established were really
not so. The conclusions were based on untested materials, and the writ-
G petitioners had not established them by evidence. 1206-AI

4. The Court remitted the matter to the High Court for fresh hearing
with a direction to first decide the preliminary objections raised by the
-
appellants about the non-maintainability of the writ petitions. 1206-81

H Subhash Juneja v. Union of India, CW 271/95 and Maj. N.R. Ajwani
-
U.0.1. v.RANBIR SINGH RATHAUR (PASAYAT, J.) 195

and Ors. v; Union of India, 55 (1994) SL T 217, referred to. A
CIVIL APPELLATE JUR1SDICTION : Civil Appeal Nos. 2949-2950
of 2001.

From the Final Common Judgment and Order dated 21.12.2000 of the
Delhi High Court in C.W.P. Nos. 3063 and 4082 of 1995. B
Vikash Singh, ASG, Satyakam, Ms. Amrita Narayan, Anuvrat Sharma,
B.V. Balaram Das, Ravi P. Mehrotra, Garvesh Kabra and Ms. Anil Katiyar
for the Appellants.

P.P. Rao, Pravir Choudhary, Bhim Rao Naik, R.V. Bhasin, Ms. Kiran C
Suri, A. Mariarputham, Ms. Aruna Mathur (for Mis. Arputham, Aruna &
Co.), Dipak Bhattacharya, C.L. Katia, Ms. Amrita Sangvi, Hari Shankar,
Sanjeev Sachdeva, Deepak Anand Masih, Atul Tripathi and Nagendra Kumar
foe the Respondents.

The Judgment of the Court was delivered by D

ARIJIT PASAYAT, J. These two appeals are directed against the
common judgment of a Division Bench of the Delhi High Court. By the
impugned judgment the High Court disposed of two writ petitions CW No.
3063 of 1995 filed by respondent Ranbir Singh Rathaur and CW No. 4082 E
of 1995 filed by Ashok Kumar Rana. Alongwith these two writ petitions
seven Letter Patent Appeals were also disposed of. These LPAs. are the
subject matter of challenge in Civil Appeal Nos.2951-57 of2001 which were
de-linked from the present two appeals by order dated 14.2.2006. The LPAs.
and these writ petitions filed before the High Court were linked in the sense
that in all these cases concerned writ petitioners were dismissed from service F
by the present appellants. They were all working at the relevant point of time
in 168 Infantry Brigade, deployed in a place called Samba in the border
areas. By the impugned judgment the High Court held that the proceedings
initiated against the writ petitioners forming subject matter of the present
appeals were void in law and the orders passed against these and the other G
officers who were appellants in the LPAs were vitiated being without any
material and being a camouflage. The relevant portion of the High Court's
order reads as follows :

"Accordingly we declare that the proceedings initiated against the
petitioners in the two writ petitions are void in law and the orders H
+

196 SUPREME COURT REPORTS [2006) 3 S.C.R.

A passed against the other officers, the appellants in L.P.As are vitiated
being without any material and being camouflage. Having dropped
the idea not to conclude Court Martial proceedings knowing fully
well that the officers were likely to be acquitted, without producing
relevant record before the concerned authority orders of termination
were passed flouting all norms. The appellants in the LPAs and the
B 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 LP As are void in law and the conviction and sentence
by the GOMs against the writ petitioners are void in law. Consequently,
the judgment of the learned Single Judge which are set aside and the
c writ petitions in those are allowed and the Latent Patent Appeals
stand allowed and the two writ petitions also stand allowed. All the
writ petitions stand allowed to the above extent indicated and other
reliefs prayed for cannot be considered by this Court and it is for the
law makers to attend to the same. There shall be no order as to costs.
D The respondents shall grant consequential reliefs to all the officers
including all monetary benefits within a period of four months from
today."

Factual background as highlighted by the appellants is essentially as
follows:
E
In February 1971 Gunner Sarwan Dass was cultivated by Pakistan
Intelligence. In 1972 Capt. Ghalwat & Gnr. Sarwan Dass crossed the
international border. In 1973 Cap. Ghalwat & Gnr. Sarwan Dass were posted
in Sabina (MP). In 1974 Gnr. Aya Singh was cultivated by Gnr. Sarwan Dass
F for Pak intelligence. Capt. Nagial was then cultivated by Aya Singh for Pak
intelligence. In 1975 for the first time the espionage racket came to be noticed.
Aya Singh and Sarwan Dass were arrested. In 1976-1977 pursuant to the
investigation 3 more Jawans were arrested. They corroborated the involvement
of Sarwan Dass. Sarwan Dass and Aya Singh on further interrogation disclosed
the names of Capt. Ghalwat & Capt. Nagial. In 1976-77 Capt. Ghalwat &
G Capt. Nagial were tried by General Court Martial and were convicted. Ghalwat
was cashiered and given 14 years RI. Nagial was given 7 years RI and was
also cashiered. In addition, 12 jawans were tried and they were given RI of
various descriptions and were dismissed from services. Aya Singh and Sarwan
Dass were also among the 12 jawans tried and held guilty. Later in 1978 it
H was discovered that Aya Singh was holding back certain relevant information
U.0.1. v.RANBIR SINGH RATHAUR [PASA YAT, J.] 197
relating to espionage activities under certain alleged threat and pressure. A
Wife of Aya Singh came to be killed. Reeling under the shock of the
circumstances, he made further disclosures wherein he named Capt. Rathaur
and Capt. A.K. Rana, the respondents in these appeals and he disclosed that
he was receiving threats that if he disclosed anything his wife would be
killed. Accordingly, in 1978 Capt. Rathaur and Capt. A.K. Rana were B·
interrogated. As a result, 42 Army personnel were arrested. The 42 Army
personnel included 19 officers, 4 junior commissioned officers (JCOs) and
19 Other Ranks (ORs.)

Out of the 19 officers, 3 officers were tried by General Court Martial,
two were convicted, namely, Capt·. Ranbir Singh Rathaur and Capt. A.K. C
Rana and one was acquitted. Capt. Ranbir Singh Rathaur and Capt. A.K.
Rana were sentenced to RI for 14 years each and were cashiered. Against 13
officers, disciplinary actions were initiated. However, a decision was taken
not to try them and administrative order under Section 18 of Army Act, 1950
(in short the 'Act') was passed terminating their services.
D
Present appeals relate to the 2 officers punished by General Court Martial
and the de-linked appeals relate to 7 officers out of 13 officers whose services
were terminated under Section 18 of the Act. The remaining 3 officers were
not found blameworthy and no action was taken against them and they
continued in the Army. Out of 4 JCOs services of (3 JCOs) were terminated E
administratively and against 1 officer no action was taken. Out of 19 others,
6 were tried by General Court Martial and were convicted and sentenced for
various descriptions of imprisonment. Services of 9 others were terminated
by administrative order and the rest 4 were let off and no action was taken
against them.
F
At this juncture it would be appropriate to take note of previous
litigations.

On 22.10.1980 Criminal Writ Petition No. 90 of 1980 was filed by Ex
Captain Rana. On 4.6.1981 Criminal Writ Petition No. 90 of 1981 came to
be dismissed by the Division Bench of Delhi High Court. It was observed G
that a number of points were raised on points of law and jurisdiction. It did
not want these matters to be left undecided, therefore, arguments were heard
on these points and were dealt with.

On 19.2.1982, SLP (Cr!.) No.2320 of 1981 filed by Capt. A.K. Rana H
198 SUPREME COURT REPORTS [2006] 3 S.C.R.

A against the order dated 4.6.1981 came to be dismissed.
On 17.10.1995 CWP No. 4082 of 1995 was filed by Capt. AK Rana
before the Delhi High Court. On 21.12.2000 the impugned judgment was
passed.

B On 24.8.1978 Capt. Ranbir Singh Rathaur was arrested and taken into
custody on the basis of information collected by the Military Intelligence that
Ranbir Singh Rathaur had been indulging in acts of espionage by passing
secret and classified military information to agents of a foreign country. On
28.3.1979 Smt. Swaran Rathaur, wife of Capt. Ranbir Singh Rathaur filed a
C Habeas Corpus Petition under Article 32 of the Constitution of India, 1950
(in short the 'Constitution') in this Court being Criminal Writ Petition No.
294/79, inter alia, seeking the following reliefs:

(a) That Ranbir Singh Rathaur be forthwith produced before this
Hon'ble Court.
D (b) That the Petitioner in the said writ petition, her lawyers and
medical advisors be P,ermitted to interview the said Capt. Rathaur
in conditions controlled by this Hon 'ble Court and proper medical
care and facilities may be furnished to him.

On 12.4.1979 General Court Martial was convened against Capt.
E Rathaur. On 17.4.1979 two charges were framed against Capt. R.S. Rathaur
for offences under Section 69 of the Act, read with Section 3(1)(c) of the
--
Official Secrets Act, 1923 (in short 'Secrets Act').

The Union of India filed a Counter Affidavit in Crl. WP No. 294 of
1979, inter alia, pointing out that detenu was being tried by a General Court
F
Martial and that sanction to the detention was given by the Chief of Army
Staff and the Government. On 27.4.1979 this Court vide Order dated 27.4.1979
dismissed the Writ Petition No. 294/1979 as infructuous. This Court observed
that:

G "It has also not been disputed that the proceedings of the Court
Martial have started and the detenu has been allowed to appoint a
counsel of his own choice who is at the moment representing the
detenu. In these circumstances, therefore, the Habeas Corpus Petition
had become infructuous and does not merit any interference by this
Court."
H
U.0.1. v.RANBIR SINGH RATHAUR [PASAYAT, J.] 199

As regards the allegations of torture it was recorded that the Additional A
Solicitor General produced before the Court a record of the doctor who had
examined the detenu thoroughly and found that the complaints made by him
were without substance.

However, the petitioner was given liberty to make an application before
the Military authorities for examination by the Principal of the Medical College, B
Jammu. Such examination by a civil doctor was not to be taken as casting
any reflection or aspersion on the impartiality or incompetence of the doctor
of the Military Department. With these observations the petition was dismissed.

On 2.8.1979 Rathaur was convicted and sentenced to 14 years rigorous
imprisonment. In 1981 Rathaur filed a Criminal Writ Petition being Crl. W.P. C
No. 9 of 1981 in the Delhi· High Court challenging the Court Martial
proceedings. On 23.3.1982 the High Court vide its order dated 23.3.1982
dismissed the petition of Rathaur relying upon its earlier decision in Criminal
Writ No. 90 of 1980 dated 4.6.1981. In 1985 SLP (Crl.) 3573/85 against the
Order dated 23.3.1982 of the High Court in Crl.W.P. No. 9of1981 was filed D
by RS Rathaur. In 1985 Rathaur filed a Writ Petition in this Court being
Criminal Writ Petition No.1577 of 1985. again challenging the legality of the
court martial proceedings, the sentence passed and the confirmation thereof.
It was alleged that the court martial proceedings and sentence passed were
arbitrary, illegal and that the procedure followed was in violation of the Act
and the rules made thereunder. E
Prayer (B) of the Writ Petition reads as under :

"Issue a writ order or directions in the nature of certiorari calling
for the entire proceedings of the General Court Martial and quash the
conviction and sentence of the Petitioner and the order of COAS F
confirming the said conviction and sentence."

On 10.2.1986 the Special leave Petition preferred by Capt. Rathaur to
this Court being SLP (Crl.) No.3573 of 1985 against the Order dated 23.3.1982
of the High Court in Crl.W.P.No. 9of1981 was dismissed. On 28.4.1986 this
Court dismissed the Criminal Writ Petition No. 1577 of 1985. This Court G
observed that the case was not a fit case for calling for the records or for re-
opening the matter and hearing it. On the prayer of the Counsel for Rathaur,
this Court directed that the records be preserved for one more year.

On 23.1.1987 the Review Petition filed by Rathaur in respect of the H
200 SUPREME COURT REPORTS (2006) 3 S.C.R.

A order of this Court dated 10.2.1986 in SLP (Crl.) No.3573 of 1986 and the
order dated 28.4.1986 in Criminal Writ Petition No.1577 of 1985 (Review
-
Petition Nos. 493 of 1986 and 463 of 1986 respectively) were dismissed.

The order reads as under :

B "We have gone through the Review Petitions and connected papers.
We find no merit in the Review Petitions which are accordingly
dismissed."

In May 1989 Rathaur was released from custody. In 1995 Rathaur
again challenged the validity of the Court Martial proceedings which had
C been conclusively decided by this Court, by filing a fresh Writ Petition being
CWP No. 3063of1995. Rathaur, inter alia, prayed for quashing of the same
General Court Martial proceedings. Prayer (I) of Writ Petition is extracted
below:

"(!) To issue a Writ of Mandamus and any other appropriate
D Writ, Order or direction, inter alia commanding the Respondent Nos.
I and 2 in accordance with Section 165 of the Army Act, 1950 to
annul the proceedings of the General Court Martial affecting the
petitioner as they are malafide, irrational, unjust and illegal and there
has been a failure of justice."

E On 17. I 0 .1996 the present appellants filed an affidavit taking the
preliminary objection relating to the maintainability of the Writ Petition in
view of the fact that the earlier Writ Petition of Rathaur had already been
dismissed by the High Court on 23.3.1982 and the Special Leave Petition as
well as Review Petitions preferred against the same were also dismissed by
F this Court.

It is also pertinent to note that this Court vide order dated 28.4.1986
had dismissed Criminal Writ petition No.1577 of 1985 challenging the very
same General Court Martial Proceedings.

G The appellant also submitted that they would file a detailed counter
affidavit on merits after the issue of maintainability is decided.

On 14.8.1998 the Hon'ble High Court after hearing the matter at length
was pleased to reserve the judgment.

H On 22.3 .1985 all the writ petitions challenging orders under Section 18
U.0.1. v.RANBIR SINGH RATHAUR [PASAYAT, J.] 201
of the Act were dismissed. A
In 1985, one of the writ petitioners Sri N .D. Sharma filed LPA being
LPA No. 116 of 1985 against the order of dismissal. On 19.8.1986 the said
LPA came to be disposed of by quashing the 5% cut, however, orders of
termination of services were maintained.
B
In 1986 Sri N.D. Sharma preferred SLP(C) No. 13195of1986 against
the order dated 19.8.1986. On 27.2.1987 SLP(C) No. 13195 of 1986 was
dismissed. In 1992 Sri N.D. Sharma filed a fresh Writ Petition being Civil
Writ Petition No. 3107of1992 before Delhi High Court. On 7.9.1992 Writ
Petition No. 3107 of 1992 was dismissed on the ground of delay. In 1995 C
writ petition No. 4585 of 1995 was dismissed.

Similar petition has been dismissed by the Division Bench in the case
of Subhash Juneja v. Union of India, (CW 271/95) as the said petitioner tried
to re-open the decision which had attained finality. In 1997, Review Petition
was filed against the order of dismissal being RP No. 5897 of 1997. On D
7.11.1997 RP No. 5897 was dismissed.

In 1987-1994 the balance 7 officers filed LPAs.

It was contended by the present appellants that these LPAs were covered
by the order in the case of Sri N.D. Sharma. The matter came to be referred E
to a Full Bench of the High Court to ascertain:

"Whether the order of termination passed by and in the name of the
President u/s 18 r/w Art. 310 invoking the doctrine of pleasure of the
President can be challenged on the ground that it is camouflage and
as such violative of principles of natural justice and the fundamental F
right guaranteed under Article 14 ?"

On 8.7. I 994 the Full Court rendered its judgment in Ex. Maj.N.R. Ajwani
& Ors. v. Union of India, 55 (1994) SLT 217. It was held that:

(a) The concept of camouflage is a facet of judicial review and the G
Court would lift the veil in all cases where it appears that the
power is used for collateral purposes under the cloak or garb of
innocuous form of an order and determine the true character of
the order under challenge.
'
(b) Therefor~, an order under Section 18 of the Army Act read with H
202 SUPREME COURT REPORTS [2006] 3 S.C.R.

A Article 310 of the Constitution invoking the doctrine of pleasure
of President is subject to judicial review to ascertain whether the
same is exercised lawfully and not vitiated for ma/a fide or based
on extraneous grounds and that order can be challenged on the
ground that it is a camouflage."

B In 1994 the Union of India preferred Special Leave Petition (Civil)
Nos.18732-36 against the order of the Full Bench of the High Court. On
17.11.1994 Special Leave Petition (Civil) Nos.18732-36 was granted. Although
the judgment of the Full Bench was not disturbed it was held that it is for the
person who challenges the order passed u/s 18 on the ground of malafide to
C make out a prima facie case. It is only if he discharges the said burden, that
the Government is called upon to show that the said order is not passed in
its malafide exercise of powers.

On 2.5.1995 the High Court vide its order dated 2.5.1995 held that the
issue of maintainability would be decided in the first instance. The High
D Court in this regard observed:

"We are of the view that first we should decide the batch whether
fresh writ petitions are maintainable, then the question of going into
the privilege claimed by the respondents will have to be decided."

E On 8.3.1996 Division Bench of Delhi High Court dismissed similar
petition. It was contended by the writ petitioner that the judgment of the Full
Bench has given fresh cause of action to them to challenge the order of
termination of service dated 3.3.1980 even if their challenge has been
adjudicated upon till the Supreme Court. Earlier decisions were not based on
lack of jurisdiction but it was not found to be a fit case of interference. It was
F held that the petitions are barred by the principles of res judicata and are
accordingly dismissed. This order has been affirmed by this Court.

On 6.1.1997 the present appellants filed the affidavit bringing on record
this order's dated 17 .11.1994. It was submitted that it would be just and
proper to decide the prima facie case, if any, in favour of the appellant/
G petitioners. It is only then the burden would shift to the respondent to show
that the order had not been passed in malafide exercise of power.

On 14.8.1998 the relevant Original records pertaining to the case were
shown to the Court. The order does not indicate that the records were
H insufficient or more papers were required to be produced. It is pertinent to
U.0.1. v.RANBIR SINGH RATHAUR [PASAYAT, J.] 203

note that all the LPAs and two abovesaid writ petitions were being taken up A
together for hearing by the High Court.

On 21.12.2000 the LPAs Nos.4/87, 43/87, 139/87, 148/87, 21/88, 77/
93 and 86/1994 were allowed. It was, inter alia, observed by the High Court
as follows:
B
(I) The case of the appellants and the case of the writ petitioners are
interconnected and intertwined and they can be looked as a whole.

(2) Instead.of producing all the relevant records, the respondent had
produced only three flaps.

(3) Perusal of the Counter Affidavit in all cases gives the impression C
that the respondent had withheld material facts.

(4) Respondents have not placed any material justifying the action.

(5) Respondent think they are law unto themselves.

(6) Respondents have chosen not to produce the entire record. D
(7) We may not have interfered in view of finality reached on an
adjudication by this court provided the records were produced.

(8) On the consideration of all the facts and circumstances we are of
the view that there is no other conclusion possible except to say E
that the orders are merely camouflage and have been passed for
extraneous reasons under the innocuous form of orders of
tennination.

(9) The appellants in the LPA are entitled to all consequential benefits.
Orders passed against the appellants in LPA are void.
F
On 3 .1.200 I the counsel for the present appellant received back the
files submitted to the High Court.

In these appeals, it has been urged as follows:-

(I) By application of the principles of res judicata, the writ petitions G
were not maintainable.

(2) The order dated 17. I I.1994 of this Court has been overlooked.

(3) Onus of proof wrongly shifted to the present appellant.

(4) The earlier adjudications have not been taken into account. H
204 SUPREME COURT REPORTS [2006] 3 S.C.R.

A (5) Delay in filing the writ petitions has not been considered.

(6) Records were produced before the High Court; contrary to what I--
has been recorded.

It was pointed out that the High Court lost sight of the factual
B background and on mere surmises and conjectures allowed the writ petitions;
overlooking the fact that on same grounds the writ petitions had been earlier
filed, were dismissed and even the writ petitions and the SLPs. filed in this
Court were dismissed. On clearly erroneous premises that there was no material
to justify the action, the High Court came to the conclusion as noted _above.
It is submitted that the High Court proceeded on the basis as if no material
C were produced before it and this is contrary to the actual position. In fact
volumes of documents were filed which the High Court unfortunately did not
take note of. This presumably happened because the judgment was reserved
in 1998 and the impugned judgment was delivered in December, 2000. The
judgment is full of erroneous conclusions factually, which shows complete
non-application of mind. An observation has been made by the High Court
D that though finality in law is desirable justice is of foremost importance. It
has not been even indicated as to in what manner the earlier proceeding
suffered from legality. The legality of the Court Marshal proceedings which
was assailed were challenged earlier and were rejected right up to this Court.
To substantiate the plea that original documents were shown and the original
E files were filed reference has been made to the receipt. Reference has also
been made to the order dated 14th August, 1998, which reads as follows:

"Synopsis have been placed on record. Mr. Tikky states that by
I 7.8.1998, photocopy of the relevant record will be made available
to Court. Originals have been shown to us.
F
Judgment reserved."

It was pointed out that the only basis for filing the fresh writ applications
as is evident from the averments made in the writ petitions is that some press
reports had stated about irregularities in holding people guilty of espionage
G and the orders passed in the cases which formed the subject matter of challenge
in the LPAs. The subject matter of the writ petitions which were under
consideration in the LP As were entirely different and had no connection with
the legality of the Court Marshal proceedings.

IQ response, learned counsel for the respondent submitted that there
H
U.0.1. v.RANBIR SINGH RATHAUR [PASAYAT, J.] 205
was a great amount of manipulation and objectionable activities which A
subsequently came to light and on that basis the writ petitions were filed
before the High Court and have been rightly allowed. In spite of opportunity
as noted by the High Court, relevant documents were not produced. The
stand that documents were filed before the High Court is refuted.

On a bare reading of the High Court's order and the averments in the B
writ petitions, one thing is crystal clear that there was no definite allegation
against any person who was responsible for the so called manipulation. It is
also not clear as to who were the parties in the writ petitions filed. In the
grounds indicated in the writ petitions it was stated that there is no bar or
impediment on the High Court reviewing the petitioner's case as also C
connected cases to enquire into the validity of the acts done against the writ
petitioner. Therefore, it was an accepted position that the writ petitioners
wanted review of the High Court's order, which is clearly impermissible. No
ground for seeking such review apparently was made out. In any event we
feel that the High Court's approach is clearly erroneous. The present appellants
in the counter affidavit filed had raised a preliminary objection as regards the D
maintainability of the writ petitions and had requested the High Court to
grant further opportunity if the necessity so arises to file a detailed counter
affidavit after the preliminary objections were decided. The High Court in
fact in one of the orders clearly indicated that the preliminary objections
were to be decided first. But strangely it did not do so. It reserved the E
judgment and delivered the final judgment after about three years. There is
also dispute as to whether the relevant documents were produced. What
baffles us is that the High Court records with original documents were shown
.._ to it and the Bench wanted the copies to be filed. In the impugned judgment
the High Court proceeded on the basis as if only a few pages of the files were
shown. If that was really the case, there was no necessity for the High Court F
to direct the present appellants to file copies. If after perusal of the documents
the High Court felt that these were not sufficient the same would have been
stated. But that does not appear to have been done. The High Court also had
not discussed as to how the matters which stood concluded could be reopened
in the manner done. No sufficient grounds have been even indicated as to G
-.. why the High Court felt it necessary to do so. To say that though finality had
been achieved justice stood at a higher pedestal is not an answer to the basic
question as to whether the High Court was competent to re-open the whole
issue which had become concluded. The persons whom the High Court felt
were responsible for alleged manipulation or persons behind false implication
were not impleaded as parties. Newspaper reports are not to be considered H
206 SUPREME COURT REPORTS [2006] 3 S.C.R.

A as evidence. The authenticity of the newspaper reports was not established by
the writ-petitioners. Even otherwise, this could not have been done in a writ
petition, as disputed questions of fact were apparently involved. The matters
which the High Court found to have been established were really not so. The
conclusions were based on untested materials, and the writ-petitioners had
B not established them by evidence. Since the High Court has not dealt with the
matter in the proper perspective we feel it would be proper for the High
Court to re-hear the matter. The High Court shall first decide the preliminary
objections raised by the present appellants about the non-maintainability of
the writ petitions. Normally such a course is not to be adopted. But in view
of the peculiar facts involved, it would be the appropriate course to be adopted
C in the present case. Therefore, we remit the matter to the High Court for fresh
hearing. We make it clear that whatever we have observed should not be
treated to be the conclusive findings on the subject matter of controversy.
The appeals are allowed without any order as to costs. Since the matter is
pending since long, we request the High Court to dispose of the matter as
early as practicable, preferably within four months from the date of receipt
D of the judgment. No costs.

K.G. Appeals allowed.