UNION OF INDIA & ANR. versus V.N. SAXENA

Citation: [2008] 5 S.C.R. 931 · Decided: 01-04-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Judgment (excerpt)

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[2008] 5 S.C.R. 931 
UNION OF INDIA & ANR. 
v. 
V.N. SAXENA 
(Civil Appeal No. 2764 of 2007) 
APRIL 1, 2008 
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] 
A 
B 
Service Law -
Termination from Army Service - High 
Court quashed the order of termination, relying on a judgment 
passed by Supreme Court - On appeal, held: The foundation c 
of judgment of High Court is the judgment of Supreme Court 
which was held to be not correct by a larger Bench of Supreme 
Court - Matter remitted to High Court to decide the matter in 
view of law laid down in the judgment passed by larger Bench 
-Army Act, 1954 - Precedent. 
o 
Services of the respondent were terminated by 
orders of the Chief of Army Staff. Respondent challenged 
the order in a writ petition. High Court primarily relying on 
*Major Radha Krishnan's case allowed the writ petition. 
In appeal to this Court appellant contended that 
reliance on Major Radha Krishnan's case was 
misconceived as the judgment therein was held to be not 
correctly decided, by a three Judge Bench in *Harjeet Singh 
Sandhu's case. 
Partly allowing the appeal and remitting the matter 
to High Court, the Court 
E 
F 
HELD: Since the foundation of the impugned 
judgment of the High Court is Major Radha Krishnan's case, G 
therefore, the impugned order is set aside and the matter 
is remitted to High Court for a fresh consideration keeping 
in view the position in law as delineated in Harjeet Singh 
Sandhu's case. [Para 8] [936-F-G] 
931 
H 
932 
SUPREME COURT REPORTS 
[2008] 5 S.C.R. 
.. 
A 
'"*Union of India and Ors. v. Harjeet Singh Sandhu 2001 
(5) sec 593 - relied on. 
*Major Radha Krishan v. Union of India and Ors. AIR 
1996 SC 309; Chief of Army Staff v. Major Dharam Pal l<ukrety 
B 1985 (2) sec 412 - referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No 
)._ 
2764 of 2007. 
From the final Judgment and order dated 19/12/2005 of 
c the High Court of Uttaranchal at Nainital in Review/Recall 
Application No. 120/2005 in W.P. (C) No. 1436/2001 (SIS) 
S. Wasim A. Qadri, Jubair Ahmad Khan, B.K. Prasad and 
Anil Katiyar for the Appellants. 
D 
Tehmina Punvani, Ankur Saigal, Gaurav Singh and Bina 
Gupta for the Respondent. 
The Judgment of the Court was delivered by 
E 
DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to 
the judgment of a Division Bench of the Uttranchal High Court 
allowing the writ petition filed by the respondent. The respondent 
had filed the writ petition under Article 226 of the Constitution of 
India, 1950 (in short the 'Constitution') questioning the order 
F 
dated 13.11.1990 whereby his services were terminated by 
orders of the Chief of Army Staff. 
2. The High Court primarily relied on a decision of this 
Court in Major Radha Krishan v. Union of India & Ors. (AIR 
1996 SC 3091) and allowed the writ petition. 
G 
3. The stand of the appellants is that the High Court failed 
to notice that the relied-upon decision was held to be not correctly 
decided by a three judge Bench in Union of India & Ors. v. 
_.._ 
Ha(jGet Singh Sandhu [2001 (5) SCC 593]. 
H 
UNION OF INDIA & ANR. v. V.N. SAXENA 
933 
[DR. ARIJIT PASAYAT, J] 
'l 
4. Learned counsel for the respondent submitted that the 
A 
decision of the High Court was not based only on Major Radha 
Krishan's case (supra) but on other grounds. 
5. The High Court allowed the writ petition with the following 
conclusions: 
B 
"In Major Radha Krishan v. Union of India & Ors. (AIR 
· 1995 SC 3091, the Hon'ble Apex Court has held that where 
the trial by Court-Martial against the offences committed 
by an army personnel was barred by limitation under 
Section 122 of the Act, the summary procedure for c 
termination under R.14(2) of the Rules, cannot be followed 
on the ground that the trial by Court-Martial was inexpedient 
or impracticable. Such a satisfaction that the trial was 
inexpedient or impracticable can be arrived only at a time 
when trial by a Court Martial is permissive or possible. In 
D 
view of the said principle of law and for the reasons as 
,.,. 
discussed above by us, the impugned order by which the 
services of the petitioner were dismissed is liable to be 
quashed. Accordingly the writ petition is allowed. The 
impugned order is quashed. The petitioner shall be entitled 
E 
to the consequential benefits, admissible (as of right) to 
him under the rules treating him Captain, the post he held 
on the date when the impugned order was passed. No 
order as to costs." 
6. In Harjeet Singh

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