Samba spy case: Termination of services not malafide, says SC

New Delhi, March 6: The Supreme Court Thursday upheld the termination of services of five Indian army officers for their alleged involvement in an espionage for Pakistani intelligence in Jammu and Kashmir in the early 1970s in what came to be known as the Samba spy case.

“No credible evidence or material produced before the court impels us to come to the conclusion that the order of termination is baseless or malafide,” said a bench of Justice B.S.Chauhan, Justice J. Chelameswar and Justice M.Y Eqbal in their judgment.

“Analysing entire facts of the case and the material produced in court and upon an exhaustive consideration of the matter, we are of the definite opinion that the power of pleasure exercised by the president in terminating the services of the respondents does not suffer from any illegality, bias or malafide or based on any other extraneous ground, and the same cannot be challenged on the ground that it is a camouflage,” said Justice Eqbal speaking for the bench.

The court said that the onus to prove “malafide” in the order terminating their services rested on the officers who had alleged it. “As discussed, the onus lay on the respondent-officers who alleged malafide,” the court said.

It noted that the term “dismissal” in the original order was substituted by the term “termination” by issuing the corrigendum to correct a mistake committed while issuing the order.

“However”, the court said, “in view of such substitution of word ‘dismissal’ by the term ‘termination’, does not tilt the balance in favour of the respondents.”

It also noted that the proposed 5 percent deduction from the pensioner benefits had been withdrawn, and therefore the issue did not survive.

The court said this while allowing the appeal by the central government and setting aside the judgment and order passed by Delhi High Court Dec 21, 2000.

The central government had challenged the December 2000 order by which the high court had allowed the appeals by quashing not only their termination orders but also the General Court Martial proceedings held against Capt. Ashok Kumar Rana and Capt. R.S. Rathaur.

The case saw the involvement of 19 officers.

Three officers were court martialled and two – Capt. Rathaur and Capt. Rana – were convicted and one acquitted. The case also saw Capt. Ghalwat and Capt. Nagial were tried by GCM and both being cashiered and sentenced to 14 years and seven years imprisonment respectively.

Disciplinary action was initiated against 13. A decision was taken not to try them and by an administrative order under Section 18 of the Army Act, their services were terminated. In addition, 12 jawans were also tried and they were dismissed from service and given imprisonment of various terms.

On Jan 11, 1980, these officers were dismissed from service. The dismissal order was assailed and but the plea was dismissed by the Delhi High Court April 21, 1980. Appeals against high court by the officers were dismissed by the apex court Sep 1, 1980.

However, subsequently, the government issued corrigendum saying that instead of dismissal their services stand terminated with the deduction of 5 percent gratuity. This gave rise to new grounds for challenging the termination.