| MAJOR RADHA KRISHAN _ ~ UNION OF INDIA AND ORS. .
MARCH 25,1996 90 _’ - [M.K. MUKHERJEE AND G.B. PATTANAIK, JJ.) Amy Act, 1950: Sections 19, 122, 127. _ Amy Rules, 1954 : Rule 14.
Service Law—Army Officer—Misconduct—Termination of service— TriakK—Summary procedure—Bar on account of limitation—Tennination of service on the ground that trial was wnpracticable for expiry of limitation period—Held not permissible—Rule 14 cannot be exercised to get over limitation period—Inexpediency or impracticability of tria\—Basis of satisfaction must be misconduct and other attending circumstances and not any exwaneous factor—To dispense with a trial de hors misconduct is whoily alien to Rule 14(2).
Words & Phrases : | “Impracticable' —Impossible" and "Inexpedient"—Meaning of in the context of—Armny Act, 1950.
The appellant, a Major in the Indian Army, was served a notice dated December 1, 1990 under Section 19 of the Army Act, 1950 read with Rule . 14 of the Army Rules, 1954 calling upon him to show cause why his services should not be terminated for the misconduct alleged to have been committed by him about 7 years prior to the issuance of notice. In the notice itself it was stated that the trial for the alleged misconduct was impracticable having become time barred, and that Chief of Army Staff was of the opinion that his retention in service was undesirable. The show cause submitted by appellant was rejected by the authorities. On the recommendation of authorities the Central Government passed an order dated February 28, 1992 terminating the services of the appellant. A Single Judge of the High Court quashed the termination order and directed his reinstatement in service with all consequential benefits. On appeal the Division Bench dismissed appellant’s writ petition. Relying on section 127 a 836 ae
. this Court "ave ‘ “ . 4 “oO.
rr} J . €
6 "| MAJ. R: KRISHANY. U.O1. ot 837
.
. Of the Act-it held that préceedings under section 19 of the ‘Act read with ~ Rule 14 of the Rules could be taken after the expiry’ ‘of the period of imitation Prescribed under Section 122 of the Act, a0 { . i at In appeal. to this Court it was contended for the appellant that (i) as the appellant’s trial was barred by limitation under Section 122 of the
Act, Rule 14 could not be iivoked; and (ii) the satisfaction regarding the
“inexpediency or impracticability to hold a Court. Martial must flow from the ‘riature and the ‘context of the misconduct itself and not from any _ extraneous factor such as in the instant case viz. period of limitation.
a) . -_ & 1. ar" x"
Allowing the appeal and setting aside'the decision of Division Bench,
¥
HELD : 1, Once, the period of limitation: of -a trial is ‘over the
_ authorities cannot take action under Rule 14 (2). The power under Rule
14 cannot be exercised in a manner which would get over the bar of limitation laid down in the Army Act, 1950 and if Rule 14 was to be interpreted to give such power it would clearly be witra vires. [842-F; 843-C]
a 2 In the instant case. e the:trial had become time barred. When the trial itself was legally impossible and impermissible the question of its being impracticable cannot or does not arise. ‘Impracticability’ is a con- .
‘cept’ ‘different from ‘Irapossibitity’ for while: the latter is ‘absolute, the former introduces at all events some degrees of reason and involves some
. Pegard for practice. ‘Impracticable’ presupposes that. the action is ; ‘possible’ but owing to certain practical difficulties or other. reasons it is
_ incapable of being’ performed. The same principle will’ equally apply to
' Satisfy the test of ‘Inexpedient? as it means not expedient; disadvantageous in the circumstances, inadvisable, impolitic. Therefore, so long as-an . Officer can be legally tried by a Court Martial the concerned authorities
~ May, on the ground that such a trial is not impracticable: or inexpedient, invoke Rule 14(2). (842-C-E] | ee as
3. Section 27 of the Act relates toa trial bya ‘Criminal Court’ and not ‘Court Martial’ and Speaks ‘of a stage after the. trial by: the latter is over. So. far ‘ as the period ‘of limitation of, trial hy Court: Martial is concerned Section’ 122 of the Act is a complete Code in.itself for not only it provides in its sub-section (1) the period of limitation for such trials but. , specifies, in sub section. (2) thereof the offences in respect of which the
A limitation clause would not apply. Since the terms of the above section is absolute and no provision has been made under the Act for extension of time - like Section 473 Criminal Procedure Code, it is obvious that any trial commenced after the period of limitation will be patently illegal. Such a provision of limitation prescribed under the Act cannot be overridden or circumvented by an administrative act, done in exercise of powers conferred under a Rule. [842-G, H; 86S-A-B)
4. It is evident from the opening words of Rule 142) that the
" satisfaction about the inexpediency or impracticability of the trial has to
* be obtained on consideration of the reports on the officer’s misconduct.
Cc That necessarily means, that the misconduct and other attending cir- cumstances relating thereto have to be the sole basis for obtaining such a satisfaction. But to dispense with trial on a satisfaction. de hors the
-misconduct - like the bar of limitation in the present case - will he wholly ‘alien to Rule 14(2). [843-H; 844-A, C] ”
Ds Lt Col (T.S.) M.C. Dhingra v. Union of India & Anr, (1980) 2 Delhi Lawyer.109, approved.
| CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5121 of 1996. | ae
E From the Judgment and Order dated 21.3.94 of the Rajasthan High Court in D.B (C) S.A. No. 116 of 1994.
Raju Ramachandra, N.R. Rath, Ms. K. Bhardwaj and S.R. Bhat for the Appellant.
F Altaf Ahmad, Additional Solicitor General and NN. Goswami, S.W.A. Qadri, T.V. Ratnam and Ms. Anil Katiyar for the Respondents. The Judgment of the Court was delivered by G M.K. MUKHERJEE, J. Leave granted.
The appellant was a permanent Commissioned Officer of the Indian
Army holding the substantive rank of Major. While he. was posted at the Military Farm in Jullunder City he was served with a notice dated Septem- ber 10, 1990 issued under the directions and on behalf of the Chief of the
H_ Army Staff calling upon him to show cause why his services should not be
' MAJ.R. KRISHAN v. U.O.1. [M.K. MUKHERJEE, J.] 839 terminated under Section 19 of the Army Act, 1950 (‘Act? for short) read A
“with Rule 14 of the Army Rules, 1954(‘Rules’ for short) for the misconducts he was found to have committed during his tenure as the Officer i incharge. of the” Military Farm, Jaipur. The misconducts are set out in paragraph 3 of the notice but as they are not germane for the purpose of . this appeal, it is not necessary to detail them. The reasons which prompted the Chief of the Army Staff to take recourse to the provisions of the Act and the Rules are contained i in Paragraph 4 of the notice, which reads as under :
"And whereas the Chief of the Amy Staff is further satisfied that your trial for the above misconduct is impracticable having become C
.time barred by the time the court of inquiry was finalised and he Lis of the opinion that your further retention in service is undesirable.” ”
. In due course. the’ appellant: showed cause “against his proposed D
- termination of. services. but. it: did not find favour with the authorities. Hence, on their recommendations,’ the Central Government: issued an order on February 28, 1992 terminating the: service of the appellant. Aggrieved thereby the appellant filed a writ petition before a learned J udge | ‘ of the Rajasthan High Court. In-assailing the order of termination the principle ground that was raised by the appellant was that the provisions E ~ of Section 19 of the Act and Rule 14 of the Rules could not be invoked as _ the period of limitation prescribed under Section 122 of the Act for holding - ~~ his trial by a Court Martial was long over. Besides, it was contended that
- the satisfaction of the authorities that it was impracticable to hold the trial ae “Twas not obtained i in. ‘accordance™ ‘with Rule 14. The appellant also denied
; that he was guilty of the misconducts alleged i in the notice and gave out his : defence! against’ th ; ! ; =.
ne the 1 learned Judge: allowed; the: “wit petition; “quashed ’ ‘the ‘order cs at under challenge and. directed: that the appellant be reinstated ‘in service . * with “all” consequential benefits, In: ‘passing ‘the above order the learned wo Judge firstly held that the appellant was made a scape goat for the lapses
2 and delinquencies of others. As regards the, ‘applicability of Section 19 of ~
~, the “Act/and the Rule 14 of the. Rules the learned Judge’ ‘concurred with — the submissions: ‘of the’ appellant relying principally upon the Division.
. Bench h judgment o of the Delhi High ( Court in Lt. Col. (T.S) M. C. Dhingrav. H’
x
Union of India & Anr., (1980) 2 Delhi Lawyer 109.
In appeal preferred by the respondent - Union of India a Division Bench of the High Court set aside the above judgment of the learned Single Judge and dismissed the writ petition of the appellant. The Division Bench held that view taken by the Delhi High Court in M.C. Dhingra’s case (supra) was not corréct and that proceedings under Section 19 of the Act read with Rule 14 of the Rules could be taken even after the expiry of the period of limitation prescribed under Section 122 of the Act. The findings of fact recorded by the learned Single Judge in favour of the appellant were also upset. The above order of the Division Bench is under challenge in this appeal.
To appreciate the contentions raised by Mr. Ramachandran in support of the appeal it will be appropriate to first refer to the relevant provisions of the Act and the Rules, Section 19 of the Act reads as under: —
"Subject to the provisions of this Act and the rules and regulations made thereunder the Central Government may dismiss or remove from the service, any person subject to this Act."
The other section of the Act which need reproduction is Section 122 which, at the material time, stood as under :
"(1) Except as provided by sub-section (2), no trial by court-martial of any person subject to this Act for any offence shall be com- menced after the expiration of a period of three years from the
‘date of such offence.
(2) The provisions of sub-section (i)' shall not apply to a trial for an offence of desertion or fradulent enrolment or for any of the offences mentioned in Section 37.
(3) In the computation of the period of time mentioned in subsection (i), any time spent by such person as a prisoner of war, or in enemy territory, on in evading arrest after the commission of the offence, shall be excluded. .
(4) No trial for an offence of desertion other than desertion on active service or of fradulent enrolment shall be commenced if the. person in question, not being an officer, has subsequently to the
MAIR. KRISHANv. U.O.L [MK MUKHERJEE, 4] ' B41
5 commission of the. ‘offence, served continuously i in. an “exemplary A | manner for not less than three years with any portion of the regular ~ Rule 14 of the Rules so far as it is s relevant for our present purposes, reads . as follows : 270 a . ros "Termination of service by the Central Government on account of © * - misconduct,- (4). When it is proposed to terminate the service of r oan officer under Section’ 19 on account of misconduct, he shall be- ‘ 4+ given an opportunity to’ ' show cause in the manner t specified i in “ sub-Rule ® against such action : pd a _ - ; Cc Provided that this sub-rule shall not apply ee eae
é a4 of
: : (a) shen the service is s terminated on the ground of conduct which _ had led to his conviction by a criminal court; or.- ‘
>. ; “ - (b) whers the Central Government is s satisfied that. for reasons, to. non be recorded i in writing, it is not expedient or reasonably practicable i to give. to the officer, an opportunity of showing caused. .
aa (2) When after vanitdering the reports on an ‘offic cer’s ‘misconduct: S “the Central Government, or the Chief of the Anny Staff is satisfi ied BS "that the trial of the “offic cer by @ court martial is’ inexpedient: or : ve impracticable, but is of the opinion that the further retention of the “said officer in the service is undesirable, the Chief. of the Army / : "Staff shall so inform the officer together } with all reports. adverse OE to. ‘him: and? he shall: be! ealled’ ‘upon. to. 9. submit, in writing, -the - area Mr. Ramachandran’ first “contended ‘that ‘c ‘one L of the. requisites’ t to :
~: » invoke. the summary procedure envisaged under ‘Rule 14(2) ; to terminate -_ . the § services, of an “officer. by the Central, Government in. “exercise of its G powers under. Section 19 of the Act is to obtain a satisfaction that his trial by: a. Court Mastial i is inexpedient' or ‘impracticable. Such, a’ satisfaction, according to Mr. Ramachandran, can be. arrived only. at a time-when trial
. by a Court, Martial: is permissible: or possible: “As in - the’ instant case, . “ admittedly, s such a trial was barred by! limitation under Section 122 of the Ho
. Act the above Rule could not be invoked. We find much substance in the above contention of Mr. Ramachandran.
It is not in dispute that at the time the impugned notice was sent, no trial of the appellant by Court Martial could be held for sub-section (1) of Section 122 (as it then stood) ‘clearly envisaged that it should not be commenced after expiration of three years from the date of commission of the offence which in the instant case was about 7 j years prior to the issuance of the notice. Indeed, as seen earlier, in the notice itself it is stated that the trial had become time barred. When, the trial itself was legally impossible and impermissible the question of its being impracticable, in our view cannot or does not arise. ‘Impracticability’ is a concept different from ‘impossibility’ for while the latter is absolute, the former introduces at all events some degree of reason and involves some regatd for practice. According to Webster’s Third New International Dictionary ‘impracticable’ means not practicable; incapable of being performed or accomplished by the means employed or at command. ‘Impracticable’ presupposes that the
‘action is ‘possible’ but owing to certain practical diffic ic uulties or other reasons it is incapable of being performed. The same principle will equally apply to satisfy the test of ‘inexpedient’ as it means not expedient; disadvantageous in the circumstances, inadvisable, impolitic. It must therefore be held that so long as an Officer can be legally tried by a Court Martial the concerned authorities may, on the ground that such a trial i is not impracticable or inexpedient, invoke Rule 14(2). In other words, once the period of limitation of such a trial is over the authorities cannot talce action under Rule 14(2). While passing the impugned order the Division Bench however did not at all consider, while interpreting Rule 14(2), the import of the words ‘impracticable’ or ‘inexpedient” as appearing therein < and proceeded on the basis that since Section 127 of the Act ‘(since repedied) permitted trial even after a conviction or acquittal by a Court Martial, it necessarily meant that the Rule could be pressed into service even after the period of limitation. It appears that in making the above observation the High Court did not notice that Section 127 relates to a trial by a ‘criminal court’ and not ‘Court Martial’ .... and speaks of a stage after the trial by the latter is over.
" ‘The matter can be viewed from another angle also. S80 far as period of limitation of trials by Court Martial is concerned Section 122 of the Act is a complete Code in itself for not only it provides in its sub- section (1)
_ MAJ.R. KRISHANY. U.O.L [M.K. MUKHERJEE, J.] 843 the period of limitation for. such trials but specifies in sub-section (2)
thereof the offences in respect of which the limitation clause would: not:
apply. Since the terms of the above section is absolute and no provision has been made under ‘the Act for extension of time - like Section 473
Criminal Procedure Code - it is obvious that any trial commenced after the period of limitation will be patently: illegal. Such a provision or limitation * prescribed under the Act Cannot be overridden or circumvented by an ~ administrative act, done in exercise. of powers « conferred under a Rule. Mr. Ramachandran was, therefore, fully ‘justified i in urging t that power under
Ruile'14 of the Army Rules could not bé exercised i in a manner which would , get over the bar of limitation laid down in the Act and that if Rule 14 was to be interpreted to give such power: it would clearly be ultra ' vires, “We are theréfore i in complete agreement ‘with the observations made by the: Delhi High « Court in M.C: Dhingra’s case (supra) that in purported exercised of administrative power under Rule 14, in respect of allegations of miisconduct °° -triable by Court’ Martial, the authorities cannot override the statutory bar of sub-section (1) of Section 122 of ‘the Act for no administrative act or fiat can discard, destroy or ‘annul a statutory provision.
as The other contention of Mr. Ramachandran was that the satisfaction - with regard t to ‘inexpediency or impracticability or a trial by Court Martial must be only on a consideration: of the reports of misconduct. According _ to Mr. Ramachandran if on a perusal of the reports the authorities found that the nature of misconduct or the context in which it had been com- mitted were such that it was impracticable or inexpedient to hold the. Court
Martial, the procedure under Rule 14 might be resorted to. In other words,
Mr. Ramachandran submitted, the satisfaction regarding the inexpediency .
or impracticability to hold a Court Martial must. flow from the nature and the context or the misconduct itself and not from any extraneous factor which i in the instant case was that the Court Martial proceedings: would be ‘time. ‘barred. This contention of Mr. Ramchandran i is also, in our view, indefensible.
As noticed earlier, Rule 14(2) opens with the words. "when after”
considering the reports. on an officer’s misconduct, the Central Govern- .
"ment, or the Chief of the Army: Staff is satisfied........". It, is evident, therefore, that the satisfaction about the inexpediency or impracticability , of the trial has to be obtained on ‘consideration of the reports .on the.
officer’s misconduct. That ° necessarily means, that the misconduct and other attending circumstances relating thereto have to be the sole basis for obtaining such a satisfaction.
The purport of the above Rule can be best understood by way of an illustration, The Chief of Army Staff receives a report which reveals that an Army Officer has treacherously communicated intelligence to the enemy - an Offence punishable under Section 34 of the Act. He however finds that to successfully prosecute the: officer it will be necessary to examine some witnesses, ensuring presence of whom will not be feasible and exhibit some documents, disclosure of which will not be advisable in the interest of the security of the State. In such an eventuality he may legitimately invoke the Rule to dispense with the trial on the grounds that it would be impracticable and/or inexpedient. But to dispense with a trial ona satis-- faction de hors the misconduct - like the bar of limitation in the present case - will be wholly alien to Rule 14(2).
‘For the foregoing discussion we set aside the impugned order of the ‘Division Bench of the High Court and restore that of the learned Single
Judge. The appeal is thus allowed with costs which is assessed at Rs. 10,000. .
T.N.A. Appeal allowed.