MAJOR RADHA KRISHAN v.

UNION OF INDIA AND ORS.

MARCH 25, 1996

 [M.K. MUKHERJEE AND G.B. PATTANAIK, .JJ.]

Anny Act, 1950: Sections 19, 122, 127.

A1111y Rules, 1954: Rule 14.

Seivicc Lau-Army Office,-Misco11ducrTc11ni11ation of service-- Trial-Summary procedure-Bar on account of limitation-Tennination of se1vice 011 the ground that trial was impracticable for expily of /imitati011 period-Held not pennissibi<>-Rule 14 cannot be exercised to get over limitation period--lnexpediency or impracticllbility of t1ial-Basis of satisfaction ntust be , ntisconduct and ot/Jer attending circunistaitces and not any extraneous factor--T o dispenJe with a tn'a/ de hors nzisconduct is wholly alien ro Rule 14(2).

Words & Phrases :

"lnipracticable" -"In11Jossible." and

11!1iexpedient''--Afeaning of in th(! comext of-Anny Act, 1950.

The appellant, a Major in the Indian Army, was served a notice dated December 10, 1990 under Section 19 of the Army Act, 1950 read with Rule F 14 of the Army Rules, 1954 calling upon him to show cause why his services )I 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 G submitted by appellant was rejected by the authorities. Ou the recommendation of authorities the c.entral Government passed an order dated i February 28, 1992 terminating the services of the appellant. A Single Judge of the High Court. quashed the termination order and directed bis reinstatement in service with all consequential benefits. On appeal the H Division Brnch dismissed appellant's writ petition. Relying on section ll7

.. ' MAJ. R: KRISHANv. U.OJ. 837

c _ • I _ '. - . oftlie Act it held that ptiiceedings imder section 19 of the Act read with A

Rule 14 ofthe Rules cotild be taken after the ei<pirf of the period' of llmita'tion prescribed under Section 122 of the At. ·.-.', \. ,· .,

... Io 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 invoked; and (ii) the satisfaction regarding the B iuexpedieecy or impracticability to hold a Court. Martial must flow from the :nature and the context oflhe misconduct itsetf arid n.\t fom any extraneous factor s_uch as in the lust.int case viz. period of limitation'.

1 . ' ' ... ' .•. f Allowing the appeal.aodsettiug aside the decision of Division Bench, C • this.Court .'l ·" . , •1 ..

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 Aet, 1950 and if Rule 14 was to be D Interpreted to give such power it would clearly be ultra vires. (842-F; 843-C] . .

• · 2. In the Instant case th~ 'trial had ome tiine barred. Wi1en the trial itseif was legaily Impossible and impermissible the question of its being impracticable cannot or does not arise. 'Impracticability' is a con 'cept different' from 'lniposibility' for while the latte~ is"absolute, the E . : - i _ .... - ' . ' former introduces at _all events some degrees of reason and involves some regard for practice. 'lnipracticab.le'. presupposes that, the. action is '•possibie• but owing to certain practical difficulties or other reasrins it is incapable of being performed. The same priudple will eq; ally apply to satisfy the test of 'lnexpe!11ent' as it means not expedient; disadvantageous in .the circumstances, inadvisable, . impolitic. Therefore, so long as an Officer can be legally tri.,"d by a _Court Martial the concerned authorities may, OU the ground that SUh a trial js not impracticable Odnexpedieut, invoke Rule 14(2). (842-C-E)

.,, rJ·s. ; . ,, '

. . 3. Sectloo 127 of the Ai:t relates to a trial by a 'Crimuml Court' and G not 'Court Martial' od speaks of a stage after th( trial by th~ 1;.tter is over. So far 'as the period .,; fUmitatiou of. trial liy Court Martial Is

' . - ' - j .•, concerned Section 122 of the Act is a complete code bi; Uelf for not only It provides iu its sub-section .(1) the period ofllmitation 'rilr such tri;, ls but specifies. in sub section :· (2) thereof the offences in respect of Which the H

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

B or circumvented by an administrative act, done in exercise of powers conferred.under a Rule. [842-G, H; 843-AB]

4. It is evident from the opening words of Rule 14(2) that the satisfation about the inexpediency or impracticability of the trial has to • be obtained on consideration of the reports on the officer's misconduct.

C That necessarily means, that the misconduct and other attending circumstances 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, CJ

D 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.

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.

Altaf Ahmad, Additional Solicitor General and N.N. Goswami, S.W.A. Qadri, T.V. Ratnam and Ms. Anil Katiyar for the Respondents.

The Judgment of the Court was delivered by

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 September 10, 1990 issued under the directiont and on behalf of the Chief of the H Army Staff calling upon him to show cause .why his services should not be

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 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 . B the Chief of the Army Staff to take recourse to the provisions of the Act and the Rules are contained in paragraph 4, of the notice, which reads as under: ' ' . ' ' ' . ' . '. ' ' . - ., . .. . ' . ' '--' .

"And whereas' the Chief of the Army 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 • is of the opinion that your f.; the~ retention in service is undesirable." . ,•,1; _ (

In due course the appellant• showed cause against his proposed D ) termination of services butit 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.

Aggrie;, ed thereby the appellant filed 'a writ petition before a lened J dge 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 prescribd undr Section 122 of the Act for holding his trial by a Cot Martial -as !orig oer. Besides, it was contended that

.• ihe satisfaction of the authorities that it Was irnpractlble to hold th~ trial ·>was nt obtailled in.accordance With Rule 14. The appellant al'o denied F .

:· that he. was ty f the ~Conducts alleged m the notice. and ga; e out his .. defence' against' the same. '. . ... . ' . ' . .

.. . . • ~The le~:d ;~ge' all owe~ te \Vr; t petition, quashed the order . Wider Challenge aiid directed th:if the appellant be reinstated fu sece

· with all'.coiisequ6ntial benefits. In ·sing' the aboe order' the learned G . . _ •. Judg~ firstly held that the appellant w.i.s'made a scape goat for the lapses . and delinquencies of others. As regards the: appli9bilitY of Sec; tion 19 of ..

. theAi:t'and the RUie 14of the Rules' the learned Judge concurred with the submissions of the, appellant relying pfinCipally upon the Division Bench judgment of the Delhi High Court in Lt. Col. (T.S) M.C. Dhingra v. H ·

A Union of India & Anr., (1980) 2 Delhi Lawyer 109.

In appeal preferred by the respondent - Union of India a Division i 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 B (supra) was not correct and that proceedings under Section 19 of the ALI

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 cif the Division Bench is under challenge in C 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:

D "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 : ·

"(l) Except as provided by sub-section (2), no trial by court-martial of any person subject to this Act for any offence shall be cominenced 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 H person in question, not being an officer, has' subsequently to the

\ \

commission of the offence, s~ed otinuously in:. an exemplary A manner for not less than three years with any portion of the regular Army.'. . . '

Rule i4'of the Rules, so' far' as it is relevant for our present purposes, reads .·

as follows : ' ·· " .

 'Teinination of service by the Central Government on acc<iunt of

misoonduct.~ (1). When it is proposed to terminate the. service of an officer under Section19 on account of misconduct, he shall be given an opportunity to: show caiise in the manner specified in .

su~Rule (2) against such action : · ·

'. ' - ' ' ' , ' • '1 . Provided that this surule shall not apply •

. . . (a} ihe!l these~~ is terntlnated on the ground of condu, ct hich

had led t~ his conviction by a criminal court; or . . ' . , .

) . (b} whre ~e Cent; a1 aoe'i:inedt is satisfied thatfor reascrr.s, to D be. reeorded in \Vriting,'it iS riot expedie'llfor raonably practicable .. . to give totlie' officer an opportuitlty of shoWillg caused. . . . .

' . . . . ' :-· ' -' ... '•' ·- . \ ._, -, _, . '' ·.' ' ' : . -. . . . ' ' _. -:

(2) WJ; en fter onsiilering the eports o~ officer's misconduc~: the Central Goveminent, r the Chiefof the Amiy Staff is satisfied E ··.:that the triOl of the -officer by a court n1iirtial is. inexPedient or

• • i impracticable, butis'of the opinion that th~ further retention of ihe

said officer in the ervice is undesrrabl~, the Chief of the Army .

Staff shall so inform' the officer fogether with all reports adverse . to him imd'he shall be'talld'upon tci sllbmii, inwriting, the.· ·· :- explanati~:m: ( einpa.SiS s::ppiied) ·. •.·.·· •. '. . .· ·· ; • ·

• F

'<.:_:-~" . ' ;!,··:< .. ··>..";: ' \' . xxx- -.·,-.;_.•: . xxx xxx

. ' •J t-. i~~~::ha~an; flrst conte~~d hat one of the equisites to .invoke the summary proeedure .enVisagdmider Rule 14(2) tO terminate

the services of an officer by the Cenirai Govrriinent in eercise of its G powers under Sction 19 of the Act is to obtain a satisfaction that his frial by a:_ Court Martial. is -inexi)edient' Or-'imvt3.d:i'cabt~ .. -Such a satisfaction, .1 . according to Mr. Ramacliandran, can be arrived only at a timewhen trial by. a Court', M;., ti;.i i~ permi; ilile or pobl~: As k the instant case, . . admittedly, sch a 'trial \vas barred by Uniitation under Section. 122 of the H

A Act the above Rule could not be invoked. We find much substance in the above contention of Mr. R'amachandran.

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 B Section iz2 (as it then stood) \:!early 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 years prior to the issuance of the notice. !ndeed, 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 impractic'able, in our view C cannot or does not arise. 'Impracticability' is a concep~ different from 'impossibility' for while the latter is absolute, the former introduces at all events some degree of reason and involves some regad for practice.

According to Webster's Third New International Dictionary 'impracticable' means not practicable; incapable of being perfomied or /Jcc1)mplished by the D means employed or at command. 'Impracticable' presu1'1poses that the

 action is 'possible' but owing to certain practical. diffi(:ulties . or other reasons it is incapable of being performed. The sam:e princ'iple will equally apply to satisfy the test of 'inexpedient' as it means not e:dient; disad-

' ' vantageous in the circumstance'; inadvisable, impolitic. It must therefore be held that so long as an Officer can be legally tried by a Ccurt Martial the E concerned authorities may, on the ground that such a tria:I is not impracticable or inexpedient, invoke Rule 14(2). In other words, .'mce the period of limitation of such a trial is over 'the authorities cannot tai'<e action under Rule 14(2). While passing the impugned order the Division

1 Bench however did not at all consider, while interpreting Rule 14(2), the!. import of the words 'impracticable' or 'inexpedient' as appearing therein

1and proceeded on the basis that since Section 127 of the Act (since repdled) permitted trial even after a conviction or acquittal by a Court Martial, it necessarily meant that the Rule could be pressed into service even ;, i-te'r the period of limitation. It appears that in making the above observation ihe High Court did not notice that Section 127 relates to a trial by a 'crim\nal court' and

G 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. Si\ far as period

I of limitation of trials by Court Martial is concerned Section ;122 of the Act H is a compleie Code in itself for not only it provides in its s.ub-section (1)

MAJ. R. KRISHAN v. U.0.1. [M.K. MUKHERJEE, J.] 843

the period of limitatio!I for. such trial~ but specifies in sub-section (2). A thereof the offnces in respect of which the limitation clai.se would not apply. Since the terms of the above section is absolute and no provision h3.S been inade under the Act for extension of time - like Section 473 Criminal Procedure Code - it is obvious that any trial commenced after the ·

perid. of Jinritation will be patently-illegal. nch a prosimi or limitation ' B .

precnbed under the Act cannot be overndden or . cncumvented by an ··

adinistrative act, done in exercise of powers conferred under a Rule. Mr.

Ramachaii.drari was, therefore, fullyjustified in urging that power under Rllle 14 of the Army Rules could not be ~ercised In a manner which would . get over the bar of limitation laid down in the Act and ihai ifRufo 14 was fo b~ interpreted to give such power it wollldclearly be ultra res. We are C

theefore in complete agreement with the bservatlollS made by the Delhi Hlgh Court in M.C Dhingra's case (supra) that jn purported exercised of administrative power under Rule 14, in respect of allegations of misconduct· .triable byCourtMartial, the authorities cannot override the statutory bar

of sb, section (1) of Sectioh 122 ofthe Act for no administrative act or D , fiat' can diseard, detroy o; 'arinu1 .\ stattory provision. '

~ ~,:· , ·." ,, ; ., ' ~· Jl -' ·,.-· ll 1

.P.•

The other contention of Mr. Ramachandran was that the satisfaction .. 1 ' .. :· . . with regard to inexpediency or impracticability or a trial by Court Martial

mst .be only on a consideration of th~ reports of misconduct. According to Mr. Ramachandran if on a perusal of \he repor\s the author\ties found E that the nature of inisconduct or the context in which it had been com- .ffiitte.c\ were such that it w.S impracticable or inexpedient to hold the.Court

Martial, the procedure under Rule 14 might be resorted to. In otlier words, Mr. R.;,; achandrilli. submitted, the satisfaction reg.;, cling the inxpediency

ofimpraccability to hold a Court Martial musi.flo:from the natre ; u; d . the eouiext or the 'misconduct itselt' imd not iio~ any xtraneous factor F ;. whlch in the instant dse was that the Court M;., tiaJ. proceedings' ;.yould be

ti,;;~ barred. This contention of Mr. Ramchandran is also, in our view, indefensible. · ·

As noticed earlier, Rule 14(2) opens with the words "when after' Q considermg the reports on an officer's misconduct, ihe Central Govern- . met, 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 t_he reports on the officer's misconduct. That necessarily means, that the misconduct and. ff,.,

A other attending circumstances relating thereto have to be the sole basis for obtaining su_Fh a satisfaction.

The purport of the above Rule can be best un.derstood by way of an illustration. The Chief of Army Staff receives a report which reveals that an Army Officer has treacherously commu/}icated intelligence to the enemy B - an Offence. punishable uuder 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 C 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 on a satisfaction 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 D 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.