Union of India & ANR Vs. V.N. Saxena  INSC 556 (1
DR. ARIJIT PASAYAT & P. SATHASIVAM CIVIL APPEAL NO. 2764 OF 2007 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 dated
13.11.1990 whereby his services were terminated by orders of the Chief of Army
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
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. Harjeet Singh Sandhu [2001(5) SCC 593].
4. Learned counsel for the respondent submitted that the decision of the
High Court was not based only on Major Radha Krishan's case (supra) but on
5. The High Court allowed the writ petition with the following conclusions:
"In Major Radha Krishan v. Union of India & Ors. (AIR 1996 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 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 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 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 Sandhu's case (supra) the scope and ambit of the Army
Act, 1950 (in short the 'Act') and Rule 40 of the Army Rules, 1954 (in short
the 'Rules') inter alia fell per consideration. This court also referred to earlier decision in Chief of Army Staff v. Major
Dharam Pal Kukrety [1985(2) SCC 412].
7. In Harjeet Singh Sandhu's case (supra) it was inter alia observed as
37. On the meaning which we are placing on the term
"impracticable" as occurring in Rule 14(2) we proceed to provide
resolutions to the several problems posed by the illustrations given by the
learned Additional Solicitor- General. According to us:
In Illustration (i) the expiry of the period of limitation prescribed by
Section 122 renders the trial by Court Martial "impracticable" on the
wider meaning of the term. There is yet another reason to take this view.
Section 122 prescribes a period of limitation for the commencement of
court-martial proceedings but Parliament has chosen not to provide any bar of
limitation on exercise of power conferred by Section 19. We cannot, by an
interpretative process, read the bar of limitation provided by Section 122 into
Section 19 of the Act in spite of a clear and deliberate legislative
However, we have to caution that in such a case, though power under Section
19 read with Rule 14 may be exercised but the question may still be who has
been responsible for the delay? The period prescribed by Section 122 may itself
be taken laying down a guideline for determining the culpability of delay. In
spite of power under Section 19 read with Rule 14 having become available to be
exercised on account of a trial by a Court Martial having been rendered
impracticable on account of bar of limitation created by Section 122, other
considerations would assume relevance, such as whether the facts or set of
facts constituting misconduct being three years old or more have ceased to be
relevant for exercising the power under Section 19 read with Rule 14. If there
was inaction on the part of the authorities resulting in delay and attracting
bar of limitation under Section 122 can it be said that the authorities are
taking advantage of their own inaction or default? If the answer be yes, such
belated decision to invoke Section 19 may stand vitiated, not for any lack of
jurisdiction but for colourable or mala fide exercise of power.
38. In Illustration (ii), the Court Martial has stood dissolved for
fortuitous circumstance for which no one is to be blamed neither the Chief of
the Army Staff nor the delinquent officer. The delinquent officer, howsoever
grave his misconduct amounting to offence may have been, would go scot-free. It
would be fastidious to hold that bar of limitation under Section 122 would also
exclude the exercise of power under Section 19 read with Rule 14.
41. Having thus explained the law and clarified the same by providing
resolutions to the several illustrative problems posed by the learned
Additional Solicitor-General for the consideration of this Court (which are
illustrative and not exhaustive), we are of the opinion that the expiry of
period of limitation under Section 122 of the Act does not ipso facto take away
the exercise of power under Section 19 read with Rule 14. The power is
available to be exercised though in the facts and circumstances of an
individual case, it may be inexpedient to exercise such power or the exercise
of such power may stand vitiated if it is shown to have been exercised in a
manner which may be called colourable exercise of power or an abuse of power,
what at times is also termed in administrative law as fraud on power. A
misconduct committed a number of years before, which was not promptly and
within the prescribed period of limitation subjected to trial by a Court
Martial, and also by reference to which the power under Section 19 was not
promptly exercised may cease to be relevant by long lapse of time.
A subsequent misconduct though less serious may aggravate the gravity of an
earlier misconduct and provide need for exercise of power under Section 19.
That would all depend on the facts and circumstances of an individual case. No
hard-and-fast rule can be laid down in that behalf. A broad proposition that
power under Section 19 read with Rule 14 cannot be exercised solely on the
ground of court-martial proceedings having not commenced within the period of
limitation prescribed by Section 122 of the Act, cannot be accepted. In the
scheme of the Act and the purpose sought to be achieved by Section 19 read with
Rule 14, there is no reason to place a narrow construction on the term
"impracticable" and therefore on availability or happening of such
events as render trial by Court Martial impermissible or legally impossible or
not practicable, the situation would be covered by the expression the trial by
Court Martial having become "impracticable".
43. We are also of the opinion that Major Radha Krishan case (supra) lays
down propositions too broad to be acceptable to the extent it holds that once
the period of limitation for trial by Court Martial is over, the authorities
cannot take action under Rule 14(2). We also do not agree with the proposition
that for the purpose of Rule 14(2), impracticability is a concept different
from impossibility (or impermissibility, for that matter). The view of the
Court in that case should be treated as confined to the facts and circumstances
of that case alone. We agree with the submission of the learned Additional
Solicitor-General that the case of Dharam Pal Kukrety's case (supra) being a
three-Judge Bench decision of this Court, should have been placed before the
two-Judge Bench which heard and decided Major Radha Krishan case (supra).
8. Since the foundation of the impugned judgment of the High Court is Major
Radha Krishnan's case (supra), we therefore, set aside the impugned order of
the High Court and remit the matter to it for a fresh consideration keeping in
view the position in law as delineated in Harjeet Singh Sandhu's case (supra).
Since the matter is pending long we request the High Court to dispose of the
Writ Petition as early as practicable preferably by the end of September, 2008.
9. The appeal is allowed to the aforesaid extent. No costs.