U.O.I.
& Ors Vs. Harjeet Singh Sandhu [2001] Insc 206 (11 April 2001)
Cji,
R.C. Lahoti & Brijesh Kumar R.C. Lahoti, J.
Appeal (civil) 2722 of 2001
L.I.T.J
Harjeet
Singh Sandhu, the respondent in S.L.P.(C) No.5155/1998 was a captain in the
Army. On the night intervening 27th & 28th March, 1978, the respondent along with three
other officers interrogated one Bhagwan Das, who was also a defence employee,
in connection with an incident of theft. During the course of interrogation the
respondent and his co-associates used third degree methods in orders to extract
a confession as a result whereof Bhagwan Das died.
A
General Court martial
(GCM, for short) was convened under Section 109 of Army Act, 1950 which tried
the respondent and the other officers. On 26.12.1978 the GCM awarded the
sentence of forfeiture of three years service for purpose of promotion and
severe reprimand to the respondent. The confirming authority formed an opinion
that the sentence passed on the respondent was very lenient and therefore vide
order dated 19.4.1979, in exercise of the powers conferred by Section 160 of
the Army Act sent the case back for revision. On 10.5.1979, the GCM, on
revision, enhanced the punishment inflicted on the respondent to forfeiture of
three years of service for the purpose of promotion and also for the purpose of
pay and pension. On 24.9.1979 the Chief of the Army Staff in exercise of the
power conferred by Section 165 annulled the GCM proceedings on the ground that
the proceedings were unjust. On 20.12.1979, a show cause notice was issued to
the respondent under Section 19 of the Act read with Rule 14 of the Army Rules,
1954 (hereinafter the Rules, for short) calling upon the respondent to show
cause why his services should not be terminated. Reply was filed by the
respondent defending himself. On 16.7.1982 a fresh show cause notice was issued
to the respondent requiring him to show cause why his service be not terminated
under Section 19 read with Rule 14. Both the notices dated 20.12.1979 and
16.7.1982 recorded on the part of the Chief of the Army Staff –
(i) a
satisfaction that the respondents retrial by a court martial consequent to the
annulment of the GCM proceedings was impracticable, and
(ii) formation
of opinion that the respondents further retention in the service was
undesirable.
The
latter notice also stated that the earlier notice was thereby cancelled though
the reason for such cancellation was not mentioned. The respondent filed a
reply dated 9.9.1982 in defence of himself. On 2.1.1984 the Chief of the Army
Staff passed an order dismissing the respondent from service. On 16.2.1984 the
respondent filed a civil writ petition before the High Court of Allahabad
laying challenge to the order of termination. The singular contention raised
before the High Court was that the incident, in which the respondent was
involved had taken place in the night intervening 27th & 28th March, 1978
and Court martial proceedings had become barred by time on 28th March, 1981
under Section 122 of the Act whereafter Section 19 of the Act was not available
to be invoked. The High Court of Allahabad in its impugned judgment, formed an
opinion that the decision of this Court squarely applies to the facts of this
case and therefore the exercise of power under Section 19 read with Rule 14 was
vitiated. The writ petition has been allowed and the impugned order of
termination dated 2.1.1984 has been quashed.
In
S.L.P.(C) No.3233/2000 the respondent Harminder Kumar was a Captain in the
Army. In the year 1979 the respondent was found blameworthy for discrepancies
in respect of stocks in Fuel Petroleum Depot, Leh between the period 10.3.1979
to 22.3.1979. Summary of evidence having been recorded, on 5.8.1981 a General
Court Martial was ordered to be convened on 18.8.1981. On 14.8.1981 the
respondent filed a civil writ petition under Article 32 of the Constitution of
India in this Court wherein, by an interim order, the proceedings in the court
martial were directed to be stayed. On 26.11.1982 the writ petition filed by
the respondent was dismissed, consequent whereupon the interim order of stay
also stood vacated. On 7.2.1983 the respondent was informed that General Court
Martial against the respondent was fixed to be convened on 28.2.1984. However,
on 28.2.1984 the Chief of the Army Staff in exercise of the power conferred by
Section 19 read with Rule 14 issued a notice to the respondent calling upon him
to show cause why his services be not terminated in view of the fact that the
court martial proceedings against the respondent were impracticable and the
Chief of the Army Staff was of the opinion that further retention of the rspondent
in the service was not desirable.
Immediately,
the respondent filed a writ petition in the High Court of Delhi submitting that
the general court martial proceedings having become barred by time against him
on account of lapse of three years from the date of the offence, the notice
issued to him was without jurisdiction.
Vide
order dated 8th September, 1998 the High Court has held, placing reliance on
the decision of this Court in that once the court martial proceedings have
become time-barred the Chief of the Army Staff could not have had recourse to
Section 19 of the Act read with Rule 14 of the Rules. Consequently, the writ
petition has been allowed and show cause notice dated 8th February, 1984 directed to be quashed.
The
Union of India has filed these petitions for special leave to appeal.
Delay
condoned in filing SLP(C) No.5155/1998.
Leave
granted in both the SLPs.
We
have heard Shri Altaf Ahmad, the learned Additional Solicitor General for the
appellant and Shri Prem Prasad Juneja, Ms. Indu Malhotra and Shri A. Mariarputham,
Advocates for the respondents. The principal plea raised on behalf of the appellant
and forcefully pressed by the learned Additional Solicitor General at the time
of hearing was that Major Radha Krishans case was not correctly decided and
therefore needs to be reconsidered by this Court for two reasons : firstly,
because Major Radha Krishans case is a decision rendered by two Judges-Bench
which does not take notice of the law laid down by this Court in Chief 412
which is three-Judges Bench decision; and secondly, the proposition laid down
therein is too wide a proposition wholly unsustainable in the light of the
express provisions contained in the Army Act and the Army Rules and the
underlying scheme of the Legislation.
We
would first set out the facts in brief and the ratio of the decisions rendered
by this Court in the case of Major Radha Krishan (supra) and Major Dharam Pal Kukrety
(supra) before dealing with other contentions raised by the learned counsel for
the parties because the major part of submissions made by the learned counsel
centre around the abovesaid two decisions.
To appreciate
the ratio of the abovesaid two cases it will be necessary to keep in view the
provisions contained in Sections 19 and 122 of the Army Act, 1950 and Rule 14
of Army Rules, 1954 which are extracted and reproduced hereunder :- Army Act,
1950
19. Termination
of service by Central Government. - 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.
122.
Period of limitation for trial. –
(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 commenced after the expiration of
a period of three years [and such period shall commence, -
(a) on
the date of the offence; or
(b)
where the commission of the offence was not known to the person aggrieved by
the offence or to the authority competent to initiate action, the first day on
which such offence comes to the knowledge of such person or authority,
whichever is earlier; or
(c) where
it is not known by whom the offence was committed, the first day on which the
identity of the offender is known to the person aggrieved by the offence or to
the authority competent to initiate action, whichever is earlier.
(2)
The provisions of sub-section (1) shall not apply to a trial for an offence of
desertion or fraudulent enrolment or for any of the offences mentioned in
section 37.
(3) In
the computation of the period of time mentioned in sub-section (1), any time
spent by such person as a prisoner of war, or in enemy territory, or 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
fraudulent enrolment shall be commenced if the person in question, not being an
officer, has subsequently to the commission of the offence, served continuously
in any exemplary manner for not less than three years with any portion of the
regular Army.
Army
Rules, 1954 [14. Termination of service by the Central Government on account of
misconduct. - (1) When it is proposed to terminate the service of an officer
under section 19 on account of misconduct, he shall be given an opportunity to
show cause in the manner specified in sub- rule (2) against such action -
Provided that this sub-rule shall not apply –
(a) where
the service is terminated on the ground of misconduct which has led to his
conviction by a criminal court; or
(b) where
the Central Government is satisfied that for reasons, to be recorded in
writing, it is not expedient or reasonably practicable to give to the officer
an opportunity of showing cause.
(2)
When after considering the reports on an officers misconduct, the Central
Government or the Chief of the Army Staff is satisfied that the trial of the
officer by a court-martial is inexpedient or 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 to him and he shall be called upon to submit in
writing, his explanation and defence:
Provided
that the Chief of the Army Staff may withhold from disclosure any such report
or portion thereof if, in his opinion, its disclosure is not in the interest of
the security of the State.
In the
event of the explanation of the officer being considered unsatisfactory by the
Chief of the Army Staff, or when so directed by the Central Government, the
case shall be submitted to the Central Government, with the officers defence
and the recommendation of the Chief of the Army Staff as to the termination of
the officers service in the manner specified in sub-rule (4).
(3)
Where, upon the conviction of an officer by a criminal court, the Central
Government or the Chief of the Army Staff considers that the conduct of the
officer which has led to his conviction renders his further retention in
service undesirable a certified copy of the judgment of the criminal court
convicting him shall be submitted to the Central Government with the
recommendation of the Chief of the Army Staff as to the termination of the
officers service in the manner specified in sub-rule (4).
[(4)
When submitting a case to the Central Government under the provisions of
sub-rule (2) or sub- rule (3), the Chief of the Army Staff shall make his
recommendation whether the officers service should be terminated, and if so,
whether the officer should be –
(a) dismissed
from service; or
(b) removed
from service; or
(c)
Compulsorily retired from the service.
(5)
The Central Government after considering the reports and the officers defence,
if any, or the judgment of the criminal court, as the case may be, and the
recommendation of the Chief of the Army Staff, may –
(a) dismiss
or remove the officer with or without pension or gratuity; or
(b) compulsorily
retire him from the service with pension and gratuity, if any, admissible to
him.
Other
provisions of the Act and the Rules, to the extent necessary, shall be adverted
to as and when required.
In Major
Radha Krishans case the officer had committed misconduct and the trial thereof
by Court martial had become time- barred under Section 122 of the Act whereafter,
on 10.9.1990, a notice was issued by the Chief of the Army Staff to the officer
which inter alia stated - and whereas the COAS is further satisfied that your
trial for the above misconduct is impracticable having become time- barred by
the time the court of inquiry was finalised and he is of the opinion that your
further retention in service is undesirable. This Court for the purpose of
finding out the meaning of impracticable, the term occurring in sub-rule (2) of
Rule 14, referred to dictionary meanings of impracticable, and inexpedient and
then concluded that 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 regard for practice. As the provision of
limitation prescribed under the Act prohibited a trial by court martial being held
on expiry of the period of limitation such a provision could not be overridden
by invoking Section 19 and thus achieving a purpose by an administrative act
which could not be achieved by holding a trial under a statutory provision.
Once a misconduct was rendered legally impossible and impermissible to be tried
on account of bar of limitation it could not be said that the trial of the
officer was impracticable and therefore resort could not be had to sub-Rule (2)
of Rule 14. Vide para 10, yet another reason assigned by this court is that the
satisfaction with regard to inexpediency or impracticability of a trial by
Court martial must be arrived at only on consideration of the reports of
misconduct for the purpose of resorting to Rule 14. The satisfaction regarding
the inexpediency or impracticability to hold a Court martial must flow from the
nature and the context of the misconduct itself and not from any other
extraneous factor such as that the Court martial proceedings had become
time-barred. This contention advanced on behalf of the officer was, in the view
of the court, indefensible. Vide paras 11 and 12, this court held that the
misconduct and other attending circumstances relating thereto have to be the
sole basis for obtaining a satisfaction within the meaning of Rule 14(2) and
dispensing with a trial on a satisfaction de hors the misconduct - like the bar
of limitation - will be wholly alien to rule 14(2).
Dharam
Pal Kukretys case was neither placed before nor considered by the learned
judges deciding Major Radha Krishans case.
Major Dharam
Pal Kukrety was a permanent commissioned officer of the Indian Army holding the
substantive rank of Captain and acting rank of Major. He was tried by a general
court martial on four charges referable to certain incidents which had taken
place on November 6 and 7, 1975. On March 13, 1976 the court martial announced its
finding (subject to confirmation) of not guilty of all the charges. The
confirming authority did not confirm the verdict and by order dated April 3, 1976 sent back the finding for revision.
The same general court martial re-assembled on April 14, 1976. Once again the
general court martial, adhering to its original view, announced the finding
that the respondent was not guilty of all the charges (subject to
confirmation). On May
25, 1976 the
confirming authority refused to confirm the finding and promulgated, as
required by Rule 71, the charges against the officer, the findings of the court
martial and the non-confirmation thereof.
Thereafter,
the Chief of the Army Staff exercising power under Rule 14 issued a show cause
notice dated November 12, 1976 which notice recorded inter alia the
satisfaction of the COAS that a fresh trial by a court martial for the said
offences was inexpedient, as also his opinion that the officers misconduct
rendered his further retention in the service undesirable. The officer filed a
civil writ petition in the High Court of Allahabad laying challenge to the
validity of the show cause notice. The contention of the officer was that there
was an initial option either to have the officer tried by a court martial or to
take action against him under Rule 14 and the option having been exercised to
try him by a court martial and the officer having been acquitted both at the
time of the original trial and on revision, it was not competent for the Chief
of the Army Staff to have recourse to Rule 14. The contention found favour with
the High Court. The High Court held that the officer having been in fact tried
by a court martial twice and a verdict of not guilty having been rendered twice
the impugned notice under Rule 14 was without jurisdiction.
In the
appeal preferred by Chief of the Army Staff before this Court two contentions
were raised on behalf of the officer : firstly, that it could not be said that
the trial of the officer by a court martial was inexpedient or impracticable as
in fact he had been tried by a court martial; and secondly, that on a true
construction of Rule 14 the Central Government or the Chief of the Army Staff
had an initial option to have the officer tried by a court martial or to take
action against him under Rule 14 and if the decision to have the officer tried
by court martial was taken then action under Rule 14 was not permissible in
case of finding of acquittal being rendered by the court martial.
Vide para
14, this court noticed decisions rendered by different High Courts of the
country throwing light on the issue before the Court. Allahabad High Court was
of the view that in spite of non-confirmation of the finding and sentence
passed by the court martial such finding and sentence did exist though they
could not be put into effect for want of confirmation and therefore a second
trial by court martial would be barred. Jammu & Kashmir High Court was of
the view that the Legislature could not have reasonably intended that an
officer convening a general court martial can go on dissolving such courts
martial and reconstituting them ad infinitum until he obtained a verdict or a
finding of his own liking. Such a decision would not only be against public
policy and violative of the rule of double jeopardy but would also reduce the
provisions of the Army Act to a mockery and give an appearance of mala fides.
Having
noticed the decisions of High Courts, this Court then concentrated on the
question whether in such a case trial by a court martial is inexpedient or
impracticable? Dictionary meaning of the term inexpedient was relied on. The
Court then summed up its conclusion as under :- In the present case, the Chief
of the Army Staff had, on the one hand, the finding of a general court- martial
which had not been confirmed and the Chief of the Army Staff was of the opinion
that the further retention of the respondent in the service was undesirable
and, on the other hand, there were the above three High Court decisions and the
point was not concluded by a definitive pronouncement of this Court. In such
circumstances, to order a fresh trial by a court-martial could certainly be
said to be both inexpedient and impracticable and the only expedient and
practicable course, therefore, open to the Chief of the Army Staff would be to
take action against the Respondent under Rule 14, which he did. The action of
the Chief of the Army Staff in issuing the impugned notice was, therefore, neither
without jurisdiction nor unwarranted in law.
The
decision of Allahabad High Court under appeal was reversed and the writ
petition filed by the respondent therein was directed to be dismissed.
We
would revert back to the above two decisions of this Court a little afterwards.
We now proceed to notice the legislative scheme underlying Section 19 of the
Act and Rule 14 of the Rules. Section 19 of the Act and Rule 14 of the Rules
are to be read together and as integral parts of one whole scheme. Section 191
of the Act empowers the Central Government generally to make rules for the
purpose of carrying into effect the provisions of this Act and without
prejudice to the generality of such power, specifically to make rules providing
for inter alia the removal, retirement, release or discharge from the service
of persons subject to the Army Act. Section 19 empowers the Central Government
to dismiss or remove from the service any person subject to this Act which
power is subject to:
(i) the
(other) provisions of this Act, and
(ii) the
rules and regulations made under the Act.
Under
Section 193, all rules made under the Act shall be published in the official
gazette and on such publication shall have effect as if enacted in this Act.
Under Section 193-A, such rules shall be laid before AIR 1961 SC 751 the
Constitution Bench has held, quoting from Maxwell on Interpretation of
Statutes, that rules made under a Statute must be treated for all purposes of
construction or obligation exactly as if they were in the Act and are to be of
the same effect as if contained in the Act, and are to be judicially noticed
for all purposes of construction and obligation; an action taken under the Act
or the rules made thereunder must confirm to the provisions of the Act and the
rules which have conferred upon the appropriate authority the power to take an
action. The Constitution Bench decision has been followed by this court holding
that a statutory rule, while ever subordinate to the parent statute, is,
otherwise, to be treated as part of the statute and as effective. [Also see
Peerless General AIR 1992 SC 1033, para 54.] Section 19 and Rule 14 so read
together and analysed, the following legal situation emerges :-
1) The
Central Government may dismiss, or remove from the service, any person subject
to the Army Act, 1950, on the ground of misconduct.
2) To
initiate an action under Section 19, the Central Government or the Chief of the
Army Staff after considering the reports on an officers misconduct ;
a) must
be satisfied that the trial of the officer by a Court martial is inexpedient or
impracticable,
b) must
be of the opinion that the further retention of the said officer in the service
is undesirable.
3.
Such satisfaction having been arrived at and such opinion having been formed,
as abovesaid, the officer proceeded against shall be given an opportunity to
show cause against the proposed action which opportunity shall include the
officer being informed together with all reports adverse to him to submit in
writing his explanation and defence. Any report on an officers misconduct or
portion thereof may be withheld from being disclosed to the officer concerned
if the Chief of the Army Staff is of the opinion that such disclosure is not in
the interest of the security of the State.
4) Opportunity to show cause in the manner as abovesaid
need not be given to an officer in the following two cases :-
a)
Where the misconduct forming the ground for termination of service is one which
has led to the officers conviction by a criminal court;
b)
Where the Central Government is satisfied that for reasons, to be recorded in
writing, it is not expedient or reasonably practicable to give to the officer
an opportunity of showing cause.
5) The
explanation of the officer shall be considered by the Chief of the Army Staff.
If the explanation is found satisfactory, further proceedings need not be
pursued. The explanation, if considered unsatisfactory by the Chief of the Army
Staff or when so directed by the Central Government, in either case, shall be submitted
to the Central Government with the officers defence and the recommendation of
the COAS as to the termination of the officers service i.e. whether the officer
should be
(a) dismissed,
or
(b) removed,
or
(c) compulsorily
retired, from the service.
6) The
Central Government shall after taking into consideration the reports (on the
officers misconduct) the officerss defence, if any, and the recommendation of
the COAS, shall take a decision which if unfavourable to the officer may be
(a) to
dismiss or remove the officer with or without pension or gratuity; or
(b) to
compulsorily retire him from service with pension and gratuity, if any,
admissible to him.
The
case of an officer whose service is proposed to be terminated on the ground of
misconduct which has led to his conviction by a criminal court is to be treated
differently.
He
need not be given an opportunity to show cause against the proposed
termination. A decision as to termination in one of the modes provided by
sub-rule (4) of Rule 14 can be taken by the Central Government on its own or on
the recommendation of the Chief of the Army Staff if he considers that the
conduct of the officer leading to his conviction renders his further retention
in service undesirable in which case his recommendation accompanied by a
certified copy of the judgment of the criminal court convicting him shall be
submitted to the Central Government which will take the decision in accordance
with sub-rule (5).
The
learned ASG submitted that the defence services under the law of the land are
treated as a class apart as can be spelled out from the different provisions of
the Constitution and the Army Act and other laws. As the defence of the country
is involved, in the very nature of the things, a cautious approach has to be
adopted while interpreting the several legal provisions, the security of the
State and welfare of the nation being supreme. He submitted that under the
scheme of the Legislation there is no warrant for holding that a decision to
take action under Section 19 read with Rule 14 or to convene a court martial
must be taken only in the first instance and before the time limited for
commencing court martial proceedings comes to an end. He further submitted that
power vesting in the Central Government and Chief of the Army Staff under
Section 19 of the Act can be exercised whether before or after convening and
holding trial by court martial and even after the expiry of the limitation
prescribed by Section 122 for commencement of the court martial. On the other
hand, the learned counsel appearing for the respondents (writ- petitioners
before the High Court) submitted that the scheme of the Army Act and the Rules
made thereunder provides for an officer subject to the Army Act being dealt
with either by a criminal court or by a court martial or by an appropriate
action under Section 19 of the Act and cannot be subjected to duality of the
proceedings, or to one of the three proceedings after the other one of the
three has been set in motion and accomplished. To be more specific, submitted
the learned counsel, once an officer has been subjected to court martial
proceedings or if such proceedings cannot be held or have proved to be abortive
as having become barred by time or impossible or impermissible then Section 19
cannot be invoked. In order to test the validity of such rival contentions
forcefully advanced before us we would examine the scheme of the Act and the
implications of the relevant provisions contained therein.
Army
defends the country and its frontiers. It is entrusted with the task of
protecting against foreign invasion and preserving the national independence.
The arduous nature of duties, the task they have to perform in emergent
situations and the unknown lands and unknown situations wherein they have to function
demand an exceptionally high standard of behaviour and discipline compared to
their counterparts in civil services. That is why the military people command
the respect of the masses.
Such
factors taken together demand the military services being treated as a class
apart and a different system of justice __ military justice __ being devised
for them.
Article
33 empowers the Parliament to restrict or abrogate fundamental rights in their
application to the members of the armed forces so as to ensure the proper
discharge of their duties and the maintenance of discipline among them.
Right
to file special leave to appeal before the Supreme Court and power of
superintendence vesting in the High Courts do not extend over judgment,
determination, sentence or order passed or made by any Court or Tribunal
dealing with armed forces. Members of the defence services hold office during
pleasure of the President under Article 310 but they are not entitled to the
protection offered by Article 311. The principles of interpretation of statutes
which apply to any other statute also apply to the legislation dealing with defence
services; however, the considerations of the security of the State and
enforcement of a high degree of discipline additionally intervene and have to
be assigned weightage while dealing with any expression needing to be defined
or any provision needing to be interpreted.
Section
19, with which we are concerned, is to be found placed in Chapter IV of the Act
entitled Conditions of Service. Chapter VI deals with offences. Sections 34 to
68, finding place in Chapter VI are very widely worded and embrace within their
realm practically every type of misconduct, its abetment and attempt as well,
which any person subject to the Act may commit. Section 69 defines civil
offences, the commission whereof shall be triable by a court martial. Section
70 defines civil offences not triable by court martial. Chapter VII deals with
punishments. Therein Section 71 provides as under:
71.
Punishments awardable by courts martial. __ Punishments may be inflicted in
respect of offences committed by persons subject to this Act and convicted by
courts martial, according to the scale following, that is to say, __
(a) death;
(b) transportation
for life or for any period not less than seven years;
(c) imprisonment,
either rigorous or simple, for any period not exceeding fourteen years;
(d) cashiering,
in the case of officers;
(e) dismissal
from the service;
(f)
reduction to the ranks or to a lower rank or grade or place in the list of
their rank, in the case of warrant officers; and reduction to the ranks or to a
lower rank or grade, in the case of non-commissioned officers:
Provided
that a warrant officer reduced to the ranks shall not be required to serve in
the ranks as a sepoy;
(g)
forfeiture of seniority of rank, in the case of officers, junior commissioned
officers, warrant officers and non- commissioned officers; and forfeiture of
all or any part of their service for the purpose of promotion, in the case of
any of them whose promotion depends upon length of service;
(h) forfeiture
of service for the purpose of increased pay, pension or any other prescribed
purpose;
(i)
severe reprimand or reprimand, in the case of officers, junior commissioned
officers, warrant officers and non- commissioned officers;
(j)
forfeiture of pay and allowances for a period not exceeding three months for an
offence committed on active service;
(k) forfeiture
in the case of a person sentenced to cashiering or dismissal from the service
of all arrears of pay and allowances and other public money due to him at the
time of such cashiering or dismissal;
(l) stoppage
of pay and allowances until any proved loss or damage occassioned by the
offence of which he is convicted is made good.
According
to Section 74, before an officer is awarded any of the punishments specified in
clauses (a) to (c) of Section 71, he shall be sentenced to be cashiered. Other
provisions in this chapter are not relevant for our purpose.
Under
Section 101, any person subject to this Act, who is charged with an offence,
may be taken into military custody. Chapter X deals with Courts-Martial.
Therein under Section 121, any person subject to this Act having been acquitted
or convicted of an offence by a court martial or a criminal court shall not be
liable to be tried again for the same offence. Section 122, provides period of
limitation for commencement of trial by court martial. Once the period
prescribed has expired a trial before a court martial cannot be commenced.
Under
Section 153 no finding or sentence of a court martial shall be valid unless
confirmed as provided by the Act. Section 158 gives power to confirming
authority to mitigate, remit or commute sentences. Section 165 empowers the
Central Government, the Chief of the Army Staff or any prescribed officer to
annul the proceedings of any court martial on the ground that they are illegal
or unjust.
Misconduct
as a ground for terminating the service by way of dismissal or removal, is not
to be found mentioned in Section 19 of the Act; it is to be read therein by
virtue of Rule 14. Misconduct is not defined either in the Act or in the Rules.
It is not necessary to make a search for the meaning, for it would suffice to
refer to State of Punjab & the term misconduct as used in Punjab Police
Manual came up for the consideration of this court. Having referred to the
meaning of misconduct and misconduct in office as defined in Blacks Law
Dictionary and Iyers Law Lexicon, this court held :- . . . . . . . . . the word
misconduct though not capable of precise definition, on reflection receives its
connotation from the context, the delinquency in its performance and its effect
on the discipline and the nature of the duty. It may involve moral turpitude,
it must be improper or wrong behaviour; unlawful behaviour, wilful in
character; forbidden act, a transgression of established and definite rule of
action or code of conduct but not mere error of judgment, carelessness or
negligence in performance of the duty; the act complained of bears forbidden quality
or character. Its ambit has to be construed with reference to the subject
matter and the context wherein the term occurs, regard being had to the scope
of the statute and the public purpose it seeks to serve. The police service is
a disciplined service and it requires to maintain strict discipline. Laxity in
this behalf erodes discipline in the service causing serious effect in the
maintenance of law and order.
In the
context in which the term misconduct has been used in Rule 14, it is to be
given a wider meaning and any wrongful act or any act of delinquency which may
or may not involve moral turpitude, would be misconduct, and certainly so, if
it is subversive of army discipline or high traditions of army and/or if it
renders the person unworthy of being retained in service. The language of sub-rule(2)
of Rule 14 employing the expression the reports on an officers misconduct uses
reports in plural and misconduct in singular. Here plural would include
singular and singular would include plural. A single report on an officers
misconduct may invite an action under Section 19 read with Rule 14 and there
may be cases where there may be more reports than one on a singular misconduct
or more misconducts than one in which case it will be the cumulative effect of
such reports on misconduct or misconducts, which may lead to the formation of
requisite satisfaction and opinion within the meaning of sub-rule (2) of Rule
14.
The
learned counsel for the respondents submitted that a court martial convened
under the Act is a high powered special tribunal vested with very wide
jurisdiction. It cannot appropriately be called either a criminal court merely
or a service tribunal simply. It is a combination of the two and much more than
that. A perusal of the provisions of Section 71 clearly indicates that court
martial is empowered to inflict such punishments which are otherwise inflicted
by a competent criminal court while there are punishments such as those
provided by clauses (d) to (l) thereof which belong to the realm of service
jurisprudence and can ordinarily be inflicted by way of penalty for a
misconduct which a person in service may be found to have committed. The
learned counsel went on to submit that the scheme of the Act and the Rules thus
shows that a person subject to the Act having committed a misconduct amounting
to an offence within the meaning of Chapter VI should ordinarily be subjected
to trial by a court martial. And if that has been done, then the power to act
under Section 19 is taken away. So also if the period of limitation for trial
by court martial is over, then also by necessary implication resort cannot be
had to Section 19.
We
find it the difficult to agree with the submission so made.
(1972)
2 SCJ 645, the gross misconduct alleged against the delinquent officer was of
having actively abetted in the attempt of brother officers daughter eloping
with a sepoy.
An
inquiry into the grave misconduct was made by Court of Inquiry. The Chief of
the Army Staff considered the conduct of the officer unbecoming of an officer.
He also formed an opinion that trial of the officer by a general court martial
was inexpedient and, therefore, he ordered an administrative action to be taken
under Rule 14 by removing the officer from service. The order of removal was
put in issue on the ground that the Army Act contained specific provision, viz.
Section
45, for punishment for unbecoming conduct and as Section 19 itself suggests
that power being subject to the provisions of this Act, Section 19 would be
subject to Section 45 and therefore the Central Government would have no power
to remove a person from the service in derogation of the provision of Section
45. The plea was repelled by this court holding that the power under Section 19
is an independent power. Though Section 45 provides that on conviction by court
martial an officer is liable to be cashiered or to suffer such less punishment
as mentioned in the Act, for removal from service under Section 19 read with
Rule 14, a court martial is not necessary. The court specifically held that the
power under Section 19 is an independent power and the two Sections 19 and 45
of the Act are, therefore, mutually exclusive.
It is
true that some of the punishments provided by Section 71 as awardable by court
martial are not necessarily punishments, in the sense of the term as ordinarily
known to criminal jurisprudence, but are penalties as known to service
jurisprudence. The fact remains that such penalties have been treated as
punishments awardable by court martial under Section 71 of the Army Act, 1950.
The power conferred by Section 19 on the Central Government and the power
conferred on court martial by Section 71 are clearly distinguishable from each
other. They are not alternatives to each other in the sense that the exercise
of one necessarily excludes the exercise of the other. The distinction may be
set out in a tabular form:- Termination (dismissal or removal) by Central
Government under Section 19 read with Rule 14 Termination of service as
punishment awarded by courts martial
1. Is
condition of service falling within the realm of service jurisprudence; penalty
maybe dismissal/removal or compulsory retirement.
Is
punishment awardable by court martial.; punishment can be of dismissal and/or
cashiering (cannot be removal or compulsory retirement).
2. No
enquiry is contemplated except affording opportunity to show cause as provided
by Rule 14.
Punishment
can be awarded only on a trial being held in accordance with the provisions of
the Act.
3.
There is no bar of limitation provided for exercising the power Courts martial
cannot inflict any punishment unless trial is commenced with in the period of
limitation provided by Section 122.
4. Any
person subject to Army Act dismissed or removed from the service by Central
Government is not previous convict.
Any
person subject to Army Act awarded a punishment under Section 71 is a person
convicted by court martial
5. Any
person proceeded against under Section 19 does not suffer any incarceration.
Any
person charged with an offence may be taken into military custody.
6.
Satisfaction and formation of opinion in Rule 14 may be based on a single
report of misconduct or more than one or series of such reports taken together.
Punishment
can be inflicted only on the misconduct forming subject matter of charge.
7.
Penalty is guided by formation of opinion on undesirability of officer for
future retention in the service.
Punishment
would be determined by gravity of proved misconduct amounting to offence.
It is
relevant to note that when an offence is triable by a criminal court and also
by a court martial, each having jurisdiction in respect of that offence, a
discretion is conferred by Section 125 on the officer commanding to decide
before which court the proceedings shall be instituted. The Parliament has
obviously made no such provision in the Act for the exercise of a choice
between proceeding under Section 19 or convening of a court martial. The
element of such option, coupled with the factors which would be determinative
of the exercise of option, is provided by Rule 14(2). When an officer, subject
to the Army Act, is alleged to have committed a misconduct, in view of Section
125 and Section 19 read with Rule 14, the following situation emerges. If the
alleged misconduct amounts to an offence including a civil offence, Section
125, vests discretion in the officer commanding the Army, Army Corpse Division
or independent Brigade in which the accused person is serving or such other
officer as may be prescribed, to decide before which court the proceedings
shall be instituted, i.e. before a court martial or a criminal court. If the
decision is to have the delinquent officer tried by a criminal court and if he
is acquitted by the criminal court, then that is the end of the matter. The
pronouncement of judicial verdict would thereafter exclude any independent
disciplinary action being taken against the delinquent officer on the same
facts which constituted the misconduct amounting to an offence for which he was
charged before the criminal court. In the event of his being convicted if some
further disciplinary action is still proposed to be taken, then it is the
conduct of the officer leading to his conviction (as found by the criminal
court) which is capable of being taken into consideration by the Central Government
or the COAS under sub-rules (3), (4) and (5) of Rule 14 for the purpose of such
action. The facts forming the conduct of the officer leading to his conviction
shall alone form basis of the formation of opinion as to whether his further
retention in service is undesirable whereupon he may be dismissed, removed or
compulsorily retired from the service in the manner prescribed by the said
sub-rules. But, on the other hand, if the initial decision was to have the
delinquent officer tried not by a criminal court but by a court-martial, then
under sub-rule (2) of Rule 14 it is for the Central Government or the COAS to
arrive at a satisfaction whether the trial of the officer by a court-martial is
expedient and practicable whereupon the court-martial shall be convened. The
Central Government or the COAS may arrive at a satisfaction that it is
inexpedient or impracticable to have the officer tried by court-martial then
the court-martial may not be convened and additionally, subject to formation of
the opinion as to undesirability of the officer for further retention in the
service, the power under Section 19 read with Rule 14 may be exercised. Such a
decision to act under Section 19 read with Rule 14 may be taken either before
convening the court-martial or even after it has been convened and commenced
subject to satisfaction as to the trial by a court-martial becoming inexpedient
or impracticable at which stage the Central Government or the COAS may revert
back to Section 19 read with Rule 14. It is not that a decision as to
inexpediency or impracticability of trial by court martial can be taken only
once and that too at the initial stage only and once taken cannot be changed in
spite of a change in fact situation and prevailing circumstances.
Section
127 was to be found in the Army Act as originally enacted which provided that a
person convicted or acquitted by a court martial could be tried again by a
criminal court for the same offence or on the same facts subject to previous
sanction of the Central Government. The provision was deleted by Act No.37 of
1992. This deletion is suggestive of the legislative intent to confer finality
to the finding and sentence of court martial subject to their being confirmed
and not annulled. Power to confirm finding and sentence of court martial and
the power to annul the proceedings on the ground of being illegal or unjust,
both provisions read together indicate that the finding and sentence of court
martial if legal and just have to be ordinarily confirmed but they may be annulled
on the ground of illegality or unjustness. An obligation is cast on the
confirming authority to examine the legality and justness of the proceedings
before confirming them. Questions of correctness, legality and propriety of the
order passed by any court martial and the regularity of any proceedings to
which the order of court martial relates can be raised by way of petition under
Section 164. Once the finding and the sentence, if any, have been confirmed,
the court martial being a special tribunal dispensing military justice, it
would not be permissible to exercise additionally the power conferred by
Section 19 read with Rule 14 and to inflict a penalty there under if the court
martial has not chosen to inflict the same by way of punishment under Section
71. To permit such a course would be violative of the principle of double
jeopardy and would also be subversive of the efficacy of the court martial
proceedings, finding and sentence. So long as a final verdict of guilty or not
guilty, pronounced by court material and confirmed by competent authority so as
to be effective is not available, the power to proceed under Section 19 read
with Rule 14(2) exists and remains available to be exercised.
The
learned counsel for the respondents submitted that the term impracticable has
been used in Rule 14 in contradistinction with impossible or impermissible and
therefore if a trial by court martial though practicable but has been rendered
impermissible because of a bar created by the rule of limitation or rendered
impossible because of a fact situation then resort cannot be had to Section 19
read with sub- rule (2) of Rule 14 by treating the impossibility or
impermissibility as impracticability. The learned counsel for the respondents
went on to submit that even Dharam Pal Kukretys case required reconsideration
as in their submission it does not lay down the correct law. It was urged that
to the extent Dharam Pal Kukretys case treats impermissibility as
impracticability it is a mistaken view. On the other hand, the learned ASG
submitted that Dharam Pal Kukretys case has correctly laid down the law and
mistake has been committed by this court in deciding Radha Krishans case by
over looking Dharam Pal Kukretys case and therefore Radha Krishans case must be
held to have been decided per incuriam.
Let us
first examine what is the meaning of term impracticable in sub-rule(2) of Rule
14? In Major Radha Krishans case this court has held, ..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 regard
for practice. According to Websters 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 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. It must therefore
be held that so long as an offer can be legally tried by a court-martial the
authorities concerned may, on the ground that such a trial 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 take action under
Rule 14(2).
The
above passage shows that the learned Judges went by the dictionary meaning of
the term impracticable, placed the term by placing it in juxta position with
impossibility and assigned it a narrow meaning. With respect to the learned
judges deciding Major Radha Krishans case, we find ourselves not persuaded to
assign such a narrow meaning to the term. Impracticable is not defined either
in the Act or in the Rules. In such a situation, to quote from Principles of Statutory
Interpretation (Chief Justice G.P. Singh, Seventh Edition, 1999, pp. 258-259),
when a word is not defined in the Act itself, it is permissible to refer to
dictionaries to find out the general sense in which that word is understood in
common parlance.
However,
in selecting one out of the various meanings of a word, regard must always be
had to the context as it is a fundamental rule that the meanings of words and
expressions used in an Act must take their colour from the context in which
they appear. Therefore, when the context makes the meaning of a word quite
clear, it becomes unnecessary to search for and select a particular meaning out
of the diverse meanings a word is capable of, according to lexicographers. As
stated by KRISHNA IYER, J.
Dictionaries
are not dictators of statutory construction where the benignant mood of a law,
and more emphatically, the definition clause furnish a different denotation. In
the words of JEEVAN REDDY, J.: A statute cannot always be construed with the
dictionary in one hand and the statute in the other. Regard must also be had to
the scheme, context and to the legislative history. JUDGE LEARNED HAND
cautioned not to make a fortress out of the dictionary but to pay more
attention to the sympathetic and imaginative discovery of the purpose or object
of the statute as a guide to its meaning.
In
Words and Phrases (Permanent Edition, Vol.20, page 460- 461) it is stated that
the term impossible may sometimes be synonymous with impracticable;
impracticable
means not practicable, incapable of being performed or accomplished by the
means employed or at command; impracticable is defined as incapable of being
effected from lack of adequate means, impossible of performance, not feasible;
impracticable means impossible or unreasonably difficult of performance, and is
a much stronger term than expedient. In Law Lexicon (P. Ramanatha Iyer, Second
Edition, page 889) one of the meanings assigned to impracticable is not
possible or not feasible; at any rate it means something very much more than
not reasonably practicable. In The New Oxford Dictionary of English (1998, at
p.918), impracticable (of a course of action) is defined to mean impossible in practise
to do or carry out. The same dictionary states the usage of the term in these
words __ Although there is considerable overlap, impracticable and impractical
are not used in exactly the same way. Impracticable means impossible to carry
out and is normally used of a specific procedure or course of action, .
Impractical, on the other hand, tends to be used in more general senses, often
to mean simply unrealistic or not sensible.
We may
with advantage refer to certain observations made by the Constitution Bench
(majority view) in Union of India 311(2), proviso (b) contemplates a government
servant being dismissed or removed or reduced in rank, dispensing with an
enquiry, if it is not reasonably practicable to hold such enquiry. The
Constitution Bench dealt with meaning of the expression reasonably practicable
and the scope of the provision vide para 128 to 138 of its judgment. The
Constitution Bench pertinently noted that the words used are not reasonably
practicable and not not practicable nor impracticable (as is the term used in
sub-rule(2) of Rule 14 of the Army Rules). Thus, the decision in Tulsi Ram Patels
case may not ipso facto throw light on the issue before us but some of the
observations made by the Constitution Bench can usefully be referred to. A few
illustrative cases mentioned by the Constitution Bench, wherein it may be not
reasonably practicable to hold an enquiry, are:-
(i) a
situation which is of the creation of the concerned government servant himself
or of himself acting in concert with others or his associates;
(ii)
though, the government servant himself is not a party to bringing about of a
situation yet the exigencies of a situation may require that prompt action
should be taken and not taking prompt action may result in the trouble
spreading and the situation worsening and at times becoming uncontrollable and
necessary concomitance of such an action resulting from a situation which is
not of the creation of the authorities.
The
Constitution Bench has further held that disciplinary enquiry is not expected
to be dispensed with lightly or arbitrarily or out of ulterior motive or merely
to avoid the holding of an enquiry or because the departments case against the
government servant is weak and must fail. It is not necessary that a situation
which makes the holding of an enquiry not reasonably practicable should exist
before the disciplinary enquiry is initiated against the government servant;
such a situation can also come into existence subsequently during the course of
an enquiry.
Reasonable
practicability of holding an enquiry is a matter of assessment to be made by
the disciplinary authority. The satisfaction of the authority is not immune
from judicial review on well settled parameters of judicial review of
administrative decisions. However, if on the satisfaction reached by the
authority two views are possible, the court will decline to interfere.
As the
term used in sub-rule (2) of Rule 14 is impracticable and not not reasonably
practicable, there is more an element of subjectivity sought to be introduced
by this provision in the process of arriving at the satisfaction, obviously
because the rule is dealing with the satisfaction arrived at by the Central
Government or the Chief of the Army Staff, in the matter of disciplinary action
on account of misconduct committed by an officer of Army which decision would
have been arrived at by taking into consideration the then prevailing fact
situation warranting such decision after considering the reports on officers
misconduct.
The
learned Additional Solicitor General cited a few examples wherein the trial by
court martial may be rendered impracticable, to wit:-
i) a
misconduct amounting to an offence having been rendered not triable by court
martial by expiration of the period of limitation prescribed by Section 122;
ii) a
court martial having been dissolved after its commencement on account of the
number of officers required by the Act to validly constitute a court martial
being reduced below the minimum or any other exigency contemplated by Section
117 occurring and the court martial cannot be convened to commence afresh on account
of bar of limitation under Section 122 having come into play;
iii)
The Central Government, the Chief of the Army Staff or any prescribed officer
having annulled the proceedings of any court martial on the ground that they
are illegal or unjust within the meaning of Section 165 of the Act and by that
time the bar of limitation under Section 122 having come into play;
iv)
Any finding or sentence of a court martial requiring confirmation having been
ordered to be revised by order of the confirming authority but in spite of such
revision having not been confirmed once again and a subsequent revision of
finding or sentence being not contemplated by the provisions of the Act; rather
a revision once only having been provided by Section 160;
v) A
person subject to the provisions of Army Act having secured a stay order from a
court of law on commencement of court martial and by the time the stay order is
vacated by the court of law the bar of limitation provided by Section 122
coming into play.
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 ASG. 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 the 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 abstention. 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 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 or more old 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 into 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 malafide exercise of power.
In
illustration (ii), the court martial has stood dissolved for fortuitous
circumstance for which no one is to be blamed __ neither COAS 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.
In
illustrations (iii) and (iv) also, in our opinion, the exercise of power under
Section 19 read with Rule 14 cannot be excluded. The finding and sentence of
the court martial are ineffective unless confirmed by the confirming authority.
The Act does not contemplate that the finding and sentence of a court martial
must necessarily be confirmed merely because they have been returned for the
second time. Section 165 vests power in the Central Government, the COAS and
any prescribed officer, as the case may be, to annul the proceedings of any
court martial if the same are found to be illegal or unjust. The delinquent
officer cannot be allowed to escape the consequences of his misconduct solely
because court martial proceedings have been adjudged illegal or unjust for the
second time. The power under Section 19 read with Rule 14 shall be available to
be exercised in such a case though in an individual case the exercise of power
may be vitiated as an abuse of power.
The
option to have a delinquent officer being tried by court martial having been so
exercised and finding as to guilt and sentence having been returned for or
against the delinquent officer by the court martial for the second time, on just
and legal trial, ordinarily such finding and sentence should be acceptable so
as to be confirmed. Power to annul the proceedings cannot be exercised
repeatedly on the sole ground that the finding or the sentence does not meet
the expectation of the confirming authority. Refusal to confirm is a power to
be exercised, like all other powers to take administrative decision, reasonably
and fairly and not by whim, caprice or obstinacy. Exercising power under
Section 19 read with Rule 14 consequent upon court martial proceedings being
annulled for the second time because of having been found to be illegal or
unjust, the exercise would not suffer from lack of jurisdiction though it may
be vitiated on the ground of inexpediency within the meaning of Rule 14(2) or
on the ground of abuse of power or colourable exercise of power in a given
case.
In
illustration (v), the ball will be in the court of the delinquent officer. Once
a stay order has been vacated, in spite of the expiry of limitation for
commencement of court martial proceedings under Section 122 of the Act, the
option to have the delinquent tried by a court martial or to invoke Section 19
read with Rule 14, depending on the facts and circumstances of an individual
case, would still be available to the Central Government or the COAS. In Union
(1996) 4 SCC 127, this court has invoked applicability of the maxim nullus commodum
capere potest de injuria sua propria __ no man can take advantage of his own
wrong __ to hold that the delinquent officer having himself created a situation
withholding commencement of trial, he would be estopped from pleading the bar
of limitation and the trial commenced on vacating of the judicial order of
restraint on court martial shall be a valid trial. The learned Additional
Solicitor General pointed out that although in the category of cases
illustrated by (v) above in case of an offender who ceases to be subject to the
Act, the Parliament has by Act No.37 of 1992 amended sub-section (2) of Section
123 so as to exclude the time during which the institution of the proceedings
in respect of the offence has been stayed by injunction or order from computing
the period of limitation but a similar provision is not made in respect of the
period of limitation for trial by court martial of any person subject to the
Act, as the respondents herein are.
This
deliberate omission by the Parliament to provide for exclusion from calculating
period of limitation in Section 122 on the lines of the provision for exclusion
in Section 123 lends strength to his submission that in as much as a person
subject to the Act would be amenable to Section 19 of the Act even after the
expiry of the period of limitation for trial, provision for extension in period
of limitation under Section 122 was unnecessary. If the expiry of the period of
limitation for commencement of court martial was to be given effect to, the
consequence to follow would be that the person would not be liable to be tried
by a court martial and hence would also not be liable to be inflicted with a
wide variety of punishments awardable by court martial under Section 71;
nevertheless he would be liable to be dismissed or removed from service under
Section 19, though that action shall be capable of being taken subject to
formation of opinion as to the undesirability of person for further retention
in service. We find merit in the submission of the learned ASG.
Having
thus explained the law and clarified the same by providing resolutions to the
several illustrative problems posed by the learned ASG 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 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.
Exercise
of power under Section 19 read with Rule 14 is open to judicial review on well
settled parameters of administrative law governing judicial review of administrative
action such as when the exercise of power is shown to have been vitiated by malafides
or is found to be based wholly on extraneous and/or irrelevant grounds or is
found to be a clear case of colourable exercise of/or abuse of power or what is
sometimes called fraud on power, i.e. where the power is exercised for
achieving an oblique end.
The
truth or correctness or the adequacy of the material available before the
authority exercising the power cannot be revalued or weighed by the court while
exercising power of judicial review. Even if some of the material, on which the
action is taken is found to be irrelevant, the court would still not interfere
so long as there is some relevant material available on which the action can be
sustained.
The
court would presume the validity of the exercise of power but shall not
hesitate to interfere if the invalidity or unconstitutionality is clearly
demonstrated. If two views are possible, the court shall not interfere by
substituting its own satisfaction or opinion for the satisfaction or opinion of
the authority exercising the power.
We are
also of the opinion that Major Radha Krishans case 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 submission of the learned Additional Solicitor
General that the case of Dharam Pal Kukrety being a Three- Judges Bench
decision of this court, should have been placed before the Two-Judges Bench
which heard and decided Major Radha Krishans case.
Reverting
back to the two cases under appeal before us, we are of the opinion that the
High Court was not right in allowing the two writ petitions filed by Harjeet
Singh Sandhu and Harminder Kumar, respectively, by placing reliance on the
decision of this court in Major Radha Krishans case and holding that the
exercise of power under Section 19 read with Rule 14 by the COAS was vitiated
solely on account of the bar of limitation created by Section 122 of the Act.
Both the judgments of the High Court, which are under appeal, are accordingly
set aside and the writ petitions filed by the two respondents are directed to
be dismissed. However, consistently with the observation made by this court
vide para 18 of Major Dharam Pal Kukretys case, we would like to impress upon
the Chief of the Army Staff and the Central Government, as the case may be,
that the incidents leading to action against the two respondents are referable
to late 70s. By this time a period of more than 20 years has elapsed in
between. Before any decision to initiate disciplinary action against any of the
two respondents is taken, the conduct and behaviour of the respondents concerned
during the intervening period shall also be taken into consideration while
deciding upon the desirability of proceeding further in the matter at this
belated stage, and keeping in view, of course, the requirement of military
discipline and the high traditions of the Indian Army. No order as to the
costs.
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