Major Radha Krishan v. Union of India and Ors.

Judgment

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 Army Staff calling upon him to show cause .why his services should not be MAJ. R. KRISHANv. U.0.1. [M.K. MUKHERJEE;

J.] 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 le~ned 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 prescrib~d und~r Section 122 of the Act for holding his trial by a Co~t Martial -~as !orig o~er.

Besides, it was contended that .• ihe satisfaction of the authorities that it Was irnpractl~ble to hold th~ trial ·>was n~t 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~ t~e \Vr;t petition, ·quashed the order . Wider Challenge aiid directed th:if the appellant be reinstated fu se~ce ·· with all'.coiisequ6ntial benefits. In ·~sing' the abo~e 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 14- of 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 this appeal. · To appreciate the contentions raised by Mr. Ramachandran in support of the appeal it will be appropriate to first refer to the relevant provisions of the Act and the Rules. Section 19 of the Act reads as under:

"Subject to the provisions of this Act and the rules and regulations made thereunder the Central Government may dismiss or remove from the service, any person subject to this Act." The other section of the Act which need reproduction is Section 122 which, at the material time, stood as under : "(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 person in question, not being an officer, has' subsequently to the t MAJ: R. KRISHANv. U.0.1. (M.K. MUKHERJEE, 1.) commission of the offence, s~~ed ~o~tinuously 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 : · · 'Te~inination of service by the Central Government on acc<iunt of misoonduct.~ (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 caiise in the manner specified in . su~Rule (2) against such action : . Provided that this su~rule 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} wh~re ~~e Cent;a1 ·ao~e'i:~inedt is satisfied thatfor reascrr.s, to D be. reeorded in \Vriting,'it iS riot expedie'llfor r~a~onably 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'tall~d'upon tci sllbmii, inwriting, the.· · ·· :- explanati~:m: · ( einp~a.SiS s::ppiied) . xxx- . xxx xxx . ' •J ~t-. i~~~::ha~~an; flrst conte~~~d ~hat one of the ~equisites to .invoke the summary proeedure .enVisag~dmider Rule 14(2) tO terminate the services of an officer by the Cenirai Gov~rriinent in e~ercise of its G powers under S~ction 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, . according to Mr. Ramacliandran, can be arrived ·only at a time·when trial by. a Court', M;.,ti;.i i~ permi;~ilile ~ or po~bl~: As k the instant case, . . admittedly, s~ch a 'trial \vas barred by Uniitation under Section. 122 of the H .842 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 rega~d 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; disadvantageous in the circumstance'; inadvisable, impolitic. It must therefore be held that so long as an Officer can be legally tried by a Cc~urt 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 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 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.] the period of limitatio!I for. such trial~ but specifies in sub-section (2).

A· thereof the off~nces 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 · peri~d. of Jinritation will be patently-illegal. ~nch a pro~simi or limitation ' B . pre~cnbed under the Act cannot be overndden or . cncumvented by an ·· ad~inistrative act, done in exercise of powers conferre·d 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 the~efore 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 s~b,section (1) of Sectioh 122 ofthe Act for no administrative act or D , fiat' can diseard, de~troy o; 'arinu1 .\ stat~tory 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 m~st .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 in~xpediency ofimprac~cability to hold a Court Martial musi.flo:from the nat~re ;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- . me~t, 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.