TMI Blog2001 (4) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs 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 Major Radha Krishan Vs. Union of India (1996) 3 SCC 507, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived 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, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments 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 prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cks 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 delinqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Anr. Vs. Tulsi Ram Patel, (1985) 3 SCC 398. Article 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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