TMI Blog1996 (3) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the Chief of the Army Staff calling upon him to show cause why his services should not be terminated under Section 19 of the Army Act, 1950 ('Act' for short) read 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 in-charge 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 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 furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quencies of others. As regards the applicability of Section 19 of the Act and the Rule 14 of the Rules the learned Judge concurred with the submissions of the appellant relying principally upon the Division Bench judgment of the Delhi High Court in Lt. Col. (T.S) M.C. Dhingra v. Union of India and Anr. (1980) 2 Delhi Law 109. 5. In appeal preferred by the respondent - Union of India a Division 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(supra) was not correct and that proceedings under Section 19 of the Act read with Rule 14 of the Rules could be taken even after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment shall be commenced if the person in question, not being an officer, has subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the regular Army. Rule 14 of the Rules, so far as it is relevant for our present purposes, reads as follows : 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) when the service is terminated on the ground of conduct which had led ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me the impugned notice was sent, no trial of the appellant by Court Martial could be held for Sub-section (1) of Section 122 (as it then stood) clearly 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. Indeed, 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 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 degre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 'criminal court' and not 'Court Martial'...and speaks of a stage after the trial by the latter is over. 9. The matter can be viewed from another angle also. So far as period of limitation of trials by Court Martial is concerned Section 122 of the Act is a complete Code in itself for not only it provides in its Sub-section (1) the period of limitation for such trials but specifies in Sub-section (2) thereof the offences in respect of which the limitation clause would not apply. Since the terms of the above section is absolute and no provision has been made under the Act for extension of time like Section 473 Criminal Procedure Code - it is obvious that any trial commenced after the period of limitation will be patently i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or impracticability to hold a Court Martial must flow from the nature and the context or the misconduct itself and not from any extraneous factor which in the instant case was that the Court Martial proceedings would be time barred. This contention of Mr. Ramchandran is also, in our view, indefensible. 11. As noticed earlier, Rule 14(2) opens with the words when after considering the reports on an officer's misconduct, the Central Government, 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 the reports on the officer's misconduct. That necessarily means, that the misconduct and other atte ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
