# it. UNION OF INDIA AND ORS v. HARJEET SINGH SANDHU

- **Citation:** [2001] 2 S.C.R. 1127
- **Court:** Supreme Court of India
- **Decided:** 2001-04-11
- **Bench:** Dr. A.S. Anand, R.C. Lahoti, Brijesh Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/it-union-of-india-and-ors-v-harjeet-singh-sandhu-17803
- **Pages:** 38

## Headnote

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Anny Rules, 1954 : Rule 14.
Officer-Tennination of sen•ice of-By Central Government-Trial by
court-martial-Inexpediency or impracticability of-Held: Services of an ofc
fleer may be tenninated untkr S. 19 of the Anny Act read witlz R. 14 either
before convening the court-martial or after it has been convened and commenced provitkd trial by court-matrial is inexpedient or impractical.
Army Act, 1950 :
Sections 19 and 122-Trial by court-martial-Period of limitationD
Expiry of-Power under S. 19 read with R. 14-Held: Expiry of period of
limitation for trial by court-martial does not take away the power under S. 19
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read with R. 14-But if the delay is due to inaction on the part of the authorities,
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then action under S. 19 may be vitiated, not for any lack of jurisdiction but for
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colourable or mala fid£ exercise of power.
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Section 165-Annulment of court-martial proceedings-Power under S.
19 read with R. 14-Exertise of-Effect on-Held : The delinquent officer
cannot be allowed to escape the consequences of his misconduct on account of
annulment of the proceedings-Hence, exercise of power under S. 19 read with
R. 14 does not suffer from lack of jurisdiction.
F
Section 153-Finding and sentence of court-martial-Power to confirm-Principles-Held : Finding and sentence, if legal and just, have to be
orrlinan"ly confirmed-But they may be annulled on grounds of illegality or
unjustness-But once the finding and sentence are confirmed power under S.
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19 read with R.14 cannot be exercised
Section 125-Criminal court and court-martial-Choice between-Held:
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discretion to choose is vested in the prescribed military authorities-But once
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the delinquent officer is acquitted by criminal court no further action for
misconduct on the same facts can be taken untkr S. 19 read with R. 14.
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[2001] 2 S.C.R.
Section 19 read with Rule 14-Power under-Exercise of-Judicial
review of-Held : Is open to judicial review on grounds of mala fides or
consideration of extraneous and/or irrelevant grounds or found to be a clear
case of colourable exercise of/or abuse of power-However, correctness or
adequacy of material cannot be revalued or weighed by the court-If two views
are possible, court will not substitute its own view-Administrative I.aw.
Termination of service-Under S. 71 and S. 19 read with R. 14-Distinction between-Explained.
Interpretation of Statutes :
Defence Services-Legislation dealing with-Principles of interpretation-Held : Same principles as applicable to any other statutes are also
applicable to statutes dealing with defence services-However, additional
weightage has to be assigned while interpreting any expression or provisions
on account of security considerations.
Words and Phrases :
"Misconduct"-Meaning of-In the context of Army Rules, 1954,
R. 14(1).
"Inexpedient" and "impracticable "-Meaning of-In the context of Army
Rules, 1954, R. 14(2).
"Military justice" -Meaning of
In the first of the two appeals, the respondent was tried by a General
Court-Martial (GCM) and awarded certain punishment. However, the
case was sent back for revision nuder Section 160 of the Army Act, 1950.
The GCM, on revision, enhanced the punishment. But the Chief of the
Army Staff (COAS) annulled the GCM proceedings under Section 165 of
the Act on the ground that the proceedings were unjust. Subsequently, a
show cause notice was issued to the respondent under Section 19 of the Act
read with Rule of the Army Rules, 1954 calling upon the respondent to
show cause why his services should not be terminated. The respondent
filed a reply; but the COAS dismissed the respondent from service. The
High Court, relying on Major Radha Krishan v. Union of India, [1996] 3
sec 507, quashed the termination order on the ground that the retrial of
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1129
the respondent by court-martial was barred by limitation under Section
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122 of the Act and, therefore, the exercise of power under Section 19 read
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## Text

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it.
UNION OF INDIA AND ORS.
A
V.
HARJEET SINGH SANDHU
APRIL 11, 2001
[DR. A.S. ANAND, C.J., R.C. LAHOTI AND BRIJESH KUMAR, JJ.]
B
Anny Rules, 1954 : Rule 14.
Officer-Tennination of sen•ice of-By Central Government-Trial by
court-martial-Inexpediency or impracticability of-Held: Services of an ofc
fleer may be tenninated untkr S. 19 of the Anny Act read witlz R. 14 either
before convening the court-martial or after it has been convened and commenced provitkd trial by court-matrial is inexpedient or impractical.
Army Act, 1950 :
Sections 19 and 122-Trial by court-martial-Period of limitationD
Expiry of-Power under S. 19 read with R. 14-Held: Expiry of period of
limitation for trial by court-martial does not take away the power under S. 19
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read with R. 14-But if the delay is due to inaction on the part of the authorities,
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then action under S. 19 may be vitiated, not for any lack of jurisdiction but for
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colourable or mala fid£ exercise of power.
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Section 165-Annulment of court-martial proceedings-Power under S.
19 read with R. 14-Exertise of-Effect on-Held : The delinquent officer
cannot be allowed to escape the consequences of his misconduct on account of
annulment of the proceedings-Hence, exercise of power under S. 19 read with
R. 14 does not suffer from lack of jurisdiction.
F
Section 153-Finding and sentence of court-martial-Power to confirm-Principles-Held : Finding and sentence, if legal and just, have to be
orrlinan"ly confirmed-But they may be annulled on grounds of illegality or
unjustness-But once the finding and sentence are confirmed power under S.
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19 read with R.14 cannot be exercised
Section 125-Criminal court and court-martial-Choice between-Held:
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discretion to choose is vested in the prescribed military authorities-But once
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the delinquent officer is acquitted by criminal court no further action for
misconduct on the same facts can be taken untkr S. 19 read with R. 14.
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SUPREME COURT REPORTS
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Section 19 read with Rule 14-Power under-Exercise of-Judicial
review of-Held : Is open to judicial review on grounds of mala fides or
consideration of extraneous and/or irrelevant grounds or found to be a clear
case of colourable exercise of/or abuse of power-However, correctness or
adequacy of material cannot be revalued or weighed by the court-If two views
are possible, court will not substitute its own view-Administrative I.aw.
Termination of service-Under S. 71 and S. 19 read with R. 14-Distinction between-Explained.
Interpretation of Statutes :
Defence Services-Legislation dealing with-Principles of interpretation-Held : Same principles as applicable to any other statutes are also
applicable to statutes dealing with defence services-However, additional
weightage has to be assigned while interpreting any expression or provisions
on account of security considerations.
Words and Phrases :
"Misconduct"-Meaning of-In the context of Army Rules, 1954,
R. 14(1).
"Inexpedient" and "impracticable "-Meaning of-In the context of Army
Rules, 1954, R. 14(2).
"Military justice" -Meaning of
In the first of the two appeals, the respondent was tried by a General
Court-Martial (GCM) and awarded certain punishment. However, the
case was sent back for revision nuder Section 160 of the Army Act, 1950.
The GCM, on revision, enhanced the punishment. But the Chief of the
Army Staff (COAS) annulled the GCM proceedings under Section 165 of
the Act on the ground that the proceedings were unjust. Subsequently, a
show cause notice was issued to the respondent under Section 19 of the Act
read with Rule of the Army Rules, 1954 calling upon the respondent to
show cause why his services should not be terminated. The respondent
filed a reply; but the COAS dismissed the respondent from service. The
High Court, relying on Major Radha Krishan v. Union of India, [1996] 3
sec 507, quashed the termination order on the ground that the retrial of
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the respondent by court-martial was barred by limitation under Section
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122 of the Act and, therefore, the exercise of power under Section 19 read
with Rule 14 was vitiated.
In the other appeal, the COAS issued a notice to the respondent
under Section 19 read with Rule 14 calling upon the respondent to show
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cause why his services be not terminated in view of the fact that the courtmartial proceedings against the respondent were impracticable and the
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COAS was of the opinion that the further retention of the respondent in
service was not desirable. The respondent filed a writ petition before the
High Court on the ground that the GCM proceedings having become
barred by time under Section 122 of the Act, the show cause notice was c
without jurisdiction. The High Court, relying on Major Radha Krishan's
case, allowed the writ petition on the ground that the COAS could not have
had recourse to Section 19 read with Rule 14 once the court-martial
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proceedings had become barred by time.
On behalf of the appellant it was contended that the proposition laid
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down in Major Radha Krishan 's case was too wide a proposition wholly
unsustainable in the light of the express provisions contained in the Army
Act and Army Rules; and that the power under Section 19 read with Rule
14 could be exercised before or after convening the GCM and even after
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expiry of the limitation prescribed under Section 122 of the Act.
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On behalf of the respondents it was contended that once an officer
had been subjected to court-martial proceedings or if such proceedings
had become barred by time or impossible or impermissible, then Section
19 read with Rule 14 court not he invoked; and that the word "impracticahie" had been used in Rule 14 in contradistinction with ''impossible'' or
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''impermissible'' aud, therefore, if a trial by court-martial though practicable but had been rendered impermissible because of a bar created by the
rule of limitation or rendered impossible because of a fact situation then
resort could not be had to Section 19 read with Rule 14(2) by treating the
impossibility or impermissibility as impracticability.
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Allowing the appeals, the Court
HELD : 1. 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
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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.[ 1148-C]
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2.1. "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 Army Act, 1950; it is to be read therein by virtue of Rule 14 of the
Army Rules, 1954. Misconduct is not defined either in the Act or in the
Rules. (1150-C]
2.2. In the context in which the term 'misconduct' has been used in
Rule 14 of the Rules, 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, ifit is subversive of army discipline or the high traditions of army and/or if it renders the person
unworthy of being retained in service. The language of Rule 14(2) employ·
ing the expression 'the reports on an officer's misconduct' uses 'reports' in
plural and misconduct in singular. Here plural would include singular and
singular would include plural. A single report on an officer's misconduct
may invite an action under Section 19 read with Rule 14 and there may be
cases where there may be more report than one on a singular miseonduct
or more misconducts than one in which case it will be the cumulative effect
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of such reports on misconduct or misconducts, which may Jea'd to the
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formation of requisite satisfaction and opinion within the meaning of Rule
14(2). (1150-H; 1151-A-C]
State of Punjab v. Ram Singh, Ex-Constable, (1992) 4 SCC 54; relied
on.
3. It is true that some of the punishments provided by Section 71 of
the Act 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
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such penalties have been treated as punishments awardable by court·
martial under Section 71 of the Act. 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
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excludes the exercise of the other. (1152-D·E]
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Union of India v. S.K Rao, AIR (1972) SC 1137, relied on.
4.1. 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 bas
obviously made no such provision in the Act for the exercise of a choice
between proceeding under Section 19 and convening of a conrt-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). [1153-F]
4.2. If the decision is to have delinquent officer tried by a criminal
court and if be 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 taking against the delinquent
officer on the same facts, which constituted the misconduct amounting
to an offence for which be was charged befor~ the criminal court. In
the event of bis being convicted, if some further disciplinary action ,is
still proposed to be taken, then it is the conduct of the officer leading Jo
bis conviction (as found by the criminal court), which is capable _bf
being taken into consideration by the Central Government or the COA~.
The facts forming the conduct of the officer leading to his conviction shall
alone form the basis of the formation of opinion as to whether his further
retention in service is undesirable whereupon he may he dismissed, removed or compulsorily retired from the service in the manner prescribed
by the said sub-rule. [1154-A-C]
4.3. On the other hand, if the initial decision was to have the delinquent officer tried not by a criminal court hut by a court-martial, then
under Rule 14(2) it is for the Central Government or the COAS to arrive
at a satisfaction whether the trial of the officer by a conrt-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 a court-martial,
then the court-martial may not be convened and additionally, subject to
formation of the opinion as to the undesirability of the olftcer 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 bas
been convened and commenced subject to the satisfaction as to the trial by
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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 or
trial by court-martial can be tak:!r. 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. [1154-D-F]
5. Power to confirm the finding and sentence of a court-martial and
the power to annul the proceedings on the ground of being illegal or unjust,
both the provisions read together indicate that the finding and sentence of a
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 a 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 thereunder if the court-martial has uotchosen 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 final verdict
of guilty or not guilty, pronounced by court-martial 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. (1155-A-D]
6. The word 'impracticable' is not defined either in the Army Act or
in the Army Rules. As the term used in Rule 14(2) 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 COAS, in the matter of
disciplinary action on account of misconduct committed by an officer of
the 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 the officer's misconduct. (1158-G]
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Union of India v. Tutsi Ram Pate4 [1985) 3 SCC 398, referred to.
G.P. Singh : "Principles of Statutory Interpretation" 7th Edn., I999, pp.
258-259 and Word< and Phrases (Pennanenl Edition, Vol. 20, p 460-46I), P.
Ramanatha Iyer: Law Lexicon, 2/h Edn., p. 889 and The New Oxford Diclionary of English, 1998, p. 918, referred to.
7.1. The expiry of the period oflimitation prescribed by Section 122
renders the trial by court-martial 'impracticable' on the wider meaning of
the term. 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.
Therefore, by an interpretative process, the bar of limitation provided hy
Section 122 cannot be read into Section 19 of the Act in spite of a clear and
deliberate legislative abstention. (1159-H]
7.2. If there was inaction on the part of the authorities resulting in
delay and attracting bar of limitation under Section 122 and it can he said
that the authorities are taking advantage of their own inaction or default,
then such belated decision to invoke Section 19 may stand vitiated, not
for any lack of jurisdiction but for colourable or ma/a fide exercise of
power. (1160-D)
8. The court-martial may have stood dissolved for fortuitous circumstance for which no one is to he 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 the bar of limitation under Section 122 would also exclude the exercise
of power under Section 19 read with Rule 14. (1160-E)
9. The finding and sentence of the court-martial are ineffective unless confirmed by the confirming authority under Section 153 of the Act.
The Act does not contemplate that the finding and sentence of a courtmartial 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
annual 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 becau~e court-martial proceedings
have been adjudged illegal or unjust for the second time. The power under
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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. Exercising power under Section 19 read with Rule 14
consequent upon court-martial proce.edings being annulled for the
second time because of having been found to be illegal or unjust, the
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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. [1160-G-H; 1161-A-C]
10.1. Once a stay order has been vacated, in spite of the expiry of
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limitation for commencement of court-matrial 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. (1161-D]
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Union of India v. Major General Madan Lal Yadav (Retd), (1996] 4
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sec 127, relied on.
10.2. 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. (1162-D-F]
10.3. In the scheme of the Act and the purpose soughtto be achieved
by Section 19 read with Rule 1 4, there is no reason to place a narrow
construction on the term 'impracticable' and, therefore, on availability
U.0.1. v. H.S. SANDHU
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or happening of such events as render trial by court-martial impermissible
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or legally impossible or not practicable, the sitnation would be
covered by the expression - the trial by court-martial having become
'impracticable'. [1162-H; 1163-A]
Chief of Anny Staffv. Major Dharam Pal Kukrety, [1985] 2 SCC 412,
relied on.
Major Radha Krishan v. Union of India, [1996] 3 SCC 507, overruled.
11. 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 mala fides or is found to be based wholly on
extraneous and/orirrelevant 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. H 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. [1163-B-D]
12. 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 situation
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. [1147-G]
13. 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 the requirement of military disciB
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pline and the high traditions of the India Army. (1164-C]
Chief of Anny Staffv. Major Dharam Pal Kukrety, (1985] 2 SCC 412,
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referred to.
CIVIL APPELLAI'E JURISDICTION: Civil Appeal No. 2721 of 2001.
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From the Judgment and Order dated 16.9.97 of the Allahabad High
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Court in C.M.W.P. No. 2522 of 1984.
WITH
Civil Appeal No. 2722 of 2001.
Altaf Ahmad, Additional Solicitor General, PP. Malhotra, Hemani
Sharma, Ms. Rekha Pandey, Ms. Binu Tamta, Ms. Indra Sawhney, Satpal
Singh, C. Radha Krishna, Mrs. Anil Katiyar, Shreekant N. Terdol, A.
Mariarputham, Ms. Pratibha Singh, Ankur Talwar, Maninder Singh, Ms. Indu
Malhotra, E.C. Vidya Sagar, (NP), Ms. Madhu Sweta and Prem Prasad Juneja
for the appearing parties.
The Judgment of the Court was delivered by
R.C. LAHOTI, J. Harjeet Singh Sandhu, the respondent in S.L.P.(C)
No.5155/1998 was a captain in the Anny. 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 order to extract a confession as
a result whereof Bhagwan Das died. A General Court martial (GCM, for
short) was convened under Section 109 of Anny 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 Anny 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 Anny 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
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U.0.1. v. H.S. SANDHU [R.C. LAHOU J.]
1137
Act read with Rule 14 of the Anny Rules, 1954 (hereinafter the Rules, for
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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 Anny Staff - (i) a satisfaction that the respondent's
retrial by a court martial consequent to the annulment of the GCM proceedings was impracticable, and (ii) formation of opinion that the respondent's
further retention in the service was undesirable. The latter notice also stated
that the earlier notice was thereby cancelled though the reason for such
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cancellation was not mentioned. The respondent filed a reply dated 9.9.1982
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in defence of himself. On 2.1.1984 the Chief of the Anny 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
D
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 in Major Radha Krishan v. Union of
India [1996] 3 SCC 507, squarely applies to the facts of this case and
therefore the exercise of power under Section 19 read with Rnle 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 Anny. 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 Constitntion 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
E
F
G
H
A
B
c
D
E
F
G
H
1138
SUPREME COURT REPORTS
[2001) 2 S.C.R.
of the Anny 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
Anny 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 v.
Union of India, [1996) 3 SCC 507, that once the court martial proceedings
have become time-barred the Chief of the Anny 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. Mariarputharn, 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 Krishan's case was not correctly decided and therefore needs to be
reconsidered by this Court for two reasons : firstly, because Major Radha
Krishan's case is a decision rendered by two Judge-Bench which does not
take notice of the Jaw laid down by this Court in Chief of Army Staffv. Major
Dharam Pal Kukrety, [1985] 2 SCC 412 which is three-Judge 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
Anny Act and the Anny Rules and the underlying scheme of the Legislation.
We would first sei 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 wilh other contentions raised by
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U.0.1. v. H.S. SANDHU [R.C. LAH.OT!, J.]
1139
the learned counsel for the parties because the major part of submissions
made by the learned counsel centres 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 :-
Anny Act, 1950
19. Tennination 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
A
B
c
(b)
where the commission of the offence was not known to the
person aggrieved by the offence or to the authority competent
E
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,
F
G
shall be excluded.
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1140
A
B
c
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E
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G
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SUPREME COURT REPORTS
[2001] 2 S.C.R.
( 4) No trial for an offence of desertion other than desertion on active
service or of fraudulent enrolment shall be cornrnenced if the person
in question, not being an officer, has subsequently to the commission
of the offence, served contiuuously in any exemplary manner for not
less than three years with any portion of the regular Army.
Army Rules, 1954
[14. Te1mination of seivice by the Central Government on
account of misconduct. - (I) 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 snb- rule (2) against such action -
Provided that this sub-rule shall not apply -
(a)
where the service is te1minated on the ground of misconduct
which has led to his conviction by a criminal court; or
(b)
where the Central Governrnent 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 officer's misconduct, the Central Governrnent 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, tliat the further retention of the
said officer in the service is undesirable, the Chief of the Army Staff
shall so inform the officer togetl1er 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 tile explanation of the officer being considered
unsatisfactory by the Chief of the Army Staff, or when so directed
by the Central Governrnent, the case shall be submitted to the Central
Governrnent, with the officer's defence and the recommendation of
;..
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U.0.1. v. H.S. SANDHU [R.C. LAHOTL J.]
1141
the Chief of the Army Staff as to the termination of the officer's
A
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
B
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 officer's 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 officer's 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
officer's 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
c
D
E
F
be adverted to as and when required.
G
In Major Radha Krishan 's 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 irnpracH
A
B
c
D
E
1142
SUPREME COURT REPORTS
[2001] 2 S.C.R.
ticable 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 fmding out the meaning of
'impracticable', the term occurring in sub-rule (2) of Rule 14, referred to
dictionary meanings of 'irμpracticable', 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 snch as that the Court martial proceedings had become timebarred. 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
p
of limitation - will be wholly alien to rule 14(2). Dharam Pal Kukrety's case
was neither placed before nor considered by the learned judges deciding
G
H
Major Radha Krishan 's case.
Major Dhararn 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 confrrmation) of 'not guilty of all the charges'. The confirming authority did not
confnm 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.
F
U.0.1. v. H.S. SANDHU [R.C. LAHOTI, J.]
1143
Once again the general court martial, adhering to its original view, announced
the fmding that the respondent was "not guilty of all the charges" (subject
to confirmation). On May 25, 1976 the confirming authority refused to
confinn the fmding 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
officer's misconduct rendered bis further retention in the service undesirable.
A
B
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
C
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 Rnle 14.
D
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.