http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: MAJOR KADHA KRISHAN

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       25/03/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) G.B. PATTANAIK (J)

CITATION:  1996 SCC  (3) 507        JT 1996 (3)   650  1996 SCALE  (3)241

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T 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 directions  and on behalf 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 above 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 time      barred by  the time  the  court  of      inquiry was  finalized and he is of      the  opinion   that  your   further      retention     in     service     is      undesirable." In  due  course  the  appellant  showed  cause  against  his proposed termination  of services but it 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. Aggrieved thereby the appellant  filed a  writ position before a learned Judge

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

of the  Rajasthan High  Court. In  assailing  the  order  of termination the  principal ground  that was  raised  by  the appellant was  that the  provisions of Section 19 of the Act and Rule 14 of the Rules could not be inverted as the period of limitation  prescribed under  Section 122  of the Act for holding his trial by a Court Martial was long over. Besides, it was  contended that  the satisfaction  of the authorities that it was impracticable to hold the trial was not obtained in accordance  with Rule  14. The appellant also denied that he was  guilty of  the misconducts alleged in the notice and gave out his defence against the same.      The learned  Judge allowed  the writ  petition, quashed the order under challenge and directed that the appellant be reinstated in  service with  all consequential  benefits. In passing the  above order the learned Judge firstly held that the appellant  was made  a scape  goat for  the  lapses  and delinquencies of  others. As  regards the  applicability  of Section 19  of the  Act and  Rule 1 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.) H.C. Dhingra vs. Union of India & Anr. 1988 (2) Delhi lawyer 109.      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 the view taken  by the  Delhi High  Court in H.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 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 of 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:      "(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 from the date      of such offence.      (2)  The provisions  of sub-section      (1) shall  not apply to a trial for      an   offence    of   desertion   or      fraudulent enrollment 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,   on  in  evading      arrest after  the commission of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

    offence, shall be excluded.      (4)  No trial  for  an  offence  of      desertion other  than desertion  on      active  service  or  of  fraudulent      enrollment 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 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 officer’s 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  his had he      shall be  called upon to submit, in      writing,     the      explanation."      (emphasis supplied)      xxx             xxx             xxx      xxx             xxx             xxx Mr. Ramachandran  first contended that one of the requisites to invoke  the summary procedure envisaged under Rule 14 (2) to terminate  the services  of an  officer  by  the  Central Government in exercise of its powers under Section 19 of the Act is  to obtain  a satisfaction  that his trial by a Court Martial   is    inexpedient   or   impracticable.   Such   a satisfaction, according  to Mr. Ramachandran, can be arrived only at  a time when trial by a Court Martial is permissible or possible.  As in  the instant  case, admittedly,  such  a trial was  barred by limitation under Section 122 of the Act the above  Rule could not be invoked. We find much substance in the above contention of Mr. Ramachandran.      It is  not in  dispute that  at the  time the  impugned

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

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 degree of reason and involves some regard  for practice.  According to Webster’s 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  being  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 Officer  can be  legally tried y a Court Martial the concerned  authorities may,  on the  ground that  such a trial is  not impracticable for inexpedient, involve 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).  While passing the impugned order the Division Bench however did  not at all consider, while interpreting Rule 14 (2),  the   import   of   the   words   ‘impracticable’   or ‘inexpedient’ as  appearing therein  and  proceeded  on  the basis that  since Section  127 of  the Act  (since repealed) permitted trial  even after  a conviction  or acquittal by a Court Martial,  it necessarily  meant that the Rule could be pressed into service even after the period of limitation. It appears that  in making the above observation the High Court did not  notice that  Section 127  relates to  a trial  by a ‘criminal court’  and not  ‘Court Martial’  and speaks  of a stage after the trial by the letter is over.      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 term  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 illegal. Such a provision of limitation prescribed under the Act   cannot   be   overridden   or   circumvented   by   an administrative act,  done in  exercise or  powers  conferred under  a   Rule.  Mr.  Ramachandran  was,  therefore,  fully justified in  urging that  power under  Rule 14  of the Army Rules could  not be  exercised in  a manner  which would get over the  bar of limitation laid down in the Act and that if Rule 14  was to  be interpreted  to give such power it would clearly  be  ultra  vires.  We  are  therefore  in  complete agreement with the observations made by the Delhi High Court in H.C. Ohinura’s case (supra) that in purported exercise of administrative  power   Under  Rule   14,  in   respect   of allegations of  misconduct  tribal  by  Court  Martial,  the authorities cannot  override the statutory bar of subsection

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

(1) of  Section 122  of the Act for no Administrative act or fiat can discard, destroy or annul a statutory provision.      The other  contention of  Mr. Ramachandran was that the satisfaction with regard to inexpediency or impracticability of a  trial by Court Martial must be only on a consideration of the  reports of misconduct. According to Mr. Ramachandran if on  a perused  of the  reports the authorities found that the nature of misconduct or the context in which it had been committed were such that it was impracticable or inexpedient to hold the Court Martial, the procedure under rule 14 might be resorted  to. In other words, Mr. Ramachandran submitted, 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 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.      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  attending  circumstances relating thereto  have to  be the  gole basis  for obtaining such a satisfaction.      The purport of the above Rule can be best understood by way of  an illustration.  The Chief of Army Staff receives a report which  reveals that an Army Officer has treacherously communicated  intelligence   to  the   enemy  -  an  Offence punishable under  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 in the interest of the security of  the  State.  In  such  an  eventuality  he  may legitimately 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 doctors 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 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/-.