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CASE NO.: Appeal (civil) 2721  of  2001 Appeal (civil)  2722     of  2001

PETITIONER: U.O.I. & ORS.

       Vs.

RESPONDENT: HARJEET SINGH SANDHU

DATE OF JUDGMENT:       11/04/2001

BENCH: CJI, R.C. Lahoti & Brijesh Kumar

JUDGMENT:

R.C. Lahoti, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Harjeet  Singh  Sandhu,  the   respondent  in  S.L.P.(C) No.5155/1998  was  a  captain  in the Army.   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 orders to extract  a confession as a result whereof Bhagwan Das  died. A  General Court martial (GCM, for short) was convened under Section 109 of Army 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 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, and (ii) formation of opinion that the respondents further retention

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in  the  service  was undesirable.  The latter  notice  also stated  that the earlier notice was thereby cancelled though the  reason  for such cancellation was not  mentioned.   The respondent  filed  a  reply  dated 9.9.1982  in  defence  of himself.   On 2.1.1984 the Chief of the Army 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 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 Vs.  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 Rule  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 Army.  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 Constitution 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  of the Army 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 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.

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       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.   Mariarputham, 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  Krishans case  was  not  correctly decided and therefore needs to be reconsidered by this Court for  two  reasons :  firstly, because Major Radha  Krishans case  is a decision rendered by two Judges-Bench which  does not  take notice of the law laid down by this Court in Chief of  Army Staff Vs.  Major Dharam Pal Kukrety - (1985) 2  SCC 412 which is three-Judges 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  Army  Act and the  Army  Rules  and  the underlying scheme of the Legislation.

   We  would first set 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 with other contentions raised by the learned counsel   for  the  parties  because   the  major  part   of submissions  made  by the learned counsel centre 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 :-

Army Act, 1950

   19.   Termination  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

   (b) where the commission of the offence was not known to the  person  aggrieved  by the offence or to  the  authority competent  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

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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 not apply -

   (a)  where  the service is terminated on the  ground  of misconduct  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  officers 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  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 the explanation of the  officer  being considered unsatisfactory by the Chief of the Army Staff, or when  so directed by the Central Government, the case  shall be  submitted to the Central Government, with the  officers defence  and  the  recommendation of the Chief of  the  Army Staff  as to the termination of the officers 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 judgment of the criminal  court  convicting  him shall be submitted  to  the Central  Government with the recommendation of the Chief  of

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the  Army  Staff  as  to the termination  of  the  officers 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 officers 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  officers 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 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 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

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any  other extraneous factor such as that the Court  martial proceedings   had  become   time-barred.   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 of limitation - will be wholly alien to rule 14(2). Dharam  Pal  Kukretys  case was neither placed  before  nor considered  by  the  learned  judges  deciding  Major  Radha Krishans case.

   Major  Dharam  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 confirmation)  of  not  guilty of all  the  charges.   The confirming  authority  did  not confirm 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.   Once again the  general  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 not competent for the Chief of  the Army  Staff  to  have recourse to Rule 14.   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. In  the  appeal preferred by Chief of the Army Staff  before this  Court  two  contentions were raised on behalf  of  the officer :  firstly, that it could not be said that the trial of  the  officer  by  a court  martial  was  inexpedient  or impracticable  as  in  fact  he had been tried  by  a  court martial;   and secondly, that on a true construction of Rule 14 the Central Government or the Chief of the Army Staff had an  initial  option  to have the officer tried  by  a  court martial  or to take action against him under Rule 14 and  if the  decision to have the officer tried by court martial was taken  then action under Rule 14 was not permissible in case of finding of acquittal being rendered by the court martial. Vide  para  14,  this court noticed  decisions  rendered  by different  High Courts of the country throwing light on  the issue  before  the Court.  Allahabad High Court was  of  the

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view  that  in spite of non-confirmation of the finding  and sentence  passed  by  the  court martial  such  finding  and sentence  did exist though they could not be put into effect for  want  of confirmation and therefore a second  trial  by court  martial would be barred.  Jammu & Kashmir High  Court was  of  the  view  that  the  Legislature  could  not  have reasonably  intended  that  an officer convening  a  general court  martial can go on dissolving such courts martial  and reconstituting them ad infinitum until he obtained a verdict or  a finding of his own liking.  Such a decision would  not only  be against public policy and violative of the rule  of double  jeopardy but would also reduce the provisions of the Army  Act to a mockery and give an appearance of mala fides. Having noticed the decisions of High Courts, this Court then concentrated on the question whether in such a case trial by a court martial is inexpedient or impracticable?  Dictionary meaning  of the term inexpedient was relied on.  The Court then summed up its conclusion as under :-

   In  the present case, the Chief of the Army Staff  had, on  the  one hand, the finding of a general  court-  martial which had not been confirmed and the Chief of the Army Staff 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  generally  to  make  rules for  the  purpose  of carrying  into effect the provisions of this Act and without prejudice  to the generality of such power, specifically  to make rules providing for inter alia the removal, retirement, release  or discharge from the service of persons subject to the Army Act.  Section 19 empowers the Central Government to dismiss  or  remove from the service any person  subject  to this  Act  which  power  is subject  to:   (i)  the  (other) provisions  of this Act, and (ii) the rules and  regulations made under the Act.  Under Section 193, all rules made under the  Act  shall be published in the official gazette and  on such  publication  shall have effect as if enacted  in  this Act.   Under Section 193-A, such rules shall be laid  before each  House of Parliament.  In State of U.P.  Vs Babu Ram  - AIR  1961  SC 751 the Constitution Bench has  held,  quoting from  Maxwell on Interpretation of Statutes, that rules made under  a  Statute  must  be  treated  for  all  purposes  of construction  or  obligation exactly as if they were in  the Act  and are to be of the same effect as if contained in the Act,  and  are to be judicially noticed for all purposes  of

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construction  and obligation;  an action taken under the Act or  the rules made thereunder must confirm to the provisions of  the  Act  and the rules which have  conferred  upon  the appropriate  authority  the  power to take an  action.   The Constitution  Bench decision has been followed by this court in State of Tamil Nadu Vs.  M/s Hind Stone - AIR 1981 SC 711 holding that a statutory rule, while ever subordinate to the parent  statute, is, otherwise, to be treated as part of the statute  and  as  effective.   [Also  see  Peerless  General Finance and Investment Co.Ltd.  Vs.  Reserve Bank of India - AIR 1992 SC 1033, para 54.]

   Section  19  and Rule 14 so read together and  analysed, the following legal situation emerges :-

   1)  The  Central Government may dismiss, or remove  from the  service,  any person subject to the Army Act, 1950,  on the ground of misconduct.

   2)  To initiate an action under Section 19, the  Central Government  or the Chief of the Army Staff after considering the reports on an officers misconduct ;

   a)  must be satisfied that the trial of the officer by a Court martial is inexpedient or impracticable,

   b)  must be of the opinion that the further retention of the said officer in the service is undesirable.

   3.   Such  satisfaction having been arrived 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,  if  considered unsatisfactory by the Chief  of the   Army  Staff  or  when  so  directed  by  the   Central Government,  in  either  case,  shall be  submitted  to  the Central  Government  with  the  officers  defence  and  the recommendation  of  the  COAS as to the termination  of  the officers  service  i.e.  whether the officer should be  (a) dismissed, or (b) removed, or (c) compulsorily retired, from the service.

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   6)  The  Central  Government  shall  after  taking  into consideration  the reports (on the officers misconduct) the officerss  defence,  if any, and the recommendation of  the COAS,  shall  take a decision which if unfavourable  to  the officer  may be (a) to dismiss or remove the officer with or without  pension or gratuity;  or (b) to compulsorily retire him  from  service  with  pension   and  gratuity,  if  any, admissible to him.

   The  case of an officer whose service is proposed to  be terminated  on the ground of misconduct which has led to his conviction by a criminal court is to be treated differently. He  need  not be given an opportunity to show cause  against the  proposed termination.  A decision as to termination  in one  of the modes provided by sub-rule (4) of Rule 14 can be taken  by  the  Central  Government on its  own  or  on  the recommendation  of  the  Chief  of  the  Army  Staff  if  he considers  that  the conduct of the officer leading  to  his conviction   renders  his  further   retention  in   service undesirable  in which case his recommendation accompanied by a  certified  copy  of the judgment of  the  criminal  court convicting  him shall be submitted to the Central Government which  will  take the decision in accordance  with  sub-rule (5).

   The  learned  ASG  submitted that the  defence  services under  the  law of the land are treated as a class apart  as can  be  spelled  out from the different provisions  of  the Constitution  and  the  Army  Act and other  laws.   As  the defence  of  the country is involved, in the very nature  of the  things,  a  cautious approach has to be  adopted  while interpreting  the several legal provisions, the security  of the  State  and  welfare of the nation  being  supreme.   He submitted  that under the scheme of the Legislation there is no  warrant for holding that a decision to take action under Section  19 read with Rule 14 or to convene a court  martial must be taken only in the first instance and before the time limited for commencing court martial proceedings comes to an end.  He further submitted that power vesting 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 Act and the implications of the  relevant provisions contained therein.

   Army  defends  the  country and its  frontiers.   It  is entrusted  with  the  task  of  protecting  against  foreign

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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 situations   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. Article  33 empowers the Parliament to restrict or  abrogate fundamental  rights  in their application to the members  of the  armed  forces so as to ensure the proper  discharge  of their  duties and the maintenance of discipline among  them. Right  to  file special leave to appeal before  the  Supreme Court  and  power  of superintendence vesting  in  the  High Courts  do not extend over judgment, determination, sentence or  order  passed or made by any Court or  Tribunal  dealing with  armed  forces.  Members of the defence  services  hold office  during  pleasure of the President under Article  310 but  they  are  not entitled to the  protection  offered  by Article  311.  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  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.

   Section  19, with which we are concerned, is to be found placed  in  Chapter  IV of the Act entitled  Conditions  of Service.   Chapter VI deals with offences.  Sections 34  to 68,  finding place in Chapter VI are very widely worded  and embrace  within  their  realm   practically  every  type  of misconduct,  its  abetment  and attempt as well,  which  any person  subject  to the Act may commit.  Section 69  defines civil offences, the commission whereof shall be triable by a court  martial.   Section  70  defines  civil  offences  not triable   by   court  martial.    Chapter  VII  deals   with punishments.  Therein Section 71 provides as under:

   71.   Punishments  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:

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   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 prescribed purpose;

   (i)  severe  reprimand  or  reprimand, in  the  case  of officers, junior commissioned officers, warrant officers and non- commissioned officers;

   (j)  forfeiture  of pay and allowances for a period  not exceeding  three  months for an offence committed on  active service;

   (k)  forfeiture  in  the case of a person  sentenced  to cashiering  or dismissal from the service of all arrears  of pay  and allowances and other public money due to him at the time of such cashiering or dismissal;

   (l) stoppage of pay and allowances until any proved loss or  damage  occassioned  by  the  offence  of  which  he  is convicted is made good.

   According  to  Section 74, before an officer is  awarded any  of  the punishments specified in clauses (a) to (c)  of Section  71,  he shall be sentenced to be cashiered.   Other provisions in this chapter are not relevant for our purpose.

   Under  Section 101, any person subject to this Act,  who is  charged  with  an offence, may be  taken  into  military custody.   Chapter  X  deals with  Courts-Martial.   Therein under  Section  121, any person subject to this  Act  having been acquitted or convicted of an offence by a court martial or  a  criminal court shall not be liable to be tried  again for  the  same  offence.  Section 122,  provides  period  of limitation for commencement of trial by court martial.  Once the  period  prescribed has expired a trial before  a  court martial cannot be commenced.

   Under  Section  153  no finding or sentence of  a  court martial  shall be valid unless confirmed as provided by  the Act.   Section  158 gives power to confirming  authority  to mitigate,  remit or commute sentences.  Section 165 empowers the  Central Government, the Chief of the Army Staff or  any prescribed  officer  to annul the proceedings of  any  court martial on the ground that they are illegal or unjust.

   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 Act;  it is to be read therein by  virtue of  Rule 14.  Misconduct is not defined either in the Act or in  the Rules.  It is not necessary to make a search for the meaning,  for it would suffice to refer to State of Punjab & Ors.   Vs.  Ram Singh, Ex-Constable, (1992) 4 SCC 54 wherein the  term misconduct as used in Punjab Police Manual  came up  for the consideration of this court.  Having referred to the  meaning  of misconduct and misconduct in office  as

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defined  in  Blacks 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 delinquency which may or may not involve   moral  turpitude,  would   be  misconduct,   and certainly so, if it is subversive of army discipline or high traditions  of army and/or if it renders the person unworthy of  being retained in service.  The language of  sub-rule(2) of  Rule  14  employing the expression the  reports  on  an officers   misconduct  uses  reports   in   plural   and misconduct  in singular.  Here plural would include singular and  singular  would include plural.  A single report on  an officers  misconduct may invite an action under Section  19 read  with Rule 14 and there may be cases where there may be more  reports  than  one on a singular  misconduct  or  more misconducts than one in which case it will be the cumulative effect  of such reports on misconduct or misconducts,  which may  lead  to  the formation of requisite  satisfaction  and opinion within the meaning of sub-rule (2) of Rule 14.

   The learned counsel for the respondents submitted that a court  martial  convened  under the Act is  a  high  powered special  tribunal  vested with very wide  jurisdiction.   It cannot  appropriately  be  called either  a  criminal  court merely or a service tribunal simply.  It is a combination of the  two  and  much  more  than  that.   A  perusal  of  the provisions  of  Section  71  clearly  indicates  that  court martial  is empowered to inflict such punishments which  are otherwise  inflicted  by  a competent criminal  court  while there  are punishments such as those provided by clauses (d) to  (l)  thereof  which  belong  to  the  realm  of  service jurisprudence  and  can  ordinarily be inflicted by  way  of penalty  for  a misconduct which a person in service may  be found  to  have committed.  The learned counsel went  on  to submit  that the scheme of the Act and the Rules thus  shows that  a  person  subject  to  the  Act  having  committed  a misconduct  amounting  to an offence within the  meaning  of Chapter  VI  should  ordinarily be subjected to trial  by  a court martial.  And if that has been done, then the power to act  under Section 19 is taken away.  So also if the  period of  limitation for trial by court martial is over, then also by necessary implication resort cannot be had to Section 19. We  find  it the difficult to agree with the  submission  so

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made.

   In  Union  of India Vs.  S.K.  Rao, AIR 1972 SC  1137  = (1972)  2 SCJ 645, the gross misconduct alleged against  the delinquent  officer  was of having actively abetted  in  the attempt  of brother officers daughter eloping 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  that  the power under Section 19  is  an independent power and the two Sections 19 and 45 of the Act are, therefore, mutually exclusive.

   It  is  true  that some of the punishments  provided  by Section 71 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 such penalties have  been treated as punishments awardable by court martial under Section 71 of the Army Act, 1950.  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  excludes  the  exercise  of  the  other.    The distinction may be set out in a tabular form:-

Termination (dismissal or removal) by Central Government under Section 19 read with Rule 14 Termination of service as punishment awarded by courts martial

1.   Is condition of service falling within the realm of service jurisprudence; penalty maybe dismissal/removal or compulsory retirement.

Is punishment awardable by court martial.; punishment can be of dismissal and/or cashiering (cannot be removal or compulsory retirement).

2.   No enquiry is contemplated

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except affording opportunity to show cause as provided by Rule 14. Punishment can be awarded only on a trial being held in accordance with the provisions of the Act.

3.   There is no bar of limitation provided for exercising the power Courts martial cannot inflict any punishment unless trial is commenced with in the period of limitation provided by Section 122.

4.  Any person subject to Army Act dismissed or removed from the service by Central Government is not previous convict.

Any person subject to Army Act awarded a punishment under Section 71 is a person convicted by court martial

5.  Any person proceeded against under Section 19 does not suffer any incarceration. Any person charged with an offence may be taken into military custody.

6.  Satisfaction and formation of opinion in Rule 14 may be based on a single report of misconduct or more than one or series of such reports taken together. Punishment can be inflicted only on the misconduct forming subject matter of charge.

7. Penalty is guided by formation of opinion on undesirability 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

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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  court  the  proceedings  shall  be  instituted,  i.e. before a court martial or a criminal court.  If the decision is  to have the delinquent officer tried by a criminal court and  if he 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  taken  against  the  delinquent officer  on the same facts which constituted the  misconduct amounting  to an offence for which he was charged before the criminal court.  In the event of his being convicted if some further  disciplinary action is still proposed to be  taken, then  it  is  the  conduct of the  officer  leading  to  his conviction (as found by the criminal court) which is capable of  being taken into consideration by the Central Government or  the COAS under sub-rules (3), (4) and (5) of Rule 14 for the  purpose of such action.  The facts forming the  conduct of  the  officer leading to his conviction shall alone  form basis  of the formation of opinion as to whether his further retention  in  service  is undesirable whereupon he  may  be dismissed,  removed or compulsorily retired from the service in the manner prescribed by the said sub-rules.  But, on the other  hand,  if  the  initial  decision  was  to  have  the delinquent  officer  tried not by a criminal court but by  a court-martial,  then under sub-rule (2) of Rule 14 it is for the   Central  Government  or  the   COAS  to  arrive  at  a satisfaction  whether  the  trial  of   the  officer  by   a court-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 court-martial then the court-martial may not be convened and additionally, subject  to formation of the opinion as to undesirability of the  officer 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  has  been  convened   and  commenced  subject  to satisfaction  as  to the trial by 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 of trial by court martial can 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

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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 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 not chosen  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 a final verdict of guilty or not guilty, pronounced by court material 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.

   The  learned counsel for the respondents submitted  that the  term  impracticable  has  been used  in  Rule  14  in contradistinction  with impossible or impermissible  and therefore if a trial by court martial though practicable but has  been rendered impermissible because of a bar created by the  rule of limitation or rendered impossible because of  a fact  situation then resort cannot be had to Section 19 read with  sub- rule (2) of Rule 14 by treating the impossibility or   impermissibility  as   impracticability.   The  learned counsel  for  the  respondents went on to submit  that  even Dharam  Pal  Kukretys case required reconsideration  as  in their  submission it does not lay down the correct law.   It was  urged  that  to the extent Dharam  Pal  Kukretys  case treats  impermissibility  as  impracticability   it  is  a mistaken view.  On the other hand, the learned ASG submitted that  Dharam Pal Kukretys case has correctly laid down  the law and mistake has been committed by this court in deciding Radha  Krishans  case by over looking Dharam Pal  Kukretys case and therefore Radha Krishans case must be held to have been decided per incuriam.

       Let us first examine what is the meaning of  term impracticable in sub-rule(2) of Rule 14?

   In  Major  Radha  Krishans case this  court  has  held, ..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    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

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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 respect to the learned judges deciding Major Radha Krishans case,  we  find  ourselves not persuaded to  assign  such  a narrow  meaning to the term.  Impracticable is not defined either  in the Act or in the Rules.  In such a situation, to quote  from Principles of Statutory Interpretation  (Chief Justice  G.P.  Singh, Seventh Edition, 1999, pp.   258-259), when  a  word  is  not defined in the  Act  itself,  it  is permissible to refer to dictionaries to find out the general sense  in which that word is understood in common  parlance. However,  in selecting one out of the various meanings of  a word,  regard  must always be had to the context as it is  a fundamental rule that the meanings of words and expressions used  in  an Act must take their colour from the context  in which  they appear.  Therefore, when the context makes the meaning  of  a word quite clear, it becomes  unnecessary  to search  for  and  select  a particular meaning  out  of  the diverse  meanings  a  word  is   capable  of,  according  to lexicographers.    As   stated   by    KRISHNA   IYER,   J. Dictionaries  are  not dictators of statutory  construction where  the  benignant mood of a law, and more  emphatically, the  definition clause furnish a different denotation.   In the  words of JEEVAN REDDY, J.:  A statute cannot always be construed with the dictionary in one hand and the statute in the  other.  Regard must also be had to the scheme,  context and   to  the  legislative   history.  JUDGE  LEARNED  HAND cautioned not to make a fortress out of the dictionary but to  pay  more attention to the sympathetic and  imaginative discovery  of  the  purpose or object of the statute  as  a guide to its meaning.

   In  Words  and Phrases (Permanent Edition, Vol.20,  page 460-  461)  it  is  stated that the  term  impossible  may sometimes    be     synonymous      with    impracticable; impracticable  means not practicable, incapable of being performed  or  accomplished  by  the means  employed  or  at command;   impracticable is defined as incapable of  being effected   from  lack  of   adequate  means,  impossible  of performance, not feasible;  impracticable means impossible or  unreasonably  difficult  of performance, and is  a  much stronger   term  than  expedient.   In  Law  Lexicon   (P. Ramanatha  Iyer,  Second  Edition,  page  889)  one  of  the meanings  assigned to impracticable is not possible or  not feasible;   at  any rate it means something very much  more than  not  reasonably  practicable.   In  The  New  Oxford Dictionary  of English (1998, at p.918), 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

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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 14  of  the  Army Rules).  Thus, the decision in  Tulsi  Ram Patels  case  may not ipso facto throw light on  the  issue before  us  but  some  of   the  observations  made  by  the Constitution  Bench  can  usefully be referred  to.   A  few illustrative  cases  mentioned  by the  Constitution  Bench, wherein  it  may be not reasonably practicable to hold  an enquiry, are:-

   (i)  a  situation  which  is  of  the  creation  of  the concerned government servant himself or of himself acting in concert with others or his associates;

   (ii)  though,  the government servant himself is  not  a party to bringing about of a situation yet the exigencies of a  situation may require that prompt action should be  taken and  not  taking  prompt action may result  in  the  trouble spreading  and the situation worsening and at times becoming uncontrollable  and necessary concomitance of such an action resulting  from a situation which is not of the creation  of the authorities.

   The   Constitution   Bench  has    further   held   that disciplinary  enquiry  is not expected to be dispensed  with lightly  or arbitrarily or out of ulterior motive or  merely to   avoid  the  holding  of  an  enquiry  or  because   the departments case against the government servant is weak and must fail.  It is not necessary that a situation which makes the  holding of an enquiry not reasonably practicable should exist  before the disciplinary enquiry is initiated  against the government servant;  such a situation can also come into existence  subsequently  during  the course of  an  enquiry. Reasonable  practicability of holding an enquiry is a matter of assessment to be made by the disciplinary authority.  The satisfaction  of  the authority is not immune from  judicial review  on  well  settled parameters of judicial  review  of administrative  decisions.  However, if on the  satisfaction reached  by the authority two views are possible, the  court will decline to interfere.

   As  the  term  used  in  sub-rule  (2)  of  Rule  14  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 Chief  of  the  Army Staff, in the  matter  of  disciplinary action  on account of misconduct committed by an officer  of 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 officers misconduct.

   The  learned  Additional Solicitor General cited  a  few examples  wherein the trial by court martial may be rendered impracticable, to wit:-

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   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 to be revised by order  of the  confirming  authority  but in spite  of  such  revision having  not  been  confirmed  once again  and  a  subsequent revision  of  finding or sentence being not contemplated  by the  provisions  of  the Act;  rather a revision  once  only having been provided by Section 160;

   v) A person subject to the provisions of Army Act having secured  a stay order from a court of law on commencement of court  martial and by the time the stay order is vacated  by the  court of law the bar of limitation provided by  Section 122 coming into play.

   On  the  meaning  which  we  are  placing  on  the  term impracticable  as  occurring in Rule 14(2) we  proceed  to provide  resolutions  to the several problems posed  by  the illustrations given by the learned ASG.  According to us:

   In  illustration  (i)  the  expiry   of  the  period  of limitation  prescribed  by Section 122 renders the trial  by court-martial  impracticable  on the wider meaning of  the term.   There  is  yet  another reason to  take  this  view. 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.   We  cannot,  by  an interpretative  process, read the bar of limitation provided by  Section  122  into Section 19 of the Act in spite  of  a clear  and  deliberate legislative abstention.  However,  we have  to  caution  that in such a case, though  power  under Section  19  read  with  Rule 14 may be  exercised  but  the question  may  still be __ who has been responsible for  the delay?   The period prescribed by Section 122 may itself  be taken   laying   down  a   guideline  for  determining   the culpability  of  delay.  In spite of power under Section  19 read  Rule  14  having become available to be  exercised  on account  of a trial by a court-martial having been  rendered impracticable  on  account of bar of limitation  created  by Section  122,  other considerations would assume  relevance, such  as  __ whether the facts or set of facts  constituting misconduct  being three years or more old have ceased to  be relevant for exercising the power under Section 19 read with Rule  14?   If  there  was  inaction  on  the  part  of  the authorities  resulting  into  delay and  attracting  bar  of limitation  under  Section  122  can it  be  said  that  the

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authorities  are  taking advantage of their own inaction  or default?   If  the answer be yes, such belated  decision  to invoke  Section  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 consequences of his misconduct  solely  because court martial  proceedings  have been  adjudged  illegal or unjust for the second time.   The power  under 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. The option to have a delinquent officer being tried by court martial having been so exercised and finding as to guilt and sentence  having been returned for or against the delinquent officer  by  the court martial for the second time, on  just and legal trial, ordinarily such finding and sentence should be  acceptable  so as to be confirmed.  Power to  annul  the proceedings  cannot  be  exercised repeatedly  on  the  sole ground  that  the finding or the sentence does not meet  the expectation of the confirming authority.  Refusal to confirm is  a  power to be exercised, like all other powers to  take administrative  decision,  reasonably and fairly and not  by whim,  caprice or obstinacy.  Exercising power under Section 19  read  with  Rule  14   consequent  upon  court   martial proceedings  being  annulled for the second time because  of having  been  found  to be illegal or unjust,  the  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.

   In  illustration  (v), the ball will be in the court  of the delinquent officer.  Once a stay order has been vacated, in  spite  of the expiry of limitation for  commencement  of court  martial 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.  In  Union of India & Ors.  Vs.  Major General Madan Lal Yadav (Retd.), (1996)  4  SCC 127, this court has invoked applicability  of the  maxim  nullus  commodum capere potest  de  injuria  sua propria  __ no man can take advantage of his own wrong __ to hold  that  the delinquent officer having himself created  a

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situation  withholding  commencement of trial, he  would  be estopped  from pleading the bar of limitation and the  trial commenced  on vacating of the judicial order of restraint on court   martial  shall  be  a  valid  trial.   The   learned Additional  Solicitor  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 tried by a  court martial  and hence would also not be liable to be  inflicted with  a  wide  variety  of punishments  awardable  by  court martial  under Section 71;  nevertheless he would be  liable to  be  dismissed or removed from service under Section  19, though  that action shall be capable of being taken  subject to  formation of opinion as to the undesirability of  person for  further  retention  in service.  We find merit  in  the submission of the learned ASG.

   Having  thus explained the law and clarified the same by providing  resolutions to the several illustrative  problems posed by the learned ASG for the consideration of this court (which  are illustrative and not exhaustive), we are of  the opinion  that  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.  A broad proposition  that power under Section 19 read with Rule 14 cannot be exercised solely on the ground of court martial proceedings having not commenced  within  the  period of limitation  prescribed  by Section  122 of the Act, cannot be accepted.  In the  scheme of  the Act and the purpose sought to be achieved by Section 19  read with Rule 14, there is no reason to place a  narrow construction  on  the term impracticable and therefore  on

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availability  or happening of such events as render trial by court-martial  impermissible  or legally impossible  or  not practicable,   the  situation  would  be  covered   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  court  shall  not  interfere  by substituting  its  own  satisfaction  or  opinion  for   the satisfaction  or  opinion  of the authority  exercising  the power.

   We  are  also of the opinion that Major Radha  Krishans case  lays  down propositions too broad to be acceptable  to the  extent it holds that once the period of limitation  for trial  by court martial is over, the authorities cannot take action  under  Rule  14(2).  We also do not agree  with  the proposition   that   for   the   purpose  of   Rule   14(2), impracticability  is a concept different from  impossibility (or  impermissibility,  for that matter).  The view  of  the court  in  that  case should be treated as confined  to  the facts  and circumstances of that case alone.  We agree  with submission  of the learned Additional Solicitor General that the  case of Dharam Pal Kukrety being a Three- Judges  Bench decision  of this court, should have been placed before  the Two-Judges  Bench  which  heard   and  decided  Major  Radha Krishans case.

   Reverting  back to the two cases under appeal before us, we  are of the opinion that the High Court was not right  in allowing  the  two  writ petitions filed  by  Harjeet  Singh Sandhu  and  Harminder  Kumar,   respectively,  by   placing reliance  on  the  decision  of this court  in  Major  Radha Krishans  case and holding that the exercise of power under Section 19 read with Rule 14 by the COAS was vitiated solely on  account of the bar of limitation created by Section  122 of the Act.  Both the judgments of the High Court, which are under  appeal,  are  accordingly  set  aside  and  the  writ petitions  filed  by the two respondents are directed to  be dismissed.   However, consistently with the observation made by  this  court vide para 18 of Major Dharam  Pal  Kukretys case,  we  would like to impress upon the Chief of the  Army Staff  and the Central Government, as the case may be,  that 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

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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,  of  course,   the requirement  of military discipline and the high  traditions of the Indian Army.  No order as to the costs.