http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (civil)  2764 of 2007

PETITIONER: Union of India & Anr

RESPONDENT: V.N. Saxena

DATE OF JUDGMENT: 01/04/2008

BENCH: DR. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: JUDGMENT

CIVIL  APPEAL NO. 2764 OF 2007

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of a Division  Bench of the Uttranchal High Court allowing the writ petition  filed by the respondent. The respondent had filed the writ  petition under Article 226 of the Constitution of India, 1950 (in  short the ’Constitution’) questioning the order dated 13.11.1990  whereby his services were terminated by orders of the Chief of  Army Staff.  

2.      The High Court primarily relied on a decision of this Court  in Major Radha Krishan v. Union of India & Ors. (AIR 1996 SC  3091) and allowed the writ petition.

3.      The stand of the appellants is that the High Court failed to  notice that the relied-upon decision was held to be not correctly  decided by a three judge Bench in Union of India & Ors. v.  Harjeet Singh Sandhu [2001(5) SCC 593].

4.      Learned counsel for the respondent submitted that the  decision of the High Court was not based only on Major Radha  Krishan’s case (supra) but on other grounds.

5.      The High Court allowed the writ petition with the following  conclusions:

       "In Major Radha Krishan v. Union of  India & Ors. (AIR 1996 SC 3091, the Hon’ble  Apex Court has held that where the trial by  Court-Martial against the offences committed  by an army personnel was barred by limitation  under Section 122 of the Act, the summary  procedure for termination under R.14(2) of the  Rules, cannot be followed on the ground that  the trial by Court-Martial was inexpedient or  impracticable. Such a satisfaction that the trial  was inexpedient or impracticable can be  arrived only at a time when trial by a Court  Martial is permissive or possible. In view of the  said principle of law and for the reasons as  discussed above by us, the impugned order by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

which the services of the petitioner were  dismissed is liable     to be quashed.    Accordingly the writ petition is allowed. The  impugned order is quashed.  The petitioner  shall be entitled to the consequential benefits,  admissible (as of right) to him under the rules  treating him Captain, the post he held on the  date when the impugned order was passed.   No order as to costs."

6.      In Harjeet Singh Sandhu’s case (supra) the scope and ambit  of the Army Act, 1950 (in short the ’Act’) and Rule 40 of the Army  Rules, 1954 (in short the ’Rules’) inter alia fell per consideration.   This court also referred to earlier decision in Chief of Army Staff  v. Major Dharam Pal Kukrety [1985(2) SCC 412].

7.      In Harjeet Singh Sandhu’s case (supra) it was inter alia  observed as follows:

37. 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 Additional Solicitor- General. 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 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 \027 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  with 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 \027 whether the facts or set  of facts constituting misconduct being three  years old or more 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 in delay and  attracting bar of limitation under Section 122  can it be said that the 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  mala fide exercise of power.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

38. In Illustration (ii), the Court Martial has  stood dissolved for fortuitous circumstance for  which no one is to be blamed \027 neither the  Chief of the Army Staff 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.

41. Having thus explained the law and  clarified the same by providing resolutions to  the several illustrative problems posed by the  learned Additional Solicitor-General 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 a 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 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 \027 the trial  by Court Martial having become  "impracticable".

43. We are also of the opinion that Major  Radha Krishan case (supra) lays down  propositions too broad to be acceptable to the  extent it holds that once the period of

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

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 the submission of the learned Additional  Solicitor-General that the case of Dharam Pal  Kukrety’s case (supra) being a three-Judge  Bench decision of this Court, should have been  placed before the two-Judge Bench which  heard and decided Major Radha Krishan case  (supra).

8.      Since the foundation of the impugned judgment of the High  Court is Major Radha Krishnan’s case (supra), we therefore, set  aside the impugned order of the High Court and remit the matter  to it for a fresh consideration keeping in view the position in law  as delineated in Harjeet Singh Sandhu’s case (supra).  Since the  matter is pending long we request the High Court to dispose of  the Writ Petition as early as practicable preferably by the end of  September, 2008.

9.      The appeal is allowed to the aforesaid extent.  No costs.