JUDGMENT
Mukundakam Sharma, C.J.
1. This appeal is directed against the order dated 23rd September, 1999 passed by the learned Single Judge whereby the writ petition filed by the respondent was allowed with a further direction that the respondent should be reinstated in service with all consequential benefits.
2. While the respondent was working in Jaiselmer and was camping in GREF premises, an incident took place on 29th March, 1987, when one Mohinder Singh of 95 RCC (GREF), while reversing his vehicle, accidentally uprooted one of the pegs holding the wires of P-22 Radar Antena. It resulted in arguments between him and the Air Force personnel. The respondent herein picked up Mohinder Singh in service jeep and asked some personnel to accompany him. The said jeep left the camp at 11.30 p.m. so as to leave Mohinder Singh at a BSF post on Miyajalar Road 25 kms away. However, instead of stopping at BSF post, he drove past the BSF post by 5 to 6 kms and after getting down from the jeep, the respondent commanded his men to take Mohinder Singh to a desolate and inhospitable place which was about 100-150 meters left of the road, where he himself along with the other personnel used criminal force against Mohinder Singh, who was at that time totally drunk and wearing only a vest and an underwear. Mohinder Singh was not allowed to board the jeep thereafter and the pleadings of the Mohinder Singh to take him in the jeep were not heeded to by the respondent and he was left there alone to fend for himself.
3. The aforesaid incident was not reported to any other authority. On 31st March, 1987 GREF authorities lodged a complaint with the civil police about the disappearance of Mohinder Singh who was last seen with Air Force personnel on the night of 29th March, 1987. On 2nd April, 1987, a human skeleton was found at the same place where Mohinder Singh was left by the respondent on the night of 29/30 March, 1987. From the underwear and vest found near the skeleton, the body of Mohinder Singh was identified. Consequently, a Court of Inquiry was held, which blamed the respondent for not being prudent and also not showing human consideration in leaving Mohinder Singh at a desolate and inhospitable place and also for using criminal force against Mohinder Singh. A criminal case was also filed by the police under Sections 147, 365, 304 read with 149 of the Indian Penal Code against the respondent and others, which was finally decided on 12th January, 1990. The Sessions Court discharged all the accused on the ground that the prosecution has failed to establish prima facie case and also on the ground that no sanction of the Central Government under Section 197(2) of the Code of Criminal Procedure was obtained for prosecuting members of the Armed Forces. The respondent was dismissed from service by the Central Government under Section 19 of the Air Force Act, 1950 read with Rule 16 of the Air Force Rules, 1969 by issuing an order dated 22nd September, 1993. The said order came to be challenged in the writ petition.
4. The learned Single Judge after hearing the counsel for the parties held that no administrative action under the aforesaid provisions could have been commenced and taken beyond the period of three years ignoring the period of limitation prescribed by Section 121 of the Air Force Act. Consequently the order dated 22nd September, 1993 was set aside and the aforesaid direction was issued directing for reinstatement of the respondent in service with all consequential benefits.
5. The aforesaid findings and the decision of the learned Single Judge are under challenge in this appeal on which we have heard learned Counsel appearing for the parties.
6. Ms.Jyoti Singh, Advocate, appearing for the appellants, submitted that the bar contained in Section 121 of the Air Force Act, which prescribes a limitation of three years for the purpose of commencement of Court Martial proceedings, would not apply to the facts of the present case inasmuch as the action that was taken was pure and simply administrative action for which the bar of limitation would not apply at all.
7. Learned Counsel appearing for the respondent, however, refuted the aforesaid position and submitted that the provisions of Rule 16 of the Air Force Rules read with Section 121 of the Air Force Act envisage a position that the aforesaid power under the Air Force Rules, namely, Rule 16 could not be exercised in a manner which would get over the bar of limitation laid down in the Act. It was submitted by him that the provisions of Rule 16 in the instant case cannot override the specific and express provisions contained in Section 121 of the Act and, therefore, the administrative action under Rule 16 could not commence beyond the period of three years in view of the period of limitation, which is prescribed under the provisions of Section 121 of the Air Force Act. In support of the aforesaid contention, the counsel relied upon the decision of the Supreme Court in Major Radha Krishan v. Union of India and Ors. .
8. We have considered the aforesaid submission of the counsel appearing for the parties in the light of the records. We have also perused the aforesaid decision, which is relied upon by the counsel appearing for the respondent and also a subsequent decision of the Supreme Court in Union of India and Ors. v. Harjeet Singh Sandhu .
9. By the impugned order, the learned Single Judge allowed the writ petition holding that the principles enunciated in the case of Major Radha Krishan (supra) are squarely applicable to the case of the respondent wherein the Supreme Court has upheld the observations made by the Delhi High Court in Lt.Col. (T.S.) H.C. Dhingra v. Union of India and Anr. reported in 1988 (2) Delhi Lawyer 109 that in purported exercise of administrative power under Rule 14, in respect of allegations of misconduct friable by Court Martial, the authorities cannot override the statutory bar of Sub-section (1) of Section 122 of the Act for no administrative act or fiat can discard, destroy or annul a statutory provision. The learned Single Judge also held that administrative action under Rule 16 of the Air Force Rules cannot commence beyond the period of three years ignoring the period of limitation prescribed under Section 121 of the Air Force Act.
10. In order to appreciate the aforesaid contention, we deem it appropriate to extract herein below the provisions of Section 121 of the Air Force Act as also the provisions of Rule 16 of the Air Force Rules:
Section 121. 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 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 enrolment or for any of the offences mentioned in Section 37.
(3) In the computation of the period of time mentioned in Sub-section (1), any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, 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 an exemplary manner for not less than three years with any portion of the Air Force.
Rule 16. Dismissal or removal of officers for misconduct. – (1) An officer may be dismissed or removed from service for misconduct by the Central Government but before doing so and subject to the provisions of Sub-rule (2) he shall be given an opportunity to show cause against such action.
(2) Where the dismissal or removal of an officer is proposed on ground of misconduct which has led to his conviction by a criminal court, or where the Central Government is satisfied that for reasons to be recorded in writing, it is not expedient or reasonably practicable to do so, it shall not be necessary to give an opportunity to the officer of showing cause against his dismissal or removal.
(3) Where an officer has been convicted by a criminal court and the Central Government after examining the judgment of the criminal court in his case and considering the recommendation about him of the Chief of the Air Staff, is of opinion that further retention of such officer in the service is undesirable, that Government may dismiss or remove such officer from the service.
(4) In any case not falling under Sub-rule (3), when the Chief of the Air Staff after considering the reports on an officer’s misconduct, is of opinion that the trial of the officer by a court-martial is inexpedient or impracticable but the further retention of the officer in the service is undesirable, he shall so inform the officer and subject to the provisions of sub-rule
(5) furnish to the officer all reports adverse to him calling upon him to submit in writing within a reasonable period to be specified, his explanation in defense and any reasons which he may wish to put forward against his dismissal or removal.
(5) The Chief of the Air Staff may withhold from disclosure any report adverse to an officer or any portion thereof, if in his opinion its disclosure is not in the interests of the security of the State.
(6) If no explanation is received from the officer within the specified period or if the explanation received is considered to be not satisfactory or, when so directed by the Central Government, the reports against the officer as well as his explanation if any, shall be submitted to the Central Government by the Chief of the Air Staff together with his recommendation as to the dismissal or removal of the officer from the service.
(7) The Central Government may, after considering the reports against the officer and his defense, if any, and the recommendations of the Chief of the Air Staff, dismiss or remove the officer from service.
(8) In this rule and in Rule 17 the Chief of the Air Staff while submitting a case to the Central Government may recommend that instead of removing an officer from service, he may be compulsorily retired or that he should be called upon to resign his commission, and the Central Government in passing orders may instead of removing an officer from service, compulsorily retire him or give the officer an option to submit his resignation, and if he refuses to do so, remove him from the service.
11. The decision in Union of India v. Harjeet Singh Sandhu (supra) was rendered in respect of an army personnel. The provision, which was discussed in the said decision, was Sections 19, 122 of Army Act read with Rule 14(7) of Army Rules.
12. The issue, therefore, which arises for our consideration in this case is as to whether the appellant could have initiated and taken an administrative decision as envisaged under Rule 16 of Air Force Rules after expiry of the period of limitation as prescribed under Section 121 of the Air Force Act. A bare perusal of the aforesaid provision of Section 121 would indicate that the said period of limitation, which is prescribed, is for a trial by court martial as it clearly states that no trial by court-martial of any person shall be commenced after the expiration of a period of three years from the date of such offence.
13. In our considered opinion, Rule 16 on the other hand envisages completely a different situation. The said provision is pari materia with the provisions of Section 311(2) of the Constitution of India, for the provisions of Sub-rule (2) of Rule 16 of the Air Force Rules clearly lays down almost similar provisions. Be that as it may, the aforesaid power vests the Central Government empowering it to take action when the Chief of the Air Staff is of the opinion that trial of the officer by a Court Martial is inexpedient or impracticable but then further retention of such officer in service is also undesirable, in such a case after complying with the requirement of the aforesaid sub-rule, the concerned Air Force personnel could be dismissed or removed from service. The said power given under Rule 16 is an extra-ordinary power vested only with the Chief of the Air Force to be exercised only in appropriate case where it meets the parameter and ambit of the aforesaid provision. In the case of Union of India v. Harjeet Singh Sandhu (supra), almost a similar issue came up for consideration in which the Supreme Court held that provisions of Section 122 of the Army Act, which prescribes a period of limitation for the commencement of Court Martial proceedings, would not apply to a case where administrative action is taken. It was held in the said decision that the bar of limitation as provided under Section 122 of the Army Act cannot take away the exercise of power vested under Section 19 read with Rule 14, which may be exercised when it is found that it is impracticable and not reasonably practicable to hold an inquiry. In paragraph 36 of the said judgment the Supreme Court has held that 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 and, therefore, the bar of limitation of three years cannot be made applicable in case of action taken by use of powers under Section 19 read with Rule 14. The Court thereafter recorded its conclusion that expiry of the period of limitation under Section 122 of the Act would not ipso facto take away the use of powers under Section 19 read with Rule 14 and that such power is available to be exercised though in the facts and circumstances of an individual case. A word of caution was also issued in the said case holding that 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 process of the Court. The aforesaid decision also took notice of the decision in Major Radha Krishna’s case (supra), which laid down the proposition. While referring to the said decision, the Supreme Court in Union of India v. Harjeet Singh Sandhu (supra) observed:
42. We are also of the opinion that Major Radha Krishan’s 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 AIR 1985 SC 703 : 1986 LabIC 41 : 1985 Crl.LJ 913 being a Three- Judges Bench decision of this Court, should have been placed before the Two- Judges Bench which heard and decided Major Radha Krishan’s case.
14. In paragraph 43 again, it was what was held by the Supreme Court:
43. 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 Krishan’s case 1996 AIR SCW 1548 : AIR 1996 SC 3091 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 Kukrety’s case (AIR 1985 SC 703 : 1986 LabIC 41 : 1985 Crl.LJ 913) 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 respondents is taken, the conduct and behavior 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.
15. In our considered opinion, therefore, the decision in Major Radha Krishan (supra) is not applicable to the facts and circumstances of this case. Consequently, we are also of the considered opinion that the ratio of the decision of Union of India v. Harjeet Singh Sandhu (supra) will apply. The bar of limitation cannot be made applicable. It could not be shown as to how the order passed by the appellant could be said to be an order which was passed under colourable exercise of power or an abuse of process of the Court.
16. We have also examined the original file produced by the appellant-Indian Air Force. Reading of the nothings on the said file will reveal that order of summary dismissal was passed not merely on the ground that disciplinary action had become time barred, but on account of seriousness of the misconduct which it was felt was bordering on perversity, and also keeping in mind the relationship between the two services, viz. Indian Air Force and GREF. It was observed that it had far-reaching ramifications. It was felt that there is sufficient moral convincing evidence to show culpability of the officer in the sordid episode, which eventually resulted in loss of human life. It is in these circumstances it was held that it was inexpedient and impracticable to proceed departmentally against the officer but retaining him in the services was undesirable. In paragraph 16 of the note dated 5th June, 1992, specific reasons were recorded by the Wing Commander. It was noticed that it was not possible administratively to get the personnel involved taken back to Jaisalmer for trial by a court martial. There was also question of inter service implication and procuring GREF witnesses was extremely difficult. Copy of the criminal court judgment made available in January, 1990 was examined and it was noticed that the discharge was on technical grounds.
17. Keeping in view the nature of evidence available, it was felt that trial by Court Martial would not meet the ends of justice. It was felt that Squadron Leader had acted in most inofficer like manner and in complete disregard of human life by leaving GREF driver Mr. Mohinder Singh at a desolate place in a desert at night, where no help whatsoever was available. Mr. Mohinder Singh ultimately died due to the inhuman behavior. It may also be noted that Mr. Mohinder Singh was intoxicated and was in undergarments was left to fend for himself in the middle of a desert. The conduct of the respondent was found to be inhuman and devoid of any human feelings.
18. The facts stated above reveal that it is not on account of expiry of the statutory period, but for the reasons that Court Martial was not expedient and impracticable, that recourse to Rule 16 was taken. It is these factors which ultimately prevailed upon the authorities including the officers at the highest level. The file nothings show that there was consultation, examination and only thereafter it was decided that the officer had indulged in gross- misconduct leading to death of an individual and, therefore, in terms of Rule 16 he was dismissed from service.
19. Therefore, the appeal is allowed. We set aside the order passed by the learned Single Judge. The appeal stands disposed of in terms of the aforesaid order.