{"id":134103,"date":"2001-04-11T00:00:00","date_gmt":"2001-04-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/u-o-i-ors-vs-harjeet-singh-sandhu-on-11-april-2001"},"modified":"2015-07-02T13:25:50","modified_gmt":"2015-07-02T07:55:50","slug":"u-o-i-ors-vs-harjeet-singh-sandhu-on-11-april-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/u-o-i-ors-vs-harjeet-singh-sandhu-on-11-april-2001","title":{"rendered":"U.O.I. & Ors vs Harjeet Singh Sandhu on 11 April, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
U.O.I. & Ors vs Harjeet Singh Sandhu on 11 April, 2001<\/div>\n
Author: R Lahoti<\/div>\n
Bench: Cji, R.C. Lahoti, Brijesh Kumar<\/div>\n
           CASE NO.:\nAppeal (civil) 2721  of  2001\nAppeal (civil)\t2722\t of  2001\n\n\n\nPETITIONER:\nU.O.I. & ORS.\n\n\tVs.\n\nRESPONDENT:\nHARJEET SINGH SANDHU\n\nDATE OF JUDGMENT:\t11\/04\/2001\n\nBENCH:\nCJI, R.C. Lahoti & Brijesh Kumar\n\n\n\n\nJUDGMENT:\n<\/pre>\n
R.C. Lahoti, J.\n<\/p>\n
L…I…T…….T…….T…….T…….T…….T…….T..J<\/p>\n
    Harjeet  Singh  Sandhu,  the   respondent  in  S.L.P.(C)
\nNo.5155\/1998  was  a  captain  in the Army.   On  the  night
\nintervening  27th  & 28th March, 1978, the respondent  along
\nwith  three other officers interrogated one Bhagwan Das, who
\nwas  also a defence employee, in connection with an incident
\nof theft.  During the course of interrogation the respondent
\nand his co-associates used third degree methods in orders to
\nextract\t a confession as a result whereof Bhagwan Das  died.
\nA  General Court martial (GCM, for short) was convened under
\nSection 109 of Army Act, 1950 which tried the respondent and
\nthe  other  officers.\tOn 26.12.1978 the  GCM\tawarded\t the
\nsentence of forfeiture of three years service for purpose of
\npromotion  and\tsevere\treprimand to  the  respondent.\t The
\nconfirming  authority  formed an opinion that  the  sentence
\npassed on the respondent was very lenient and therefore vide
\norder  dated 19.4.1979, in exercise of the powers  conferred
\nby  Section  160  of  the Army Act sent the  case  back\t for
\nrevision.   On 10.5.1979, the GCM, on revision, enhanced the
\npunishment  inflicted  on  the respondent to  forfeiture  of
\nthree years of service for the purpose of promotion and also
\nfor  the purpose of pay and pension.  On 24.9.1979 the Chief
\nof  the\t Army  Staff in exercise of the power  conferred  by
\nSection\t 165 annulled the GCM proceedings on the ground that
\nthe  proceedings  were unjust.\tOn 20.12.1979, a show  cause
\nnotice\twas issued to the respondent under Section 19 of the
\nAct  read with Rule 14 of the Army Rules, 1954\t(hereinafter
\nthe  Rules,  for short) calling upon the respondent to\tshow
\ncause  why his services should not be terminated.  Reply was
\nfiled  by the respondent defending himself.  On 16.7.1982  a
\nfresh  show  cause  notice  was\t issued\t to  the  respondent
\nrequiring  him\tto  show  cause\t  why  his  service  be\t not
\nterminated  under  Section 19 read with Rule 14.   Both\t the
\nnotices\t dated 20.12.1979 and 16.7.1982 recorded on the part
\nof the Chief of the Army Staff – (i) a satisfaction that the
\nrespondents  retrial  by a court martial consequent to\tthe
\nannulment of the GCM proceedings was impracticable, and (ii)
\nformation of opinion that the respondents further retention
\nin  the\t service  was undesirable.  The latter\tnotice\talso
\nstated\tthat the earlier notice was thereby cancelled though
\nthe  reason  for such cancellation was not  mentioned.\t The
\nrespondent  filed  a  reply  dated 9.9.1982  in\t defence  of
\nhimself.   On 2.1.1984 the Chief of the Army Staff passed an
\norder  dismissing the respondent from service.\tOn 16.2.1984
\nthe  respondent filed a civil writ petition before the\tHigh
\nCourt  of  Allahabad  laying  challenge\t  to  the  order  of
\ntermination.  The singular contention raised before the High
\nCourt  was  that the incident, in which the  respondent\t was
\ninvolved  had  taken place in the night intervening  27th  &
\n28th  March,  1978 and Court martial proceedings had  become
\nbarred\tby time on 28th March, 1981 under Section 122 of the
\nAct whereafter Section 19 of the Act was not available to be
\ninvoked.   The\tHigh  Court  of Allahabad  in  its  impugned
\njudgment,  formed an opinion that the decision of this Court
\nin Major Radha Krishan Vs.  Union of India (1996) 3 SCC 507,
\nsquarely applies to the facts of this case and therefore the
\nexercise  of  power under Section 19 read with Rule  14\t was
\nvitiated.   The\t writ  petition\t has been  allowed  and\t the
\nimpugned  order\t of  termination  dated\t 2.1.1984  has\tbeen
\nquashed.\n<\/p>\n
    In S.L.P.(C) No.3233\/2000 the respondent Harminder Kumar
\nwas  a Captain in the Army.  In the year 1979 the respondent
\nwas found blameworthy for discrepancies in respect of stocks
\nin Fuel Petroleum Depot, Leh between the period 10.3.1979 to
\n22.3.1979.   Summary  of evidence having been  recorded,  on
\n5.8.1981  a General Court Martial was ordered to be convened
\non  18.8.1981.\t On 14.8.1981 the respondent filed  a  civil
\nwrit  petition under Article 32 of the Constitution of India
\nin  this Court wherein, by an interim order, the proceedings
\nin  the\t court\tmartial\t were directed\tto  be\tstayed.\t  On
\n26.11.1982  the\t writ petition filed by the  respondent\t was
\ndismissed,  consequent\twhereupon the interim order of\tstay
\nalso stood vacated.  On 7.2.1983 the respondent was informed
\nthat  General Court Martial against the respondent was fixed
\nto  be\tconvened  on 28.2.1984.\t However, on  28.2.1984\t the
\nChief  of the Army Staff in exercise of the power  conferred
\nby  Section  19\t read with Rule 14 issued a  notice  to\t the
\nrespondent  calling upon him to show cause why his  services
\nbe not terminated in view of the fact that the court martial
\nproceedings  against  the respondent were impracticable\t and
\nthe  Chief of the Army Staff was of the opinion that further
\nretention of the rspondent in the service was not desirable.
\nImmediately,  the  respondent filed a writ petition  in\t the
\nHigh  Court  of\t Delhi\tsubmitting that\t the  general  court
\nmartial proceedings having become barred by time against him
\non  account  of\t lapse of three years from the date  of\t the
\noffence,  the notice issued to him was without jurisdiction.
\nVide  order  dated  8th September, 1998 the High  Court\t has
\nheld,  placing\treliance  on the decision of this  Court  in
\nMajor  Radha  Krishan Vs.  Union of India (1996) 3 SCC\t507,
\nthat   once  the  court\t  martial  proceedings\thave  become
\ntime-barred  the Chief of the Army Staff could not have\t had
\nrecourse  to Section 19 of the Act read with Rule 14 of\t the
\nRules.\tConsequently, the writ petition has been allowed and
\nshow  cause  notice dated 8th February, 1984 directed to  be
\nquashed.\n<\/p>\n
    The Union of India has filed these petitions for special
\nleave to appeal.\n<\/p>\n
\tDelay condoned in filing SLP(C) No.5155\/1998.\n<\/p>\n
\tLeave granted in both the SLPs.\n<\/p>\n
    We\thave heard Shri Altaf Ahmad, the learned  Additional
\nSolicitor  General  for the appellant and Shri\tPrem  Prasad
\nJuneja,\t Ms.   Indu  Malhotra  and  Shri  A.   Mariarputham,
\nAdvocates for the respondents.\tThe principal plea raised on
\nbehalf\tof  the\t appellant  and forcefully  pressed  by\t the
\nlearned\t Additional Solicitor General at the time of hearing
\nwas  that  Major  Radha\t Krishans case\twas  not  correctly
\ndecided and therefore needs to be reconsidered by this Court
\nfor  two  reasons :  firstly, because Major Radha  Krishans
\ncase  is a decision rendered by two Judges-Bench which\tdoes
\nnot  take notice of the law laid down by this Court in Chief
\nof  Army Staff Vs.  Major Dharam Pal Kukrety – (1985) 2\t SCC
\n412 which is three-Judges Bench decision;  and secondly, the
\nproposition  laid  down\t therein is too wide  a\t proposition
\nwholly\tunsustainable in the light of the express provisions
\ncontained  in  the  Army  Act and the  Army  Rules  and\t the
\nunderlying scheme of the Legislation.\n<\/p>\n
    We\twould first set out the facts in brief and the ratio
\nof the decisions rendered by this Court in the case of Major
\nRadha  Krishan (supra) and Major Dharam Pal Kukrety  (supra)
\nbefore\tdealing with other contentions raised by the learned
\ncounsel\t  for  the  parties  because   the  major  part\t  of
\nsubmissions  made  by the learned counsel centre around\t the
\nabovesaid two decisions.\n<\/p>\n
    To\tappreciate  the ratio of the abovesaid two cases  it
\nwill  be necessary to keep in view the provisions  contained
\nin  Sections 19 and 122 of the Army Act, 1950 and Rule 14 of
\nArmy   Rules,  1954  which   are  extracted  and  reproduced
\nhereunder :-\n<\/p>\n
Army Act, 1950<\/p>\n
    19.\t  Termination  of service by Central Government.   –
\nSubject\t to  the  provisions of this Act and the  rules\t and
\nregulations  made  thereunder  the  Central  Government\t may
\ndismiss,  or remove from the service, any person subject  to
\nthis Act.\n<\/p>\n
    122.   Period of limitation for trial.  – (1) Except  as
\nprovided  by  sub-section (2), no trial by court-martial  of
\nany  person  subject  to this Act for any offence  shall  be
\ncommenced  after  the expiration of a period of three  years
\n[and such period shall commence, –\n<\/p>\n
    (a) on the date of the offence;  or<\/p>\n
    (b) where the commission of the offence was not known to
\nthe  person  aggrieved\tby the offence or to  the  authority
\ncompetent  to  initiate action, the first day on which\tsuch
\noffence\t comes to the knowledge of such person or authority,
\nwhichever is earlier;  or<\/p>\n
    (c)\t where\tit  is\tnot known by whom  the\toffence\t was
\ncommitted,  the\t first\tday  on which the  identity  of\t the
\noffender  is known to the person aggrieved by the offence or
\nto  the authority competent to initiate action, whichever is
\nearlier.\n<\/p>\n
    (2) The provisions of sub-section (1) shall not apply to
\na  trial for an offence of desertion or fraudulent enrolment
\nor for any of the offences mentioned in section 37.\n<\/p>\n
    (3)\t In the computation of the period of time  mentioned
\nin  sub-section\t (1),  any time spent by such  person  as  a
\nprisoner of war, or in enemy territory, or in evading arrest
\nafter the commission of the offence, shall be excluded.\n<\/p>\n
    (4)\t No  trial  for an offence of desertion\t other\tthan
\ndesertion on active service or of fraudulent enrolment shall
\nbe  commenced  if  the\tperson in  question,  not  being  an
\nofficer,  has subsequently to the commission of the offence,
\nserved\tcontinuously  in any exemplary manner for  not\tless
\nthan three years with any portion of the regular Army.\n<\/p>\n
Army Rules,  1954<\/p>\n
    [14.   Termination of service by the Central  Government
\non  account  of\t misconduct.  – (1) When it is\tproposed  to
\nterminate  the\tservice\t of an officer under section  19  on
\naccount\t of misconduct, he shall be given an opportunity  to
\nshow  cause in the manner specified in sub- rule (2) against
\nsuch action –\n<\/p>\n
     Provided that this sub-rule shall not apply –\n<\/p>\n
    (a)\t where\tthe service is terminated on the  ground  of
\nmisconduct  which  has led to his conviction by\t a  criminal
\ncourt;\tor<\/p>\n
    (b)\t where the Central Government is satisfied that\t for
\nreasons,  to be recorded in writing, it is not expedient  or
\nreasonably practicable to give to the officer an opportunity
\nof showing cause.\n<\/p>\n
    (2)\t When after considering the reports on an  officers
\nmisconduct,  the Central Government or the Chief of the Army
\nStaff  is  satisfied  that  the trial of the  officer  by  a
\ncourt-martial is inexpedient or impracticable, but is of the
\nopinion,  that the further retention of the said officer  in
\nthe  service  is  undesirable, the Chief of the\t Army  Staff
\nshall  so  inform  the\tofficer together  with\tall  reports
\nadverse\t to  him  and he shall be called upon to  submit  in
\nwriting, his explanation and defence:\n<\/p>\n
    Provided  that the Chief of the Army Staff may  withhold
\nfrom  disclosure  any such report or portion thereof if,  in
\nhis  opinion,  its disclosure is not in the interest of\t the
\nsecurity of the State.\n<\/p>\n
    In\tthe  event of the explanation of the  officer  being
\nconsidered unsatisfactory by the Chief of the Army Staff, or
\nwhen  so directed by the Central Government, the case  shall
\nbe  submitted to the Central Government, with the  officers
\ndefence\t and  the  recommendation of the Chief of  the\tArmy
\nStaff  as to the termination of the officers service in the
\nmanner specified in sub-rule (4).\n<\/p>\n
    (3)\t Where,\t upon  the  conviction of an  officer  by  a
\ncriminal  court, the Central Government or the Chief of\t the
\nArmy  Staff considers that the conduct of the officer  which
\nhas  led to his conviction renders his further retention  in
\nservice\t undesirable a certified copy of the judgment of the
\ncriminal  court\t convicting  him shall be submitted  to\t the
\nCentral\t Government with the recommendation of the Chief  of
\nthe  Army  Staff  as  to the termination  of  the  officers
\nservice in the manner specified in sub-rule (4).\n<\/p>\n
    [(4)  When\tsubmitting a case to the Central  Government
\nunder  the provisions of sub-rule (2) or sub- rule (3),\t the
\nChief  of  the\tArmy  Staff shall  make\t his  recommendation
\nwhether\t the officers service should be terminated, and\t if
\nso, whether the officer should be –\n<\/p>\n
\t(a)  dismissed from service; or<\/p>\n
\t(b)  removed  from service; or<\/p>\n
\t(c)  Compulsorily retired from the service.\n<\/p>\n
    (5) The Central Government after considering the reports
\nand  the  officers defence, if any, or the judgment of\tthe
\ncriminal  court, as the case may be, and the  recommendation
\nof the Chief of the Army Staff, may –\n<\/p>\n
(a)\tdismiss or remove the officer with or
\nwithout pension or gratuity; or<\/p>\n
(b)\tcompulsorily retire him from the
\nservice with pension and gratuity, if
\nany, admissible to him.\n<\/p>\n
    Other provisions of the Act and the Rules, to the extent
\nnecessary, shall be adverted to as and when required.\n<\/p>\n
    In\tMajor Radha Krishans case the officer had committed
\nmisconduct and the trial thereof by Court martial had become
\ntime-  barred  under Section 122 of the Act  whereafter,  on
\n10.9.1990,  a  notice  was issued by the Chief of  the\tArmy
\nStaff  to the officer which inter alia stated – and whereas
\nthe  COAS is further satisfied that your trial for the above
\nmisconduct  is\timpracticable having become time- barred  by
\nthe time the court of inquiry was finalised and he is of the
\nopinion\t  that\t your  further\t retention  in\tservice\t  is
\nundesirable.  This Court for the purpose of finding out the
\nmeaning\t of impracticable, the term occurring in  sub-rule
\n(2)  of\t Rule  14,  referred   to  dictionary  meanings\t  of
\nimpracticable,\tand inexpedient and then concluded  that
\nimpracticability    is\t a     concept\t different    from
\nimpossibility for while the latter is absolute, the former
\nintroduces  at all events some degree of reason and involves
\nsome  regard  for practice.  As the provision of  limitation
\nprescribed under the Act prohibited a trial by court martial
\nbeing  held  on\t expiry of the period of limitation  such  a
\nprovision could not be overridden by invoking Section 19 and
\nthus  achieving\t a  purpose by an administrative  act  which
\ncould  not be achieved by holding a trial under a  statutory
\nprovision.    Once  a  misconduct   was\t  rendered   legally
\nimpossible  and impermissible to be tried on account of\t bar
\nof  limitation\tit could not be said that the trial  of\t the
\nofficer\t was impracticable and therefore resort could not be
\nhad  to sub-Rule (2) of Rule 14.  Vide para 10, yet  another
\nreason\tassigned by this court is that the satisfaction with
\nregard\tto  inexpediency or impracticability of a  trial  by
\nCourt  martial\tmust be arrived at only on consideration  of
\nthe  reports  of misconduct for the purpose of resorting  to
\nRule  14.   The satisfaction regarding the  inexpediency  or
\nimpracticability  to hold a Court martial must flow from the
\nnature and the context of the misconduct itself and not from
\nany  other extraneous factor such as that the Court  martial
\nproceedings   had  become   time-barred.   This\t  contention
\nadvanced  on  behalf of the officer was, in the view of\t the
\ncourt,\tindefensible.\tVide paras 11 and 12,  this  court
\nheld  that the misconduct and other attending  circumstances
\nrelating  thereto have to be the sole basis for obtaining  a
\nsatisfaction within the meaning of Rule 14(2) and dispensing
\nwith a trial on a satisfaction de hors the misconduct – like
\nthe  bar of limitation – will be wholly alien to rule 14(2).
\nDharam\tPal  Kukretys  case was neither placed\tbefore\tnor
\nconsidered  by\tthe  learned  judges  deciding\tMajor  Radha
\nKrishans case.\n<\/p>\n
    Major  Dharam  Pal Kukrety was a permanent\tcommissioned
\nofficer\t of the Indian Army holding the substantive rank  of
\nCaptain and acting rank of Major.  He was tried by a general
\ncourt martial on four charges referable to certain incidents
\nwhich  had taken place on November 6 and 7, 1975.  On  March
\n13, 1976 the court martial announced its finding (subject to
\nconfirmation)  of  not\tguilty of all  the  charges.   The
\nconfirming  authority  did  not confirm the verdict  and  by
\norder  dated  April  3,\t 1976  sent  back  the\tfinding\t for
\nrevision.   The\t same general court martial re-assembled  on
\nApril  14,  1976.   Once again the  general  court  martial,
\nadhering  to  its original view, announced the finding\tthat
\nthe  respondent was not guilty of all the charges (subject
\nto  confirmation).  On May 25, 1976 the confirming authority
\nrefused\t to confirm the finding and promulgated, as required
\nby Rule 71, the charges against the officer, the findings of
\nthe   court  martial  and   the\t non-confirmation   thereof.
\nThereafter,  the  Chief of the Army Staff  exercising  power
\nunder  Rule 14 issued a show cause notice dated November 12,
\n1976  which  notice recorded inter alia the satisfaction  of
\nthe  COAS that a fresh trial by a court martial for the said
\noffences  was  inexpedient,  as also his  opinion  that\t the
\nofficers  misconduct rendered his further retention in\tthe
\nservice\t undesirable.\tThe  officer   filed  a\t civil\twrit
\npetition  in the High Court of Allahabad laying challenge to
\nthe  validity  of the show cause notice.  The contention  of
\nthe  officer was that there was an initial option either  to
\nhave  the officer tried by a court martial or to take action
\nagainst\t him  under  Rule  14 and  the\toption\thaving\tbeen
\nexercised  to  try  him by a court martial and\tthe  officer
\nhaving been acquitted both at the time of the original trial
\nand  on revision, it was not competent for the Chief of\t the
\nArmy  Staff  to\t have recourse to Rule 14.   The  contention
\nfound  favour with the High Court.  The High Court held that
\nthe  officer  having been in fact tried by a  court  martial
\ntwice and a verdict of not guilty having been rendered twice
\nthe  impugned notice under Rule 14 was without jurisdiction.
\nIn  the\t appeal preferred by Chief of the Army Staff  before
\nthis  Court  two  contentions were raised on behalf  of\t the
\nofficer :  firstly, that it could not be said that the trial
\nof  the\t officer  by  a court  martial\twas  inexpedient  or
\nimpracticable  as  in  fact  he had been tried\tby  a  court
\nmartial;   and secondly, that on a true construction of Rule
\n14 the Central Government or the Chief of the Army Staff had
\nan  initial  option  to have the officer tried\tby  a  court
\nmartial\t or to take action against him under Rule 14 and  if
\nthe  decision to have the officer tried by court martial was
\ntaken  then action under Rule 14 was not permissible in case
\nof finding of acquittal being rendered by the court martial.
\nVide  para  14,\t this court noticed  decisions\trendered  by
\ndifferent  High Courts of the country throwing light on\t the
\nissue  before  the Court.  Allahabad High Court was  of\t the
\nview  that  in spite of non-confirmation of the finding\t and
\nsentence  passed  by  the  court martial  such\tfinding\t and
\nsentence  did exist though they could not be put into effect
\nfor  want  of confirmation and therefore a second  trial  by
\ncourt  martial would be barred.\t Jammu & Kashmir High  Court
\nwas  of\t the  view  that  the  Legislature  could  not\thave
\nreasonably  intended  that  an officer convening  a  general
\ncourt  martial can go on dissolving such courts martial\t and
\nreconstituting them ad infinitum until he obtained a verdict
\nor  a finding of his own liking.  Such a decision would\t not
\nonly  be against public policy and violative of the rule  of
\ndouble\tjeopardy but would also reduce the provisions of the
\nArmy  Act to a mockery and give an appearance of mala fides.
\nHaving noticed the decisions of High Courts, this Court then
\nconcentrated on the question whether in such a case trial by
\na court martial is inexpedient or impracticable?  Dictionary
\nmeaning\t of the term inexpedient was relied on.\t The Court
\nthen summed up its conclusion as under :-\n<\/p>\n
    In\tthe present case, the Chief of the Army Staff  had,
\non  the\t one hand, the finding of a general  court-  martial
\nwhich had not been confirmed and the Chief of the Army Staff
\nwas  of\t the  opinion  that the\t further  retention  of\t the
\nrespondent  in the service was undesirable and, on the other
\nhand,  there  were the above three High Court decisions\t and
\nthe point was not concluded by a definitive pronouncement of
\nthis  Court.  In such circumstances, to order a fresh  trial
\nby  a  court-martial  could  certainly be said\tto  be\tboth
\ninexpedient  and  impracticable and the only  expedient\t and
\npracticable course, therefore, open to the Chief of the Army
\nStaff  would be to take action against the Respondent  under
\nRule  14, which he did.\t The action of the Chief of the Army
\nStaff in issuing the impugned notice was, therefore, neither
\nwithout jurisdiction nor unwarranted in law.\n<\/p>\n
    The\t decision  of Allahabad High Court under appeal\t was
\nreversed  and  the  writ petition filed\t by  the  respondent
\ntherein was directed to be dismissed.\n<\/p>\n
    We\twould revert back to the above two decisions of this
\nCourt  a  little afterwards.  We now proceed to\t notice\t the
\nlegislative scheme underlying Section 19 of the Act and Rule
\n14  of the Rules.  Section 19 of the Act and Rule 14 of\t the
\nRules  are to be read together and as integral parts of\t one
\nwhole  scheme.\tSection 191 of the Act empowers the  Central
\nGovernment  generally  to  make\t rules for  the\t purpose  of
\ncarrying  into effect the provisions of this Act and without
\nprejudice  to the generality of such power, specifically  to
\nmake rules providing for inter alia the removal, retirement,
\nrelease\t or discharge from the service of persons subject to
\nthe Army Act.  Section 19 empowers the Central Government to
\ndismiss\t or  remove from the service any person\t subject  to
\nthis  Act  which  power\t is subject  to:   (i)\tthe  (other)
\nprovisions  of this Act, and (ii) the rules and\t regulations
\nmade under the Act.  Under Section 193, all rules made under
\nthe  Act  shall be published in the official gazette and  on
\nsuch  publication  shall have effect as if enacted  in\tthis
\nAct.   Under Section 193-A, such rules shall be laid  before
\neach  House of Parliament.  In State of U.P.  Vs Babu Ram  –
\nAIR  1961  SC 751 the Constitution Bench has  held,  quoting
\nfrom  Maxwell on Interpretation of Statutes, that rules made
\nunder  a  Statute  must\t be  treated  for  all\tpurposes  of
\nconstruction  or  obligation exactly as if they were in\t the
\nAct  and are to be of the same effect as if contained in the
\nAct,  and  are to be judicially noticed for all purposes  of
\nconstruction  and obligation;  an action taken under the Act
\nor  the rules made thereunder must confirm to the provisions
\nof  the\t Act  and the rules which have\tconferred  upon\t the
\nappropriate  authority\tthe  power to take an  action.\t The
\nConstitution  Bench decision has been followed by this court
\nin State of Tamil Nadu Vs.  M\/s Hind Stone – AIR 1981 SC 711
\nholding that a statutory rule, while ever subordinate to the
\nparent\tstatute, is, otherwise, to be treated as part of the
\nstatute\t and  as  effective.   [Also  see  Peerless  General
\nFinance and Investment Co.Ltd.\tVs.  Reserve Bank of India –
\nAIR 1992 SC 1033, para 54.]<\/p>\n
    Section  19\t and Rule 14 so read together and  analysed,
\nthe following legal situation emerges :-\n<\/p>\n
    1)\tThe  Central Government may dismiss, or remove\tfrom
\nthe  service,  any person subject to the Army Act, 1950,  on
\nthe ground of misconduct.\n<\/p>\n
    2)\tTo initiate an action under Section 19, the  Central
\nGovernment  or the Chief of the Army Staff after considering
\nthe reports on an officers misconduct ;\n<\/p>\n
    a)\tmust be satisfied that the trial of the officer by a
\nCourt martial is inexpedient or impracticable,<\/p>\n
    b)\tmust be of the opinion that the further retention of
\nthe said officer in the service is undesirable.\n<\/p>\n
    3.\t Such  satisfaction having been arrived at and\tsuch
\nopinion\t having\t been  formed,\tas  abovesaid,\tthe  officer
\nproceeded  against  shall  be given an opportunity  to\tshow
\ncause  against\tthe proposed action which opportunity  shall
\ninclude the officer being informed together with all reports
\nadverse\t to  him  to submit in writing his  explanation\t and
\ndefence.   Any report on an officers misconduct or  portion
\nthereof\t may be withheld from being disclosed to the officer
\nconcerned  if the Chief of the Army Staff is of the  opinion
\nthat  such disclosure is not in the interest of the security
\nof the State.\n<\/p>\n
    4)\tOpportunity to show cause in the manner as abovesaid
\nneed  not be given to an officer in the following two  cases
\n:-\n<\/p>\n
    a)\t Where\tthe  misconduct\t  forming  the\tground\t for
\ntermination of service is one which has led to the officers
\nconviction by a criminal court;\n<\/p>\n
    b)\tWhere  the Central Government is satisfied that\t for
\nreasons,  to be recorded in writing, it is not expedient  or
\nreasonably practicable to give to the officer an opportunity
\nof showing cause.\n<\/p>\n
    5) The explanation of the officer shall be considered by
\nthe  Chief  of the Army Staff.\tIf the explanation is  found
\nsatisfactory,  further proceedings need not be pursued.\t The
\nexplanation,  if  considered unsatisfactory by the Chief  of
\nthe   Army  Staff  or  when  so\t directed  by  the   Central
\nGovernment,  in\t either\t case,\tshall be  submitted  to\t the
\nCentral\t Government  with  the\tofficers  defence  and\tthe
\nrecommendation\tof  the\t COAS as to the termination  of\t the
\nofficers  service  i.e.\t whether the officer should be\t(a)
\ndismissed, or (b) removed, or (c) compulsorily retired, from
\nthe service.\n<\/p>\n
    6)\tThe  Central  Government  shall\t after\ttaking\tinto
\nconsideration  the reports (on the officers misconduct) the
\nofficerss  defence,  if any, and the recommendation of\tthe
\nCOAS,  shall  take a decision which if unfavourable  to\t the
\nofficer\t may be (a) to dismiss or remove the officer with or
\nwithout\t pension or gratuity;  or (b) to compulsorily retire
\nhim  from  service  with  pension   and\t gratuity,  if\tany,
\nadmissible to him.\n<\/p>\n
    The\t case of an officer whose service is proposed to  be
\nterminated  on the ground of misconduct which has led to his
\nconviction by a criminal court is to be treated differently.
\nHe  need  not be given an opportunity to show cause  against
\nthe  proposed termination.  A decision as to termination  in
\none  of the modes provided by sub-rule (4) of Rule 14 can be
\ntaken  by  the\tCentral\t Government on its  own\t or  on\t the
\nrecommendation\tof  the\t Chief\tof  the\t Army  Staff  if  he
\nconsiders  that\t the conduct of the officer leading  to\t his
\nconviction   renders  his  further   retention\tin   service
\nundesirable  in which case his recommendation accompanied by
\na  certified  copy  of the judgment of\tthe  criminal  court
\nconvicting  him shall be submitted to the Central Government
\nwhich  will  take the decision in accordance  with  sub-rule
\n(5).\n<\/p>\n
    The\t learned  ASG  submitted that the  defence  services
\nunder  the  law of the land are treated as a class apart  as
\ncan  be\t spelled  out from the different provisions  of\t the
\nConstitution  and  the\tArmy  Act and other  laws.   As\t the
\ndefence\t of  the country is involved, in the very nature  of
\nthe  things,  a\t cautious approach has to be  adopted  while
\ninterpreting  the several legal provisions, the security  of
\nthe  State  and\t welfare of the nation\tbeing  supreme.\t  He
\nsubmitted  that under the scheme of the Legislation there is
\nno  warrant for holding that a decision to take action under
\nSection\t 19 read with Rule 14 or to convene a court  martial
\nmust be taken only in the first instance and before the time
\nlimited for commencing court martial proceedings comes to an
\nend.  He further submitted that power vesting in the Central
\nGovernment  and Chief of the Army Staff under Section 19  of
\nthe  Act can be exercised whether before or after  convening
\nand holding trial by court martial and even after the expiry
\nof the limitation prescribed by Section 122 for commencement
\nof  the\t court\tmartial.   On the other\t hand,\tthe  learned
\ncounsel\t appearing  for the respondents\t (writ-\t petitioners
\nbefore the High Court) submitted that the scheme of the Army
\nAct  and  the Rules made thereunder provides for an  officer
\nsubject\t to  the  Army\tAct being dealt\t with  either  by  a
\ncriminal  court\t or by a court martial or by an\t appropriate
\naction\tunder Section 19 of the Act and cannot be  subjected
\nto  duality  of\t the  proceedings, or to one  of  the  three
\nproceedings after the other one of the three has been set in
\nmotion and accomplished.  To be more specific, submitted the
\nlearned counsel, once an officer has been subjected to court
\nmartial proceedings or if such proceedings cannot be held or
\nhave  proved to be abortive as having become barred by\ttime
\nor  impossible\tor impermissible then Section 19  cannot  be
\ninvoked.   In  order  to  test the validity  of\t such  rival
\ncontentions  forcefully advanced before us we would  examine
\nthe  scheme of the Act and the implications of the  relevant
\nprovisions contained therein.\n<\/p>\n
    Army  defends  the\tcountry and its\t frontiers.   It  is
\nentrusted  with\t the  task  of\tprotecting  against  foreign
\ninvasion  and  preserving  the national\t independence.\t The
\narduous\t nature of duties, the task they have to perform  in
\nemergent  situations  and  the\tunknown\t lands\tand  unknown
\nsituations   wherein  they  have  to  function\t demand\t  an
\nexceptionally  high  standard  of behaviour  and  discipline
\ncompared  to their counterparts in civil services.  That  is
\nwhy  the military people command the respect of the  masses.
\nSuch  factors  taken together demand the  military  services
\nbeing  treated\tas a class apart and a different  system  of
\njustice\t __  military  justice __ being\t devised  for  them.
\nArticle\t 33 empowers the Parliament to restrict or  abrogate
\nfundamental  rights  in their application to the members  of
\nthe  armed  forces so as to ensure the proper  discharge  of
\ntheir  duties and the maintenance of discipline among  them.
\nRight  to  file special leave to appeal before\tthe  Supreme
\nCourt  and  power  of superintendence vesting  in  the\tHigh
\nCourts\tdo not extend over judgment, determination, sentence
\nor  order  passed or made by any Court or  Tribunal  dealing
\nwith  armed  forces.  Members of the defence  services\thold
\noffice\tduring\tpleasure of the President under Article\t 310
\nbut  they  are\tnot entitled to the  protection\t offered  by
\nArticle\t 311.  The principles of interpretation of  statutes
\nwhich  apply  to  any  other   statute\talso  apply  to\t the
\nlegislation  dealing  with defence services;   however,\t the
\nconsiderations\tof the security of the State and enforcement
\nof  a  high degree of discipline additionally intervene\t and
\nhave  to  be  assigned\tweightage  while  dealing  with\t any
\nexpression needing to be defined or any provision needing to
\nbe interpreted.\n<\/p>\n
    Section  19, with which we are concerned, is to be found
\nplaced\tin  Chapter  IV of the Act entitled  Conditions\t of
\nService.   Chapter VI deals with offences.  Sections 34\t to
\n68,  finding place in Chapter VI are very widely worded\t and
\nembrace\t within\t their\trealm\tpractically  every  type  of
\nmisconduct,  its  abetment  and attempt as well,  which\t any
\nperson\tsubject\t to the Act may commit.\t Section 69  defines
\ncivil offences, the commission whereof shall be triable by a
\ncourt  martial.\t  Section  70  defines\tcivil  offences\t not
\ntriable\t  by   court  martial.\t  Chapter  VII\tdeals\twith
\npunishments.  Therein Section 71 provides as under:\n<\/p>\n
    71.\t  Punishments  awardable  by  courts  martial.\t __
\nPunishments   may  be  inflicted  in  respect  of   offences
\ncommitted  by  persons subject to this Act and convicted  by
\ncourts martial, according to the scale following, that is to
\nsay, __<\/p>\n
    (a) death;\n<\/p>\n
    (b)\t transportation for life or for any period not\tless
\nthan seven years;\n<\/p>\n
    (c)\t imprisonment,\teither rigorous or simple,  for\t any
\nperiod not exceeding fourteen years;\n<\/p>\n
    (d) cashiering, in the case of officers;<\/p>\n<\/blockquote>\n
    (e) dismissal from the service;<\/p><\/blockquote>\n
    (f)\t reduction to the ranks or to a lower rank or  grade
\nor  place in the list of their rank, in the case of  warrant
\nofficers;   and reduction to the ranks or to a lower rank or
\ngrade, in the case of non-commissioned officers:\n<\/p>\n
    Provided  that  a warrant officer reduced to  the  ranks
\nshall not be required to serve in the ranks as a sepoy;\n<\/p>\n
    (g)\t forfeiture  of\t seniority of rank, in the  case  of
\nofficers, junior commissioned officers, warrant officers and
\nnon-  commissioned  officers;  and forfeiture of all or\t any
\npart  of their service for the purpose of promotion, in\t the
\ncase  of any of them whose promotion depends upon length  of
\nservice;\n<\/p>\n
    (h)\t forfeiture of service for the purpose of  increased
\npay, pension or any other prescribed purpose;\n<\/p>\n
    (i)\t severe\t reprimand  or\treprimand, in  the  case  of
\nofficers, junior commissioned officers, warrant officers and
\nnon- commissioned officers;\n<\/p>\n
    (j)\t forfeiture  of pay and allowances for a period\t not
\nexceeding  three  months for an offence committed on  active
\nservice;\n<\/p>\n
    (k)\t forfeiture  in\t the case of a person  sentenced  to
\ncashiering  or dismissal from the service of all arrears  of
\npay  and allowances and other public money due to him at the
\ntime of such cashiering or dismissal;\n<\/p>\n
    (l) stoppage of pay and allowances until any proved loss
\nor  damage  occassioned\t by  the  offence  of  which  he  is
\nconvicted is made good.\n<\/p>\n
    According  to  Section 74, before an officer is  awarded
\nany  of\t the punishments specified in clauses (a) to (c)  of
\nSection\t 71,  he shall be sentenced to be cashiered.   Other
\nprovisions in this chapter are not relevant for our purpose.\n<\/p>\n
    Under  Section 101, any person subject to this Act,\t who
\nis  charged  with  an offence, may be  taken  into  military
\ncustody.   Chapter  X  deals with  Courts-Martial.   Therein
\nunder  Section\t121, any person subject to this\t Act  having
\nbeen acquitted or convicted of an offence by a court martial
\nor  a  criminal court shall not be liable to be tried  again
\nfor  the  same\toffence.  Section 122,\tprovides  period  of
\nlimitation for commencement of trial by court martial.\tOnce
\nthe  period  prescribed has expired a trial before  a  court
\nmartial cannot be commenced.\n<\/p>\n
    Under  Section  153\t no finding or sentence of  a  court
\nmartial\t shall be valid unless confirmed as provided by\t the
\nAct.   Section\t158 gives power to confirming  authority  to
\nmitigate,  remit or commute sentences.\tSection 165 empowers
\nthe  Central Government, the Chief of the Army Staff or\t any
\nprescribed  officer  to annul the proceedings of  any  court
\nmartial on the ground that they are illegal or unjust.\n<\/p>\n
    Misconduct\tas a ground for terminating the service by
\nway of dismissal or removal, is not to be found mentioned in
\nSection\t 19 of the Act;\t it is to be read therein by  virtue
\nof  Rule 14.  Misconduct is not defined either in the Act or
\nin  the Rules.\tIt is not necessary to make a search for the
\nmeaning,  for it would suffice to refer to State of Punjab &
\nOrs.   Vs.  Ram Singh, Ex-Constable, (1992) 4 SCC 54 wherein
\nthe  term misconduct as used in Punjab Police Manual  came
\nup  for the consideration of this court.  Having referred to
\nthe  meaning  of misconduct and misconduct in office  as
\ndefined\t in  Blacks Law Dictionary and Iyers Law  Lexicon,
\nthis court held :-\n<\/p>\n
    .  .  .  .\t.  .  .\t .  .  the word misconduct though
\nnot  capable  of precise definition, on reflection  receives
\nits  connotation  from the context, the delinquency  in\t its
\nperformance  and its effect on the discipline and the nature
\nof  the\t duty.\tIt may involve moral turpitude, it  must  be
\nimproper  or wrong behaviour;  unlawful behaviour, wilful in
\ncharacter;   forbidden\tact, a transgression of\t established
\nand  definite rule of action or code of conduct but not mere
\nerror of judgment, carelessness or negligence in performance
\nof  the duty;  the act complained of bears forbidden quality
\nor  character.\tIts ambit has to be construed with reference
\nto  the\t subject  matter and the context  wherein  the\tterm
\noccurs, regard being had to the scope of the statute and the
\npublic\tpurpose it seeks to serve.  The police service is  a
\ndisciplined  service  and  it requires\tto  maintain  strict
\ndiscipline.   Laxity in this behalf erodes discipline in the
\nservice causing serious effect in the maintenance of law and
\norder.\n<\/p>\n
    In\tthe context in which the term misconduct has  been
\nused  in Rule 14, it is to be given a wider meaning and\t any
\nwrongful  act or any act of delinquency which may or may not
\ninvolve\t  moral\t turpitude,  would   be\t misconduct,   and
\ncertainly so, if it is subversive of army discipline or high
\ntraditions  of army and\/or if it renders the person unworthy
\nof  being retained in service.\tThe language of\t sub-rule(2)
\nof  Rule  14  employing the expression the  reports  on\t an
\nofficers   misconduct  uses  reports   in   plural   and
\nmisconduct  in singular.  Here plural would include singular
\nand  singular  would include plural.  A single report on  an
\nofficers  misconduct may invite an action under Section\t 19
\nread  with Rule 14 and there may be cases where there may be
\nmore  reports  than  one on a singular\tmisconduct  or\tmore
\nmisconducts than one in which case it will be the cumulative
\neffect\tof such reports on misconduct or misconducts,  which
\nmay  lead  to  the formation of requisite  satisfaction\t and
\nopinion within the meaning of sub-rule (2) of Rule 14.\n<\/p>\n
    The learned counsel for the respondents submitted that a
\ncourt  martial\tconvened  under the Act is  a  high  powered
\nspecial\t tribunal  vested with very wide  jurisdiction.\t  It
\ncannot\tappropriately  be  called either  a  criminal  court
\nmerely or a service tribunal simply.  It is a combination of
\nthe  two  and  much  more  than\t that.\t A  perusal  of\t the
\nprovisions  of\tSection\t 71  clearly  indicates\t that  court
\nmartial\t is empowered to inflict such punishments which\t are
\notherwise  inflicted  by  a competent criminal\tcourt  while
\nthere  are punishments such as those provided by clauses (d)
\nto  (l)\t thereof  which\t belong\t to  the  realm\t of  service
\njurisprudence  and  can\t ordinarily be inflicted by  way  of
\npenalty\t for  a misconduct which a person in service may  be
\nfound  to  have committed.  The learned counsel went  on  to
\nsubmit\tthat the scheme of the Act and the Rules thus  shows
\nthat  a\t person\t subject  to  the  Act\thaving\tcommitted  a
\nmisconduct  amounting  to an offence within the\t meaning  of
\nChapter\t VI  should  ordinarily be subjected to trial  by  a
\ncourt martial.\tAnd if that has been done, then the power to
\nact  under Section 19 is taken away.  So also if the  period
\nof  limitation for trial by court martial is over, then also
\nby necessary implication resort cannot be had to Section 19.
\nWe  find  it the difficult to agree with the  submission  so
\nmade.\n<\/p>\n
    In\tUnion  of India Vs.  S.K.  Rao, AIR 1972 SC  1137  =
\n(1972)\t2 SCJ 645, the gross misconduct alleged against\t the
\ndelinquent  officer  was of having actively abetted  in\t the
\nattempt\t of brother officers daughter eloping with a sepoy.
\nAn  inquiry  into the grave misconduct was made by Court  of
\nInquiry.  The Chief of the Army Staff considered the conduct
\nof  the officer unbecoming of an officer.  He also formed an
\nopinion that trial of the officer by a general court martial
\nwas inexpedient and, therefore, he ordered an administrative
\naction\tto  be taken under Rule 14 by removing\tthe  officer
\nfrom  service.\tThe order of removal was put in issue on the
\nground\tthat the Army Act contained specific provision, viz.
\nSection\t 45,  for punishment for unbecoming conduct  and  as
\nSection\t 19 itself suggests that power being subject to the
\nprovisions  of\tthis  Act, Section 19 would be\tsubject\t to
\nSection\t 45 and therefore the Central Government would\thave
\nno  power to remove a person from the service in  derogation
\nof  the\t provision of Section 45.  The plea was repelled  by
\nthis  court  holding that the power under Section 19  is  an
\nindependent  power.   Though  Section 45  provides  that  on
\nconviction  by\tcourt  martial an officer is  liable  to  be
\ncashiered  or to suffer such less punishment as mentioned in
\nthe Act, for removal from service under Section 19 read with
\nRule  14,  a  court  martial is not  necessary.\t  The  court
\nspecifically  held  that  the power under Section 19  is  an
\nindependent power and the two Sections 19 and 45 of the Act
\nare, therefore, mutually exclusive.\n<\/p>\n
    It\tis  true  that some of the punishments\tprovided  by
\nSection 71 as awardable by court martial are not necessarily
\npunishments, in the sense of the term as ordinarily known to
\ncriminal  jurisprudence,  but  are  penalties  as  known  to
\nservice jurisprudence.\tThe fact remains that such penalties
\nhave  been treated as punishments awardable by court martial
\nunder Section 71 of the Army Act, 1950.\t The power conferred
\nby  Section  19\t on  the Central Government  and  the  power
\nconferred  on  court  martial  by  Section  71\tare  clearly
\ndistinguishable\t from each other.  They are not alternatives
\nto  each  other\t in  the  sense that  the  exercise  of\t one
\nnecessarily  excludes  the  exercise  of  the  other.\t The
\ndistinction may be set out in a tabular form:-\n<\/p>\n
Termination (dismissal or
\nremoval) by Central
\nGovernment under Section 19
\nread with Rule 14
\nTermination of service as
\npunishment awarded by courts
\nmartial<\/p>\n
1.   Is condition of service falling
\nwithin the realm of service
\njurisprudence; penalty maybe
\ndismissal\/removal or compulsory
\nretirement.\n<\/p>\n
Is punishment awardable by court
\nmartial.; punishment can be of
\ndismissal and\/or cashiering
\n(cannot be removal or compulsory
\nretirement).\n<\/p>\n
2.   No enquiry is contemplated
\nexcept affording opportunity to
\nshow cause as provided by Rule\n<\/p>\n
14.
\nPunishment can be awarded only
\non a trial being held in accordance
\nwith the provisions of the Act.\n<\/p>\n
3.   There is no bar of limitation
\nprovided for exercising the power
\nCourts martial cannot inflict any
\npunishment unless trial is
\ncommenced with in the period of
\nlimitation provided by Section\n<\/p>\n
122.<\/p>\n
4.  Any person subject to Army
\nAct dismissed or removed from
\nthe service by Central
\nGovernment is not previous
\nconvict.\n<\/p>\n
Any person subject to Army Act
\nawarded a punishment under
\nSection 71 is a person convicted
\nby court martial<\/p>\n
5.  Any person proceeded against
\nunder Section 19 does not suffer
\nany incarceration.\n<\/p>\n
Any person charged with an
\noffence may be taken into military
\ncustody.\n<\/p>\n
6.  Satisfaction and formation of
\nopinion in Rule 14 may be based
\non a single report of misconduct
\nor more than one or series of
\nsuch reports taken together.\n<\/p>\n
Punishment can be inflicted only
\non the misconduct forming subject
\nmatter of charge.\n<\/p>\n
7. Penalty is guided by formation
\nof opinion on undesirability of
\nofficer for future retention in the
\nservice.\n<\/p>\n
Punishment would be determined
\nby gravity of proved misconduct
\namounting to offence.\n<\/p>\n
    It\tis relevant to note that when an offence is  triable
\nby a criminal court and also by a court martial, each having
\njurisdiction  in  respect of that offence, a  discretion  is
\nconferred by Section 125 on the officer commanding to decide
\nbefore which court the proceedings shall be instituted.\t The
\nParliament  has obviously made no such provision in the\t Act
\nfor  the  exercise  of\ta choice  between  proceeding  under
\nSection\t 19 or convening of a court martial.  The element of
\nsuch  option,  coupled\twith  the  factors  which  would  be
\ndeterminative of the exercise of option, is provided by Rule
\n14(2).\tWhen an officer, subject to the Army Act, is alleged
\nto  have committed a misconduct, in view of Section 125\t and
\nSection\t 19  read  with\t Rule 14,  the\tfollowing  situation
\nemerges.   If  the alleged misconduct amounts to an  offence
\nincluding  a civil offence, Section 125, vests discretion in
\nthe  officer  commanding the Army, Army Corpse\tDivision  or
\nindependent  Brigade in which the accused person is  serving
\nor such other officer as may be prescribed, to decide before
\nwhich  court  the  proceedings\tshall  be  instituted,\ti.e.
\nbefore a court martial or a criminal court.  If the decision
\nis  to have the delinquent officer tried by a criminal court
\nand  if he is acquitted by the criminal court, then that  is
\nthe  end  of  the  matter.  The\t pronouncement\tof  judicial
\nverdict\t  would\t  thereafter\t exclude   any\t independent
\ndisciplinary  action  being  taken  against  the  delinquent
\nofficer\t on the same facts which constituted the  misconduct
\namounting  to an offence for which he was charged before the
\ncriminal court.\t In the event of his being convicted if some
\nfurther\t disciplinary action is still proposed to be  taken,
\nthen  it  is  the  conduct of the  officer  leading  to\t his
\nconviction (as found by the criminal court) which is capable
\nof  being taken into consideration by the Central Government
\nor  the COAS under sub-rules (3), (4) and (5) of Rule 14 for
\nthe  purpose of such action.  The facts forming the  conduct
\nof  the\t officer leading to his conviction shall alone\tform
\nbasis  of the formation of opinion as to whether his further
\nretention  in  service\tis undesirable whereupon he  may  be
\ndismissed,  removed or compulsorily retired from the service
\nin the manner prescribed by the said sub-rules.\t But, on the
\nother  hand,  if  the  initial\tdecision  was  to  have\t the
\ndelinquent  officer  tried not by a criminal court but by  a
\ncourt-martial,\tthen under sub-rule (2) of Rule 14 it is for
\nthe   Central  Government  or  the   COAS  to  arrive  at  a
\nsatisfaction  whether  the  trial  of\tthe  officer  by   a
\ncourt-martial  is  expedient and practicable  whereupon\t the
\ncourt-martial  shall be convened.  The Central Government or
\nthe COAS may arrive at a satisfaction that it is inexpedient
\nor  impracticable to have the officer tried by court-martial
\nthen the court-martial may not be convened and additionally,
\nsubject\t to formation of the opinion as to undesirability of
\nthe  officer for further retention in the service, the power
\nunder Section 19 read with Rule 14 may be exercised.  Such a
\ndecision  to  act under Section 19 read with Rule 14 may  be
\ntaken  either  before  convening the court-martial  or\teven
\nafter  it  has\tbeen  convened\t and  commenced\t subject  to
\nsatisfaction  as  to the trial by a  court-martial  becoming
\ninexpedient  or\t impracticable\tat which stage\tthe  Central
\nGovernment  or\tthe COAS may revert back to Section 19\tread
\nwith  Rule 14.\tIt is not that a decision as to inexpediency
\nor  impracticability of trial by court martial can be  taken
\nonly  once  and that too at the initial stage only and\tonce
\ntaken  cannot  be  changed  in spite of\t a  change  in\tfact
\nsituation and prevailing circumstances.\n<\/p>\n
    Section  127  was  to  be  found  in  the  Army  Act  as
\noriginally enacted which provided that a person convicted or
\nacquitted  by  a  court martial could be tried\tagain  by  a
\ncriminal  court\t for the same offence or on the\t same  facts
\nsubject to previous sanction of the Central Government.\t The
\nprovision  was deleted by Act No.37 of 1992.  This  deletion
\nis  suggestive of the legislative intent to confer  finality
\nto  the\t finding  and sentence of court martial\t subject  to
\ntheir  being  confirmed and not annulled.  Power to  confirm
\nfinding and sentence of court martial and the power to annul
\nthe  proceedings  on the ground of being illegal or  unjust,
\nboth  provisions read together indicate that the finding and
\nsentence  of  court  martial if legal and just\thave  to  be
\nordinarily  confirmed but they may be annulled on the ground
\nof  illegality or unjustness.  An obligation is cast on\t the
\nconfirming authority to examine the legality and justness of
\nthe  proceedings  before  confirming   them.   Questions  of
\ncorrectness,  legality and propriety of the order passed  by
\nany  court martial and the regularity of any proceedings  to
\nwhich  the  order of court martial relates can be raised  by
\nway of petition under Section 164.  Once the finding and the
\nsentence,  if  any, have been confirmed, the  court  martial
\nbeing  a  special tribunal dispensing military\tjustice,  it
\nwould  not be permissible to exercise additionally the power
\nconferred  by Section 19 read with Rule 14 and to inflict  a
\npenalty\t thereunder  if the court martial has not chosen  to
\ninflict\t the same by way of punishment under Section 71.  To
\npermit\tsuch a course would be violative of the principle of
\ndouble jeopardy and would also be subversive of the efficacy
\nof  the court martial proceedings, finding and sentence.  So
\nlong  as a final verdict of guilty or not guilty, pronounced
\nby court material and confirmed by competent authority so as
\nto be effective is not available, the power to proceed under
\nSection 19 read with Rule 14(2) exists and remains available
\nto be exercised.\n<\/p>\n
    The\t learned counsel for the respondents submitted\tthat
\nthe  term  impracticable  has  been used  in  Rule  14\tin
\ncontradistinction  with impossible or impermissible  and
\ntherefore if a trial by court martial though practicable but
\nhas  been rendered impermissible because of a bar created by
\nthe  rule of limitation or rendered impossible because of  a
\nfact  situation then resort cannot be had to Section 19 read
\nwith  sub- rule (2) of Rule 14 by treating the impossibility
\nor   impermissibility  as   impracticability.\tThe  learned
\ncounsel\t for  the  respondents went on to submit  that\teven
\nDharam\tPal  Kukretys case required reconsideration  as\t in
\ntheir  submission it does not lay down the correct law.\t  It
\nwas  urged  that  to the extent Dharam\tPal  Kukretys  case
\ntreats\timpermissibility  as  impracticability\t it  is\t a
\nmistaken view.\tOn the other hand, the learned ASG submitted
\nthat  Dharam Pal Kukretys case has correctly laid down\tthe
\nlaw and mistake has been committed by this court in deciding
\nRadha  Krishans\t case by over looking Dharam Pal  Kukretys
\ncase and therefore Radha Krishans case must be held to have
\nbeen decided per incuriam.\n<\/p>\n
\tLet us first examine what is the meaning of  term impracticable
\nin sub-rule(2) of Rule 14?\n<\/p>\n
    In\tMajor  Radha  Krishans case this  court\t has  held,
\n..When\tthe  trial  itself  was\t legally  impossible  and
\nimpermissible  the  question of its being impracticable,  in
\nour  view cannot or does not arise.  Impracticability is a
\nconcept\t different from impossibility for while the latter
\nis absolute, the former introduces at all events some degree
\nof  reason and involves some regard for practice.  According
\nto    Websters\t Third\t   New\t International\t Dictionary
\nimpracticable  means not practicable;  incapable of  being
\nperformed  or  accomplished  by\t the means  employed  or  at
\ncommand.   Impracticable  presupposes that the\taction\tis
\npossible  but  owing to certain practical difficulties\tor
\nother  reasons it is incapable of being performed.  The same
\nprinciple  will\t equally  apply\t to   satisfy  the  test  of
\ninexpedient as it means not expedient;\tdisadvantageous in
\nthe   circumstances,   inadvisable,   impolitic.   It\tmust
\ntherefore  be  held that so long as an offer can be  legally
\ntried  by a court-martial the authorities concerned may,  on
\nthe  ground  that  such\t a trial  is  not  impracticable  or
\ninexpedient,  invoke  Rule 14(2).  In other words, once\t the
\nperiod of limitation of such a trial is over the authorities
\ncannot take action under Rule 14(2).\n<\/p>\n
    The\t above passage shows that the learned Judges went by
\nthe  dictionary meaning of the term impracticable,  placed
\nthe   term   by\t  placing  it\tin   juxta   position\twith
\nimpossibility  and  assigned  it a narrow  meaning.   With
\nrespect to the learned judges deciding Major Radha Krishans
\ncase,  we  find\t ourselves not persuaded to  assign  such  a
\nnarrow\tmeaning to the term.  Impracticable is not defined
\neither\tin the Act or in the Rules.  In such a situation, to
\nquote  from Principles of Statutory Interpretation  (Chief
\nJustice\t G.P.  Singh, Seventh Edition, 1999, pp.   258-259),
\nwhen  a\t word  is  not defined in the  Act  itself,  it\t is
\npermissible to refer to dictionaries to find out the general
\nsense  in which that word is understood in common  parlance.
\nHowever,  in selecting one out of the various meanings of  a
\nword,  regard  must always be had to the context as it is  a
\nfundamental rule that the meanings of words and expressions
\nused  in  an Act must take their colour from the context  in
\nwhich  they appear.  Therefore, when the context makes the
\nmeaning\t of  a word quite clear, it becomes  unnecessary  to
\nsearch\tfor  and  select  a particular meaning\tout  of\t the
\ndiverse\t meanings  a  word  is\t capable  of,  according  to
\nlexicographers.\t   As\tstated\t by    KRISHNA\t IYER,\t J.
\nDictionaries  are  not dictators of statutory  construction
\nwhere  the  benignant mood of a law, and more  emphatically,
\nthe  definition clause furnish a different denotation.\t In
\nthe  words of JEEVAN REDDY, J.:\t A statute cannot always be
\nconstrued with the dictionary in one hand and the statute in
\nthe  other.  Regard must also be had to the scheme,  context
\nand   to  the  legislative   history.  JUDGE  LEARNED  HAND
\ncautioned not to make a fortress out of the dictionary but
\nto  pay\t more attention to the sympathetic and\timaginative
\ndiscovery  of  the  purpose or object of the statute  as  a
\nguide to its meaning.\n<\/p>\n
    In\tWords  and Phrases (Permanent Edition, Vol.20,\tpage
\n460-  461)  it\tis  stated that the  term  impossible  may
\nsometimes    be\t    synonymous\t    with    impracticable;
\nimpracticable  means not practicable, incapable of being
\nperformed  or  accomplished  by\t the means  employed  or  at
\ncommand;   impracticable is defined as incapable of  being
\neffected   from\t lack  of   adequate  means,  impossible  of
\nperformance, not feasible;  impracticable means impossible
\nor  unreasonably  difficult  of performance, and is  a\tmuch
\nstronger   term\t than  expedient.   In\tLaw  Lexicon   (P.
\nRamanatha  Iyer,  Second  Edition,  page  889)\tone  of\t the
\nmeanings  assigned to impracticable is not possible or\tnot
\nfeasible;   at\tany rate it means something very much  more
\nthan  not  reasonably  practicable.   In  The  New  Oxford
\nDictionary  of English (1998, at p.918), impracticable (of a
\ncourse of action) is defined to mean impossible in practise
\nto  do or carry out.  The same dictionary states the  usage
\nof   the  term\tin  these   words  __  Although\t there\t is
\nconsiderable  overlap, impracticable and impractical are not
\nused   in  exactly  the\t  same\tway.   Impracticable   means
\nimpossible to carry out and is normally used of a specific
\nprocedure  or  course  of action, . Impractical,  on  the
\nother  hand, tends to be used in more general senses,  often
\nto mean simply unrealistic or not sensible.\n<\/p>\n
    We may with advantage refer to certain observations made
\nby  the Constitution Bench (majority view) in Union of India
\n&  Anr.\t  Vs.  Tulsi Ram Patel, (1985) 3 SCC  398.   Article
\n311(2),\t proviso (b) contemplates a government servant being
\ndismissed  or removed or reduced in rank, dispensing with an
\nenquiry,  if it is not reasonably practicable to hold such
\nenquiry.   The Constitution Bench dealt with meaning of\t the
\nexpression  reasonably\tpracticable and the scope  of  the
\nprovision  vide\t para  128  to 138  of\tits  judgment.\t The
\nConstitution Bench pertinently noted that the words used are
\nnot  reasonably practicable and not not practicable  nor
\nimpracticable  (as is the term used in sub-rule(2) of Rule
\n14  of\tthe  Army Rules).  Thus, the decision in  Tulsi\t Ram
\nPatels\tcase  may not ipso facto throw light on\t the  issue
\nbefore\tus  but\t some  of   the\t observations  made  by\t the
\nConstitution  Bench  can  usefully be referred\tto.   A\t few
\nillustrative  cases  mentioned\tby the\tConstitution  Bench,
\nwherein\t it  may be not reasonably practicable to hold\tan
\nenquiry, are:-\n<\/p>\n
    (i)\t a  situation  which  is  of  the  creation  of\t the
\nconcerned government servant himself or of himself acting in
\nconcert with others or his associates;\n<\/p>\n
    (ii)  though,  the government servant himself is  not  a
\nparty to bringing about of a situation yet the exigencies of
\na  situation may require that prompt action should be  taken
\nand  not  taking  prompt action may result  in\tthe  trouble
\nspreading  and the situation worsening and at times becoming
\nuncontrollable\tand necessary concomitance of such an action
\nresulting  from a situation which is not of the creation  of
\nthe authorities.\n<\/p>\n
    The\t  Constitution\t Bench\thas    further\t held\tthat
\ndisciplinary  enquiry  is not expected to be dispensed\twith
\nlightly\t or arbitrarily or out of ulterior motive or  merely
\nto   avoid  the\t holding  of  an  enquiry  or  because\t the
\ndepartments case against the government servant is weak and
\nmust fail.  It is not necessary that a situation which makes
\nthe  holding of an enquiry not reasonably practicable should
\nexist  before the disciplinary enquiry is initiated  against
\nthe government servant;\t such a situation can also come into
\nexistence  subsequently\t during\t the course of\tan  enquiry.
\nReasonable  practicability of holding an enquiry is a matter
\nof assessment to be made by the disciplinary authority.\t The
\nsatisfaction  of  the authority is not immune from  judicial
\nreview\ton  well  settled parameters of judicial  review  of
\nadministrative\tdecisions.  However, if on the\tsatisfaction
\nreached\t by the authority two views are possible, the  court
\nwill decline to interfere.\n<\/p>\n
    As\tthe  term  used\t in  sub-rule  (2)  of\tRule  14  is
\nimpracticable  and not not reasonably practicable, there
\nis  more an element of subjectivity sought to be  introduced
\nby  this  provision  in\t the  process  of  arriving  at\t the
\nsatisfaction, obviously because the rule is dealing with the
\nsatisfaction  arrived  at by the Central Government  or\t the
\nChief  of  the\tArmy Staff, in the  matter  of\tdisciplinary
\naction\ton account of misconduct committed by an officer  of
\nArmy  which  decision would have been arrived at  by  taking
\ninto  consideration  the  then\t prevailing  fact  situation
\nwarranting  such  decision after considering the reports  on
\nofficers misconduct.\n<\/p>\n
    The\t learned  Additional Solicitor General cited  a\t few
\nexamples  wherein the trial by court martial may be rendered
\nimpracticable, to wit:-\n<\/p>\n
    i)\ta  misconduct  amounting to an offence\thaving\tbeen
\nrendered  not triable by court martial by expiration of\t the
\nperiod of limitation prescribed by Section 122;\n<\/p>\n
    ii)\t a  court  martial having been dissolved  after\t its
\ncommencement  on account of the number of officers  required
\nby  the\t Act  to validly constitute a  court  martial  being
\nreduced below the minimum or any other exigency contemplated
\nby  Section  117 occurring and the court martial  cannot  be
\nconvened  to commence afresh on account of bar of limitation
\nunder Section 122 having come into play;\n<\/p>\n
    iii) The Central Government, the Chief of the Army Staff
\nor any prescribed officer having annulled the proceedings of
\nany  court  martial on the ground that they are\t illegal  or
\nunjust\twithin the meaning of Section 165 of the Act and  by
\nthat  time  the bar of limitation under Section\t 122  having
\ncome into play;\n<\/p>\n
    iv) Any finding or sentence of a court martial requiring
\nconfirmation  having been ordered to be revised by order  of
\nthe  confirming\t authority  but in spite  of  such  revision
\nhaving\tnot  been  confirmed  once again  and  a  subsequent
\nrevision  of  finding or sentence being not contemplated  by
\nthe  provisions\t of  the Act;  rather a revision  once\tonly
\nhaving been provided by Section 160;\n<\/p>\n
    v) A person subject to the provisions of Army Act having
\nsecured\t a stay order from a court of law on commencement of
\ncourt  martial and by the time the stay order is vacated  by
\nthe  court of law the bar of limitation provided by  Section
\n122 coming into play.\n<\/p>\n
    On\tthe  meaning  which  we\t are  placing  on  the\tterm
\nimpracticable  as  occurring in Rule 14(2) we  proceed\tto
\nprovide\t resolutions  to the several problems posed  by\t the
\nillustrations given by the learned ASG.\t According to us:\n<\/p>\n
    In\tillustration  (i)  the\texpiry\t of  the  period  of
\nlimitation  prescribed\tby Section 122 renders the trial  by
\ncourt-martial  impracticable  on the wider meaning of  the
\nterm.\tThere  is  yet\tanother reason to  take\t this  view.
\nSection\t 122  prescribes  a  period of\tlimitation  for\t the
\ncommencement of court-martial proceedings but the Parliament
\nhas  chosen not to provide any bar of limitation on exercise
\nof  power  conferred  by  Section  19.\t We  cannot,  by  an
\ninterpretative\tprocess, read the bar of limitation provided
\nby  Section  122  into Section 19 of the Act in spite  of  a
\nclear  and  deliberate legislative abstention.\tHowever,  we
\nhave  to  caution  that in such a case, though\tpower  under
\nSection\t 19  read  with\t Rule 14 may be\t exercised  but\t the
\nquestion  may  still be __ who has been responsible for\t the
\ndelay?\t The period prescribed by Section 122 may itself  be
\ntaken\tlaying\t down  a   guideline  for  determining\t the
\nculpability  of\t delay.\t In spite of power under Section  19
\nread  Rule  14\thaving become available to be  exercised  on
\naccount\t of a trial by a court-martial having been  rendered
\nimpracticable  on  account of bar of limitation\t created  by
\nSection\t 122,  other considerations would assume  relevance,
\nsuch  as  __ whether the facts or set of facts\tconstituting
\nmisconduct  being three years or more old have ceased to  be
\nrelevant for exercising the power under Section 19 read with
\nRule  14?   If\tthere  was  inaction  on  the  part  of\t the
\nauthorities  resulting\tinto  delay and\t attracting  bar  of
\nlimitation  under  Section  122\t can it\t be  said  that\t the
\nauthorities  are  taking advantage of their own inaction  or
\ndefault?   If  the answer be yes, such belated\tdecision  to
\ninvoke\tSection\t 19 may stand vitiated, not for any lack  of
\njurisdiction  but  for\tcolourable or malafide\texercise  of
\npower.\n<\/p>\n
    In\tillustration  (ii),  the  court\t martial  has  stood
\ndissolved for fortuitous circumstance for which no one is to
\nbe  blamed __ neither COAS nor the delinquent officer.\t The
\ndelinquent officer, howsoever grave his misconduct amounting
\nto  offence may have been, would go scot free.\tIt would  be
\nfastidious  to hold that bar of limitation under Section 122
\nwould  also  exclude the exercise of power under Section  19
\nread with Rule 14.\n<\/p>\n
    In\tillustrations  (iii) and (iv) also, in our  opinion,
\nthe  exercise  of power under Section 19 read with  Rule  14
\ncannot\tbe excluded.  The finding and sentence of the  court
\nmartial\t are ineffective unless confirmed by the  confirming
\nauthority.   The  Act does not contemplate that the  finding
\nand  sentence  of  a  court   martial  must  necessarily  be
\nconfirmed  merely  because they have been returned  for\t the
\nsecond\ttime.\tSection\t 165  vests  power  in\tthe  Central
\nGovernment, the COAS and any prescribed officer, as the case
\nmay be, to annul the proceedings of any court martial if the
\nsame  are  found  to be illegal or unjust.   The  delinquent
\nofficer\t cannot be allowed to escape the consequences of his
\nmisconduct  solely  because court martial  proceedings\thave
\nbeen  adjudged\tillegal or unjust for the second time.\t The
\npower  under Section 19 read with Rule 14 shall be available
\nto  be exercised in such a case though in an individual case
\nthe  exercise of power may be vitiated as an abuse of power.
\nThe option to have a delinquent officer being tried by court
\nmartial having been so exercised and finding as to guilt and
\nsentence  having been returned for or against the delinquent
\nofficer\t by  the court martial for the second time, on\tjust
\nand legal trial, ordinarily such finding and sentence should
\nbe  acceptable\tso as to be confirmed.\tPower to  annul\t the
\nproceedings  cannot  be\t exercised repeatedly  on  the\tsole
\nground\tthat  the finding or the sentence does not meet\t the
\nexpectation of the confirming authority.  Refusal to confirm
\nis  a  power to be exercised, like all other powers to\ttake
\nadministrative\tdecision,  reasonably and fairly and not  by
\nwhim,  caprice or obstinacy.  Exercising power under Section
\n19  read  with\tRule  14   consequent  upon  court   martial
\nproceedings  being  annulled for the second time because  of
\nhaving\tbeen  found  to be illegal or unjust,  the  exercise
\nwould  not suffer from lack of jurisdiction though it may be
\nvitiated  on the ground of inexpediency within the meaning
\nof  Rule  14(2)\t or  on\t the ground of\tabuse  of  power  or
\ncolourable exercise of power in a given case.\n<\/p>\n
    In\tillustration  (v), the ball will be in the court  of
\nthe delinquent officer.\t Once a stay order has been vacated,
\nin  spite  of the expiry of limitation for  commencement  of
\ncourt  martial proceedings under Section 122 of the Act, the
\noption to have the delinquent tried by a court martial or to
\ninvoke\tSection 19 read with Rule 14, depending on the facts
\nand  circumstances  of\tan individual case, would  still  be
\navailable  to the Central Government or the COAS.  In  Union
\nof India & Ors.\t Vs.  Major General Madan Lal Yadav (Retd.),
\n(1996)\t4  SCC 127, this court has invoked applicability  of
\nthe  maxim  nullus  commodum capere potest  de\tinjuria\t sua
\npropria\t __ no man can take advantage of his own wrong __ to
\nhold  that  the delinquent officer having himself created  a
\nsituation  withholding\tcommencement of trial, he  would  be
\nestopped  from pleading the bar of limitation and the  trial
\ncommenced  on vacating of the judicial order of restraint on
\ncourt\tmartial\t shall\tbe  a  valid  trial.   The   learned
\nAdditional  Solicitor  General pointed out that although  in
\nthe category of cases illustrated by (v) above in case of an
\noffender who ceases to be subject to the Act, the Parliament
\nhas  by Act No.37 of 1992 amended sub-section (2) of Section
\n123  so as to exclude the time during which the\t institution
\nof the proceedings in respect of the offence has been stayed
\nby  injunction\tor  order  from\t  computing  the  period  of
\nlimitation but a similar provision is not made in respect of
\nthe  period of limitation for trial by court martial of\t any
\nperson\tsubject\t to the Act, as the respondents herein\tare.
\nThis  deliberate  omission by the Parliament to provide\t for
\nexclusion  from calculating period of limitation in  Section
\n122  on the lines of the provision for exclusion in  Section
\n123  lends  strength to his submission that in as much as  a
\nperson subject to the Act would be amenable to Section 19 of
\nthe  Act  even after the expiry of the period of  limitation
\nfor  trial, provision for extension in period of  limitation
\nunder  Section\t122 was unnecessary.  If the expiry  of\t the
\nperiod\tof limitation for commencement of court martial\t was
\nto  be\tgiven effect to, the consequence to follow would  be
\nthat  the person would not be liable to be tried by a  court
\nmartial\t and hence would also not be liable to be  inflicted
\nwith  a\t wide  variety\tof punishments\tawardable  by  court
\nmartial\t under Section 71;  nevertheless he would be  liable
\nto  be\tdismissed or removed from service under Section\t 19,
\nthough\tthat action shall be capable of being taken  subject
\nto  formation of opinion as to the undesirability of  person
\nfor  further  retention\t in service.  We find merit  in\t the
\nsubmission of the learned ASG.\n<\/p>\n
    Having  thus explained the law and clarified the same by
\nproviding  resolutions to the several illustrative  problems
\nposed by the learned ASG for the consideration of this court
\n(which\tare illustrative and not exhaustive), we are of\t the
\nopinion\t that  the  expiry  of period  of  limitation  under
\nSection\t 122  of the Act does not ipso facto take  away\t the
\nexercise  of power under Section 19 read with Rule 14.\t The
\npower  is available to be exercised though in the facts\t and
\ncircumstances  of an individual case, it may be\t inexpedient
\nto  exercise  such power or the exercise of such  power\t may
\nstand  vitiated\t if it is shown to have been exercised in  a
\nmanner\twhich may be called colourable exercise of power  or
\nan  abuse  of  power,  what  at\t times\tis  also  termed  in
\nadministrative\t law  as  fraud\t on  power.   A\t  misconduct
\ncommitted  a number of years before, which was not  promptly
\nand  within the prescribed period of limitation subjected to
\ntrial  by court martial, and also by reference to which\t the
\npower  under Section 19 was not promptly exercised may cease
\nto  be\trelevant  by  long  lapse  of  time.   A  subsequent
\nmisconduct  though less serious may aggravate the gravity of
\nan earlier misconduct and provide need for exercise of power
\nunder  Section\t19.  That would all depend on the facts\t and
\ncircumstances  of an individual case.  No hard and fast rule
\ncan  be laid down in that behalf.  A broad proposition\tthat
\npower under Section 19 read with Rule 14 cannot be exercised
\nsolely on the ground of court martial proceedings having not
\ncommenced  within  the\tperiod of limitation  prescribed  by
\nSection\t 122 of the Act, cannot be accepted.  In the  scheme
\nof  the Act and the purpose sought to be achieved by Section
\n19  read with Rule 14, there is no reason to place a  narrow
\nconstruction  on  the term impracticable and therefore\ton
\navailability  or happening of such events as render trial by
\ncourt-martial  impermissible  or legally impossible  or\t not
\npracticable,   the  situation  would  be  covered   by\t the
\nexpression  –  the  trial  by  court-martial  having  become
\nimpracticable.\n<\/p>\n
    Exercise  of power under Section 19 read with Rule 14 is
\nopen  to  judicial  review  on well  settled  parameters  of
\nadministrative\t  law\tgoverning     judicial\t review\t  of
\nadministrative\taction such as when the exercise of power is
\nshown  to have been vitiated by malafides or is found to  be
\nbased  wholly on extraneous and\/or irrelevant grounds or  is
\nfound  to be a clear case of colourable exercise of\/or abuse
\nof  power  or what is sometimes called fraud on power,\ti.e.
\nwhere  the power is exercised for achieving an oblique\tend.
\nThe  truth  or correctness or the adequacy of  the  material
\navailable  before the authority exercising the power  cannot
\nbe  revalued or weighed by the court while exercising  power
\nof  judicial review.  Even if some of the material, on which
\nthe  action  is taken is found to be irrelevant,  the  court
\nwould  still not interfere so long as there is some relevant
\nmaterial  available  on which the action can  be  sustained.
\nThe  court  would  presume the validity of the\texercise  of
\npower  but shall not hesitate to interfere if the invalidity
\nor  unconstitutionality\t is  clearly demonstrated.   If\t two
\nviews  are  possible,  the  court  shall  not  interfere  by
\nsubstituting  its  own\tsatisfaction  or  opinion  for\t the
\nsatisfaction  or  opinion  of the authority  exercising\t the
\npower.\n<\/p>\n
    We\tare  also of the opinion that Major Radha  Krishans
\ncase  lays  down propositions too broad to be acceptable  to
\nthe  extent it holds that once the period of limitation\t for
\ntrial  by court martial is over, the authorities cannot take
\naction\tunder  Rule  14(2).  We also do not agree  with\t the
\nproposition   that   for   the\t purpose  of   Rule   14(2),
\nimpracticability  is a concept different from  impossibility
\n(or  impermissibility,\tfor that matter).  The view  of\t the
\ncourt  in  that\t case should be treated as confined  to\t the
\nfacts  and circumstances of that case alone.  We agree\twith
\nsubmission  of the learned Additional Solicitor General that
\nthe  case of Dharam Pal Kukrety being a Three- Judges  Bench
\ndecision  of this court, should have been placed before\t the
\nTwo-Judges  Bench  which  heard\t  and  decided\tMajor  Radha
\nKrishans case.\n<\/p>\n
    Reverting  back to the two cases under appeal before us,
\nwe  are of the opinion that the High Court was not right  in
\nallowing  the  two  writ petitions filed  by  Harjeet  Singh
\nSandhu\tand  Harminder\tKumar,\t respectively,\tby   placing
\nreliance  on  the  decision  of this court  in\tMajor  Radha
\nKrishans  case and holding that the exercise of power under
\nSection 19 read with Rule 14 by the COAS was vitiated solely
\non  account of the bar of limitation created by Section\t 122
\nof the Act.  Both the judgments of the High Court, which are
\nunder  appeal,\tare  accordingly  set  aside  and  the\twrit
\npetitions  filed  by the two respondents are directed to  be
\ndismissed.   However, consistently with the observation made
\nby  this  court vide para 18 of Major Dharam  Pal  Kukretys
\ncase,  we  would like to impress upon the Chief of the\tArmy
\nStaff  and the Central Government, as the case may be,\tthat
\nthe  incidents leading to action against the two respondents
\nare  referable\tto late 70s.  By this time a period of\tmore
\nthan  20 years has elapsed in between.\tBefore any  decision
\nto  initiate  disciplinary  action against any\tof  the\t two
\nrespondents  is\t taken,\t the conduct and  behaviour  of\t the
\nrespondents  concerned\tduring the intervening period  shall
\nalso  be  taken into consideration while deciding  upon\t the
\ndesirability  of  proceeding further in the matter  at\tthis
\nbelated\t stage,\t and  keeping  in   view,  of  course,\t the
\nrequirement  of military discipline and the high  traditions
\nof the Indian Army.  No order as to the costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India U.O.I. & Ors vs Harjeet Singh Sandhu on 11 April, 2001 Author: R Lahoti Bench: Cji, R.C. Lahoti, Brijesh Kumar 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-134103","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nU.O.I. & Ors vs Harjeet Singh Sandhu on 11 April, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/u-o-i-ors-vs-harjeet-singh-sandhu-on-11-april-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"U.O.I. & Ors vs Harjeet Singh Sandhu on 11 April, 2001 - 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