Holding

Rule 14(2) cannot be exercised to override the statutory limitation under Section 122; when a trial is barred, it is impossible, not merely impracticable, and satisfaction for invoking Rule 14 must arise from the misconduct itself.

Summary

The appellant, a Major in the Indian Army, was served a notice under Section 19 of the Army Act, 1950 and Rule 14 of the Army Rules, 1954, proposing termination of his service for misconduct alleged to have occurred about seven years earlier. The notice claimed that a court‑martial trial was impracticable because the three‑year limitation period under Section 122 of the Act had expired. The Central Government terminated his service, a decision quashed by a Single Judge of the Rajasthan High Court who ordered reinstatement. The Division Bench of the High Court reversed that order, holding that Rule 14 could be invoked despite the limitation. On appeal, the Supreme Court held that once the statutory limitation period has lapsed, Rule 14(2) cannot be used to bypass it; a trial barred by limitation is legally impossible, not merely impracticable, and the satisfaction required under Rule 14 must arise from the officer’s misconduct, not from extraneous factors such as the limitation bar. The Court set aside the Division Bench judgment, restored the Single Judge’s order, and reinstated the appellant with benefits, awarding costs.

Issues considered

Whether Rule 14(2) of the Army Rules, 1954 can be invoked to terminate an officer's service when a court‑martial trial is barred by the limitation period under Section 122 of the Army Act, 1950.
Whether the concepts of ‘impracticable’ or ‘inexpedient’ can justify dispensing with a trial that is legally impossible due to statutory limitation.
Whether the satisfaction required under Rule 14(2) must be based solely on the officer's misconduct and attendant circumstances, excluding extraneous factors such as the limitation period.
Interpretation of Section 127 of the Army Act in relation to the applicability of Rule 14.

Legislation cited

Army Act, 1950s. 122, s. 127, s. 19
Army Rules, 1954s. Rule 14

Subjects

Army ActSection 19Section 122Rule 14Limitation periodCourt‑martialImpracticabilityTermination of serviceMilitary lawAdministrative law

Judgment

A MAJOR RADHA KRISHAN
v.
UNION OF INDIA AND ORS.

MARCH 25, 1996

B · [M.K. MUKHERJEE AND G.B. PATTANAIK, .JJ.]

Anny Act, 1950: Sections 19, 122, 127.

A1111y Rules, 1954: Rule 14.
c Seivicc Lau-Army Office,-Misco11ducrTc11ni11ation of service--
Trial-Summary procedure-Bar on account of limitation-Tennination of
se1vice 011 the ground that trial was impracticable for expily of /imitati011
period-Held not pennissibi<>-Rule 14 cannot be exercised to get over limita-
tion period--lnexpediency or impracticllbility of t1ial-Basis of satisfaction
D ntust be ,ntisconduct and ot/Jer attending circunistaitces and not any ex-
traneous factor--To dispenJ~e with a tn'a/ de hors nzisconduct is wholly alien
ro Rule 14(2).

Words & Phrases :
E 11
"lnipracticable" -"In11Jossible." and !1iexpedient''--Afeaning of in th(!
comext of-Anny Act, 1950.

The appellant, a Major in the Indian Army, was served a notice dated
December 10, 1990 under Section 19 of the Army Act, 1950 read with Rule
F 14 of the Army Rules, 1954 calling upon him to show cause why his services )I

should not be terminated for the misconduCt alleged to. have been com-
mitted by him about 7 years prior to the issuance of notice. In the notice
itself it was stated that the trial for the alleged misconduct was imprac-
ticable having become time barred, and that Chief of Army Staff was of
the opinion that his retention in service was undesirable. The show cause
G submitted by appellant was rejected by the authorities. Ou the recommen-
dation of authorities the c.entral Government passed an order dated i
February 28, 1992 terminating the services of the appellant. A Single Judge
of the High Court. quashed the termination order and directed bis
reinstatement in service with all consequential benefits. On appeal the
H Division Brnch dismissed appellant's writ petition. Relying on section ll7
836
' MAJ. R: KRISHANv. U.OJ.
.. 837
c _ • I _ '. -

.oftlie Act it held that ptiiceedings· imder section 19 of the Act read with A
Rule ·14 of- the Rules cotild be taken after the ei<pirf of the period' of
llmita'tion prescribed under Section 122 of the A~t.
.,
·.-.', \. ,·
... · Io appeal to this Court it was contended for the appellant that (i)
as the appellant's trial was barred by limitation under Section 122 of the
Act, Rule 14 could not be invoked; and (ii) the satisfaction regarding the B
· iuexpedieecy or impracticability to hold a Court. Martial must flow from
the :nature and the context oflhe misconduct itsetf arid n.\t f~om any
extraneous factor s_uch as in the lust.int case viz. period of limitation'.
1 . ' ' ... ' .•.
f Allowing the appeal.aod·settiug aside the decision of Division Bench, C
..
• this.Court ·~ .'~l ·" . · , •1

HELD : 1. Once. the period of limitation· of -a trial is over the
·authorities cannot take action under Rule 14 (2). The power under Rule
14 cannot be exercised in a manner which would get over the bar of
limitation laid down in the Army Aet, 1950 and if Rule 14 was to be D
Interpreted to give
.
such power it would clearly be ultra vires. ·(842-F; 843-C]
.
•· · 2. In the Instant case th~ 'trial had ~ome tiine barred. Wi1en the
trial itseif was legaily Impossible and impermissible the question of its
being impracticable cannot or does not arise. 'Impracticability' is a con·
'cept different' from 'lnipos~ibility' for while· the latte~ is"absolute, the E
. : - i _· .... - ' . '
former introduces at _all events some degrees of reason and involves some
regard for practice. 'lnipracticab.le'. presupposes that, the. action is
'•possibie• but owing to certain practical difficulties or other reasrins it is
incapable of being performed. The· same priudple will eq;ally apply to
satisfy the test of 'lnexpe!11ent' as it means not expedient; disadvantageous F
in .the circumstances, inadvisable, .impolitic. Therefore, so long as an
Officer can be legally tri.,"d by a _Court Martial the concerned authorities
may, OU the ground that SU~h a trial js not impracticable Odnexpedieut,
invoke Rule 14(2). (842-C-E)
; . .,,rJ··~s. ,, '
. .3. Sectloo 127 of the Ai:t relates to a trial by a 'Crimuml Court' and G
not· 'Court Martial' ~od speaks ·of a stage after th(trial by th~ 1;.tter is
over. So far 'as the period .,;fUmitatiou of. trial liy Court Martial Is
' . - ' - j .•,

concerned Section· 122 of the Act is a complete ·code bi;U~elf for not only
It provides iu its sub-section .(1) the period ofllmitation 'rilr such tri;,ls but
specifies. in sub section :· (2) · thereof the offences in respect of· Which the H
838 SUPREME COURT REPORTS [1996) 3 S.C.R.

A limitation clause would not apply. Since the terms of the above section is
absolute and no provision has been made under the Act for extension of
time • like Section 473 Criminal Procedure Code, it is obvious that any
trial commenced after the period of limitation will be patently illegal. Such
a provision of limitation prescribed under the Act .cannot be overridden
or circumvented by an administrative act, done in exercise of powers
B conferred.under a Rule. [842-G, H; 843-A·B]

4. It ·is evident from the opening words of Rule 14(2) that the
· satisfa~tion about the inexpediency or impracticability of the trial has to
• be obtained on consideration of the reports on the officer's misconduct.
C That necessarily means, that the misconduct and other attending cir-
cumstances relating thereto have to be the sole basis for obtaining such a
satisfaction. But to dispense with trial on a satisfaction. de hors the
misconduct • like the bar of limitation in the present case - will· he wholly
alien to Rule 14(2). [843-H; 844-A, CJ

D Lt. Col. (T.S.) M.C. Dhingra v. Union of India &Anr., (1980) 2 Delhi
Lawyer.109, approved.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5121 of .).
1996.

E From the Judgment and Order dated 21.3.94 of the Rajasthan High
Court in D.B {C) S.A. No. 116 of 1994.

Raju Ramachandra, N.R. Rath, Ms. K. Bhardwaj and S.R. Bhat for
the Appellant.
F Altaf Ahmad, Additional Solicitor General and N.N. Goswami,
S.W.A. Qadri, T.V. Ratnam and Ms. Anil Katiyar for the Respondents.

The Judgment of the Court was delivered by

M.K. MUKHERJEE, J. Leave granted.
G
The appellant was a permanent Commissioned Officer of the Indian
Army holding the substantive rank of Major. While he was posted at the
Military Farm in Jullunder City he was served with a notice dated Septem-
ber 10, 1990 issued under the directiont and on behalf of the Chief of the
H Army Staff calling upon him to show cause .why his services should not be
MAJ. R. KRISHANv. U.0.1. [M.K. MUKHERJEE; J.] 839

terminated under Section 19 of the Army Act, 1950 ('Act' for short) read A
· with Rule 14 of the ·Army Rules, 1954('Rules' for short) for the miscon-
ducts he was found to have committed during his tenure as the' Officer in-
charge of the ·Military Farm, Jaipur. The misconducts are set out in
paragraph 3 of the notice but as they are not germane for the purpose of
this appeal, it is not necessary to detail them. The reasons which prompted . B
the Chief of the Army Staff to take recourse to the provisions of the Act
and the Rules are contained in paragraph 4, of the notice, which reads as
under: ' ' . ' ' ' . ' . '. ' ' .
- ., . .. . ' '. '·--' .

"And whereas' the Chief of the Army Staff is further satisfied that
your trial for the above misconduct is impracticable having become C
,time barred by the time the court of inquiry was finalised and he
•is of the opinion that your f.;the~ retention in service is un-
desirable." ,•,1; _
· . ·
(
In due course the appellant• showed cause · against his proposed D ·
) termination of services but- it did not find favour with the authorities.
Hence, on their recommendations;· the Central Government issued an
order on February 28, 1992 terminating· the service of the appellant.
Aggrie;,ed thereby the appellant filed 'a writ petition before a le~ned J ~dge
of the Rajasthan High Court. In· assailing the· order of termination the
principle ground that was raised by the appellant was that the provisions E .
of Section 19 of the Act and Rule 14 of the Rules could not be invoked as
the period'of limitation prescrib~d und~r Section 122 of the Act for holding
by
his trial a Co~t Martial -~as !orig o~er. Besides,it was contended that
.• ihe satisfaction of the authorities that it Was irnpractl~ble to hold th~ trial
·>was n~t obtailled in.accordance With Rule 14. The appellant al'o denied F .
m
:· that he. was ~ty ~f the ~Conducts alleged the notice. and ga;e out his
.. defence' against' the same. '. . ... . ' .' . .

. .. •~The le~:d ;~~ge' allowe~ t~e \Vr;t petition, ·quashed the order
. Wider Challenge aiid directed th:if the appellant be reinstated fu se~ce
·· with all'.coiisequ6ntial benefits. In ·~sing' the abo~e order' ·the learned G .
. _•. Judg~ firstly held that the appellant w.i.s'made a scape goat for the lapses
. · and delinquencies of others. As regards the: appli9bilitY of Sec;tion 19 of ..
. theAi:t'and the RUie 14- of the Rules' the learned Judge concurred with "
the submissions of the, appellant relying pfinCipally upon the Division
Bench judgment of the Delhi High Court in Lt. Col. (T.S) M.C. Dhingra v. H ·
840 SUPREME COURT REPORTS (1996] 3 S.C.R.

A Union of India & Anr., (1980) 2 Delhi Lawyer 109.

In appeal preferred by the respondent - Union of India a Division i
Bench of the High Court set aside the above judgment of the learned Single
Judge and dismissed the writ petition of the appellant. The Division Bench
held that view taken by the Delhi High Court in M.C. Dhingra's case
B (supra) was not correct and that proceedings under Section 19 of the ALI
read with Rule 14 of the Rules could be taken even after the expiry of the
period of limitation prescribed under Section 122 of the Act. The findings
of fact recorded by the learned Single Judge in favour of the appellant were
also upset. The above order cif the Division Bench is under challenge in
C this appeal. ·

To appreciate the contentions raised by Mr. Ramachandran in sup-
port of the appeal it will be appropriate to first refer to the relevant
provisions of the Act and the Rules. Section 19 of the Act reads as under:

D "Subject to the provisions of this Act and the rules and regulations
made thereunder the Central Government may dismiss or remove
from the service, any person subject to this Act."

The other section of the Act which need reproduction is Section 122 which,
at the material time, stood as under : ·
E
"(l) Except as provided by sub-section (2), no trial by court-martial
of any person subject to this Act for any offence shall be com-
inenced after the expiration of a period of three years from the
date of such offence.

F (2) The provisions of sub-section (i) ·shall not apply to a trial for
an offence of desertion or fradulent enrolment or for any of the
offences mentioned in Section 37.

(3) In the computation ·of the period.of time mentioned in sub-
section (i), any time spent by such person as a prisoner of war, or
G
in enemy territory, on in evading arrest after the commission of
the offence, shall be excluded.

(4) No trial for an offence of desertion otherthan desertion on
active service or of fradulent enrolment shall be commenced if the
H person in question, not being an officer, has' subsequently to the
/

\
\

MAJ: R. KRISHANv. U.0.1. (M.K. MUKHERJEE, 1.) 841

commission of the offence, s~~ed ~o~tinuously in:. an exemplary A
manner for not less than three years with any portion of the regular
Army.'. .. '
Rule i4'of the Rules, so' far' as it is relevant for our present purposes, reads .·
as follows : ' ··
". B
·· 'Te~inination of service by the Central Government on acc<iunt of
misoonduct.~ (1). When it is proposed to terminate the. service of
t ·an officer under Section·19 on ·account of misconduct, he ·shall be
given an
opportunity to: show caiise in the manner specified in .
su~Rule (2) against such action : ·· · ·
c
'. ' - ' ' ' , ' • '1

. Provided that this su~rule shall not apply •

. . . (a} ihe!l these~~ is terntlnated on the ground of condu,ct ~hich
had led t~ his conviction by a criminal court; or . . ' . ·, .

). (b} wh~re ~~e Cent;a1 ·ao~e'i:~inedt is satisfied thatfor reascrr.s, to D
be. reeorded in \Vriting,'it iS riot expedie'llfor r~a~onably practicable
..· . to give totlie' officer
'. . . . '· :-· ' -' ... '•' ·- . \ ._,
an
opportuitlty of shoWillg caused. .. . .
_, . '' ·.' ' : ~ . -..
-, .' .
' ' _. -:

(2) WJ;en ~fter ~onsiilering the ~eports o~ ~ officer's· misconduc~: ·
the Central Goveminent, ~r the Chiefof the Amiy Staff is satisfied E
··.:that the triOl of the -officer by· a court n1iirtial is. inexPedient ·or
• • i impracticable, butis'of the opinion that th~ further retention of ihe
said officer in the ~ervice is undesrrabl~, the Chief of the Army .
Staff shall so inform' the officer fogether with all reports adverse .
·to him imd'he shall be'tall~d'upon tci sllbmii, inwriting, the.·
··· :- explanati~:m: · ( einp~a.SiS s::ppiied) ·. · •.·.·· •. '. . .· · ·· ; • · · •F
·'<.:_:-~" . ' ;!,··:< .. ··>..";: ' \'
. xxx- -.·,-.;·_.•: . xxx xxx

. ' •J ~t-. i~~~::ha~~an;
flrst one of the conte~~~d ~hat
to ~equisites
.invoke the summary proeedure .enVisag~dmider Rule 14(2) tO terminate
the services of by the Cenirai Gov~rriinent in e~ercise of its
an officer G
powers under S~ction 19 of the Act is to obtain a satisfaction that his frial
by a:_ Court Martial. is -inexi)edient' Or-'imvt3.d:i'cabt~ ..-Such a· satisfaction, .1

. according to Mr. Ramacliandran, can
be arrived ·only at a time·when trial
by. a Court', M;.,ti;.i i~ permi;~ilile ~ or po~bl~: As k the instant case, .
. admittedly, s~ch a 'trial \vas barred by Uniitation under Section. 122 of the H
.842 SUPREME COURT REPORTS [1996) 3 S.C.R.

A Act the above Rule could not be invoked. We find much substance in the
above contention of Mr. R'amachandran.

It is not in dispute that at the time the impugned notice was sent, no
trial of the appellant by Court Martial could be held for sub-section (1) of
B Section iz2 (as it then stood) \:!early envisaged that It should not be
commenced after expiration of three years from the date of commission of
the offence which in the instant case was about 7 years prior to the issuance
of the notice. !ndeed, as seen earlier, in the notice itself it is stated that
the trial had become time barred. When, the trial itself was legally impos-
sible and impermissible the question of its being impractic'able, in our view
C cannot or does not arise. 'Impracticability' is a concep~ different from
'impossibility' for while the latter is absolute, the former introduces at all
events some degree of reason and involves some rega~d for practice.
According to Webster's Third New International Dictionary 'impracticable'
means not practicable; incapable of being perfomied or /Jcc1)mplished by the
D means employed or at command. 'Impracticable' presu1'1poses that the
· action is 'possible' but owing to certain practical. diffi(:ulties . or other
reasons it is incapable of being performed. The sam:e princ'iple will equally
apply to satisfy the test of 'inexpedient' as it ·means not e:~dient; disad-
' '
vantageous in the circumstance'; inadvisable, impolitic. It must therefore be
held that so long as an Officer can be legally tried by a Cc~urt Martial the
E concerned authorities may, on the ground that such a tria:I is not imprac-
ticable or inexpedient, invoke Rule 14(2). In other words, .'mce the period
of limitation of such a trial is over 'the authorities cannot tai'<e action under
1

Rule 14(2). While passing the impugned order the Division Bench however
did not at all consider, while interpreting Rule 14(2), the!. import of the
1

F words 'impracticable' or 'inexpedient' as appearing therein and proceeded
on the basis that since Section 127 of the Act· (since repdled) permitted
trial even after a conviction or acquittal by a Court Martial, it necessarily
meant that the Rule could be pressed into service even ;,i-te'r the period of
limitation. It appears that in making the above observation ihe High Court
did not notice that Section 127 relates to a trial by a 'crim\nal court' and
G not 'Court Martial' .... and speaks of a stage after the trial by the latter is
over..

., The matter can be viewed from another angle also. Si\ far as period
I
of limitation of trials by Court Martial is concerned Section ;122 of the Act
H is a compleie Code in itself for not only it provides in its s.ub-section (1)
MAJ. R. KRISHAN v. U.0.1. [M.K. MUKHERJEE, J.] 843

the period of limitatio!I for. such trial~ but specifies in sub-section (2). A·
thereof the off~nces in respect of which the limitation clai.se would not
apply. Since the terms of the above section is absolute and no provision
h3.S been inade under the Act for extension of time - like Section 473
Criminal Procedure Code - it is obvious that any trial commenced after the ·
peri~d. of Jinritation will be patently-illegal. ~nch a pro~simi or limitation ' B .
pre~cnbed under the Act cannot be overndden or .cncumvented by an ··
ad~inistrative act, done in exercise of powers conferre·d under a Rule. Mr.
Ramachaii.drari was, therefore, fullyjustified in urging that power under
Rllle ·14 of the Army Rules could not be ~~ercised In a manner which would .
get over the bar of limitation laid down in the Act and ihai ifRufo 14 was
fo b~ interpreted to give such power it wollldclearly be ultra ~res. We are C
the~efore in complete agreement with the ~bservatlollS made by the Delhi
Hlgh Court in M.C Dhingra's case (supra) that jn purported ·exercised of
administrative power under Rule 14,·in respect of allegations of misconduct··
.triable byCourtMartial, the authorities cannot override the statutory bar
of s~b,section (1) of Sectioh 122 ofthe Act for no administrative act or D ,
fiat' can diseard, de~troy o; 'arinu1 .\ stat~tory provision. '
~ ~,:· , ·." ,, ; ., ' ~· ~ Jl -'· ·,.-· ll 1 .P.•

. . ·1·
The' other
. . · :·
contention of Mr.. Ramachandran
.
was that the satisfaction ·
with regard to inexpediency· or impracticability or a trial by Court Martial
m~st .be only on a consideration of th~ reports of misconduct. According
to Mr. Ramachandran if on a perusal of \he repor\s the author\ties found E
that the nature of inisconduct or the context in which it had been com-
.ffiitte.c\ were such that it w.Simpracticable or inexpedient to hold the.Court
Martial, the procedure under Rule 14 might be resorted to. In otlier words,
Mr. R.;,;achandrilli. submitted, the satisfaction reg.;,cling the in~xpediency
ofimprac~cability to hold a Court Martial musi.flo:from the nat~re ;u;d .
the eouiext or the 'misconduct itselt' imd not iio~ any ~xtraneous factor F;.
whlch in the instant dse was that the Court M;.,tiaJ. proceedings' ;.yould be
ti,;;~ barred. This contention of Mr. Ramchandran is also, in our view,
indefensible. ·· · ·

As noticed earlier, Rule 14(2) opens with the words "when after' ·Q
considermg the reports on an officer's misconduct, ihe Central Govern-
. me~t, or the Chief of the Army• Staff is satisfied........ ", It. is evident,
therefore, that the satisfaction about the inexpediency or impracticability
of the trial has' to be obtained on consideration of t_he reports on the
officer's misconduct. That necessarily means, that the misconduct and. ff,.,

,•
844 SUPREME COURT REPORTS [1996) 3 S.C.R.

A other attending circumstances relating thereto have to be the sole basis for
obtaining su_Fh a satisfaction.

The purport of the above Rule can be best un.derstood by way of an
illustration. The Chief of Army Staff receives a report which reveals that
an Army Officer has treacherously commu/}icated intelligence to the enemy
B - an Offence. punishable uuder Section 34 of the Act. He however finds
that to successfully prosecute the officer it will be necessary to examine
some witnesses, ensuring presence of whom will not be feasible and exhibit
some documents, disclosure of which will not be advisable in the interest
of the security of the State. In such an eventuality he may legitimately
C invoke the Rule to dispense with the trial on the grounds that it would be ~
impracticable .and/or inexpedient. But to dispense with a trial on a satis-
faction de hors the misconduct - like the bar of limitation in the present
case - will be wholly alien to Rule 14(2).

For the foregoing discussion we set aside .the impugned order of the
D Division Bench of the High Court and restore that of the learned Single .
Judge. The appeal is thus allowed with costs which is assessed at Rs. 10,000.

T.N.A. Appeal allowed.