Holding

The expiry of the limitation period under Section 122 does not bar the exercise of power under Section 19 read with Rule 14; the power may be exercised at any stage, subject to a satisfaction of impracticability or inexpediency, and is reviewable only for mala‑fides, colourable or extraneous grounds.

Summary

The Supreme Court examined two writ petitions challenging termination orders issued under Section 19 of the Army Act read with Rule 14 of the Army Rules. Both petitioners had earlier faced General Court‑Martial proceedings that were either annulled or became time‑barred under Section 122. The High Courts had quashed the termination orders, relying on Major Radha Krishan’s decision that the limitation period barred the use of Section 19. The Court held that the expiry of the limitation period does not extinguish the power under Section 19, which may be exercised before, after, or even after the limitation expires, provided the authority is satisfied that a court‑martial is impracticable or inexpedient. The term “impracticable” was given a wide meaning, encompassing the limitation bar, but the power remains exercisable unless vitiated by mala‑fides or colourable exercise. The Court overruled the narrow view in Major Radha Krishan, affirmed that the exercise of Section 19 is subject to judicial review on established administrative law grounds, and dismissed the writ petitions, allowing the appeals.

Issues considered

The effect of the three‑year limitation period under Section 122 of the Army Act on the power to terminate service under Section 19 read with Rule 14.
The proper interpretation and scope of the term “impracticable” in Rule 14(2).
Whether the power under Section 19 can be exercised before, after, or after the expiry of the limitation period.
The relationship between court‑martial proceedings (including annulment) and the exercise of Section 19.
The extent to which the exercise of Section 19 is amenable to judicial review.

Legislation cited

Army Act, 1950s. 122, s. 125, s. 153, s. 158, s. 160, s. 164, s. 165, s. 19, s. 71
Army Rules, 1954s. Rule 14

Subjects

Army ActSection 19Rule 14termination of servicecourt‑martiallimitation periodimpracticablejudicial reviewmilitary justicemisconductdouble jeopardy

Judgment

UNION OF INDIA AND ORS. A
it. V.

HARJEET SINGH SANDHU

APRIL 11, 2001

[DR. A.S. ANAND, C.J., R.C. LAHOTI AND BRIJESH KUMAR, JJ.] B

Anny Rules, 1954 : Rule 14.

Officer-Tennination of sen•ice of-By Central Government-Trial by
court-martial-Inexpediency or impracticability of-Held: Services of an of-
fleer may be tenninated untkr S. 19 of the Anny Act read witlz R. 14 either
c
before convening the court-martial or after it has been convened and com-
menced provitkd trial by court-matrial is inexpedient or impractical.

Army Act, 1950 :

Sections 19 and 122-Trial by court-martial-Period of limitation-
D
Expiry of-Power under S. 19 read with R. 14-Held: Expiry of period of
limitation for trial by court-martial does not take away the power under S. 19
read with R. 14-But if the delay is due to inaction on the part of the authorities,
-'
,
- then action under S. 19 may be vitiated, not for any lack ofjurisdiction but for
~ colourable or mala fid£ exercise of power. E
Section 165-Annulment of court-martial proceedings-Power under S.
19 read with R. 14-Exertise of-Effect on-Held : The delinquent officer
cannot be allowed to escape the consequences of his misconduct on account of
annulment of the proceedings-Hence, exercise ofpower under S. 19 read with
R. 14 does not suffer from lack of jurisdiction. F

Section 153-Finding and sentence of court-martial-Power to con-
firm-Principles-Held : Finding and sentence, if legal and just, have to be
orrlinan"ly confirmed-But they may be annulled on grounds of illegality or
unjustness-But once the finding and sentence are confirmed power under S.
G
19 read with R.14 cannot be exercised

Section 125-Criminal court and court-martial-Choice between-Held:
discretion to choose is vested in the prescribed military authorities-But once
""' the delinquent officer is acquitted by criminal court no further action for
-;
misconduct on the same facts can be taken untkr S. 19 read with R. 14. H
1127
1128 SUPREME COURT REPORTS [2001] 2 S.C.R.
A Section 19 read with Rule 14-Power under-Exercise of-Judicial
review of-Held : Is open to judicial review on grounds of mala fides or
consideration of extraneous and/or irrelevant grounds or found to be a clear
case of colourable exercise of/or abuse of power-However, correctness or
adequacy ofmaterial cannot be revalued or weighed by the court-If two views
are possible, court will not substitute its own view-Administrative I.aw.
B
Termination ofservice-Under S. 71 and S. 19 read with R. 14-Distinc-
tion between-Explained.

Interpretation of Statutes :
c
Defence Services-Legislation dealing with-Principles of interpreta-
tion-Held : Same principles as applicable to any other statutes are also
applicable to statutes dealing with defence services-However, additional
weightage has to be assigned while interpreting any expression or provisions
on account of security considerations.
D
Words and Phrases :

"Misconduct"-Meaning of-In the context of Army Rules, 1954,
R. 14(1).
E
-- '
"Inexpedient" and "impracticable "-Meaning of-In the context ofArmy
Rules, 1954, R. 14(2).

"Military justice"-Meaning of

F In the first of the two appeals, the respondent was tried by a General
Court-Martial (GCM) and awarded certain punishment. However, the
case was sent back for revision nuder Section 160 of the Army Act, 1950.
The GCM, on revision, enhanced the punishment. But the Chief of the
Army Staff (COAS) annulled the GCM proceedings under Section 165 of
the Act on the ground that the proceedings were unjust. Subsequently, a
G show cause notice was issued to the respondent under Section 19 of the Act
read with Rule of the Army Rules, 1954 calling upon the respondent to
show cause why his services should not be terminated. The respondent
filed a reply; but the COAS dismissed the respondent from service. The
High Court, relying on Major Radha Krishan v. Union of India, [1996] 3
H sec 507, quashed the termination order on the ground that the retrial of
U.0.1. v. H.S. SANDHU 1129
the respondent by court-martial was barred by limitation under Section A
-"- 122 of the Act and, therefore, the exercise of power under Section 19 read
with Rule 14 was vitiated.

In the other appeal, the COAS issued a notice to the respondent
under Section 19 read with Rule 14 calling upon the respondent to show
cause why his services be not terminated in view of the fact that the court- B
martial proceedings against the respondent were impracticable and the
~ COAS was of the opinion that the further retention of the respondent in
service was not desirable. The respondent filed a writ petition before the
High Court on the ground that the GCM proceedings having become
barred by time under Section 122 of the Act, the show cause notice was c
without jurisdiction. The High Court, relying on Major Radha Krishan's
case, allowed the writ petition on the ground that the COAS could not have
had recourse to Section 19 read with Rule 14 once the court-martial
,.. proceedings had become barred by time.

On behalf of the appellant it was contended that the proposition laid D
down in Major Radha Krishan 's case was too wide a proposition wholly
unsustainable in the light of the express provisions contained in the Army
Act and Army Rules; and that the power under Section 19 read with Rule
14 could be exercised before or after convening the GCM and even after
~-
expiry of the limitation prescribed under Section 122 of the Act. E
~
On behalf of the respondents it was contended that once an officer
had been subjected to court-martial proceedings or if such proceedings
had become barred by time or impossible or impermissible, then Section
19 read with Rule 14 court not he invoked; and that the word "impractica-
hie" had been used in Rule 14 in contradistinction with ''impossible'' or F
''impermissible'' aud, therefore, if a trial by court-martial though practi-
cable but had been rendered impermissible because of a bar created by the
rule of limitation or rendered impossible because of a fact situation then
resort could not be had to Section 19 read with Rule 14(2) by treating the
impossibility or impermissibility as impracticability. G
Allowing the appeals, the Court

HELD : 1. The principles of interpretation of statutes which apply to
any other statute also apply to the legislation dealing with defence services;
however, the considerations of the security of the State and enforcement of H
1130 SUPREME COURT REPORTS [2001] 2 S.C.R.
A a high degree of discipline additionally intervene and have to be assigned
weightage while dealing with any expression needing to be defined or any
provision needing to be interpreted.[ 1148-C]

2.1. "Misconduct'' as a ground for terminating the service by way of
dismissal or removal, is not to be found mentioned in Section 19 of
B the Army Act, 1950; it is to be read therein by virtue of Rule 14 of the
Army Rules, 1954. Misconduct is not defined either in the Act or in the
Rules. (1150-C]

2.2. In the context in which the term 'misconduct' has been used in
c Rule 14 of the Rules, it is to be given a wider meaning and any wrongful act
or any act of delinquency which may or may not involve moral turpitude,
would be 'misconduct', and certainly so, ifit is subversive of army disci-
pline or the high traditions of army and/or if it renders the person
unworthy of being retained in service. The language of Rule 14(2) employ·
ing the expression 'the reports on an officer's misconduct' uses 'reports' in
D
plural and misconduct in singular. Here plural would include singular and
singular would include plural. A single report on an officer's misconduct )

may invite an action under Section 19 read with Rule 14 and there may be
cases where there may be more report than one on a singular miseonduct '"
or more misconducts than one in which case it will be the cumulative effect
E of such reports on misconduct or misconducts, which may Jea'd to the -I
formation of requisite satisfaction and opinion within the meaning of Rule
14(2). (1150-H; 1151-A-C]

State of Punjab v. Ram Singh, Ex-Constable, (1992) 4 SCC 54; relied
on.
F
3. It is true that some of the punishments provided by Section 71 of
the Act as awardable by court-martial are not necessarily punishments, in
the sense of the term as ordinarily known to criminal jurisprudence, but
are penalties as known to service jurisprudence. The fact remains that
G such penalties have been treated as punishments awardable by court·
martial under Section 71 of the Act. The power conferred by Section 19 on
the Central Government and the power conferred on court-martial by
Section 71 are clearly distinguishable from each other. They are not alter-
natives to each other in the sense that the exercise of one necessarily
H excludes the exercise of the other. (1152-D·E]
U.0.1. v. H.S. SANDHU 1131
Union of India v. S.K Rao, AIR (1972) SC 1137, relied on. A

-: 4.1. When an offence is triable by a criminal court and also by a
court-martial, each having jurisdiction in respect of that offence, a discre-
tion is conferred by Section 125 on the officer commanding to decide
before which court the proceedings shall be instituted. The Parliament bas
obviously made no such provision in the Act for the exercise of a choice B
between proceeding under Section 19 and convening of a conrt-martial.
The element of such option, coupled with the factors, which would be
determinative of the exercise of option, is provided by Rule 14(2). [1153-F]

4.2. If the decision is to have delinquent officer tried by a criminal
court and if be is acquitted by the criminal court, then that is the end of the c
·matter. The pronouncement of judicial verdict would thereafter exclude
any independent disciplinary action being taking against the delinquent
officer on the same facts, which constituted the misconduct amounting
to an offence for which be was charged befor~ the criminal court. In
the event of bis being convicted, if some further disciplinary action ,is D
still proposed to be taken, then it is the conduct of the officer leading Jo
bis conviction (as found by the criminal court), which is capable _bf
being taken into consideration by the Central Government or the COA~.
The facts forming the conduct of the officer leading to his conviction shall
alone form the basis of the formation of opinion as to whether his further
E
retention in service is undesirable whereupon he may he dismissed, re-
moved or compulsorily retired from the service in the manner prescribed
by the said sub-rule. [1154-A-C]

4.3. On the other hand, if the initial decision was to have the delin-
quent officer tried not by a criminal court hut by a court-martial, then F
under Rule 14(2) it is for the Central Government or the COAS to arrive
at a satisfaction whether the trial of the officer by a conrt-martial is
expedient and practicable whereupon the court-martial shall be convened.
The Central Government or the COAS may arrive at a satisfaction that it
is inexpedient or impracticable to have the officer tried by a court-martial,
G
then the court-martial may not be convened and additionally, subject to
formation of the opinion as to the undesirability of the olftcer for further
retention in the service, the power under Section 19 read with Rule 14 may
be exercised. Such a decision to act under Section 19 read with Rule 14
may be taken either before convening the court-martial or even after it bas
been convened and commenced subject to the satisfaction as to the trial by H
1132 SUPREME COURT REPORTS (2001] 2 S.C.R.
A a court-martial becoming inexpedient or impracticable at which stage the
Central Government or the COAS may revert back to Section 19 read with
Rule 14. It is not that a decision as to inexpediency or impracticability or
trial by court-martial can be tak:!r. only once and that too at the initial
stage only and once taken cannot be changed in spite of a change in fact
situation and prevailing circumstances. [1154-D-F]
B
5. Power to confirm the finding and sentence of a court-martial and
the power to annul the proceedings on the ground of being illegal or unjust,
both the provisions read together indicate that the finding and sentence of a
court-martial, if legal and just, have to be ordinarily confirmed, but they
c may be annulled on the ground of.illegality or unjustness. An obligation is
cast on the confirming authority to examine the legality and justness of the
proceedings before confirming them. Questions of correctness, legality and
propriety of the order passed by any court-martial and the regularity of any
proceedings to which the order of court-martial relates can be raised by way
of a petition under Section 164. Once the finding and the sentence, if any,
D
have been confirmed, the court-martial being a special tribunal dispensing
military justice, it would not be permissible to exercise additionally the power
conferred by Section 19 read with Rule 14 and to inflict a penalty thereun-
der if the court-martial has uotchosen to inflict the same by way of punish-
ment under Section 71. To permit such a course would be violative of the
E principle of double jeopardy and would also be subversive of the efficacy of
the court-martial proceedings, finding and sentence. So long as final verdict
of guilty or not guilty, pronounced by court-martial and confirmed by com-
petent authority so as to be effective is not available, the power to proceed
under Section 19 read with Rule 14(2) exists and remains available to be
F exercised. (1155-A-D]

6. The word 'impracticable' is not defined either in the Army Act or
in the Army Rules. As the term used in Rule 14(2) is 'impracticable' and
not 'not reasonably practicable', there is more an element of subjectivity
sought to be introduced by this provision in the process of arriving at the
G satisfaction, obviously because the Rule is dealing with the satisfaction
arrived at by the Central Government or the COAS, in the matter of
disciplinary action on account of misconduct committed by an officer of
the Army which decision would have been arrived at by taking into consid-
eration the then prevailing fact situation warranting such decision after
H considering the reports on the officer's misconduct. (1158-G]
U.0.1. v. H.S. SANDHU 1133
Union of India v. Tutsi Ram Pate4 [1985) 3 SCC 398, referred to. A
G.P. Singh : "Principles ofStatutory Interpretation" 7th Edn., I999, pp.
258-259 and Word< and Phrases (Pennanenl Edition, Vol. 20, p 460-46I), P.
Ramanatha Iyer: Law Lexicon, 2/h Edn., p. 889 and The New Oxford Diclion-
ary of English, 1998, p. 918, referred to.
B
7.1. The expiry of the period oflimitation prescribed by Section 122
renders the trial by court-martial 'impracticable' on the wider meaning of
the term. Section 122 prescribes a period of limitation for the commence-
ment of court-martial proceedings, but the Parliament has chosen not to
provide any bar of limitation on exercise of power conferred by Section 19.
Therefore, by an interpretative process, the bar of limitation provided hy
c
Section 122 cannot be read into Section 19 of the Act in spite of a clear and
deliberate legislative abstention. (1159-H]

7.2. If there was inaction on the part of the authorities resulting in
delay and attracting bar of limitation under Section 122 and it can he said D
that the authorities are taking advantage of their own inaction or default,
then such belated decision to invoke Section 19 may stand vitiated, not
for any lack of jurisdiction but for colourable or ma/a fide exercise of
power. (1160-D)

8. The court-martial may have stood dissolved for fortuitous circum- E
stance for which no one is to he blamed - neither COAS nor the delinquent
officer. The delinquent officer, howsoever grave his misconduct amounting
to offence may have been, would go scot-free. It would be fastidious to hold
that the bar of limitation under Section 122 would also exclude the exercise
of power under Section 19 read with Rule 14. (1160-E) F
9. The finding and sentence of the court-martial are ineffective un-
less confirmed by the confirming authority under Section 153 of the Act.
The Act does not contemplate that the finding and sentence of a court-
martial must necessarily be confirmed merely because they have been
returned for the second time. Section 165 vests power in the Central G
Government, the COAS and any prescribed officer, as the case may be, to
annual the proceedings of any court-martial if the same are found to be
illegal or unjust. The delinquent officer cannot be allowed to escape the
consequences of his misconduct solely becau~e court-martial proceedings
have been adjudged illegal or unjust for the second time. The power under H
1134 SUPREME COURT REPORTS [2001] 2 S.C.R.
A Section 19 read with Rule 14 shall be available to be exercised in such a
case though in an individual case the exercise of power may be vitiated
as an abuse of power. Exercising power under Section 19 read with Rule 14
consequent upon court-martial proce.edings being annulled for the
second time because of having been found to be illegal or unjust, the
exercise would not suffer from lack of jurisdiction though it may be
B
vitiated on the ground of 'inexpediency' within the meaning of Rule 14(2)
or on the ground of abuse of power or colourable exercise of power in a
given case. [1160-G-H; 1161-A-C]

10.1. Once a stay order has been vacated, in spite of the expiry of
C limitation for commencement of court-matrial proceedings under Section
122 of the Act, the option to have the delinquent tried by a court-martial or
to invoke Section 19 read with Rule 14, depending on the facts and circum-
stances of an individual case, would still be available to the Central Gov-
ernment or the COAS. (1161-D]

D Union of India v. Major General Madan Lal Yadav (Retd), (1996] 4
sec 127, relied on.
10.2. The expiry of period of limitation under Section 122 of the Act
does not ipso facto take away the exercise of power under Section 19 read
with Rule 14. The power is available to be exercised though in the facts and
E circumstances of an individual case, it may be inexpedient to exercise such
power or the exercise of such power may stand vitiated if it is shown to
have been exercised in a manner which may be called colourable exercise
of power or an abuse of power, what at times is also termed in administra-
tive law as fraud on power. A misconduct committed a number of years
F before, which was not promptly and within the prescribed period of limita-
tion subjected to trial by court-martial, and also by reference to which the
power under Section 19 was not promptly exercised may cease to be
relevant by long lapse of time. A subsequent misconduct though less seri-
ous may aggravate the gravity of an earlier misconduct and provide need
for exercise of power under Section 19. That would all depend on the facts
G
and circumstances of an individual case. No hard and fast rule can be laid
down in that behalf. (1162-D-F]

10.3. In the scheme of the Act and the purpose soughtto be achieved
by Section 19 read with Rule 1 4, there is no reason to place a narrow
H construction on the term 'impracticable' and, therefore, on availability
U.0.1. v. H.S. SANDHU 1135
or happening of such events as render trial by court-martial impermissible A
-< or legally impossible or not practicable, the sitnation would be
covered by the expression - the trial by court-martial having become
'impracticable'. [1162-H; 1163-A]

Chief of Anny Staffv. Major Dharam Pal Kukrety, [1985] 2 SCC 412,
relied on. B
Major Radha Krishan v. Union ofIndia, [1996] 3 SCC 507, overruled.

11. Exercise of power under Section 19 read with Rule 14 is open to
judicial review on well settled parameters of administrative law governing
judicial review of administrative action such as when the exercise of power is c
shown to have been vitiated by mala fides or is found to be based wholly on
extraneous and/orirrelevant grounds or is found to be a clear case of colour-
able exercise of/or abuse of power or what is sometimes called fraud on
power, i.e. where the power is exercised for achieving an oblique end. The
truth or correctness or the adequacy of the material available before the
authority exercising the power cannot be revalued or weighed by the court
D
while exercising power of judicial review. H two views are possible, the court
shall not interfere by substituting its own satisfaction or opinion for the
satisfaction or opinion of the authority exercising the power. [1163-B-D]

12. Army defends the country and its frontiers. It is entrusted with
E
the task of protecting against foreign invasion and preserving the national
independence. The arduous nature of duties; the task they have to perform
in emergent situations and the unknown lands and unknown situation
wherein they have to function demand an exceptionally high standard of
behaviour and discipline compared to their counterparts in civil services.
That is why the military people command the respect of the masses. Such F
factors taken together demand the military services being treated as a
class apart and a different system of justice - military justice - being
devised for them. [1147-G]

13. The incidents leading to action against the two respondents are
referable to late 70s. By this time a period of more than 20 years has elapsed G
in between. Before any decision to initiate disciplinary action against any of
the two respondents is taken, the conduct and behaviour of the respondents
concerned during the intervening period shall also be taken into considera-
tion while deciding upon the desirability of proceeding further in the matter
at this belated stage, and keeping in view the requirement of military disci- H
1136 SUPREME COURT REPORTS [2001] 2 S.C.R,
A pline and the high traditions of the India Army. (1164-C]

Chief of Anny Staffv. Major Dharam Pal Kukrety, (1985] 2 SCC 412, >-
referred to.

CIVIL APPELLAI'E JURISDICTION: Civil Appeal No. 2721 of 2001.

B From the Judgment and Order dated 16.9.97 of the Allahabad High
Court in C.M.W.P. No. 2522 of 1984.

WITH
+
Civil Appeal No. 2722 of 2001.
c Altaf Ahmad, Additional Solicitor General, PP. Malhotra, Hemani
Sharma, Ms. Rekha Pandey, Ms. Binu Tamta, Ms. Indra Sawhney, Satpal
Singh, C. Radha Krishna, Mrs. Anil Katiyar, Shreekant N. Terdol, A.
Mariarputham, Ms. Pratibha Singh, Ankur Talwar, Maninder Singh, Ms. Indu
Malhotra, E.C. Vidya Sagar, (NP), Ms. Madhu Sweta and Prem Prasad Juneja
D for the appearing parties.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. Harjeet Singh Sandhu, the respondent in S.L.P.(C)
No.5155/1998 was a captain in the Anny. On the night intervening 27th &
28th March, 1978, the respondent along with three other officers interrogated
E one Bhagwan Das, who was also a defence employee, in connection with an
incident of theft. During the course of interrogation the respondent and his
co-associates used third degree methods in order to extract a confession as
a result whereof Bhagwan Das died. A General Court martial (GCM, for
short) was convened under Section 109 of Anny Act, 1950 which tried the
F respondent and the other officers. On 26.12.1978 the GCM awarded the
sentence of forfeiture of three years service for purpose of promotion and
severe reprimand to the respondent. The -confirming authority formed an
opinion that the sentence passed on the respondent was very lenient and J.
therefore vide order dated 19.4.1979, in exercise of the powers conferred_by
Section 160 of the Anny Act sent the case back for revision. On 10.5.1979,
G the GCM, on revision, enhanced the punishment inflicted on the respondent
to forfeiture of three years of service for the purpose of promotion and also
for the purpose of pay and pension. On 24.9.1979 the Chief of the Anny Staff
in exercise of the power conferred by Section 165 annulled the GCM
proceedings on the ground that the proceedings were unjust. On 20.12.1979,
H a show cause notice was issued to the respondent under Section 19 of the
U.0.1. v. H.S. SANDHU [R.C. LAHOU J.] 1137
Act read with Rule 14 of the Anny Rules, 1954 (hereinafter the Rules, for A
short) calling upon the respondent to show cause why his services should not
be terminated. Reply was filed by the respondent defending himself. On
16.7.1982 a fresh show cause notice was issued to the respondent requiring
him to show cause why his service be not terminated under Section 19 read
with Rule 14. Both the notices dated 20.12.1979 and 16.7.1982 recorded on
B
the part of the Chief of the Anny Staff - (i) a satisfaction that the respondent's
retrial by a court martial consequent to the annulment of the GCM proceed-
ings was impracticable, and (ii) formation of opinion that the respondent's
further retention in the service was undesirable. The latter notice also stated
that the earlier notice was thereby cancelled though the reason for such
cancellation was not mentioned. The respondent filed a reply dated 9.9.1982 C
in defence of himself. On 2.1.1984 the Chief of the Anny Staff passed an
order dismissing the respondent from service. On 16.2.1984 the respondent
filed a civil writ petition before the High Court of Allahabad laying challenge
to the order of termination. The singular contention raised before the High
Court was that the incident, in which the respondent was involved had taken D
place in the night intervening 27th & 28th March, 1978 and Court Martial
proceedings had become barred by time'on 28th March, 1981 under Section
122 of the Act whereafter Section 19 of the Act was not available to be
invoked. The High Court of Allahabad in its impugned judgment, formed an
opinion that the decision of this Court in Major Radha Krishan v. Union of
India [1996] 3 SCC 507, squarely applies to the facts of this case and E
therefore the exercise of power under Section 19 read with Rnle 14 was
vitiated. The writ petition has been allowed and the impugned order of
termination dated 2.1.1984 has been quashed.

In S.L.P.(C) No.3233/2000 the respondent Harminder Kumar was a
F
Captain in the Anny. In the year 1979 the respondent was found blameworthy
for discrepancies in respect of stocks in Fuel Petroleum Depot, Leh between
the period 10.3.1979 to 22.3.1979. Summary of evidence having been re-
corded, on 5.8.1981 a General Court Martial was ordered to be convened on
18.8.1981. On 14.8.1981 the respondent filed a civil writ petition under
Article 32 of the Constitntion of India in this Court wherein, by an interim G
order, the proceedings in the court martial were directed to be stayed. On
26.11.1982 the writ petition filed by the respondent was dismissed, conse-
quent whereupon the interim order of stay also stood vacated. On 7.2.1983
the respondent was informed that General Court Martial against the respond-
ent was fixed to be convened on 28.2.1984. However, on 28.2.1984 the Chief H
1138 SUPREME COURT REPORTS [2001) 2 S.C.R.
A of the Anny Staff in exercise of the power conferred by Section 19 read with
Rule 14 issued a notice to the respondent calling upon him to show cause
why his services be not terminated in view of the fact that the court martial
proceedings against the respondent were impracticable and the Chief of the
Anny Staff was of the opinion that further retention of the rspondent in the
service was not desirable. Immediately, the respondent filed a writ petition
B
in the High Court of Delhi submitting that the general court martial proceed-
ings having become barred by time against him on account of lapse of three
years from the date of the offence, the notice issued to him was without +
jurisdiction. Vide order dated 8th September, 1998 the High Court has held,
placing reliance on the decision of this Court in Major Radha Krishan v.
c Union of India, [1996) 3 SCC 507, that once the court martial proceedings
have become time-barred the Chief of the Anny Staff could not have had
recourse to Section 19 of the Act read with Rule 14 of the Rules. Conse-
quently, the writ petition has been allowed and show cause notice dated 8th
February, 1984 directed to be quashed.
D The Union of India has filed these petitions for special leave to appeal.

Delay condoned in filing SLP(C) No.5155/1998.

Leave granted in both the SLPs.

E We have heard Shri Altaf Ahmad, the learned Additional Solicitor
General for the appellant and Shri Prem Prasad Juneja, Ms. Indu Malhotra
and Shri A. Mariarputharn, Advocates for the respondents. The principal
plea raised on behalf of the appellant and forcefully pressed by the
learned Additional Solicitor General at the time of hearing was that Major
F Radha Krishan's case was not correctly decided and therefore needs to be
reconsidered by this Court for two reasons : firstly, because Major Radha
Krishan's case is a decision rendered by two Judge-Bench which does not
take notice of the Jaw laid down by this Court in Chief of Army Staffv. Major
Dharam Pal Kukrety, [1985] 2 SCC 412 which is three-Judge Bench decision;
and secondly, the proposition laid down therein is too wide a proposition
G wholly unsustainable in the light of the express provisions contained in the
Anny Act and the Anny Rules and the underlying scheme of the Legislation.

We would first sei out the facts in brief and the ratio of the decisions
rendered by this Court in the case of Major Radha Krishan (supra) and Major
H Dharam Pal Kukrety (supra) before dealing wilh other contentions raised by
U.0.1. v. H.S. SANDHU [R.C. LAH.OT!, J.] 1139
the learned counsel for the parties because the major part of submissions A
made by the learned counsel centres around the abovesaid two decisions.

To appreciate the ratio of the abovesaid two cases it will be necessary
to keep in view the provisions contained in Sections 19 and 122 of the Army
Act, 1950 and Rule 14 of Army Rules, 1954 which are extracted and
reproduced hereunder :- B

Anny Act, 1950
+
19. Tennination of service by Central Government. - Subject to
the provisions of this Act and the rules and regulations made
thereunder the Central Government may dismiss, or remove from the
c
service, any person subject to this Act.

122. Period of limitation for trial. - (1) Except as provided by
sub-section (2), no trial by court-martial of any person subject to this
Act for any offence shall be commenced after the expiration of a
period of three years [and such period shall commence, -

(a) on the date of the offence; or

(b) where the commission of the offence was not known to the
person aggrieved by the offence or to the authority competent E
to initiate action, the first day on which such offence comes to
the knowledge of such person or authority, whichever is earlier;
or

(c) where it is not known by whom the offence was committed, the
first day on which the identity of the offender is known to the F
person aggrieved by the offence or to the authority competent
to initiate action, whichever is earlier.]

(2) The provisions of sub-section (1) shall not apply to a trial for an
offence of desertion or fraudulent enrolment or for any of the offences
G
mentioned in Section 37.

(3) In the computation of the period of time mentioned in sub-section
(1), any time spent by such person as a prisoner of war, or in enemy
territory, or in evading arrest after the commission of the offence,
shall be excluded. H
1140 SUPREME COURT REPORTS [2001] 2 S.C.R.
A (4) No trial for an offence of desertion other than desertion on active
service or of fraudulent enrolment shall be cornrnenced if the person
in question, not being an officer, has subsequently to the commission
of the offence, served contiuuously in any exemplary manner for not
less than three years with any portion of the regular Army.

B Army Rules, 1954

[14. Te1mination of seivice by the Central Government on
account of misconduct. - (I) When it is proposed to terminate the
service of an officer under Section 19 on account of misconduct, he
shall be given an opportunity to show cause in the manner specified
c in snb- rule (2) against such action -

Provided that this sub-rule shall not apply -

(a) where the service is te1minated on the ground of misconduct
D which has led to his conviction by a criminal court; or

(b) where the Central Governrnent is satisfied that for reasons, to
be recorded in writing, it is not expedient or reasonably
practicable to give to the officer an opportunity of showing
cause.
E
(2) When after considering the reports on an officer's miscon-
duct, the Central Governrnent or the Chief of the Army Staff is
satisfied that the trial of the officer by a court-martial is inexpedient ;..
or impracticable, but is of the opinion, tliat the further retention of the
said officer in the service is undesirable, the Chief of the Army Staff
F shall so inform the officer togetl1er with all reports adverse to him and
he shall be called upon to submit in writing, his explanation and
defence:

Provided that the Chief of the Army Staff may withhold from
G disclosure any such report or portion thereof if, in his opinion, its
disclosure is not in the interest of the security of the State.

In the event of tile explanation of the officer being considered
unsatisfactory by the Chief of the Army Staff, or when so directed
by the Central Governrnent, the case shall be submitted to the Central
H Governrnent, with the officer's defence and the recommendation of
U.0.1. v. H.S. SANDHU [R.C. LAHOTL J.] 1141

the Chief of the Army Staff as to the termination of the officer's A
service in the manner specified in sub-rule (4).

(3) Where, upon the conviction of an officer by a criminal court,
the Central Government or the Chief of the Army Staff considers that
the conduct of the officer which has led to his conviction renders his
further retention in service undesirable a certified copy of the B
judgment of the criminal court convicting him shall be submitted to
the Central Government with the recommendation of the Chief of the
+ Army Staff as to the termination of the officer's service in the manner
specified in sub-rule (4).

((4) When submitting a case to the Central Government under the
c
provisions of sub-rule (2) or sub- rule (3), the Chief of the Army Staff
shall make his recommendation whether the officer's service should
be terminated, and if so, whether the officer should be -

(a) dismissed from service; or D
(b) removed from service; or

(c) Compulsorily retired from the service.

(5) The Central Government after considering the reports and the
officer's defence, if any, or the judgment of the criminal court, as the E
case may be, and the recommendation of the Chief of the Army Staff,
may -

(a) dismiss or remove the officer with or without pension or
gratuity; or
F
(b) compulsorily retire him from the service with pension and
gratuity, if any, admissible to him].

Other provisions of the Act and the Rules, to the extent necessary, shall
be adverted to as and when required. G
In Major Radha Krishan 's case the officer had committed misconduct
and the trial thereof by Court martial had become time- barred under Section
122 of the Act whereafter, on 10.9.1990, a notice was issued by the Chief
of the Army Staff to the officer which inter alia stated - "and whereas the
COAS is further satisfied that your trial for the above misconduct is irnprac- H
1142 SUPREME COURT REPORTS [2001] 2 S.C.R.
A ticable having become time-barred by the time the court of inquiry was
finalised and he is of the opinion that your further retention in service is
. undesirable". This Court for the purpose of fmding out the meaning of
'impracticable', the term occurring in sub-rule (2) of Rule 14, referred to
dictionary meanings of 'irµpracticable', and 'inexpedient' and then concluded
that 'impracticability' is a concept different from 'impossibility' for while the
B
latter is absolute, the former introduces at all events some degree of reason
and involves some regard for practice. As the provision of limitation pre-
scribed under the Act prohibited a trial by court martial being held on expiry
of the period of limitation such a provision could not be overridden by
invoking Section 19 and thus achieving a purpose by an administrative act
c which could not be achieved by holding a trial under a statutory provision.
Once a misconduct was rendered legally impossible and impermissible to be
tried on account of bar of limitation it could not be said that the trial of the
officer was impracticable and therefore resort could not be had to sub-rule
(2) of Rule 14. Vide para 10, yet another reason assigned by this court is that
the satisfaction with regard to inexpediency or impracticability of a trial by
D
Court martial must be arrived at only on consideration of the reports of
misconduct for the purpose of resorting to Rule 14. The satisfaction regarding
the inexpediency or impracticability to hold a Court martial must flow from
the nature and the context of the misconduct itself and not from any other
extraneous factor snch as that the Court martial proceedings had become time-
E barred. This contention advanced on behalf of the officer was, in the view F

of the court, 'indefensible'. Vide paras· 11 and 12, this court held that the
misconduct and other attending circumstances relating thereto have to be the
sole basis for obtaining a satisfaction within the meaning of Rule 14(2) and
dispensing with a trial on a satisfaction de hors the misconduct - like the bar
p of limitation - will be wholly alien to rule 14(2). Dharam Pal Kukrety's case
was neither placed before nor considered by the learned judges deciding
Major Radha Krishan 's case.

Major Dhararn Pal Kukrety was a permanent commissioned officer of
the Indian Army holding the substantive rank of Captain and acting rank of
G Major. He was tried by a General Court Martial on four charges referable to
certain incidents which had taken place on November 6 and 7, 1975. On
March 13, 1976 the court martial announced its finding (subject to confrr-
mation) of 'not guilty of all the charges'. The confirming authority did not
confnm the verdict and by order dated April 3, 1976 sent back the finding
for revision. The same General Court Martial re-assembled on April 14, 1976.
H
U.0.1. v. H.S. SANDHU [R.C. LAHOTI, J.] 1143
Once again the general court martial, adhering to its original view, announced A
the fmding that the respondent was "not guilty of all the charges" (subject
to confirmation). On May 25, 1976 the confirming authority refused to
confinn the fmding and promulgated, as required by Rule 71, the charges
against the officer, the findings of the court martial and the non-confirmation
thereof. Thereafter, the Chief of the Army Staff exercising power under Rule
B
14 issued a show cause notice dated November 12, 1976 which notice
recorded inter alia the satisfaction of the COAS that a fresh trial by a court
martial for the said offences was inexpedient, as also his opinion that the
officer's misconduct rendered bis further retention in the service undesirable.
The officer filed a civil writ petition in the High Court of Allahabad laying
challenge to the validity of the show cause notice. The contention of the C
officer was that there was an initial option either to have the officer tried by
a court martial or to take action against him under Rule 14 and the option
having been exercised to try him by a court martial and the officer having
been acquitted both at the time of the original trial and on revision, it was
not competent for the Chief of the Army Staff to have recourse to Rnle 14. D
The contention found favour with the High Court. The High Court held that
the officer having been in fact tried by a court martial twice and a verdict
of not guilty having been rendered twice the impugned notice under Rule 14
was without jurisdiction. In the appeal preferred by Chief of the Army Staff
before this Court two contentions were raised on behalf of the officer : firstly,
that it could not be said that the trial of the officer by a court martial was E
inexpedient or impracticable as in fact he had been tried by a court martial;
and secondly, that on a true construction of Rule 14 the Central Government
or the Chief of the Army Staff had an initial option to have the officer tried
by a court martial or to take action against him under Rule 14 and if the
decision to have the officer tried by court martial was taken then action under F
Rule 14 was. not permissible in case of fmding of acquittal being rendered
by the court martial. Vide para 14, this court noticed decisions rendered by
different High Courts of the country throwing light on the issue before the
Court. Allahabad High Court was of the view that in spite of non-confirma-
tion of the fmding and sentence passed by the court martial such fmding and
G
sentence did exist thongh they could not be put into effect for want of
confirmation and therefore a second trial by court martial would be barred.
Jammu & Kashmir High Court was of the view that the Legislature could
not have reasonably intended that an officer convening a General Court
Martial can go on dissolving such courts martial and reconstitnting them ad
infinitnm until he obtained a verdict or a fmding of his own liking. Such a H
IJ44 SUPREME COURT REPORTS (2001) 2 S.C.R.
A decision would not only be against public policy aud violative of the rule of
double jeopardy but would also reduce the provisions of the Anny Act to a
mockery aud give au appearance of malafides. Having noticed the decisions
of High Courts, this Court then concentrated on the question whether in such
a case trial by a court martial is inexpedient or impracticable? Dictionary
meaning of the term 'inexpedient' was relied on. The Court then summed up
B
its conclusion as under :-

"In the present case, the Chief of the Army Staff had, on the one
hand, the finding of a General Court Martial which had not been
confirmed aud the Chief of the Army Staff was of the opinion that
c the further retention of the respondent in the service was undesirable
aud, on the other baud, there were the above three High Court
decisions and the point was not concluded by a definitive pronounce-
ment of this Court. In such circumstances, to order a fresh·trial by a
court-martial could certainly be said to be both inexpedient aud
impracticable aud the only expedient and practicable course, there-
D fore, open to the Chief of the Army Staff would be to take action
against the Respondent under Rule 14, which he did. The action of
the Chief of the Army Staff in issuing the impugned notice was,
therefore, neither without jurisdiction nor unwarranted in law."

E The decision of Allahabad High Court under appeal was reversed and j.
the writ petition filed by the respondent therein was directed to be dismissed.

We would revert back to the above two decisions of this Court a little
afterwards. We now proceed to notice the legislative scheme underlying
Section 19 of the Act aud Rule 14 of the Rules. Section 19 of the Act aud
F Rule 14 of the Rules are to be read together and as integral parts of one whole
scheme. Section 191 of the Act empowers the Central Government generally
to make rules for the purpose ·of carrying into effect the provisions of this
Act and without prejudice to the generality of such power, specifically to
make rules providing for inter alia the removal, retirement, release or
discharge from the service of persons subject to the Army Act. Section 19
G empowers the Central Government to dismiss or remove from the service auy
person subject to this Act which power is subject to: (i) the (other) provisions
of this Act, and (ii) the rules aud regulations made under the Act. Under
Section 193, all rules made under the Act shall be published in the official
gazette aud on such publication shall have effect as if enacted in this Act.
H Under Section 193-A, such rules shall be laid before each House of Parlia-
U.O.l. v. H.S. SANDHU [R.C. LAHOTI, J.] 1145
ment. In State of U.P. v. Babu Ram, AIR (1961) SC 751 the Constitution A
Bench has held, quoting from Maxwell on Intel]lretation of Statules, that rules
made under a Statute must be treated for all pUl]lOSes of construction or
obligation exactly as if they were in the Act and are to be of the same effect
as if contained in the Act, and are to be judicially noticed for all pUIJloses
of construction and obligation; an action taken under the Act or the rules
B
made thereunder must confirm to the provisions of the Act and the rules
which have conferred upon the appropriate authority the power to take an
action. The Constitution Bench decision has been followed by this court in
State of Tamil Nadu v. Mis Hind Stone, AIR (1981) SC 711 holding that
a statutory rule, while ever subordinate to the parent statute, is, otherwise,
to be treated as part of the statute and as effective. [Also see Peerless General c
Finance and Investment Co.lld. v. Reserve Bank of India, AIR (1992) SC
1033, para 54.]

Section 19 and Rule 14 so read together and analysed, the following
legal situation emerges :-
D
(1) The Central Goverrunent may dismiss, or remove from the service,
any person subject to the Army Act, 1950, on the ground of
misconduct.

(2) To initiate an action under Section 19, the Central Goverrunent or
the Chief of the Army Staff after considering the reports on an E
officer's miscond!!ct ;

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

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

(3) Such satisfaction having been arrived at and such opinion having
been formed, as abovesaid, the officer proceeded against shall be
given an opportunity to show canse against the proposed action which
G
oppmturtity shall include the officer being informed together with all
reports adverse to him to submit in writing his explanation and
defence. Any report on an officer's rrtisconduct or portion thereof may
be withheld from being disclosed to the officer concerned if the Chief
of the Army Staff is of the opinion that such disclosure is not in the
interest of the security of the State. H
1146 SUPREME COURT REPORTS [2001] 2 S.C.R.
A (4) Opportunity to show cause in the manner as abovesaid need not
be given to an officer in the following two cases :-

(a) Where the misconduct forming the ground for termination of
service is one which has led to the officer's conviction by a
criminal court;
B
(b) Where the Central Government is satisfied that for reasons, to
be recorded in writing, it is not expedient or reasonably
prar,ticable to give to the officer an opportunity of showing
cause.

c (5) The explanation of the officer shall be considered by the Chief
of the Anny Staff. If the explanation is found satisfactory, further
proceedings need not be pursued. The explanation, if considered
unsatisfactory by the Chief of the Anny Staff or when so directed by
the Central Government, in either case, shall be submitted to the
Central Government with the officer's defence and the recommenda-
D
tion of the COAS as to the termination of the officer's service i.e.
whether the officer should be (a) dismissed, or (b) removed, or (c) ,.,_
compulsorily retired, from the service.
~
(6) The Central Government shall after taking into consideration the
reports (on the officer's misconduct) the officer's defence, if any,
E
and the recommendation of the COAS, shall take a decision which
if unfavourable to the officer may he (a) to dismiss or remove the
officer with or without pension or gratuity; or (b) to compulsorily
retire him from service with pension and gratuity, if any, admissible
to him.
F
The case of an officer whose service is proposed to be terminated on
the ground of misconduot which has led to his conviction by a criminal court
is to be treated differently. He need not be given an opportunity to show cause
against the proposed termination. A decision as to termination in one of the
modes provided by sub-rule (4) of Rule 14 can be taken by the Central
G Government on its own or on the recommendation of the Chief of the Anny
Staff if he considers that the conduct of the officer leading to his conviction
renders his further retention in service undesirable in which case his recom-
mendation accompanied by a certified copy of the judgment of the criminal
court convicting him shall be submitted to the Central Government which will
H t~e the decision in accordance with sub-rule (5).
U.0.1. v. H.S. SANDHU [R.C. LAHOTI, J.] 1147
The learned ASG submitted that the defence services under the law of A
the land are treated as a class apart as can be spelled out from the different
provisions of the Constitution and the Army Act and other laws. As the
defence of the country is involved, in the very nature of the things, a cautious
approach has to be adopted while interpreting the several legal provisions,
the security of the State and welfare of the nation being supreme. He
B
submitted that under the scheme of the Legislation there is no warrant for
holding that a decision to take action under Section 19 read with Rule 14
or to convene a court martial must be taken on] y in the first instance and
before the time limited for commencing court martial proceedings comes to
an end. He further submitted that power vesting in the Central Government
and Chief of the Army Staff under Section 19 of the Act can be exercised c
whether before or after convening and holding trial by court martial and even
after the expiry of the limitation prescribed by Section 122 for commence-
ment of the court martial. On the other hand, the ]earned counsel appearing
for the respondents (writ"petitioners before the High Court) submitted that the
scheme of the Army Act and the Rules made thereunder provides for an
D
officer subject to the Army Act being dealt with either by a criminal court
or by a court martial or by an appropriate action under Section 19 of the Act
and caunot be subjected to duality of the proceedings, or to one of the three
proceedings after the other one of the three has been set in motion and
accomplished. To be more specific, submitted the learned counsel, once an
officer has been subjected to court martial proceedings or if such proceedings E
caunot be held or have proved to be abortive as having become barred by
time or impossible or impermissible then Section 19 caunot be invoked. In
order to test the validity of such rival contentions forcefully advanced before
us we would examine the scheme of the Act and the implications of the
relevant provisions contained therein. p
Army defends the country and its frontiers. It is entrusted with the task
of protecting against foreign invasion and preserving the national independ-
ence. The arduous nature of duties, the task they have to perform in emergent
situations and the unknown lands and unknown situations wherein they
have to function demand an exceptionally high standard of behaviour and G
discipline compared to their counterparts in civil services. That is why
the military people command the respect of the masses. Such factors
taken together demand the military services being treated as a class apart
and a different system of justice - military justice - being devised for them.
Article 33 empowers the Parliament to restrict or abrogate fundamental rights H
1148 SUPREME COURT REPORTS [2001] 2 S.C.R.
A in their application to the members of the armed forces so as to ensure the
proper discharge of their dnties and .the maintenance of discipline
among them. Right to file special leave to appeal before the Snpreme
Conrt and power of snperintendence vesting in the High Conrts do not
extend over jndgment, determination, sentence or order passed or made
by any Conrt or Tribunal dealing with armed forces. Members of the
B
defence services hold office dnring pleasnre of the President under Article
310 but they are not entitled to the protection offered by Article 311. The
principles of interpretation of statutes which apply to any other statute also
apply to the legislation dealing with defence services; however, the consid-
erations of the security of the State and enforcement of a high degree of
c discipline additionally intervene and have to be assigned weightage while
dealing with any expression needing to be defined or any provision needing
to be interpreted.

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

"71. Punishments awardable by cou11s martial. - Punishments may be
inflicted in respect of offences committed by persons subject to this
Act and convicted by courts martiaL according to the scale following,
F that is to say, -

(a) death;

(b) transportation for life or for any period not less than seven
years;
G
(c) imprisonment, either rigorous or simple, for any period not
exceeding fourteen years;

(d) cashiering, in the case of officers;

H (e) dismissal from the service;
U.0.1. v. H.S. SANDHU [R.C. LAHon J.] 1149
(f) reduction to the ranks or to a lower rank or grade or place in A
~· the list of their rank, in the case of warrant officers; and reduction
q to the ranks or to a lower rank or grade, in the case of non-com-
missioned officers:>

Provided that a warrant officer reduced to the ranks shall not be
B
• required to serve in the ranks as a sepoy;

(g) forfeitute of seniority of rank, in the case of officers, junior
..\--
commissioned officers, warrant officers and non-commissioned
officers; and forfeiture of all or any part of their service for the
purpose of promotion, in the case of any of them whose promo-
tion depends upon length of service;
c
(h) forfeiture of service for the purpose of increased pay, pension
or any other prescribed purpose;

(i) severe reprimand or reprimand, in the case of officers, junior D
commissioned officers, wan·ant officers and non-commissioned
officers;

G) forfeiture of pay and allowances for a period not exceeding
three months for an offe~ce committed on active service;
E
(k) forfeiture in the case of a person sentenced to cashiering or
dismissal from the £ervice of all arrears of pay and allowances
and other public money due to him at the time of such cashiering
or dismissal;

(I) stoppage of pay and allowances until any proved loss or darn- F
age occassioned by the offence of which he is convicted is made
~ good."

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

Under Section 101, any person subject to this Act, who is charged with
an offence, may be taken into military custody. Chapter X deals with Courts-
* Martial. Therein under Section 121, any person subject to this Act having
been acquitted or convicted of an offence by a court martial or a criminal H
1150 SUPREME COURT REPORTS (2001] 2 S.C.R.
A court shall not be liable to be tried again for the same offenceo. Section 122,
provides period of limitation for commencement of trial by court martial. , r
Once the period prescribed has expired a trial before a court martial cannot
be commenced.

Under Section 153 no pnding or sentence of a court martial shall be
B valid unless confirmed as provided by the Act. Section 158 gives power to
confirming authority to mitigate, remit or commute sentences. Section 165
empowers the Central Governmen~ the Chief of the Army Staff or any ..,_
prescribed officer to annul the proceedings of any court martial on the gronnd
that they are illegal or nnjust.
c 'Misconduct' as a ground for terminating the service by way of
dismissal or removal, is not to be found mentioned in Section 19 of the Act;
it is to be read therein by virtue of Rule 14. Misconduct is not defined either
in the Act or in the Rules. It is not necessary to make a search for the
meaning, for it would suffice to refer to State of Punjab & Ors. v. Ram Singh,
D Ex-Constable, (1992] 4 SCC 54 wherein the term 'misconduct' as used in
Punjab Police Manual came up for the consideration of this court. Having
referred to the meaning of 'misconduct' and 'misconduct in office' as defined
in Black's Law Dictionary and Iyer's Law Lexicon, tl1is court held :-

"......... the word 'misconduct' though not capable of precise
E definition, on reflection receives its connotation from the context, the >
delinquency in its performance and its effect on the discipline and the
nature of the duty. It may involve moral turpitude, it must be improper
or wrong behaviour; unlawful behaviour, wilful in character; forbid-
den act, a transgression of established and definite rule of action or
F code of conduct but not mere error of judgment, carelessness or
negligence in performance of the duty; the act complained of bears
forbidden quality or character. Its ambit has to be construed with ,,1.
reference to the subject matter and the context wlherein the term
occurs, regard being had to the scope of the statute and the public
purpose it seeks to serve .. The police service is a disciplined service
G and it requires to maintain strict discipline. Laxity in this behalf
erodes discipline in the service causing serious effect in the mainte-
nance of law and order."

In the context in which the term 'misconduct' has been used in Rule
H 14, it is to be given a wider meaning and any wrongful act or any act of
U.0.1. v. H.S. SANDHU [R.C. LAHOTL J.] 1151
delinquency which may or may not involve moral turpitude, would be A
~ 'misconduct', and certainly so, if it is subversive of army discipline or
high traditions of army and/or if it renders the person unworthy of being
retained in service. The language of sub-rule(2) of Rule 14 employing
the expression 'the reports on an officer's misconduct' uses 'reports' in
plural and misconduct in singular. Here plural would include singular
B
and singular would include plural. A single report on an officer's misconduct
may invite an action under Section 19 read with Rule 14 and there may be
-'r cases where there may be more reports than one on a singular misconduct
or more misconducts than one in which case it will be the cumulative effect
of such reports on misconduct or misconducts, which may lead to the
formation of requisite satisfaction and opinion within the meaning of sub-rule c
(2) of Rule 14.

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

In Union of India v. S.K. Rao, AIR (1972) SC 1137 = (1972) 2 SCJ G
645, the gross misconduct alleged against the delinquent officer was of having
actively abetted in the attempt of brother officer's daughter eloping with a
sepoy. An inquiry into the grave misconduct was made by Court of Inquiry.

" The Chief of the Army Staff considered the conduct of the officer unbecom-
ing of an officer. He also formed an opinion that trial of the officer by a H
1152 SUPREME COURT REPORTS [2001) 2 S.C.R
A general court martial was inexpedient and, therefore, he ordered an admin-
istrative action to be taken under Rule 14 by removing t:ne officer from t'
service. The order of removal was put in issue on the ground that the Army
Act contained specific provision, viz. Section 45, for punishment for unbe-
coming conduct and as Section 19 itself suggests that power being "subject
to the provisions of this Act", Section 19 would be subject to Section 45 and
B
therefore the Central Government would have no power to remove a person
from the service in derogation of the provision of Section 45. The plea was
repelled by this court holding that the power under Section 19 is an inde- ~
pendent power. Though Section 45 provides that on conviction by court
martial an officer is liable to be cashiered or to suffer such less punishment
c as mentioned in the Act, for removal from service under Section 19 read with
Rule 14, a cou1t martial is not necessary. The court specifically held that the
·power under Section 19 is an independent power and "the two Sections 19
and 45 of the Act are, therefore, mutually exclusive.

It is true that some of the punishments provided by Section 71 as
D awardable by court martial are not necessarily punishments, in the sense of
the term as ordinarily known to criminal jurisprudence, but are penalties as
known to service jurisprudence. The fact remains that such penalties have
been treated as punishments awardable by court martial under Section 71 of
the Army Act, 1950. The power conferred by Section 19 on the Central
E Government and the power conferred on court martial by Section 71 are)
clearly distinguishable from each other. They are not altemalives to each other
in the sense that the exercise of one necessarily excludes the exercise of the (
other. The distinction may be set out in a tabular form:-

F Termination (dismissal or removal) Termination of service as punish-
by Central Government under Sec- ment awarded by courts martial
tion 19 read with Rule 14

1. Is condition of service falling Is punishment awardable by court
within the realm of service juris- martial.; punishment can be of dis-
G prudence; penalty may be dismissal/ missal and/or cashiering (cannot be
removal or compulsory retirement. removal or compulsory retirement).

2. No enquiry is contemplated ex- Punishment can be awarded only
cept affording opportunity to show on a trial being held in accordance
cause as provided by Rule 14. with the provisions of the Act
H
U.O.l. v. H.S. SANDHU [R.C. LAHOTL J.] 1153
A
3. There is no bar of limitation Courts martial cannot inflict any
provided for exercising the power punishment unless trial IS com-
menced within the period of liinita-
lion provided by Section 122.

4. Any person subject to Army Act Any .Person subject to Army Act
dismissed or removed from the awarded a punishment under Sec- B
service by Central Government is tion 71 is a person convicted by
not "previous convict." court martial

5. Any person proceeded against Any person charged with an of-
under Section 19 does not suffer fence may be taken into military
any incarceration. custody. c
6. Satisfaction and formation of Punishment can be inflicted only
opinion in Rule 14 may be based on the misconduct fanning subject
on a single report of misconduct or matter of charge.
more than one or series of such
reports taken together. D
7. Penalty is guided by formation Punishment would be determined
of opinion on undesiral''lity of of- by gravity of proved misconduct
ficer for future retention in the serv- amounting to offence.
ice.
E
It is relevant to note that when an offence is triable by C1 criminal court
and also by a court mattial, each having jurisdiction in respect of that offence,
a discretion is confen-ed by Section 125 on the officer commanding to decide
before which court the proceedings shall be instituted. The Parliament has
obviously made no such provision in the Act for the exercise of a choice F
between proceeding under Section 19 or convening of a comt martial. The
element of such option, coupled with the factors which would be determi-
native of the exercise of option, is provided by Rule 14(2). When an officer,
subject to the Army Act, is alleged to have committed a misconduct, in view
of Section 125 and Section 19 read with Rule 14, the following situation
emerges. 1f the alleged misconduct amounts to an offence including a civil
G
offence, Section 125, vests discretion in the officer commanding the Army,
Army Corps Division or independent Brigade in which the accused person
is serving or such other officer as may be prescribed, to decide before which
court the proceedings shall be instituted, i.e. before a court martial or a
criminal court. If the decision is to have the delinquent officer tried by a H
1154 SUPREME COURT REPORTS [2001] 2 S.C.R.

A criminal court aud if he is acquitted by the criminal court, then that is the
end of the matter. The pronouncement of judicial verdict would th.ereafter
exclude any independent disciplinary action being taken against the delin-
quent officer on the same facts .which constituted the misconduct amounting
to an offence for which he was charged before the criminal court. In cilie event
of his being convicted if somi; further disciplinary action is still proposed to
B
be taken, then it is the conduct of the officer leading to his conviction (as
found by the criminal court) which is capable of being taken into considera-
tion by the Central Government or the COAS under sub-rules (3), (4) and
(5) of Rule 14 for the purpose of such action. The facts forming the conduct
of the officer leading to his conviction shall alone form basis of the formation
c of opinion as to whether his further retention in service is undesirable
whereupon he may be dismissed, removed or compulsorily retired from the
service in the manner prescribed by the said sub-rules. But, on the other hand,
if the initial decision was to have the delinquent officer tried not by a criminal
court but by a court-martial, then under sub-rule (2) of Rule 14 it is for the
Central Government or the COAS to arrive at a satisfaction whether the trial
D
of the officer by a court-martial is expedient and practicable whereupon the
court-martial shall be convened. The Central Government or the COAS may
arrive at a satisfaction that it is inexpedient or impracticable to have the
officer tried by court-martial tlien the court-martial may not be convened and
additionally, subject to formation of the opinion as to undesirability of the
E officer for further retention in the service, the power under Section 19 read
with Rule 14 may be exercised. Such a decision to act under Section 19 read
>
with Rule 14 may be taken either before convening the court-martial or even
after it has been convened and commenced subject to satisfaction as to the
trial by a court-martial becoming inexpedient or impracticable at which stage
p the Central Government or the COAS may revert back to Section 19 read with
Rule 14. It is not that a decision as to inexpediency or impracticability of
trial by court martial can be taken only once and that too at the initial stage
only and once taken cannot be changed in spite of a change in fact situation
and prevailing circumstances.

G Section 127 was to be found in the Army Act as originally enacted
which provided that a person convicted or acquitted by a court martial could
be tried again by a criminal court for the same offence or on the same facts
subject to previous sanction of the Central Government. The provision was
deleted by Act No.37 of 1992. This deletion is suggestive of the legislative
H intent to confer fmality to the finding and sentence of court martial subject
U.0.1. v. H.S. SANDHU [R.C. LAHOTI, J.] 1155
,o their being confirmed and not annulled. Power to confirm finding and A
sentence of court martial and the power to annul the proceedings on the
ground of being illegal or unjust, both provisions read together indicate that
the finding and sentence of court martial if legal and just have to be ordinarily
confirmed but they may be annulled on the ground of illegality or unjustness.
An obligation is cast on the confirming authority to examine the legality and
B
justness of the proceedings before confirming them. Questions of correctness,
legality and propriety of the order passed by any court martial and the
regularity of any proceedings to which the order of court martial relates can
be raised by way of petition under Section 164. Once the finding and the
sentence, if any, have been confirmed, the court martial being a special
'tribunal dispensing milita1y justice, it would not be the permissible to exercise c
additionally the power conferred by Section 19 read with Rule 14 and to
inflict a penalty thereunder if the court martial has not chosen to inflict the
same by way of punishment under Section 71. To permit such a course would
be violative of the principle of double jeopardy and would also be subversive
of the efficacy of the court martial proceedings, finding and sentence. So long
D
as a final verdict of guilty or not guilty, pronounced by court martial and
confir.ned by com:ietent authority so as to be effective is not available, the
power to proceed under Section 19 read with Rule 14(2) exists and remains
available to be exercised.

The learned counsel for the respondents submitted that the term 'im- E
practicable' has been used in Rule 14 in contradistinction with 'impossible'
or 'impermissible' and therefore if a trial by court martial though practicable
but has been rendered impermissible because of a bar created by the rule of
limitation or rendered impossible because of a fact situation then resort cannot
be had to Section 19 read with sub-rule (2) of Rule 14 by treating the
impossibility or impermissibility as impracticability. The learned counsel for F
the respondents went on to submit that even Dharam Pal Kukrety's case
required reconsideration as in their submission it does not lay down the
correct law. It was urged that to the extent Dharam Pal Kukrety's case treats
'impermissibility' as impracticability it is a mistaken view. On the other hand,
the learned ASG submitted that Dharam Pal Kukrety's case has correctly laid G
down the law and mistake has been committed by this court in deciding
Radha Krishan's case by over looking Dharam Pal Kukrety's case and
therefore Radha Krishan's case must be held to have been decided per
incwiam.
Let us first examine what is the meaning of term 'impracticable' in sub- H
1156 SUPREME COURT REPORTS [200!] 2 S.C.R.
A rule(2) of Rule 14?

In Major Radha Krishan's case this court has held,

" ........ When the trial itself was legally impossible and impermissible
the question of its being impracticable, in our view cal1Thot or does
B not arise. 'Impracticability' is a concept different from 'impossibility'
for while the latter is absolute, the former introduces at all events
some degree of reason and involves some regard for practice.
According to Webster's Third New International Dictionaiy 'imprac-
ticable' means not practicable; incapable of being peiformed or
accomplished by the means employed or at command. 'Impracticabl~'
c presupposes that the action is 'possible' but owing to certain practical
difficulties or other reasons it is incapable of being performed. The
same principle will equally apply to satisfy the test of 'inexpedient'
as it means not expedient; disadvantageous in the circumstances,
inadvisable, impolitic. It must therefore be held that so long as an
D offer can be legally tried by a court-martial the authorities concerned
may, on the ground that such a trial is not impracticable or inexpe-
dient, invoke Rule 14(2). In other words, once the period oflimitation
of such a trial is over the authorities cannot take action under Rule
14(2).
E The above passage shows that the Iearoed Judges went by the diction-
aiy meaning of the tenn 'imp:-acticable', placed the te1m by placing it in juxta
>
position with 'impossibility' and assigned it a narrow meaning. With respect
to the leained judges deciding Major Radha Krishan's case, we find ourselves
not persuaded to assign such a narrow meaning to the term. 'Impracticable'
F is not defined either in the Act or in the Rules. In such a situation, to quote
from "Principles of Statutory Interpretation" (Chief Justice G.P. Singh, Sev-
enth Edition, 1999, pp. 258-259), "when a word is not defined in the Act
itself, it is permissible to refer to dictionaries to find out the gmeral sense
in which that word is understood in common parlance. However, in selecting
one out of the various meanings of a word, regard must always be had to
G the context as it is a fundamental rule that 'the meanings of words and
expressions used in an Act must take their colour from the context in which
they appear'. Therefore, 'when the context makes the meaning of a word quite
clear, it becomes unnecessary to search for and select a particular meaning
out of the diverse meanings a word is capable of, according to lexicogra-
H phers'. As stated by KRISHNA IYER, J. 'Dictionaries are not dictators of
U.O.I. v. H.S. SANDHU [R.C. LAHOTI, J.] 1157
statutory construction where the benignant mood of a law, and more emphati- A
cally, the definition clanse furnish a different denotation'. In the words of
JEEVAN REDDY, J.: 'A statute cannot always be construed with the diction-
ary in one hand and the statute in the other. Regard must also be bad to the
scheme, context and to the legislative history.' JUDGE LE_ARNED HAND
cautioned 'not to make a fortress out of the dictionary' but to pay more
B
attention to 'the sympathetic and imaginative discovery' of the purpose or
object of the statute as a guide to its meaning."

In Words and Phrases (Permanent Edition, Vol.20, page 460- 461) it
1s stated that the term 'impossible' may sometimes be synonymous with
'impracticable'; 'impracticable' means 'not practicable', incapable of being c
performed or accomplished by the means employed or at command; 'imprac-
ticable' is defined as incapable of being effected from Jack of adequate means,
impossible of petlormance, not feasible; 'impracticable' means impossible or
nnreasonably difficult of performance, and is a much stronger term than
· 'expedient'. In Law Lexicon (P. Ramanatha Iyer, Second Edition, page 889)
one of the meanings assigned to impracticable is 'not possible or not feasible'; D
at any rate it means something very much more than 'not reasonably
practicable'. In The New Oxford Dictionary of English (1998, at p.918),
impracticable (of a course of action) is defined to mean 'impossible in practise
to do or carry out'. The same dictionary states the usage of the term in these
words -- 'Although there is considerable overlap, impracticable and imprac- E
ti cal are not used in exactly the same way. l1npracticable means 'impossible
to crury out' and is 11011nally used of a specific procedure or course of action,
.......... Impractical, on the o!her hand, tends to be used in more general senses,
often to mean simply 'um·ealistic' or 'not sensible'.

We may with advantage refer to certain observations made by the F
Constitution Bench (majority view) in Union of India & Am: v. Tulsi Ram
Paiel, [1985] 3 SCC 398. Article 311(2), proviso (b) contemplates a govern-
ment servant being dismissed or removed or reduced in rank, dispensing with
an enquiry, if it is not 'reasonably practicable' to hold such enquiry. The
Constitution Bench dealt with meaning of the expression 'reasonably prac-
G
ticable' and the scope of the provision vide para 128 to 138 of its judgment.
The Constitution Bench pertinently noted !hat the words used hle 'not
reasonably practicable' and not 'not practicable' nor 'impracticable' (as is the
term used in sub-rule(2) of Rule 14 of the Army Rules). Tims, the decision
in Tulsi Ram Patel's case may not ipso facto throw light on the issue before
us but some of the observations made by the Constitution Bench can usefully H
1158 SUPREME COURT REPORTS [2001] 2 S.C.R.
A be referred to. A few illustrative cases mentioned by the Constitution Ben.ch,
wherein it may be 'not reasonably practicable' to hold an enquiry, are:-

(i) a situation which is of the creation of the concerned government
servant himself or of himself acting in concert with others or his
associates;
B
(ii) though, the gvvemment servant himself is not a party to
bringing about of a situation yet the exigencies of a situation
may require that prompt action should be taken and not taking
prompt action may result in the trouble spreading and the
c situation worsening and at times becoming uncontrollable and
necessary concomitance of such an action resulting from a
situation which is not of the creation of the authorities.

The Constitution Bench has further held that disciplinary enquiry is not
expected to be dispensed with lightly or arbitrarily or out of ulterior motive
D or merely to avoid the holding of an enquiry or because the department's case
against the government servant is weak and must fail. It is not necessary that
a situation which makes the holding of au enquiry not reasonably practicable
should exist before the disciplinary enquiry is initiated against the government
servant; such a situation can also come into existence subsequently during the
E course of an enquiry. Reasonable practicability of holding an enquiry is a
matter of assessment to be made by the disciplinary authority. The satisfaction >
of the authority is not immune from judicial review on well settled parameters
of judicial review of administrative decisions. However, if on the satisfaction
reached by the authority two views are possible, the court will decline to
interfere.
F
As the term used in sub-rule (2) of Rule 14 is 'impracticable' and not
'no! reasonably practicable', there is more an element of subjectivity sought
to be introduced by this provision in the process of arriving al the satisfaction,
obviously because the rule is dealing with the satisfaction arrived al by the
G Central Government or the Chief of the Army Staff, in the matter of
disciplinary action on account of misconduct committed by an officer of
Army which decision would have been arrived al by taking into consideration
the then prevailing fact situation warranting such decision after considering
the reports on officer's misconduct.

H The learned Additional Solicitor General cited a few examples wherein
U.01. v. H.S. SANDHU [R.C. LAHOTI, J.] 1159
the trial by court martial may be rendered 'impracticable', to wit:- A

(i) a misconduct amounting to an offence having been rendered not
triable by court martial by expiration of the period of limitation prescribed
by Section 122;

(ii) a court martial having been dissolved after its commencement on B
account of the number of officers required by the Act to validly constitute
a court martial being reduced below the minimum or any other exigency
contemplated by Section 117 occurring and the court martial cannot be
convened to commence afresh on account of bar of limitation under Section
122 having come i~to play; C
(iii) The Central Government, the Chief of the Army Staff or any
prescribed ofticer having annulled the proceedings of any court martial on
the ground that they are illegal or unjust within the meaning of Section 165
of the Act and by that time the bar of limitation under Section 122 having
come into play; D
(iv) Any finding or sentence of a court martial requiring confirmation
having been ordered to be revised by order of the confirming authority but
in spite of such revision having not been confirmed once again and a
subsequent revision of finding or sentence being not contemplated by the
provisions of the Act; rather a revision once only having been provided by E
Section 160;

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

On the meaning which we are placing on the term 'impracticable' as
occurring in Rule 14(2) we proceed to provide resolutions to the several
problems posed by the illustrations given by the learned ASG. According to
us: CJ
In illustration (i) the expiry of the period of limitation prescribed by
Section 122 renders the trial by court-martial 'impracticable' on the wider
meaning of the term. There is yet another reason to take this view. Section
122 prescribes a period of limitation for the commencement of court-martial
proceedings but the Parliament has chosen not to provide any bar of limitation H
1160 SUPREME COURT REPORTS [2001] 2 S.C.R.
A on exercise of power conferred by Section 19. We cannot, by an interpretative
process, read the bar of limitation provided by Section 122 into Section 19
of the Act in spite of a clear and deliberate legislative abstention. However,
we have to caution that in such a case, though power under Section 19 read
with Rule 14 may be exercised but the question may still be - who has been
responsible for the delay? The period prescribed by Section 122 may itself
B
be taken laying down a guideline for determining the culpability of delay.
In spite of power under Section 19 read Rule 14 having become available
to be exercised on account of a trial by a court-martial having been rendered
impracticable on account of bar of limitation created by Section 122,
other considerations would assume relevance, such as -- whether the facts
c or set of facts constituting misconduct being three years or more old have
ceased to be relevant for exercising the power under Section 19 read with
Rule 14? If there was inaction on the part of tl1e authoiities resulting into
delay and atn·acting bar of limitation under Section 122 can it be said th.at
the authorities arn taking advantage of their own inaction or default? If the
answer be yes, such belated decision to invoke Section 19 may stand vitiated,
D
not for any lack of jurisdiction but for colonrable or malafide exercise of
power.

In illustration (ii), the court martial has stood dissolved for fortuitous
circumstance for which no one is to be blanied - neither COAS nor the
E delinquent officer. The delinquent officer, howsoever grave his misconduct
amounting to offence may have been, would go scot free. It would be >
fastidious to hold that bar of limitation under Section 122 would also exclude
the exercise of power under Section 19 read with Rule 14.

In illustrations (iii) and (iv) also, in onr opinion, the exercise of power
F under Section 19 read with Rule 14 cannot be excluded. The finding and
sentence of the court martial are ineffective unless confirmed by the confirm-
ing anthority. The Act does not contemplate that the finding and sentence of
a court maitial must necessarily be confirmed merely because they have been
returned for the second time. Section 165 vests power in the Central Gov-
errunent, the COAS and any prescribed officer, as the case may be, to annul
G the proceedings of any court martial if the sanie are found to be illegal or
unjnst. The delinquent officer caooot be allowed to escape the consequences
of his misconduct solely because court martial proceedings have been ad-
judged illegal or unjust for the second time. The power under Section 19 read -t
with Rule 14 shall be available to be exercised in such a case though in an
H individual case the exercise of power may be vitiated as an abuse of power.
U.0.l. v. H.S. SANDHU [R.C. LAHOTI, J.] 1161
The option to have a delinquent officer being tried by court martial having A
been so exercised and fmding as to guilt and sentence having been returned
for or against the delinquent officer by the court martial for the second time,
on just and legal trial, ordinarily such finding and sentence should be
acceptable so as to be confirmed. Power to annul the proceedings cannot be
exercised repeatedly on the sole ground that the finding or the sentence does
B
not meet the expectation of the confirming authority. Refusal to confirm is
a power to be exercised, like all other powers to take administrative decision,
reasonably and fairly and not by whim, caprice or obstinacy. Exercising
power under Section 19 read with Rule 14 consequent upon court martial
proceedings being annulled for the second time because of having been found
to be illegal or unjust, the exercise would not suffer from lack of jurisdiction c
though it may be vitiated on the ground of 'inexpediency' within the meaning
of Rule 14(2) or on the ground of abuse of power or colourable exercise of
power in a given case.

In illustration (v), the ball will be in the court of the delinquent officer.
Once a stay order has been vacated, in spite of the expiry of limitation for
D
commencement of court martial proceedings under Section 122 of the Act,
the option to have the delinquent tried by a court martial or to invoke Section
19 read with Rule 14, depending on the facts and circumstances of an
individual case, would still be available to the Central Government or the
COAS. In Union of India & Ors. v. Major General Madan Lal Yadav (Retd.), E
[1996] 4 SCC 127, this court has invoked applicability of the maxim nullus
commodum capere potest de injuria sua propria - no man can take
advantage of his own wrong - to bold that the delinquent officer having
himself created a situation withholding commencement of trial, he would be
estopped from pleading the bar of limitation and the trial commenced on
F
vacating of the judicial order of restraint on court martial shall be a valid trial.
The learned Additional Solicitor General pointed out that although in the
category of cases illustrated by (v) above in case of an offender who ceases
to be subject to the Act, the Parliament has by Act No.37 of 1992 amended
sub-section (2) of Section 123 so as to exclude the time during which the
institution of the proceedings in respect of the offence has been stayed by G
injunction or order from computing the period of limitation but a similar
provision is not made in respect of the period of limitation for trial by court
martial of any person subject to the Act, as the respondents herein are. This
deliberate omission by the Parliament to provide for exclusion from calcu-
lating period of limitation in Section 122 on the lines of the provision for H
1162 SUPREME COURT REPORTS (2001) 2 S.C.R.
A exclusion in Section 123 lends strength to his submission that in as much as
a person subject to the Act would be amenable to Section 19 of the. Act even
after the expiry of the period of limitation for trial, provision for extension
in period of limitation under Section 122 was unnecessary. If the expiry. of
the period of limitation for commencement of court martial was to be given
effect to, the consequence to follow would be that the person would not be
B
liable to be tried by a court martial and hence would also not be liable to
be inflicted with a wide variety of punishments awardable by coUJJt martial
under Section 71; nevertheless he would be liable to be dismissed or removed
from service under Section 19, though that action shall be capable of being
taken subject to formation of opinion as to the undesirability of person for
C further retention in service. We find merit in the submission of the learned
ASG.

Having thus explained the law and clarified the same by providing
resolutions to the several illustrative problems posed by the learned ASG for
the consideration of this court (which are illustrative and not exhauslive), we
>
D are of the opinion that the expiry of period of limitation under Section 122
of the Act does not ipso facto take away the exercise of power under Section
19 read with Rule 14. The power is available to be exercised though in the ,,
facts and circumstances of an individual case, it may be inexpedient to
exercise such power or the exercise of such power may stand vitiated if it
E is shown to have been exercised in a manner which may be called colourable
exercise of power or an abuse of power, what at times is also termed in
administrative law as fraud on power. A misconduct committed a number of
years before, which was not promptly and within the prescribed period of
limitation subjected to trial by court martial, and also by reference 10 which
the power under Section 19 was .not promptly exercised may cease to be
F
relevant by long lapse of time. A subsequent misconduct though less serious
may aggravate the gravity of an earlier misconduct and provide need for
exercise of power under Section 19. That would all depend on the facts and
circumstances of an individual case. No hard and fast rule can be laid down
in that behalf. A broad proposition that power under Section 19 read with
G Rule 14 cannot be exercised solely on the ground of court martial proceedings
having not commenced within the period of limitation prescribed by Section
122 of the Act, cannot be accepted. In the scheme of the Act and the purpose
sought to be achieved by Section 19 read with Rule 14, there is no reason
to place a narrow construction on the term 'impracticable' and therefore on
H availability or happening of such events as render trial by court-martial
U.0.1. v. H.S. SANDHU [R.C. LAHOTI, J.] 1163
"'· impennissible or legally impossible or not practicable, the situation would be A
·~
,,. covered by the expression - the trial by court-martial having become 'imprac-
ticable'.

Exercise of power under Section 19 read with Rule 14 is open to
I judicial review on well settled parameters of administrative law governing
judicial review of administrative action such as when the exercise of power B
is shown to have been vitiated by malafides or is found to be based wholly
on extraneous and/or irrelevant grounds or is found ·t~ clear case of
colourable exercise of/or abuse of power or what is sometimes called fraud
on power, i.e. where the power is exercised for achieving an oblique end. The
troth or correctness or the adequacy of the material available before the c
authority exercising the power caonot be revalued or weighed by the court
while exercising power of judicial review. Even if some of the material, on
which the action is taken is found to be irrelevant, the court would still not
,.._ interfere so long as there is some relevant material available ou which the
action can be sustained. The court would presume the validity of the exercise
of power but shall not hesitate to interfere if the invalidity or unconstitutionality D
is clearly demonstrated. If two views are possible, the court shall not interfere
by substituting its own satisfaction or opinion for the satisfaction or opinion
of the authority exercising the power.

We are also of the opinion that Major Radha Krishan's case lays down
E
-{. propositions too broad to be acceptable to the extent it holds that once the
period of limitation for trial by court martial is over, the authorities caonot
take action under Rule 14(2). We also do not agree with the proposition that
for the purpose of Rule 14(2), impracticability is a concept different from
impossibility (or impennissibility, for that matter). The view of the court in
that case should be treated as confined to the facts and circumstances of that F
case alone. We agree with submission of the learned Additional Solicitor
-< '( General that the case of Dharam Pal Kukr-ety being a Three-Judge Bench
decision of this court, should have been placed before the Two-Judge Bench
which heard and decided Major Radha Krishan's case.
I G
I! (
Reverting back to the two cases under appeal before us, we are of the
opinion that the High Court was not right in allowing the two writ petitions
filed by Harjeet Singh Sandhu and Harminder Kumar, respectively, by placing
reliance on the decision of this court in Major Radha Krishan's case and
holding tliat the exercise of power under Section 19 read with Rule 14 by
the COAS was vitiated solely on account of the bar of limitation created by H
1164 SUPREME COURT REPORTS [2001] 2 S.C.R.
A Section 122 of the Act. Both the judgments of the High Court, which are
,
under appeal, are accordingly set aside and the writ petitions filed by the two
respondents are directed to be dismissed. However, consistently with the
observation made by this court vide para 18 of Majar Dharam Pal Kukrety 's
case, we would like to impress upon the Chief of the Army Staff and the
Central Government, as the case may be, that the incidents leading to action
B
against the two respondents are referable to late 70s. By this time a period .
of more than 20 years has elapsed in between. Before any decision 'lo initiate'
disciplinary action against any of the two respondents is taken, the conduct
and behaviour of the respondents concerned during the intervening period
shall also be taken into consideration while deciding upon the desirability of
c proceeding further in the matter at this belated stage, and keeping in view,
of course, the requirement of military discipline and the high traditions of the
Indian Army. No order as to the costs.

v.s.s. Appeals allowed.

)