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2001(3) Supreme 370
Supreme Court of India
(From Allahabad High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti and Brijesh Kumar, JJ.
Union of India & Ors. —Appellants
versus
Harjeet Singh Sandhu etc. —Respondents
Civil Appeal No. 2721 of 2001
(Arising out of SLP (C) No. 5155 of 1998)
With
C.A. No. 2722 of 2001
(Arising out of SLP (C) No. 3233 of 2000)
Decided on 11-4-2001
Counsel for the Parties :
For the Appearing Parties : Altaf Ahmad, Additional Solicitor General, P.P. Malhotra, Sr. Advocate, Hemant 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) Advocate (NP), Ms. Madhu Sweta, and Prem Prasad Juneja, Advocates.
Held : 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 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 (l) thereof which belong to the realm of service jurisprudence and can ordinarily be inflicted by way of penalty for 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, 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 find it the difficult to agree with the submission so made. (Para 22)
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 exhaustive), we are of the opinion that the expiry of period of limitation under Section 122 of the Act does not ipso facto take away the exercise of power under Section 19 read with Rule 14. The power is available to be exercised though in the facts and circumstances of an individual case, it may be inexpedient to exercise such power or the exercise of such power may stand vitiated if it is shown to have been exercised in a manner which may be called colourable exercise of power or an abuse of power, what at times is also termed in administrative law as fraud on power. A misconduct committed a number of years before, which was not promptly and within the prescribed period of limitation subjected to trial by court martial, and also by reference to which the power under Section 19 was not promptly exercised may cease to be relevant by long lapse of time. A subsequent misconduct though less serious may aggravate the gravity of an earlier misconduct and provide need for exercise of power under Section 19. That would all depend on the facts and circumstances of an individual case. No hard an fast rule can be laid down in that behalf. A broad proposition that power under Section 19 read with Rule 14 cannot be exercised solely on the ground of court martial proceedings having not commenced within the period of limitation prescribed by Section 122 of the Act, cannot be accepted. In the scheme of the Act and the purpose sought to be achieved by Section 19 read with Rule 14, there is no reason to place a narrow construction on the term ‘impracticable’ and therefore on availability or happening of such events as render trial by court-martial impermissible or legally impossible or not practicable, the situation would be covered by the expression - the trial by court-martial having become ‘impracticable’. 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 shown to have been vitiated by mala fides or is found to be based wholly on extraneous and/or irrelevant grounds or is found to be a 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 truth or correctness or the adequacy of the material available before the authority exercising the power cannot 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 on 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 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 propositions too broad to be acceptable to the extent it holds that once the period of limitation for trial by court martial is over, the authorities cannot take action under Rule 14(2). We also do not agree with the proposition that for the purpose of Rule 14(2), impracticability is a concept different from impossibility (or impermissibility, for that matter). The view of the court in that case should be treated as confined to the facts and circumstances of that case alone. We agree with submission of the learned Additional Solicitor General that the case of Dharam Pal Kukrety being a Three Judges Bench decision of this court, should have been placed before the Two-Judges Bench which hear and decided Major Radha Krishan’s case. 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 that the exercise of power under Section 19 read with Rule 14 by the COAS was vitiated solely on account of the bar of limitation created by Section 122 of the Act. Both the judgments of the High Court, which are under appeal, are accordingly set aside and the writ petitions filed by the two respondents are directed to be dismissed. However, consistently with the observation made by this court vide para 18 of Major Dharam Pal Kukrety’s case, we would like to impress upon the Chief of the Army Staff and the Central Government, as the case may be, that the incidents leading to action against to the two respondents are referable to late 70s. By this time a period of more than 20 years has elapsed in between. Before any decision to initiate disciplinary action against any of the two respondents is taken, the conduct and behaviour of the respondents concerned during the intervening period shall also be taken into consideration while deciding upon the desirability of proceeding further in the matter at this belated stage, and keeping in view, of course, the requirement of military discipline and the high traditions of the Indian Army. No order as to the costs. (Paras 35, 36, 37 and 38)
Certainly. Based on the provided legal document, here are the key points summarized:
The exercise of power under Section 19 of the Army Act, 1950, read with Rule 14 of the Army Rules, 1954, cannot be solely based on the ground that Court Martial proceedings have not commenced within the prescribed limitation period of three years under Section 122 of the Army Act. The limitation does not automatically bar the exercise of such administrative powers (!) (!) .
The term ‘impracticable’ in Rule 14(2) of the Army Rules is to be understood broadly, encompassing situations where trial by Court Martial becomes legally impossible, impermissible, or not practicable due to practical difficulties or other circumstances, including delay or procedural issues. It is not confined to absolute impossibility but includes circumstances where trial is not feasible in practice (!) (!) (!) .
The concept of ‘impracticable’ is distinct from ‘impossible’ or ‘impermissible’ and involves some degree of reason and practical consideration. The assessment of impracticability is subjective and depends on the facts and circumstances of each case, with the courts exercising judicial review to ensure the exercise of power is not mala fide, arbitrary, or based on extraneous grounds (!) (!) .
The power under Section 19 can be exercised both before and after the trial by Court Martial, and even after the expiry of the limitation period prescribed by Section 122, provided the circumstances justify the exercise of such power. The limitation period does not, on its own, deprive the authority of the power to take administrative action under Section 19 (!) (!) .
The exercise of power under Section 19 is subject to judicial review, and courts will scrutinize whether such exercise was mala fide, based on irrelevant grounds, or a result of abuse of power. The courts will presume the validity of the administrative action but will interfere if illegality or unconstitutionality is clearly established (!) .
The broad legal principles establish that the authority can invoke Section 19 and Rule 14 even when Court Martial proceedings are barred by limitation, delay, or procedural irregularities, provided the circumstances render the trial impracticable or not feasible. The decision must be made reasonably, fairly, and based on relevant facts, and not for extraneous or malicious reasons (!) (!) .
The legal framework emphasizes the distinct and independent nature of disciplinary proceedings under Section 19 and judicial or Court Martial proceedings, with each having specific conditions and limitations. The power under Section 19 is an administrative measure that can be invoked independently of Court Martial proceedings, even if they are barred or have become impracticable (!) (!) .
The interpretation of terms like ‘impracticable’ or ‘impossible’ must consider the context, legislative intent, and the purpose of maintaining discipline and high standards within the armed forces. The legislative scheme is designed to allow flexibility in disciplinary measures, especially in circumstances where Court Martial proceedings cannot be initiated or completed in time (!) (!) .
Judicial review plays a crucial role in ensuring that the exercise of power under Section 19 is not abused, and that decisions are made based on relevant and sufficient material, with fairness and reasonableness. The courts will not re-evaluate the correctness of the material but will scrutinize for procedural fairness and absence of mala fide (!) .
The legal principles clarify that the limitations prescribed by law do not necessarily bar administrative disciplinary actions, and each case must be assessed on its facts, considering delays, procedural irregularities, and the circumstances that may justify invoking Section 19 despite the lapse of time or procedural hurdles (!) (!) .
Please let me know if you need further elaboration or specific legal advice based on these key points.
JUDGMENT
R.C. Lahoti, J.—Harjeet Singh Sandhu, the respondent in S.L.P. (C) No. 5155/1998 was a captain in the Army. On the night intervening 27th & 28th March, 1978, the respondent along with three other officers interrogated 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 orders to extract a confession as a result whereof Bhagwan Das died. A General Court martial (GCM, for short) was convened under Section 109 of Army Act, 1950 which tried the 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 therefore vide order dated 19.4.1979, in exercise of the powers conferred by Section 160 of the Army Act sent the case back for revision. On 10.5.1979, 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 Army 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, a show cause notice was issued to the respondent under Section 19 of the Act read with Rule 14 of the Army Rules, 1954 (hereinafter the Rules, for 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 the part of the Chief of the Army Staff - (i) a satisfaction that the respondent’s retrial by a court martial consequent to the annulment of the GCM proceedings 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 in defence of himself. On 2.1.1984 the Chief of the Army 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 place in the night intervening 27th and 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 India1, squarely applies to the facts of this case and therefore the exercise of power under Section 19 read with Rule 14 was vitiated. The writ petition has been allowed and the impugned order of termination dated 2.1.1984 has been quashed.
2. In S.L.P. (C) No. 3233/2000 the respondent Harminder Kumar was a Captain in the Army. 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 recorded, 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 Constitution of India in this Court wherein, by an interim order, the proceedings in the court martial were directed to be stayed. On 26.11.1982 the writ petition filed by the res
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