Union Of India vs Ex. Sqn. Ldr. R. Sood
2000 Latest Caselaw 987 Del

ORDER

M.S.A. Siddiqui, J.

1. This appeal is directed against the judgment dated 23rd September, 1999 passed by the learned Single Judge quashing the order dated 22nd September, 1993 whereunder the respondent was dismissed from service.

2. Briefly stated, the facts giving rise to the appeal are that during the Red Alert, 147 Sqn.AF had been moved to Khuri village in Jaisalmer and was camping in the General Reserve Engineering Force (for short 'GREF') premises. On 29th March, 1987 at about 10.30 hrs., the deceased Mohinder Singh of 95 RCC (GREF), while reversing his vehicle accidentally uprooted one of the pegs holding the guy wires of P-12 Radar Antenna. This inevitably led to an altercation between him and the air force personnel. However, the situation was defused. Thereafter, at about 2200 hrs., the deceased Mohinder Singh, under the influence of liquor, again picked up arguments with the defense Security Corps (for short 'DSC') personnel and started abusing and threatening them. The matter was reported to the Wg. Cdr. R. C. Arora, Commanding Officer of 147, Sqn, AF and pursuant to his directions the deceased Mohinder Singh was produced before him. In the meanwhile, the respondent, who was a Sqn. Ldr. accompanied by Sqn. Ldr. S.S. Khandawali, came there. Thereupon Wg. Cdr. Arora directed the respondent to leave the deceased Mohinder Singh at BSF post on Hiyajilar Road about 25 kms. away from the camp to avoid any ugly scene on the following day i.e. 30th March, 1987 when the AORinC, SWAC was to inspect the Unit. Pursuant to the said direction, the respondent picked up the deceased Mohinder Singh in his jeep and left the camp accompanied by Plt. Offr. A.K. Bhardwaj, three airmen and two DSC jawans. However, the respondent took the deceased Mohinder Singh to a desolate place and left him at the mercy of hostile and inhospitable terrain. On 31st March, 1987 GREF authorities lodged a report with the police about disappearance of the deceased Mohinder Singh. On 2nd April, 1987 the deceased Mohinder Singh's skeleton was recovered from the spot. On 6.4.1986, a Court of inquiry was held to enquire into the circumstances in which the deceased Mohinder Singh was seen with the Air Force Personnel. This inquiry was concluded on 4.8.1987. Thereafter, on 4.1.1989 summary of evidence was also recorded. On 19.1.1989 the respondent was suspended and on the same day he was also arrested by the police. The respondent was sent up for trial before the Court of Sessions and by the order dated 12.1.1999 he was discharged by the said Court. Thereafter the respondent was dismissed from service vide order dated 22nd September, 1993 on the basis of a show cause notice dated 30th October, 1990, on the alleged misconduct related to the incident dated 29th March, 1987. Aggrieved thereby, the respondent filed a petition under Article 226 of the Constitution challenging the validity of the said order of dismissal.

3. The learned Single Judge allowed the writ petition, quashed the order of dismissal dated 22nd September, 1993 and directed that the respondent be reinstated in service with all consequential benefits. In passing the above order, the learned Judge, relying upon the decision of the Supreme Court in Maj. Radha Krishan Vs. VOI & Ors., , held that Rule 16 of the Air Force Rules cannot override the substantive provisions contained in Section 121 of the Air Force Act and, therefore, even the disciplinary action under Rule 16 cannot be initiated beyond the period of three years ignoring the period of limitation prescribed by the Section 121 ibid.

4. Learned counsel for the appellant has strenuously urged that the designated authority under the Air Force Act (for short 'the Act') can resort to the exercise of power under Section 19 read with Rule 16 in cases where trial by a General Court Martial is barred by the provisions of Sections 121 of the Act. In order to appreciate the contention of the learned counsel for the appellant, a reference to Sections 19, 120, 121 of the Act and Rule 16 of the Air Force Rules has become indispensable. Relevant extracts of the said provisions are as under :

   "Section 19  Termination 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 service any person subject to this Act." 
 

   "120. Prohibition on second trial. _ When any person subject to    this Act has been acquitted or convicted of an offence by a    courtmartial or by a criminal court, or has been dealt with    under Section 82 or Section 86, he shall not be liable to be    tried again for the same offence by a courtmartial or dealt with    under the said section." 
 

   "Section 121  Period of limitation for trial -
 

   (1) Except as provided by subsection (2), no trial by courtmartial of any person subject to this Act for any offence shall    be commenced after the expiration of a period of three years from    the date of such offence. 
 

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

   (3) In the computation of the period of time mentioned in subsection (1) any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission    of the offence, shall be excluded. 
 

   (4) No trial for an offence of desertion, other than desertion on    active service or of fraudulent enrolment shall be commenced if    the person in question, not being an officer has, subsequently,    to the commission of the offence, served continuously in an    exemplary manner for not less than three years with any portion    of the Air Force. 
 

   Rule 16 Dismissal or removal of officers for misconduct-
 

   (1) An officer may be dismissed or removed from service for    misconduct by the Central Government but before doing so and    subject to the provisions of subrule (2) he shall be given an    opportunity to show cause against such action. 
 

   (2) Where the dismissal or removal of an officer is proposed on    ground of misconduct which has led to his conviction by a criminal court, or where the Central Government is satisfied that for    reasons to be recorded in writing, it is not expedient or reasonably practicable to do so, it shall not be necessary to give an    opportunity to the officer of showing cause against his dismissal    or removal. 
 

   (3) Where an officer has been convicted by a criminal court and    the Central Government, after examining the judgment of the    criminal court in his case and considering the recommendation    about him of the chief of the Air Staff, is of opinion that    further retention of such officer in the service is undesirable    that Government may dismiss or remove such officer from the    service. 
 

   (4) In any case not falling under subrule (3), when the Chief of    the Air Staff after considering the reports on an officer's    misconduct, is of opinion that the trial of the officer by a    Court martial is inexpedient or impracticable but the further    retention of the officer in the service is undesirable, he shall    so inform the officer and subject to the provisions of subrule    (5) furnish to the officer all reports adverse to him calling    upon him to submit in writing within a reasonable period to be    specified, his explanation in defense and any reasons which he    may wish to put forward against his dismissal or removal. 
 

   (5) The Chief of the Air Staff may withhold from disclosure any    report adverse to an officer or any portion thereof, if in his    opinion its disclosure is not in the interests of the security of    the State. 
 

   (6) If no explanation is received from the officer within the    specified period or if the explanation received is considered to    be not satisfactory or when so directed by the Central Government, the reports against the officer as well as his explanation    if any, shall be submitted to the Central Government by the Chief    of the Air Staff together with his recommendation as to the    dismissal or removal of the officer from the service. 
 

   (7) The Central Government may, after considering the reports    against the officer and his defense, if any, and the recommendations of the Chief of the Air Staff, dismiss or remove the officer from service. 
 

   (8) In this rule and in Rule 17 of the Chief of the Air Staff    while submitting a case to the Central Government may recommend    that instead of removing an officer from service, he may be    compulsorily retired or that he should be called upon to resign    his commission, and the Central Government in passing orders may    instead of removing an officer from service, compulsorily retire    him or give the officer an option to submit his resignation, and    if he refuses to do so, remove him from the service.   

5. In the instant case it is undisputed that the alleged incident occurred on 29th March, 1987; than on 6th April, 1987 a Court of inquiry was held to enquire into the circumstances in which the deceased Mahinder Singh was seen with the Air Force personnel on 29th March, 1987 and the said court of enquiry was concluded on 4.8.1987; that on 4.1.1989 summary of evidence was recorded; that on 19.1.1989 the respondent was suspended and on the same day he was arrested by the police in respect of the alleged incident; that the respondent was sent up for trial by the Court of Sessions and by the order dated 12.1.1990 the respondent was discharged by the said court. It is also undisputed that the respondent was dismissed from service vide order dated 22nd September, 1993 on the basis of a show cause notice dated 30th October, 1990 on the alleged misconduct and satisfaction of the Chief of Air staff that a Court Martial was impracticable and that his further retention in service was undesirable. Section 19 of the Act read with rule 16 confers power on the Central Government to dismiss or remove from the service any person subject to the Act. Thus, under Section 19 of the Act read with Rule 16, the Legislature has conferred the power of dismissal or removal on the Central Government with a discretion as to how it is to be exercised. Subrule (4) of Rule 16 of the Air Force Rules empowers the Chief of the Air staff to initiate disciplinary action against the charged officer if he is of the opinion that the trial of such officer by a Court Martial is inexpedient or impracticable and his further retention in the service is undesirable. It is well settled that an authority invested with the statutory powers must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. In other words, such a statutory authority is supposed to act properly and responsibly, with a view to doing what was best in the public interest and most consistent with the policy of the statute. It is from this presumption that the Courts take their warrant to impose legal bounds on even the most extensive discretion. Needless to add that 'discretion' means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the law and not according to the private opinion, whim or caprice. 'Discretion' necessarily implies good faith in discharging public duty. There is always a perspective within which a Statute is intended to operate and any departure from its line or object is just as objectionable as male fide or arbitrariness.

6. It is necessary to point out that Section 120 of the Act prohibits second trial of any person subject to the Act who has been acquitted or convicted of an offence by a court martial or by a criminal court. Section 121 of the Act mandates that no trial by court martial of any person subject to the Act for any offence shall be commenced after the expiration of a period of three years from the date of such offence. The question is what limit of time should the law set to this apparently unbounded discretion of the Chief of the Air Staff for initiating disciplinary action under subrule (4) to Rule 16. It has to be borne in mind that the period of limitation specified in Section 121 of the Act is for the benefit of the accused. Section 121 of the Act incorporates an absolute ban against trial by court martial on the expiry of the period specified therein. Thus, the bar of Section 121 gives overriding effect to the provisions of the Act and rules made thereunder. In Major Harbhajan Singh Vs. The Ministry of defense , it was held that the mandatory character of the said Section by the use of the words "no trial by court martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years from the date of such offence" is to be under stood in the context of prejudice likely to be caused to the charged person. In this view of the matter, the Rule 16 cannot be read in isolation. It must be read in the light of Section 121 of the Act. The words `impracticable' or `inexpedient' employed in subRule (4) of Rule 16 cannot be interpreted so as to destroy the express provision of the principal Act under which the rules are framed. The purpose of the said rule is not that a charged officer should live, during his employment, under a sword of damocles and the designated authority be allowed to rake up any skeleton from any cupboard at any time, when the charged officer may have no further materials, oral or documentary, to prove that the skeleton is not from his cupboard. If the long rope is given to the designated authority for initiating disciplinary action under sub Rule (4) of Rule 16, after expiry of the period of limitation provided for trial by court martial, at its leisure and convenience, Section 121 will lose all its significance. We are, therefore, of the opinion that the period of limitation prescribed by Section 121 of the Act for trial by courtmartial has to be read into subrule (4) of Rule 16 of the Air Force Rules for initiating the disciplinary action against a person subject to the Act. Consequently, the Central Government or Chief of the Air Force Staff cannot have resort to subrule (4) to Rule 16 of the Air Force Rules after expiration of the period of limitation prescribed by Section 121 of the Act. In this context we may usefully excerpt the following observations of a Division Bench of this Court in Lt. Col. H.C. Dhingra Vs. UOI, 1989 Rajdhani Law Reporter 101.

"In purported exercise of administrative power under Rule 14, in respect of allegations of misconduct triable by G.C.M. the authorities can not override the statutory bar of Section 122(1) of the Act. No administrative act or fiat can discard, destroy or annul a statutory provision. This statutory provision cannot be set at naught or circumvented merely on an administrator's opinion that it is `impracticable' to hold a trial by a G.C.M. as the accused officer has refused to waive the statutory bar of limitation prescribed for such a trial."

7. The said judgment has been cited with approval by the Supreme Court in the case of Maj. Radha Krishan (supra). The relevant passage of the said judgment is as under :- 9. "The matter can be viewed from another angle also. So far as period of limitation of trials by Court Martial is concerned Section 122 of the Act is a complete Code in itself for not only it provides in its subsection (1) the period of limitation for such trials but specifies in sub section (2) thereof the offences in respect of which the limitation clause would not apply. Since the terms of the above section is absolute and no provision has been made under the Act for extension of time like Section 473 Criminal Procedure Code it is obvious that any trial commenced after the period of limitation will be patently illegal. Such a provision of limitation prescribed under the Act cannot be over ridden or circumvented by an administrative act, done in exercise of powers conferred under a rule. Mr. Ramachandran was, therefore, fully justified in urging that power under Rule 14 of the Army Rules could not be exercised in a manner which would get over the bar of limitation laid down in the Act and that if Rule 14 was to be interpreted to give such power it would clearly be ultra vires. We are therefore in complete agreement with the observations made by the Delhi High Court in H.C. Dhingra's case (supra) that in purported exercise of administrative power under Rule 14, in respect of allegations of misconduct treble by court Martial, the authorities cannot override the statutory bar of subsection (1) of Section 122 of the Act for no administrative act or fiat can discard, destroy or annul a statutory provision."

8. In the instant case it is an admitted position that the chief of Air Staff felt that it was inexpedient and impracticable to hold a Court Martial against the respondent and such inexpediency was reasonably linked with the bar of limitation provided under Section 121 of the Act. In our opinion the case in hand is squarely covered by the decision of the Supreme Court in the case of Maj. Radha Krishan (supra) which is an authority for the proposition that once the period of limitation for trial of court martial is over, the authority cannot take action under Rule 14(2) of the Army Rules, which is in pari materia with subrule (4) of Rule 16 of the Air Force Rules. Consequently, the learned Single Judge has rightly held that the Chief of Air Staff had no jurisdiction to invoke the provision of subRule (4) to Rule 16 against the respondent and the order dated 22.9.1993 dismissing the respondent from service is void and ineffective.

9. The appeal is therefore devoid of merit and is accordingly dismissed.