Holding

The earlier decision in Major Radha Krishnan is not binding; the correct law is that the expiry of the limitation period under Section 122 does not per se bar the exercise of power under Section 19 read with Rule 14(2), as clarified in Harjeet Singh Sandhu’s case.

Summary

V.N. Saxena, an army officer, was terminated from service by the Chief of Army Staff on 13 November 1990. He challenged the termination through a writ petition under Article 226. The Uttarakhand High Court set aside the termination, relying on the Supreme Court’s decision in Major Radha Krishnan, which held that a court‑martial barred by the limitation period under Section 122 of the Army Act makes the summary termination under Rule 14(2) impermissible. On appeal, the Supreme Court observed that the Radha Krishnan judgment was later overruled by the three‑judge bench decision in Union of India v. Harjeet Singh Sandhu, which clarified that the expiry of the limitation period does not automatically preclude the exercise of power under Section 19 read with Rule 14(2). Consequently, the High Court’s reliance on the earlier case was misplaced. The Supreme Court set aside the High Court order and remitted the matter for fresh consideration in line with the law laid down in Harjeet Singh Sandhu’s case.

Issues considered

Whether termination of an army officer under Rule 14(2) of the Army Rules is permissible when a court‑martial is barred by the limitation period under Section 122 of the Army Act.
Whether the legal principle laid down in Major Radha Krishnan v. Union of India remains binding after being overruled by Union of India v. Harjeet Singh Sandhu.

Legislation cited

Army Act, 1950s. 122, s. 19
Army Rules, 1954s. Rule 14(2), s. Rule 40

Subjects

Service lawArmy ActTerminationCourt‑martialLimitation periodRule 14Judicial reviewWrit petitionPrecedent overrule

Judgment

[2008] 5 S.C.R. 931

UNION OF INDIA & ANR. A
v.
V.N. SAXENA
(Civil Appeal No. 2764 of 2007)
APRIL 1, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Service Law - Termination from Army Service - High
Court quashed the order of termination, relying on a judgment
passed by Supreme Court - On appeal, held: The foundation c
of judgment of High Court is the judgment of Supreme Court
which was held to be not correct by a larger Bench of Supreme
Court - Matter remitted to High Court to decide the matter in
view of law laid down in the judgment passed by larger Bench
-Army Act, 1954 - Precedent. o
Services of the respondent were terminated by
orders of the Chief of Army Staff. Respondent challenged
; the order in a writ petition. High Court primarily relying on
' *Major Radha Krishnan's case allowed the writ petition.
'4

- In appeal to this Court appellant contended that
reliance on Major Radha Krishnan's case was
misconceived as the judgment therein was held to be not
E

correctly decided, by a three Judge Bench in *Harjeet Singh
Sandhu's case.
F
.... Partly allowing the appeal and remitting the matter
to High Court, the Court
HELD: Since the foundation of the impugned
judgment of the High Court is Major Radha Krishnan's case, G
therefore, the impugned order is set aside and the matter
is remitted to High Court for a fresh consideration keeping
in view the position in law as delineated in Harjeet Singh
Sandhu's case. [Para 8] [936-F-G]
931 H
932 SUPREME COURT REPORTS [2008] 5 S.C.R.
'•.
..
A '"*Union of India and Ors. v. Harjeet Singh Sandhu 2001
(5) sec 593 - relied on. I
*Major Radha Krishan v. Union of India and Ors. AIR
1996 SC 309; Chief of Army Staff v. Major Dharam Pal l<ukrety
B 1985 (2) sec 412 - referred to.
)._
CIVIL APPELLATE JURISDICTION : Civil Appeal No
2764 of 2007.

From the final Judgment and order dated 19/12/2005 of
c the High Court of Uttaranchal at Nainital in Review/Recall
Application No. 120/2005 in W.P. (C) No. 1436/2001 (SIS)

S. Wasim A. Qadri, Jubair Ahmad Khan, B.K. Prasad and
Anil Katiyar for the Appellants.
D Tehmina Punvani, Ankur Saigal, Gaurav Singh and Bina
Gupta for the Respondent.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
E the judgment of a Division Bench of the Uttranchal High Court
allowing the writ petition filed by the respondent. The respondent
had filed the writ petition under Article 226 of the Constitution of
India, 1950 (in short the 'Constitution') questioning the order
dated 13.11.1990 whereby his services were terminated by
F orders of the Chief of Army Staff.

2. The High Court primarily relied on a decision of this
Court in Major Radha Krishan v. Union of India & Ors. (AIR
1996 SC 3091) and allowed the writ petition.
G
3. The stand of the appellants is that the High Court failed
to notice that the relied-upon decision was held to be not correctly
decided by a three judge Bench in Union of India & Ors. v. _.._

Ha(jGet Singh Sandhu [2001 (5) SCC 593].
H
UNION OF INDIA &ANR. v. V.N. SAXENA 933
[DR. ARIJIT PASAYAT, J]

'l 4. Learned counsel for the respondent submitted that the A
decision of the High Court was not based only on Major Radha
Krishan's case (supra) but on other grounds.
5. The High Court allowed the writ petition with the following
conclusions:
B
"In Major Radha Krishan v. Union of India & Ors. (AIR
· 1995 SC 3091, the Hon'ble Apex Court has held that where
the trial by Court-Martial against the offences committed
by an army personnel was barred by limitation under
Section 122 of the Act, the summary procedure for c
termination under R.14(2) of the Rules, cannot be followed
on the ground that the trial by Court-Martial was inexpedient
or impracticable. Such a satisfaction that the trial was
inexpedient or impracticable can be arrived only at a time
when trial by a Court Martial is permissive or possible. In
D
view of the said principle of law and for the reasons as
,.,. discussed above by us, the impugned order by which the
services of the petitioner were dismissed is liable to be
quashed. Accordingly the writ petition is allowed. The
impugned order is quashed. The petitioner shall be entitled
to the consequential benefits, admissible (as of right) to E
him under the rules treating him Captain, the post he held
on the date when the impugned order was passed. No
order as to costs."

6. In Harjeet Singh Sandhu's case (supra) the scope and F
ambit of the Army Act, 1950 (in short the 'Act') and Rule 40 of
the Army Rules, 1954 (in short the 'Rules') inter alia fell per
consideration. This court also referred to earlier decision in
Chief of Army Staff v. Major Dharam Pal Kukrety [1985(2) SCC
412].
G
7. In Harjeet Singh Sandhu's case (supra) it was inter alia
observed as follows:

i 37. On the meaning which we are placing on the term
"impracticable" as occurring in Rule 14(2) we proceed to
H
934 SUPREME COURT REPORTS [2008] 5 S.C.R.

.,
A provide resolutions to the several problems posed by the
illustrations given by the learned Additional Solicitor-
General. According to us:
In Illustration (1) the expiry of the period of limitation
prescribed by Section 122 renders the trial by Court Martial
B "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 Parliament has chosen
not to provide any bar of limitation on exercise of power
c 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
D 19 read with Rule 14 may be exercised but the question
may still be - who has been responsible for the delay?
'1
The period prescribed by Section 122 may itself be taken
laying down a guideline for determining the culpability of
delay. In spite of power under Section 19 read with Rule
E 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 or set of facts
F constituting misconduct being three years old or more
have ceased to be relevant for exercising the power under
Section 19 read with Rule 14. If there was inaction on the •
part of the authorities resulting in delay and attracting bar
of limitation under Section 122 can it be said that the
authorities are taking advantage of their own inaction or
G
default? If the answer be yes, such belated decision to
invoke Section 19 may stand vitiated, not for any lack of
jurisdiction but for colourable or mala fide exercise of
power.

H 38. In Illustration (i1), the Court Martial has stood dissolved
UNION OF INDIA & ANR. v. V.N. SAXENA 935
[DR. ARIJIT PASAYAT, J.]

for fortuitous circumstance for which no one is to be blamed A
- neither the Chief of the Army Staff nor the delinquent
officer. The delinquent officer, howsoever grave his
miscondud 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 B
exercise of power under Section 19 read with Rule 14.
41. Having thus explained the law and clarified the same
by providing resolutions to the several illustrative problems
posed by the learned Additional Solicitor-General for the
consideration of this Court (which are illustrative and not C
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 D
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 E
power. A misconduct committed a number of years before,
which was not promptly and within the prescribed period
of limitation subjected to trial by a 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 F
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 G
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
H
936 SUPREME COURT REPORTS [2008] 5 S.C.R.

A 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
B practicable, the situation would be covered by the
expression - the trial by Court Martial having become
"impracticable".
43. We are also of the opinion that Major Radha Krishan
case (supra) lays down propositions too broad to be
c 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
D 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 the submission of the learned
Additional Solicitor-General that the case of Dharam Pal
E Kukrety's case (supra) 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 case (supra).

F 8. Since the foundation of the impugned judgment of the
High Court is Major Radha Krishnan's case (supra), we
therefore, set aside the impugned order of the High Court and
remit the matter to it for a fresh consideration keeping in view
the position in law as delineated in Harjeet Singh Sandhu's
case (supra). Since the matter is pending long we request the
G High Court to dispose of the Writ Petition as early as practicable
preferably by the end of September, 2008.
9. The appeal is allowed to the aforesaid extent. No costs.

H K.K.T. Appeal partly allowed