S.C. ruling on court martial

By T. Padmanabha Rao

NEW DELHI, APRIL 16. The expiry of period of `limitation' for commencement of `court martial' under Section 122 of the Army Act, 1950 ``does not ipso facto take away the exercise of power under Section 19 read with Rule 14'' (dealing with the power of the Centre to dismiss or remove from service any person subject to the Army Act on ground of `misconduct'), a three-member bench of the Supreme Court has ruled.

``This 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,'' the bench said.

``A misconduct (by an Army officer in a given case) 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,'' the Bench added.

Delivering the judgment, Mr. Justice R. C. Lahoti, set aside the concerned verdicts of the High Courts of Delhi and Allahabad which held that the exercise of power under Section 19 read with Rule 14 (framed under the Act) by the Chief of Army Staff (COAS) was vitiated solely on account of the bar of limitation created by Section 122 of the Act.

The bench, which included the Chief Justice, Dr. A.S. Anand, and Mr. Justice Brijesh Kumar, in allowing related appeals from the Union of India against the judgments of the two HCs dismissed the concerned writ petitions filed by two Army Captains (respondents) challenging the initiation of action against them under Section 19 of the Act after the `court martial' proceedings against them had become barred by time under Section 122 of the Act.

The Bench, however, impressed upon the COAS and the Centre, as the case may be, that ``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 as this `belated stage' (after over 20 years) and keeping in view, of course, the requirement of military discipline and the high traditions of the Indian Army''.

If the expiry of the period of limitation for commencement of `court martial' was to be given effect to, the consequences to follow would be that the person would be 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 `court martial' under Section 71 of the Act, the bench noted.

``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 further retention in service,'' the bench added.

``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 bench said.

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