I.A. Ansari, J.
1. The subject-matter of the writ petition, which has given rise to the present appeal, is the writ petitioner's dismissal from service, under Section 20 of the Army Act, 1950, on the ground that the writ petitioner, a member of the Assam Rifles, which is a paramilitary force, had, while functioning as a Second-in-Command of a Road Opening Patrol Party, shown cowardice by running away from the place, where the said patrol party was ambushed, leaving behind the dead-bodies of the rifle-men of his battalion, his act of cowardice helped the insurgents to take away weapons and ammunitions from the said dead bodies.
2. The essential facts and materials stages, which have led to the present appeal, may, in brief, be set out as follows:
(i) On 9th or 10th November, 1994, 16th Maratha Light Infantry was directed to provide road opening patrol on Morioni-Mukokchang road near Desai bridge. This patrol party was to guard the road, as an advance party, in order to ensure safe passage and movement of the force behind them. This patrol party was detailed by an Assistant Commandant, who was the company commander. The patrol party consisted of 30 persons including the writ petitioner. On 10th November, 1994, at about 4.30 hours, the Road Opening Patrol party left the patrol base to carry out the task of road opening. The petitioner was ordered, by the patrol party leader, Subedar J.S. Rawat, to occupy a hillock adjoining the road. When some riflemen were climbing the hillock, adjacent to the road, to carry out the task of occupying the hillock, they were ambushed upon from the hillock by the militants, who were already hiding at the said hillock. Due to the shooting, which so took place, the light machine-gun group were pinned down and they had to crawl back. One rifleman was killed at the very initial stage, when the light machine-gun group was climbing the hillock. The patrol leader, namely, Subedar J.S. Rawat, on hearing the sound of shooting, rushed to the direction from where the bullets were heard being fired; but, in the process, he too was shot dead. The petitioner, who was the Second-in-Command, allegedly ran away, which was an act of cowardice. As a result of such act of cowardice, the insurgents allegedly succeeded in snatching away weapons and ammunitions from the dead-bodies of the said paramilitary force and made good their escape. Following this incident, a Court of Enquiry (in short 'C of E') was held on25.11.1994. The C of E opined that disciplinary action needs to be initiated against the petitioner and other jawans for showing cowardice. The Commandant, then, under Rule 23 of the Army Rules, 1954 (in short, 'the Rules'), passed an order, on 08.10.95, directing that a Summary of Evidence (in short, 'S of E') be recorded. The S of E was accordingly recorded on the basis of a tentative charge-sheet, which read as follows:
The accused No. 102999 Hav (GD) Bir Bahadur Chhetri 10th Battalion Assam Rifles a person subject to Army (Amendment) Act 1992 read with (SRO 117 of 28 Mar 60 and 313 of 06 Dec. 2(62) as amended by SRO 325 of 31 Aug. 77 is charged with.
Army Act--Section 34 (c) In the Presence of the Enemy Misbehaving in such Manner as to show cowardice:
In that he, at filed on 10 Nov. '94 when he was performing No. 1 Sec. Cdr of Road opening patrol at K.M. stone 25 on rd Mariani-Mokkokchung showed cowardice in the face of the enemy and ran away from the ambush site when the patrol was ambushed and lost complete command and control over the patrol being the Sec-in-Command of the patrol after the patrol leader was shot at and killed by insurgents which resulted in the insurgents snatching away three weapons and ammunition form the casualties and making good their escape.
Station : FieldSd/-Illegible(Bat Krishna)dated 08 Oct. 95 Comdt.Offg Comdt.
(ii) After completion of the S of E, recording of additional S of E was directed on 05.05.97. This additional S of E was concluded on 27.05.97. Based on the S of E and additional S of E, so recorded, the petitioner was not, however, court-martialed. Instead thereof, the petitioner was served, on 31.01.98, with a notice, issued by the respondent No. 3, namely, Deputy Inspector General, Assam Rifles, Nagaland, Range North, directing him to show cause, if any, as to why he should not be dismissed, under Section 20 (3) of the Army Act, 1950 (in short, 'the Act'), for having committed an offence under Section 34 (c) of the Act, for, it had been found, on perusal of the S of E, that the petitioner had committed an offence, as aforesaid, and since a Court-Martial was not possible to hold as the offence committed had become barred by time under Section 122 of the Act, it had been decided to dismiss the petitioner from service administratively by invoking the provisions of Section 20 (3) of the Act. The petitioner submitted, on 20.02.98, his reply to the said show cause notice. This was followed by an order, dated 04.03.98, passed by the respondent No. 3 herein, dismissing the petitioner from service. The order of dismissal, so passed, read as follows:
Headquarters Nagaland Range (North) Assam Rifles C/O 98 APON 211/1/98/929 04 Mar. 98 No. 102999Y Hav/GD Bir Bahadur Chhetri 10 Assam Rifles.
C/099 APO
Orders by IC-23358L Brig A.K. Verma, Commander 7 Sector
1. I have considered the reply to the show cause notice submitted by you.
2. I find that you, for while being the second-in-command of the Road opening patrol, improperly omitted to take command and Control of the Patrol after JC-102272N Subedar Jagat Singh Rawat of the same unit, the leader was fatally shot at by the insurgents, resulting in insurgents taking away the following arms and ammunition: (a) Self loading Rifle 7.62 qty. 2 (b) Sten Machine Carbine 9 mm- qty 1(c) 7.62 mm BDR amrnunition-qty 250 (d) 9 mm ball ammunition -qty 96 (e) No. 36 Hand grenade-qty 06. 3. In exercise of the powers vested in me under Section 20 sub Section 3 read with AR 17, I hereby order that you be dismissed from service wef. 15 Mar 98.
Sd/- Illegible(A.K. Verma)Brig. DIG Assam Rifles.
(iii) Contending that he ought to have been tried by a Court-Martial for the offence allegedly committed by him, under Section 34(c) of the Act, and that his belated dismissal from service, and that too, without holding a Court-Martial, was bad in law, the petitioner challenged his dismissal by way of a writ petition, which gave rise to the Civil Rule No. 1887/98, his case being, in brief, thus: For a major offence, such as, an offence under Section 34(c) of the Act, punishment can be imposed only by holding a Court Martial. On the completion of the recording of S of E, it was the duty of the competent authority to convene a Court Martial against the petitioner, if it had been found that the petitioner had committed an offence as serious as the one alleged to have been committed by him. However, no Court Martial was convened and, hence, his subsequent dismissal from service without holding any Court Martial is not tenable in law. This apart, in terms of Section 122 (1) of the Act, the proceedings of the Court Martial ought to have commenced within three years from the date of the alleged occurrence, i.e. 10.11.94; but as the Court Martial was not convened till 31.01.98, his dismissal from service, without any plausible explanation for delay in holding the Court Martial, is illegal and cannot be sustained.
(iv) The present appellants, as respondents in the writ petition, refuted the allegations made by the petitioner, their case being, briefly stated, thus: Though the petitioner's case was processed for trial by a Court Martial, the Court Martial could not be convened within the statutorily stipulated period as the petitioner's Unit was deployed in Jammu & Kashmir and, in the meanwhile, the offence got time-barred for trial by a Court Martial in terms of Section 122. Thus, the trial of the petitioner by a Court Martial had become inexpedient and impracticable. However, considering the gravity of the offence, it was decided to take action against the petitioner under Section 20 (3) of the Act read with Rule 17 of the Rules.
(v) Having heard both the parties, a learned single Judge allowed the writ petition, on 25.09.02, by setting aside and quashing the order of dismissal, dated 04.03.98, aforementioned and directed that the petitioner be deemed to have remained in service and shall be entitled to all consequential benefits. Aggrieved by the judgment and order, dated 25.09.02, aforementioned, the respondents have preferred the present appeal.
3. We have heard Mr. B. Jamir, learned Assistant Solicitor General, appearing on behalf of the appellants, and Mr. A. Dasgupta, learned Counsel for of the writ petitioner-respondent.
4. The basic grievance of the appellants is that the power given to the competent authority to dismiss a person, who is subject to the Army Act, by taking resort to Section 20(3), read with Rule 17 of the Rules, is independent of the power to convene a Court-Martial and, hence, merely on the ground that a Court Martial could not be convened, within the prescribed period of limitation, to try a person, his dismissal from service, by taking resort to Section 20(3) of the Act, would not be untenable in law. It is also the grievance of the appellants that the learned single Judge has misconstrued the Apex Court's decision, in Union of India v. Major Harjeet Singh Sandhu : AIR2001SC1771 , inasmuch as a person, subject to the Army Act, can be dismissed by invoking provisions of Section 20 (3) even if his trial by a Court Martial, because of the embargo placed by Section 122, becomes time-barred.
5. In the present case, according to the appellants, cogent and justified reasons existed for inability of the competent authority to convene a Court Martial within the prescribed period inasmuch as the petitioner's Unit stood deployed, at the relevant period of time, in a disturbed and insurgent-infested area of Jammu & Kashmir and, in such a situation, the witnesses of the incident, in question, being from the same Unit, their presence and also the presence of the petitioner could not be secured for Court Martial. In such circumstances, contend the appellants, unless it could be held that the petitioner's dismissal was not warranted in the face of the allegations made against him, his dismissal ought not to have been interfered with, particularly, when his dismissal does not suffer from mala fide or ulterior motive and it was not the case of the petitioner that his Unit had not been deployed in Jammu and Kashmir and/or that the conditions existing, at the relevant point of time, was conducive enough to convene a Court Martial against the petitioner if the authority concerned had wished.
6. As far as the writ petitioner-respondent is concerned, attempts has been made, on his behalf, to show that in the present case, no reliable material had been placed before the Court for satisfying the Court that it was for reasons beyond their control that the competent authority could not convene Court Martial to try the petitioner.
7. In such circumstances, contends the writ petitioner, not holding of a Court Martial cannot be said to have been convincingly explained. To such facts, according to what the writ petitioner contends, the law, laid down in Major Harjeet Singh Sandhu (supra), was wholly applicable and recourse to Section 20 for dismissing the petitioner from service was wholly unjustified and untenable. The learned single Judge, in the present case, contends the writ petitioner-respondent, correctly applied the principles laid down in Harjeet Singh Sandhu (supra) and justifiably interfered with the impugned order of dismissal and this appeal has no merit at all.
8. As the writ petitioner's entire case rests on the decision in Harjeet Singh Sandhu (supra), it needs to be pointed out that in Harjeet Singh Sandhu (supra), it was Section 19 of the Act and Rule 14 of the Rules, which were under consideration. In the present case, however, the action taken against the writ petitioner was under Section 20 of the Act read with Rule 17 of the Rules.
9. Before, therefore, one enters into the question as to whether the decision, in Major Harjeet Singh Sandhu (supra), was applicable to the facts of the present case, apposite it is that the distinction between the application of Section 19 and Section 20 be ascertained, for, the principles of law, laid down in Major Harjeet Singh Sandhu (supra), would not be attracted if the powers, contained under Sections 19 and 20, are not one and the same.
10. With the above end in view, Sections 19 and 20 of the Act are reproduced below:
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.
Section 20 of the Act provides--
20. Dismissal, removal or reduction by the Chief of the Army Staff and by other officers--
(1) The Chief of the Army Staff may dismiss or remove from the service any person subject to this Act, other than an officer.
(2) The Chief of the Army Staff may reduce to a lower grade or the rank or the ranks, any warrant officer or any non-commissioned officer.
(3) An officer having power not less than a brigade or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his command other than an officer or a junior commissioner officer.
(4) Any such officer as is mentioned in Sub-section (3) may reduce to a lower grade or rank or the ranks, any warrant officer or any noncommissioned officer under his command.
(5) A warrant officer reduced to the ranks under this section shall not, however, be required to serve in the ranks as asepoy.
(6) The commanding officer of an acting non-commissioned officer may order him to revert to his permanent grade as a non-commissioned officer, or if he has no permanent grade above the ranks, to the ranks.
(7) The exercise of any power under this section shall be subject to the said provisions contained in this Act and the rules and regulations made thereunder.
11. In order to fully appreciate the difference in the scope and ambit of Section 19, on the one hand, and Section 20, on the other, a close survey of Rules 14 and 17 of the Rules is imperative. Rules 14 and 17 are, therefore, quoted hereinbelow:
14. Termination of service by the Central Government on account of misconduct--
(1) 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 is Sub-rule (2) against such action--
Provided that this Sub-rule shall not apply--
(a) Where the service is terminated on the ground of misconduct which has led to his conviction by a criminal court; or
(b) Where the Central Government 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.
(2) When after considering the reports on an officer's misconduct, the Central Government 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, that the further retention of the said officer in the service is undesirable, the Chief of the Army Staff shall so inform the officer together 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 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 the explanation of the officer being considered unsatisfactory by the Chief of the Army Staff or when so directed by the Central Government, the case shall be submitted to the Central Government, with the officer's defence and 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).
(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 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). 1 [(4) When submitting a case to the Central Government under the 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 the service; or (b) Removed from the service: or (r) 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 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
(b) Compulsorily retire him from the service with pension and gratuity, if any, admissible to him.]
17. Dismissal or removal by Chief of the Army Staff and by other officers--Save in the case where a person is dismissed or removed from service on the ground of conduct which has led to his conviction by a criminal court or a court-martial, no person shall be dismissed or removed under Sub-section (1) or Sub-section (3) of Section 20; unless he has been informed of the particulars of the cause of action against him and allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service:
Provided that if in the opinion of the officer competent to order the dismissal or removal, it is not expedient or reasonably practicable to comply with the provisions of this rule, he may after certifying to that effect, order the dismissal or removal without complying with the procedure set out in this rule. All cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported to the Central Government.
12. From a conjoint reading of Section 19, Section 20, Rule 14 and Rule 17, what becomes evident is that under Section 19, it is the Central Government alone, which has the power to terminate the service of a person, subject to the Act. Such a person may or may not be an officer; whereas the power to terminate service can be exercised, under Section 20, by any of the officers mentioned in Section 20 and that too, it is only persons, other than officers, who can be dismissed from service under Section 20. What also needs to be noted is that while Sections 19 and 20 contain substantive power of termination of service, Rules 14 and 17 embody the procedure for exercise of the powers contained in Sections 19 and 20 respectively. While the procedure, embodied in Rule 14, has to be resorted to if the Central Government is required to exercise powers under Section 19, the procedure, embodied in Rule 17, comes into play, when an officer, specified in Section 20, has to exercise power of termination of service of a person, subject to the Army Act, other than an officer. Thus, Section 20 cannot be invoked in the case of officers. Another fall out of what has been indicated hereinbefore is that Section 19 cannot be read independent of Rule 14 nor can Section 20 be read independent of Rule 17.
13. On a close analysis of the provisions of Section 19 read with Rule 14, the scheme of exercise of power of termination of service, under Section 19, appears to run, as indicated in Harjeet Singh Sandhu (supra), thus:
(1) The Central Government 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 Government or the Chief of the Army Staff after considering the reports on an officer's misconduct:
(a) Must 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 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 cause against the proposed action which opportunity 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 misconduct 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.
(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) Where the Central Government 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.
(5) The explanation of the officer shall be considered by the Chief of the Army Staff. If the explanation is found satisfactory, further proceedings need not be pursued. The explanation, if considered unsatisfactory by the Chief of the Army 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 recommendation of the Chief of the Army Staff 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, and the recommendation of the Chief of the Army Staff, shall take a decision which if unfavourable to the officer may be (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.
11. The case of an officer whose service is proposed to be terminated on the ground of misconduct, which has led to his conviction by a criminal court, has to be treated differently and he need not be given an opportunity to show cause against the proposed to terminate his service. A decision as to termination in one of the modes provided by Sub-rule (4) of Rule 14 can be taken by the Central Government on its own or on the recommendation of the Chief of the Army Staff if he considers that the conduct of the officer, leading to his conviction, renders the officer's further retention in service undesirable. In such a case, the Chief of Army Staff's recommendation, accompanied by a certified copy of the judgment of the criminal court, convicting him shall be submitted to the Central Government, which will take the decision in accordance with Sub-rule (5) of Rule 14.
14. What becomes transparent from a combined reading of Sub-rules (1) and (2) of Rule 14 is that when, on consideration of the report on an officer's misconduct, the Central Government or the Chief or Army Staff is satisfied that the trial of the officer by a Court Martial is inexpedient or impracticable, but, at the same time, the Central Government or the Chief of Army Staff, as the case may be, is of the opinion that further retention of the officer, in the service, is undesirable, the Chief of Army Staff shall so inform the officer concerned and shall direct him to submit, in writing, his explanation in defence. While so calling for explanation, the Chief of Army Staff shall furnish to the officer, whose explanation is asked for, the report, which became the basis for formation of opinion by the Chief of Army Staff that the officer's retention in service is undesirable. Furnishing of such a report can, however, be dispensed with if the Chief of Army Staff is, under the proviso to Rule 14(2), of the opinion that the disclosure of the report is not in the interest of the security of the State.
15. What emerges from the above discussion is that an officer cannot, under Section 19 of the Act, be dismissed from service except on the ground of misconduct and, before an action under Section 19 is initiated, the Central Government or the Chief of Army Staff, as the case may be, must be satisfied, on consideration of the report of the officer's misconduct, that the trial of the person, who is proposed to be removed from service, by a Court Martial is inexpedient or impracticable. In other words, termination of an officer's service is not possible, under Section 19, unless the Central Government or the Chief of the Army Staff, as the case may be, is satisfied, on consideration of the report of the officer's misconduct, that his trial by Court Martial is inexpedient or impracticable.
16.The satisfaction that the trial by a Court Martial is inexpedient or impracticable need not necessarily be formed only when holding of a Court Martial becomes time-barred. Far from this, the satisfaction that a person's trial by Court Martial is inexpedient or impracticable can be reached even before his trial by a Court Martial is commenced or during the course of the Court Martial proceedings or even after the trial is concluded or after his trial by a Court Martial becomes time-barred.
17. What, thus, becomes clear is that though under Section 122, a period of limitation has been prescribed for commencement of the proceedings of a Court Martial, the legislature has chosen not to provide any bar of limitation, on the exercise of power conferred by Section 19, meaning thereby that for exercise of power under Section 19, there is no period of limitation. Thus, the power, under Section 19, is independent of, and not restricted by, the period of limitation, prescribed by Section 122. This position of law was made clear in Harjeet Singh Sandhu (supra), when the Apex Court observed thus:
36. 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 Parliament has chosen not to provide any bar of limitation 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.
(Emphasis is supplied)
18. What clearly emerges from the discussion held above is that it is not only when a trial by a Court Martial is time-barred that recourse to Section 19 can be taken. In a given case, even within the period of limitation, if the Central Government or the Chief of Army Staff is satisfied that the trial of an officer by a Court Martial is inexpedient or impracticable, process for termination of service under Section 19, as discussed above, can be resorted to. However, whether the officer would be, eventually, dismissed or not, would depend on the facts of every given case; but it is not necessary that it is only when the holding of a Court Martial becomes time-barred that Section 19 can be resorted to. If, however, the ground for being satisfied that the holding of the Court Martial is inexpedient or impracticable is that the offence cannot be tried by a Court Martial, because the same has become time-barred, necessary it is that the authority concerned, when asked, offers plausible explanation and convinces the Court that the delay, in holding of the Court Martial, was not due to latches or negligence on the part of the authority concerned, for, the authority concerned cannot take advantage of their own wrong if convening of the Court Martial becomes inexpedient or impracticable due to their own latches and negligence. In other words, if, because of the negligence or latches, on the part of the appropriate authority, to take steps within time to hold Court Martial, the trial becomes time-barred, the officer cannot be penalized, for, in such a case, though there would be no lack of jurisdiction, the dismissal of the officer from service would be a colourable or mala fide exercise of power. The culpability, in such a case, would be the negligence of the authority concerned.
19. It is this aspect of the case, which has been highlighted and emphasized in Major Harjeet Singh Sandhu (supra), where the three Judges Bench has held thus:
36. 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 Parliament has chosen not to provide any bar of limitation 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 be taken laving down a guideline for determining the culpability of delay. In spite of power under Section 19 read with 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 or set of facts 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 ad vantage of their own inaction or 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.
(Emphasis is added)
20. As against what Section 19 read with Rule 14 lays down, Section 20, as already pointed out above, can be invoked by an officer competent to take action under Section 20 of the Act. In the case at hand, there is no dispute that the respondent No. 3 is an officer competent to take action under Section 19. How the action for termination of service under Section 20 can be taken is, however, embodied in Rule 17, which already stands quoted above.
21. From a cautious reading of Rule 17, what becomes clear is that unlike Rule 14, Rule 17 does not require that in order to take recourse to Section 20, the authority concerned must feel satisfied that holding of trial by a Court Martial is inexpedient or impracticable. In fact, while satisfaction to be reached by the Central Government or the Chief of the Army Staff, as the case maybe, that holding of trial by a Court Martial is inexpedient or impracticable is a condition precedent for invoking the provisions of Section 19, no such condition is attached to the exercise of power of termination of service under Section 20. The conditions, subject to which recourse to Section 17 can be taken, are entirelv different from those of Section 20. What Section 20, read with Rule 17, requires is that except where a person, who is not an officer, is dismissed or removed from service on the ground of conduct, which led to his conviction by a criminal court or a Court Martial, he cannot be dismissed or removed from his service unless he has been informed of the particulars of the cause of action against him and he is allowed reasonable time to state, in writing, any reason he may have to urge against his dismissal or removal from the service. This reasonable opportunity, which is required to be given under Rule 17, may, howeve, be dispensed with if, in the opinion of the officer competent to order dismissal or removal, it is not expedient or reasonably practicable to give such opportunity of showing cause. If opinion is formed to dispense with the requirement of giving opportunity to the person, who is proposed to be dismissed or removed from his service, a certificate by the competent officer, who forms such opinion, is necessary.
22. Thus, what Rule 17 requires is that where a person is proposed to be dismissed from service for reasons are other than his conviction by a Court Martial or a criminal court, he shall be informed of the particulars of the cause of action against him and he shall be given a reasonable opportunity to state, in writing, any reasons he may have to urge against his proposed dismissal or removal from service. This opportunity to have his say, in the matter, by the person, who is proposed to be dismissed, may not be given, under the proviso to Rule 17, if, in the opinion of the officer competent to order the dismissal or removal, it is not expedient or reasonably practicable to comply with the provisions of this rule. However, all cases of dismissal or removal under Rule 12, where the prescribed procedure has not been complied with, shall be reported to the Central Government.
23. What crystallizes from the above discussion is that unlike Rule 14 (which is relevant for exercise of power under Section 19), Rule 17 (which governs application of Section 20) does not require that for the purpose of invoking the power under Section 20, the trial of the person, sought to be dismissed, shall be inexpedient or impracticable. The considerations, for exercise of power under Section 19, are not same as those of Section 20. Thus, where a case of dismissal of a person, other than an officer under Section 20, is considered by a writ Court, the conditions for application of Section 19 cannot be imported into. What we must, however, hasten to add is that when Section 20 is resorted to on account of the reason that holding of the Court Marital is not possible, implication would be that the case, which has been made basis for taking action under Section 20, was a case fit for holding of a Court Marital and that the Court Marital would have been held, but for the reason that it is inexpedient or impracticable. In such circumstances, imperative it is that the officer, who takes the decision to exercise power, under Section 20, gives plausible explanation for not holding the Court Martial.
24. In the present case, since the respondents themselves claimed that Section 20 was resorted to, because of the fact that the trial of the writ petitioners by Court Martial had become time-barred, it was necessary for the respondents to satisfy the Court that holding of the Court Martial had become time-barred not due to latches or negligence on the part of the respondent/authority concerned. In this regard, it is worth pointing out that respondents have pleaded, in their affidavit, that it was because of the fact that the writ petitioner's Unit was deployed in Jammu and Kashmir region, which was an insurgent infested region, and that the witnesses concerned were also from the same Unit, Court Martial could not be held. In other words, the case of the respondents is that because of the deployment of the writ petitioner's Unit in the said region, Court Martial against him could not be held, for, the witnesses to the incident were also from the said Unit. If taken to logical conclusion, it becomes transparent that the respondents were unable to withdraw the said Unit for exigency of service inasmuch as the petitioner and other members of his Unit had to be kept deployed in Jammu and Kashmir region and, on account of such deployment, trial by Court Martial could not be held. The averments, so made by the respondents, were, at no stage, denied or disputed by the writ petitioner. In fact, no affidavit was filed by the writ petitioner disputing or denying these facts. In such circumstances, the learned single Judge ought not to have allowed the writ petition only on the ground that the relevant papers showing deployment of the said Unit, in Jammu and Kashmir region, were not produced.
25. When the averments, made by the respondents in this regard, were not in dispute, no further proof of such deployment was necessary to be given by the respondents concerned. Situated thus, it is clear that the Court Martial, in the present case, could not be held due to the simple reason that the whole Unit of the writ petitioner had to be kept deployed in Jammu and Kashmir region and since the witnesses could not be withdrawn from the region aforementioned, the writ petitioner could not be put to trial by Court Martial. In such circumstances, resort to Section 20 cannot be said to be beyond the jurisdiction of the officer, who had exercised the powers under Section 20.
26. As to whether the facts and circumstances of the present case warranted the petitioner's dismissal or removal from service, it is worth pointing out that the petitioner has, undoubtedly, shown, as the facts alleged against him reflect, cowardice in running away from the place, where shooting had taken place, and his act of running away helped the insurgents take away arms and ammunitions from the dead-bodies of the personnel of the petitioner's Unit. In such circumstances, if the respondents/authorities concerned formed the opinion that the petitioner's further retention in service was undesirable, no fault can be found with the reasoning so assigned by the respondents concerned. One shudders to think as to what would happen to the moral of the paramilitary forces if persons, like the petitioner, are allowed to remain in service, for, retention of such a person in service may encourage others to run away, when he is made to face bullets. Appointment to the paramilitary forces is not for running away from shower of bullets, but to face the same. Arms and ammunitions, given to a member of a paramilitary force, are not to be exhibited as ornaments; but are given to them to protect themselves and also to protect the lives of those persons, whose lives he had been directed to protect. There is no room, in a paramilitary force, for a person, who does not have the courage to either shoot or face shooting.
27. Because of what have been discussed and pointed out above, it is clear that the learned single Judge has incorrectly applied the law, laid down in Major Harjeet Singh Sandhu (supra), to the facts of the present case. This apart, in the facts and circumstances of the present case, the petitioner's dismissal from service did not deserve interference.
28. In the result, and for the reasons discussed above, this appeal succeeds. The impugned judgment and order shall accordingly stand set aside and the writ petitioner-respondent's dismissal from service is not interfered with.
29. With the above observations and directions, this appeal shall stand disposed of.
30. Send back the LCR.
.