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1993 DIGILAW 194 (RAJ)

Major Radha Krishna v. Union of India

1993-03-26

G.S.SINGHVI

body1993
Honble SINGHVI, J.—Originally this writ petition was filed by the petitioner for his promotion as Acting Lt. Col. and against his supersession by the promotion of respondent No. 12. The petitioner had also made a prayer for restraining the respondents not to initiate any administrative action against him in respect of a matter which was considered in S.B. Civil Writ Petition No. 2273/86, Major Radha Krishna vs. Union of India and others, decided on 15.12.1988. However, during the pendency of the writ petition an order dated, 28.2.1992 (Annex. 13) came to be passed by the Government of India dismissing the petitioner from service. Therefore, the petitioner made an application on 16.3.92 for leave to amend the writ petition. This application was accepted by the Court on 9.4.92 and the petitioner was allowed to assail the legality of the order dated, 28.2.92 and also to make a prayer for quashing of the said order dated, 28.2.92. Now the petitioners prayer relate not only to quashing of the order of punishment passed against him but also for his promotion with retrospective effect and for grant of consequential benefits. (2). Facts which are necessary for deciding the controversy raised in the writ petition are that the petitioner was commissioned in the Indian Army (Farms) on 15.6.66. He was promoted to the rank of Major on 15.6.79. S/Shri V.P.Singh (now Lt. Col.) and Ranvir Singh (now Lt. Col.) were promoted to the rank of Major alongwith, the petitioner. The petitioner claims that his Annual Confidential Reports for the years 1982-83, 1983-84 and 1984-85 have been above average. In December 1985 a Selection Board was constituted for selection of officers for promotion to the rank of Lt. Col. in Military Farms Branch. This Selection Board examined Annual Confidential Reports of eligible officers including two years Military Farms Command records. It is the case of the petitioner that the Selection Board recommended three officers including the petitioner and placed them in acceptable grade. By letter dated, 27.6.86 (Annex.l) the petitioner was informed by the Army head quarters that he has been placed in acceptable grade for promotion to the rank or A/Lt. Col. and he will be promoted as and when suitable vacancy is available subject to his record of service remaining satisfactory and his remaining in acceptable medical classification. When three vacancies became available in April 1987 in the cadre of Lt. Col. Col. and he will be promoted as and when suitable vacancy is available subject to his record of service remaining satisfactory and his remaining in acceptable medical classification. When three vacancies became available in April 1987 in the cadre of Lt. Col. (Military Farm Branch), Major V.P. Singh and Major Ranbir Singh were promoted to the rank of Acting Lt. Col. However, in the case of the petitioner an order of promotion was not issued due to a ban imposed by the Director General of Discipline and Vigilance, Army Headquarters. (3). Petitioners case is that his promotion as Actg. Lt. Col. was kept under cloud on account of repeated Courts enquiries and a person junior to him namely, Major A.S.K. Swarnpandian was unlawfully promoted w.e.f. 17.3.89. (4). In relation to the order of punishment the petitioner has stated that on 24.5.82 he took over charge of Military Farm, Jaipur alongwith Military Farm Depots, Kota, Ajmer, Jodhpur and Nasirabad from Shri S.P. Singh, Manager. During the course of handing over/taking over the petitioner had made specific remarks regarding loose hay of local purchase and baled hay having not been kept in thatched form. He made a report to this effect to the then Dy. Director, Military Farms, Southern Command, Mirkee, Pune. In his report, the petitioner had pointed out shortage in the hay and therefore, he made a request for 100% weighing of stack No. 1. He had specifically stated that he suspected shortage of stack. By secret letter No, SC-1 dated, 20.09.1983 the petitioner had made a request for taking of photographs of Military Farms Stack Yard. However, no action was taken on the same. On 6.2.84 fire broke out in Military Farm, Jaipur in which one stack of loose hay containing 1,10,290 Kg. of hay costing Rs. 73315.25/- was destroyed. Petitioner took action as per Army order No. 109/79 read with Para-1195 BSR. On 10.2.84, a Court of Enquiry was ordered by the Southern Command Headquarter into the circumstances which led to the fire. On the basis of the order of the Southern Command Headquarter 61(1) Sub Area, detailed officers to conduct the Court of Enquiry. The Court of Enquiry made recommendations which did not contain any blemish language against the petitioner and Brig. Mahabir Singh, Commander Headquarters 61 (I) Sub Area, accepted its recommendations. On 15.6.84 the petitioner was moved to Army Headquarter on transfer. The Court of Enquiry made recommendations which did not contain any blemish language against the petitioner and Brig. Mahabir Singh, Commander Headquarters 61 (I) Sub Area, accepted its recommendations. On 15.6.84 the petitioner was moved to Army Headquarter on transfer. He was given assignment as DEMF-4 and later on DDMF-3 in the office of the Director General, Military Farms, New Delhi. After retirement of Brig. Mahabir Singh on 30.6.84, findings and recommendations of the First Court of Enquiry were rejected by officiating G.O.C. Incharge, Southern Command and 61(1) Sub Area, was directed to hold fresh inquiry in the matter. This order was made on 30.8.84. On 31.1.85, G.O.C. In charge, Southern Command, directed initiation of disciplinary action against the petitioner on the recommendations of the Commander 61(1) Sub Area, who had made recommendations for separate Court of Enquiry against Col. G.S. Hundal, the then Dy. Director, Military Farm Southern Command. Not-withstanding this, no court of enquiry was instituted against G.G.Hundal and he retired from service on 30.09.1985. In the meantime, the petitioner made a statutory complaint under section 27 of the Army Act, 1950 against holding of the second Court of Enquiry. This statutory complaint filed by the petitioner was altogether ignored and on 17.8.85 direction was given to the Court of Enquiry to investigate the circumstances under which 36382 Kg. of loose hay was found deficient on 100% weighment in Stack No.l at Military Farm, Jaipur. On 2.1.1986, Directorate of Military farms ordered the petitioners attachment to Military Hospital, Jaipur. He was directed to report at Military Hospital on 6.1.86. This the petitioner complied. On 24.1.86 the petitioner was served with a charge-sheet under section 63 of the Army Act in respect of fire incident of 6.2.84. On 25.3.86 the Commanding Officer, Military Hospital, Jaipur wrote to Headquarter 61(1) Sub Area that a detailed analytical study of the evidence discloses no cognizable offence having been committed by the petitioner. This document has been placed on record as Annexure-3. On 27.11.86 a fresh charge-sheet was issued to the petitioner by the Commander, Military Hospital, Jaipur. Two charges were levelled under section 52-F and one was under section-61 of the Army Act. The petitioner filed a writ petition before this Court which was registered as S.B. Civil Writ No. 2273/86. This document has been placed on record as Annexure-3. On 27.11.86 a fresh charge-sheet was issued to the petitioner by the Commander, Military Hospital, Jaipur. Two charges were levelled under section 52-F and one was under section-61 of the Army Act. The petitioner filed a writ petition before this Court which was registered as S.B. Civil Writ No. 2273/86. On 2.12.86 this Court issued a show cause notice and stayed the proceedings of the General Court Martial constituted vide order dated, 27.11.86. On 8.12.86 respondents filed an application for vacation of the stay order on the ground that the three years limitation specified in Section-122 of the Army Act, 1950 was going to expire on 9.12.86. After hearing the parties, the Court modified the earlier order dated, 2.12.86. While permitting the respondents to convene General Court Martial, the Court ordered that no final verdict shall be recorded till further orders from the Court. A second application was filed by the respondents for vacation of the stay order. However, that was declined by the Court. After hearing the parties,this Court allowed the writ petition on 15.12.88. This Court quashed the order convening the General Court Martial for the trial of the petitioner. A review petition filed by the respondents was dismissed by this Court. (5). After the decision of this Court petitioner sought interview with the Military Secretary for making a request to remove the attachment and to promote him as Lt. Col. and also to promote him on criteria appointment. However, the petitioners request for interview was not granted. (6). During the pendency of the writ petition filed by the petitioner, a show cause notice dated 10th" September 1990 was served upon the petitioner, on 22.10.90. Before the petitioner could reply to this show cause notice, it was withdrawn and the petitioner was directed vide letter/telegramme dated, 29.10.90 to return all copies of the show cause notice in original. The petitioner complied with this direction vide his letter dated, 30.10.90 (Annex. 10). After 19 days the petitioner was again served with show cause notice dated 10.9.90. Petitioner was called upon to submit his explanation and defence against the proposal of termination of his service under section-19 of the Army Act read with Rule-14 of the Army Rules. The petitioner complied with this direction vide his letter dated, 30.10.90 (Annex. 10). After 19 days the petitioner was again served with show cause notice dated 10.9.90. Petitioner was called upon to submit his explanation and defence against the proposal of termination of his service under section-19 of the Army Act read with Rule-14 of the Army Rules. In the show cause notice it came to be recorded that in respect of the allegations of misconduct levelled against the petitioner was inquiry impracticable having become time barred. The petitioner filed reply to the show cause notice and this was forwarded to the Army Headquarters on 17.06.1991. After about 9 months the petitioner was served on 123.92 with order dated 28.2.92 of his dismissal from service. (7). The petitioner has assailed the action of the respondents on the ground of violation of the provisions of the Army Act and the Rules framed therein as well as on the ground of arbitrariness, victimisation, malice and violation of the Rules of natural justice. (8). In their reply, the respondents have admitted the facts regarding the posting of the petitioner in the month of May 1982 as Incharge of the Military Farm, Jaipur. They have stated that fire broke out in stack yard of Military Farm, Jaipur on 6.2.84. According to the respondents, the G.O.C. in Chief, Southern Command, was not satisfied with the conduct of the first Court of Enquiry. He, therefore, issued direction for fresh enquiry. Respondents have pleaded that in the previous writ petition No. 2273/86, this Court did not find any fault with the directions of the officiating G.O.C. in Chief, Headquarters, Southern Command or the Court of Enquiry proceedings. The Court had only found that order passed by Col. Rawat was illegal. Further case of the respondents is that although the petitioner had been approved for promotion to the post of Lt. Col. in December 1985 but ban had been imposed on 12th September 1985 a in pursuance of the direction of the GOC-in Chief, Headquarter, Southern Command, dated, 31.5.85 for initiation of disciplinary action against the petitioner. This ban was in tune of the Army Headquarters Policy Note No. A/56728/80/PS-I dated, 17.3.78 as amended vide Army Headquarter Policy Note No. A/56125/A/PS-I dated, 1.1.85. This ban was in tune of the Army Headquarters Policy Note No. A/56728/80/PS-I dated, 17.3.78 as amended vide Army Headquarter Policy Note No. A/56125/A/PS-I dated, 1.1.85. Case of the respondents is that the finding of the earlier Court of Enquiry was found to be defective and therefore, fresh Court of Enquiry was ordered to go into the truth of the allegations. Further plea of the respondents is that the petitioner cannot take any advantage of the statutory complaint filed by him and also of the failure of the respondents to decide the statutory complaint.. Respondents have then pleaded that the findings of the General Court Martial held against the petitioner has been nullified by the order of this Court dated, 15.12.88. That related to the incident of fire dated, 6th of February 1984. A Court of Enquiry pertaining to deficiency/deterioration of hay which was pended due to fire incident in the Military Farm, Jaipur was therefore, taken up and the GOC in-Cheif, Head quarters (Southern Command) directed severe disciplinary action against the petitioner for negligent performance of duties and disobedience of the order of Dy. Director, Military Farms, Head quarter (Southern Command). By that time this Court of Enquiry was finalised, case against the petitioner had become time barred in terms of Section-122 of the Army Act. The petitioner was therefore called upon to waive the time limit vide letter dated 3.12.1986. The petitioner declined the option. He, therefore, could not be brought to trial. Consequently, a statement of case was forwarded by the Headquarters (Southern Command) for taking of action under Section-19 of the Army Act read with Rule-14 of the Rules. Thus, the administrative action taken by the respondents is in accordance with law. (9). Respondents have countered the grounds raised by the petitioner by pleading that they have acted in accordance with the provisions of the Army Act and the rules framed thereunder. They have taken action on the basis of the findings recorded against the petitioner and once the petitioner has been dismissed from service his claim for consideration of his promotion has become infructuous. (10). Shri S.D. Sharma and Shri Rajendra Prasad, learned counsel for the petitioner, vehemently argued that the entire action taken against the petitioner is malicious and arbitrary. They have taken action on the basis of the findings recorded against the petitioner and once the petitioner has been dismissed from service his claim for consideration of his promotion has become infructuous. (10). Shri S.D. Sharma and Shri Rajendra Prasad, learned counsel for the petitioner, vehemently argued that the entire action taken against the petitioner is malicious and arbitrary. Learned counsel argued that no Court of Enquiry could have been ordered against the petitioner in respect of the so-called deficiency/deterioration of hay in stack No.l, because the petitioner had not only made a record of the suspected deficiency but had clearly pointed out that it was not possible to measure the stack because of its density and because it was still unthatched. He had also pointed out that baled hay is partly coarse and moisture effected. He had made specific request to the Dy. Director, Military Farms (Southern Command) to take steps for measuring of hay and weighment but no action was taken on the part of the Dy. Director and he has been made a scape goat. Shri S.D. Sharma argued that respondents have themselves admitted in the reply filed to writ petition no. 2273/86 that fault was of Shri B.P. Bhardwaj and Shri S.P. Singh Manager, Military Farm, Jaipur and of Assistant Supervisor, Shri Diwan Singh. Shri Sharma argued that Shri S.P. Singh, Manager, Shri B.P. Bhardwaj, Manager and Shri D.K. Sharma, Manager, have been left out with minor punishment of stoppage of grade increments without cumulative effect and the petitioner has been thrown out of the job solely on account of the annoyance of the respondents, because the had earlier filed the writ petition. Learned counsel further argued that the order passed by the respondents with reference to Section-19 read with Rule-14 is wholly unwarranted, because, once the limitation has expired, it was not open to the respondents to declare that the holding of inquiry was not reasonably practicable. Shri S.D. Sharma further submitted that adverse material was not made available to the petitioner and precisely on the basis of previous inquiry held against the petitioner action has been taken for penalising the petitioner. Shri Sharma argued that the sole object of initiating action against the petitioner after filing the present writ petition was to prevent his promotion. Shri S.D. Sharma further submitted that adverse material was not made available to the petitioner and precisely on the basis of previous inquiry held against the petitioner action has been taken for penalising the petitioner. Shri Sharma argued that the sole object of initiating action against the petitioner after filing the present writ petition was to prevent his promotion. According to Shri Sharma the petitioner had become due for promotion as early as in April 1987 and since the higher officers did not want the petitioner to be promoted gimmic of various enquiries was started and ultimately the petitioner has been punished and thereby, deprived of his due promotion. (11). Shri Praveen Balwada, learned counsel for the respondents, argued with equal vehemence that the writ petition filed by the petitioner (Original) should not have been entertained by the Court in view of the decision of the Supreme Court in Chief in Army Staff vs. Dharam Pal (1). Shri Balwada argued that post record of the petitioner was not taken into consideration and the Army authorities have acted on the basis of the report of the Court of Enquiry. Shri Balwada pointed out that punishment provided under the Army Act is much more stringent and the petitioner cannot be treated at par with the civilians employed in the Army whose conditions of service are governed by the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Shri Balwada drew the attention of the Court to Annexure R/1 and Annexure R/2 to point out that the petitioner has been found guilty of not taking prompt action. The petitioner was expected to order immediate weighment of the stack and that would have clearly disclosed the factum of shortage etc. Shri Balwada further argued that Rule-14 had to be invoked because the period of limitation had expired on account of the pending court proceedings. (12). Before I proceed further I consider it necessary to take note of the fact that writ petition no. 2273/86 was directed against the order passed for convening General Court Martial for trial of the petitioner in respect of the fire which broke out on 10.2.84. This Court allowed the writ petition and quashed the order convening the General Court Martial for trial of the petitioner. 2273/86 was directed against the order passed for convening General Court Martial for trial of the petitioner in respect of the fire which broke out on 10.2.84. This Court allowed the writ petition and quashed the order convening the General Court Martial for trial of the petitioner. This Court had not granted any stay restraining the respondents from taking action against the petitioner in respect of the so-called allegation of shortage of hay in stack No. 1. It is, therefore, clear that the argument advanced by the learned counsel for the respondents that the proceedings could not be held against the petitioner on account of the Court proceedings is mis-conceived. (13). Sections- 19 and 122 of the Army Act as well as Rule 14 and Rule 180 of the Army Rules, 1954 which are relevant for the purpose of deciding the rival submissions made by the learned counsel for the parties deserve to be quoted hereunder : — "Sec. 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. Sec. 122. Period of limitation for trial - (1) Except as provided by sub-section (2), 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. (2) The provisions of sub-section (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 sub-section (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 regular Army. Rule -14. (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 regular Army. Rule -14. Termination of service by the Central Government on account of mis-conduct- (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 in sub-rule (2) against such action: Provided that this sub-rule shall not apply : (a) here the service is terminated on the ground of conduct 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 resorts on an officers 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, this 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 officers defence and the recommendation of the Chief of the Army Staff as to the termination of the officers 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 officers service in the manner specified in sub-rule (4). (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 officers service should be terminated, and if so, whether the officer should be- (a) dismissed from the service ; or (b) removed from the service ; or (c) called upon to retire ; or (d) called upon to resign. (5) The Central Government after considering the reports and the officers defence, if any of the judgment of the criminal court,as the case may be, and the recommendation of the Chief of the Army Staff, may dismiss or remove the officer with or without pension or call upon him to retire or resign, and on his refusing to do so, the officer may be compulsorily retired or removed from the service on pension or gratuity, if any, admissible to him. Rule 180 Procedure when character of a person subject to the Act is involved— Save in the case of a prisoner of war who is still absent whenever any inquiry affects the character or military reputation of a person subject to the Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross-examining any witness whose evidence, in his opinion, affects his character or military reputation and producing any witnesses in defence of his character or military reputation. The presiding officer of the Court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of and fully understands his rights, under this rule." (14). The presiding officer of the Court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of and fully understands his rights, under this rule." (14). A look at section 122 makes it clear that no trial by court-martial of any person who is subject to the provisions of the Army Act can commence after the expiry of a period of three years from the date of offence. Cases in which limitation is not applicable have been specified in Section 122 (2) of the Act, Army Rules have been enacted by the Central Government in exercise of its powers, under section 191 of the Army Act, 1950. Being a piece of subordinate legislation or delegated legislation these rules will have to be read consistently and in harmony with the provisions of the Army Act and any possibility of inconsistency has to be avoided. That apart, if ultimately it is found that any provision contained in the Rule is inconsistent with the provisions of the Act, the later will prevail over the former. (15). A situation somewhat similar to the case of the petitioner arose for consideration before the Delhi High Court in Harbhajan Singh vs. Ministry of Defence (2). The petitioner in that case was dismissed from service on the basis of a show cause notice issued by the Chief of Army Staff with stipulation that a court martial was impracticable and that the retention of the petitioner in service was undesirable. After receiving the explanation of the petitioner Chief of the Army Staff dismissed him from service. A learned Judge of Delhi High Court took notice of the provisions of Section-122 of the Army Act and after making a detailed analysis of the provisions of the Act, concluded: (1) The word impracticable in Rule -14 cannot be interpreted so as to destroy the express provisions of the principal Act under which rules are framed. (2) That the Chief of Army Staff and the Central Government did not exercise discretion property and legally as it was based on irrelevant and mis-conceived grounds. (16). In Lt. Col. (T.S.) H.C. Dhingra vs. Union of India and another (3), a more or less similar case arose for consideration before a division bench of the Delhi High Court. (2) That the Chief of Army Staff and the Central Government did not exercise discretion property and legally as it was based on irrelevant and mis-conceived grounds. (16). In Lt. Col. (T.S.) H.C. Dhingra vs. Union of India and another (3), a more or less similar case arose for consideration before a division bench of the Delhi High Court. In that case a show cause notice issued by the Chief of Army Staff on 8.4.88 calling upon the petitioner to show cause as to why his service should not be terminated under section-19 of the Army Act and read with Rule-14 of the Army Rules, was questioned before the division bench. Notice specifically contained stipulation that Chief of Army Staff was satisfied that trial of the petitioner by a General Court Martial was impracticable having become time barred and that the petitioner had not expressed his inclination to waive the time limit. Reference was made by the division bench to the decision of the same Court in Harbhajan Singhs case. The division bench then took cognizance of the arguments advanced by the respondents that no writ petition was maintainable against a show cause notice and that there was sufficient explanation for the delay which made it impracticable for the Army Authorities to proceed with the matter. The division bench expressly rejected the argument advanced on behalf of the respondents about the maintainability of the writ petition and also observed that explanation offered by the respondents for the delay which resulted in the matter becoming time barred, was inconsequential. The division bench observed: — "In any event, in our view, sub-section (1) of Section-122 of the Act is an absolute statutory bar. It spells our legislative policy in clear terms: "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 ." It is a prohibitory provision. No provision has been made for extension of the time prescribed by it. The power of the authorities under the Act to try any person for any offence, except as provided in sub-section (2) is restricted by this statutory provision. This provision is not consensual. Its operation does not depend upon volition, will, or consent of any one. Its operation cannot be waived. The power of the authorities under the Act to try any person for any offence, except as provided in sub-section (2) is restricted by this statutory provision. This provision is not consensual. Its operation does not depend upon volition, will, or consent of any one. Its operation cannot be waived. It is impermissible for any of the authorities under the Act to do away with the mandate of this provision. Its terms are not negotiable. In this respect, we do not agree with the view expressed by Wad J. in Major Harbhajan Singhs case." "In purported exercise of administrative power under Rule 14, in respect of allegations of misconduct triable by General Court Martial, the authorities cannot override the statutory bar of sub-section (1) of Section-122 of the Act. No administrative act or fist can discard, destroy or annul a statutory provision. This statutory provision cannot be set at naught or circumvented merely on an administrators opinion that it is impracticable to held a trial by a General Court Martial as the accused officer has refused to give a statutory bar of limitation prescribed for such a trial." (17). A similar view has been expressed in Ex Major Bhagirath Singh vs. Union of India (4) decided on September 13, 1985 by a Sincle Bench of Delhi High Court. (18). In the instant case, it is clear from a bare perusal of the show cause notice dated, 10.9.1990 that the Chief of Army Staff has merely recorded a bald satisfaction that trial of the petitioner become impracticable on account of bar of limitation and that his further retention in service was undesirable. No explanation worth the name has been offered by the respondents as to why the proceedings could not be taken against the petitioner within a period of three years. Even during the course of hearing, learned counsel for the petitioner could not produce any material to justify the lapse on the part of the respondents in taking action against the petitioner for his so-called delinquency during his posting as Officer-Inchanrge, Military Farm, in 1982 and 1983. (19). That apart, I find that the action taken by the respondent is contrary to the provisions contained in Rule-14 itself. (19). That apart, I find that the action taken by the respondent is contrary to the provisions contained in Rule-14 itself. A perusal of Rule-14 quoted above shows that the Central Government or the Chief of Army Staff has to consider the reports of the officers of misconduct and then come to a conclusion that it is inexpedient or impracticable to try the Officer by a court martial. Central Government or the Chief of Army Staff has to form an opinion that further retention of such officer in the service is undesirable. After formation of such opinion the Chief of Army Staff is to inform the officer concerned and give him all reports adverse to him and then call upon him to submit his explanation and defence in writing. Therefore, before power under Rule-14(2) can be invoked for issue of a notice, the conditions specified in that rule have to be fulfilled, namely consideration of the reports by the Central Government or the Chief of Army Staff; satisfaction recorded by the Central Government or the Chief of Army Staff that trial of the officer by a Court Martial is inexpedient or impracticable; formation of opinion that retention of the officer in the service is undesirable and such formation of opinion has to be based on objective consideration of the entire material. (20). In the case in hand, the Chief of Army Staff has recorded his satisfaction about inexpediency or impracticability of the trial of the petitioner by court martial after consideration of the reports regarding the misconduct of the petitioner. However, the Chief of Army Staff has not given any reason as to on what basis he has come to the conclusion that further retention of the petitioner in service is undesirable. The so-called delinquency of the petitioner related to the years 1982-83 and for a period of 7 years thereafter the petitioner had continued in service without any blemish. This shows that the notice dated, 10th Sept., 1990 was issued to the petitioner only in order to overcome difficulty created by the judgment of this Court in writ petition No. 2273/86 and even after the judgment of the Court it had taken one year and ten months to the competent authority to issue notice to the petitioner. This shows that the notice dated, 10th Sept., 1990 was issued to the petitioner only in order to overcome difficulty created by the judgment of this Court in writ petition No. 2273/86 and even after the judgment of the Court it had taken one year and ten months to the competent authority to issue notice to the petitioner. That shows that opinion of the Chief of Army Staff about the undesirability of the retention of the petitioner in service is not based on relevant consideration but is based on wholly irrelevant and extraneous considerations. On that ground the notice issued to the petitioner is liable to be quashed. (21). Another reason which is sufficient for quashing the notice dated, 10th September 1990 is that although the Chief of Army Staff placed reliance on the report of the Court of Enquiry which is said to have been convened in August 1985, however, report of such Court of Enquiry which was adverse to the petitioner, was not made available to him and, therefore, the petitioner has no effective opportunity to submit his explanation of his defence. Under the said report was made available to the petitioner he had not occasion to make his submission/furnish his explanation in regard to the said adverse report. A look at the order Annexure-3 further shows that the Central Government considered the adverse report on the conduct of the petitioner for taking a final decision for dismissal of the petitioner from service. It is thus, more than apparent that adverse report has been taken into consideration without the same being made available to the petitioner. Thus, the action of the respondents is patently contrary to Rule-14 as well as the principles of natural justice. The petitioner has been condemned unheard because, the adverse report was not made available to him for submission of his explanation/defence. (22). Even if, for a moment, it is assumed that the respondents were legally entitled to take action against the petitioner under section-19 read with rule 14, there is sufficient material available on record for holding that the punishment imposed on the petitioner is wholly arbitrary, unreasonable and unjustified. (22). Even if, for a moment, it is assumed that the respondents were legally entitled to take action against the petitioner under section-19 read with rule 14, there is sufficient material available on record for holding that the punishment imposed on the petitioner is wholly arbitrary, unreasonable and unjustified. It is significant to notice that in writ petition No. 2273/86 the petitioner had specifically made averments regarding his posting at Military Farm, Jaipur, his taking over of the charge from Shri S.P. Singh and the fact that he had expressed his suspicion even at the time of taking of the charge. (23). Paragraphs 6 and 7 of the said writ petition and reply filed by the respondents to these paragraphs are extremely significant for the purpose of appreciating the argument of the learned counsel for the petitioner that the petitioner has been made victim for wholly extraneous reasons. These paragraphs are quoted below: — Para 6 DB Civil Writ Petition No. 2273/86 6."That the petitioner took-over the charge of Military Farm Jaipur including other four Military Farm Depots of Alwar, Jodhpur, Kota and Nasirabad from Shri S.P. Singh. On 24.05.1982 handing and taking over certificate as prepared and forwarded to DDMF (SC) respondent No.8. At the time of handing/taking over the petitioner noticed the shortage in hay. Since the stock of hay could not be weighed then and there the petitioner forwarded shortage report on the basis of his estimate to respondent No.8 and requested for 100% weighing of stock No.l of hay which was suspected to be short. This was not liked by the then DDMF, Col. G.S. Hundal and instead of taking immediate action on shortage he entered into ambious and time consuming correspondence. Para-7 "That the stack No.l (hereinafter referred to as "Disputed old stock) was built by Assistant Supervisor Shri Diwan Singh, through local purchase of loose hay during 1981-82 under the then officer-in-charge manager Shri B.P. Bhardwaj, Shri Diwan Singh, without taking any permission from the then Officer in-Charge made issue from the said stock of 2700 Kg. during 20.2.1982 to 23.2.1982 and made entries in the book in his own handwriting. Report to this effect was made to DDMF (SC) respondent No.8 while Military Farm, Jaipurs letter No. F-l JPR dated 13.3.1982 intimating that due to these unapproved issues the said stock had become deshaped. during 20.2.1982 to 23.2.1982 and made entries in the book in his own handwriting. Report to this effect was made to DDMF (SC) respondent No.8 while Military Farm, Jaipurs letter No. F-l JPR dated 13.3.1982 intimating that due to these unapproved issues the said stock had become deshaped. As instant Supervisor, Diwan Singh again without anybodys permission and having knowledge that a report about the said stock had gone to DDMF, Southern Command made post dated entries of 1 March 1982 in the books. It is pertinent to mention here that there was a case of theft tarpaulin from stock yard on 6.7.1982 Assistant Supervisor, Diwan Singh absented himself from duty till 7.9.1982. During this period he did not accept any letter sent to him by hand or by registered post. He reported on duty at his own on 8.9.1982. He was asked to resume duty in stack yard on 10.9.1982 through an official letter. He refused to comply the order. The stackyard was taken over by S.A.S.D.K. Sharma through an officer detailed by Station Head Quarters, Jaipur which could be completed on 15.10.1982 with remarks of shortage in the disputed hay stack and with the remark that the shortage may further go up. The then DDMF (SC) Col. G.S. Hundal, during his inspection in February, 1983 gave orders on the spot for making issues from disputed old stock through unit Board of officer which was detailed on 28.2.1983 with A.S. Shri Diwan Singh as presiding officer. The issues were made till 14.3.1983. A.S. Diwan Singh refused to associate with any further issues saying that quality of hay was poor and it was less in quantity. This was attributed by him to Manager Shri B.P: Bhardwaj. Both the Managers were called on temporary duty with the permission of DMF Army Headquarters. But the permission of DMF, Army Headquarters. But on their arrival A.S. Diwan Singh refused to comply with the office order No. 44 dated 22.10.1983 directing him to commence issue in the presence of both the Managers, which he though noted but did not comply. On 14.9.1983 A.S. Diwan Singh sent letters to DMF Army Headquarters with copies to DDMF(SC) and MF Jaipur. The comments on his letter alongwith comments of both the Managers were sent to DDMF (SC) vide letter No.F.1/JPR/PC/1 dated, 26.10.1983 DDMF (SC) gave order for 100% weighing vide his signal No.Q 3605 dated, 26.10.1983. On 14.9.1983 A.S. Diwan Singh sent letters to DMF Army Headquarters with copies to DDMF(SC) and MF Jaipur. The comments on his letter alongwith comments of both the Managers were sent to DDMF (SC) vide letter No.F.1/JPR/PC/1 dated, 26.10.1983 DDMF (SC) gave order for 100% weighing vide his signal No.Q 3605 dated, 26.10.1983. The weighing was carried out from 2.11.1983 to 6.11.1983. A net shortage of 36.382 tonns of loose hay in the said disputed stock came up on surface. The petitioner reported the result of 100% weighing to DMF, Army Headquarters and DDMF(SC) Col. G.S. Hundal and Station Head Quarters for ordering a staff-court of Inquiry. No action was taken in order the inquiry immediately." Reply to para-6-7 of D.B.C.W. No. 2372/86- "6. That in reply to para No.6 of the writ petition, it is submitted that the petitioner took over the charge of Military Farm, Jaipur on 24.05.1982 from Shri S.P. Singh, Manager, Shri S.P. Singh was not holding charge of Military Farm Depot, Alwar, Jodhpur, Kota and Nasirabad. At the time of taking over, the petitioner has given certain remarks in the handing/taking over certificate. He has not reflected any other shortages. The remarks are: Loose Hay of Local Purchases: Shortage expected. Stock cannot be measured for its density. Stack still unthatched. Baled Hay: Stocks completed are not thatched. The thatching operation have just started. Baled Hay is partly coarse and moisture affected thereby discoloured and mouldy. While on visit to Military Farm, Jaipur during February, 83, Respondeat No.8 ordered to issue loose hay from the disputed stock (No. 1 (old) under supervision unit Board associating A/Supr. Dewan Singh, the then Incharge stackyard by whom the stack in question was constructed. The issue commenced on 9.03.1983, and continued upto 14.03.1983. These issues were signed by the Unit Board including A/Supr. Diwan Singh, Thereafter A/Supr. Diwan Singh refused to sign the issues stating that Supr. (Now Manager) B.P. Bhardwaj and Manager S.P. Singh were also responsible for purchases and they should be informed to attend the issues. Further issues were stopped. Shri B.P. Bhardwaj and Shri S.P. Singh were detailed on temporary duty as requested by A/Supr. Diwan Singh but Shri Diwan Singh refused to comply. The case was referred by Military Farm, Jaipur to Respondent No. 5 who issued order for 100% weighment of stack. On weighment, 36382 kgs. of hay was found short. Further issues were stopped. Shri B.P. Bhardwaj and Shri S.P. Singh were detailed on temporary duty as requested by A/Supr. Diwan Singh but Shri Diwan Singh refused to comply. The case was referred by Military Farm, Jaipur to Respondent No. 5 who issued order for 100% weighment of stack. On weighment, 36382 kgs. of hay was found short. Disciplinary action against those found responsible for shortages has been recommended and will be initiated as soon as the approval of competent authority is received. Petitioner is also one of the persons blamed. "7. That in reply to para No. 7 of the writ petition it is submitted that the stack no. 1 (old) was constructed under the supervision of Shri Diwan Singh A/Supr. out of the purchased hay of 1981-82. Shri B,P. Bhardwaj was officiating Officer Incharge during the period. Shri B.P. Singh took over the charge of Military Farms Jaipur from Shri B.P. Bhardwaj on 3rd March 1982. Manager S.P. Singh vide Military Farm, Jaipur letter No. F-1/Jpr. dated-13.03.1982 intimated to respondent No. 8 that 3700 kgs. loose hay has been issued from this stack upto 1.03.1982. Neither the measurement of said stack was taken nor density was worked out, and it was also not thatched. Manager, S.P. Singh further directed A/Supr. Diwan Singh to stop issues from another stack build in 80-81 (by A/Supr. Ved Ram) but continue issues from stack No. 1 (old) only. A terpulin was stolen from stackyard Military Farm, Jaipur on 6.07.1982. The matter was investigated and the two Chowkidars who were found negligent in performance of their duty have been awarded punishment. Shri Diwan Singh remained absent with effect from 7.07.1982 to 7.09.1982. During this period three letters sent to him by Registered post were received back undelivered with postal remarks. On resumption of duty, the petitioner vide Military Farm, Jaipur no. 8060644/PF/DS dated, 10th September 1982 asked Shri Dewan Singh to resume his old duty of Incharge Stackyard and take over stack yard covering all aspects on the section. Shri Dewan Singh did not comply with these orders. There is no evidence on record to prove that the said letter was received by Shri Diwan Singh or not. During the period A/Supr. Dewan Singh remained absent, the issues were made under Unit Board of Officers. Shri Dewan Singh did not comply with these orders. There is no evidence on record to prove that the said letter was received by Shri Diwan Singh or not. During the period A/Supr. Dewan Singh remained absent, the issues were made under Unit Board of Officers. The issues of hay through a Unit Board continued till SAS D.K. Sharma a took over charge of stackyard on 15.10.1982 through Station Board of Officers convinced by Station H.O. Jaipur convening order No. 6012/5/Q. dated, 14.08.1982. Remarks given in Station Board of Officers Handing/Taking over were not clear. However, shortages were suspected with further remarks that the shortages are likely to go high. The Board assessed expected shortages of QMT. based on density. The then DDMF. Col. G.S. Hundal, Respondent No.8 while on inspection at Military Farm, Jaipur during February, 1983 ordered issue of hay from this stack No.l (old) under Unit Board of Officers associating A/Supr. Diwan Singh. The issues were made by Unit Board during 9.03.1983 and the members of the Board signed it. Thereafter, Shri Diwan Singh asked for the presence of Shri B.P. Bhardwaj and Shri S.P. Singh. Shri B.P. Bhardwaj and Shri S.P. Singh were sent on temporary duty in Jaipur for above mentioned purpose but against Shri Dewan Singh refused to comply. Thereafter, Respondent No.8 gave the orders for 100% weighment by Station Board of Officers. On 100% weighment a quantity of 36382 kgs. loose hay was found short. On receipt of the report, matter was referred to DDGMF Army HQ (Respondent No.6) who issued orders for investigating the matter through a Staff Court of Inquiry." (24). These averments made by the parties bring out the following important facts: — (a) At the time of taking over charge of the Military Farm Jaipur, the petitioner had expressed his suspicion regarding shortage but felt difficulty in securing measurement of the stack. He had also made a report about the suspected shortage to the Dy. Director, Military Farms, H.Qrs. (Southern Command), Shri G.S. Hundal and requested him for 100% weighment of the stack No. 1 of hay. (b) No action was taken by Col. G.S. Hundal for weighing hay in Stack No.l. (c) Stack No.l was built by Assistant Supervisor Shri Diwan Singh through local purchase of hay during 1981-82. At that time Shri B.P. Bhardwaj was Officer-Incharge-Cum-Manager of the Military Farm, Jaipur. (b) No action was taken by Col. G.S. Hundal for weighing hay in Stack No.l. (c) Stack No.l was built by Assistant Supervisor Shri Diwan Singh through local purchase of hay during 1981-82. At that time Shri B.P. Bhardwaj was Officer-Incharge-Cum-Manager of the Military Farm, Jaipur. (d) Shri Diwan Singh issued hay from the said Stack between 20.2.82 to 23.2.82 without permission of the Officer Incharge. A report to this effect was made to Col. G.S. Hundal vide letter no. F.l/JPR dated 13.3.82. (e) Theft of Tarpulin from Stackyard took place on 6.7.82. Assistant Supervisor Shri Diwan Singh absented from duty till 7.9.82 and he did not accept the letters sent to him by hand or by Registered Post. He reported for duty on 8.9.82. He was asked to resume duty in Stackyard on 10.9.82. However, he declined to comply with the order. Stackyard was taken over by the Assistant Supervisor Shri T.K. Sharma through an Officer detailed by the Station Headquarters, Jaipur. This was completed on 15.10.82. (f) During his inspection in February 1983 Col. G.S. Hundal, DDMF, gave orders on the spot for making issue of loose hay from the disputed Stack No.l through Unit Board Officer in association with Assistant Supervisor, Diwan Singh, the then Incharge of Stackyard. The issue commenced on 9.3.83 and continued till 14.3.83. These issues were signed by the Union Board including the Assistant Supervisor Diwan Singh. Thereafter, Diwan Singh refused to sign the issues. He insisted that Managers, Shri B.P. Bhardwaj and Shri S.P. Singh should be informed to attend the issues. Upon this S/Shri B.P. Bhardwaj and Singh were detailed on temporary duty as per the request of Shri Diwan Singh. Despite this, Diwan Singh refused to comply. (g) On 14.9.83 Diwan Singh sent letters to Director, Military Farms, Army H.Qrs. with copies to DDMF (SC) and Military Farms, Jaipur. Comments on his letter alongwith opinion of the two Managers were sent to DDMF. Thereafter, DDMF (SC) gave order for 100% weighing vide his signal dated, 26.10.83. The weighing was carried out between 2.11.83 to 6.11.83 and only then 36382 kgs. of hay was found short. (25). These undisputed facts, if 1takent into consideration alongwith the fact that Dy. Comments on his letter alongwith opinion of the two Managers were sent to DDMF. Thereafter, DDMF (SC) gave order for 100% weighing vide his signal dated, 26.10.83. The weighing was carried out between 2.11.83 to 6.11.83 and only then 36382 kgs. of hay was found short. (25). These undisputed facts, if 1takent into consideration alongwith the fact that Dy. Director, Military Farms issued notice to Shri S.P. Singh, Shri B.P. Bhardwaj Managers and Shri D.K. Sharma alleging negligence on their part and their failure to get Stack No.l of loose hay properly measured and thatched and for their failure to provide protection to the Stack No.l and also their failure to arrange for proper issue of hay from the Stack No.l, show that the purchase of loose hay had been made by Shri Diwan Singh during the tenure of Shri B.P. Bhardwaj and issue was made from the said hay when Shri B.P. Bhardwaj and S.P. Singh were Managers. No action was taken by the DDMF for arranging the 100% weighing of Stack No.l despite the report of the petitioner in which he had suspected shortage. Surprisingly, the then DDMF (SC) Col. G.S. Hundal gave order for issue of disputed Stack in February 1983, ignoring the earlier report of the petitioner about the suspected shortage. Total defiance on the part of Diwan Singh to comply with the orders from time to time was completely over-looked and two Managers, namely, S/Shri S.P. Singh and B.P. Bhardwaj have been punished with stoppage of one grade increments without cumulative effect. Even though, Shri Balwada is correct in making submission that the yard stick adopted for imposing punishment on the persons governed by the Army Act is different than the punishment imposed on the persons governed by the Central Civil Services (Classification, Control and Appeal) Rules, but there can be no manner of doubt that an employee/Officer governed by the provisions of the Army Act cannot be punished without being guilty of delinquency. It is absolutely evident from the record that the respondents (concerning authorities) completely over-looked the striking facts regarding the deliberate act and omissions of Diwan Singh, Assistant Supervisor and total neglect on the part of not only the two Managers but none else than the Dy. It is absolutely evident from the record that the respondents (concerning authorities) completely over-looked the striking facts regarding the deliberate act and omissions of Diwan Singh, Assistant Supervisor and total neglect on the part of not only the two Managers but none else than the Dy. Director Military Farms, Headquarter (Southern Command), who had miserably failed to take action for 100% weighing of Stack No. 1 despite the report of the petitioner in which he had expressly opined that there was a suspicion about the shortage. The petitioner has virtually been held responsible for the negligence in the performance of his duty by Shri B.P. Bhardwaj. Shri B.P. Bhardwaj and Shri S.P. Singh as well as Col. G.S. Hundal and grave miscon-duct committed by Diwan Singh in maiding loose purchase of hay, his failure to arrange the weighing of the Stack, proper thatching, unauthorised issue and failure to comply with the orders of the superior authorities. The petitioner has clearly been made scape goat for the lapse and delinquencies of others.. (26). Therefore, I am of the opinion that the notice dated, 10.9.90 and the order dated, 28.2.92 are based on wholly extraneous and unfounded grounds. (27). Another aspect of the matter which deserves to be noted is that the petitioner had complied with Para-303 of Standing Orders applicable to Military Farms. These Standing Orders contain the various administrative instructions relating to Military Farms. Chapter-12 of these Standing Orders deal with issues, transfers, losses, GS Rate, Pricing and disposal of fodder. Para - 303 of this Chapter is extremely significant for the purpose of this case. Para -303 (A) (B) and (C) read thus: "303. Losses of fooder except unavoidable losses due to handling will be reported to the DDSMF (Commands) immediately on discovery. DDSMF commands will investigate the loss and take action for regularisation of the loss as laid down in FRI part I and MF Regulations. Inspecting Officers will check measurements and densities of as may stacks as possible before they are issued. This is one of the most important duties of DADMF of Command Headquarters. DDSMF commands will investigate the loss and take action for regularisation of the loss as laid down in FRI part I and MF Regulations. Inspecting Officers will check measurements and densities of as may stacks as possible before they are issued. This is one of the most important duties of DADMF of Command Headquarters. Counter-check should occasionally be carried out by DDSMF Commands." (a) Responsibility for losses-In order to fix responsibility for losses in stacks of fodder the following orders are issued : (i) Duties of an individual who has been detailed to start/or issue of fodder from a stack will not be changed nor he will be out until such time the stack has been completed or issued out and the completion of issue report on stacking report IAF (Farms)-1 has been submitted to DDSMF Commands. (ii) (A) The Officer-Incharge/Manager must measure all fodder stacks and silos carefully before a stack is opened and report on stacking report IAF (Farms) -I, if he anticipates a loss in issues over 8% in case of hay stacks and over 5% in case of bhoosa stacks. In the absence of such remarks it will be assumed that there will be no loss in issues except unavoidable loss on account of dryage as authorised in FRI Part I. (B) He will not start issues from a stack in which he anticipates a deficiency. (C) The DDSMF, Commands on receipt of such report will detail and Administrative Officer from Command Headquarters to check the measurements and make enquiries, fix the responsibility for the loss. If loss is anticipated the persons responsible will be given the option either to pay for dismantling, weighing and restacking of hay besides making good the shortage or agree to pay for all shortages after issue." (28). A perusal of the above quoted provisions shows that losses of fodder should be reported to the Dy. Director, Military Farms, who will investigate the loss and take action for regularisation of the losses and this is one of the most important duties of DA DMF of Command Headquarter. Para (a) contains the procedure by which responsibility is to be fixed. Para (B) provides that Officer Incharge/Manager will not start issue from a stack from which he anticipates deficiency. The Dy. Para (a) contains the procedure by which responsibility is to be fixed. Para (B) provides that Officer Incharge/Manager will not start issue from a stack from which he anticipates deficiency. The Dy. Director of Military Farms are required to take steps that check and measurements for making enquiries in order to fix the responsibilities of loss. The petitioner had on his part complied with these instructions by making a note of the suspected loss at the time of taking over charge from Shri S.P. Singh and had also reported matter to the Dy. Director, Military Farms, H.Q. (Southern Command). It was the duty of Col G.S. Hundal who had, at the relevant time, held office of DDMF to take immediate steps for measurement and checking of Stack No.l for determination of loss. Not only that Col. Hundal did not take steps in this regard during his visit in the month of February 1983, he ordered issue of hay from the disputed stack. Subsequently the petitioner has been hauled up for allegation of failure to discharge his duties and to carry out orders of his superiors. In my opinion, once the petitioner had complied with his duties in terms of Para -303 of the Standing Orders he could not have been charged with the allegation of negligence in the performance of the duty. (29). Decision of the Supreme Court in Chief of Army Staff vs. Maj. Dharmpal (supra) has been considered by the division bench of Delhi High Court in H.C. Dhingras case (supra). The division bench of Delhi High Court referred to the facts of the case and then observed: — "With regard to the peculiar position which arose under the Army Act, as also under paramateria provisions under the Air Force Act and the Air Force Rules from non-confirmation of the findings and sentence of the General Court Martial, even on revision, Medon J, observed in paragraph 15 of the judgment: "It can well be argued that by reason of the provisions of section 153 under which no finding or sentence of a general, district or summary general court martial is valid except so far as it is confirmed as provided by the Army Act a person cannot be said to have been acquitted or convicted by a court martial until the finding of guilty or non-guilty in his case has been confirmed by the confirming authority". His Lordship also pointed out: "There is, however, no express provision in the Army Act which empowers the holding of a when the finding of a fresh court martial on revision is not confirmed." In this context, the Supreme Court had to consider the questions : whether the Central Government or Chief of Army Staff can have resort to rule 14 of Army Rules : and can it be said that in such a case, a trial by a court martial is inexpedient or impracticable. The meaning of the word "inexpedient" and impracticable, found from different dictionaries has been explained in paragraph 15 of the judgment as follows: "The Shorter Oxford English Dictionary. Third Edition, defines the word "inexpedient" as meaning "not expedient; disadvantageous in the circumstances, un-advisa, impolitic." "The same dictionary defines "expedient" inter alia as meaning "advantageous, fit, proper or suitable to the circumstances of the case." Websters Third New International Dictionary also defined the term "expedient" inter alia as meaning "characterised by suitability, practicability and efficiency in achieving a particular end fit, proper or advantageous under the circumstances." In these circumstances of the case, in para 16 of the judgment, Madon J. held: "In the present case, the Chief of the Army Staff had, on the one hand, the finding of general court-martial which had not been confirmed and the Chief of the Army Staff was of the opinion that the further retention of the Respondent in the service was undesirable and on the other hand, there were the above three High Court decisions and the point was not concluded by a definitive pronouncement of this Court. In such circumstances, to order a fresh trial by a court-martial could certainly be said to be both in expedient and impracticable and the only expedient and practicable course, therefore, open to the Chief of Army Staff would be to take action against the Respondent under Rule 14, which he did. The action of the Chief of Army Staff in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarranted in law". "Thus, it is clear that Major Dharam Pals case was decided in view of absence of express provision for holding a fresh court martial in the peculiar circumstances of that case. The action of the Chief of Army Staff in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarranted in law". "Thus, it is clear that Major Dharam Pals case was decided in view of absence of express provision for holding a fresh court martial in the peculiar circumstances of that case. The prohibition of section 121 of the Act was not attracted to that case as finding of the General Court Martial was not confirmed and it did not become final, as a result of which it could not be said that he was "acquitted" by the General Court Martial. Therefore, the decision in that case is clearly distinguishable on facts, and, is of no avail to the respondents in the present case". (30). In my opinion, the view taken by the division bench of Delhi High Court deserves to be accepted. (31). Once it is held that...... punishment imposed on the petitioner is without jurisdiction, illegal and arbitrary and the same is liable to be quashed, it is logical to hold that denial of promotion to the petitioner as Actg. Lt. Col. even though he had been selected by the Selection Board, on the ground of ban imposed in anticipation of the Court inquiry has to be declared as illegal. Selection of the petitioner which was under cloud on account of the pending enquiry has now to be given effect to because, nothing adverse remains against the petitioner. Whatever justification the respondents may have had for denying promotion to the petitioner, with the quashing of enquiry and the order of dismissal the petitioners right to be promoted stands reviewed. (32). On the basis of the above discussion, this writ petition succeeds and it is hereby allowed. Order dated, 28.2.92 (Annexure-13) is declared illegal and it is hereby quashed. The petitioner shall be reinstated in service with all consequential benefits. Costs made easy.