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2002 DIGILAW 414 (GAU)

Bir Bahadur Chhetri v. Union of India and Ors.

2002-09-25

AFTAB H.SAIKIA

body2002
A.H. SAIKIA, J. - Heard Mr. B.C. Das, learned counsel for the petitioner and Mr. C. Choudhury, learned Sr. CGSC appearing on behalf of the Union of India/respondents. 2. The writ petitioner while working as Havildar in 10th Assam Rifles, at Mokokchung, Nagaland, on 9/10.11.1994 along with 30 other personnel including one Junior Commanding Officer (JCO) were deployed to perform the Road Opening Patrol at Mariani-Mokokchung Road from 25 KM Post to Desai Bridge and the said Patrol party was ambushed by insurgents. In the said ambush the Patrol leader was killed on the spot. But during such ambush the petitioner who was in Second-in-Command instead effacing the insurgents showing cowardice ran away from the spot. As a result of said ambush, the insurgents were capable of snatching away three weapons and ammunitions from the casualties by making good their escape. Immediately thereafter a Court of inquiry was held on 25.11.94 and it opined that a disciplinary action had to be initiated against the petitioner including the other Jawans for such cowardice action. Thereafter on 8.10.95, after one year of court of inquiry, a summary of evidence was directed to be recorded by the Commandant/respondent No. 4 under Rule 23 of the Army Rules, 1954 (for short "the Rules") by supplying a copy of tentative charge-sheet. The order dated 8.10.95 along with tentative charge sheet are extracted as under: "CONFIDENTIAL 10 Assam Rifles C/O56APO A/102999/95/1081 08 Oct 95 SUMMARY OF EVIDENCE: RECORDING OF 1. You are hereby detailed to record S of E in respect of No. 102999 Hav (GD) Bir Bahadur Chhetri. A copy of tentative charge sheet is at. 2. Please ensure that rules and regulations concerning S of E as contained in Army rule 23 are complied with. 3. No. JC-102495 Sub S D Sharma of D coy will be the independent witness present throughout the recording of S of E. 4. The S of E duly completed in all respect will be submitted to this office by 20 Oct 95. Sd/- Illegible (Bal Krishna) Comd. Ofg. Comdt." "CONFIDENTIAL TENTATIVE CHARGE SHEET 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. Sd/- Illegible (Bal Krishna) Comd. Ofg. Comdt." "CONFIDENTIAL TENTATIVE CHARGE SHEET 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 - SEC 34(c) IN THE PRESENCE OF THE ENEMY MISBEHAVING IN SUCH MANNER AS TO SHOW COWARDICE In that he at field on 10 Nov 94 when he was performing No.l Sec Cdr of Road opening patrol at KM stone 25 on rd Mariani-Mokokchung 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 from the casualties and making good their escape. Station : Field Sd/- Illegible (Bal Krishna) dated 08 Oct 95 Comdt. Offg. Comdt." After completion of the Summary of Evidence as directed above, again on 5.5.97 Additional Summary of Evidence was directed to be recorded under Rule 23 of the Rules by respondent No. 4 annexing the same tentative charge-sheet as noted above. The entire enquiry was completed on 27.5.97 and it took more than 2Vi years. 3. On 31.1.98 to the utter surprise and dismay to the petitioner, the respondent No. 3 after more than 3 (three) years from the date of incident, issued show cause notice to him as to why service of the petitioner should not be dismissed under Section 20(3) of the Army Act, 1950 (for short 'the Act') for the offence, referred to above, committed by him stating in para 2 of the said show cause that "After perusal of Summary of Evidence it is found that you have committed the above said offence. Since disciplinary action cannot be taken at this stage as the offence committed by you has become time barred. It has been decided to dismiss you from the service administratively under the provisions of Army Act Sec. 20(3)." The petitioner submitted his reply to the said show cause on 20.2.98. Since disciplinary action cannot be taken at this stage as the offence committed by you has become time barred. It has been decided to dismiss you from the service administratively under the provisions of Army Act Sec. 20(3)." The petitioner submitted his reply to the said show cause on 20.2.98. Thereafter the authority, respondent No. 3 passed the impugned order dated 4.3.98 (Annexure-VII to the writ petition) dismissing the petitioner from the service. The impugned order dated 4.3.98 reads as follows :- Headquarters Nagaland Range (North) Assam Rifles C/O 98 APO A/211/1/98/929 04 Mar 98 No. 102999 YHav/GD Sir Bahadur Chhetri 10 Assam Rifles C/O 99 APO ORDERS BY IC-23358 L BRIG A K VERMA, COMMANDER 7 SECTOR 1.1 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 Jagar 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 -qty1 (c) 7.62 mm BDR ammunition -qty 250 (d) 9mm ball ammunition -qty 96 (e) No. 36 Hand grenade -qty 06 (3) In exercise of the powers vested in me under sec. 20 sub sec 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" 4. The grievance of the petitioner is that when he was implicated to an allegation of having committed a major offence contemplated under Section 34(c) of the Act, the said offence can only and must be tried by a General Court Martial proceeding. On completion of the proceeding of recording of Summary of Evidence and/or Additional Summary Evidence under Rule 23 as stated above, it was the duty of the competent authority for initiation of Court Martial proceeding against the delinquent petitioner by framing a charge sheet under Rule 24 of the Rules. But in the instant case, no such Court Martial proceeding was initiated against the petitioner and as such the entire subsequent action of dismissal has been vitiated for not holding such Court Martial preceding. But in the instant case, no such Court Martial proceeding was initiated against the petitioner and as such the entire subsequent action of dismissal has been vitiated for not holding such Court Martial preceding. Besides, as per Section 122(1) of the Act, the Court Martial proceeding was to be initiated within 3 (three) years from the date of alleged occurrence of the offence i.e. on 10.11.94. But admittedly the said Court Martial proceeding could not be initiated till 31.1.98 for which vide order dated 31.1.98, the petitioner was asked to show cause as to why he should not be dismissed administratively under the provisions of Section 20(3) of the Act. Such action of dismissal of the petitioner administratively, without putting forward any reasonable explanation of such delay for non holding of Court Martial which is a requirement of law, has itself vitiated the dismissal of the petitioner and as such, the impugned dismissal order dated 4.3.98 is liable to be set aside and quashed. 5. The respondents - Union of India refutting the allegations made in the writ petition have, filed response wherein particularly in paragraph 10 under the heading of "BRIEF FACTS OF THE CASE" and in para 12 under the heading "PARAWISE REPLY", it is stated that though the case of the petitioner was processed for trial by a Court Martial, such action would not be taken in stipulated time as the Unit of the petitioner thereafter was deployed in Jammu and Kashmir and the offence got time barred in terms of Section 122. Thus the trial of the petitioner by Court Martial had became impractical and inexpedient and 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. Para 10 and 12 may be read as follows :- " 10. That the case of the petitioner was processed for trial by a Court Martial. However, the Unit of the petitioner thereafter was deployed in Jammu & Kashmir. Due to the move of Unit to Jammu, the action as proposed could not be taken in stipulated time and the offence got time barred. However, considering the gravity of the offence it was decided to take action against the petitioner under Army Act Section 19 read with Army Rules 17. Due to the move of Unit to Jammu, the action as proposed could not be taken in stipulated time and the offence got time barred. However, considering the gravity of the offence it was decided to take action against the petitioner under Army Act Section 19 read with Army Rules 17. Accordingly a show cause notice was issued to the petitioner by the competent authority i.e. Deputy Inspector General. Copy of the Show Cause notice has been annexed as Annexure-V to the writ petition." "12. That with reference to the statement made in para 13 of the writ petition, the deponent begs to state that it was decided that the accused was to be tried by a Court Martial. However, by the time Court Martial proceedings could be drawn against him the case became time barred in terms of Army Act Section 122. Thus, the trial of the petitioner by Court Martial had became impractical and inexpedient. The contention of the petitioner that if he cannot be tried by a Court Martial than subsequent proceedings shall vitiated is false and incorrect. The Hon'ble Supreme Court has recently in UOI -Vs- Harjeet Singh Sandhu ( AIR 2001 SC 1772 ) that if the trial by Court Martial have became impracticable because of expiration of limitation prescribed by section 122 then it does not takes away the power of termination of service. The action can be taken to dismiss a person administratively." 6. A ritualistic exercise of survey of certain provision of the Act and the Rules framed thereunder it is necessary to arrive at a just decision in the case. Therefore before delving upon the rival contentions advanced on behalf of the parties, this Court would like to refer to those relevant provision of law as under : Section 20 of the Act provides - "20. Dismissal, removal or reduction by the Chief of the Army Staff and by other offers - (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. (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 sub­section (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 a sepoy. (6) The commanding officer of an acting non-commissioned officer may order him to revert to his permanent grade as a non­commissioned 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." 7. Section 34 of the Act provides for offences in relation to the enemy and punishable with death. In clause (c) of the said Section, it is enshrined that any person subject to this Act who commits an offence that is to say in the presence of the enemy, shamefully casts away his arms, ammunition, tools or equipment or misbehaves in such manner as to show cowardice, shall, on conviction by Court Martial be liable to suffer death or such less punishment as is in this Act mentioned. Section 71 enumerates the list of various punishment awardable by Courts Martial. Sub-clause (e) of Section 71 provides for punishment of dismissal from service for the offence committed by a person subject to this Act and convicted by Courts Martial. 8. Section 71 enumerates the list of various punishment awardable by Courts Martial. Sub-clause (e) of Section 71 provides for punishment of dismissal from service for the offence committed by a person subject to this Act and convicted by Courts Martial. 8. The period of limitation for trial has been envisaged under Section 122 of the Act which provides that 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 and such period shall commence - (a) on the date of the offence ; or (b) where the commission of the offence was not known to the persons aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier, or (c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the authority competent to initiate action, whichever is earlier.. 9. Again Rule 17 of the Rules reads as under: "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 reason 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." 10. Both the Act and the Rules conjointly form a complete Code providing for investigation of offence trial by Court Martial and punishments. 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." 10. Both the Act and the Rules conjointly form a complete Code providing for investigation of offence trial by Court Martial and punishments. Chapter-VI comprising Section 34 to 70 provides for the offences which can be categorized in 3 categories namely: (i) offences committed by persons subject to the Act triable by Court Martial in respect whereof specific punishments have been provided. (ii) civil offences committed by the said persons in any place in or beyond India but deemed to be offences committed under the Act and, if charged under Section 69 of the Act, triable by Court-Martial, and (iii) offences of murder and culpable homicide not amounting to murder or rape committed by the said persons against a person not subjected to military law not triable by Court-Martial subject to few exceptions under Section 70. 11. Chapter VII comprises Section 71 to 89 and provides for punishments awardable by Court Martial. Section 71 provides for punishments which can otherwise be passed by a competent criminal Court as well as some other punishments such as under clauses (d) to (i) thereof which fall under the domain of service jurisprudence and can ordinarily be inflicted by a penalty for misconduct. A reading of chapters VI and VII shows that the Army Act also creates new offences and provides higher punishments to existing offences. Chapter X of the Act provides for Court Martial, namely, kinds of Court Martials, power to convene a Court Martial, composition of a Court Martial, powers of Court Martial, period of limitation of a Court Martial, and Chapter XI of the Act provides for procedures of a Court Martial. Chapter XII provides for confirmation and revision of Court Martial proceedings as well as of findings and sentences passed therein. 12. On the other hand, Chapter V of the Rules, ranging from Rule 22 to Rule 171 provides for investigation into the charges and detailed procedure of trial by a Court Martial. Section 1 thereof comprising Rules 22 to 36 provides for investigation/inquiry into the charge against a person accused of an offence triable under the Act. 12. On the other hand, Chapter V of the Rules, ranging from Rule 22 to Rule 171 provides for investigation into the charges and detailed procedure of trial by a Court Martial. Section 1 thereof comprising Rules 22 to 36 provides for investigation/inquiry into the charge against a person accused of an offence triable under the Act. Rule 22 provides for hearing of charge by the commanding officer against the accused who is at liberty to cross-examine any witness against him and to call any witness and make any statement in his defence. If the Commanding Officer finds that no offence has been committed, he must dismiss the charge but if he is of the opinion that the charge ought to be proceeded with, he has four options open to him - (i) to dispose of the case under Section 80. (ii) refer the case to superior military au­thority. (iii) adjourn the case for the purpose of having the evidence reduced to writ­ing (called summary of evidence), or (iv) to order trial by a Summary Court Martial, if the accused is below the rank of a warrant officer. 13. Rule 23 prescribes the procedure for taking down the Summary of Evidence which, inter alia, provides recording of evidence of each witness, opportunity to the accused to cross-examine each such witness, etc. Rule 24 provides that the summary of Evidence so recorded under Rule 23 can be considered by the Commanding Officer who again has three options to him - (a) to remand the accused for trial by a Court-Martial, or (b) to refer the case to a superior military authority, or (c) if he thinks it desirable, to rehear the case and either dismiss the charge or dispose it of summarily. 14. The above provisions show that the scheme of the Act and the Rules thereunder is such that a person subject to the Act having committed a misconduct amounting to an offence under the Act should ordinarily be subjected to investigation under the Act and to a trial by Court-Martial. 15. Challenging the impugned order of dismissal dated 4.3.98, Mr. 14. The above provisions show that the scheme of the Act and the Rules thereunder is such that a person subject to the Act having committed a misconduct amounting to an offence under the Act should ordinarily be subjected to investigation under the Act and to a trial by Court-Martial. 15. Challenging the impugned order of dismissal dated 4.3.98, Mr. Das the learned counsel appearing on behalf of the petitioner, has advanced his argument mainly on three grounds namely (i) Rule 17 of the Rule cannot be resorted by the authority without holding the Court Martial, (ii) Once the limitation period for holding the Court Martial is over, the authorities are not permitted to fall back upon the provision of Rule 17 of the Rules to dismiss a person and (iii) The impugned order passed under Rule 17 is judicially reviewable and the Court has the power to go into the reasons shown in passing the impugned order under Rule 17. Advancing his first contention, Mr. Das has contended that trial of a person committing an offence under the Act is normally to be conducted through the Court Martial and that is the normal rule as envisages under the Act which itself is a self contained comprehensive Code. The law is that the Court-Martial is to be proceeded immediately after completion of summary of evidence as envisaged under rule 24 of the rules as noticed hereinabove. Relying strongly on this provision of law under Rule 24, the learned counsel for the petitioner has argued that once Summary of Evidence is completed, the authority is duty bound to fall back upon either one of the three options left for him. The duty cast upon him is to either to remand the accused for trial by the Court-Martial or refer the case to his superior authority or re-hear the matter and either dismiss the charge or dispose of it summarily, if he thinks it desirable. When either of other two options has not been resorted to by the Commanding Officer, his last resort ought to have been to send the case for trial by the Court Martial but that was not done in the instant case. Referring to the affidavit filed on behalf of the Union of India particularly paragraphs 10 and 12 of the said response as already alluded above, Mr. Referring to the affidavit filed on behalf of the Union of India particularly paragraphs 10 and 12 of the said response as already alluded above, Mr. Das has forcefully urged that the respondents failed to give reasonable and sufficient grounds for not holding the Court-Martial within the stipulated period and subsequent administrative action taken in lieu of Court-Martial is itself is illegal and bad in law. His contention is that the Rule 17 cannot be a substitute of Court Martial which could not be proceeded admittedly due to efflux of time. According to him, Rule 17 is available to the authority only when the accused person under this Act is acquitted by the Court-Martial. Construing and interpreting the Rule 17 of the Rules, it is contended by Mr. Das that from the language of Rule 17 it can be deciphered that in case of conviction either by Criminal Court or by Court-Martial, applicability of this section does not come and only in case of acquittal or discharged by the Court-Martial, this drastic administrative action is open for the administrative authority to impose the penalty of dismissal to a personnel which is not an officer under the Act. More so, the provision of Rule 17 does not provide for any reasonable opportunity of being heard to the petitioner which is available to an officer under rule 14 of the Rules. An attempt has been made to justify his submission by referring to Rule 14 which provides that when an officer is proposed to be terminated under Section 19 on account of his misconduct, he shall be given an opportunity to show cause. It is further provided in the said Rule that holding of the Court-Martial may be dispensed with if the authority is satisfied that the trial of an 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, then the action of termination can be taken by the authority. But such protection does not or has not been envisaged in Rule 17. It simply says that a person can be dismissed or removed after informing him of the particulars of the cause of action against him and allowing him reasonable time to state in writing any reasons he might have to urge against the dismissal or removal from the service. It simply says that a person can be dismissed or removed after informing him of the particulars of the cause of action against him and allowing him reasonable time to state in writing any reasons he might have to urge against the dismissal or removal from the service. No where in the said rule there is any indication as regards the dispensing with the Court-Martial. As such, according to Mr. Das in absence of statutory provision of dispensing with the trial, the Court-Martial, being the normal practice, cannot be permitted to be replaced by any administrative action in the nature of dismissal by applying Rule 17. This Court is unhesitatingly inclined to approve fully such argument advanced on behalf of the petitioner. The Act and the rules clearly project that the holding of Court-Martial for trial of a delinquent is the normal Rule. Section 34 unambiguously and clearly ordains for conviction by Court Martial. In the case in hand, the petitioner had manifestly committed the alleged offence of showing cowardice by running away from the place of ambush attracting the offence mentioned in Section 34(c) of the Act. Hence the trial of the petitioner ought to have been held through the Court Martial which has never been disputed by the respondents. Viewed from that angle, it may be held that Rule 17 cannot be an alternative for taking an action of dismissal administratively merely on the plea that the trial by Court-Martial had already been time-barred. Further the submission that Rule 17 can be resorted to only in case of acquittal of the delinquent by a criminal Court or a Court-Martial cannot also be ignored. This Court is of the view that Rule 17 does not reflect any provision for dispensing with the Court-Martial in order to enable the authority to fall back upon such administrative action to dismiss the delinquent. 16. Arguing his second submission, Mr. This Court is of the view that Rule 17 does not reflect any provision for dispensing with the Court-Martial in order to enable the authority to fall back upon such administrative action to dismiss the delinquent. 16. Arguing his second submission, Mr. Das has contended that when the time frame for holding the Court-Martial proceeding was expired, the authority has no power to resort to Rule 17 for dismissing the petitioner administratively inasmuch as the reasons shown in the affidavit that the proposed Court Martial could not be held due to expiration of the limitation period as the Unit was shifted to Jammu & Kashmir cannot be accepted and as such, non-holding of the Court-Martial within the time frame and subsequent application of Rule 17 in order to dismiss the petitioner vitiated the impugned order of dismissal. To drive home this submission the learned counsel has relied on a precedent of the Apex Court in Union of India and others -Vs- Harjeet Singh Sandhu reported in AIR 2001 SC 1772 . The Apex Court in dealing with the scope of Section 19 of the Act read with Rule 14 of the Rules in paragraph 36 and 41 did observe as follows : "36 In illustration (i) the expiry of 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 reasons to take this view. Section 122 prescribes a period of limitation for the commencement of Court Martial proceedings by the 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 laying down a guideline for determining the culpability of delay. 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 laying 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 or more old 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 into delay and attracting bar of limitation under Section 122 can it be said that the authorities are taking advantage 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." "41. Exercise of power under Section 19 read with Rule 14 is open to judicial review on well settled parameters of administrative law governing judicial review of administrative action such as when the exercise of power is shown to have been vitiated by malafides or is found to be based wholly on extraneous and/or irrelevant grounds or is found to be a clear case of colourable exercise of/or abuse of power or what is some times called fraud on power, i.e. whether the power is exercised for achieving an oblique end. The truth or correctness of the adequacy of the material available before the authority exercising the power cannot be revalued or weighed by the Court while ' exercising power of judicial review. Even if some of the material, on which the action is taken is found to be irrelevant, the Court would still not interfere so long as there is some relevant material available on which the action can be sustained. The Court would presume the validity of the exercise of power but shall not hesitate to interfere if the invalidity or unconstitutionality is clearly demonstrated. The Court would presume the validity of the exercise of power but shall not hesitate to interfere if the invalidity or unconstitutionality is clearly demonstrated. If two views are possible, the Court shall not interfere by substituting its own satisfaction or opinion for the satisfaction or opinion of the authority exercising the power." 17. In view of the above observation, the learned counsel for the petitioner has contended that in the instant case, manifestly the delay has been caused due to the inaction of the authorities and as such, such delay has vitiated the impugned action of dismissal. Relying on the views expressed by the Apex Court in those paragraphs of Harjeet Singh Sandhu's case (supra), this Court find sufficient force in the contention made on behalf of the petitioner. The explanations shown in paragraphs 10 and 12 of the affidavit-in-opposition as noted above, cannot be accorded as satisfactory and plausible. The shifting of Unit is the normal process in the exigencies of the service of such disciplined force and such shifting of the Unit in the instant case cannot be said to be a rational and reasonable ground to allow the trial of the petitioner by Court- Martial to become time-barred. Most amazingly, there is no records to show as to when such shifting of the Unit to Jammu and Kashmir did take place. In the respondents' response it is simply stated that due to the move of the Unit of the petitioner to Jammu on its deployment in Jammu & Kashmir, the proposed action to hold the trial by Court-Martial could not be taken within the stipulated time and the offence got time barred. In the light of the observation of the Supreme Court in paragraph 36 of Harjeet Singh Sandhu's case (supra) it can be safely held that the responsibility for such delay and inaction in not holding the Court-Martial as ordained under the Act and the Rules attracting the bar of limitation under Section 122 lies on the respondents and the authorities are not permitted to take advantage of their own default or inaction. Hence such action to dismiss the petitioner involving Section 20(3) read with Rule 17 stands vitiated holding the same to be colourable or malafide exercise of power. 18. Hence such action to dismiss the petitioner involving Section 20(3) read with Rule 17 stands vitiated holding the same to be colourable or malafide exercise of power. 18. Advancing his third ground, learned counsel for the petitioner has submitted that the order passed under Rule 17 is a judicially reviewable order inasmuch as the Court can look into the reasons recorded in taking an administrative action under Rule 17 which vest a discretionary power on the authority and such exercise of discretionary power is always subjected to judicial review. Referring to the case of Union of India -Vs- Tulsiram Patel, reported in AIR 1985 SC 1416 particularly paragraph 137 of the said judgment, it is submitted that though the High Court under Article 226 of the Constitution cannot sit in judgment over the reasons given by the disciplinary authority like a Court of an Appeal, the Court can interfere if it finds that the reasons given by the disciplinary authority to the effect that it was not a reasonably practicable to hold an enquiry as envisaged under Article 311(3) of the Constitution of India, are irrelevant inasmuch as, such recording of reasons of its decision by the disciplinary authority would be an abuse of the power. This Court finds that there is enough force in the submission. There is no second opinion that the Court cannot sit over the reasons recorded by the disciplinary authority in its satisfaction as a Court of Appeal. But if the reasons shown are found to be unreasonable, unsatisfactory and violative of the statutory provisions, the Court cannot restrain itself from interfering with the same. Taking into account the reasons stated in the affidavit of the respondents, this Court is of the considered view that those reasons need intervention of this Court. 19. Supporting the impugned dismissal order, Mr. Choudhury, the learned Sr. CGSC, has strenuously argued that there is no illegality or jurisdictional error in passing the impugned order of dismissal under Section 20(3) of the Act read with Rule 17 of the Rules inasmuch as when the period for holding Court-Martial had already been expired due to the shifting of the Unit to Jammu and Kashmir, the authority had to rely upon the provisions of Rule 17 to impose the penalty of dismissal in terms of Section 20(3) of the Act. According to him, it is clearly stated in the affidavit itself that grounds for non-holding Court-Martial was only and simply due to the shifting of the Unit to Jammu & Kashmir which had caused delay in making the entire trial through Court-Martial time barred and the ground put forward on behalf of Union of India was bonafide and there was no extraneous consideration in taking such action against the petitioner by resorting to Rule 17 of the Rules. This Court cannot persuade itself to concur with the submission made in this regard by Mr. Choudhury. Reason is obvious. Save and except the affidavit-in-opposition, no record has been placed before this Court when the matter is taken up for hearing. On pointed asking for the records, Mr. Choudhury has expressed his inability to produce the same but instead, he has placed a list of dates in support of the movement of the Unit from the initial place of deployment at Mokokchung, Nagaland to Jammu & Kashmir. The Court is not satisfied with the said list of dates because the same does not indicate categorically exact and actual dates of movement of the Unit as an explanation for the delay caused to hold the trial of the petitioner by Court-Martial. That apart, any statement detailing factual situation with respective dates ought to have come through affidavit. That being the position, this Court is of the view that the respondents have failed to show genuinely and legitimately why and how the holding of Court-Martial had become time barred. It is admitted position that the authorities took more than three years from the date of occurrence i.e. 9/10.11.94 to 30.1.98 the date on which the petitioner was issued show cause notice as to why he should not be dismissed, in completing the initial inquiry as envisaged in the relevant Rules as noticed above. But from the affidavit-in-opposition especially in paragraphs 10 and 12 as already discussed there is no indication that when the trial for Court-Martial had been contemplated and on which date the Unit had been shifted to Jammu & Kashmir. 20. But from the affidavit-in-opposition especially in paragraphs 10 and 12 as already discussed there is no indication that when the trial for Court-Martial had been contemplated and on which date the Unit had been shifted to Jammu & Kashmir. 20. Upon hearing the learned counsel for the parties and after giving thoughtful consideration to the entirety of the factual situation of the case and also on perusal of the material available on record, this Court of the considered opinion that the impugned Order has been passed by the authorities by invoking Rule 17 of the Rules in colourable or malafide exercise of power and such exercise of power under Rule 17 cannot be a substantive of a Court Martial which is a normal Rule for the trial of delinquent under the Statute law enacted for special purpose to deal with the personnel under such disciplined force and as such, the impugned dismissal order needs interference of this Court under Article 226 of the Constitution. Consequently, this impugned order dated 4.3.98 is hereby set aside and quashed. 21. It is made clear that as a sequel of such setting aside of dismissal order, the petitioner be deemed to be in service and he shall be entitled to all the consequential benefits. 22. In the result this writ petition is allowed. No costs.