JUDGMENT O.P. Jain, J.
1. The petitioner, Captain Harjeet Singh Sandhu, has filed this writ petition under Article 226 of the Constitution of India with a prayer for issuing a writ in the nature of certiorari and quashing the order dated 2nd January, 1984 by which his services has been terminated. The order is Annexure-VIII to the petition.
2. The brief facts of the case are that in the night intervening 27th and 28th March, 1978, the petitioner along with three other Officers interrogated One Bhagwan Dass, who was also a defence employee, in connection with an incident of theft During the course of the interrogation the petitioner and his other associates used third degree methods in order to extract a confession. As a result of the force used, Bhagwan Dass died. The petitioner along with three other Officers were tried by General Court Martial (G.C.M,) and verdict of guilty was given on 22nd December, 1978 vide Annexure-l The petitioner was awarded the sentence to forfeiture of three years service for the purpose of promotion and was severely reprimanded. The Convening Authority found the punishment inadequate and ordered the revision of the sentence awarded to the petitioner. This order is Annexure-II. In pursuance of the order Annexure-II the G.C.M. re-assembled and by order dated 10th May, 1979 increased the sentence to forfeiture of three years of service far the purpose of promotion, for the purpose of increased pay and for the purpose of pension. The order of enhanced punishment is Annexure-VIII.
3. On 24th September. 1979 Chief of the Army Staff passed an order Annexure-IV annuling the G. C. M. proceedings under Section 165 of the Army Act (hereinafter called the Act) on the ground that the proceedings were "unjust". On 20th December, 1979 the petitioner received a show cause notice under Section 19 of the Act read with Rule 14 of the Rules framed under the Army Act, calling upon him to show cause as to why his services be not terminated. The notice is Annexure-V and was replied by the petitioner vide Annexure-VI. After taking legal advice notice Annexure-V was cancelled but a fresh notice was served on the petitioner on 16th July, 1982 which is Annexure-VII to the petition. The petitioner submitted reply Annexure-VII-A and on 2nd January, 1984 order Annexure-VIII dated 2nd January, 1984 was served on the petitioner by which his services were terminated. The petitioner has therefore tiled the present writ petition for quashing order Annexure-VIII.
4. We have heard Sri D.P. Singh, learned counsel for the petitioner and Sri Shishir Kumar, learned counsel representing the respondents and have gone through the record.
5. It may be mentioned at the out set that the notice of termination of service Annexure-VIII was served en the petitioner at Babina, District Jhansi Uttar Pradesh and this avernment in para 23 of the petition is not controverted in the counter affidavit Therefore this Court has the territorial jurisdiction to entertain the petition.
6. The only contention on behalf of the petitioner is that under Section 122 of the Act the period of limitation prescribed for convening Court Martial is three years and by issuing notice Annexure-VII dated 16th July, 1982 the respondents have circumvented the previsions of Section 122 of the Act. It is pointed out that the incident took place in the night intervening 27/28th March, 1978 and therefore, the G.C.M. could not have been convened after 28th March, 1981 and what could not be done directly, could not have been done invoking Section 19 read with Rule 14 Sub-clause (2) of the Rules.
7. In support of this contention the learned counsel for the petitioner has cited the judgment of the Apex Court in the case of Major Radha Krishan v. Union of India and Ors., 1996 FLR 1430 (Judgment Today 1996 (3) Supreme Court 650) which fully supports the contention. Under Rule 14 (2) action can be taken for the termination of the services of an Officer when 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. It was held in the above case that power under Rule 14 of the Army rules could not be exercised in a manner which would get over the bar of limitation laiddown in the Act.
8. It may be mentioned that in the cited case the notice itself recited that the trial is impracticable having become time barred. In the case before us it is not disputed that Rule 14 (2) was resorted to because by the time the second notice was issued the trial by Court Martial had become barred by limitation. In paragraph 31 of the counter affidavit it is clearly admitted that a re-trial under the Army Act was barred by Section 122 of the Army Act and it was inexpedient to hold such a trial. Therefore there is no dispute about the fact that the Court Martial was found to inexpedient or impracticable because the period of three years prescribed by under Section 122 of the Act had already expired.
9. Learned counsel for the respondent has tried to support the action taken by the respondents on the ground that the first show cause notice Annexure-V was issued on 20th December. 1979 which was within three years of the incident. According to the learned counsel for the respondents the second notice Annexure-VII dated 16th July, 1982 was only a continuation of the earlier notice.
10. This contention has no force because the second show cause notice Annexure-VII dated 16th July, 1982 clearly mentions in paragraph 4 that the show cause notice dated 20th December. 1979 earlier served is hereby cancelled. The crucial date is therefore 16th July, 1982 and by that time the period of three years prescribed by Section 122 of the Act had elapsed.
11. Learned counsel for the respondents has cited Chief of the Army Staff and Ors. v. Major Dharam Pal Kukrety, AIR 1985 SC 703 but this authority is of no help to the respondents because the question of limitation did not arise in the cited case. In Kukrety's case the incident happened on 6th November. 1975 and the notice under Rule 14 was issued on 12th November, 1976. Therefore in Kukrety's case the notice having been issued within a period of three years, the question of limitation did not arise for consideration.
12. In view of the above, it must be held that issuing of notice Annexure-VII dated 16th July, 1982 after three years of the incident was bad in law and therefore the order of dismissal Annexure-VIII dated 2nd January, 1984 has to be quashed.
13. As a result, this writ petition is allowed and impugned order Annexure-VIII dated 2nd January, 1984 terminating the petitioner services is hereby quashed. The petitioner shall be entitled to all the consequential benefits. There is no order as to costs.