JUDGMENT
J.P. Singh, J.
1. This Letters Patent Appeal is directed against Writ Court Judgment dated 15-02-2006 allowing respondent Jagat Paul Singh Cheema’s SWP No. 3039/2001, quashing and setting aside Order No. 6/33/B/Ap-peal/Cantt/JPS/DEP/NC dated 22nd of November, 2001 of General Officer, Commanding-in-Chief, Northern Command and restoring Resolution dated 18-05-2001 of the Cantonment Board.
2. Facts leading to the filing of this Letters Patent Appeal may be slated thus:
Respondent, Jagat Paul Singh Cheema was a Sectional Officer with Cantonment Board, Jammu. The Board proceeded against him for his alleged misconduct in committing various acts of commission and omission. After holding an enquiry against him, he was removed from service under Rule 11(2) (vii) of the Cantonment Fund Service Rules, 1937 vide Cantonment Board’s No. Est./PF/97/919 dated 6th of September, 1997. He filed SWP No. 1305/97 when his appeal too was pending disposal before the Appellate Authority. This writ petition was, disposed of with a direction to the appellants to dispose of his appeal. The appeal of the respondent was rejected. Aggrieved by the rejection of his appeal, the respondent filed SWP No. 1960/98, which was allowed, and the Punishing Authority was directed to re-decide the matter after affording reasonable opportunity of hearing to the respondent. The respondent, accordingly, appeared before the Cantonment Board which by its majority decision decided to reinstate him in service. The President of the Board and Major Anil Negi, the Garrison Engineer who was Ex-Officio, Member of the Board, however, voted against reinstating the respondent. The Chief Executive Officer of the Board thereafter apprised the Board President to refer the matter to the General Officer Commanding-in-Chief, the Command. The matter was, accordingly, referred to GOC-in-Chief, Northern Command who on receipt of the reference issued Show Cause Notice dated 06-08-01 to the GOC-in-Chief vide his Order No. 6/33/B/Appeal/Cantt/JPS/DE/NC dated 22nd of November, 2001, revoked the decision taken by the cantonment Board in their meeting on 18th of May, 2001 and restored the original decision of the Cantonment Board dismissing the respondent from service.
3. Aggrieved by Order dated 22nd of November, 2001 of the Officer Commanding-in-Chief, the respondent filed SWP No. 3039/2001 which has been allowed by a learned Single Judge of this Court vide Judgment dated 15-02-2006.
The Writ Court while allowing writ petition SWP No. 3039/2001 held the reference made by the Cantonment Board to Officer Commanding-in-Chief invalid besides holding that the Officer Commanding-in-Chief did not possess any power to set aside the decision of the Board and all that it possessed under the Cantonments Act was the power to direct the Board to consider or reconsider the matter.
4. The Cantonment Board has filed this appeal to question the Writ Court Judgment dated 15-02-2006.
5. Mr. N.P. Kotwal, Learned Counsel for the Board submitted that the Writ Court had not gone into all the objections taken by the Cantonment Board in answer to the Writ Petition and had arrived at a finding which was unsustainable. Learned Counsel urged that the finding of the learned Single Judge that the Officer Commanding-in-Chief did not possess jurisdiction to set aside the decision of the Board was erroneous as this view of the learned Single Judge was not countenanced by the provisions of the Cantonments Act, 1924. He refers to Section 52(2) of the Act to support his submission. According to the learned Counsel, the reference made by General Commanding-in-Chief was valid in law as the same was in accordance with Section 51 of the Cantonments Act.
6. Mr. M.K. Bhardwaj, Learned Senior Counsel appearing for the respondent submitted that the learned Single Judge’s interpretation of the provisions of the Cantonments Act, 1924 was correct in law and that no interference was warranted in the impugned judgment. While supporting the view taken by the learned Single Judge that the reference was bad, learned Counsel referred to the provisions of Section 51 of the Act to urge that unless the President of the Cantonment Board had recorded in the minutes of the meeting that the decision taken by the Board by majority had been considered by him to be prejudicial to the health, welfare, discipline or security of the forces, he had no jurisdiction to bye-pass the majority decision and refer the matter to the GOC-in-Chief, Northern Command for exercising power under Section 52 of the Cantonments Act. Learned Counsel urges that reference being unauthorized, the consequential action of the GOC-in-Chief in up-setting the Board decision would be without jurisdiction.
7. We have considered the submissions of learned Counsel for the parties and perused the provisions of the Cantonments Act. Before dealing with the issues raised by the learned Counsel for the parties, reference to the provisions of Sections 43, 51 and 52 of the Cantonments Act, 1924 may be necessary. These Sections read thus:
Section 43: Method of deciding questions–(1) All questions coming before a meeting shall be decided by the majority of the votes of the members present and voting.
(2) In the case of an equality of votes, the [person presiding over the meeting] shall have a second or casting vote.
(3) The dissent of any member from any decision of the Board shall, if the member so requests, be entered in the minutes, together with a short statement of the grounds for such dissent.
51. Power to override decision of Board-(1) If the President dissents from any decision of the Board, which he considers prejudicial to [the health, welfare, discipline or security of the Forces] in the cantonment, he may, for reasons to be recorded in the minutes, by order in writing, direct the suspension of action thereon for any period not exceeding one month and, if he does so, shall forthwith refer the matter to the Officer Commanding-in-Chief, the Command, [the reference being made, save in cases where the Officer Commanding the [Area] is himself the Officer Commanding-in-chief, the Command, for the purposes of this Act], through the Officer Commanding the [Area], who may make such recommendations thereon as he thinks fit.
(2) If the District Magistrate considers any decision of a [Board] to be prejudicial to the public health, safety or convenience, he may, after giving notice in writing of his intention to the [Board], refer the matter to the [Central Government]; and, pending the disposal of the reference to the [Central Government], no action shall be taken on the decision.
(3) If any Magistrate who is a member of a Board, being present at a meeting, dissents from any decision which he considers prejudicial to the public health, safety or convenience, he may, for reasons to be recorded in the minutes and after giving notice in writing of his intention to the President, report the matter to the District Magistrate, and the President shall, on receipt of such notice, direct the suspension of action on the decision for a period sufficient to allow of a communication being made to the District Magistrate and of his taking proceedings as provided by Sub-section (2).
52. Power of Officer Commanding-in-chief, the Command, on reference under Section 51 or otherwise-(1) The Officer Commanding-in-chief, the Command, may at any time-
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(a) direct that any matter or any specific proposal other an one which has been referred to the [Central Government] under Sub-section (2) of Section 51 be considered or reconsidered by the [Board]; or
(b) direct the suspension, for such period as may be stated in the order, of action on any decision of a [Board], other than a decision which has been referred to him under Sub-section (1) of Section 51, and thereafter cancel the suspension, or [after giving the Board a reasonable opportunity of showing cause why such direction should not be made], direct that the decision shall not be carried into effect or that it shall be carried into effect with such modifications as he may specify.
(2) When any decision of a Board has been referred to him under Sub-section (1) of Section 5, the Officer Commanding-in-chief, the Command, may, by order in writing–
(a) cancel the order given by the President directing the suspension of action; or
(b) extend the duration of the order for such period as he thinks fit; or
(c) after giving the Board a reasonable opportunity of showing cause why such direction should not be made, direct that the decision shall not be carried into effect or that it shall be carried into effect by the Board with such modifications as he may specify.
8. Perusal of Section 52(2) suggests that the Officer Commanding-in-chief, the Command, has three options to deal with a Reference under Section 51 of the Cantonment Act viz. (i) to cancel the order given by the President directing the suspension of the action; or (ii) to extend the duration of the Order for such period as he thinks fit; or (iii) to direct that the decision shall not be carried into effect or that it shall be carried into effect by the Board with such modifications as he may satisfy (sic).
The power provided under the third option available to the Officer Commanding-in-Chief, the Command, may be exercised by him only after providing the Cantonment Board a reasonable opportunity of showing cause as to why such directions be not made.
The third option, therefore, in our view, provides sufficient power to the Commanding-in-chief, the Command to annul or modify the decision of the Board provided, however, that before doing that the GOC-in-Chief had heard the Board by issuing it a Show Cause Notice.
9. We, therefore, do not find the view taken by learned Single Judge that the Officer Commanding-in-chief, does not possess power to annul the decision of the Board and all that it possessed was the power only to direct the Cantonment Board to consider or re-consider the matter, sustainable. Learned Single Judge had not taken into consideration the provisions of Section 52(2)(c) of the Cantonments Act while returning the finding which is impugned in this appeal.
10. We, therefore, do not approve the view taken by the Learned Single Judge that the Officer Commanding-in-Chief does not possess power to annul the decision of the Cantonment Board, and according set-it-aside.
11. This takes us to the next question raised before us by learned Counsel for the parties as to whether or not the reference made by the Board was sustainable. Section 43 of the Cantonments Act, provides the method of deciding questions by the Board at its meetings. In terms of the Section, all questions coming before a meeting have to be decided by the majority of the Members of the Board present and voting. In terms of Section 41, the decision of the majority was, therefore, to be the decision of the Cantonment Board. This majority decision of the Board, in terms of Section 51(1) of the Act is subject to the power of the President of Board who, in case he dissents from the decision of the Board and considers that the decision was prejudicial to the health, welfare, discipline or security of the forces, he may for the reasons which he has to record in the minutes, may by order in writing direct the suspension of the action and in case he does so to refer the matter to Officer Commanding the Area. The power and authority conferred on the President under Section 51 to make a reference against the decision of the Board is, however, not absolute. This power may be exercised by the President only if he was satisfied that the decision taken by the Board was prejudicial to the health, welfare, discipline and security of the forces. Such satisfaction is required to be recorded by him in the minutes of the meeting.
12. To deal with the submission of learned Counsel for the respondent, Mr. Bhardwaj that the President of the Cantonment Board had not complied with the statutory requirement of Section 51 before making reference to the Officer Commanding-in-Chief, we had called upon appellant’s Counsel to produce the records. The records of the minutes of the meeting were produced before us.
13. We have produced the minutes of the meeting of the Board. The original records do not improve upon the documents which have already been placed on records by the parties including the attested copy of the minutes of the meeting of the Board.
14. The President of the Cantonment Board, has not recorded his satisfaction as to whether or not the decision of the Cantonment Board was prejudicial to the health, welfare, discipline and security of the forces. He on the other hand, had made the reference to the Officer Commanding-in-chief merely on the asking of the Chief Executive Officer that the matter was required to be sent to the Appellate Authority i.e. the Officer Commanding-in-chief of the Command. The records further bear testimony to the fact that the President of the Cantonment Board had not considered the decision of the Board to be prejudicial to the health, welfare, discipline or security of the forces.
Omission of the President of the Cantonment Board to record his satisfaction as to whether or not the decision of the Board was prejudicial to the health, welfare, discipline or security of the forces, would not entitle him to make reference to the Officer Commanding-in-Chief.
15. We thus find the reference of the President incompetent, besides being invalid. Reference being invalid, the Officer Commanding-in-chief would also lack jurisdiction and authority to annul the decision of the Board, for the power of the Officer Commanding-in-chief to annul the decision of the Board presupposes a valid reference to him under Section 51(1) of the Cantonments Act, 1924.
16. For all what has been said above, we uphold the view taken by the learned Single Judge that the reference was incompetent and consequential order of the Officer Commanding-in-chief invalid barring his view that the Officer Commanding-in-chief does not possess jurisdiction to annul the decision of the Board under the Cantonment Act, 1924. The judgment of learned Single Judge, upholding the resolution of the Cantonment Board and directing reinstatement of the respondent in service, is accordingly upheld.
17. In view of the reference having been held to be invalid, there is no need to go into other points urged by Mr. Kotwal, which according to him had not been considered by the learned Single Judge.
18. For all what has been said above, we do not find any merit in this appeal, which is accordingly dismissed.