HIGH COURT OFJAMMUAND KASHMIR AT JAMMU. LPASW No. 627 of 1999 Jagir Singh Petitioner Union of India and Ors Respondents ! Mr.D.S.Saini, Advocate for Appellant. ^ Mr.K.L.Sharma, Advocate for Central Government Counsel. Coram : Hon'ble Mr.Justice B.A.Khan, Chief Justice (A) Hon'ble Mr.Justice J.P.Singh Dated : 06/12/2005 : JUDGMENT :
Khan, CJ(A), Oral:
This appeal is directed against Writ Court judgment dated 22.10.1998 dismissing
appellants writ petition, SWP No. 856/1986.
Facts giving rise to this appeal may be summarized, thus. The appellant is working as
Carpenter in the Army. During the interrogation of one Gnr Aya Singh, it was
revealed that the appellant was involved in espionage. He was thus detained. His
army custody was held justified in a Habeas Corpus petition filed by the appellant for
his release from custody. The Commanding Officer of the appellant recommended his
termination from service in view of the serious allegations of espionage against him.
The matter was processed in various channels/commands. All the channels, justified
the action proposed by the Commanding Officer. Recommendations were made for
termination of the appellant without giving any show cause notice to him.
The Chief of the Army Staff directed his termination of service under Section 20 of
the Army Act read with Army Rule 17. The termination order was communicated
vide No.8023956/JS/125/A dated 8.8.1986 certifying that it was inexpedient to serve
a show cause notice on the appellant.
The appellant challenged communication dated 8.8.1986 in SWP No.856/1986.
Termination was called in question as violative of Army Act and Army Rules.
The Writ Court on consideration of the matter and taking in regard the provisions of
Section 20(1) of the Army Act and Rule 17 of the Army Rules, held as follows: –
“This order was passed on the recommendations of GOC-in-C Northern
Command which was based upon the result of investigation on the charge of
espionage. The opinion of the Chief of Army Staff thus cannot be said to be
vitiated by extraneous or irrelevant considerations.”
The Writ Court accordingly dismissed appellant’s writ petition, which has given rise
to this appeal.
Sh. D.S. Saini, learned counsel appearing for appellant, submits that there being no
proof against the appellant having committed any act of espionage and there being no
material before the Military Authorities on the basis of which his services could be
terminated in the absence of a show cause notice in terms of Rule 17 of the Army
Rules, the termination of services of the appellant is illegal. Reliance is placed by the
learned counsel on a Division Bench judgment of this Court in “Janak Raj v. Union of
India“, 2003 KLJ 199, which suggests that there had to be some additional material
before the Army Chief to order termination of service without issuing show cause
notice as contemplated by Section 20 of the Army Act and Rule 17 of the Army
Rules. Section 20 of the Army Act and Rule 17 of the Army Rules provide: –
“20. Dismissal, removal or reduction by the Chief of Army Staff and
by other officers. (1) The Chief of the Army Staff may dismiss or
remove from service any person subject to this Act, other than an officer.”
Rule 17 which is crucial for the purpose which reads as: –
“17. Dismissal or removal by Chief of the Army Staff and by other
officer. 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) (3) of section 20, unless he has been informed of the
particulars of the cause of action against him and allowed reasonable time
to state in writing any reasons he may have to urge against his dismissal or
removal from the service;
Provided that if in the opinion of the officer competent to order
the dismissal or removal, it is not expedient or reasonably practicable to
comply with the provisions of this rule, he may after certifying to that
effect, order the dismissal or removal without complying with the
procedure set out in this rule. All cases of dismissal or removal under this
rule where the prescribed procedure has not been complied with shall be
reported to the Central Government.”
Although first part of Rule 17 of the Army Rules, provides that no person shall be
dismissed or removed under Section 20 of the Army Act, unless he is informed of
the particulars of the cause of action against him and allowed reasonable time to
state in writing any reasons he may have to urge against his dismissal or removal.
This Rule is, however, subject to the proviso appended to the Rule which provides
that if the officer competent to order dismissal or removal, forms an opinion that it is
not expedient or reasonably practicable to comply with the provisions of this Rule, he
may after certifying to that effect, order dismissal or removal without complying with
the procedure set out in the Rule.
We have examined the issue raised by the learned counsel for the appellant, the
judgment of the Division Bench as also the records produced before us by learned
counsel for the respondent.
The Army Chief has not dispensed with the procedure contained in Rule 17 of the
Army Rules, just for nothing. There has been an investigation conducted against the
appellant in which he was found to have crossed over the Border and received an
amount of Rs. 1,000/- (Rupees one thousand) for passing on some military
information to the enemy. The detention of the appellant, in army custody, has been
held valid by this Court, while deciding Habeas Corpus petition.
We further notice from the records that Commanding Officer of the appellant had
recommended his termination of service in the interest of National Security. This
recommendation of the learned Commanding Officer has been examined at the
requisite level. All the high ranking Officers of the Army have recommended
termination of service of appellant under Rule 17 of the Army Rules.
Recommendations for dispensing with the issuance of notice too have been made by
the officers.
The records bear testimony to the effect that the Chief of Army Staff has certified to
the effect that it is inexpedient to issue notice to the appellant before terminating his
services. This finding of the Chief of the Army Staff, in our opinion, is not justiciable
in view of the available material on the records.
In our opinion, there is sufficient material existing both for formation of opinion and
also for dispensing with the procedure contained in Rule 17 of the Army Rules. We
have examined the judgment in Janak Raj’s case and find that the Division Bench
seized of the case had not found even a mention of the fact in the order impugned in
that case that holding of inquiry is being dispensed with in view of the security
reasons.
The order impugned in Janak Raj’s case, has been quoted by the Division Bench to
hold that the order nowhere makes the mention of the fact that action is required to be
taken under the proviso of Rule 17 of the Army Rules because it is not expedient or
reasonably practicable to comply with the provisions of this Rule.
We, therefore, find that the judgment cited by the learned counsel appearing for the
appellant is distinguishable on facts. The facts of the present case are entirely
different than the one found in Janak Raj’s case. The judgment cited by the learned
counsel appearing for the appellant, therefore, does not advance the case of the
appellant.
For all this, we find no merit in this appeal, which is, accordingly, dismissed.