PETITIONER: UNION OF INDIA Vs. RESPONDENT: S. K. RAO DATE OF JUDGMENT22/11/1971 BENCH: SIKRI, S.M. (CJ) BENCH: SIKRI, S.M. (CJ) SHELAT, J.M. DUA, I.D. MITTER, G.K. CITATION: 1972 AIR 1137 1972 SCR (2) 447 1972 SCC (1) 144 ACT: Army Act, 1950, ss. 19, 45 and 191 (2) (a), and Army Rules. 1954, r. 14-Whether r. 14, ultra vires. HEADNOTE: The respondent, a commissioned officer in the Indian Army, was found to have committed acts of gross misconduct by a Court of Inquiry. The Chief of the Army Staff was of the opinion that his trial by a General Court Martial was inexpedient, and the respondent was removed from service after following the procedure under r. 14 of the Army Rules, 1954. On the question whether r. 14, which gives power to the Central Government to remove an officer without being tried and convicted by Court Martial was in derogation of s. 45, Army Act, 1950, which specifically provides for conviction by court martial and punishment for unbecoming conduct, HELD : The rule is not ultra vires. [451 D] (1) Section 19 of the Act provides that subject to the provisions of the Act and the rules made thereunder the Central Government may remove from service, any person subject to the Act. Therefore, the section itself suggests that there should be rules regarding removal from service, and s. 191 (2) (a) of the Act specifically gives power to make a rule providing for the removal from the service of persons subject to the Act. [450 H; 451 A-B] (2) Although s. 19 uses the words "subject to the provisions of this Act", the section is not subject to s. 45. The power under s. 19 is independent of the power under s. 45, because, while s. 19 speaks of removal of a person, s. 45 provides that on conviction by Court Martial an officer is liable to be cashiered or to suffer such less punishment as is in the Act mentioned. [451 B-D] JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1653 of 1967.
Appeal from the judgment and order dated February 23, 1967
Of the Delhi High Court in C.W. No. 403-D of 1959.
B. Sen, P. L. Juneja, R. N. Sachthey and S. P. Nayer, for
the appellant.
Sardar Bahadur and Yougindra Khushalani, for the respondent.
The Judgment of the Court was delivered by Sikri, C.J. The
judgment, reproduced below, was drafted by the late Mr.
Justice Roy and we all had subscribed to it. We beard the
matter formally again on November 19, 1971. We adopt the
judgment as our own.
448
This is an appeal by the Union of India by way of special
leave.
On April 9, 1959, the Central Government directed removal
from service of Capt. S. K. Rao under r. 14 of the Army
Rules, 1954. The facts leading to his removal are as
follows :
Rao was a commissioned officer in the Indian Army and was
attached to the Army Ordnance Corps Training Centre,
Secundrabad. It was alleged that on April 4, 1958, he
committed acts of .gross misconduct. The allegations were
as follows :
“Knowing Kumari Prakash as the daughter of a
brother Officer, Rao assisted her in going
away from her parents protection and planning
to run away with a sepoy. “
“Rao, by threatening to cause harm to Kumari
Prakash’s parents, intimidated her t
o visit
his house where he took her in his scooter to
the unit lines of 51 1 1 Gurkha Rifles where
he arranged her meeting with a sepoy of the
unit.”
“He (i.e. Rao) acquiesced in the girl being
met by the sepoy later at a tea shop nearby
where she received a present of a sari and
blouse from the sepoy in his presence.”
“Rao thus actively abetted in the attempt of
brother officer’s daughter elope with a
sepoy.”
“Rao then took Kumari Prakash to a hotel
“Saidya Lodge’ in Hyderabad and got a room to
themselves by impersonating and giving a false
identity as “Mr. & Mrs. Prakash”.
An inquiry into the matter was made by Court of Inquiry.
The Chief of the Army Staff, after going through the
proceedings of the Court of Inquiry, considered that the
conduct of Capt. Rao was most unbecoming of an officer. As
he was of opinion that trial of the officer by a General
Court Martial was inexpedient, he ordered administrative
action to be taken under r. 14 of the Army Rules, 1954. By
memorandum dated September 4, 1958, Rao was called upon to
submit his explanation by way of defence regarding the
allegations against him. The explanation of Rao was placed
before the Central Government. The Central Government found
it to be unsatisfactory, and on April 9, 1959, an order was
passed removing the respondent from service.
Capt. Rao thereupon filed a petition under Art. 226 of the
Constitution for quashing the order of removal from service
on the
449
ground, inter alia, that r. 14 of the Army Rules, 1954, was
ultra vires the Army Act, 1950, and that the action taken
thereunder was without any authority.
In the petition Rao gave a somewhat different version of
what had happened. According to him he did not assist
Kumari Prakash to go away from her parents’ house.
At the hearing of the petition the only point which was
urged was the validity of r. 14 of the Army Rules, 1954. If
this rule was intra vires the Army Act, Rao has no case.
The Army Rules, 1954, including r. 14, were framed in exer-
cise of the powers conferred by s. 191 of the Army Act,
1950. Rule 14 of the Army Rules, 1954, is as follows:
“(1) When after considering the reports on an
officer’s misconduct, the Central Gove
rnment is
satisfied or the C-in-C is of the opinion,
that the trial of the officer by a court-
martial is inexpedient or impracticable but
considers the further retention of the said
officer in the service as undesirable, the C-
in-C shall communicate the view of the Central
Government or his views, as the case may be,
to the officer together with all reports
adverse to him and he shall be called upon to
submit his explanation and defence.
(2) In the event of the explanation of the
officer being considered unsatisfactory by the
“C-in-C, or when so directed by the Central
Government, the case shall be submitted to the
Central Government with the officer’s defence
and the recommendation of the C-in-C as to
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.
(3) The Central Government, after due
consideration of the reports, the officer’s
defence, if any, and the recommendation of the
C-in-C, 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 retired from or gazetted out of
the service on pension or gratuity, if any
admissible to him.”
Under the aforesaid r. 14, action can be taken for
misconduct against an officer whose further retention in
service is not considered desirable. without the officer
being tried by a court-martial.
450
Before removal he must, under the rule, be asked to submit
his explanation and defence. If the explanation is found to
be unsatisfactory, the Central Government has been given the
power to dismiss or remove the officer.
Rules are framed under S. 191 of the Army Act. Sub-section
(1) of S. 191 gives power to the Central Government to make
rules for the purpose of carrying into effect the provisions
of the Act. Sub-section 2(a) provides :
“Without prejudice to the generality of the
power conferred by sub-section (1), the rules
made thereunder may provide for–
(a) the removal, retirement, release or
discharge from the service of persons subject
to this Act.”
Sections 18 & 19 which appear in Ch. IV of
the Army Act dealing with “Conditions of
Service” provide as follows :
S.18–“Every person subject to this Act shall
hold office during the pleasure of the
President.”
s. 19–“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.”
Offenses under the Army Act have been dealt
with in ss. 34 to 70 in Ch. VI, of which S.
45 is as follows :-
S. 45-“Any officer, junior commissioned
officer or warrant officer who behaves in a
manner unbecoming his position and the
character expected of him shall, on conviction
by court-martial, if he is an officer, be
liable to be cashiered or to suffer such less
punishment as is in this Act mentioned; and,
if he is a junior commissioned officer or a
warrant officer, be liable to be dismissed or
to suffer such less punishment as is in this
Act mentioned,”
It was argued by counsel for the respondent Rao that the
Army Act contained specific provisions for punishment for
unbecoming conduct, viz. s. 45. To give power to the
Central Government to remove an officer without being tried
and convicted by court-martial was in derogation of S. 45 of
the Army Act. Rule 14, therefore, was ultra vires the Army
Act. This argument is not correct.
Section 19 itself suggests that there should be rules, and
subject to the provisions of the Act and such rules, the
Central Government may dismiss or remove from the service
any person
451
subject to the Army Act. Section 191 (2) (a) specifically
gives. power to make a rule providing for the removal from
the service of persons subject to the Act. It follows that
there may be a valid rule where under, subject to the other
provisions of the Act, the Central Government may remove a
person from the service. Rule 14 is such a rule : it is,
therefore, not ultra vires.
It was argued that the words “subject to the provisions of
this Act” occurring in s. 19 makes s. 19 subject to s. 45,
and the Central Government has thus no power to remove a
person from the service in derogation of the provisions of
s. 45. But the power under s. 19 is an independent power.
Although s. 19 uses the words “subject to the provisions of
this Act”, it speaks of removal of a person from the
service. Section 45 provides that on conviction by court-
martial an officer is liable to be cashiered or to suffer
such less punishment as is in this Act mentioned. For
removal from service under s. 19 of the Army Act read with
r. 14 of the Army Rules, 1954, a court-martial is not
necessary. The two sections 19 and 45 of the Act are,
therefore, mutually exclusive.
The result is that r. 14 of the Army Rules, 1954, is not
ultra vires the Army Act.
The appeal is, therefore, allowed; but in the circumstances
of the case without any order as to costs. The case will
now go back to the High Court for disposal on merits on the
other questions raised by the respondent herein in the High
Court.
V.P.S. Appeal allowed.
452