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CASE NO.: Appeal (civil)  2951 of 2007

PETITIONER: Ram Sunder Ram

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 11/07/2007

BENCH: Tarun Chatterjee & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T [Arising out of S. L. P. (C) No.5536 of 2005]

LOKESHWAR SINGH PANTA, J.

1.      Special leave granted. 2.      This appeal, by special leave, has been preferred by Ram  Sunder Ram (appellant herein) against the judgment and order  dated 10.12.2004 of a Division Bench of the High Court of  Calcutta by which M.A.T. No.2856 of 1997 filed by the Union  of India and Others (respondents herein) was allowed and the  judgment and order dated 07.08.1997 of a learned Single  Judge, allowing the Writ Petition (C.O. No.12843 (W) No.1991)  filed by the appellant, was set aside. 3.      The appellant filed writ petition in the High Court of  Calcutta for setting aside the order of discharge from the Army  Service passed by the Commander, 33 Corps Artillery Brigade  (respondent No.5 in the present appeal) who was competent  authority under Rule 13 of the Army Rules 1954.  4.      The learned Single Judge allowed the writ petition inter  alia on the ground that the principles of natural justice have  not been followed by the competent authority while passing  the order of discharge.   5.      The respondents then preferred writ appeal before the  Division Bench of the High Court, which allowed the same by  the judgment and order impugned by the appellant in this  appeal before us. 6.      On 26.09.1980, the appellant was appointed as Cleaner  in Class\026IV with the Indian Armed Forces.  On 23.09.1983, he  became LDC in the Army establishment.  On 03.07.1988, the  appellant was deputed to perform the duties of Petrol, Oil and  Lubricants (POL) Clerk.  On 09.08.1988, the competent  authority ordered convening of the court of inquiry based upon  certain anonymous complaints, on the following issues: \023A. Investigating the circumstances, under  which quantity 70 KL of 70 MT Gas issued to  5033 ASC Battalion against IOC installation,  New Jalpaiguri, has not been received by the  Unit and pinpoints the responsibility for the  loss.

B.  To scrutinize the records for the last two  years and also to examine the procedure  being followed for receipt, demand, collection  and accounting the issue of POL in the  operation of Kerbside Pump.

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C.       To indicate loopholes and suggest remedy  and measures.

D.       To indicate losses other than those  mentioned in the order.\024   

7.       The court of inquiry deliberations was held by the  authority between the period commencing from 16.08.1988  and 12.12.1988.  On 06.10.1988, the appellant was detained  for interrogation under custody.  During interrogation, the  appellant made confessional statement of receiving illegal  money of Rs. 12,500/- from one Shri Rajendra Singh, owner of  Pansari Shop, for sale of 87 MT Gas through BPLs and  Kerbside Pump, kept by Dvr. Gde 11 Ramakant Prasad of \021A\022  Coy 5033 ASC Bn (MT).  The appellant later on deposited Rs.  5,200/- out of Rs.12,500/-.   8.      The court of inquiry was completed and on 24.08.1988  the enquiry report was submitted to the competent authority.   9.      The appellant, having been found guilty of prejudicial  act to good order and military discipline, was charged under  Section 63 of the Army Act, 1950 [for short \021the Army Act\022].   On 08.08.1989, Major H. S. Dhillon, Presiding Officer,  Summary of Evidence, sent a letter to the appellant and LDC  J.P. Singh directing them to be present on 9th August, 1989 at  1000 Hrs. for recording summary evidence.  The evidence was  collected by the court of inquiry against the appellant and  some other Army Officials.  On 03.07.1991, the appellant was  informed by respondent No. 5 that while working with \021A\022 Coy  5033 ASC Bn (MT), the appellant received Rs. 12,500/- as  illegal money from Shri Rajendra Singh, owner of Pansari shop  and converted the said amount to self use, well knowing it to  be from sale of 87 MT Gas through BPLs and Kerbside Pump,  kept by Dvr. Gde 11 Ramakant Prasad of \021A\022 Coy 5033 ASC Bn  (MT).   He was, therefore, asked to show cause within 15 days  of the receipt of the notice as to why his services should not be  terminated for the lapse committed by him.  After the  appellant showed cause on 13.08.1991 which was found  unsatisfactory, the respondent No.5 discharged him from  service on 09.09.1991.   10.     The appellant challenged the order of discharge from  service in the High Court of Calcutta.  The learned Single  Judge, as stated above, set aside the said order of discharge  inter alia on the ground of violation of the principles of natural  justice and directed the respondents to reinstate the appellant  with 25% of his arrear salaries as per the last pay drawn.   Further, it was observed that the Army Authority was not  prevented from taking appropriate steps against the appellant  in accordance with law, if they so advised and technicalities  alone ought not to stand in the way in that regard.  In writ  appeal, the order of the learned Single Judge came to be set  aside by a Division Bench of the High Court and the Writ  Petition filed by the appellant was accordingly dismissed. 11.     Hence, this appeal by the appellant. 12.     Capt. K. S. Bhati, learned counsel appearing for the  appellant, argued as a question of law that the order of  removing the appellant from service was vitiated being  contrary to Section 63 of the Army Act, which provides for  imposing any kind of punishment only after conviction by  court-martial.  He contended that the proceedings of the court  of inquiry have been used as evidence against the appellant  contrary to Rule 12 of the Army Rules, 1954 [hereinafter  referred to as \021the Army Rules\022] as no discharge certificate  required to be furnished under the provisions of Section 23 of  the Army Act was prepared and sent to the appellant.

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13.     It was argued for the appellant that the court of  inquiry, acting under the Army Rules, collects evidence during  fact finding proceedings and no one is accused or charged of  any offence in that proceedings.  It was argued that the  evidence collected during court of inquiry is not admissible  against the appellant in view of Section 63 of the Army Act  under which the case should have been remanded for trial by  court-martial as was done in the case of other army personnel,  who were dealt with by court-martial and they were retained in  service by imposing minor punishment upon them whereas  the appellant was discharged from service, as a result thereof  his entire past service has been forfeited and he has been  deprived of the benefit of pension as also future employment  in any other civil service.  The learned counsel contended that  the appellant was administratively discharged from service  contrary to the provisions of Section 63 and there is no  provision to impose major penalty in the form of termination of  service of the appellant by the respondent No.5 under the  guise of discharge from service in exercise of power under  Section 20 of the Army Act. 14.     Mr. Vikas Singh, learned ASG appearing for the  respondents, on the other hand, made submissions to support  the judgment of the Division Bench of the High Court.  He  contended that the well reasoned judgment of the Division  Bench does not suffer from any infirmity or perversity,  warranting interference by this Court.  He contended that the  authority empowered under Rule 13 of the Army Rules has  passed the order of discharge simpliciter under Section 22 of  the Army Act and Section 20 appears to have been wrongly  mentioned by the authority in the order of discharge.     15.     We have given our thoughtful and anxious  consideration to the respective contentions of the parties and  have perused the entire material on record.   16.     It is an admitted case of the parties that the appellant  is governed by the provisions of the Army Act and the Army  Rules framed thereunder.  The scheme of the Army Act is fairly  clear.  Chapter IV of the Act deals with Conditions of Service of  persons subject to the Army Act.   17.     Section 20 of the Act deals with dismissal, removal or  reduction by the Chief of the Army Staff and by other officers.   Section 191 of the Act empowers the Central Government to  make rules for the purpose of carrying into effect the  provisions of the Army Act.   In exercise of the said power, the  Central Government has framed the rules called \023The Army  Rules, 1954\024.  Chapter III of the Army Rules deals with  dismissal, discharge, etc.   Chapter V of the Army Rules deals  with investigation of charges and trial by court-martial.  Rule  13 tabulates the category of the Army official, causes/grounds  of discharge, the authorities competent to pass the order of  discharge and the manner of discharge. 18.      It is not in dispute that the appellant has been  discharged under Rule 13 column 2 (v) of the Table below sub- rule (3) on the grounds of \023all other classes of discharge\024 by  Brigade/Sub-Area Commander who, admittedly, was  competent authority to authorize discharge of the appellant.   Column 4 of the Table provides manner of discharge, which  reads as under:  \023The Brigade or Sub-Area Commander  before ordering the discharge shall, if the  circumstances of the case permit give to  the person whose discharge is  contemplated an opportunity to show  cause against the contemplated  discharge\024.     

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19.      The order of discharge of the appellant from the Army  service has been passed by the competent authority under  Section 22 of the Army Act read with Rule 13 on the grounds  covered under column (2)(v) of the Table, after affording  adequate opportunity to him of showing cause before the said   order of discharge came to be passed.  We are, however,  satisfied on the material placed before us that the court of  inquiry was formed under Rule 177 of the Army Rules and the  purpose of court of inquiry was to collect the evidence for the  information of superior officers to make up their mind about  the involvement of the appellant and the other army officials in  the racket of clandestine sale of petrol.  In the court of inquiry,  the appellant was heard and was given proper and adequate  opportunity to cross-examine the witnesses, which he did not  choose to avail.  The respondents, in Para 20 of the counter  affidavit filed in opposition to the writ petition before the High  Court, have made categorical statement that in the court of  inquiry the appellant was given full opportunity to defend his  case and to cross-examine the witnesses who appeared and  deposed before the Recording Officer, but the appellant was  just sitting throughout the proceedings and did not avail the  opportunity of cross-examining the witnesses.  The appellant  has not denied this assertion of the respondents in the  rejoinder affidavit. 20.       As noticed above, the appellant had shown cause vide  reply dated 13.08.1991 (Annexure P6) to the show cause  notice dated 03.07.1991 (Annexure P5) issued to him by  respondent No.5.   The competent authority considered the  reply of the appellant in right perspective and found the same  not satisfactory.  Therefore, on 09.09.1991, the competent  authority passed the order of discharge (Annexure P7) of the  appellant from the army service with immediate effect in  exercise of the power under Section 20 of the Army Act.  It  appears that the competent authority has wrongly quoted  Section 20 in the order of discharge whereas, in fact, the order  of discharge has to be read having been passed under Section  22 of the Army Act.  It is well settled that if an authority has a  power under the law merely because while exercising that  power the source of power is not specifically referred to or a  reference is made to a wrong provision of law, that by itself  does not vitiate the exercise of power so long as the power does  exist and can be traced to a source available in law [see N.  Mani v. Sangeetha Theatre & Ors. \026 (2004) 12 SCC 278].     Thus, quoting of wrong provision of Section 20 in the order of  discharge of the appellant by the competent authority does not  take away the jurisdiction of the authority under Section 22 of  the Army Act. Therefore, the order of discharge of the  appellant from the army service cannot be vitiated on this sole  ground as contended by the learned counsel for the appellant.   A plain reading of the order of discharge shows that it is an  order of termination of service simpliciter without casting or  attaching any stigma to the conduct of the appellant, therefore  the said order cannot be termed to be punitive in nature or  prejudicial to the future employment of the appellant in getting  employment in civil service.  Thus, the contention of the  learned counsel for the appellant that the order of discharge is  punitive in nature does not merit acceptance.  21.       The Division Bench of the High Court has noticed the  decisions of this Court relied upon by the appellant in the  cases of Ex. Naik Sardar Singh v. Union of India & Ors. [AIR  1992 SC 417], Major Suresh Chand Mehta v. The Defence  Secretary (U.O.I.) & Ors. [AIR 1991 SC 483], Lt. Col. Prithi Pal  Singh Bedi v. Union of India & Ors. [AIR 1982 SC 1413] and S.  N. Mukherjee v. Union of India [(1990) 4 SCC 594].  In the said

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decisions, this Court has dealt with the matter of imposition of  punishment on Army officials who were subjected to court- martial proceedings.  In S. N. Mukherjee\022s case (supra), this  Court was dealing with the requirement of recording of  reasons by an authority exercising quasi-judicial function,  besides challenge to the court-martial proceedings.  Reliance  was placed on Paragraph 13 of the judgment of this Court in  the case of Major Suresh Chand Mehta (supra).  In that case,  this Court held that the court of inquiry, as provided under  Rule 177 of the Army Rules, is merely held for the purpose of  collecting evidence and if so required, to report in regard to  any matter which may be referred to the officers and such an  inquiry is for the purpose of a preliminary investigation and  cannot be equated with a trial or court-martial.  All the above  cited decisions are of no assistance to the appellant in the  peculiar facts of the case on hand.  We are satisfied that there  is ample evidence on record in support of the judgment and  order of the Division Bench of the High Court and there is  nothing that would justify this Court interfering with it.   Therefore, the above arguments of the appellant are  unacceptable to us.  22.      For the reasons discussed above, the appeal is devoid of  merit and it is, accordingly, dismissed.  The judgment and  order of the Division Bench is affirmed.  The parties, however,  are left to bear their own costs.