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CASE NO.: Appeal (civil)  7308 of 2003

PETITIONER: Romesh Kumar Sharma                                      

RESPONDENT: Union of India & Ors.                                    

DATE OF JUDGMENT: 01/08/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: JUDGMENT With

CIVIL APPEAL NO. 3222 OF 2006 (Arising out of SLP (C) No. 5832 of 2006)

ARIJIT PASAYAT, J.

Delay condoned.

Leave granted in SLP (C) No.5832 of 2006.  

       Appellants in both the appeals call in question legality of  the judgment rendered by a Division Bench of the Jammu and  Kashmir High Court dismissing the Letters Patent Appeal filed  by the appellants questioning correctness of the order passed  by a learned Single Judge whereby the writ petition filed by  him was dismissed.      The review petition filed was also  dismissed which is the subject matter of challenge in Civil  Appeal No. 7308 of 2003. The other appeal relates to the order  passed in the Letters Patent Appeal.

Background facts in a nutshell are as follows :

       The appellant while working as Havildar/Clerk (GD) in  Ladakh Scouts, having 17 years service in the Army, was  found involved, along with a few other persons, in espionage  activities during the period 1984-85.  The appellant along with  others was interrogated and a Court of Inquiry under Rule 177  of the Army Rules, 1954 (in short the ’Rules’) was constituted  to collect evidence and to report. Said Court of Inquiry  confirmed the involvement of the appellant. Keeping in view  the paramount consideration of Army discipline and the  security of the State, it was considered expedient by the  authorities to proceed against the appellant under Section  20(1) of the Army Act, 1950 (in short the ’Act’)  read with Rule  17 of the Rules. Accordingly, the appellant was dismissed from  service dispensing with enquiry.

       Appellant challenged the order of dismissal on the  ground that the same was illegal, unconstitutional, improper,  malafide and violative of Rule 17 of the Rules and Articles 14  and 21 of the Constitution of India, 1950 (in short ’the

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Constitution’) and that no opportunity of being heard had  been afforded to him to explain his conduct.  In the counter  affidavit filed by the respondent-Union of India and its  functionaries, it was pointed out that the approval of the Chief  of Army Staff had been obtained and the procedures required  have been duly complied with.   

The basic stand of appellant before the High Court was  that an enquiry had been conducted to find out whether the  appellant and others were involved in the alleged espionage,  the same was given up midway and ultimately the order of  termination was passed.  It was submitted that the procedure  required was not followed and in any event action was taken  without following the principles of natural justice.  The High  Court rejected the stand holding that the enquiry which was  originally conducted was not qua the appellant but it related  to the incident.  Further neither any notice was issued nor any  charge sheet was submitted.  In any event it was held that the  authorities were empowered to take action in terms of Section  20 of the Act read with Rule 17 of the Rules in appropriate  cases.  The Letters Patent Appeal as noted supra did not bring  any relief to the appellant.  

A review application was filed against the order of learned  Single Judge as affirmed by the Division Bench, which as  noted above, was also dismissed.   In support of the appeal, Mr. Bhim Singh, learned  counsel submitted that the true scope and ambit of Rule 17 of  the Rules has not been kept in view. Power of dismissal or  removal from service is conferred on the Chief of the Army  Staff.  An enquiry was conducted by a Court of Inquiry and the  role attributed to the appellant is very minor and does not  warrant an order of dismissal. Parameters of the power of  dismissal or the removal are contained in Rule 17 of the Rules.   The proviso is of exceptional nature.  No reason was recorded  as to why, it was thought to be not expedient or reasonably  practicable to comply with the provisions of the main part of  Rule 17 of the Rules.  That being so the order of dismissal  cannot be maintained.

Per contra learned counsel for the respondent-Union of  India and its functionaries submitted that modalities to be  followed when Chief of the Army Staff thinks it inexpedient to  follow procedure as laid down in the main part of Rule 17 of  the Rules have been followed. He gave a certificate to the effect  that it is not expedient or reasonably practicable to comply  with the provisions of the Rules and certificate as required has  been given.

It is submitted that on consideration of the materials on  record done in an objective manner, the Chief of the Army  Staff passed the order.  It has not been even alleged or shown  that there was any mala fide exercise of powers. That being so  the High Court was justified in its conclusion that the  grievances are without substance.

In order to appreciate rival submissions, it is necessary  to take note of Section 20 of the Act and Rule 17 of the Rules.   The applicability of the proviso to Rule 17 is the core issue to  be considered.

20. Dismissal, removal or reduction by the  Chief of the Army Staff and by other officers.-- (1) The Chief of the Army Staff] may dismiss or  remove from the service any person subject to

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this Act other than an officer. (2) The Chief of the Army Staffs may reduce to  a lower grade or rank or the ranks, any  warrant officer or any non-commissioned  officer. (3) An officer having power not less than a  brigade or equivalent commander or any  prescribed officer may dismiss or remove from  the service any person serving under his  command other than an officer or a junior  commissioned officer. (4) Any such officer as is mentioned in sub- section (3) may reduce to a lower grade or rank  or the ranks, any warrant officer or any non- commissioned officer under his command. (5) A warrant officer reduced to the ranks  under this section shall not, however, be  required to serve in the ranks as a sepoy. (6) The commanding officer of an acting non- commissioned officer may order him to revert  to his permanent grade as a non- commissioned officer, or if he has no  permanent grade above the ranks, to the  ranks. (7) The exercise of any power under this  section shall be subject to the said provisions  contained in this Act and the rules and  regulations made thereunder. 17. Dismissal or removal by Chief of the Army  Staff and by other officers.\027 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) or sub-section  (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. The normal function of a proviso is to except  something out of the enactment or to qualify  something enacted therein which but for the  proviso would be within the purview of the  enactment. As was stated in Mullins v.  Treasurer of Survey [1880 (5) QBD 170,  (referred to in Shah Bhojraj Kuverji Oil Mills  and Ginning Factory v. Subhash Chandra  Yograj Sinha (AIR 1961 SC 1596) and Calcutta  Tramways Co. Ltd. v. Corporation of Calcutta  (AIR 1965 SC 1728); when one finds a proviso  to a section the natural presumption is that,  but for the proviso, the enacting part of the

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section would have included the subject  matter of the proviso. The proper function of a  proviso is to except and to deal with a case  which would otherwise fall within the general  language of the main enactment and its effect  is confined to that case. It is a qualification of  the preceding enactment which is  expressed  in terms too general to be quite accurate. As a  general rule, a proviso is added to an  enactment to qualify or create an exception to  what is in the enactment and ordinarily, a  proviso is not interpreted as stating a general  rule. "If the language of the enacting part of  the statute does not contain the provisions  which are said to occur in it you cannot derive  these provisions by implication from a  proviso." Said Lord Watson in West Derby  Union v. Metropolitan Life Assurance Co.  (1897 AC 647)(HL). Normally, a proviso does  not travel beyond the provision to which it is a  proviso. It carves out an exception to the main  provision to which it has been enacted as a  proviso and to no other. (See A.N. Sehgal and  Ors. v. Raje Ram Sheoram and Ors. (AIR 1991  SC 1406), Tribhovandas Haribhai Tamboli v.  Gujarat Revenue Tribunal and Ors. (AIR 1991  SC 1538) and Kerala State Housing Board and  Ors. v. Ramapriya Hotels (P)Ltd. and Ors.  (1994 (5) SCC 672). "This word (proviso) hath divers operations.   Sometime it worketh a qualification or  limitation; sometime a condition; and  sometime a covenant" (Coke upon Littleton  18th Edition, 146)          "If in a deed an earlier clause is followed  by a later clause which destroys altogether the  obligation created by the earlier clause, the  later clause is to be rejected as repugnant, and  the earlier clause prevails....But if the later  clause does not destroy but only qualifies the  earlier, then the two are to be read together  and effect is to be given to the intention of the  parties as disclosed by the deed as a whole"  (per Lord Wrenbury in Forbes v. Git [1922] 1  A.C. 256).         A statutory proviso "is something  engrafted on a preceding enactment" (R. v.  Taunton, St James, 9 B. & C. 836).         "The ordinary and proper function of  a proviso coming after a general  enactment is to limit that general  enactment in certain instances" (per Lord  Esher in Re Barker, 25 Q.B.D. 285).         A proviso to a section cannot be used to  import into the enacting part something which  is not there, but where the enacting part is  susceptible to several possible meanings it  may be controlled by the proviso (See Jennings  v. Kelly [1940] A.C. 206)."

       Under the proviso to Rule 17 the Chief of the Army Staff  and other officers are competent to order dismissal or removal  without complying with the procedure set out in the main part  of the Rule after certifying that it is not expedient or  reasonably practicable to comply with the provisions so set

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out. There is a further requirement that such cases of  dismissal or removal shall be reported to the Central  Government.

Original records were produced before us. A perusal  thereof shows that the Chief of the Army Staff had followed the  requisite procedure and the certificate as contemplated in the  proviso to Rule 17 of the Rules has been given. The note  sheets, the records which were also perused by the High Court  clearly show that various aspects were taken note of and it  was specifically recorded that it will be inexpedient to follow  the procedure provided in the main part of Rule 17 of the  Rules.  There is, therefore, no substance in the plea taken by  learned counsel for the appellant.    Additionally, it is alleged that the main plank of the  argument of the appellant before the High Court was that the  enquiry which was initiated should not have been abandoned  midway and should have been continued.  As rightly noted by  the High Court, the enquiry was not qua the appellant but it  related to the incident.  That being so there was nothing wrong  in the order of dismissal.  It cannot be faulted.  In any event  enquiry was not abandoned midway as claimed. The basic  facts were revealed during enquiry.  In any event, as has been  held by this Court in Union of India and Others  v. Harjeet  Singh Sandhu [2001(5) SCC 593] even after a Court Martial is  held departmental action is not prohibited.  In para 41 it was  noted as follows:

"Having thus explained the law and clarified  the same by providing resolutions to the  several illustrative problems posed by the  learned ASG for the consideration of this Court  (which are illustrative and not exhaustive), we  are of the opinion that the expiry of period of  limitation under Section 122 of the Act does  not ipso facto take away the exercise of power  under Section 19 read with Rule 14. The power  is available to be exercised though in the facts  and circumstances of an individual case, it  may be inexpedient to exercise such power or  the exercise of such power may stand vitiated  if it is shown to have been exercised in a  manner which may be called colourable  exercise of power or an abuse of power, what  at times is also termed in administrative law as  fraud on power. A misconduct committed a  number of years before, which was not  promptly and within the prescribed period of  limitation subjected to trial by court martial,  and also by reference to which the power  under Section 19 was not promptly exercised  may cease to be relevant by long lapse of time.  A subsequent misconduct though less serious  may aggravate the gravity of an earlier  misconduct and provide need for exercise of  power under Section 19. That would all  depend on the facts and circumstances of an  individual case. No hard and fast rule can be  laid down in that behalf. A broad proposition  that power under Section 19 read with Rule 14  cannot be exercised solely on the ground of  court martial proceedings having not  commenced within the period of limitation  prescribed by Section 122 of the Act, cannot be

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accepted. In the scheme of the Act and the  purpose sought to be achieved by Section 19  read Rule 14, there is no reason to place a  narrow construction on the term  ‘impracticable’ and therefore on availability or  happening of such events as render trial by  court-martial impermissible or legally  impossible or not practicable, the situation  would be covered by the expression-the trial by  court-martial having become ‘impracticable’."

       It was also pleaded that approval of Central Government  was necessary in case action was taken under the proviso to  Rule17. We find no such necessity prescribed. All that is  required that where proviso to rule 17 is resorted to report has  to be made to the Central Government. Record reveals that  same has been done.

Above being the position we find no merits in these  appeals, which are accordingly dismissed. No cost.