http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

             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