Kumar Sharma Vs. Union of India & Ors  Insc 462 (1 August 2006)
Pasayat & S.H. Kapadia
CIVIL APPEAL NO. 3222 OF 2006 (Arising out of SLP (C) No. 5832 of 2006) ARIJIT
granted in SLP (C) No.5832 of 2006.
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
facts in a nutshell are as follows :
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.
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
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.
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.
review application was filed against the order of learned Single Judge as
affirmed by the Division Bench, which as noted above, was also dismissed.
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.
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.
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.
order to appreciate rival submissions, it is necessary to take note of Section
20 of the Act and Rule 17 of the Rules.
applicability of the proviso to Rule 17 is the core issue to be considered.
removal or reduction by the Chief of the Army Staff and by other officers.—
The Chief of the
Army Staff] may dismiss or remove from the service any person subject to this
Act other than an officer.
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.
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.
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.
officer reduced to the ranks under this section shall not, however, be required
to serve in the ranks as a sepoy.
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.
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.
removal by Chief of the Army Staff and by other officers. 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:
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
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 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).
word (proviso) hath divers operations.
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  1 A.C. 256).
statutory proviso "is something engrafted on a preceding enactment"
(R. v. Taunton, St James, 9 B. & C. 836).
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).
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
 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 out. There is a further requirement that such cases of
dismissal or removal shall be reported to the Central Government.
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.
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:
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.
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 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.
being the position we find no merits in these appeals, which are accordingly
dismissed. No cost.