Judgement

SIKRI, C.J.I.:- The judgment, reproduced below was drafted by the late Mr. Justice Roy and we all had subscribed to it. We heard the matter formally again on November 19, 1971. We adopt the judgment as our own.

2. This is an appeal by the Union of India by way of special leave.

3. 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:

4. Rao was a commissioned officer in the Indian Army and was attached to the Army Ordnance Corps Training Centre, Secunderabad. 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 to visit his house where he took her in his scooter to the unit lines of 5/11 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".

5. 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 not 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.

6. Capt. Rao thereupon filed a petition under Art. 226 of the Constitution for quashing the order of removal from service on the 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.

7. 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.

8. 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.

9. The Army Rules, 1954, including R.14, were framed in exercise 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 Government 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 Centra