IMPORTANT POINT
Under the proviso to Rule 17 of Army Rules, 1954, the Chief of the Army Staff and other Officers are competent to order dismissal or removal without complying with procedure set out in main part of the Rule after certifying that it was not expedient or reasonably practicable to comply with provisions so set out.

Headnote:Army Act, 1950 — Section 20(1) r/w Rule 17 of Army Rules, 1954 — Dismissal, removal or reduction by Chief of Army Staff — Appellant working as Havildar/clerk, having 17 years service in Army was dismissed from service dispensing with enquiry after he was found involved with a few others in espionage activities — Court of Inquiry constituted under Rule 177 of Army Rules had confirmed involvement of appellant — Order of dismissal from service was challenged before High Court on ground that enquiry was given up midway and action taken was without following principles of natural justice — High Court rejected the stand holding that enquiry originally conducted was not qua appellant but related to incident and that authorities were empowered to take action in terms of Section 20 of the Act — Appeal was dismissed by Division Bench — Appeal — Contention that no reasons were recorded as to why it was thought to be not expedient or reasonably practicable to comply with Rule 17 of Rules — Record showed that Chief of Army Staff had followed requisite procedure and certificate as contemplated in proviso to Rule 17 of Rules had been given — Approval of Central Govt. was not necessary and only report was to be made to Central Govt. — No interference was warranted.
Held : 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. 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.(Paras 12 to 14)
It was also pleaded that approval of Central Government was necessary in case action was taken under the proviso to Rule 17. 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.(Para 15)

JUDGMENT

Arijit Pasayat, J. — Delay condoned.

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

3. 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.

4. 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.

5. 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 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.

6. 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.

7. 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.

8. 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.

9. 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 procedur

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2006 Supreme(SC) 683

Cases Referred (1)