2007 Supreme(SC) 953

2007(5) Supreme 341
Supreme Court of India
(From Calcutta High Court)
Tarun Chatterjee & Lokeshwar Singh Panta, JJ.
Ram Sunder Ram — Petitioner
versus
Union of India & Ors. — Respondents
Appeal (civil) 2951 of 2007
[Arising out of S. L. P. (C) No.5536 of 2005]
Decided on : 11-07-2007

Important Point
The order of discharge passed by a competent authority after affording opportunity cannot be held t be vitiated merely because a wrong provision of law has ben quoted.

Headnote:Army Act, 1950 – Section 20 r/w rule 13, The Army Rules, 1954 – The order of discharge of the appellant from the Army service was passed by the competent authority under Section 22 of the Army Act read with Rule 13 on the grounds covered under column (2)(v) of the Table, after affording adequate opportunity to him of showing cause – No infirmity. (Para 19)

       Administrative Law – It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act – It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law – Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act – Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground. (Para 20)

       (2004) 12 SCC 278 – Relied upon.

       AIR 1992 SC 417; AIR 1991 SC 483; AIR 1982 SC 1413; (1990) 4 SCC 594 – Distinguished.

       Facts of the case :

       On 26.09.1980, the appellant was appointed as Cleaner in Class IV with the Indian Armed Forces. On 23.09.1983, he became LDC in the Army establishment. On 03.07.1988, the appellant was deputed to perform the duties of Petrol, Oil and Lubricants (POL) Clerk. On 09.08.1988, the competent authority ordered convening of the court of inquiry based upon certain anonymous complaints.

       The court of inquiry deliberations was held by the authority between the periods commencing from 16.08.1988 and 12.12.1988. On 06.10.1988, the appellant was detained for interrogation under custody. During interrogation, the appellant made confessional statement of receiving illegal money of Rs.12,500/- from one Shri Rajendra Singh, owner of Pansari Shop, for sale of 87 MT Gas through BPLs and Kerbside Pump, kept by Dvr. Gde 11 Ramakant Prasad of A Coy 5033 ASC Bn (MT). The appellant later on deposited Rs. 5,200/- out of Rs.12,500/-.

       The appellant, having been found guilty of prejudicial act to good order and military discipline, was charged under Section 63 of the Army Act, 1950. On 08.08.1989, the Presiding Officer, Summary of Evidence, sent a letter to the appellant and LDC J.P. Singh directing them to be present on 9th August,1989 at 1000 Hrs. for recording summary evidence. The evidence was collected by the court of inquiry against the appellant and some other Army Officials. On 03.07.1991, the appellant was informed by respondent No. 5 that while working with A Coy 5033 ASC Bn (MT), the appellant received Rs. 12,500/- as illegal money from Shri Rajendra Singh, owner of Pansari shop and converted the said amount to self use, well knowing it to be from sale of 87 MT Gas through BPLs and Kerbside Pump, kept by Dvr. Gde 11 Ramakant Prasad of A Coy 5033 ASC Bn (MT). He was, therefore, asked to show cause within 15 days of the receipt of the notice as to why his services should not be terminated for the lapse committed by him. After the appellant showed cause on 13.08.1991 which was found unsatisfactory, the respondent No.5 discharged him from service on 09.09.1991.

       The appellant challenged the order of discharge from service in the High Court of Calcutta. The learned Single Judge set aside the said order of discharge inter alia on the ground of violation of the principles of natural justice and directed the respondents to reinstate the appellant with 25% of his arrear salaries as per the last pay drawn. Further, it was observed that the Army Authority was not prevented from taking appropriate steps against the appellant in accordance with law, if they so advised and technicalities alone ought not to stand in the way in that regard. In writ appeal, the order of the learned Single Judge came to be set aside by a Division Bench of the High Court and the Writ Petition filed by the appellant was accordingly dismissed.

       Findings of the Court :

       Order of discharge was passed by competent authority complying with principles of natural justice hence no infirmity. Merely because a wrong provision of law was quoted, the order cannot be held to be vitiated.

       Result : Appeal dismissed.