IMPORTANT POINT
If the power to perform a particular act is traceable to a specific provision of the statute the Court must lean in favour of the action taken.

JUDGMENT

Ranjan Gogoi, J.-Leave granted.

2. This appeal is directed against the judgment and order dated 7.2.2007 passed by the High Court of Jammu and Kashmir whereby the High Court has allowed the Writ Petition filed by the respondent challenging the punishment of removal from service that was imposed on him by the Cantonment Board, Jammu. It may be noticed, at the outset, that the High Court had allowed the Writ Petition of the respondent on the ground that the order of the Officer Commanding-in-Chief, the Command, affirming the order of the Cantonment Board removing the respondent from service was passed on the basis of an invalid reference made to the Officer Commanding- in-Chief, the Command, under the provisions of the Cantonments Act, 1924 (hereinafter referred to as the ‘Act’).

3. A brief conspectus of the relevant facts would be necessary at this stage. The respondent, Jagat Paul Singh Cheema, was employed as a Section Officer with the Cantonment Board, Jammu. On various charges a departmental enquiry was held against the respondent, whereafter he was removed from service by an order dated 6.9.1997. The appeal filed against the said order was dismissed. The respondent, therefore, moved the High Court of Jammu & Kashmir challenging the order of removal from service, interalia, on the ground that the report of the enquiry held against him was not furnished to him at any stage. The High Court by its order dated 4.4.2001 allowed the writ petition and directed the ‘Punishing Authority’ to re-decide the matter after affording an opportunity of hearing to the respondent. In compliance with the said directions the report of enquiry was furnished to the respondent and the matter was reconsidered by the Cantonment Board in its meeting held on 18.5.2001. In the said meeting while the non-official members (five in number) were of the view that the order of punishment imposed on the respondent should be set aside and he should be reinstated in service, the President of the Cantonment Board and two other ex-officio members supported the initial decision of the Cantonment Board to impose the punishment in question. Thereafter, it appears, that at the instance of the Chief Executive Officer of the Cantonment Board the matter was referred to the Officer Commanding-in-Chief, the Command.

4. The said authority issued a show cause notice dated 6.8.2001 to the Cantonment Board and on receipt of its reply, by order dated 22.11.2001, affirmed the penalty of removal of service imposed on the respondent.

5. Aggrieved by the aforesaid order dated 22.11.2001, the respondent again moved the High Court. The writ petition filed (WP No. 3039 of 2001) was allowed by an order dated 15.2.2006 passed by a learned Single Judge holding that the Officer Commanding-in-Chief, the Command, was not vested with any power under the Act to annul the decision of the Cantonment Board and the power of the said authority under the Act only extended to giving of directions to the Cantonment Board for reconsideration of the matter. Aggrieved by the said order of the learned Single Judge, the Cantonment Board filed a Letters Patent Appeal before a Division Bench of the High Court which was answered by the impugned order dated 7.2.2007. The Division Bench, by its aforesaid order, took the view that under the provisions of the Act, upon a reference made to him, the Officer Commanding-in-Chief, the Command, was duly empowered to annul a decision of the Cantonment Board after giving an opportunity of showing cause to the Board. However, in the present case, the reference made was not authorized and in consonance with the provisions of Section 51 of the Act. The power to annul the decision of the Board, though vested in the Officer Commanding-in-Chief, the Command, therefore, could not have been legitimately exercised in the present case. Accordingly the Division Bench affirmed the conclusions of the learned Single Judge, though for reasons different.

6. Shri Luthra, lea