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1970 Supreme(All) 153
Allahbad High Court
J.S.TRIVEDI
Union of India - Appellant
Versus
Ex. Kanor Ranbir Singh Sidhu - Respondent
Decided On : 12/04/1970
J.N. Tiwari, for Appellant; Gopi Nath Kunjru, for Respondent.
The Central Government has the power to dismiss or remove from service any person subject to the Army Act, 1950, under Section 19 of the Act, subject to the provisions of the Act and the rules and regulations made thereunder.
Headnote:
ARMY ACT, 1950 - SECTION 18, 19, 20, 42, 45, 71, 78 - REMOVAL FROM SERVICE - POWER OF CENTRAL GOVERNMENT - INTERPRETATION OF STATUTES.
Fact of the Case:
The plaintiff, a Second Lieutenant in the Regular Patiala Army, was promoted to Captain during World War II and later reverted to the Indian Army Establishment. He was granted regular commission in the Indian Army Force in 1949 with seniority as Second Lieutenant from 26th January 1945 and as Lieutenant from 26th July 1946. Dissatisfied with his seniority, he filed a complaint under Section 117-A of the Indian Army Act, 1950, claiming Brigadier's pay and rank. His complaint was rejected, and he was removed from service in 1954 for insubordination. He filed a suit challenging his removal, which was decreed by the trial court and upheld by the lower appellate court.
Finding of the Court:
The High Court held that the Central Government had the power to dismiss the plaintiff from service under Section 19 of the Army Act, 1950, and that the order of removal was valid. The court rejected the plaintiff's argument that Section 19 was subject to Section 42, which deals with offences and punishments, and that the Central Government could not dismiss him without a recommendation from a court-martial. The court also dismissed the plaintiff's cross-objection seeking a declaration that he was continuing in service and entitled to his emoluments.
Issues: 1. Whether the Central Government had the power to dismiss the plaintiff from service under Section 19 of the Army Act, 1950? 2. Whether the order of removal was valid?
Ratio Decidendi: 1. Section 19 of the Army Act, 1950, gives the Central Government the power to dismiss or remove from service any person subject to the Act, subject to the provisions of the Act and the rules and regulations made thereunder. 2. The words "subject to the provisions of this Act and the rules" in Section 19 mean that the power exercisable by the Central Government should be in accordance with the Act and rules. They do not restrict the power of the Central Government to dismiss or remove persons otherwise than on a recommendation of a court-martial. 3. The power conferred on the Central Government under Section 19 is parallel to the power of a court-martial to punish an officer for offences committed under the Act. 4. The purpose of rules and regulations framed under the Act is to serve the purpose of the enactment and cannot go against its provisions or make any change in them.
Final Decision: The appeal was allowed, and the suit of the plaintiff was dismissed. The cross-objection was also dismissed.
According to him, the notification sought to adversely affect his seniority in emoluments and he, therefore, made a complaint under Section 117-A of the Indian Army Act on 29th of June, 1949 claiming Brigadier's pay and rank etc. Not only was his complaint rejected but repeated representations which he made subsequently to the various authorities were also rejected and finally by order dated 5-10-1951 he was informed to abstain from addressing any more appeals on points in respect or which orders of the Central Government have already been passed. It was also mentioned therein that failure to comply with this direction may lead to the compulsory removal of the officer. In spite of the above specific order of the Central Government, the plaintiff persisted in his representation. A show cause notice for the removal of the plaintiff from service was thereupon issued. The plaintiff was finally removed from service by the order of the Central Government which was to take effect from 15-2-1954.
The plaintiff unsuccessfully filed petitions and appeals against the order of removal and the suit out of which this appeal arises was then filed after notice under Section 80, Civil P. C. for the relief that order dated 6-2-1954 removing him from service is illegal, without jurisdiction, ultra vires and inoperative. The trial Court on an interpretation of the Indian Army Act, 1950 and relying on S. K. Rao's case reported in 1968 Lab IC 60 (Delhi) held that the charge of insubordination being covered under Section 42 (e) of the Army Act the Central Government was not authorised to act under Section 19 ignoring Section 42. The suit was, therefore, decreed for the declaration sought for. The lower appellate Court confirmed the decree of the trial Court, hence this second civil appeal.
2. Learned counsel for the appellant has contended that the case relied upon by the Courts below is in appeal before their Lordships of the Supreme Court. He has placed his reliance on the judgment of the Hon'ble Supreme Court in Rajendra Pal v. Union of India (Writ Petn. No. 220 of 1960 decided on 12-1-1967 (SC)) and has contended that in the case of a similar or parallel legislation, the removal of an Air Force Officer was held valid even without any opportunity and charges. Article 310, Constitution of India provides th
