Holding

The dismissal was lawful as the Chief of the Army Staff complied with the certification and reporting requirements of the proviso to Rule 17, and the enquiry’s scope did not necessitate a separate hearing for the appellant.

Summary

The appellant, a Havildar/Clerk in the Ladakh Scouts with 17 years of service, was found to have participated in espionage during 1984‑85. A Court of Inquiry under Rule 177 of the Army Rules, 1954 confirmed his involvement, and the Army dismissed him under Section 20(1) of the Army Act, 1950, invoking the proviso to Rule 17 of the Army Rules, 1954, which permits dismissal without following the full procedure when it is not expedient. The appellant challenged the dismissal as illegal, unconstitutional and violative of Articles 14 and 21, arguing that he was denied a hearing and that Central Government approval was required. The Supreme Court held that the Chief of the Army Staff had complied with the certification requirement of the proviso, reported the dismissal to the Central Government, and that the enquiry related to the incident rather than being qua the appellant, making the dismissal lawful. Consequently, the Court dismissed the appeal.

Issues considered

Whether the Chief of the Army Staff can validly dismiss a service member under the proviso to Rule 17 of the Army Rules, 1954, without following the main procedural requirements.
Whether the dismissal without a specific enquiry or hearing violates the principles of natural justice and Articles 14 and 21 of the Constitution.
Whether approval of the Central Government is a prerequisite for dismissal under the proviso to Rule 17.
Whether an enquiry that is not qua the appellant but relates to the incident can justify dismissal.

Legislation cited

Army Act, 1950s. 20
Army Rules, 1954s. 122, s. 14, s. 17, s. 177, s. 19

Subjects

Army ActRule 17ProvisoDismissalNatural justiceArticles 14Article 21Military disciplineEspionageCourt of InquiryCentral Government reporting

Judgment

ROMESH KUMAR SHARMA A
v.
UNION OF INDIA AND ORS.

AUGUST I, 2006

[ARJJJT PASA YAT AND S.H. KAPADIA, JJ.] B

-,; Army Act, 1950:

Section 20(1)-Dismissal-Held, on facts, under the proviso to Rule 17
the Chief of the Army Staff and other officers are competent to order dismissal c
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-Rule 17 of the Army Rules, 1954.

The appellant while working as Harvildar/Clerk (GD) in Ladakh
D
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 ('Rules') was constituted
to collect evidence and to report. The Court of Inquiry confirmed the
involvement of the appellant. Keeping in view the paramount consideration E
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 ('Act') read with Rule 17 of the Rules.
Accordingly, the appellant was dismissed from service dispensing with
enquiry. Appellant challenged the order of dismissal on the ground that
the same was illegal, unconstitutional, improper, malafide and violative of F
Rule 17 of the Rules and Articles 14 and 21 of the Constitution of India,
1950 and that no opportunity of being heard and been afforded to him to
explain his conduct. High court dismissed the writ petition; the Letter
Patents Appeal too was dismissed. Review petition against the order of
the single Judge too was dismissed. G
---'-;-
It was contended by the appellant that 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. In the enquiry
227
H
228 SUPREME COURT REPORTS [20061 SUPP. 4 S.C.R.

A conducted by a Court of Inquiry, the role attributed to the appellant is
v1~ry minor and does not warrant an order of dismissal. Parameters of
the power of dismissal or 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
B the provisions of the main part of Rule 17 of the Rules. It was also pleaded
that approval of Central Government was 11ecessary in case action was
taken unde' the proviso to Rule 17. It was also contended that enquiry
which was initiated should not have been abandoned midway and should
have been continued.

C It was contended by the respondent-Union of India and its
functionaries that modalities to be followed when Chief of the Army Staff
thinks it inexpedient to follow procedure as laid down in the main part of
Rule 17 of the Rules have been followed. He gave a certificate to the effect
that it is not expedient or reasonably practicable to comply with the
provisions of the Rules and certificates as required has been given. It was
D also contended that the approval of the Central Government is not
necessary, all that it required that where proviso to rule 17 is resorted to,
report has to be made to the Central Government and Record reveals that
same has been done.

Dismissing the appeal, the court
E
HELD: I.I. The Chief of the Army Staff had followed the requisite
procedure and the certificate as contemplated in the proviso to Rule 17
of the Army Rules, 1954 has been given. The note clearly shows that
various aspects were taken note of and it was specifically recorded that it
F will be inexpedient to follow the procedure provided in the main part of
Rule 17 of the Rules. (233-G-H; 234-A)

1.2. Since the enquiry was not qua the appellant but it related to the
incident, there was nothing wrong in the order of dismissal. (234-BJ

Union of India and Ors. v. Harjeet Singh Sandhu, )2001) 5 SCC 593,
G
referred to.

I.3. Approval of the Central Government is not necessary. All that
is required that where proviso to rule 17 is restored to, report has to be
made to the Central Government. )235-B)
H
ROMESH KUMAR SHARMA v. U.0.1. [PASAYAT, J.] 229
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7308 of2003. A
From the Judgment and Order dated 29.7.2002 of the High Court of
Jammu and Kashmir at Jammu in Review L.P.A. (W) No. 19 of 2002.

WITH
B
C.A. No. 3222/2006.

Bhim Singh, B.S. Billowria, Boymkesh K. and Satish Vig for the
Appellant.

Vikas Singh, A.S.G., Rudreshwar Singh and Anil Katiyar for the C
Respondents.

The Judgment of the Court was delive»ed by

ARIJIT PASA YAT, J. Delay condoned.

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

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 E
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.

Background facts in a nutshell are as follows : F
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 Anny Rules, 1954 (in short the 'Rules') was constituted to collect evidence G
and to report. Said Court oflnquiry co11finned the involvement of the appellant.
Keeping in view the paramount consideration of Ariny 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 H
230 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A from service dispensing with enquiry.
Appellant challenged the order of dismissal on the ground that the
same was illegal, unconstitutional, improper, malajide 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
B 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.

The basic stand of appellant before the High Court was that an enquiry
C 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
D 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.
E
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.

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
F 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
G 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.
.,

Per contra learned counsel for the respondent-Union of India and its
functionaries submitted that modalities to be followed when Chief of the
H Army Staff thinks it inexpedient to follow procedure as laid down in the
ROMESH KUMAR SHARMA v. U.0.1. [PASAYAT, J.) 231
main part of Rule 17 of the Rules have been followed. He gave a certificate A
to the effect that it is not expedient or reasonably practicable to comply with
the provisions of the Rules and certificate as required has been given.

It is submitted that on consideration of the materials on record done in
an objective manner, the Chief of the Army Staff passed the order. It has not
been even alleged or shown that there was any ma/a fide exercise of powers. B
That being so the High Court was justified in its conclusion that the grievances
are without substance.

In order to appreciate rival submissions, it is necessary to take note of
Section 20 of the Act and Rule 17 of the Rules. The applicability of the C
proviso to Rule 17 is the core issue to be considered.

20. Dismissal, removal or reduction by the Chief of the Army Staff
and by other officers. -

( 1) The Chief of the Army Staff may dismiss or remove from the
service any person subject to this Act other than an officer. D
(2) The Chief of the Army Staffs may reduce to a lower grade or rank
or the ranks, any warrant officer or any non-commissioned officer.

(3) An officer having power not less than a brigade or equivalent
commander or any prescribed officer may dismiss or remove from E
the service any person serving under his command other than an
officer or a junior commissioned officer.

(4) Any such officer as is mentioned in sub-section (3) may reduce
· to a lower grade or rank or the ranks, any warrant officer or any non-
commissioned officer under his command. F
(5) A warrant officer reduced to the ranks under this section shall not,
however, be required to serve in the ranks as a sepoy.

(6) The commanding officer of an acting non-commissioned officer
may order him to revert to his pennanent grade as a non-commissioned G
..
officer, or if he has no permanent grade above the ranks, to the ranks .

(7) The exercise of any power under this section shall be subject to
the said provisions contained in this Act and the rules and regulations
made thereunder.

-·- H
232 SUPREl\1E COURT REPORTS [20061 SUPP. 4 S.CR.

A 17. Dismissal or removal by Chief of the Army Staff and by other
ojficers.-Save in the case where a person is dismissed or removed
from service on the ground of conduct which has led to his conviction
by a criminal court or a court-martial, no person shall be dismissed
or removed under sub-section (I) or sub-section (3) of section 20;
unless he has been informed of the particulars of the cause of action
B against him and allowed reasonable time to state in writing any reasons
he may have to urge against his dismissal or removal from the service:

Provided that if in the opinion of the officer competent to order the
dismissal or removal, it is not expedient or reasonably practicable to
comply with the provisions of this rule, he may after certifying to that
c effect, order the dismissal or removal without complying with the
procedure set out in this rule. All cases of dismissal or removal under
this rule where the prescribed procedure has not been complied with
shall be reported to the Central Government.

The normal function of a proviso is to except something out of the
D
enactment or to qualify something enacted therein which but for the
proviso would be within the purview of the enactment. As was stated
in Mullins v. Treasurer of Survey, (1880) 5 QBD 170, (referred to in
Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash
Chandra Yograj Sinha, AIR (1961) SC 1596 and Calcutta Tramways
E Co. Ltd v. Corporation of Calcutta, AIR (1965) SC 1728; when one
finds a proviso to a section the natural presumption is that, but for the
proviso, the enacting part of the section would have included the
subject matter of the proviso. The proper function of a proviso is to
except and to deal with a case which would otherwise fall within the
general language of the main enactment and its effect is confined to
F that case. It is a qualification of the preceding enactment which is
expressed in terms too general to be quite accurate. As a general rule,
a proviso is added to an enactment to qualify or create an exception
to what is in the enactment and ordinarily, a proviso is not interpreted
as stating a general rule. "If the language of the enacting part of the
G statute does not contain the provisions which are said to occur in it
you cannot derive these provisions by implication from a proviso."
Said Lord Watson in West Derby Union v. Metropolitan Life Assurance
Co .. (1897) AC 647 (HL). Normally, a proviso does not travel beyond
the provision to which it is a proviso. It carves out an exception to
the main provision to which it has been enacted as a proviso and to
H
ROMESHKUMARSHARMAv. U.O.i.[PASAYAT,J.) 233
no other. (See A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors., A
AIR (1991) SC 1406, Tribhovandas Haribhai Tamboli v. Gujarat
Revenue Tribunal and Ors., AIR (1991) SC 1538 and Kera/a State
Housing Board and Ors. v. Ramapriya Hotels (P) Ltd. and Ors.,
[ 1994] 5 sec 672).

"This word (proviso) hath divers operations. Sometime it worketh a B
qualification or limitation; sometime a condition; and sometime a
covenant" (Coke upon Litt/et on 18th Edition, 146)

"If in a deed an earlier clause is followed by a later clause which
destroys altogether the obligation created by the earlier clause, the
later clause is to be rejected as repugnant, and the earlier clause C
prevails .... But if the later clause does not destroy but only qualifies
the earlier, then the two are to be read together and effect is to be
given to the intention of the parties as disclosed by the deed as a
whole" (per Lord Wrenbury in Forbes v. Git, (1922) I A.C. 256.

A statutory proviso "is something engrafted on a preceding D
enactment" (R. v. Taunton, St James, 9 B. & C. ~36).

"The ordinary and proper function of a proviso coming after a
general enactment is to limit that general enactment in certain
instances" (per Lord Esher in Re Barker, 25 Q.B.D. 285).
..
•
E
A proviso to a section cannot be used to import into the enacting
part something which is not there, but where the enacting part is
susceptible to several possible meanings it may be controlled by the
proviso (See Jennings v. Kelly (1940) A.C. 206)."

Under the proviso to Rule 17 the Chief of the Army Staff and other F
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.
G
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 H
234 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A 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
B should not have been abandoned midway and should have been continued.
As rightly noted by the High Court, the enquiry was not qua tht: appellant
but it related to the incident. That being so there was nothing wrong in the
order of dismissal. It cannot be faulted. In any event enquiry was not
abandoned midway as claimed. The basic facts were revealed during enquiry.
C In any event, as has been held by this Court in Union of India and Ors. v.
Harjeet Singh Sandhu, (2001] 5 SCC 593 even after a Court Martial is held
departmental action is not prohibited. In para 41 it was noted as follows:

"Having thus explained the law and clarified the same by providing
resolutions to the several illustrative problems posed by the learned
D ASG for the consideration of this Court (which are illustrative and
not exhaustive), we are of the opinion that the expiry of period of
limitation under Section 122 of the Act does not ipso facto take away
the exercise of power under Section 19 read with Rule 14. The power
is available to be exercised though in the facts and circumstances of
an individual case, it may be inexpedient to exercise such power or
E the exercise of such power may stand vitiated if it is shown to have
been exercised in a manner which may be called colourable exercise
of power or an abuse of power, what at times is also termed in
administrative law as fraud on power. A misconduct committed a
number of years before, which was not promptly and within the
prescribed period of limitation subjected to trial by court martial, and
F
also by reference to which the power under Section 19 was not
promptly exercised may cease to be relevant by long lapse of time.
A subsequent misconduct though less serious may aggravate the gravity
of an earlier misconduct and provide need for exercise of power
under Section 19. That would all depend on the facts and circumstances
G of an individual case. No hard and fast rule can be laid down in that
behalf. A broad proposition that power under Section 19 read with
Rule 14 cannot be exercised solely on the ground of court martial
proceedings having not commenced within the period of limitation
prescribed by Section 122 of the Act, cannot be accepted. In the
scheme of the Act and the purpose sought to be achieved by Section
H
ROMESH KUMAR SHARMA v. U.0.1. (PASA YAT, J.] 235
19 read Rule 14, there is no reason to place a narrow construction on A
the tenn 'impracticable' and therefore on availability or happening of
such events as render trial by court-martial impermissible or legally
impossible or not practicable, the situation would be covered by the
expression-the trial by court-martial having become impracticable'."

It was also pleaded that approval of Central Government was necessary B
in case action was taken under the proviso to Rulel7. 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.

Above being the position we find no merits in these appeals, which are C
accordingly dismissed. No cost.

BK Appeal dismissed.