Appeal No 1653 of 1967
Appeal from the judgment and order dated February 23 1967 Of the Delhi High Court in CW No 403 D of 1959
B Sen P L Juneja R N Sachthey and section P Nayer for the appellant
Sardar Bahadur and Yougindra Khushalani for the respondent
The Judgment of the Court was delivered by Sikri CJ
The judgment reproduced below was drafted by the late Mr Justice Roy and we all had subscribed to it
We beard the matter formally again on November 19 1971
We adopt the judgment as our own
448 This is an appeal by the Union of India by way of special leave
On April 9 1959 the Central Government directed removal from service of Capt section K Rao under r 14 of the Army Rules 1954
The facts leading to his removal are as follows  Rao was a commissioned officer in the Indian Army and was attached to the Army Ordnance Corps Training Centre Secundrabad
It was alleged that on April 4 1958 he committed acts of gross misconduct
The allegations were as follows  Knowing Kumari Prakash as the daughter of a brother Officer Rao assisted her in going away from her parents protection and planning to run away with a sepoy  Rao by threatening to cause harm to Kumari Prakash s parents intimidated her t o visit his house where he took her in his scooter to the unit lines of 51 1 1 Gurkha Rifles where he arranged her meeting with a sepoy of the unit He ie Rao acquiesced in the girl being met by the sepoy later at a tea shop nearby where she received a present of a sari and blouse from the sepoy in his presence Rao thus actively abetted in the attempt of brother officer s daughter elope with a sepoy Rao then took Kumari Prakash to a hotel Saidya Lodge  in Hyderabad and got a room to themselves by impersonating and giving a false identity as Mr  Mrs Prakash
An inquiry into the matter was made by Court of Inquiry
The Chief of the Army Staff after going through the proceedings of the Court of Inquiry considered that the conduct of Capt
Rao was most unbecoming of an officer
As he was of opinion that trial of the officer by a General Court Martial was inexpedient he ordered administrative action to be taken under r 14 of the Army Rules 1954
By memorandum dated September 4 1958 Rao was called upon to submit his explanation by way of defence regarding the allegations against him
The explanation of Rao was placed before the Central Government
The Central Government found it to be unsatisfactory and on April 9 1959 an order was passed removing the respondent from service
Rao thereupon filed a petition under article 226 of the Constitution for quashing the order of removal from service on the 449 ground inter alia that r 14 of the Army Rules 1954 was ultra vires the  and that the action taken thereunder was without any authority
In the petition Rao gave a somewhat different version of what had happened
According to him he did not assist Kumari Prakash to go away from her parents  house
At the hearing of the petition the only point which was urged was the validity of r 14 of the Army Rules 1954
If this rule was intra vires the  Rao has no case
The Army Rules 1954 including r 14 were framed in exer cise of the powers conferred by section 191 of the 
Rule 14 of the Army Rules 1954 is as follows 1 When after considering the reports on an officer s misconduct the Central Gove rnment is satisfied or the C in C is of the opinion that the trial of the officer by a court martial is inexpedient or impracticable but considers the further retention of the said officer in the service as undesirable the C in C shall communicate the view of the Central Government or his views as the case may be to the officer together with all reports adverse to him and he shall be called upon to submit his explanation and defence
2 In the event of the explanation of the officer being considered unsatisfactory by the C in C or when so directed by the Central Government the case shall be submitted to the Central Government with the officer s defence and the recommendation of the C in C as to whether the officer should be a dismissed from the service or b removed from the service or c called upon to retire or d called upon to resign
3 The Central Government after due consideration of the reports the officer s defence if any and the recommendation of the C in C may dismiss or remove the officer with or without pension or call upon him to retire or resign and on his refusing to do so the officer may be retired from or gazetted out of the service on pension or gratuity if any admissible to him Under the aforesaid r 14 action can be taken for misconduct against an officer whose further retention in service is not considered desirable
without the officer being tried by a court martial
450 Before removal he must under the rule be asked to submit his explanation and defence
If the explanation is found to be unsatisfactory the Central Government has been given the power to dismiss or remove the officer
Rules are framed under section 191 of the 
Sub section 1 of section 191 gives power to the Central Government to make rules for the purpose of carrying into effect the provisions of the Act
Sub section 2a provides  Without prejudice to the generality of the power conferred by sub section 1 the rules made thereunder may provide for a the removal retirement release or discharge from the service of persons subject to this Act Sections 18  19 which appear in Ch
IV of the dealing with Conditions of Service provide as follows  S18 Every person subject to this Act shall hold office during the pleasure of the President
 section 19 Subject to the provisions of this Act and the rules and regulations made thereunder the Central Government may dismiss or remove from the service any person subject to this Act
 Offenses under the have been dealt with in sections 34 to 70 in Ch
VI of which section 45 is as follows  section 45 Any officer junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall on conviction by court martial if he is an officer be liable to be cashiered or to suffer such less punishment as is in this Act mentioned and if he is a junior commissioned officer or a warrant officer be liable to be dismissed or to suffer such less punishment as is in this Act mentioned It was argued by counsel for the respondent Rao that the contained specific provisions for punishment for unbecoming conduct viz section 45
To give power to the Central Government to remove an officer without being tried and convicted by court martial was in derogation of section 45 of the 
Rule 14 therefore was ultra vires the 
This argument is not correct
Section 19 itself suggests that there should be rules and subject to the provisions of the Act and such rules the Central Government may dismiss or remove from the service any person 451 subject to the 
Section 191 2 a specifically gives
power to make a rule providing for the removal from the service of persons subject to the Act
It follows that there may be a valid rule where under subject to the other provisions of the Act the Central Government may remove a person from the service
Rule 14 is such a rule  it is therefore not ultra vires
It was argued that the words subject to the provisions of this Act occurring in section 19 makes section 19 subject to section 45 and the Central Government has thus no power to remove a person from the service in derogation of the provisions of section 45
But the power under section 19 is an independent power
Although section 19 uses the words subject to the provisions of this Act it speaks of removal of a person from the service
Section 45 provides that on conviction by court martial an officer is liable to be cashiered or to suffer such less punishment as is in this Act mentioned
For removal from service under section 19 of the read with r 14 of the Army Rules 1954 a court martial is not necessary
The two sections 19 and 45 of the Act are therefore mutually exclusive
The result is that r 14 of the Army Rules 1954 is not ultra vires the 
The appeal is therefore allowed but in the circumstances of the case without any order as to costs
The case will now go back to the High Court for disposal on merits on the other questions raised by the respondent herein in the High Court
VPS Appeal allowed


Summary:
The respondent a commissioned officer in the Indian Army was found to have committed acts of gross misconduct by a Court of Inquiry
The Chief of the Army Staff was of the opinion that his trial by a General Court Martial was inexpedient and the respondent was removed from service after following the procedure under r 14 of the Army Rules 1954
On the question whether r 14 which gives power to the Central Government to remove an officer without being tried and convicted by Court Martial was in derogation of section 45  which specifically provides for conviction by court martial and punishment for unbecoming conduct HELD  The rule is not ultra vires
451 D 1 Section 19 of the Act provides that subject to the provisions of the Act and the rules made thereunder the Central Government may remove from service any person subject to the Act
Therefore the section itself suggests that there should be rules regarding removal from service and section 191 2 a of the Act specifically gives power to make a rule providing for the removal from the service of persons subject to the Act
450 H 451 A B 2 Although section 19 uses the words subject to the provisions of this Act the section is not subject to section 45
The power under section 19 is independent of the power under section 45 because while section 19 speaks of removal of a person section 45 provides that on conviction by Court Martial an officer is liable to be cashiered or to suffer such less punishment as is in the Act mentioned
451 B D