Case: Union Of India Vs. S. K. Rao

was ultra vires the Army Act, 1950, and that the action taken thereunder was without any authority. 7. 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. 8. 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 Army Act, Rao has no. case. 9. The Army Rules, 1954, including R.14, were framed in exercise of the powers conferred by S. 191 of the Army Act, 1950. Rule 14 of the Army Rules, 1954, is as follows :"(1) When after considering the reports on an officers misconduct, the Central Government 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 officers 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 officers 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. 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. 10. Rules are framed under S. 191 of the Army Act. Sub-section (1) of S. 191 gives power to the Central Government to make rules for the purpose of carrying into effect the provisions of the Act. Sub-section (2) (a) 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". 11. Sections 18 and 19 which appear in Chapter IV of the Army Act dealing with "Conditions of Service" provide as follows :Section 18 - "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". 12. Offences under the Army Act have been dealt with in Section 34 to 70 in Chapter 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". 13. It was argued by counsel for the respondent Rao that the Army Act 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 Army Act. Rule 14, therefore, was ultra vires the Army Act. This argument is not correct. 14. 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 subject to the Army Act. 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 whereunder, 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. 15. It was argued that the words "subject to the provisions of this Act" occurring in Section 19 makes Section 19 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 Army Act read with Rule 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. 16. The result is that Rule 14 of the Army Rules, 1954, is not ultra vires the Army Act.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]This argument is not correct14. 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 subject to the Army Act. 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 whereunder, 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 viresBut 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 byl 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 Army Act read with Rule 14 of the Army Rules, 1954, al is not necessary. The two Sections 19 and 45 of the Act are, therefore, mutually exclusive.