2007 (7) TMI 673 - SC - Indian Laws

Removal From Army Services - competent authority has wrongly quoted Section 20 in the order of discharge - Challenged the Order of discharge from service in the High Court - Violation Of Principles of Natural Justice - appellant found guilty of prejudicial act to good order and military discipline, charged u/s 63 of the Army Act, 1950 Army Act - HELD THAT - It is an admitted case of the parties that the appellant is governed by the provisions of the Army Act and the Army Rules framed thereunder. The scheme of the Army Act is fairly clear. Chapter IV of the Act deals with Conditions of Service of persons subject to the Army Act. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law see N. Mani v. Sangeetha Theatre Ors. 2004 (3) TMI 786 - SUPREME COURT . Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority u/s 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the learned counsel for the appellant. A plain reading of the order of discharge shows that it is an order of termination of service simpliciter without casting or attaching any stigma to the conduct of the appellant, therefore the said order cannot be termed to be punitive in nature or prejudicial to the future employment of the appellant in getting employment in civil service. Thus, the contention of the learned counsel for the appellant that the order of discharge is punitive in nature does not merit acceptance. We are satisfied that there is ample evidence on record in support of the judgment and order of the Division Bench of the High Court and there is nothing that would justify this Court interfering with it. Therefore, the above arguments of the appellant are unacceptable to us. Thus, the appeal is devoid of merit and it is, accordingly, dismissed. The judgment and order of the Division Bench is affirmed. The parties, however, are left to bear their own costs.

Summary

Issues:
Challenge to order of discharge from Army service based on violation of principles of natural justice and legality of the discharge under Section 63 of the Army Act.

Detailed Analysis:

1. Violation of Principles of Natural Justice:
The appellant challenged the order of discharge from the Army service in the High Court of Calcutta, contending a violation of the principles of natural justice. The learned Single Judge set aside the order of discharge, emphasizing the importance of following natural justice principles. However, the Division Bench of the High Court overturned this decision, leading to the current appeal before the Supreme Court.

2. Legality of Discharge under Section 63 of the Army Act:
The appellant argued that the order of removing him from service was contrary to Section 63 of the Army Act, which mandates imposing punishment only after conviction by court-martial. It was contended that the proceedings of the court of inquiry were used as evidence against the appellant, violating Rule 12 of the Army Rules. The appellant asserted that he was administratively discharged, depriving him of benefits like pension and future employment, which could only be done after a court-martial conviction.

3. Judicial Review of Discharge Order:
The Supreme Court examined the legality of the discharge under Section 22 of the Army Act and Rule 13 of the Army Rules. The Court noted that the appellant was discharged by the competent authority after providing an opportunity to show cause, as required under the rules. The Court also clarified that the court of inquiry was conducted to gather evidence and not to conduct a trial or court-martial, as evident from precedents cited.

4. Adherence to Legal Procedures:
The Court emphasized that the order of discharge was passed under the appropriate provisions of the Army Act, despite a technical error in quoting the section. It was clarified that the order was not punitive in nature and did not attach any stigma to the appellant's conduct. The Court held that the discharge was conducted following due process, including affording the appellant an opportunity to defend himself.

5. Dismissal of Appeal:
After considering the arguments presented by both parties and reviewing the entire material on record, the Supreme Court found the appeal devoid of merit. The Court affirmed the judgment and order of the Division Bench of the High Court, dismissing the appeal. The parties were directed to bear their own costs, concluding the legal proceedings on the matter.