# UNION OF INDIA v. S. K. RAO

- **Citation:** [1972] 2 S.C.R. 447
- **Court:** Supreme Court of India
- **Decided:** 1971-11-22
- **Case number:** CIVIL APPELLATE JUR1smcr10N : Civil Appeal No. 1653 of 1967
- **Bench:** S. M. Sikri, J. M. Shelat, I. D. Dua, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-s-k-rao-5667
- **Pages:** 5

## Headnote

Army Act, 1950, ss. 19, 45 and I91 (2)(a), and Army Rules. 1954,
r. 14-Whether r. 14, ultra vires.
The respondent, a commissioned officer in the Indian Army, was found
to have committed acts of gross misconduct by a Court of lnquirv. The
Chief of the Armv 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 Gov·
ernment N remove an officer without being tried and oonyicted by Court
Martial was in derogation of s. 45, Army Act, 1950, which specifically
provides for conviction by court martial and punishn1ent for unbecoming
conduct,
HELD : The rule is not ultra vires. [451 DJ
( 1) Section 19 of the Act provides that subject to the provisions of
the Act and the rules made thereunder the Central Government may ren1ove from service, any person subject to the Act. Therefore, the section
itself suggests that there should be rules regarding removal from service,
and s. 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-Bl
(2) Although s. 19 uses the words "subject to the provisions of this
Act", the section is not subject to s. 45. The power under s. 19 is independent of the power under s. 45, because, while s. 19 speaks of removal
of a person, s. 45 provides that on conviction bv Court Martial an officer
is liable to be cashiered or to suffer such less punishment as is in the Act
tnentioned. f451 B-DJ
CIVIL APPELLATE JUR1smcr10N : Civil Appeal No. 1653 of
1967.
Appeal from the judgment and order dated February 23, 1967
of the Delhi High Court in C.W. No. 403-D of 1959.
B. Sen, P. L. Juneja, R. N. Sachthey a.nd S. P. Nayer, for the
appellant.
denf.ardar Bahadur and Y ougindra Khusha/ani, for the responThe Judgment of the Court was delivered by
. . Silui, C.J.. The judgment. reproduced below, was drafted
by the late Mt. Justice Roy and we all had subscribed to it. We
beatd the tnatte't fottnally again on November 19, 1971. \\'e
adopt tile jud~ttt as our OWli.
-448
SUPREME COURT REPORTS
[1972] 2 S.C.R.
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. S. 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 a11eged that on April 4, 1958, he committed acts of
gross misconduct. The allegations were as follows :
"Knowing Kumari Prakash as the. c:Iaughter 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 to visit . his house
where .he took her in his scooter to the unit lines of 5I11
Gurkha Rifles where he arranged her meeting with a
sepoy of the unit."
"He (i.e. 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 daug,,hter 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 w.as 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 su

## Text

A
B
c
D
E
G
H
UNION OF INDIA
v.
S. K. RAO
November 22, 1971
447
(S. M. SIKRI, C.J., J. M. SHELAT, I. D. DUA AND G. K.
MITTER, JJ.J
Army Act, 1950, ss. 19, 45 and I91 (2)(a), and Army Rules. 1954,
r. 14-Whether r. 14, ultra vires.
The respondent, a commissioned officer in the Indian Army, was found
to have committed acts of gross misconduct by a Court of lnquirv. The
Chief of the Armv 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 Gov·
ernment N remove an officer without being tried and oonyicted by Court
Martial was in derogation of s. 45, Army Act, 1950, which specifically
provides for conviction by court martial and punishn1ent for unbecoming
conduct,
HELD : The rule is not ultra vires. [451 DJ
( 1) Section 19 of the Act provides that subject to the provisions of
the Act and the rules made thereunder the Central Government may ren1ove from service, any person subject to the Act. Therefore, the section
itself suggests that there should be rules regarding removal from service,
and s. 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-Bl
(2) Although s. 19 uses the words "subject to the provisions of this
Act", the section is not subject to s. 45. The power under s. 19 is independent of the power under s. 45, because, while s. 19 speaks of removal
of a person, s. 45 provides that on conviction bv Court Martial an officer
is liable to be cashiered or to suffer such less punishment as is in the Act
tnentioned. f451 B-DJ
CIVIL APPELLATE JUR1smcr10N : Civil Appeal No. 1653 of
1967.
Appeal from the judgment and order dated February 23, 1967
of the Delhi High Court in C.W. No. 403-D of 1959.
B. Sen, P. L. Juneja, R. N. Sachthey a.nd S. P. Nayer, for the
appellant.
denf.ardar Bahadur and Y ougindra Khusha/ani, for the responThe Judgment of the Court was delivered by
. . Silui, C.J.. The judgment. reproduced below, was drafted
by the late Mt. Justice Roy and we all had subscribed to it. We
beatd the tnatte't fottnally again on November 19, 1971. \\'e
adopt tile jud~ttt as our OWli.
-448
SUPREME COURT REPORTS
[1972] 2 S.C.R.
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. S. 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 a11eged that on April 4, 1958, he committed acts of
gross misconduct. The allegations were as follows :
"Knowing Kumari Prakash as the. c:Iaughter 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 to visit . his house
where .he took her in his scooter to the unit lines of 5I11
Gurkha Rifles where he arranged her meeting with a
sepoy of the unit."
"He (i.e. 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 daug,,hter 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 w.as 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 frim. 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.
Capt. Rao thereupon filed a petition under Art. 226 of the
Constitution for quashing the order of removal from service on the
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
UNION v. S. K. RAO (Sikri, C.J.)
449
ground, inter alia, that r. 14 of the Army Rules, 1954, was ultra
vires the Army Act, 1950, 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 Army Act, Rao has no case.
The Army Rules, 1954, including r. 14, were framedJn exercise of the powers conferred by s. 191 of the Army Act, 1950.
Rule 14 of the Army Rules, 1954, is as follows :
" ( l) When after considering the reports on an
officer's 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 communi·
cate 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 recommendatfon of the C-in-C
as to whether the officer should bC,
(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 misoonduct
!lgainst an officer whose further retention in service is not consirlered desirable, without the officer being tried by a court-martial.
450
SUPREME COURT REPORTS
[1972] 2 S.C.lt.
Before removal he must, under the rule, be asked to submit his
explanation and defence. If the explanation is found to be Un·
satisfactory, the Central Government has been given the power to
dismiss or remove the officer.
Rules are framed under s. 191 of the Army Act. Sub-section
( l) of s. 191 gives power to the Central Government to make
rules fQr 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."
Sections 18 & 19 which appear in Ch. IV of the Army Act
dealing with "Conditions of Service" provide as follows :
s. 18-"Every person subject to this Act shall hold office
during the pleasure of the President."
s. 19-"Subject to the provisions of this Act and the
rules and regulations made thereunder the Central
Government may dismiss, or remow from
the
service, any person subject to this Act."
Offences under the Army Act have been dealt with in ss. 34
to 70 in Ch. VI, of which s. 45 is as follows :-
s. 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
Army Act contained specific provisions for punishment for unbecoming conduct, viz. s. 45. To give power to the Central
Government to remove an officer without being tried and convict-
-ed by court-martial was in derogation of s. 45 of the Army Act.
Rule 14, ~herefore, was ultra vires the Army Act. 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 frOin the service any person
A
B
c
D
E
F
G
H
A
B
c
D
E
UNION V. S. K. RAO (Sikri, C.J.)
451
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
rnle 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.
It was argued that the words "subject to the provisions of this
Act" occurring in s. 19 makes s. 19 subject to s. 45, and the
Central Government has thus no power to remove a person from
the service in derogation of the provisions of s. 45. But the power
under s. 19 is an independent power. AJ.though s. 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 convict1r.n by court-martial an officer is liable to be cashiered pr to suffer
such less punishment as is in this Act mentioned. For removal
from service under s. 19 of the Army Act 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 Army Act.
The appeal is, :herefore, 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 respodent herein in the High Court.
V.P.S.
Appeal a!ioll'ed