TaxTMI 
TaxTMI 
2006 (8) TMI 696
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....ound facts in a nutshell are as follows : 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 Army Rules, 1954 (in short the 'Rules') was constituted to collect evidence and to report. Said Court of Inquiry confirmed the involvement of the appellant. Keeping in view the paramount consideration 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 (in short the 'Act') read with Rule 17 of the Rules. Accordingly, the appellant was dismissed from service dispensing with enquiry. 5. Appellant challenged the order of dismissal on the ground that the same was illegal, unconstitutional, improper, malafide 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 afforded to him....
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....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 mala fide exercise of powers. That being so the High Court was justified in its conclusion that the grievances are without substance. 8. 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 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. (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 the service any person serving under his command other than an officer ....
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....roviso. 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 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 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 no other. (See A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors. (1991)IILLJ50SC , Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors. [1991]2SCR802 and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P)Ltd. and Ors. (1994)5S....
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....n abandoned midway and should have been continued. As rightly noted by the High Court, the enquiry was not qua the 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. In any event, as has been held by this Court in Union of India and Ors. v. Harjeet Singh Sandhu [2001]2SCR1127 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 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 the exercise of such power may stand vitiated if it is shown to have been ....