- (1.) THE plaintiff-respon dent was appointed a Second Lieutenant in the Regular Patiala Army on 28th February, 1933. During the Second World War he was mobilised for war services and was pro moted to the substantive rank of Captain on 28-2-1942. He returned to Patiala on 15-7-1942 and was promoted to the rank of an Acting Major on 5-4-1943. He came under Indian State Force's Officer's Scheme with the rank of Acting Major under the Super imposed India Emergency Commission. This Scheme was to remain in force during the duration of War only. On 5th June, 1945 he was reverted to the Patiala Infantry Training Unit as second-in-command and the Indian Army Superimposed Emergency Com mission was held in abeyance. He was again reverted to the Indian Army Establish ment as the serving Indian State Force's Officer with effect from 29th June, 1947 for a period of three years with seniority as sub stantive Captain from 5th of July, 1943. On 17th June, 1948, he was appointed a Com mandant Refugee Camp Jammu and con tinued to act as Commandant till March 1949 and on 17th March, 1949, he applied to the Military Secretary Army Headquarters for regularising the acting rank of Brigadier on his appointment as Commandant and for regularising his seniority of services for pro motion and appropriate appointment under the Post-war Policy. On 4th June, 1949, the Ministry of Defence granted regular com mission to him in the Indian Army Force with effect from 12th April 1949 and with seniority as indicated against his name - "Ranbir Singh (S. S. 11421 Now I. C. 4313) Sikh Regiment with seniority as Second Lieutenant from 26th January 1945 and as Lieutenant from 26th July 1946".
(2.) ACCORDING to him, the notification sought to adversely affect his seniority in emoluments and he, therefore, made a com plaint under Section 117-A of the Indian Army Act on 29th of June, 1949 claiming Brigadier's pay and rank etc. Not only was his complaint rejected but repeated repre sentations which he made subsequently to the various authorities were also rejected and finally by order dated 5-10-1951 he was informed to abstain from addressing any more appeals on points in respect of which orders of the Central Government have al ready been passed. It was also mentioned therein that failure to comply with this direction may lead to the compulsory re moval of the officer. In spite of the above specific order of the Central Government, the plaintiff persisted in his representation. A show cause notice for the removal of the plaintiff from service was thereupon issued. The plaintiff was finally removed from ser vice by the order of the Central Govern ment which was to take effect from 15-2-1954. The plaintiff unsuccessfully filed peti tions and appeals against the order of re moval and the suit out of which this ap peal arises was then filed after notice under Section 80, Civil P. C. for the relief that order dated 6-2-1954 removing him from service is illegal, without jurisdiction, ultra vires and inoperative. The trial Court on an interpretation of the Indian Army Act, 1950 and relying on S. K. Rao's case re ported in 1968 Lab 1C 60 (Delhi) held that the charge of insubordination being cover ed under Section 42 (e) of the Army Act, title Central Government was not authorised to act under Section 19 ignoring Section 42. The suit was, therefore, decreed for the declaration sought for. The lower appel late Court confirmed the decree of the trial Court, hence this second civil appeal.
(3.) LEARNED counsel for the appel lant has contended that the case relied upon by the Courts below is in appeal be fore their Lordships of the Supreme Court. He has placed his reliance on the judgment of the Hon"ble Supreme Court in Rajendra Pal v. Union of India (Writ Petn. No. 220 of 1960 decided on 12-1- 1967 (SQ) and has contended that in the case of a similar or parallel legislation, the removal of an Air Force Officer was held valid even without any opportunity and charges. Article 310, Constitution of India provides that except as expressly provided by the Constitution, every member of a Defence service or of a Civil Service holds office during the pleasure of the President. Article 311 expressly provides that no per son who is a member of Civil Service shall be removed or dismissed otherwise than by the authority and the method given therein. The express provision contained in Article 811 in respect of civil servants does not apply to Army personnel. Army Act re gulates the law relating to the government of the Regular Army. Chapter IV deals with the condition of service. The autho rities empowered to terminate and remove an Army personnel are given in Sections 18, 19 and 20. Section 18 lays down that "every person subject to this Act shall hold office during the pleasure of the President." Section 19 is in the following words: "Subject to the provisions of this Act and the Rules and Regulations made there under the Central Government may dismiss, or remove from the service, any person subject to this Act". Section 20 empowers the Chief of the Army Staff to dismiss or remove from ser vice any person other than an officer and reduce to a lower grade or rank any warrant officer or a non-commissioned officer. Section 20 also enumerates the power of various officers of dismissal and removal. Chapter VI deals with offences. Section 34 deals with Offences in relation to the enemy and punishable with death. The various offences are enumerated from Sections 34 to 70 for which an Army personnel can be convicted. Section 34 to 70 also provide the punish ment by a court-martial of the offences men tioned therein. Under Section 34, if a per son commits any of the offences in relation to the enemy, he on conviction by a court-martial is liable to suffer death or such punishment that may be awarded to him by the court- martial. Section 42 which is rele vant is in the following words:- "Any person subject to this Act who commits any of the following offences, that is to say:- (a)................. (b)................... .................... (d).................. (e) Neglects to obey any general, local or other order; or (f)................ (g)................. shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend in the case of the offences specified in clauses (d) and (e) to two years, and in the case of the offences specified in the other clauses to ten years, or such less punishment as is in this Act mentioned. Section 45 deals with "unbecoming conduct" which is as under: "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 punish ment as is in this Act mentioned; and, if he is a junior commissioned officer or a war rant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned". Section 71 provides that: "Punishments may be inflicted in res pect of offences committed by person's sub ject to this Act and convicted by court-mar tial, according to the scale following, that is to say- (a) death; (b) transportation for life or for any pe riod not less than seven years; (c) imprisonment, either rigorous or simple, for any period not exceeding four teen years; (d) cashiering, in the case of officers; (e) dismissal from the service; Section 78 provides that: "A sentence of a court-martial may award in addition to, or without any one other punishment the punishment specified in clause (d) or clause (e) or Section 71 and any one or more of the punishments speci fied in clauses (f) to (1) of that section." ;