TMI Blog2006 (8) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... the Jammu and Kashmir High Court dismissing the Letters Patent Appeal filed by the appellants questioning correctness of the order passed by a learned Single Judge whereby the writ petition filed by him was dismissed. The review petition filed was also dismissed which is the subject matter of challenge in Civil Appeal No. 7308 of 2003. The other appeal relates to the order passed in the Letters Patent Appeal. 4. Background 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 Inqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principles of natural justice. The High Court rejected the stand holding that the enquiry which was originally conducted was not qua the appellant but it related to the incident. Further neither any notice was issued nor any charge sheet was submitted. In any event it was held that the authorities were empowered to take action in terms of Section 20 of the Act read with Rule 17 of the Rules in appropriate cases. The Letters Patent Appeal as noted supra did not bring any relief to the appellant. A review application was filed against the order of learned Single Judge as affirmed by the Division Bench, which as noted above, was also dismissed. 7. In support of the appeal, Mr. Bhim Singh, learned Counsel submitted that the true scope an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 or a junior commissioned officer. (4) An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut complying with the procedure set out in this rule. All cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported to the Central Government. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey 1880 (5) QBD 170 (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha [1962]2SCR159 ) and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta [1965]3SCR354 ; when one finds a proviso to a section the natural presumption is that, but for the proviso, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails....But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole (per Lord Wrenbury in Forbes v. Git [1922] 1 A.C. 256. A statutory proviso is something engrafted on a preceding enactment (R. v. Taunton, St James 9 B. C. 836). The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances (per Lord Esher in Re Barker 25 Q.B.D. 285) . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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