CANTONMENT BOARD, JAMMU & ORS.versusJAGAT PAL SINGH CHEEMA

                         [2012] 6 S.C.R. 1192


A            CANTONMENT BOARD, JAMMU & ORS.
                                   v.
                    JAGAT PAL SINGH CHEE.MA
                   (Civil Appeal No. 5820 of 2012)
B
                           AUGUST 9, 2012
           [P. SATHASIVAM AND RANJAN GOGOi, JJ.]
         CANTONMENTS ACT, 1924:
C         ss. 52- Power of Officer Commanding-in-Chief, the
    command on reference u/s.51 or otherwise - Held: The
    power conferred by s. 52 in the Officer Commanding-in-Chief,
    the Command, is a power to correct the decisions of the
    Cantonment Board - It is a power vested in a high functionary
    of the Cantonment to be exercised for the reasons spelt out
0   by the statute - Therefore, the power conferred by the first part
    of s. 52 should not be, in any manner, curtailed by reading a
    limit thereon so as to exclude from its purview the matters that
    may have reached the specified authority by way of an invalid
    or incompetent reference.
E
       The respondent, employed as a Section Officer with
  the appellant-Cantonment Board, consequent upon a
  departmental inquiry, was removed from service by order
  dated 6.9.1997. On the direction of the High Court in a writ
F petition filed by the employee, the Cantonment Board in
  its meeting held on 18.5.2001 reconsidered the enquiry
  report. The President of the Cantonment Board did not
  subscribe to the majority view to set aside the removal
  of the employee. The matter was referred to the Officer
G Commanding in-Chief, the Command, who affirmed the
  penalty of removal of the respondent from service. The
  writ petition filed by the employee was allowed by the
  Single Judge of the High Court holding that the Officer
  Commanding-in-Chief, the Command was not vested

H                                1192
 CANTONMENT BOARD, JAMMU & ORS. v. JAGAT 1193
           PAL SINGH CHEEMA

with any power to annul the decision of the Cantonment          A
Board. The letters patent appeal of the Cantonment
Board was dismissed by the Division Bench of the High
Court holding that the reference was not authorised and
in consonance with the provisions of s.51 of the
Cantonment Boards Act, 1924.                                    B
    Allowing the appeal, the Court
     HELD: 1.1. Section 52 of the Cantonment Boards Act,
1924 (the Act) is in two parts. The first part deals with the
powers of the Officer Commanding-in-Chief, the
Command, in respect of decisions of the Board that may          C
have come to his notice or placed before him otherwise
than by way of a reference made by the President of the
Board u/s. 51 (1 ). The second part of Section specifically
deals with the power of the Officer Commanding-in-Chief,
the Command, to deal with the decisions of the Board            D
which have come before him by way of a reference made
u/s. 51 (1) of the Act. Both parts of Section 52 authorize
the Officer Commanding-in-Chief, the Command, to annul
a decision of the Board. [para 9] [1201-G-H; 1202-A-B]
                                                                E
      1.2. The power conferred by s. 52 in the Officer
Commanding ..in-Chief, the Command, is a power to
correct the decisions of the Cantonment Board. The
necessity for such corrections may arise in myriad
situations and the difference in the mode and manner in
which such matters may reach the Officer Commanding-            F
in-Chief, the Command, namely, by way of reference u/s.
51 or otherwise, cannot be determinative of the contours
for exercise of the power. It is a power vested in a high
functionary of the Cantonment to be exercised for the
reasons spelt out by the statute. Therefore, in the             G
considered view of this Court, the power conferred by the
first part. of s. 52 should not be, in any manner, curtailed
by reading a limit thereon so as to exclude from its
purview matters that may have reached the specified
                                                                H
    1194    SUPREME COURT REPORTS            [2012] 6·S.C.R.


A   authority by way of an invalid or incompetent reference.
    [Para 12] [1203-C-F]
         1.3. In the instant case, the order dated 22.11.2001
    passed by the Officer Commanding-in-Chief, the
    Command, which was under challenge before the High
B   Court, specifically recites that the power is being
    exercised u/s. 52(1) of the Act. The said provision deals
    with matters/decisions of the Board that may have come
    before the Officer Commanding-in-Chief, the Command,
    otherwise than by way of reference u/s. 51. The President
C   of the Board while referring the decision of the Board
    dated 18.5.2001 to the Officer Commanding-in-Chief, the
    Command, did not record any satisfaction that the
    majority decision of the Board was prejudicial to the
    health, welfare, discipline or security of the forces and
D   the reasons therefor. Thus, the reference made in the
    instant case was invalid. The second undisputed fact is
    that the Officer Commanding-in-Chief, the Command,
    before passing the Order dated 22.11.2001 had issued
    show cause notice to the Board as required by either of
E   the limbs of s. 52. [para 10-11] [1202-C-D, F-H; 1203-A]
       1.4. The power to interfere with any ~ecision of the
  Board is vested in the Officer Commanding-in-Chief, the
  Command, and the provisions of s.52 of the Act merely
  enumerate the slightly different modes of exercise of the
F power in the different circumstances contemplated
  therein. If the power to perform a particular act is
  traceable to a specific provision of the statute the court
  must lean in favour of the action taken. [Para 13] [1204-
  A-B]
G      1.5. Therefore, the conclusions reached by the High
  Court ought not to be sustained, and the order passed
  by it in the LPA is set aside. The matter is rem.anded to
  the High Court for consideration of all the other
  contentions raised in the writ petition by the employee.
H [Para 14 and 15] [1204-D-F]
 CANTONMENT BOARD, JAMMU & ORS. v. JAGAT 1195
           PAL SINGH CHEEMA

    State of Sikkim v. Dorjee Tshering Bhutia 1991 (3) A
SCR 633 = 1991 (4) SCC 243; Municipal Corporation of the
City of Ahmedabad v. Ben Hiraben Manila/ 1983 (2)
SCC 442; N. Mani v. Sangeetha Theatre 2004 (12) SCC 278;
and B.S.E. Broker's Forum, Bombay v, Securities and
Exchange Board of India 2001 (3) sec 482 - relied on.    B
                     Case Law Reference:
    1991 (3) SCR 633            relied on            Para 13
    (1983) 2 sec 422            relied on            Para 13
    (2004) 12 sec 218           relied on            Para 13      C
    (2001) 2 sec 482            relied on            Para 13
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5820 of 2012.
    ·From the Judgment & Order dated 7.2.. 2007 of the High       D
Court of Jammu & Kashmir at Jammu in LP.A. (SW) No. 158
of 2006.
      Sidharth Luthra •. ASG, Madhurima Tatia, D.L. Chidanand,
Rekha Pandey, Yashpreet Singh, B.V. Bairam Das, D.S. Mahra        E
for the Appellant.
    Debal Banerji, Shibashish Misra, Abhinandan Nanda,
Joydeep Mazumdar for the Respondent.
    The Judgment of the Court was delivered by
                                                                  F
    RANJAN GOGOi, J. 1. Leave granted.
      2. This appeal is directed against the judgment and order
dated 7.2.2007 passed by the High Court of Jammu and
Kashmir whereby the High Court has allowed the Writ Petition
filed by the respondent challenging the punishment of removal     G
from service that was imposed on him by the Cantonment
Board, Jammu. It may be noticed, at the outset, that the High
Court had allowed the Writ Petition of the respondent on the
ground that the order of the Officer Commanding-in-Chief, the
Command, affirming the order of the Cantonment Board              H
    1196     SUPREME COURT'REPORTS                [2012] 6 'S.C.R.


A   removing the respondent from service was passed on the basis
    of an invalid reference made to the Officer Commanding-in-
    Chief, the Command, under the provisions of the Cantonments
    Act, 1924 (hereinafter referred to as the 'Act').
        3. A brief conspectus of the relevant facts would be
B   necessary at this stage.
       T.he respondent; Jagat Paul Singh Cheema, was
  employed as a Section Officer with the Cantonment Board,
  Jammu. On various charges a departmental enquiry was held
C against the respondent, whereafter he was removed from
  service by an order dated 6.9.1997. The appeal filed against
  the said order was dismissed. The respondent, therefore,
  moved the High Court of Jammu & Kashmir challenging the
  order of removal from service, interalia, on the ground that the
  report of the enquiry held against him was not furnished to him
0 at any stage. The High Court by its order dated 4.4.2001
  allowed the writ petition and directed the 'Punishing Authority'
  to re-decide the matter after affording an opportunity of hearing
  to the respondent. In compliance with the said directions the
  report of enquiry was furnished to the respondent and the matter
E was reconsidered by the Cantonment Board in its meeting held
  on 18.5.2001. In the said meeting while the non-official
  members (five in number) were of the view that the order of
  punishment imposed on the respondent should be set aside
  and he should be reinstated in service, the President of the
F Cantonment Board and two other ex-officio members
  supported the initial decision of the Cantonment Board to
  impose the punishment in question. Thereafter, it appears, that
  at the instance of the Chief Executive Officer of the Cantonment
  Board the matter was referred to the Officer Commanding-in-
G Chief, the Command.
         4. The said authority issued a show cause notice dated
    6.8.2001 to the Cantonment Board and on receipt of its reply,
    by order dated 22.11.2001, affirmed the penalty of removal of
    service imposed on the respondent.
 CANTONMENT BOARD, JAMMU & ORS. v. JAGAT 1197
    PAL SINGH CHEEMA [RANJAN GOGOi, J.]

     5. Aggrieved by the aforesaid order dated 22.11.2001, the     A
respondent again moved the High Court. The writ petition filed
(WP No. 3039 of 2001) was allowed by an order dated
15.2.2006 passed by a learned Single Judge holding that the
Officer Commanding"in-Chief, the Command, was not vested
with any power under the Act to annul the decision of the          B
Cantonment Board and the power of the said authority under
the Act only extended to giving of directions to the Cantonment
Board for reconsideration of the matter. Aggrieved by the said
order of the learned Single Judge, the Cantonment Board filed
a Letters Patent Appeal before a Division Bench of the High        c
Court which was answered by the impugned order dated
7.2.2007. The Division Bench, by its aforesaid order, took the
view that under the provisions of the Act, upon a reference
made to him, the Officer Commanding-in-Chief, the Command,
was duly empowered to annul a decision of the Cantonment           D
Board after giving an opportunity of showing cause to the Board.
However, in the present case, the ·reference made was not
authorized and in consonance with the provisions of Section
51 of the Act. The power to annul the decision of the Board,
though vested in the Officer Commanding-in-Chief, the              E
Command, therefore, could not have been legitimately
exercised in the present case. Accordingly the Division Bench
affirmed the conclusions of the learned Single Judge, though
for reasons different.
     6. Shri Luthra, learned Additional Solicitor General,         F
appearing for the appellant-Board has urged before us that the
power of the Officer Commanding-in-Chief, the Command to
deal with matters decided by the Cantonment Board is set out
in the provisions contained in Section 52 of the Act. It is
submitted that Section 52 is in two parts. While the first part
deals with the power of the Officer Commanding-in-Chief, the       G
Command, in respect of decisions of the Board which are not
covered by a reference made under Section 51 of the Act, the
later provisions of Section 52 specifically deals with matters
referred to the Officer Commanding-in-Chief, the Command,
under Section 51(1) of the Act. According to Shri Luthra the       H
    1198     SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A  power of the Officer Commanding-in-Chief, the Command,
   under the first part of Section 52 is broad and expansive and
  capable of authorizing a decision to annul any resolution of the
  Board. The exercise of power under the first part of Section 52,
  according to Shri Luthra, is not contingent on the manner in
B which the decision of the Board may have come to be placed
  before the Officer Commanding-in-Chief, the Command. In
  other words, according to Shri l-uthra, the power under Section
  52 can be exercised not only in situations where no reference
  is made under Section 51 but such power will be available to
C strike down a decision of the Board even in cases where such
  a decision may have come before the Officer Commanding-
  in-Chief, the Command, by way of an invalid or incompetent
  reference. Shri Luthra has further submitted that such a view
  would not be inconsistent with the provisions of Section 52 (2)
  in asmuch as the said provision specifically deal with the power
0
  of the Officer Commanding-in-Chief, the Command to deal with
  the decisions of the-Board in cases where a specific reference
  is validly made by the Board under Section 51 of the Act. Shri
  Luthra has further buttressed his arguments by relying on the
  well-established proposition of law that sg long as the power
E to perform an act in a particular manner is vested under the
  statute, the exercise of such power cannot be faulted on the
  ground of a wrong recital of the specific provision of the statute.
  In support, Shri Luthra has relied upon several decisions of this
  Court which will be noticed at a later stage of the present order.
F
       7. In reply, Shri Banerjee, learned senior counsel
  appearing for the respondent has contended that it is not in
  dispute that in the present case the decision of the Board taken
  in the meeting held on. 18.5.2001 was referred to the Officer
  Commanding-in-Chief. the Command, by the President.of the
G Board under Section 51 (1) of the Act. Pointing out the
  provisions of Section 51, Shri Banerjee, has urged that under
  Section 51 (1) a reference can be made to the Officer
  Commanding-in-Chief, the Command, only in a situation where
  the President of the Cantonment Board dissents from any
H
 CANTONMENT BOARD, JAMMU & ORS. v. JAGAT 1199
    PAL SINGH CHEEMA [RANJAN GOGOi, J.]

decision of the Board on the ground that such a decision, in
the view of the President, is prejudicial to the health, welfare,
discipline or security of the forces. The reasons for such dissent
on the grounds spelt out by Section 51(1), according to learned
counsel, is required to be recorded in the Minutes of the
meeting of the Board. In the present case though a reference          B
has been made by the President to the Officer Commanding-
in-Chief, the Command, the reasons why such a reference was
considered necessary by the President have not been
recorded. Therefore, according to Shri Banerjee, the reference
to the Officer Commanding-in-Chief, the Command, was not a            c
valid reference authorized by the provisions of Section 51(1).
It is contended that as Section 52(2) is exhaustive of the powers
of the Officer Commanding-in-Chief, the Command, in
considering a decision of the Board that has been referred to
him under Section 51(1), the said authority cannot proceed to         D
exercise the power vested in him under Section 52(1) while in
seisin of a matter referred to him by the Board under Section
51(1). According to learned counsel, the power under Section
52(1) will be available for exercise only in a situation where the
decision of the Board is before the Officer Commanding-in-            E
Chief, the Command, otherwise than by way of a reference.
     8. Before adverting to the respective submissions
advanced on behalf of the parties, it will be convenient to extract
the provisions contained in Sections 51 and 52 of the Act which
are extracted below:                                                  F
     "51. Power to override decision of Board -- (1) If the
     President dissents from any decision of the Board, which
     he considers prejudicial to the health, welfare or discipline
     of the troops in the cantonment, he may, for reasons to be
     recorded in the minutes, by order in writing, direct the         G
     suspension of action thereon for any period not exceeding
     one month and, if he does so, shall forthwith refer the
     matter to the Officer Commanding-in-Chief, the Command,
     the reference being made, save in cases where the Officer
     Commanding the District is himself the Officer                   H




                                       (
        1200   SUPREME COURT REPORTS                 [2012) 6 S.C.R.


    A      Commanding-in-Chief, the Command, for the purposes of
           this Act, through the Officer Commanding the District, who
           may make such recommendations thereon as he thinks fit.
           (2) If the District Magistrate considers any decision of a
           Board to the prejudicial to the oublic health, safety or
    B      convenience, he may, after giving notice in writing of his
           intention to the Board, refer the matter to the Government;
           and, pending the disposal of the reference to the
           Government no action shall be taken on the decision.
           (3) If any Magistrate who is a member of a Board, being
    c      present at a meeting, dissents from any decision which he
           considers prejudicial to the public health, safety or
           convenience, he may, for reasons to be recorded in the
           minutes and after giving notice in writing of his intention
           to the President, report the matter to the District
    D      Magistrate; and the President shall, on receipt of such
           notice, direct the suspension of action on the decision for
           a period sufficient to allow of a communication being made
           to the District Magistrate and of his taking proceedings as
           provided by sub-Section (2).
    E
           52. Power of Officer Commanding-in-Chief, the
           Command, on reference under Section 51 or otherwise
           -- (1) The Officer Commanding-in-Chief, the Command,
           may at any time-
    F             (a) direct that any matter or any specific proposal
                  other than one which has been referred to the
                  Government under sub-Section (2) of Section 51 be
                  considered or re-considered by the Board; or
                  (b) direct the suspension, for such period as may
    G             be stated in the order, of action on any decision of
                  a Board, other than a decision which has been
                  referred to him under sub-Section (1) of Section 51,
                  and thereafter cancel the suspension or after giving
                  the Board a reasonable opportunity of showing
    H             cause why such direction should not be made,



t
 CANTONMENT BOARD, JAMMU & ORS. v. JAGAT 1201
    PAL SINGH CHEEMA [RANJAN GOGOi, J.]

           direct that the decision shall not be carried into         A
           effect or that it shall be carried into effect with such
           modifications as he may specify.
    (2) When any decision of a Board has been referred to
    him under sub-Section (1) of Section 51, the Officer
    Commanding-in-Chief, the Command, may, by order in                B
    writing,-
           (a) cancel the order given by the President directing
           the suspension of action; or
           (b) extend the direction of the order for such period      c
           as he thinks fit; or
           (c) after giving the Board a reasonable opportunity
           of showing cause why such direction should not be
           made, direct that the decision shall not be carried
           into effect or that it shall be carried into effect by D
           the Board with such modifications as he may
           specify."
     9. Section 51 authorizes the President of the Cantonment
Board to dissent from a majority decision of the Board, if he
                                                                      E
considers the decision of the Board to be prejudicial to the
health, welfare, discipline or security of the forces. If the
President of the Board arrives at any such conclusion, he has             ,,
been vested with the power to suspend the decision of the
Board for a specified period, not exceeding one month, for
reasons to be recorded in writing. However, Secti.on 51 of the        F
Act requires the President to make a reference of the matter
to the Officer Commanding-in-Chief, the Command.
      Section 52 of the Act deals with the power of the Officer
Commanding-in-Chief, the Command in respect of the G
decisions. of the Board. Section 52, really, is in two parts. The
first part deals with the powers of the Officer Commanding-in-
Chief, the Command, in respect of decisions of the Board that
may have come to his notice or placed before him otherwise
than by way of a reference made by the President of the Board
                                                                  H
         1202     SUPREME COURT REPORTS                 [2012) 6 S.C.R.


     A   under Section 51 (1 ). The second part of Section 52 specifically
         deals with the power of the Officer Commanding-in-Chief, the
         Command, to deal with the decisions of the Board which have
         come before him by way of a reference made under Section
         51 (1) of the Act. Both parts of Section 52 authorize the Officer
     B   Commanding-in-Chief, the Command, to annul a decision of
         the Board. However, before doing so a show cause notice to
         the Board is required to be issued.
            10. In the present case the order dated 22.11.2001 passed
       by the Officer Commanding-in-Chief, the Command, which was
     C under challenge before the High Court specifically recites that
       power is being exercised under Section 52(1) of the Act. The
       said provision deals with matters/decisions of the Board that
       may have come before the Officer Commanding-in-Chief, the
       Command, otherwise than by way of reference under Section
     o 51. The aforesaid conclusion reasonably follows from a reading
       of the provisions of Section 52(2) of the Act whiGh deals with
       the powers of the Officer Commanding-in-Chief, the Command,
       in respect of the matters/decisions of the Board that may have
       come before him by way of reference under Section 51(1) of
     E the Act. The question that confronts the Court is whether the
       two shades of power under Section 52 has to be understood
       to be available for exercise in specific water tight compartments
       which are mutually exclusive and inconsistent to each other.
             11. Certain facts not in dispute and which may have a
     F  relevant bearing to the issue arising for determination as
        noticed above may now be taken note of. The President of the
        Board while referring the decision of the Board dated
        18.5.2001 to the Officer Commanding-in-Chief, the Command,
        did not record any satisfaction that the majority decision of the
     G. Board was prejudicial to the health, welfare, discipline or
        security of the forces and the reasons therefor. There may,
        therefore, be substance in the argument raised on behalf of the
        respondent that the reference made in the present case was
        invalid. The second undisputed fact that will be required to be
     H noticed is that the Officer Commanding-in-Chief, the



"\
 CANTONMENT BOARD, JAMMU & ORS. v. JAGAT 1203
    PAL SINGH CHEEMA [RANJAN GOGOi, J.]

Command, before passing the Order dated 22.11.2001 had                A
issued show cause notice to the Board as required by either
of the limbs of Section 52.
     12. The power vested in the Officer Commanding-in-Chief,
the Command, by the two limbs of Section 52, though at first
blush, may appear to be intended to apply and operate in              B
specific fields, in our considered view, such an interpretation
of Section 52 would run contrary to the legislative intent behind
the conferment of the power in the Officer Commanding-in-
Chief, the Command under Section 52. The power conferred
by Section 52 in the Officer Commanding-in-Chief, the                 C
Command, is a power to correct tile decisions of the
Cantonment Board. The necessity for such corrections may
arise in myriad situations and the difference in the mode and
manner in which such matters may reach the Officer
Commanding-in-Chief, the Command, namely, by way of                   o
reference under Section 52 or otherwise cannot be
determinative of the contours for exercise of the power. It is a
power vested in a high functionary of the Cantonment to be
exercised for the reasons spelt out by the statute. If that is the
purpose for which power has been vested by the statute, in our        E
considered view, the power conferred by the first part of Section
52 should not be, in any manner, curtailed by reading a limit
thereon so as to exclude from its purview matters that may have
reached the specified authority by way of an invalid or
incompetent reference. To read the provisions of Section 52(1)
                                                                      F
to cover situations where the decision of the Board may have
reached the Officer Commanding-in-Chief, the Command,
otherwise than by way of a valid reference, as in the present
case, apart from suo moto exercise of the power by the said
authority, according to us, would effectuate the legislative intent   G
behind enactment of Section 52. The above manner of reading
the power conferred by Section 52(1) will also not render the
provisions of Section 52(2) nugatory in asmuch as Section
52(2) deals with situations where decisions of the Board have
reached the Officer Commanding-in-Chief, the Command, by
way of a valid reference.                                             H
    1204       SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A        13. The power to interfere with any decision of the Board
    is vested in the Officer Gommanding-in-Chief, the Command,
    and the provisions of Section 52 merely enumerate the slightly
    differ~nt modes of exercise of the power in the different
    circumstances contemplated therein. The principle of law relied
B   upon by the learned counsel for the appellant, namely, that if
    the power to perform a particular act is traceable to a specific
    provision of the statute the Court must lean in favour of the
    action taken, therefore, appears to be correct. In this regard
    support can be drawn from the decision of this Court in State
C   of Sikkim v. Dorjee Tshering Bhutia1 ; Municipal Corporation
    of the City of Ahmedabad v. Ben Hiraben Manila/2; N. Mani
    v. Sangeetha Theatre 3 and B.S.E. Broker's Forum, Bombay
    v. Securities and Exchange Board of lndia4 •
         14. In view of the above discussion we are of the opinion
D .that the conclusions reached by the High Court ought not to be
  .sustained. We, accordingly, allow this appeal and set aside the
   order of the High Court passed in the LPA.
          15. We have noticed that certain questions with regard to
    the merits of the order dated 22.11.2001 passed by the Officer
E · Commanding-in-Chief, the Command, were raised in the writ
    petition. As the writ petition as weli as the LPA arising therefrom
    were decided on the question of jurisdiction of the Officer
    Commanding-in-Chief, the Command, to pass the impugned
    order dated 22.11.2001, the High Court had no occasion to go
F into the said questions raised. We, therefore, remand the matter
    to the High Court for consideration of ~II the other contentions
    raised in the writ petition by the respondent herein which issues
    will now be decided by the High Court as expeditiously as
    possible.
G                                                     Appeal allowed.
    R.P.
    1.   (1991) 4 sec 243.
    2.   (1983) 2 sec 422.
    3.   c2004) 12 sec 278.
H   4.   c2001i 3 sec 482.