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Thursday, December 29, 2016

crossed the threshold of four red entries= there was no application of mind by the authorities to the circumstances which have to be taken into consideration while exercising the power under Rule 13. The mere fact that the appellant had crossed the threshold of four red entries could not be a ground to discharge him without considering other relevant circumstances including (i) the nature of the violation which led to the award of the red ink entries; (ii) whether the appellant had been exposed to duty in hard stations and to difficult living conditions; (iii) long years of service, just short of completing the qualifying period for pension. Even after the Madhya Pradesh High Court specifically directed consideration of his case bearing in mind the provisions of the circular, the relevant factors were not borne in mind. The order that was passed on 26 February 2007 failed to consider relevant and germane circumstances and does not indicate a due application of mind to the requirements of the letter of Army Headquarters dated 28 December 1988 and the circular dated 10 January 1989. For these reasons, we are of the view that the Armed Forces Tribunal was in error in rejecting the application. The orders of the Tribunal dated 23 September 2010 and 15 September 2011 are set aside. Since the appellant would have attained the age of superannuation, the ends of justice would be met if he is treated to have been in service till the time he would have completed the qualifying service for grant of pension. No back-wages shall however be admissible. The benefit of continuity of service for all other purposes shall be granted to the appellant including pension. The monetary benefits payable to the appellant shall be released within a period of four months from the date of this order.

                                                                  REPORTABLE

         IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL Nos.12179-12180 of 2016
             (Arising out of CIVIL APPEAL (D)No. 34132 OF 2013)


VIJAY SHANKAR MISHRA                   .....APPELLANT


                                   Versus



UNION OF INDIA & ORS          .....RESPONDENTS







                               J U D G M E N T

Dr D Y CHANDRACHUD, J

Leave granted

Delay condoned.

These appeals arise from judgment of the  Armed  Forces  Tribunal  dated  23
September 2010 and 15 September, 2016.



The appellant was enrolled in the Army Medical Corps on 23 June 1984.  On  3
October 1997, a notice to show cause was issued to him  to  explain  why  he
should not be discharged from service under Rule  13(3)III(v)  of  the  Army
Rules on the ground that his conduct which in service  had  not  been  found
satisfactory. On 15 October 1997 the appellant was placed in a  low  medical
category BEE (Permanent).  On  4  December  1998,  he  was  discharged  from
service under Rule 13(3) Table (III)(v).      By that time he  had  rendered
service of 13 years 8 months and 19 days (excluding 188 days non  qualifying
service). The minimum qualifying service for earning pension under Rule  132
of the Pension Regulations for the Army 1961 (Part-I) is fifteen years.   By
an order of 22 May 1999 the appellant was also denied disability pension.



The petitioner filed a writ petition before the Madhya  Pradesh  High  Court
which was dismissed on 21 November 2006.  In appeal a Division Bench by  its
judgment dated 3 January 2007 directed reconsideration of the  case  of  the
appellant in terms of  a  circular  bearing  No.0201/A/164/Admn-1  dated  10
January 1989. Pursuant to the order of the High Court an  order  was  issued
on 26 February 2007 rejecting his claim for pension on the  ground  that  he
did not have fifteen years’ service and had been discharged for  the  reason
that he was unlikely to  become  an  efficient  soldier.  Moreover,  it  was
stated that disability pension was denied to the  appellant  (despite  being
placed in a low medical category on account of primary hypertension) on  the
ground that he had earned six red ink entries which were a part of an  award
of punishment on nine occasions.



The appellant filed a writ petition before the Madhya Pradesh High Court  in
2007  which  was  eventually  transferred  to  the  Armed  Forces   Tribunal
registered as TA 320 of 2010.  The Tribunal  dismissed  the  application  by
its order dated 23 September  2010.   The  appellant  then  filed  a  review
application in 2011 which was rejected  by  the  Tribunal  on  15  September
2011. A writ petition was filed before the Madhya Pradesh High  Court  which
was dismissed on 4 July 2012 since the remedy of  the  appellant  would  lie
before this Court.  The  application  filed  by  the  appellant  before  the
Tribunal for leave to appeal to this Court was rejected  on  the  ground  of
delay on 4 April 2013.

5     The contention of the appellant is that his discharge  shortly  before
he would complete qualifying service for the grant of  pension  was  grossly
disproportionate. Moreover, reliance was placed on behalf of  the  appellant
on circular No.0201/A/164/Admn-1 dated 10 January  1989  which  provides  as
follows:

“Discharge from service consequent to four red entries is  not  a  mandatory
or legal requirement.  In such cases, Commanding Officer must  consider  the
nature of offences for which each red ink entry has been awarded and not  be
harsh with the individuals, especially when they are about to  complete  the
pensionable  service.   Due  consideration  should  be  given  to  the  long
service, hard stations and difficult living conditions that the OR has  been
exposed to during his service and the discharge should be ordered only  when
it is absolutely necessary in the interest of service”.



6     In the submission of the appellant the mere  fact  that  he  had  been
punished while in service on nine occasions inclusive  of  six  red  entries
was no ground to exercise the power under Rule 13(3) Table III(v).   It  was
urged that the mere award of four red entries does not  render  a  discharge
mandatory and that the individual facts including the nature of the  offence
for which the entries were awarded and long service in hard  stations  where
a member of the force was posted have to be duly borne in mind.

7     The issue which arises in the present  case  is  not  res  integra.  A
Bench of three learned Judges  of  this  Court  including  one  of  us  (the
learned Chief Justice) in Veerendra Kumar Dubey v. Chief  of  Army  Staff[1]
held as follows :

“10. The Government has, as rightly mentioned by  the  learned  counsel  for
the  appellant,  stipulated  not  only  a  show-cause  notice  which  is  an
indispensable part of the requirement of the  Rule  but  also  an  impartial
enquiry into the allegations against him in  which  he  is  entitled  to  an
adequate opportunity of putting up his  defence  and  adducing  evidence  in
support  thereof.  More  importantly,  certain  inbuilt  safeguards  against
discharge from service  based  on  four  red  ink  entries  have  also  been
prescribed. The first and foremost is an unequivocal declaration  that  mere
award of four red ink entries to an individual does not make  his  discharge
mandatory. This  implies  that  four  red  ink  entries  is  not  some  kind
of Laxman rekha, which if crossed would  by  itself  render  the  individual
concerned undesirable or unworthy of retention in the force. Award  of  four
red ink entries simply pushes the individual  concerned  into  a  grey  area
where he can be considered for discharge. But just because he qualifies  for
such discharge, does not mean that he must necessarily suffer that fate.  It
is one thing to qualify for consideration and an  entirely  different  thing
to be found fit for discharge. Four red ink entries in that sense  take  the
individual closer to discharge but does not push him over. It  is  axiomatic
that the Commanding Officer is,  even  after  the  award  of  such  entries,
required to consider the nature of the offence for which such  entries  have
been awarded and other aspects  made  relevant  by  the  Government  in  the
procedure it has prescribed.”



This Court has in the above judgment construed the provisions of Rule 13  of
the Army Rules, 1954 together with a letter of the Army  Headquarters  dated
28  December  1988  (bearing  No.  A/15010/150/AG/PS-2(c).  Emphasising  the
factors which have to be borne in mind, this Court held thus :

“16. The procedure prescribed by the  Circular  dated  28-12-1988  far  from
violating Rule 13 provides safeguards against an unfair and improper use  of
the power vested in the authority, especially when even independent  of  the
procedure  stipulated  by  the   competent   authority   in   the   Circular
aforementioned, the authority exercising the power of discharge is  expected
to take into consideration all relevant factors. That an individual has  put
in long years of service giving more often than not the  best  part  of  his
life to armed forces,  that  he  has  been  exposed  to  hard  stations  and
difficult living conditions during his tenure and that he may be  completing
pensionable service, are factors which the authority competent to  discharge
would have even independent of the procedure  been  required  to  take  into
consideration while exercising the  power  of  discharge.  Inasmuch  as  the
procedure stipulated specifically made them relevant  for  the  exercise  of
the power by the competent authority there was neither any  breach  nor  any
encroachment by executive instructions into the  territory  covered  by  the
statute.”



8     In the present case, it is evident that there was  no  application  of
mind by the authorities to the circumstances which have  to  be  taken  into
consideration while exercising the power under Rule 13.  The mere fact  that
the appellant had crossed the threshold of four red entries could not  be  a
ground to discharge him without  considering  other  relevant  circumstances
including (i) the nature of the violation which led to the award of the  red
ink entries; (ii) whether the appellant had been exposed  to  duty  in  hard
stations and to difficult living conditions; (iii) long  years  of  service,
just short of completing the qualifying period for pension.  Even after  the
Madhya Pradesh High Court specifically directed consideration  of  his  case
bearing in mind the provisions of the circular, the  relevant  factors  were
not borne in mind.  The order that was passed on 26 February 2007 failed  to
consider relevant and germane circumstances and  does  not  indicate  a  due
application of mind to the requirements of the letter of  Army  Headquarters
dated 28 December 1988 and the circular dated 10 January 1989.

9     For these reasons, we are of the view that the Armed  Forces  Tribunal
was in error in rejecting the  application.   The  orders  of  the  Tribunal
dated 23 September 2010 and 15 September  2011  are  set  aside.  Since  the
appellant would have  attained  the  age  of  superannuation,  the  ends  of
justice would be met if he is treated to have been in service till the  time
he would have completed the qualifying service  for  grant  of  pension.  No
back-wages shall  however  be  admissible.  The  benefit  of  continuity  of
service for all other purposes shall be granted to the  appellant  including
pension. The monetary benefits payable to the appellant  shall  be  released
within a period of four months from the date of this order.

10    The appeals are allowed in these terms. There shall be no order as  to
costs.


.......................................CJI
                                                        [T S  THAKUR]



                                ...........................................J
                                                           [Dr      D      Y
CHANDRACHUD]


New Delhi
December 15, 2016.




















-----------------------
[1]

      [2] (2016) 2 SCC 627


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