REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL D.NO. 32135 OF 2015
Veerendra Kumar Dubey …Appellant
Versus
Chief of Army Staff & Ors. …Respondents
J U D G M E N T
T.S. THAKUR, J.
1. This appeal under Section 31 of the Armed Forces Tribunal Act, 2007,
is directed against a judgment and order dated 14th December 2011 passed by
the Armed Forces Tribunal, Regional Bench at Lucknow whereby the Tribunal
has dismissed Transferred Application No.16 of 2011 filed by the appellant
in the process affirming an order of discharge passed against the appellant
by the competent authority under Rule 13(III)(v) of the Army Rules, 1954.
2. The appellant was enrolled as an Operator in the corps of Artillery
of Indian Army on 27th September, 1980. Having served in that capacity for
nearly 12 years, he received a show cause notice pointing out that he had
been awarded four red ink entries for various offences set out in the
notice and that the appellant had become a habitual offender thereby
setting a bad example of indiscipline in the army. The notice, on that
premise, called upon the appellant to show cause as to why he should not be
discharged from service under Army Rule 13(III)(v) read with Army HQ letter
No.A/15010/150/AG/PS-2(c) dated 28th December, 1988.
3. The appellant submitted a reply to the show cause notice which does
not appear to have cut any ice with the competent authority resulting in
his discharge by an order dated 14th December, 1992. Aggrieved, the
appellant preferred an appeal before respondent No.2 which proved of no
avail. The authority in the meantime issued a discharge order/certificate
of service on 15th October, 1993 which the appellant challenged in MP
No.1980 of 1994 before the High Court of Madhya Pradesh at Jabalpur. That
petition was dismissed by the High Court on 18th January, 2006 on the
ground of lack of territorial jurisdiction aggrieved whereof the appellant
filed Writ Appeal No.429 of 2006 which came to be transferred to the Armed
Forces Tribunal, Regional Bench, Lucknow and renumbered as Transferred
Application No.16 of 2011. The Tribunal by its order dated 14th December,
2011 has now dismissed the transferred petition giving rise to the present
appeal.
4. The material facts are not in dispute. It is not in dispute that the
appellant had within a period of 12 years of the service suffered as many
as four red ink entries. All these entries were awarded to him on account
of overstaying leave for a period ranging between 29 days to 66 days. The
fourth red ink entry was earned on account of a severe reprimand awarded to
him by the Commanding Officer in August, 1992. It is noteworthy that the
first red ink entry was made on 25th July, 1982, the second on 28th
December, 1985, the third on 13th September, 1991 and the last on 13th
August, 1992. It is also not in dispute that the appellant had filed a
reply to the show cause notice issued to him in which he had explained the
reasons for his overstaying the leave period in 1982 and attributed his
failure to report back for duty to the medical condition of his wife. In
regard to the second red ink entry he had offered an explanation based on
his own illness and treatment in the district hospital. So also he had
offered explanations for the other two red ink entries. These explanations
notwithstanding the competent authority decided to discharge him from
service without any enquiry whatsoever.
5. Before the Courts below and so also before us, the competence of the
authority who discharged the appellant was not questioned by the appellant.
What was all the same argued at considerable length by learned counsel for
the appellant was that the availability of power to discharge was not
enough. What was equally important is whether the power was exercised in a
fair and reasonable manner keeping in view the guidelines which the
Government had issued for such exercise. It was contended that the
Government had prescribed the procedure for the removal of undesirable and
inefficient JCOs, WO and ORs in terms of a circular dated 28th December,
1988. The circular, it was contended, postulates not only the issue of a
show cause notice to the individual concerned, but also a preliminary
enquiry before recommending his discharge or dismissal. The individual
concerned, it was argued, must have had an adequate opportunity to offer
his explanation and to produce evidence in his defence. Not only that the
enquiry ought to conclude that the allegations stood substantiated
warranting termination of service of the delinquent. The fact that
discharge from service, consequent upon an individual earning four red ink
entries is not mandatory. This, according to the learned counsel, was
evident from a plain reading of the procedure prescribed by the competent
authority. It was also submitted that while considering the question of
retention or discharge based on four red ink entries, the Commanding
Officer was duty bound to consider not only the nature of the offences for
which such entries had been awarded but also take into consideration the
long service and the harsh conditions to which the individual had been
exposed during his tenure. Discharge can under the guidelines issued by
the competent authority be ordered only where it is absolutely necessary to
do so. The procedure prescribed by the competent authority for the exercise
of the power of discharge under Rule 13 was, according to the learned
counsel, observed but only in breach thereby rendering the discharge of the
appellant illegal.
6. On behalf of the respondent it was contended by Mr. Maninder Singh,
Additional Solicitor General that Rule 13 of the Army Rules did not provide
for any specific procedure to be followed for discharge of undesirable
persons or habitual offenders. The procedure prescribed for the exercise
of the power of discharge in terms of the circular relied upon by the
appellant was, according to the learned counsel, directory and did not
create any right in the individual concerned to demand an enquiry in the
matter. The procedure was in any case de hors the provisions of Rule 13 of
the Army Rules, hence un-enforceable. Reliance in support was placed upon
the decisions of this Court in Union of India and Ors. v. Corporal A.K.
Bakshi and Anr. (1996) 3 SCC 65, Union of India and Ors. v. Rajesh Vyas
(2008) 3 SCC 386, and Union of India and Ors. v. Deepak Kumar Santra (2009)
7 SCC 370. Reliance was also placed upon a recent decision of this Court in
Union of India v. Balwant Singh (Civil Appeal No. 5616 of 2015) and a three-
Judge Bench decision in Union of India and Ors. v. Harjeet Singh Sandhu
(2001) 5 SCC 593 apart from a Division Bench decision of the High Court of
Delhi in Surinder Singh v. Union of India (2003) 1 SCT 697.
7. Section 22 of the Army Act, 1950 provides that any person subject to
the said Act may be retired, released or discharged by such authority and
in such manner as may be prescribed. Section 23 envisages the issue of a
certificate on termination of service to every junior commissioned officer,
warrant officer, or enrolled person, who is dismissed, removed, discharged,
retired or released from service. Section 191 of the Act empowers the
Central Government to make rules for the purpose of carrying into effect
the provisions of the Act. The rules may, inter alia, provide for removal,
retirement, or release upon discharge from service of persons subject to
the rule. The Government has in exercise of that power framed Army Rules,
1953, Rule 13(III)(v) whereof applicable to the case at hand empowers the
Brigade and Sub Area Commander to direct such discharge after giving to the
person whose discharge is contemplated, an opportunity to show cause
against the same provided the circumstances of the case permit the grant of
such opportunity. Rule 13 (1), (2), (2A), (3)(III) and the Table below the
same are extracted :
“13. Authorities empowered to authorise discharge – (1) Each of the
authorities specified in column 3 of the Table below shall be the competent
authority to discharge from service person subject to the Act specified in
column 1 thereof on the grounds specified in column 2.
(2) Any power conferred by this rule on any of the aforesaid authorities
shall also be exercisable by any other authority Superior to it.
(2A) Where the Central Government or the Chief of the Army Staff decides;
that any person or class or persons subject to the Act should be discharged
from service, either unconditionally or on the fulfilment of certain
specified conditions, then, notwithstanding anything contained in this
rule, the Commanding Officer shall also be the competent authority to
discharge from service such person or any person belonging to such class in
accordance with the said decision.
(3) In this table ”commanding officer” means the officer commanding the
corps or department to which the person to be discharged belongs except
that in the case of junior commissioned officers and warrant officers of
the Special Medical Section of the Army Medical Corps, the “commanding
officer” means the Director of the Medical Services, Army, and in the case
of junior commissioned officer and warrant officers of Remounts, Veterinary
and Farms, Corps, the “Commanding Officer” means the Director Remounts,
Veterinary and Farms.
TABLE
|Category |Grounds of |Competent |Manner of |
| |discharge |authority to |discharge |
| | |authorize | |
| | |discharge | |
|1 |2 |3 |4 |
|Junior | xxx xxx xxx |xxx | |
|Commissioned | | | |
|officers | | | |
|Warrant Officer| xxx xxx xxx |xxx | |
|Persons |III. (i) On |Commanding | |
|enrolled under |fulfilling the |Officer in the | |
|the Act who |conditions of his|case of a person | |
|have been |enrolment or |of the rank of | |
|attested |having reached |havildar (or | |
| |the stage at |equivalent rank) | |
| |which discharge |where such person| |
| |may be enforced. |is to be | |
| | |discharged. | |
| | |Otherwise than at| |
| | |his own request | |
| | |and where the | |
| | |commanding | |
| | |officer below the| |
| | |rank of | |
| | |Lieutenant | |
| | |Colonel, the | |
| | |brigade or sub | |
| | |Area Commander, | |
| | |(SRO 116/65 | |
| |III. (ii) On |Commanding |Applicable to |
| |completion of a |Officer (in case |person enrolled |
| |period of army |of the persons |for both Army |
| |service only, |unwilling to |service and |
| |there being no |extend their Army|Reserve Service. |
| |vacancy in the |Service) |(A person who has|
| |Reserve | |the right to |
| | | |extend his Army |
| | | |service and |
| | | |wishes to |
| | | |exercise that |
| | | |right cannot be |
| | | |discharge under |
| | | |this head) |
| |III (iii) Having |Commanding |To be carried out|
| |been found |Officer |only on the |
| |medically unfit | |recommendation of|
| |for further | |an Invaliding |
| |service | |Board |
| |III (iv) At his |Commanding |The Commanding |
| |own request |Officer |officer will |
| |before fulfilling| |exercise the |
| |the conditions of| |power only when |
| |his enrolment | |he is satisfied |
| | | |as to the |
| | | |desirability of |
| | | |sanctioning the |
| | | |application and |
| | | |the strength of |
| | | |the unit will not|
| | | |thereby be unduly|
| | | |reduced. |
| |III (v) All other|Brigade/Sub-Area |The Brigade or |
| |classes of |Commander |Sub Area |
| |discharge | |Commander before |
| | | |ordering the |
| | | |discharge shall, |
| | | |if the |
| | | |circumstances of |
| | | |the case permit |
| | | |give to the |
| | | |person whose |
| | | |discharge is |
| | | |contemplated an |
| | | |opportunity to |
| | | |show cause |
| | | |against the |
| | | |contemplated |
| | | |discharge. |
|Persons | xxx xxx xxx |xxx | |
|enrolled under | | | |
|the Act who | | | |
|have not been | | | |
|arrested | | | |
8. A plain reading of the above makes it abundantly clear that the rule
does not provide for anything beyond an opportunity to the individual
concerned to show cause against his contemplated discharge before the
competent authority passes any such order of discharge. That a show cause
notice was issued to the petitioner in the present case before his
discharge is not denied. On a strict interpretation of Rule 13(III)(V),
therefore, one could perhaps say that the letter of the law has been
complied with inasmuch as an opportunity has been afforded to the appellant
to show cause against the contemplated discharge. The question, however, is
whether that was enough having regard to the procedure which the Government
has stipulated for the exercise of the power vested in the competent
authority under Rule 13 of the Army Rules (supra). The Government has,
as rightly mentioned by 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 to be found fit for discharge. Four red ink entries in that sense
takes 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.
9. We may at this stage gainfully extract the relevant portion of the
procedure prescribed for dismissal:
“Procedure for dismissal/discharge of Undesirable JCOs/WOs/OR:
4. AR 13 and 17 provide that a JCO/WO/OR whose dismissal or discharge is
contemplated will be given a show cause notice. As an exception to this,
services of such a person may be terminated without giving him a show cause
notice provided the competent authority is satisfied that it is not
expedient or reasonably practicable to service such a notice. Such cases
should be rare, e.g., where the interests of the security of the State so
require. Where the service of a show cause notice is dispensed with, the
reasons for doing so are required to be recorded. See proviso to AR 17.
5. xxxxxxxxxxxxx
Preliminary Enquiry. Before recommending discharge or dismissal of an
individual the authority concerned will ensure:-
that an impartial enquiry (not necessarily a Court of Inquiry) has been
made into the allegations against him and that he has had adequate
opportunity of putting up his defence or explanation and of adducing
evidence in his defence.
that the allegations have been substantiated and that the extreme step of
termination of the individual’s service is warranted on the merits of the
case.
(f) Final orders by the competent Authority. The authority competent to
sanction the dismissal/discharge of the individual will before passing
orders reconsider the case in the light of the individual’s reply to the
show cause notice. A person who has been served with a show cause notice
for proposed dismissal may be ordered to be discharged if it is considered
that discharge would meet the requirements of the case. If the competent
authority considers that termination of the individual’s service is not
warranted but any of the actions referred to in (b) to (d) of Para 2 above
would meet the requirements of the case, he may pass orders accordingly.
On the other hand, if the competent authority accepts the reply of the
individual to the show cause notice as entirely satisfactory, he will pass
orders accordingly.
Note:-1. As far as possible, JCO, WO and OR awaiting dismissal orders
will not be allowed to mix with other personnel.
2. Discharge from service consequent to four red ink 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. Such discharge should be approved by the next higher Commander.”
10. A careful reading of the above would show that the competent
authority has made it abundantly clear to officers competent to direct
discharge that before discharging an individual, not only should there be a
show cause notice but an enquiry into the allegations made against the
individual concerned in which he ought to be given an opportunity of
putting up his defence and that the allegations must stand substantiated
for a discharge to follow.
11. Para 5(f)(2) (supra) underscores the importance of the truism that
termination of the individual’s service is an extreme step which ought to
be taken only if the facts of the case so demand. What is evident from the
procedural mandate given to the authorities is to ensure that discharge is
not ordered mechanically and that the process leading to the discharge of
an individual is humanized by the requirement of an impartial enquiry into
the matter and fair opportunity to the concerned especially when he is
about to complete his pensionable service. Equally significant is the fact
that the authority competent to discharge is required to take into
consideration certain factors made relevant by the circular to prevent
injustice, unfair treatment or arbitrary exercise of the powers vested in
the Authority competent to discharge. For instance Note 2 to Rule 5 (supra)
requires the competent authority to take into consideration the long
service rendered by the individual, the hard stations he has been posted to
and the difficult living conditions to which the individual has been
exposed during his tenure. It is only when the competent authority
considers discharge to be absolutely essential after taking into
consideration the factors aforementioned that discharge of the individual
can be validly ordered.
12. The argument that the procedure prescribed by the competent authority
de hors the provisions of Rule 13 and the breach of that procedure should
not nullify the order of discharge otherwise validly made has not impressed
us. It is true that Rule 13 does not in specific terms envisage an enquiry
nor does it provide for consideration of factors to which we have referred
above. But it is equally true that Rule 13 does not in terms make it
mandatory for the competent authority to discharge an individual just
because he has been awarded four red ink entries. The threshold of four red
ink entries as a ground for discharge has no statutory sanction. Its
genesis lies in administrative instructions issued on the subject. That
being so, administrative instructions could, while prescribing any such
threshold as well, regulate the exercise of the power by the competent
authority qua an individual who qualifies for consideration on any such
administratively prescribed norm. Inasmuch as the competent authority has
insisted upon an enquiry to be conducted in which an opportunity is given
to the individual concerned before he is discharged from service, the
instructions cannot be faulted on the ground that the instructions concede
to the individual more than what is provided for by the rule. The
instructions are aimed at ensuring a non-discriminatory fair and non-
arbitrary application of the statutory rule. It may have been possible to
assail the circular instructions if the same had taken away something that
was granted to the individual by the rule. That is because administrative
instructions cannot make inroads into statutory rights of an individual.
But if an administrative authority prescribes a certain procedural
safeguard to those affected against arbitrary exercise of powers, such
safeguards or procedural equity and fairness will not fall foul of the rule
or be dubbed ultra vires of the statute. The procedure prescribed by
circular dated 28th December, 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. The procedure presented simply
regulates the exercise of power which would, but for such regulation and
safeguards against arbitrariness, be perilously close to being ultra vires
in that the authority competent to discharge shall, but for the safeguards,
be vested with uncanalised and absolute power of discharge without any
guidelines as to the manner in which such power may be exercised. Any such
unregulated and uncanalised power would in turn offend Article 14 of the
Constitution.
13. Coming then to the case at hand, we find that no enquiry whatsoever
was conducted by the Commanding Officer at any stage against the appellant
as required under para 5(a) of the procedure extracted above. More
importantly, there is nothing on record to suggest that the authority
competent had taken into consideration the long service rendered by the
appellant, the difficult living conditions and the hard stations at which
he had served. There is nothing on record to suggest that the nature of
the misconduct leading to the award of red ink entries was so unacceptable
that the competent authority had no option but to direct his discharge to
prevent indiscipline in the force. We must, in fairness, mention that Mr.
Maninder Singh, ASG, did not dispute the fact that any number of other
personnel are still in service no matter they have earned four red ink
entries on account of overstaying leave. If that be so, the only safeguard
against arbitrary exercise of power by the authority would be to ensure
that there is an enquiry howsoever summary and a finding about the defence
set-up by the individual besides consideration of the factors made relevant
under the note to para 5(f) of the procedure. It is common ground that a
red ink entry may be earned by an individual for overstaying leave for one
week or for six months. In either case the entry is a red ink entry and
would qualify for consideration in the matter of discharge. If two persons
who suffer such entries are treated similarly notwithstanding the gravity
of the offence being different, it would be unfair and unjust for unequals
cannot be treated as equals. More importantly, a person who has suffered
four such entries on a graver misconduct may escape discharge which another
individual who has earned such entries for relatively lesser offences may
be asked to go home prematurely. The unfairness in any such situation makes
it necessary to bring in safeguards to prevent miscarriage of justice. That
is precisely what the procedural safeguards purport to do in the present
case.
14. Reliance upon the decisions of this Court in the cases referred to
earlier is, in our opinion, of no help to the respondent for the same have
not adverted to the procedure prescribed for the exercise of the power of
discharge. In Union of India v. Corporal A.K. Bakshi & Anr. (supra) the
question before this Court was whether an order of discharge passed in
pursuance of the Policy for Discharge of Habitual Offenders could be
considered a discharge simplicitor as envisaged in 15(2)(g)(ii) or if it
would tantamount to termination of service by way of punishment under Rule
18 of the said Rules. The Court came to the conclusion that it was a
discharge simplicitor and as such it could not be held as termination of
service by way of a punishment for misconduct. This was clearly not a case
where the procedure for discharge was not followed. The Court had, in that
case, unequivocally held that there was no dispute between the parties that
the procedure had been duly followed. Similarly, the decision of this
Court in Union of India v. Rajesh Vyas (supra) is also distinguishable. In
that case, the discharge order was challenged on the ground that it was
passed without regard to the response to the show cause notice filed by the
discharge order. Upon a perusal of the material, this Court held that the
case was not one wherein the discharge order was passed without application
of mind and that there was evidence to show that power was exercised upon
consideration of all relevant records. The decision of this Court in Union
of India and Ors. v. Dipak Kumar Santra (supra) is also of no relevance to
the case at hand as that case dealt with a recruit who had failed twice in
clerks’ proficiency and aptitude test and was discharged under Rule 13(3)
of the Army Rules. Without adverting to the procedure prescribed for such
removal, the discharge was maintained by this Court opining that the
discharging authority was empowered to do so under Rule 13(3) of the Army
Rules. Reliance upon the recent judgment of this Court in Union of India &
Ors. v. Balwant Singh [Civil Appeal No. 5616 of 2015] is also misplaced.
The grievance of the respondent in that case, primarily, rested upon the
alleged excessive punishment meted out for the red ink entries suffered by
him. The respondent also claimed to have been discriminated due to
discharge from the Armed Forces. That was also not a case where discharge
order was challenged as bad in law on the basis of irregularities nor was
it a case where the authority was said to have failed to follow the
necessary procedure. The decision of the High Court of Delhi in Surinder
Singh v. Union of India (2003) 1 SCT 697, to the extent the same toes a
line of reasoning different from the one adopted by us does not lay down
the correct proposition and must, therefore, be confined to the facts of
that case only.
15. In the result this appeal succeeds and is hereby allowed. The order
of discharge passed against the appellant is hereby set aside. Since the
appellant has already crossed the age of superannuation, interest of
justice will be sufficiently served if we direct that the appellant shall
be 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. Benefit of continuity of service for all other purpose
shall, however, be granted to the appellant including pension. Monetary
benefits payable to the appellant shall be released expeditiously but not
later than four months from the date of this order. No costs.
……………………………………….…..…J.
(T.S. THAKUR)
……………………………………….…..…J.
(V. GOPALA GOWDA)
……………………………………….…..…J.
(R. BANUMATHI)
New Delhi
October 16, 2015
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL D.NO. 32135 OF 2015
Veerendra Kumar Dubey …Appellant
Versus
Chief of Army Staff & Ors. …Respondents
J U D G M E N T
T.S. THAKUR, J.
1. This appeal under Section 31 of the Armed Forces Tribunal Act, 2007,
is directed against a judgment and order dated 14th December 2011 passed by
the Armed Forces Tribunal, Regional Bench at Lucknow whereby the Tribunal
has dismissed Transferred Application No.16 of 2011 filed by the appellant
in the process affirming an order of discharge passed against the appellant
by the competent authority under Rule 13(III)(v) of the Army Rules, 1954.
2. The appellant was enrolled as an Operator in the corps of Artillery
of Indian Army on 27th September, 1980. Having served in that capacity for
nearly 12 years, he received a show cause notice pointing out that he had
been awarded four red ink entries for various offences set out in the
notice and that the appellant had become a habitual offender thereby
setting a bad example of indiscipline in the army. The notice, on that
premise, called upon the appellant to show cause as to why he should not be
discharged from service under Army Rule 13(III)(v) read with Army HQ letter
No.A/15010/150/AG/PS-2(c) dated 28th December, 1988.
3. The appellant submitted a reply to the show cause notice which does
not appear to have cut any ice with the competent authority resulting in
his discharge by an order dated 14th December, 1992. Aggrieved, the
appellant preferred an appeal before respondent No.2 which proved of no
avail. The authority in the meantime issued a discharge order/certificate
of service on 15th October, 1993 which the appellant challenged in MP
No.1980 of 1994 before the High Court of Madhya Pradesh at Jabalpur. That
petition was dismissed by the High Court on 18th January, 2006 on the
ground of lack of territorial jurisdiction aggrieved whereof the appellant
filed Writ Appeal No.429 of 2006 which came to be transferred to the Armed
Forces Tribunal, Regional Bench, Lucknow and renumbered as Transferred
Application No.16 of 2011. The Tribunal by its order dated 14th December,
2011 has now dismissed the transferred petition giving rise to the present
appeal.
4. The material facts are not in dispute. It is not in dispute that the
appellant had within a period of 12 years of the service suffered as many
as four red ink entries. All these entries were awarded to him on account
of overstaying leave for a period ranging between 29 days to 66 days. The
fourth red ink entry was earned on account of a severe reprimand awarded to
him by the Commanding Officer in August, 1992. It is noteworthy that the
first red ink entry was made on 25th July, 1982, the second on 28th
December, 1985, the third on 13th September, 1991 and the last on 13th
August, 1992. It is also not in dispute that the appellant had filed a
reply to the show cause notice issued to him in which he had explained the
reasons for his overstaying the leave period in 1982 and attributed his
failure to report back for duty to the medical condition of his wife. In
regard to the second red ink entry he had offered an explanation based on
his own illness and treatment in the district hospital. So also he had
offered explanations for the other two red ink entries. These explanations
notwithstanding the competent authority decided to discharge him from
service without any enquiry whatsoever.
5. Before the Courts below and so also before us, the competence of the
authority who discharged the appellant was not questioned by the appellant.
What was all the same argued at considerable length by learned counsel for
the appellant was that the availability of power to discharge was not
enough. What was equally important is whether the power was exercised in a
fair and reasonable manner keeping in view the guidelines which the
Government had issued for such exercise. It was contended that the
Government had prescribed the procedure for the removal of undesirable and
inefficient JCOs, WO and ORs in terms of a circular dated 28th December,
1988. The circular, it was contended, postulates not only the issue of a
show cause notice to the individual concerned, but also a preliminary
enquiry before recommending his discharge or dismissal. The individual
concerned, it was argued, must have had an adequate opportunity to offer
his explanation and to produce evidence in his defence. Not only that the
enquiry ought to conclude that the allegations stood substantiated
warranting termination of service of the delinquent. The fact that
discharge from service, consequent upon an individual earning four red ink
entries is not mandatory. This, according to the learned counsel, was
evident from a plain reading of the procedure prescribed by the competent
authority. It was also submitted that while considering the question of
retention or discharge based on four red ink entries, the Commanding
Officer was duty bound to consider not only the nature of the offences for
which such entries had been awarded but also take into consideration the
long service and the harsh conditions to which the individual had been
exposed during his tenure. Discharge can under the guidelines issued by
the competent authority be ordered only where it is absolutely necessary to
do so. The procedure prescribed by the competent authority for the exercise
of the power of discharge under Rule 13 was, according to the learned
counsel, observed but only in breach thereby rendering the discharge of the
appellant illegal.
6. On behalf of the respondent it was contended by Mr. Maninder Singh,
Additional Solicitor General that Rule 13 of the Army Rules did not provide
for any specific procedure to be followed for discharge of undesirable
persons or habitual offenders. The procedure prescribed for the exercise
of the power of discharge in terms of the circular relied upon by the
appellant was, according to the learned counsel, directory and did not
create any right in the individual concerned to demand an enquiry in the
matter. The procedure was in any case de hors the provisions of Rule 13 of
the Army Rules, hence un-enforceable. Reliance in support was placed upon
the decisions of this Court in Union of India and Ors. v. Corporal A.K.
Bakshi and Anr. (1996) 3 SCC 65, Union of India and Ors. v. Rajesh Vyas
(2008) 3 SCC 386, and Union of India and Ors. v. Deepak Kumar Santra (2009)
7 SCC 370. Reliance was also placed upon a recent decision of this Court in
Union of India v. Balwant Singh (Civil Appeal No. 5616 of 2015) and a three-
Judge Bench decision in Union of India and Ors. v. Harjeet Singh Sandhu
(2001) 5 SCC 593 apart from a Division Bench decision of the High Court of
Delhi in Surinder Singh v. Union of India (2003) 1 SCT 697.
7. Section 22 of the Army Act, 1950 provides that any person subject to
the said Act may be retired, released or discharged by such authority and
in such manner as may be prescribed. Section 23 envisages the issue of a
certificate on termination of service to every junior commissioned officer,
warrant officer, or enrolled person, who is dismissed, removed, discharged,
retired or released from service. Section 191 of the Act empowers the
Central Government to make rules for the purpose of carrying into effect
the provisions of the Act. The rules may, inter alia, provide for removal,
retirement, or release upon discharge from service of persons subject to
the rule. The Government has in exercise of that power framed Army Rules,
1953, Rule 13(III)(v) whereof applicable to the case at hand empowers the
Brigade and Sub Area Commander to direct such discharge after giving to the
person whose discharge is contemplated, an opportunity to show cause
against the same provided the circumstances of the case permit the grant of
such opportunity. Rule 13 (1), (2), (2A), (3)(III) and the Table below the
same are extracted :
“13. Authorities empowered to authorise discharge – (1) Each of the
authorities specified in column 3 of the Table below shall be the competent
authority to discharge from service person subject to the Act specified in
column 1 thereof on the grounds specified in column 2.
(2) Any power conferred by this rule on any of the aforesaid authorities
shall also be exercisable by any other authority Superior to it.
(2A) Where the Central Government or the Chief of the Army Staff decides;
that any person or class or persons subject to the Act should be discharged
from service, either unconditionally or on the fulfilment of certain
specified conditions, then, notwithstanding anything contained in this
rule, the Commanding Officer shall also be the competent authority to
discharge from service such person or any person belonging to such class in
accordance with the said decision.
(3) In this table ”commanding officer” means the officer commanding the
corps or department to which the person to be discharged belongs except
that in the case of junior commissioned officers and warrant officers of
the Special Medical Section of the Army Medical Corps, the “commanding
officer” means the Director of the Medical Services, Army, and in the case
of junior commissioned officer and warrant officers of Remounts, Veterinary
and Farms, Corps, the “Commanding Officer” means the Director Remounts,
Veterinary and Farms.
TABLE
|Category |Grounds of |Competent |Manner of |
| |discharge |authority to |discharge |
| | |authorize | |
| | |discharge | |
|1 |2 |3 |4 |
|Junior | xxx xxx xxx |xxx | |
|Commissioned | | | |
|officers | | | |
|Warrant Officer| xxx xxx xxx |xxx | |
|Persons |III. (i) On |Commanding | |
|enrolled under |fulfilling the |Officer in the | |
|the Act who |conditions of his|case of a person | |
|have been |enrolment or |of the rank of | |
|attested |having reached |havildar (or | |
| |the stage at |equivalent rank) | |
| |which discharge |where such person| |
| |may be enforced. |is to be | |
| | |discharged. | |
| | |Otherwise than at| |
| | |his own request | |
| | |and where the | |
| | |commanding | |
| | |officer below the| |
| | |rank of | |
| | |Lieutenant | |
| | |Colonel, the | |
| | |brigade or sub | |
| | |Area Commander, | |
| | |(SRO 116/65 | |
| |III. (ii) On |Commanding |Applicable to |
| |completion of a |Officer (in case |person enrolled |
| |period of army |of the persons |for both Army |
| |service only, |unwilling to |service and |
| |there being no |extend their Army|Reserve Service. |
| |vacancy in the |Service) |(A person who has|
| |Reserve | |the right to |
| | | |extend his Army |
| | | |service and |
| | | |wishes to |
| | | |exercise that |
| | | |right cannot be |
| | | |discharge under |
| | | |this head) |
| |III (iii) Having |Commanding |To be carried out|
| |been found |Officer |only on the |
| |medically unfit | |recommendation of|
| |for further | |an Invaliding |
| |service | |Board |
| |III (iv) At his |Commanding |The Commanding |
| |own request |Officer |officer will |
| |before fulfilling| |exercise the |
| |the conditions of| |power only when |
| |his enrolment | |he is satisfied |
| | | |as to the |
| | | |desirability of |
| | | |sanctioning the |
| | | |application and |
| | | |the strength of |
| | | |the unit will not|
| | | |thereby be unduly|
| | | |reduced. |
| |III (v) All other|Brigade/Sub-Area |The Brigade or |
| |classes of |Commander |Sub Area |
| |discharge | |Commander before |
| | | |ordering the |
| | | |discharge shall, |
| | | |if the |
| | | |circumstances of |
| | | |the case permit |
| | | |give to the |
| | | |person whose |
| | | |discharge is |
| | | |contemplated an |
| | | |opportunity to |
| | | |show cause |
| | | |against the |
| | | |contemplated |
| | | |discharge. |
|Persons | xxx xxx xxx |xxx | |
|enrolled under | | | |
|the Act who | | | |
|have not been | | | |
|arrested | | | |
8. A plain reading of the above makes it abundantly clear that the rule
does not provide for anything beyond an opportunity to the individual
concerned to show cause against his contemplated discharge before the
competent authority passes any such order of discharge. That a show cause
notice was issued to the petitioner in the present case before his
discharge is not denied. On a strict interpretation of Rule 13(III)(V),
therefore, one could perhaps say that the letter of the law has been
complied with inasmuch as an opportunity has been afforded to the appellant
to show cause against the contemplated discharge. The question, however, is
whether that was enough having regard to the procedure which the Government
has stipulated for the exercise of the power vested in the competent
authority under Rule 13 of the Army Rules (supra). The Government has,
as rightly mentioned by 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 to be found fit for discharge. Four red ink entries in that sense
takes 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.
9. We may at this stage gainfully extract the relevant portion of the
procedure prescribed for dismissal:
“Procedure for dismissal/discharge of Undesirable JCOs/WOs/OR:
4. AR 13 and 17 provide that a JCO/WO/OR whose dismissal or discharge is
contemplated will be given a show cause notice. As an exception to this,
services of such a person may be terminated without giving him a show cause
notice provided the competent authority is satisfied that it is not
expedient or reasonably practicable to service such a notice. Such cases
should be rare, e.g., where the interests of the security of the State so
require. Where the service of a show cause notice is dispensed with, the
reasons for doing so are required to be recorded. See proviso to AR 17.
5. xxxxxxxxxxxxx
Preliminary Enquiry. Before recommending discharge or dismissal of an
individual the authority concerned will ensure:-
that an impartial enquiry (not necessarily a Court of Inquiry) has been
made into the allegations against him and that he has had adequate
opportunity of putting up his defence or explanation and of adducing
evidence in his defence.
that the allegations have been substantiated and that the extreme step of
termination of the individual’s service is warranted on the merits of the
case.
(f) Final orders by the competent Authority. The authority competent to
sanction the dismissal/discharge of the individual will before passing
orders reconsider the case in the light of the individual’s reply to the
show cause notice. A person who has been served with a show cause notice
for proposed dismissal may be ordered to be discharged if it is considered
that discharge would meet the requirements of the case. If the competent
authority considers that termination of the individual’s service is not
warranted but any of the actions referred to in (b) to (d) of Para 2 above
would meet the requirements of the case, he may pass orders accordingly.
On the other hand, if the competent authority accepts the reply of the
individual to the show cause notice as entirely satisfactory, he will pass
orders accordingly.
Note:-1. As far as possible, JCO, WO and OR awaiting dismissal orders
will not be allowed to mix with other personnel.
2. Discharge from service consequent to four red ink 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. Such discharge should be approved by the next higher Commander.”
10. A careful reading of the above would show that the competent
authority has made it abundantly clear to officers competent to direct
discharge that before discharging an individual, not only should there be a
show cause notice but an enquiry into the allegations made against the
individual concerned in which he ought to be given an opportunity of
putting up his defence and that the allegations must stand substantiated
for a discharge to follow.
11. Para 5(f)(2) (supra) underscores the importance of the truism that
termination of the individual’s service is an extreme step which ought to
be taken only if the facts of the case so demand. What is evident from the
procedural mandate given to the authorities is to ensure that discharge is
not ordered mechanically and that the process leading to the discharge of
an individual is humanized by the requirement of an impartial enquiry into
the matter and fair opportunity to the concerned especially when he is
about to complete his pensionable service. Equally significant is the fact
that the authority competent to discharge is required to take into
consideration certain factors made relevant by the circular to prevent
injustice, unfair treatment or arbitrary exercise of the powers vested in
the Authority competent to discharge. For instance Note 2 to Rule 5 (supra)
requires the competent authority to take into consideration the long
service rendered by the individual, the hard stations he has been posted to
and the difficult living conditions to which the individual has been
exposed during his tenure. It is only when the competent authority
considers discharge to be absolutely essential after taking into
consideration the factors aforementioned that discharge of the individual
can be validly ordered.
12. The argument that the procedure prescribed by the competent authority
de hors the provisions of Rule 13 and the breach of that procedure should
not nullify the order of discharge otherwise validly made has not impressed
us. It is true that Rule 13 does not in specific terms envisage an enquiry
nor does it provide for consideration of factors to which we have referred
above. But it is equally true that Rule 13 does not in terms make it
mandatory for the competent authority to discharge an individual just
because he has been awarded four red ink entries. The threshold of four red
ink entries as a ground for discharge has no statutory sanction. Its
genesis lies in administrative instructions issued on the subject. That
being so, administrative instructions could, while prescribing any such
threshold as well, regulate the exercise of the power by the competent
authority qua an individual who qualifies for consideration on any such
administratively prescribed norm. Inasmuch as the competent authority has
insisted upon an enquiry to be conducted in which an opportunity is given
to the individual concerned before he is discharged from service, the
instructions cannot be faulted on the ground that the instructions concede
to the individual more than what is provided for by the rule. The
instructions are aimed at ensuring a non-discriminatory fair and non-
arbitrary application of the statutory rule. It may have been possible to
assail the circular instructions if the same had taken away something that
was granted to the individual by the rule. That is because administrative
instructions cannot make inroads into statutory rights of an individual.
But if an administrative authority prescribes a certain procedural
safeguard to those affected against arbitrary exercise of powers, such
safeguards or procedural equity and fairness will not fall foul of the rule
or be dubbed ultra vires of the statute. The procedure prescribed by
circular dated 28th December, 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. The procedure presented simply
regulates the exercise of power which would, but for such regulation and
safeguards against arbitrariness, be perilously close to being ultra vires
in that the authority competent to discharge shall, but for the safeguards,
be vested with uncanalised and absolute power of discharge without any
guidelines as to the manner in which such power may be exercised. Any such
unregulated and uncanalised power would in turn offend Article 14 of the
Constitution.
13. Coming then to the case at hand, we find that no enquiry whatsoever
was conducted by the Commanding Officer at any stage against the appellant
as required under para 5(a) of the procedure extracted above. More
importantly, there is nothing on record to suggest that the authority
competent had taken into consideration the long service rendered by the
appellant, the difficult living conditions and the hard stations at which
he had served. There is nothing on record to suggest that the nature of
the misconduct leading to the award of red ink entries was so unacceptable
that the competent authority had no option but to direct his discharge to
prevent indiscipline in the force. We must, in fairness, mention that Mr.
Maninder Singh, ASG, did not dispute the fact that any number of other
personnel are still in service no matter they have earned four red ink
entries on account of overstaying leave. If that be so, the only safeguard
against arbitrary exercise of power by the authority would be to ensure
that there is an enquiry howsoever summary and a finding about the defence
set-up by the individual besides consideration of the factors made relevant
under the note to para 5(f) of the procedure. It is common ground that a
red ink entry may be earned by an individual for overstaying leave for one
week or for six months. In either case the entry is a red ink entry and
would qualify for consideration in the matter of discharge. If two persons
who suffer such entries are treated similarly notwithstanding the gravity
of the offence being different, it would be unfair and unjust for unequals
cannot be treated as equals. More importantly, a person who has suffered
four such entries on a graver misconduct may escape discharge which another
individual who has earned such entries for relatively lesser offences may
be asked to go home prematurely. The unfairness in any such situation makes
it necessary to bring in safeguards to prevent miscarriage of justice. That
is precisely what the procedural safeguards purport to do in the present
case.
14. Reliance upon the decisions of this Court in the cases referred to
earlier is, in our opinion, of no help to the respondent for the same have
not adverted to the procedure prescribed for the exercise of the power of
discharge. In Union of India v. Corporal A.K. Bakshi & Anr. (supra) the
question before this Court was whether an order of discharge passed in
pursuance of the Policy for Discharge of Habitual Offenders could be
considered a discharge simplicitor as envisaged in 15(2)(g)(ii) or if it
would tantamount to termination of service by way of punishment under Rule
18 of the said Rules. The Court came to the conclusion that it was a
discharge simplicitor and as such it could not be held as termination of
service by way of a punishment for misconduct. This was clearly not a case
where the procedure for discharge was not followed. The Court had, in that
case, unequivocally held that there was no dispute between the parties that
the procedure had been duly followed. Similarly, the decision of this
Court in Union of India v. Rajesh Vyas (supra) is also distinguishable. In
that case, the discharge order was challenged on the ground that it was
passed without regard to the response to the show cause notice filed by the
discharge order. Upon a perusal of the material, this Court held that the
case was not one wherein the discharge order was passed without application
of mind and that there was evidence to show that power was exercised upon
consideration of all relevant records. The decision of this Court in Union
of India and Ors. v. Dipak Kumar Santra (supra) is also of no relevance to
the case at hand as that case dealt with a recruit who had failed twice in
clerks’ proficiency and aptitude test and was discharged under Rule 13(3)
of the Army Rules. Without adverting to the procedure prescribed for such
removal, the discharge was maintained by this Court opining that the
discharging authority was empowered to do so under Rule 13(3) of the Army
Rules. Reliance upon the recent judgment of this Court in Union of India &
Ors. v. Balwant Singh [Civil Appeal No. 5616 of 2015] is also misplaced.
The grievance of the respondent in that case, primarily, rested upon the
alleged excessive punishment meted out for the red ink entries suffered by
him. The respondent also claimed to have been discriminated due to
discharge from the Armed Forces. That was also not a case where discharge
order was challenged as bad in law on the basis of irregularities nor was
it a case where the authority was said to have failed to follow the
necessary procedure. The decision of the High Court of Delhi in Surinder
Singh v. Union of India (2003) 1 SCT 697, to the extent the same toes a
line of reasoning different from the one adopted by us does not lay down
the correct proposition and must, therefore, be confined to the facts of
that case only.
15. In the result this appeal succeeds and is hereby allowed. The order
of discharge passed against the appellant is hereby set aside. Since the
appellant has already crossed the age of superannuation, interest of
justice will be sufficiently served if we direct that the appellant shall
be 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. Benefit of continuity of service for all other purpose
shall, however, be granted to the appellant including pension. Monetary
benefits payable to the appellant shall be released expeditiously but not
later than four months from the date of this order. No costs.
……………………………………….…..…J.
(T.S. THAKUR)
……………………………………….…..…J.
(V. GOPALA GOWDA)
……………………………………….…..…J.
(R. BANUMATHI)
New Delhi
October 16, 2015
