Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1147311474 OF 2018
AMARENDRA KUMAR PANDEY ….APPELLANT(S)
VERSUS
UNION OF INDIA & ORS. ….RESPONDENT(S)
J U D G M E N T
J. B. PARDIWALA, J.
1. These appeals, by special leave, are directed against the
judgment and order passed by a Division Bench of the Guwahati High
Court dated 21.12.2017 in the Writ Appeal No. 354 of 2017 by which
the High Court allowed the appeal filed by the Union of India & Ors.
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2022.07.14
15:43:49 IST
Reason:
thereby setting aside the judgment and order passed by a learned
Single Judge of the High Court dated 19.01.2015 in the Writ Petition
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(C) 2783 of 2004 filed by the appellant herein.
2. The facts giving rise to this appeal may be summarized as under:
(i) The appellant herein (original writ petitioner) had joined the
Assam Rifles as a Rifleman in the year 1993. While he was in service,
he came to be discharged vide order dated 31.01.2004 passed by Lt.
Col Offg Comdt.
(ii) The order of discharge referred to above reads thus:
OFFICE OF THE COMMANDANT 24 ASSAM RIFLES,
C/O 99 APO
ORDER
2401637/AKP/2004 DATED 31.01.2004
1. WHEREAS it is considered that the conduct of No
2401637W Rfn/GD Amrandra Kumar Pandey of
which has led him getting four Red Ink entries is
such as to render his further retention in the public
Service undesirable being a incorrigible offender and
having shown no improvement during his service.
2. AND WHEREAS No. 2401637W Rfn/GD Amrandra
Kumar Pandey was afforded opportunity to show
cause against the proposed action vide 24 AR letter
No. 11014/A362003/635 dt. 02 Sep., 2003.
3. AND WHEREAS No 2401637W Rfn/GD Amrandra
Kumar Pandey submitted his replies vide letter No.
Nil dated 01. Oct.2003. the same was considered in
terms of ROI 4/99 and was found unsatisfactory by
the competent authority.
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4. NOW WHEREFORE, In exercise of the powers
conferred on me under AR Act 1941 Sec 4(a) read
with Para 24, Chapter VIII of AR Manual and Para 6
of ROI 4/99, the undersigned hereby discharge the
said No.2401637W Rfn/GD Amrandra Kumar
Pandey from the Assam Rifles being incorrigible
offender soldier with effect from 31 Jan., 2004
(Afternoon) No.2401637W Rfn/GD Amrandra Kumar
Pandey is entitled to get pension and gratuity as
admissible under rule.
s/d
(Santosh Joseph)
Lt. Col Offg Comdt
3. Thus, the aforesaid order of discharge was passed on the basis of
the four RedInk entries received by him during his period of service.
The four RedInk entries were on the following grounds:
Entry 1 (1996) For staying back to take care of his
ailing mother –
‘without sufficient
cause over staying leave granted’.
Sentenced to 14 days of rigorous
imprisonment with deduction in
salary.
Entry 2 (1998) For being on the way out to make a
phone call, but stopped before he
could leave the compound – “visited
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out of bound areas as specified in
unit BRO Part I Ser No 202 dated 30
Aug 96 without permission from his
superior officers”. Sentenced to 28
days of rigorous custody and 14
days of Military Custody.
Entry 3 (1999) For losing his luggage while coming
back from home –
“lost his identity
card bearing machine No. 078550
by neglect the property of the
Government issued to him for his
use”. Sentenced to 28 days of
rigorous imprisonment and 14 days
of detention in AR custody.
Entry 4 (2004) For playing cards all alone by
himself – ‘to obey unit standing
orders and was found Gambling in
Sentenced to 28 days of
unit line’.
rigorous imprisonment and 14 days
of fine.
4. The appellant herein challenged the order of discharge before the
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Guwahati High Court by filing the Writ Petition (C) No. 2738 of 2002. It
appears from the materials on record that a learned Single Judge of
the Guwahati High Court decided the Writ Petition filed by the
appellant herein along with two other identical petitions of two
similarly situated riflemen and by a common judgment and order dated
19.01.2015 allowed the same. The impugned order of discharge came
to be set aside. The learned Single Judge remitted the matter to the
authorities concerned for a fresh decision in the light of a Division
Bench decision of the Guwahati High Court.
5. The learned Single Judge while allowing the Writ Petition filed by
the appellant herein held as under:
“The issue regarding discharge from Assam Rifles on
securing four Red Ink entries was gone into by a
Division Bench of this Court in Balwant Singh Vs.
Union of India & Ors., reported in 2011 (5) GLT 640.
That was a case where a Rifleman was discharged
from the Assam Rifles on getting four Red Ink entries.
Out of the four Red Ink entries, three related to
intoxication and one related to overstay of leave
period. The Division Bench examined the provisions of
Clause5 of the Record Branch Instruction (ROI)
No.1/2004. Clause5 of ROI provides that under
ChapterVIII, Rule 24 of the Assam Rifles Manual
power is conferred on the Commandant of an Assam
Rifles battalion to discharge any member of the
Assam Rifles below the rank of Naib Subedar in case
he receives four or more Red Ink entries. The Division
Bench held that the use of the expression “four or
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more Red Ink entries” and also the use of the word
“may” in Clause5 indicates that discretion is vested
in the disciplinary authority to decide as to whether
the person who is found to have received the Red Ink
entries ought to be discharged from service or not. It
was held that merely because a man receives four
Red Ink entries, discharge is not automatic. Discretion
is given to the Commanding Officer to consider
discharge. The severity and the nature of the
misconduct will have to be weighed before recourse is
taken to exercise power conferred by Clause5 of the
ROI.
It is a settled position in law that when a discretion is
vested in an authority to exercise a particular power,
the same is required to be exercised with due
diligence, and in reasonable and rational manner.
Since order of discharge and the procedure preceding
such discharge is of a summary nature, it is
necessary that the order of discharge is a speaking
order and must indicate how and in what manner the
authority exercised the discretionary power. The
Hon’ble Supreme Court in a catena of decisions has
reiterated time and again the necessity and
importance of giving reasons by the authority in
support of its decision. It has been held that the face
of an order passed by a quasijudicial authority or
even by an administrative authority affecting the
rights of parties must speak. The affected party must
know how his case or defence was considered before
passing the prejudicial order. Coming back to the
three impugned orders, it is evident that none of the
orders disclose how the responses of the petitioners
were considered and why discharge was necessary.
As held by the Division Bench just because the
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petitioners incurred four Red Ink entries, it does not
ipso facto mean that they are to be discharged from
the Assam Rifles. As pointed out by the Division
Bench, the authority vested with the power to
discharge must examine the response of the
concerned person and weigh the same visàvis the
severity of the misconduct which led to incurring of the
Red Ink entries in the service rolls. Such examination
is not discernible from the impugned orders.
Having regard to the above, this Court is of the view
that the impugned orders of discharge cannot be
sustained. Accordingly, the orders of discharge of the
petitioners are set aside and quashed. Matter is
remanded back to the respondents for a fresh decision
in the light of the Division Bench judgment in Balwant
Singh (Supra) and the discussions made above.
Respondents may consider imposition of any lesser
punishment on the petitioners balancing the interest of
the organization and also that of the petitioners
subject to assessment of physical fitness of the
petitioners.
Writ petitions are allowed to the above extent. No
costs.”
6. The Union of India being dissatisfied with the judgment and
order passed by the learned Single Judge referred to above challenged
the same by filing the writ appeal before the Division Bench of the
Guwahati High Court. The Division Bench allowed the writ appeal filed
by the Union of India and thereby set aside the order passed by the
learned Single Judge referred to above. The Appeal Court while
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allowing the writ appeal filed by the Union of India essentially took the
view that neither the Assam Rifles Act, 1941 under which the decision
to discharge was taken nor the Assam Rifles Act, 2006 requires the
authority to record any reasons or the satisfaction in the order of
discharge itself. The Appeal Court took the view having regard to the
provision of Clause 5 of the ROI 1/2004 that the Commandant has the
discretion to discharge a person who has four or more Red Ink entries.
All that is required is to serve a notice on the individual affording an
opportunity to explain. The provision of Clause 5 does not require the
Commandant to record the reasons of satisfaction in the order of
discharge.
7. Being dissatisfied with the impugned order passed by the Appeal
Court of the High Court, the appellant herein (original writ petitioner)
is here before this Court with the present appeal.
SUBMISSIONS :
8. The learned Counsel appearing for the appellant vehemently
submitted that the High Court committed a serious error in passing
the impugned order. He would submit that there was no good reason
for the Appeal Court to disturb the order passed by the learned Single
Judge of the High Court.
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9. The learned Counsel has broadly classified his submissions as
under:
(a) Discharge is not mandatory even after four Red entries.
(b) There is a difference between cases of major misconducts and
minor misconducts.
(c) In the order of discharge no reasons have been assigned.
(d) The plea of malafide raised against the authority has not been
considered.
10. The learned Counsel appearing for the appellant invited the
attention of this Court to the Record Office Instruction No. 4 of 1999
which provides for the procedure for discharge/retirement from service
of Assam Rifles personnel. The same reads thus:
RECORD OFFICE INSTRUCTION NO.4/99
PROCEDURE FOR DISCHARGE/RETIREMENT FROM
SERVICE ASSAM RIFLES PERSONNEL
1. A comprehensive instruction, containing all existing
orders on the subject has been compiled in the form of
this ROI for guidance and strict compliance by all
concerned.
*
*
9
*
6. Discharge/Disposal of Undesirable/Inefficient
Personnel
Chapter VIII, Rules 24 of the Assam Rifles Manual
invests powers to the Commandant of Assam Rifles
Battalions to ‘dismiss’ or ‘remove’ any member of the
Assam Rifles below the rank of Nb/Sub. This power
may be invoked by a Commandant in case where a
person has got four red ink entries. As far as
practicable, however, discharge under this provision
should be avoided as personnel sent on discharge on
this account are not eligible for pension. In case it is
necessary to send an individual on discharge under
this provision, a notice will be served on the individual
to give opportunity to explain his case. Complete case
will be forwarded to Range HQ alongwith the notice
and reply received from the individual, for the
approval of the DIGAR. The documents will be sent to
this Directorate Records (Doc)/UPAO (And the
individual to Depot Coy (No.1 Constr Coy))……
11. The learned Counsel also invited the attention of this Court to
the Assam Rifles Manual. The relevant clause of the Assam Rifles
Manual reads thus:
ASSAM RIFLES MANUAL
“24. A Commandant may dismiss any member of the
Assam Rifles below the rank of Jemadar.
The word “dismissal” should be restricted to the case
of an officer removed with disgrace. In other cases
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“removal” is the proper word to be used. A “dimissed”
officer may not be reemployed.
Dismissal is the last resource, and should not
ordinarily be ordered until all other means of
punishment have been tried and failed. For
incorrigible offenders; confirmed bad characters,
confirmed drunkards, for offences involving moral
disgrace, fraud and dishonesty, continued and willful
disobedience or neglect, it is generally the only
appropriate punishment”
12. The principal argument of the learned Counsel appearing for the
appellant is that the discharge from service is not automatic or
mandatory after four Red entries. Four Red entries are only a
minimum requirement and cannot be the sole ground to order
discharge. It is argued that the Rule itself states that the power “may
be invoked” and that “as far as practicable, however, discharge under
this provision should be avoided as the Personnel sent on discharge on
this account are not eligible for pension”. The submission is that the
provision can be pressed into service only when “continued and willful
disobedience or neglect” comes on record.
13. The learned Counsel with a view to fortify his aforesaid
submission placed strong reliance on the decisions of this Court in the
case of Virendra Kumar Dubey v. Chief of Army Staff & Ors. ,
(2016) 2 SCC 627, and Vijay Shankar Mishra v. Union of India and
11
, (2017) 1 SCC 795, respectively.
Ors.
14. In such circumstances referred to above, the learned Counsel
prays that there being merit in his appeal the same be allowed and the
impugned judgment and order passed by the High Court may be set
aside including the order of discharge and the appellant may be
ordered to be reinstated in service with all Full Back Wages and all
other statutory benefits.
15. On the other hand, this appeal has been vehemently opposed by
the learned Counsel appearing for the respondents. The learned
Counsel would submit that no error not to speak of any error of law
could be said to have been committed by the High Court in passing the
impugned judgment and order. She would submit that the High Court
was absolutely justified in taking the view that it was not necessary for
the authority concerned to assign any reasons for the purpose of
passing an order of discharge. The four Red Ink entries were sufficient
for the authority to arrive at the subjective satisfaction that the
appellant herein was not fit to be retained in service and more
particularly being a Rifleman with the Assam Rifle.
16. It is argued that before passing the order of discharge, notice to
show cause was issued to the appellant herein and an opportunity of
hearing was given to him.
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17. The learned Counsel submitted that all that the appellant did
was to tender an apology for his mistakes. No other ground was raised
in his reply to the show cause notice except that he hails from a poor
family and his parents and children are dependent on him. Having
regard to the reply the authority concerned rightly formed an opinion
that the appellant was a habitual offender. She invited the attention of
this Court to Para 6 of the impugned judgment of the High Court
wherein the High Court has noted that the appellant failed to offer any
explanation in the reply to the show cause notice except the family
circumstances.
18. The learned Counsel further submitted that the decision of this
Court in the case of Union of India v. Balwant Singh , (2015) 14 SCC
389, has not been referred to in the case of
Virendra Kumar Dubey
(supra).
19. In the last the learned Counsel placed reliance on the decision of
this Court in the case of Satgur Singh v. UOI & Ors. reported in
(2019)9 SCC 205, more particularly, the observations made in Para 6
and 7 respectively. Para 6 & 7 respectively are as under:
“6. We do not find any merit in the present
appeal. Para 5(a) of the circular dated 28121988
deals with an enquiry which is not a court of inquiry
into the allegations against an army personnel. Such
enquiry is not like departmental enquiry but
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semblance of the fair decisionmaking process keeping
in view the reply filed. The court of inquiry stands
specifically excluded. What kind of enquiry is required
to be conducted would depend upon facts of each
case. The enquiry is not a regular enquiry as Para 5(a)
of the Army Instructions suggests that it is a
preliminary enquiry. The test of preliminary enquiry
will be satisfied if an explanation of a personnel is
submitted and upon consideration, and order is
passed thereon. In the present case, the appellant has
not offered any explanation in the reply filed except
giving vague family circumstance. Thus, he has been
given adequate opportunity to put his defence.
Therefore, the parameters laid down in Para 5(a) of
the Army Instructions dated 28121988 stand
satisfied….
7. In reply to the showcause notice, the
appellant has not given any explanation of his
absence from duty on seven occasions. He has been
punished on each occasion for rigorous imprisonment
ranging from 2 days to 28 days. A member of the
Armed Forces cannot take his duty lightly and abstain
from duty at his will. Since the absence of duty was
on several different occasions for which he was
imposed punishment of imprisonment, therefore, the
order of discharge cannot be said to be unjustified.
The Commanding Officer has recorded that the
appellant is a habitual offender. Such fact is
supported by absence of the appellant from duty on
seven occasions.”
20. In such circumstances referred to above the learned Counsel
appearing for the respondents pray that there being no merit in this
14
appeal, the same may be dismissed.
ANALYSIS
21. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that
falls for our consideration is whether the Division Bench of the High
Court committed any error in passing the impugned order?
22. We must first look into the decision of this Court rendered in the
case of Virendra Kumar Dubey (supra). In the said case, the appellant
Virendra Kumar Dubey was enrolled as an operator in the corps of
Artillery of Indian Army on 27.09.1980. Having served in that capacity
for nearly twelve 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 Virendra Kumar Dubey had become a
habitual offender, thereby setting a bad example of indiscipline in the
army. Virendra Kumar Dubey ultimately came to be discharged from
service by an order dated 14.12.1992. He preferred a departmental
appeal, which failed. He, thereafter, went to the High Court of Madhya
Pradesh at Jabalpur, however, the High Court declined to entertain the
petition on the ground of lack of territorial jurisdiction. He, thereafter,
preferred an appeal before the Appeal Court and the writ appeal was
15
ultimately ordered to be transferred to the Armed Forces Tribunal
Regional Bench, Lucknow. The Tribunal ultimately dismissed the
transferred petition which gave rise to the appeal before this Court.
23. This Court in Virendra Kumar Dubey (supra) held as under:
“ 19. 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.”
Taking the aforesaid view, this Court ultimately passed the following
order:
“21. 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
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service for grant of pension. No back wages shall,
however, be admissible. Benefit of continuity of
service for all other purpose shall 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.”
24. In (supra), the appellant therein was
Vijay Shankar Mishra
enrolled in the Army Medical Corps on 23.06.1984. On 03.10.1997, a
notice to show cause was issued to him to explain why he should not
be discharged from service under Rule 13(3) Table (III)(v) of the Army
Rules, 1954 on the ground that his conduct and service had not been
found satisfactory. He ultimately came to be discharged from service.
By that time, he had rendered service of thirteen years and eight
months. The minimum qualifying service for earning pension under
Rule 132 of the Pension Regulations for the Army ,1961 is fifteen
years. He filed a writ petition before the Madhya Pradesh High Court
which was dismissed on 21.11.2006. In appeal, a Division Bench
directed reconsideration of the case of the appellant. Pursuant to the
order of the High Court, an order was issued rejecting his claim for
pension on the ground that he had not put in fifteen years of service
and had been discharged for the reason that he was unlikely to become
an efficient soldier. He again filed a writ petition before the Madhya
17
Pradesh High Court which was transferred to the Armed Forces
Tribunal. The Tribunal dismissed the matter. Thereafter, Mishra came
before this Court. The very same argument was canvassed before this
Court on behalf of Vijay Shankar Mishra that 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 the relevant rule for
the purpose of discharge. The Court relied upon Vijay Shankar
Mishra (supra) and ultimately held as under:
“9. 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 2622007 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 28121988
and the Circular dated 10011989.
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10. 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 239
2010 Vijay Shankar Mishra V. Union of India, 2010
SCC OnLine AFT 1127 and 1592011 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.”
25. In both the aforesaid decisions, this Court took into
consideration the fact that there was no application of mind by the
authority to the relevant aspects which were taken into consideration
while exercising the power under Rule 13 of the Rules. In both the
aforesaid cases, this Court took the view that the mere fact that the
Personnel had crossed the threshold of few Red Ink entries could not
have been made a ground to discharge them without considering other
relevant circumstances, more particularly, the nature of the violation
which led to the award of the Red Ink entries. The crux of the ratio of
the decision of this Court in the case on
Veerendra Kumar Dubey
(supra) is that the only safeguard against arbitrary exercise of power by
the authority would be to ensure that there is an enquiry, howsoever,
19
summary and a finding about the defence set up by the individual
besides consideration of the factors made relevant under the
procedure.
26. The reliance placed by the learned Counsel appearing for the
respondents on the decision of this Court in the case
Satgur Singh
(supra) is of no avail. It was a case in which the appellant failed to
furnish any explanation of his absence from duty on seven occasions.
On facts, this Court took the view that as the absence from duty was
on several different occasions for which he was imposed punishment of
imprisonment, the order of discharge could not be said to unjustified.
27. We may elaborate the aforesaid a little further.
28. Where an Act or the statutory rules framed thereunder left an
action dependent upon the opinion of the authority concerned, by
some such expression as ‘is satisfied’ or ‘is of the opinion’ or ‘if it has
reason to believe’ or ‘if it considered necessary’, the opinion of the
authority is conclusive, (a) if the procedure prescribed by the Act or
rules for formation of the opinion was duly followed, (b) if the
authority acted bona fide , (c) if the authority itself formed the opinion
and did not borrow the opinion of somebody else and (d) if the
authority did not proceed on a fundamental misconception of the law
and the matter in regard to which the opinion had to be formed.
20
29. The action based on the subjective opinion or satisfaction, in our
opinion, can judicially be reviewed first to find out the existence of the
facts or circumstances on the basis of which the authority is alleged to
have formed the opinion. It is true that ordinarily the court should not
inquire into the correctness or otherwise of the facts found except in a
case where it is alleged that the facts which have been found existing
were not supported by any evidence at all or that the finding in regard
to circumstances or material is so perverse that no reasonable man
would say that the facts and circumstances exist. The courts will not
readily defer to the conclusiveness of the authority’s opinion as to the
existence of matter of law or fact upon which the validity of the
exercise of the power is predicated.
30. The doctrine of reasonableness thus may be invoked. Where
there are no reasonable grounds for the formation of the authority’s
opinion, judicial review in such a case is permissible. [See Director of
(1959) AC 83 (Lord Denning).
Public Prosecutions v. Head,
31. When we say that where the circumstances or material or state
of affairs does not at all exist to form an opinion and the action based
on such opinion can be quashed by the courts, we mean that in effect
there is no evidence whatsoever to form or support the opinion. The
distinction between insufficiency or inadequacy of evidence and no
21
evidence must of course be borne in mind. A finding based on no
evidence as opposed to a finding which is merely against the weight of
the evidence is an abuse of the power which courts naturally are loath
to tolerate. Whether or not there is evidence to support a particular
decision has always been considered as a question of law. [See
Reg. v.
Governor of Brixton Prison, Armah, Ex Parte, (1966) 3 WLR 828 at
p. 841 ].
32. It is in such a case that it is said that the authority would be
deemed to have not applied its mind or it did not honestly form its
opinion. The same conclusion is drawn when opinion is based on
irrelevant matter. [See AIR 1969 SC
Rasbihari v. State of Orissa,
1081].
33. In the case of
Rohtas Industries Ltd. v. S.D. Agarwal and
another, AIR 1969 SC 707, it was held that the existence of
circumstances is a condition precedent to form an opinion by the
Government. The same view was earlier expressed in the case of
Barium Chemicals Ltd. and another v. Company Law Board and
AIR 1967 SC 295
others, .
34. Secondly, the court can inquire whether the facts and
circumstances so found to exist have a reasonable nexus with the
22
purpose for which the power is to be exercised. In other words, if an
inference from facts does not logically accord with and flow from them,
the Courts can interfere treating them as an error of law. [See
Bean v.
(1944) 2 All ER 279 at ].
Doncaster Amalgamated Collieries, p. 284
Thus, this Court can see whether on the basis of the facts and
circumstances found, any reasonable man can say that an opinion as
is formed can be formed by a reasonable man. That would be a
question of law to be determined by the Court. [See Farmer v.
Cotton’s Trustees, 1915 AC 922]. Their Lordships observed:
“……….. in my humble judgment where all the
material facts are fully found, and the only question is
whether the facts are such as to bring the case within
the provisions properly construed of some statutory
enactment, the question is one of law only.”
[See also Muthu Gounder v. Government of Madras, (1969) 82 Mad
LW 1].
35. Thirdly, this Court can interfere if the constitutional or statutory
term essential for the exercise of the power has either been misapplied
or misinterpreted. The Courts have always equated the jurisdictional
review with the review for error of law and have shown their readiness
to quash an order if the meaning of the constitutional or statutory
term has been misconstrued or misapplied. [See Iveagh (Earl of) v.
23
(1962) 2 QB 147;
Minister of Housing and Local Govt., Iveagh (Earl
(1964) 1 AB 395].
of) v. Minister of Housing and Local Govt.
36. Fourthly, it is permissible to interfere in a case where the power
is exercised for improper purpose. If a power granted for one purpose
is exercised for a different purpose, then it will be deemed that the
power has not been validly exercised. If the power in this case is found
to have not been exercised genuinely for the purpose of taking
immediate action but has been used only to avoid embarrassment or
wreck personal vengeance, then the power will be deemed to have been
exercised improperly. [See Natesa Asari v. State of Madras, AIR
1954 Mad 481].
37. Fifthly, the grounds which are relevant for the purpose for which
the power can be exercised have not been considered or grounds which
are not relevant and yet are considered and an order is based on such
grounds, then the order can be attacked as invalid and illegal. In this
connection, reference may be made to
Ram Manohar v. State of
Bihar, AIR 1966 SC 740; Dwarka Das v. State of J. and K., AIR
1957 SC 164 at p. 168 and Motilall v. State of Bihar, AIR 1968 SC
1509. On the same principle, the administrative action will be
invalidated if it can be established that the authority was satisfied on
the wrong question: [See (1967) 1 AC 13].
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38. At this stage, it may be apposite to refer to the Assam Rifles
Regulation, 2016. We are conscious of the fact that these regulations
do not apply to the case on hand as the order of discharge is of 2004.
However, we deem fit to reproduce the relevant regulations, more
particularly, 107(c) and 108 respectively, as these regulations seem to
have been enacted and brought into force having regard to the ratio of
the decision of this Court in the case of Veerendra Kumar Dubey
(supra). Regulation 107(c) reads thus:
“ 107. Removal of undesirable, incorrigible and
inefficient Subordinate Officers, Under Officers and
other enrolled persons.
(a) …………
(b) …………
(c) The procedure for dismissal/discharge of unsuitable
subordinate officer/under officer/enrolled person will be
as under:
(i) As provided under Rules 24 and 25 of Assam
Rifles Rules, the person concerned, subject to the
exception mentioned therein, shall be served with a
Show Cause Notice against the contemplated action.
(ii) 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 hearing.
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(iii) Rule 24 of the Assam Rifles confers powers on
the Commandants of the Assam Rifles Units/
establishment to discharge any subordinate
officer/under officer/enrolled persons of Assam
Rifles. However, the power of discharge by the
Commandant shall be exercised with prior approval
of immediate superior officer not below Sector
Commander in case of Under Officers and other
enrolled person and that of Inspector General Assam
Rifles in case of Subordinate Officers.
(iv) After compliance of the provisions enumerated
above, a show cause notice will be served on the
individual affording him an opportunity to explain his
case. Thereafter, the complete case file will be
forwarded to next superior authority/Sector
Headquarters for approval of the superior
authority/Sector Commander.
(v) The authority competent to sanction the
dismissal/discharge of the individual will before
passing orders reconsider the case in the light of the
individual reply to the show cause notice. A person
who has been served a show cause notice for
proposed dismissal may be ordered to be discharged
if it is considered that discharge would meet the end
of justice. If the competent authority accepts the
reply of the individual to the show cause notice as
entirely satisfactorily, he will pass orders accordingly.
108. Discharge on ground of red ink entries. A
Subordinate Officer, Under Officer or other enrolled
person who has incurred four or more red ink entries may
be recommended for discharge from the service on the
ground of unsuitability, subject to the following
conditions:
(a) After an individual has earned three red ink
entries, he shall be warned in writing that his service
will be liable to be terminated by the competent
authority if he earns one more red ink entry. Such a
warning letter shall be issued to him by the
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concerned Sector Commander through Commandant
of the individual.
(b) Each case of individuals having earned four or
more red ink entries shall be examined on its own
merit depending upon the nature and gravity of the
offences and the aggravating circumstances under
which these were committed. The authority
competent to sanction discharge under this para
shall record reasons for ordering the discharge, or
otherwise.
(c) A person who has put in eighteen years of
qualifying service for pension may be allowed to
complete the required qualifying service for grant of
pension before he is recommended for discharge on
ground of four or more red ink entries, unless there
are compelling reasons to sanction his discharge
before completion of the qualifying service for
pension, which must be specified in the discharge
order.
(d) Before taking the final decision to order the
discharge, the person concerned shall be informed
through a show cause notice that his retention in the
service is considered undesirable for having incurred
four or more red ink entries, thereby also calling
upon him to show cause as to why he should not be
discharged from the service for being considered
unsuitable for the service in the Assam Rifles. The
individual shall be given minimum fifteen days, after
receipt of Show Cause Notice, to submit his reply.
(e) After receipt of the individual’s reply, if any, the
case shall be put up to the authority competent to
sanction the discharge alongwith recommendations
of the Commandant of the unit concerned. Before
passing the discharge order, the authority competent
to sanction the discharge under this para may seek
the advise of the Law Officer concerned.
(f) An order of discharge under this para shall be
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passed by an officer not less than a Sector
Commander in the case of Under Officer or other
enrolled persons and an officer not less than
Inspector General Assam Rifles/Additional Director
General Assam Rifles in case of Subordinate
Officers.”
39. Having regard to the nature of the misconduct alleged against the
appellant we are of the view that the ends of justice would be met if we
set aside the order of discharge and treat the appellant herein to have
been in service till the time, he could be said to have completed the
qualifying service for grant of pension. We are inclined to pass such an
order with a view to do substantial justice as there is nothing on record
to indicate that the nature of the misconduct leading to the award of
four Red Ink entries was so unacceptable that the competent authority
had no option but to direct his discharge to prevent indiscipline in the
force.
40. The order of discharge passed against the appellant herein is
hereby set aside. The appellant shall be treated to have been in service
till the time he would have completed the qualifying service for grant of
pension. We are informed that only six months were left for the
qualifying service to be completed before the appellant came to be
discharged. No back wages shall, however, be admissible. The benefit
of continuity of service for all other purpose shall be granted to the
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appellant including pension. The monetary benefits payable to the
appellant shall be released expeditiously but not later than four
months from the date of this order.
41. The appeals are allowed in the aforesaid terms. No order as to
costs.
42. Pending application, if any, stands disposed of.
………………………………………..J.
(SURYA KANT)
………………………………………..J.
(J.B. PARDIWALA)
NEW DELHI
JULY 14, 2022
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