SEP. SATGUR SINGH vs. UNION OF INDIA

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1857 OF 2018

J U D G M E N T HEMANT GUPTA, J. 1) The challenge in the present appeal is to an order passed on April 1 30, 2014 by the Armed Forces Tribunal , Chandigarh, Regional Bench at Chandimandir whereby, the discharge of the appellant on account of seven red ink entries during his 11 years 9 months and 15 days service was not found to be unjustified. 2) The appellant was served with a show-cause notice on September 22, 2004 that the appellant has proved himself undesirable and retention in service is not considered suitable, in respect of seven punishments: two in the year 1995; one in the year 1998; two in the year 2000; and two in the year 2004. The details of his punishments seven times are as under:

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3) In response to such show-cause notice, the reply of the appellant was that he did not have any other source to look after the welfare of his children and that he has committed a blunder and mistakes due to his family problems and that he would not commit a single mistake again. 4) After considering the reply filed, the reasons for discharge have been recorded by General Officer Commanding 24 Infantry Division on November 26, 2004 wherein, it has been recorded that the appellant is habitual offender, therefore, he be discharged from service. 5) Learned counsel for the appellant relied upon judgment of this Court in Veerendra Kumar Dubey v. Chief of Army Staff & 2 Ors. wherein, it has been held that the red ink entries by itself would not be sufficient to discharge any person, but the Commanding Officer is required to conduct an enquiry as required under para 5(a) of the Army Instructions dated December 28, 1988. The relevant part is reproduced below: “Addl. Director General Personal Services (PS-2) Army Headquarters, Room No. Sena Bhawan’s Wing, DHQ PO New Delhi – 110011 A/21210/159/ps-4(C) 28 Dec. 1988 2 (2016) 2 SCC 627 2 Headquarters, Southern Command, Pune Eastern Command, Calcutta Western Command, Chandimandir Central Command, Lucknow Northern Command, C/o 56 APO Procedure for dismissal/discharge of undesirable JCOs/WOs/OR: xx xx xx 5. xx xx xx (a) Preliminary Enquiry.—Before recommending discharge or dismissal of an individual the authority concerned will ensure— (i) 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. (ii) 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.” 6) We do not find any merit in the argument that since no regular enquiry was conducted by the Commanding Officer as held by this Court in Veerendra Kumar Dubey , therefore, the punishment is not sustainable. This Court in the aforesaid judgment held as under:

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(emphasis supplied) 7) We do not find any merit in the present appeal. Para 5(a) of the Circular dated December 28, 1988 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 semblance of the fair decision-making 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, an 5 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 December 28, 1988 stand satisfied. 8) In reply to the show-cause 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. 9) In view thereof, we do not find any error in the order of discharge of the appellant. Appeal is dismissed. .............................................J. (L. NAGESWARA RAO) .............................................J. (HEMANT GUPTA) NEW DELHI; SEPTEMBER 2, 2019. 6