Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 74527453 OF 2019
[Diary No. 40813 of 2015]
Narain Singh .. Appellant
Versus
Union of India & Ors. .. Respondents
J U D G M E N T
M. R. SHAH, J.
1. Leave to appeal is granted.
2. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 6.2.2015 passed by the Armed Forces
Tribunal Bench at Jaipur, Rajasthan in T.A. No. 2 of 2011, by
which the learned Tribunal has dismissed the application
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
Date: 2019.09.20
17:04:28 IST
Reason:
preferred by the appellant herein and has confirmed the order
2
passed by the respondents discharging the appellant from service
under Rule 13(3)(III)(v) of the Army Rules, 1954, original
applicant has preferred the present appeals.
3. The appellant was enrolled in the Indian Army as a Driver
on 15.10.1980. He was promoted as ALD and lastly granted the
rank of Lance Dafedar. That the appellant suffered four red ink
entries during the period between 7.6.1993 and 3.5.1994. That
for every red ink entry he was separately punished. That the
respondents discharged the appellant under Rule 13(3)(III)(v) of
the Army Rules from the Army solely on the ground of four red
ink entries. At this stage, it is required to be noted that the
appellant came to be discharged when he had served for 13 years
7 months and 6 days and before he could complete the
pensionable service. That the appellant was discharged from
service 1 year 5 months and 24 days before he could complete
pensionable service. That the appellant challenged the order of
discharge before the Armed Forces Tribunal. By the impugned
judgment and order, the learned Tribunal has dismissed the said
application. The appellant thereafter preferred the review
3
application, which also came to be dismissed. Hence, the present
appeals.
4. Shri Shoumit Mukherjee, learned advocate appearing on
behalf of the appellant has vehemently submitted that the
appellant came to be discharged from service solely on the basis
of four red ink entries which the appellant suffered after a period
of 13 years of his service and that too during the period between
7.6.1993 and 3.5.1994. It is further submitted that it is a clear
case of victimization and all the four red ink entries were
awarded within a short span of one year. It is submitted that as
the appellant did not comply with certain illegal directions given
to the appellant by Captain D. Mahapatra, he was given the
punishment.
4.1 Shri Mukherjee, learned advocate appearing on behalf of the
appellant has taken us through the four red ink entries and the
allegations/charge on the basis of which the red ink entries were
made. He has vehemently submitted that on the basis of such
four red ink entries, the appellant could not have been
discharged from service and that too after rendering a service of
4
13 years or more and when he was about to complete the
pensionable service.
4.2 Learned advocate appearing on behalf of the appellant has
further submitted that the respondents have discharged the
appellant from service mechanically and solely on the basis of
four red ink entries. It is submitted that mere awarding of four
red ink entries does not make the discharge mandatory. It is
submitted that, as held by this Court in the case of
Veerendra
Kumar Dubey v. Chief of Army Staff and Others 2016 (2) SCC
627, the Commanding Officer after award of such entries is
required to consider the nature of offence for which such entries
are awarded; long service rendered by an individual etc. It is
submitted that therefore the learned Tribunal ought to have set
aside the order of discharge.
5. The present appeals are vehemently opposed by Shri K. M.
Natraj, learned Additional Solicitor General of India appearing on
behalf of the respondents.
5.1 It is vehemently submitted by the learned Additional
Solicitor General appearing on behalf of the respondents that it is
5
an admitted position that there were four red ink entries awarded
to the appellant and the same were not challenged by the
appellant at any point of time. It is submitted that therefore the
appellant was rightly discharged from service in exercise of
powers under Rule 13(3)(III)(v) of the Army Rules. It is further
submitted by learned Additional Solicitor General that before
discharging the appellant, requisite procedure of law was fully
followed. It is further submitted by the learned Additional
Solicitor General that the appellant was discharged from service
with a view to maintain the discipline in the Army. It is
submitted that therefore the learned Tribunal rightly refused to
interfere with the order of discharge which was passed in exercise
of powers under Rule 13(3)(III)(v) of the Army Rules.
5.2 Making the above submissions, it is prayed to dismiss the
present appeals.
6. We have heard the learned counsel for respective parties at
length.
6.1 At the outset, it is required to be noted that at the time
when the appellant was discharged from service in exercise of
powers under Rule 13(3)(III)(v) of the Army Rules, he had served
6
for 13 years 7 months and 6 days. That, at the time of discharge
from service, the appellant could not complete the pensionable
service and he was discharged from service 1 year 5 months and
24 days before he could complete pensionable service. It is
required to be noted that the appellant has been discharged from
service under Rule 13(3)(III)(v) of the Army Rules, solely on the
basis of four red ink entries awarded to him. It is required to be
noted that from 1980 to 7.6.1993 there was nothing adverse
found against the appellant. All these four red ink entries relate
to the period between 7.6.1993 and 3.5.1994.
6.2 We have gone through the four red ink entries and the
nature of allegations and the charge on the basis of which four
read entries were awarded to the appellant. It appears that, out
of four red ink entries, two entries pertain to 3.3.1994 and one
entry pertains to 3.5.1994. Out of the aforesaid, with respect to
one of the red ink entries, the allegation was that the appellant
refused to take food when he was ordered. Considering the
nature of offences for which the red ink entries were made, we
are of the opinion that on the basis of such red ink entries, the
appellant could not have been discharged from service and that
7
too after rendering 13 years of service and when he was about to
complete the pensionable service. From the impugned judgment
and order, it appears that the appellant has been discharged
from service mechanically and solely on the basis of award of four
red ink entries. As observed by this Court in the case of
(supra), mere award of four red ink
Veerendra Kumar Dubey
entries does not make the discharge mandatory. It is further
observed 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 further
observed that it is one thing to qualify for consideration and an
entirely different to be found fit for discharge. It is further
observed that 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
8
which such entries have been awarded and other aspects. It is
further observed that 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.
6.3 Coming then to the case at hand, we find that there is
nothing on record to suggest that the authority concerned has
taken into consideration the long service rendered by the
appellant. 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. Even
considering the offences for which the red ink entries were
awarded, it cannot be said that the misconduct and/or offences
9
are such which would justify the discharge of the appellant. The
offences for which the red ink entries are awarded, cannot be
said to be such gross misconduct which would make the
appellant indiscipline and liable to be discharged from service
and that too, after a period of long service rendered by him.
6.4 Under the circumstances and in the facts and
circumstances of the case, the order of discharge is wholly
unjustified and not sustainable at law. While discharging the
appellant from service, the Commanding Officer has failed to take
into consideration the relevant aspects noted hereinabove and
the order of discharge has been passed mechanically and on
mere four red ink entries.
7. In the result, present appeals succeed and are hereby
allowed. The order of discharge passed against the appellant is
hereby set aside. The appellant shall be entitled to all
consequential benefits as if the order of discharge was not
passed. Benefit of continuous service for all other purpose shall
be granted to the appellant including pension. The monetary
benefits payable to the appellant shall be released expeditiously,
10
but not later than four months from the date of this order. No
costs.
..................................J.
(ARUN MISHRA)
...................................J.
(M. R. SHAH)
New Delhi ...................................J.
September 20, 2019 (B. R. GAVAI)