SEP. SATGUR SINGH versus UNION OF INDIA & ORS. on 2 September 2019

1. The challenge in the present appeal is to an order passed onApril 30, 2014 by the Armed Forces Tribunal[1], Chandigarh, RegionalBench at Chandimandir whereby, the discharge of the appellant on H1 AFT

account of seven red ink entries during his 11 years 9 months and 15days service was not found to be unjustified.

2. The appellant was served with a show-cause notice onSeptember 22, 2004 that the appellant has proved himself undesirableand retention in service is not considered suitable, in respect of sevenpunishments: two in the year 1995; one in the year 1998; two in theyear 2000; and two in the year 2004. The details of his punishmentsseven times are as under:

(a) U/s 39(a) of Army Act21 days RI on 02.09.1995

(b) U/s 51 of Army Act28 days RI on 07.09.1995

(c) U/s 39(a) of Army Act21 days RI on 04.08.1998

(d) U/s 39(b) of Army Act07 days RI on 02.11.2000

(e) U/s 63 of Army Act02 days RI on 15.11.2000

(f) U/s 39(b) of Army Act05 days RI on 12.02.2004

(g) U/s 63 of Army Act21 days RI on 25.05.2004

3. In response to such show-cause notice, the reply of theappellant was that he did not have any other source to look after thewelfare of his children and that he has committed a blunder andmistakes due to his family problems and that he would not commit asingle mistake again.

4. After considering the reply filed, the reasons for discharge havebeen recorded by General Officer Commanding 24 Infantry Divisionon November 26, 2004 wherein, it has been recorded that the appellantis habitual offender, therefore, he be discharged from service.

5. Learned counsel for the appellant relied upon judgment of thisCourt in Veerendra Kumar Dubey v. Chief of Army Staff & Ors.[2]wherein, it has been held that the red ink entries by itself would not besufficient to discharge any person, but the Commanding Officer isrequired to conduct an enquiry as required under para 5(a) of the ArmyInstructions dated December 28, 1988. The relevant part is reproducedbelow:

2 (2016) 2 SCC 627

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1026SUPREME COURT REPORTS

A“Addl. Director General Personal Services (PS-2) ArmyHeadquarters, Room No. Sena Bhawan's Wing, DHQ PO NewDelhi - 110011

A/21210/159/ps-4(C)

28 Dec. 1988

Headquarters, Southern Command, Pune Eastern Command,BCalcutta Western Command, Chandimandir Central Command,Lucknow Northern Command, C/o 56 APO

Procedure for dismissal/discharge of undesirable JCOs/WOs/OR:

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(a) Preliminary Enquiry.-Before recommending discharge ordismissal 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 hasDhad adequate opportunity of putting up his defence or explanationand of adducing evidence in his defence.

(ii) that the allegations have been substantiated and that theextreme step of termination of the individual's service iswarranted on the merits of the case.”E

6. We do not find any merit in the argument that since no regularenquiry was conducted by the Commanding Officer as held by this Courtin Veerendra Kumar Dubey, therefore, the punishment is notsustainable. This Court in the aforesaid judgment held as under:

F“10. The Government has, as rightly mentioned by the learnedcounsel for the appellant, stipulated not only a show-cause noticewhich is an indispensable part of the requirement of the Rulebut also an impartial enquiry into the allegations against him inwhich he is entitled to an adequate opportunity of putting up hisdefence and adducing evidence in support thereof. MoreGimportantly, certain inbuilt safeguards against discharge fromservice based on four red ink entries have also been prescribed.The first and foremost is an unequivocal declaration that mereaward of four red ink entries to an individual does not make hisdischarge mandatory. This implies that four red ink entries is notsome kind of Laxman rekha, which if crossed would by itself H

render the individual concerned undesirable or unworthy ofretention in the force. Award of four red ink entries simply pushesthe individual concerned into a grey area where he can beconsidered for discharge. But just because he qualifies for suchdischarge, does not mean that he must necessarily suffer thatfate. It is one thing to qualify for consideration and an entirelydifferent thing to be found fit for discharge. Four red ink entriesin that sense take the individual closer to discharge but does notpush him over. It is axiomatic that the Commanding Officeris, even after the award of such entries, required to considerthe nature of the offence for which such entries have beenawarded and other aspects made relevant by the Governmentin the procedure it has prescribed.

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A careful reading of the above would show that the competentauthority has made it abundantly clear to officers competent todirect discharge that before discharging an individual, not onlyshould there be a show-cause notice but an enquiry into theallegations made against the individual concerned in whichhe ought to be given an opportunity of putting up his defenceand that the allegations must stand substantiated for adischarge to follow.

12. Para 5(f)(2) underscores the importance of the truism thattermination of the individual's service is an extreme step whichought to be taken only if the facts of the case so demand. Whatis evident from the procedural mandate given to the authoritiesis to ensure that discharge is not ordered mechanically andthat the process leading to the discharge of an individual ishumanised by the requirement of an impartial enquiry intothe matter and fair opportunity to the concerned especiallywhen he is about to complete his pensionable service. Equallysignificant is the fact that the authority competent to dischargeis required to take into consideration certain factors made relevantby the Circular to prevent injustice, unfair treatment or arbitraryexercise of the powers vested in the authority competent todischarge. For instance Note 2 to Rule 5 requires the competentauthority to take into consideration the long service rendered bythe individual, the hard stations he has been posted to and the AB

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difficult living conditions to which the individual has been exposedduring his tenure. It is only when the competent authority considersdischarge to be absolutely essential after taking into considerationthe factors aforementioned that discharge of the individual canbe validly ordered.

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18. Coming then to the case at hand, we find that no enquirywhatsoever was conducted by the Commanding Officer at anystage against the appellant as required under Para 5(a) of theprocedure extracted above. More importantly, there is nothingCon record to suggest that the authority competent had taken intoconsideration the long service rendered by the appellant, thedifficult living conditions and the hard stations at which he hadserved. There is nothing on record to suggest that the nature ofthe misconduct leading to the award of red ink entries was sounacceptable that the competent authority had no option but toDdirect his discharge to prevent indiscipline in the force…”

(emphasis supplied)

7. We do not find any merit in the present appeal. Para 5(a) ofthe Circular dated December 28, 1988 deals with an enquiry which isEnot a court of inquiry into the allegations against an army personnel.Such enquiry is not like departmental enquiry but semblance of the fairdecision-making process keeping in view the reply filed. The court ofinquiry stands specifically excluded. What kind of enquiry is requiredto be conducted would depend upon facts of each case. The enquiryis not a regular enquiry as para 5(a) of the Army Instructions suggestsFthat it is a preliminary enquiry. The test of preliminary enquiry will besatisfied if an explanation of a personnel is submitted and uponconsideration, an order is passed thereon. In the present case, theappellant has not offered any explanation in the reply filed except givingvague family circumstance. Thus, he has been given adequateGopportunity to put his defence. Therefore, the parameters laid down inpara 5(a) of the Army Instructions dated December 28, 1988 standsatisfied.

8. In reply to the show-cause notice, the appellant has not givenany explanation of his absence from duty on seven occasions. He hasHbeen punished on each occasion for rigorous imprisonment ranging from SEP. SATGUR SINGH v. UNION OF INDIA & ORS.[HEMANT GUPTA, J.]

2 days to 28 days. A Member of the Armed Forces cannot take hisduty lightly and abstain from duty at his will. Since the absence ofduty was on several different occasions for which he was imposedpunishment of imprisonment, therefore, the order of discharge cannotbe said to be unjustified. The Commanding Officer has recorded thatthe appellant is a habitual offender. Such fact is supported by absenceof the appellant from duty on seven occasions.

9. In view thereof, we do not find any error in the order ofdischarge of the appellant. Appeal is dismissed.

Kalpana K. Tripathy

Appeal dismissed.

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