Supreme Court of India
NARAIN SINGH versus UNION OF INDIA & ORS. on 20 September 2019
[2019] 13 S.C.R. 115
NARAIN SINGH
v.
UNION OF INDIA & ORS.
(Civil Appeal Nos. 7452-7453 of 2019)
SEPTEMBER 20, 2019
[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]
Army Rules, 1954 – r. 13(3)(III)(v) – Discharge from service– Appellant was enrolled in the Indian Army as a driver – He sufferedfour red ink entries during the period from 07.06.1993 and03.05.1994 – Appellant served for 13 years 7 months and 6 daysand before he could complete the pensionable service, he wasdischarged u/r. 13(3)(III)(v) of the Army Rules solely on the groundof four red ink entries – Aggrieved, appellant filed applicationbefore the Armed Forces Tribunal, which was dismissed – Reviewapplication was also dismissed – On appeal, held: Award of fourred ink entries simply pushes the individual concerned into a greyarea where he can be considered for discharge – But just becausehe qualifies for such discharge, does not mean that he mustnecessarily suffer that fate – In the instant case, there was nothingadverse against the appellant from the period between 1980 to07.06.1993 – All the four red ink entries related to period between07.06.1993 and 03.05.1994 – There was nothing on record tosuggest that the nature of the mis-conduct leading to the award ofred ink entries was so unacceptable that the competent authorityhad no option but to direct his discharge to prevent indiscipline inthe force – The Commanding Officer failed to take into considerationthe relevant aspects and appellant was discharged from servicemechanically and solely on the basis of award of four red ink entries– Thus, order of discharge unjustified and not sustainable in law –Service Law – Armed Forces.
Allowing the appeals, the Court
HELD: 1. On perusal of the four red ink entries and thenature of allegations and the charge on the basis of which fourred entries were awarded to the appellant. It appears that, out offour red ink entries, two entries pertain to 3.3.1994 and one entry
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Conclusion
Apertains to 3.5.1994. Out of the aforesaid, with respect to one ofthe red ink entries, the allegation was that the appellant refusedto take food when he was ordered. Considering the nature ofoffences for which the red ink entries were made, this Court is ofthe opinion that on the basis of such red ink entries, the appellantcould not have been discharged from service and that too afterBrendering 13 years of service and when he was about to completethe pensionable service. From the impugned judgment and order,it appears that the appellant has been discharged from servicemechanically and solely on the basis of award of four red inkentries. As observed by this Court in the case of Veerendra KumarCDubey, mere award of four red ink entries does not make thedischarge mandatory. It is further observed that four red inkentries is not some kind of Laxman Rekha, which if crossed wouldby itself render the individual concerned undesirable or unworthyof retention in the force. Award of four red ink entries simplypushes the individual concerned into a grey area where he canDbe considered for discharge. But just because he qualifies forsuch discharge, does not mean that he must necessarily sufferthat fate. It is further observed that it is one thing to qualify forconsideration and an entirely different to be found fit for discharge.It is further observed that four red ink entries in that sense takesEthe individual closer to discharge but does not push him over. Itis axiomatic that the Commanding Officer is, even after the awardof such entries, required to consider the nature of the offence forwhich such entries have been awarded and other aspects. It isfurther observed that the authority exercising the power ofdischarge is expected to take into consideration all relevantFfactors. That an individual has put in long years of service givingmore often than not the best part of his life to armed forces, thathe has been exposed to hard stations and difficult living conditionsduring his tenure and that he may be completing pensionableservice, are factors which the authority competent to dischargeGwould have even independent of the procedure been required totake into consideration while exercising the power of discharge.[Para 6.2][120-C-H; 121-A]
2. Coming then to the case at hand, there is nothing onrecord to suggest that the authority concerned has taken into H
consideration the long service rendered by the appellant. Thereis nothing on record to suggest that the nature of the mis-conductleading to the award of red ink entries was so unacceptable thatthe competent authority had no option but to direct his dischargeto prevent indiscipline in the force. Even considering the offencesfor which the red ink entries were awarded, it cannot be said thatthe mis-conduct and/or offences are such which would justify thedischarge of the appellant. The offences for which the red inkentries are awarded, cannot be said to be such gross mis-conductwhich would make the appellant indiscipline and liable to bedischarged from service and that too, after a period of long servicerendered by him. [Para 6.3][121-B-D]
Veerendra Kumar Dubey v. Chief of Army Staff andOthers (2016) 2 SCC 627 : [2015] 10 SCR 1013 –relied on.
Case Law Reference
relied on
Para 4.2
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7452-7453 of 2019.
From the Judgment and Order dated 06.02.2015 of the ArmedForces Tribunal, Bench at Jaipur in Original Application T.A. No. 02 of2011 and order dated 31.08.2015 in Review Application No. 02 of 2015.
Shaumit Mukherjee, Satya Narayan Vashishth, Sanjai KumarPathak, Ms. Shashi Pathak, Arvind Kumar Tripathi, Advs. for theAppellant.
K. M. Natraj, ASG, Vikrant Yadav, Mohd. Akhil, A. K. Sharma,Mukesh Kumar Maroria, Vinayak Sharma, Ms. Indira Bhakhar, Advs.for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Leave to appeal is granted.
2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 6.2.2015 passed by the Armed Forces Tribunal Bench A
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Aat Jaipur, Rajasthan in T.A. No. 2 of 2011, by which the learned Tribunalhas dismissed the application preferred by the appellant herein and hasconfirmed the order passed by the respondents discharging the appellantfrom service under Rule 13(3)(III)(v) of the Army Rules, 1954, originalapplicant has preferred the present appeals.
B3. The appellant was enrolled in the Indian Army as a Driver on15.10.1980. He was promoted as ALD and lastly granted the rank ofLance Dafedar. That the appellant suffered four red ink entries duringthe period between 7.6.1993 and 3.5.1994. That for every red ink entryhe was separately punished. That the respondents discharged theappellant under Rule 13(3)(III)(v) of the Army Rules from the ArmyCsolely on the ground of four red ink entries. At this stage, it is required tobe noted that the appellant came to be discharged when he had servedfor 13 years 7 months and 6 days and before he could complete thepensionable service. That the appellant was discharged from service 1year 5 months and 24 days before he could complete pensionable service.DThat the appellant challenged the order of discharge before the ArmedForces Tribunal. By the impugned judgment and order, the learnedTribunal has dismissed the said application. The appellant thereafterpreferred the review application, which also came to be dismissed.Hence, the present appeals.
E4. Shri Shoumit Mukherjee, learned advocate appearing on behalfof the appellant has vehemently submitted that the appellant came to bedischarged from service solely on the basis of four red ink entries whichthe appellant suffered after a period of 13 years of his service and thattoo during the period between 7.6.1993 and 3.5.1994. It is furthersubmitted that it is a clear case of victimization and all the four red inkFentries were awarded within a short span of one year. It is submittedthat as the appellant did not comply with certain illegal directions givento the appellant by Captain D. Mahapatra, he was given the punishment.
4.1 Shri Mukherjee, learned advocate appearing on behalf of theappellant has taken us through the four red ink entries and the allegations/Gcharge on the basis of which the red ink entries were made. He hasvehemently submitted that on the basis of such four red ink entries, theappellant could not have been discharged from service and that too afterrendering a service of 13 years or more and when he was about tocomplete the pensionable service.
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4.2 Learned advocate appearing on behalf of the appellant hasfurther submitted that the respondents have discharged the appellantfrom 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 makethe discharge mandatory. It is submitted that, as held by this Court in thecase of Veerendra Kumar Dubey v. Chief of Army Staff and Others2016 (2) SCC 627, the Commanding Officer after award of such entriesis required to consider the nature of offence for which such entries areawarded; long service rendered by an individual etc. It is submitted thattherefore the learned Tribunal ought to have set aside the order ofdischarge.
5. The present appeals are vehemently opposed by Shri K. M.Natraj, learned Additional Solicitor General of India appearing on behalfof the respondents.
5.1 It is vehemently submitted by the learned Additional SolicitorGeneral appearing on behalf of the respondents that it is an admittedposition that there were four red ink entries awarded to the appellantand the same were not challenged by the appellant at any point of time.It is submitted that therefore the appellant was rightly discharged fromservice in exercise of powers under Rule 13(3)(III)(v) of the Army Rules.It is further submitted by learned Additional Solicitor General that beforedischarging the appellant, requisite procedure of law was fully followed.It is further submitted by the learned Additional Solicitor General thatthe appellant was discharged from service with a view to maintain thediscipline in the Army. It is submitted that therefore the learned Tribunalrightly refused to interfere with the order of discharge which was passedin exercise of powers under Rule 13(3)(III)(v) of the Army Rules.
5.2 Making the above submissions, it is prayed to dismiss thepresent appeals.
6. We have heard the learned counsel for respective parties atlength.
6.1 At the outset, it is required to be noted that at the time whenthe appellant was discharged from service in exercise of powers underRule 13(3)(III)(v) of the Army Rules, he had served for 13 years 7months and 6 days. That, at the time of discharge from service, theappellant could not complete the pensionable service and he was AB
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Adischarged from service 1 year 5 months and 24 days before he couldcomplete pensionable service. It is required to be noted that the appellanthas been discharged from service under Rule 13(3)(III)(v) of the ArmyRules, solely on the basis of four red ink entries awarded to him. It isrequired to be noted that from 1980 to 7.6.1993 there was nothing adversefound against the appellant. All these four red ink entries relate to theBperiod between 7.6.1993 and 3.5.1994.
6.2 We have gone through the four red ink entries and the natureof allegations and the charge on the basis of which four read entrieswere 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. OutCof the aforesaid, with respect to one of the red ink entries, the allegationwas that the appellant refused to take food when he was ordered.Considering the nature of offences for which the red ink entries weremade, we are of the opinion that on the basis of such red ink entries, theappellant could not have been discharged from service and that too afterDrendering 13 years of service and when he was about to complete thepensionable service. From the impugned judgment and order, it appearsthat the appellant has been discharged from service mechanically andsolely on the basis of award of four red ink entries. As observed by thisCourt in the case of Veerendra Kumar Dubey (supra), mere award offour red ink entries does not make the discharge mandatory. It is furtherEobserved that four red ink entries is not some kind of Laxman Rekha,which if crossed would by itself render the individual concernedundesirable or unworthy of retention in the force. Award of four red inkentries simply pushes the individual concerned into a grey area wherehe can be considered for discharge. But just because he qualifies forFsuch discharge, does not mean that he must necessarily suffer that fate.It is further observed that it is one thing to qualify for consideration andan entirely different to be found fit for discharge. It is further observedthat four red ink entries in that sense takes the individual closer todischarge but does not push him over. It is axiomatic that the CommandingOfficer is, even after the award of such entries, required to consider theGnature of the offence for which such entries have been awarded andother aspects. It is further observed that the authority exercising thepower of discharge is expected to take into consideration all relevantfactors. That an individual has put in long years of service giving moreoften than not the best part of his life to armed forces, that he has beenHexposed to hard stations and difficult living conditions during his tenure and that he may be completing pensionable service, are factors whichthe authority competent to discharge would have even independent ofthe procedure been required to take into consideration while exercisingthe power of discharge.
6.3 Coming then to the case at hand, we find that there is nothingon record to suggest that the authority concerned has taken intoconsideration the long service rendered by the appellant. There is nothingon record to suggest that the nature of the mis-conduct leading to theaward of red ink entries was so unacceptable that the competent authorityhad no option but to direct his discharge to prevent indiscipline in theforce. Even considering the offences for which the red ink entries wereawarded, it cannot be said that the mis-conduct and/or offences aresuch which would justify the discharge of the appellant. The offencesfor which the red ink entries are awarded, cannot be said to be suchgross mis-conduct which would make the appellant indiscipline and liableto be discharged from service and that too, after a period of long servicerendered by him.
6.4 Under the circumstances and in the facts and circumstancesof the case, the order of discharge is wholly unjustified and not sustainableat law. While discharging the appellant from service, the CommandingOfficer has failed to take into consideration the relevant aspects notedhereinabove and the order of discharge has been passed mechanicallyand 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 orderof discharge was not passed. Benefit of continuous service for all otherpurpose shall be granted to the appellant including pension. The monetarybenefits payable to the appellant shall be released expeditiously, but notlater than four months from the date of this order. No costs.
Ankit Gyan
Appeals allowed.
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