IMPORTANT POINT
Four red ink entries do not mandatorily require discharge.

JUDGMENT :

T.S. THAKUR, J.

1. This appeal under Section 31 of the Armed Forces Tribunal Act, 2007, is directed against a judgment and order dated 14th December 2011 passed by the Armed Forces Tribunal, Regional Bench at Lucknow whereby the Tribunal has dismissed Transferred Application No.16 of 2011 filed by the appellant in the process affirming an order of discharge passed against the appellant by the competent authority under Rule 13(III)(v) of the Army Rules, 1954.

2. The appellant was enrolled as an Operator in the corps of Artillery of Indian Army on 27th September, 1980. Having served in that capacity for nearly 12 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 the appellant had become a habitual offender thereby setting a bad example of indiscipline in the army. The notice, on that premise, called upon the appellant to show cause as to why he should not be discharged from service under Army Rule 13(III)(v) read with Army HQ letter No.A/15010/150/AG/PS-2(c) dated 28th December, 1988.

3. The appellant submitted a reply to the show cause notice which does not appear to have cut any ice with the competent authority resulting in his discharge by an order dated 14th December, 1992. Aggrieved, the appellant preferred an appeal before respondent No.2 which proved of no avail. The authority in the meantime issued a discharge order/certificate of service on 15th October, 1993 which the appellant challenged in MP No.1980 of 1994 before the High Court of Madhya Pradesh at Jabalpur. That petition was dismissed by the High Court on 18th January, 2006 on the ground of lack of territorial jurisdiction aggrieved whereof the appellant filed Writ Appeal No.429 of 2006 which came to be transferred to the Armed Forces Tribunal, Regional Bench, Lucknow and renumbered as Transferred Application No.16 of 2011. The Tribunal by its order dated 14th December, 2011 has now dismissed the transferred petition giving rise to the present appeal.

4. The material facts are not in dispute. It is not in dispute that the appellant had within a period of 12 years of the service suffered as many as four red ink entries. All these entries were awarded to him on account of overstaying leave for a period ranging between 29 days to 66 days. The fourth red ink entry was earned on account of a severe reprimand awarded to him by the Commanding Officer in August, 1992. It is noteworthy that the first red ink entry was made on 25th July, 1982, the second on 28th December, 1985, the third on 13th September, 1991 and the last on 13th August, 1992. It is also not in dispute that the appellant had filed a reply to the show cause notice issued to him in which he had explained the reasons for his overstaying the leave period in 1982 and attributed his failure to report back for duty to the medical condition of his wife. In regard to the second red ink entry he had offered an explanation based on his own illness and treatment in the district hospital. So also he had offered explanations for the other two red ink entries. These explanations notwithstanding the competent authority decided to discharge him from service without any enquiry whatsoever.

5. Before the Courts below and so also before us, the competence of the authority who discharged the appellant was not questioned by the appellant. What was all the same argued at considerable length by learned counsel for the appellant was that the availability of power to discharge was not enough. What was equally important is whether the power was exercised in a fair and reasonable manner keeping in view the guidelines which the Government had issued for such exercise. It was contended that the Government had prescribed the procedure for the removal of undesirable and inefficient JCOs, WO and ORs in terms of a circular