IMPORTANT POINT
Crossing threshold of four red entries is no ground for discharge under Rule 13 of the Army Rules without considering other relevant circumstances.

JUDGMENT :

D.Y. Chandrachud, J.

Leave granted.

Delay condoned.

1. These appeals arise from judgment of the Armed Forces Tribunal dated 23 September 2010 and 15 September, 2016.

2. The appellant was enrolled in the Army Medical Corps on 23 June 1984. On 3 October 1997, a notice to show cause was issued to him to explain why he should not be discharged from service under Rule 13(3)III(v) of the Army Rules on the ground that his conduct which in service had not been found satisfactory. On 15 October 1997 the appellant was placed in a low medical category BEE (Permanent). On 4 December 1998, he was discharged from service under Rule 13(3) Table (III)(v). By that time he had rendered service of 13 years 8 months and 19 days (excluding 188 days non qualifying service). The minimum qualifying service for earning pension under Rule 132 of the Pension Regulations for the Army 1961 (Part-I) is fifteen years. By an order of 22 May 1999 the appellant was also denied disability pension.

3. The petitioner filed a writ petition before the Madhya Pradesh High Court which was dismissed on 21 November 2006. In appeal a Division Bench by its judgment dated 3 January 2007 directed reconsideration of the case of the appellant in terms of a circular bearing No.0201/A/164/Admn-1 dated 10 January 1989. Pursuant to the order of the High Court an order was issued on 26 February 2007 rejecting his claim for pension on the ground that he did not have fifteen years’ service and had been discharged for the reason that he was unlikely to become an efficient soldier. Moreover, it was stated that disability pension was denied to the appellant (despite being placed in a low medical category on account of primary hypertension) on the ground that he had earned six red ink entries which were a part of an award of punishment on nine occasions.

4. The appellant filed a writ petition before the Madhya Pradesh High Court in 2007 which was eventually transferred to the Armed Forces Tribunal registered as TA 320 of 2010. The Tribunal dismissed the application by its order dated 23 September 2010. The appellant then filed a review application in 2011 which was rejected by the Tribunal on 15 September 2011. A writ petition was filed before the Madhya Pradesh High Court which was dismissed on 4 July 2012 since the remedy of the appellant would lie before this Court. The application filed by the appellant before the Tribunal for leave to appeal to this Court was rejected on the ground of delay on 4 April 2013.

5. The contention of the appellant is that his discharge shortly before he would complete qualifying service for the grant of pension was grossly disproportionate. Moreover, reliance was placed on behalf of the appellant on circular No.0201/A/164/Admn-1 dated 10 January 1989 which provides as follows:-

“Discharge from service consequent to four red entries is not a mandatory or legal requirement. In such cases, Commanding Officer must consider the nature of offences for which each red ink entry has been awarded and not be harsh with the individuals, especially when they are about to complete the pensionable service. Due consideration should be given to the long service, hard stations and difficult living conditions that the OR has been exposed to during his service and the discharge should be ordered only when it is absolutely necessary in the interest of service”.

6. In the submission of the appellant the mere fact that he had been punished while in service on nine occasions inclusive of six red entries was no ground to exercise the power under Rule 13(3) Table III(v). It was urged that the mere award of four red entries does not render a discharge mandatory and that the individual facts including the nature of the offence for which the entries were awarded and long service in hard stations where a member of the force was posted have to be duly borne in mind.

7. The issue which arises in the present case is not res integra. A Bench of three learned Judges of this Court includi