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SUPREME COURT OF INDIA
ARUN MISHRA, M.R. SHAH, B.R. GAVAI, JJ.
Narain Singh – Appellant
Versus
Union of India & Ors. – Respondents
Civil Appeal Nos. 7452-7453 of 2019 [Diary No. 40813 of 2015]
Decided on : 20-09-2019
(A) Service Law – Discharge from service – Armed Forces – Authority exercising 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 authority competent to discharge would have even independent of procedure been required to take into consideration while exercising power of discharge. (Para 6.2)
(B) Army Rules, 1954 – Rule 13(3)(III)(v) – Discharge from service – Award of four red ink entries – Mere award of four red ink entries does not make discharge mandatory – At the time when appellant was discharged from service in exercise of powers under Rule 13(3)(III)(v) of Army Rules, he had served for 13 years 7 months and 6 days – At the time of discharge from service, appellant could not complete pensionable service – Appellant has been discharged from service under Rule 13(3)(III)(v) of Army Rules, solely on the basis of four red ink entries awarded to him – From 1980 to 7.6.1993 there was nothing adverse found against appellant – All four red ink entries relate to period between 7.6.1993 and 3.5.1994 – With respect to one of red ink entries, allegation was that appellant refused to take food when he was ordered – Considering nature of offences for which red ink entries were made, on the basis of such red ink entries, appellant could not have been discharged from service after rendering 13 years of service and when he was about to complete pensionable service – 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 – There is nothing on record to suggest that nature of misconduct leading to award of red ink entries was so unacceptable that competent authority had no option but to direct his discharge to prevent indiscipline in the force – Order of discharge is wholly unjustified and not sustainable at law – Order of discharge passed against appellant set aside – Appellant shall be entitled to all consequential benefits as if order of discharge was not passed – Benefit of continuous service for all other purpose shall be granted to the appellant including pension. (Paras 6.1, 6.2, 6.3, 6.4 and 7)
Facts of the Case:
Appellant has assailed 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 Tribunal has dismissed application preferred by the appellant herein and has confirmed the order passed by the respondents discharging appellant from service under Rule 13(3)(III)(v) of Army Rules, 1954.
Findings of the Court:
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 appellant from service, Commanding Officer has failed to take into consideration the relevant aspects and order of discharge has been passed mechanically and on mere four red ink entries.
Result : Appeals allowed.
JUDGMENT :
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 preferred by the appellant herein and has confirmed the order 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 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 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 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 Ad
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