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SUPREME COURT OF INDIA
Surya Kant, J.B. Pardiwala, JJ.
Amarendra Kumar Pandey – Appellant
Versus
Union of India & Ors. – Respondent
Civil Appeal Nos. 11473-11474 of 2018
Decided on : 14-07-2022
Discharge - Assam Rifles - AR Act 1941 Sec 4(a), AR Act 2006 - 24 Assam Rifles Manual, ROI 1/2004 - The court discussed the provisions of Clause-5 of the Record Branch Instruction (ROI) No.1/2004, which provides the power to discharge any member of the Assam Rifles below the rank of Naib Subedar in case he receives four or more Red Ink entries. The court held that the use of the expression 'four or more Red Ink entries' and the use of the word 'may' in Clause-5 indicates that discretion is vested in the disciplinary authority to decide whether the person who is found to have received the Red Ink entries ought to be discharged from service or not. The severity and the nature of the misconduct will have to be weighed before exercising power conferred by Clause-5 of the ROI. The court emphasized the necessity of giving reasons by the authority in support of its decision and held that the discharge from service is not automatic or mandatory after four Red entries. The court also referred to the Assam Rifles Regulation, 2016, which provides for the procedure for dismissal/discharge of unsuitable subordinate officer/under officer/enrolled person and discharge on the ground of red ink entries.
Fact of the Case:
The appellant, a Rifleman in the Assam Rifles, was discharged from service based on four Red Ink entries. The appellant challenged the order of discharge before the Guwahati High Court, which set aside the order and remitted the matter to the authorities for a fresh decision. The Union of India appealed the decision, and the Division Bench allowed the appeal, setting aside the order of the Single Judge.
Finding of the Court:
The Division Bench held that neither the Assam Rifles Act, 1941 nor the Assam Rifles Act, 2006 requires the authority to record any reasons or the satisfaction in the order of discharge itself. The Division Bench took the view that the Commandant has the discretion to discharge a person who has four or more Red Ink entries, and all that is required is to serve a notice on the individual affording an opportunity to explain.
Issues: The main issues were whether the authority was required to record reasons for the discharge and whether the discharge from service is automatic or mandatory after four Red entries.
Ratio Decidendi: The court emphasized the necessity of giving reasons by the authority in support of its decision and held that the discharge from service is not automatic or mandatory after four Red entries. The court also referred to the Assam Rifles Regulation, 2016, which provides for the procedure for dismissal/discharge of unsuitable subordinate officer/under officer/enrolled person and discharge on the ground of red ink entries.
Final Decision: The order of discharge passed against the appellant was set aside, and the appellant was treated to have been in service till the time he would have completed the qualifying service for grant of pension. No back wages were admissible, and the benefit of continuity of service for all other purposes was granted to the appellant including pension. The appeals were allowed in the aforesaid terms.
JUDGMENT
J. B. Pardiwala, J.
These appeals, by special leave, are directed against the judgment and order passed by a Division Bench of the Guwahati High Court dated 21.12.2017 in the Writ Appeal No. 354 of 2017 by which the High Court allowed the appeal filed by the Union of India & Ors. thereby setting aside the judgment and order passed by a learned Single Judge of the High Court dated 19.01.2015 in the Writ Petition (C) 2783 of 2004 filed by the appellant herein.
2. The facts giving rise to this appeal may be summarized as under:
(i) The appellant herein (original writ petitioner) had joined the Assam Rifles as a Rifleman in the year 1993. While he was in service, he came to be discharged vide order dated 31.01.2004 passed by Lt. Col Offg Comdt.
(ii) The order of discharge referred to above reads thus:
OFFICE OF THE COMMANDANT 24 ASSAM RIFLES, C/O 99 APO
ORDER
| 2401637/AKP/2004 | DATED 31.01.2004 |
1. WHEREAS it is considered that the conduct of No 2401637W Rfn/GD Amrandra Kumar Pandey of which has led him getting four Red Ink entries is such as to render his further retention in the public Service undesirable being a incorrigible offender and having shown no improvement during his service.
2. AND WHEREAS No. 2401637W Rfn/GD Amrandra Kumar Pandey was afforded opportunity to show cause against the proposed action vide 24 AR letter No. 11014/A36-2003/635 dt. 02 Sep., 2003.
3. AND WHEREAS No 2401637W Rfn/GD Amrandra Kumar Pandey submitted his replies vide letter No. Nil dated 01. Oct.2003. the same was considered in terms of ROI 4/99 and was found unsatisfactory by the competent authority.
4. NOW WHEREFORE, In exercise of the powers conferred on me under AR Act 1941 Sec 4(a) read with Para 24, Chapter VIII of AR Manual and Para 6 of ROI 4/99, the undersigned hereby discharge the said No.2401637W Rfn/GD Amrandra Kumar Pandey from the Assam Rifles being incorrigible offender soldier with effect from 31 Jan., 2004 (Afternoon) No.2401637W Rfn/GD Amrandra Kumar Pandey is entitled to get pension and gratuity as admissible under rule.
s/d
(Santosh Joseph)
Lt. Col Offg Comdt
3. Thus, the aforesaid order of discharge was passed on the basis of the four Red-Ink entries received by him during his period of service. The four Red-Ink entries were on the following grounds:
| Entry 1 (1996) | For staying back to take care of his ailing mother -without sufficient cause over staying leave granted. Sentenced to 14 days of rigorous imprisonment with deduction in salary. |
| Entry 2 (1998) | For being on the way out to make a phone call, but stopped before he could leave the compound -“visited out of bound areas as specified in unit BRO Part I Ser No 202 dated 30 Aug 96 without permission from his superior officers”. Sentenced to 28 days of rigorous custody and 14 days of Military Custody. |
| Entry 3 (1999) | For losing his luggage while coming back from home -“lost his identity card bearing machine No. 078550 by neglect the property of the Government issued to him for his use”. Sentenced to 28 days of rigorous imprisonment and 14 days of detention in AR custody. |
| Entry 4 (2004) | For playing cards all alone by himself to obey unit standing orders and was found Gambling in unit line. Sentenced to 28 days of rigorous imprisonment and 14 days of fine. |
4. The appellant herein challenged the order of discharge before the Guwahati High Court by filing the Writ Petition (C) No. 2738 of 2002. It appears from the materials on record that a learned Single Judge of the Guwahati High Court decided the Writ Petition filed by the appellant herein along with two other identical petitions of two similarly situated riflemen and by a common judgment and order dated 19.01.2015 allowed the same. T
Discharge for incurring multiple red ink entries in service requires thorough examination of individual circumstances; automatic discharge is not warranted without proper evaluation.
Discharges based on multiple red ink entries are valid under Assam Rifles Records Office Instructions, provided due process is followed, including issuance of a show-cause notice.
Procedural fairness is paramount in discharge proceedings; the failure to conduct an impartial enquiry before discharging an individual as an incorrigible offender invalidates the discharge order.
The Court affirmed that discharge from service based on Red Ink Entries is valid when due process is followed as per established instructions.
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