Hrishikesh Roy, J.-

Heard Mr. R. Choudhury, learned coun­sel appearing for the petitioner. Also heard Mr. S. C. Shyam, the learned Central Gov­ernment counsel representing the respon­dents.

2. This appeal is presented against the judgment and order dated 29.11.2010 in WP (C) No. (SH) 167/2009 whereby the learned Court dismissed the writ petition.

3. The petitioner was serving as a Havildar/GD in the Assam Rifles Organiza­tion and he had filed the writ petition to chal­lenge the order dated 07.02.2009, whereby he was discharged for service and also the order dated 08.05.2009, whereby his prayer for reinstatement was rejected.

4. It appears from the impugned penalty that the delinquent was considered to be an incorrigible offender having secured 4 red ink entries on his service career and accordingly purporting to act under Clause 5 of the Record Branch Instruction No. 1/2004 (here­inafter referred to as "the ROI"), the delin­quent was discharged from service.

5. Mr. R. Choudhury, learned counsel points out that the petitioner had a distin­guished service career spanning over 17 years in the Assam Rifles Organization and only during 23.07.2007 to 11.08.2008 within a span of one year, the then Commandant re­corded four red ink entries and this has re­sulted in the order of discharge by the same Commanding Officer. That the petitioner had maintained high standard of discipline and turnout to the satisfaction of all his superior officers and was selected for participation in the Republic Day contingent for three con­secutive years because of his discipline, fit­ness and devotion. His records in capturing militants and recovery of arms and ammuni­tions are very good and his selfless devotion to duty was demonstrated in several occa­sions, when the petitioner risked his life in performance of his assigned task. Notwith­standing such fine carrer, within a one year span for some unknown reasons, one Com­manding Officer (C.O.) recorded four adverse red ink entries against the petitioner and he was then discharged from service. Accord­ingly the counsel alleges biasness against the Commanding Officer.

6. The provisions of Section 4 of the Assam Rifles Act, 1941 (hereinafter referred to as "the A.R. Act") and more particularly sub­section 3 of Section 4 is read out by Mr. Choudhury to project that a Riflemen cannot be discharged except in accordance with the terms of the statement which he has signed under the A.R. Act and specifying the state­ment in the schedule, the learned counsel ar­gues that discharge under Section 4 could not have been ordered against the delinquent on the stated grounds.

7. Referring to four specific violations which led to the discharge order, Mr. Choud­hury contends that three of them related to intoxication and the 4th charge was of to overstaying leave without sufficient cause. He submits that these violations are not on the heinous category and are not relatable to charges akin to lack of integrity, moral tur­pitude or indiscipline jeopardizing the secu­rity of the unit. Accordingly the Counsel con­tends that, the disciplinary authority should not have taken such a drastic view of the acts and a lesser punishment should have been inflicted.

8. Mr. S.C. Shyam, learned Central Gov­ernment counsel, on the other hand, points out that despite earning red ink entries one after another, the delinquent did not amend his ways and, therefore, to ensure mainte­nance of discipline in the organization, the authorities had to discharge the delinquent.

9. The learned counsel submits that the career records of the delinquent was consid­ered by the authorities and accordingly pro­visions was made for payment of pensionary benefits to the petitioner, notwithstanding what was recorded in the impugned order dated 08.05.2009.

10. The respondents also contends that the petitioner was given a show cause notice before the impugned action was taken when he had pleaded guilty to the charges and only after complying with the procedure prescribed

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