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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7452­7453 OF 2019 [Diary No. 40813 of 2015]

Narain Singh .. Appellant

Versus

Union of India & Ors. .. Respondents

J U D G M E N T

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

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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

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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

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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

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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 Additional Solicitor General that before

discharging the appellant,  requisite procedure of law was  fully

followed.   It is further submitted by the learned Additional

Solicitor General that the appellant was discharged from service

with a view to maintain the discipline in the Army.   It is

submitted that therefore the learned Tribunal rightly refused to

interfere with the order of discharge which was passed in exercise

of powers under Rule 13(3)(III)(v) of the Army Rules.

5.2 Making the above submissions, it is prayed to dismiss the

present appeals.

6. We have heard the learned counsel for respective parties at

length.

6.1 At the outset, it is  required to be noted that  at  the time

when the appellant  was discharged  from service  in exercise of

powers under Rule 13(3)(III)(v) of the Army Rules, he had served

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for 13 years 7 months and 6 days.  That, at the time of discharge

from service, the appellant could not complete the pensionable

service and he was discharged from service 1 year 5 months and

24 days before he could complete pensionable service.   It is

required to be noted that the appellant has been discharged from

service under Rule 13(3)(III)(v) of the Army Rules, solely on the

basis of four red ink entries awarded to him.  It is required to be

noted that from 1980 to  7.6.1993 there  was  nothing  adverse

found against the appellant.  All these four red ink entries relate

to the period between 7.6.1993 and 3.5.1994.    

6.2 We  have  gone through the four red ink  entries and the

nature of allegations and the charge on the basis of which four

read entries were awarded to the appellant.  It appears that, out

of four red ink entries, two entries pertain to 3.3.1994 and one

entry pertains to 3.5.1994.    Out of the aforesaid, with respect to

one of the red ink entries, the allegation was that the appellant

refused  to take food  when he  was  ordered.    Considering the

nature of offences for which the red ink entries were made, we

are of the opinion that on the basis of such red ink entries, the

appellant could not have been discharged from service and that

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too after rendering 13 years of service and when he was about to

complete the pensionable service.  From the impugned judgment

and  order, it  appears that the  appellant  has  been discharged

from service mechanically and solely on the basis of award of four

red ink entries.   As observed by this Court in the case of

Veerendra Kumar Dubey  (supra),  mere award of  four red ink

entries does not  make the discharge mandatory.   It is further

observed that four red ink entries is not some kind of Laxman

Rekha,  which if crossed  would  by itself render the individual

concerned undesirable or unworthy of retention in the force.

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. It is further

observed that it is one thing to qualify for consideration and an

entirely  different to  be found fit for  discharge.   It is further

observed that four red ink entries in that sense takes the

individual closer to discharge but does not push him over. It is

axiomatic that the Commanding Officer is, even after the award

of such entries, required to consider the nature of the offence for

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which such entries have been awarded and other aspects.   It is

further observed that the authority exercising the 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 the authority competent to

discharge would have even independent of  the procedure been

required to take into consideration while exercising the power of

discharge.

6.3 Coming then to the case  at  hand,  we find that there is

nothing on record to suggest that the authority concerned has

taken into consideration the long service rendered by the

appellant.   There is nothing on record to suggest that the nature

of the mis­conduct leading to the award of red ink entries was so

unacceptable that the competent authority had no option but to

direct his discharge to prevent  indiscipline  in the force.   Even

considering the offences for which the red ink entries were

awarded, it cannot be said that the mis­conduct and/or offences

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are such which would justify the discharge of the appellant.  The

offences  for  which the red  ink entries are awarded, cannot be

said to be such gross mis­conduct which would make the

appellant indiscipline  and  liable to  be  discharged  from service

and that too, after a period of long service rendered by him.

6.4 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 the

appellant from service, the Commanding Officer has failed to take

into  consideration  the relevant  aspects  noted hereinabove  and

the order of discharge  has  been  passed  mechanically  and  on

mere four red ink entries.

7. In the result, present appeals succeed and are hereby

allowed.   The order of discharge passed against the appellant is

hereby set aside.   The appellant shall be entitled to all

consequential benefits as if the order of discharge was not

passed.    Benefit of continuous service for all other purpose shall

be granted to the appellant including pension.   The monetary

benefits payable to the appellant shall be released expeditiously,

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but not later than four months from the date of this order.   No

costs.

..................................J. (ARUN MISHRA)

...................................J. (M. R. SHAH)

New Delhi                                              ...................................J. September 20, 2019                               (B. R. GAVAI)