REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1857 OF 2018

SEP. SATGUR SINGH .....APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. .....RESPONDENT(S)

J U D G M E N T HEMANT GUPTA, J.

1) The challenge in the present appeal is to an order passed on April 30,  2014  by  the  Armed  Forces  Tribunal1,  Chandigarh,  Regional

Bench at Chandimandir whereby, the discharge of the appellant on

account of seven red ink entries during his 11 years 9 months and

15 days service was not found to be unjustified.

2) The appellant was served with a show-cause notice on September 22, 2004 that the appellant has proved himself  undesirable and

retention in service is not considered suitable, in respect of seven

punishments: two in the year 1995; one in the year 1998; two in

the  year  2000;  and  two  in  the  year  2004.   The  details  of  his

punishments seven times are as under:

(a) U/s 39(a) of Army Act 21 days RI on 02.09.1995 (b) U/s 51 of Army Act 28 days RI on 07.09.1995 (c) U/s 39(a) of Army Act 21 days RI on 04.08.1998

1  AFT

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(d) U/s 39(b) of Army Act 07 days RI on 02.11.2000 (e) U/s 63 of Army Act 02 days RI on 15.11.2000 (f) U/s 39(b) of Army Act 05 days RI on 12.02.2004 (g) U/s 63 of Army Act 21 days RI on 25.05.2004

3) In response to such show-cause notice, the reply of the appellant was that he did not have any other source to look after the welfare

of his children and that he has committed a blunder and mistakes

due to his family problems and that he would not commit a single

mistake again.

4) After considering the reply filed,  the reasons for discharge have been recorded by General Officer Commanding 24 Infantry Division

on  November  26,  2004  wherein,  it  has  been  recorded  that  the

appellant  is  habitual  offender,  therefore,  he be discharged from

service.

5) Learned  counsel  for  the  appellant  relied  upon  judgment  of  this Court in  Veerendra Kumar Dubey  v.  Chief of Army Staff &

Ors.2 wherein, it has been held that the red ink entries by itself

would  not  be  sufficient  to  discharge  any  person,  but  the

Commanding Officer is required to conduct an enquiry as required

under  para  5(a)  of  the  Army  Instructions  dated  December  28,

1988.  The relevant part is reproduced below:

“Addl.  Director  General  Personal  Services (PS-2) Army Headquarters, Room No. Sena Bhawan’s Wing, DHQ PO New Delhi – 110011

A/21210/159/ps-4(C) 28 Dec. 1988 2  (2016) 2 SCC 627

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Headquarters,  Southern  Command,  Pune  Eastern Command, Calcutta Western Command, Chandimandir Central Command, Lucknow Northern Command, C/o 56 APO

Procedure  for  dismissal/discharge  of  undesirable JCOs/WOs/OR:

xx xx xx

5.       xx xx xx

(a)  Preliminary  Enquiry.—Before  recommending discharge  or  dismissal  of  an  individual  the  authority concerned will ensure—

(i) that an impartial enquiry (not necessarily a court of inquiry) has been made into the allegations against him and that he has had adequate opportunity of putting up his defence or explanation and of adducing evidence in his defence.

(ii)  that  the  allegations  have  been substantiated  and that the extreme step of termination of the individual's service is warranted on the merits of the case.”

6) We do not find any merit in the argument that since no regular enquiry was conducted by the Commanding Officer as held by this

Court in  Veerendra Kumar Dubey, therefore, the punishment is

not  sustainable.   This  Court  in  the  aforesaid  judgment  held  as

under:

“10.  The Government has, as rightly mentioned by the learned counsel for the appellant, stipulated not only a show-cause notice which is an indispensable part of the requirement of the Rule but also an impartial enquiry into the allegations against him in which he is entitled to an adequate opportunity of putting up his defence and  adducing  evidence  in  support  thereof.  More importantly,  certain  inbuilt  safeguards  against discharge  from service  based on four  red  ink  entries have also been prescribed. The first and foremost is an

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unequivocal declaration that mere award of four red ink entries  to  an  individual  does  not  make his  discharge mandatory. This implies 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 one thing to qualify for consideration and an entirely different thing to be found fit for discharge. Four red ink entries  in  that  sense  take  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 which such entries have been awarded and other aspects made relevant by the Government in the procedure it has prescribed.

11.  xxx xxx xxx A  careful  reading  of  the  above  would  show that  the competent  authority  has made it  abundantly clear  to officers  competent  to  direct  discharge  that  before discharging an individual,  not only  should  there be a show-cause notice but an enquiry into the allegations made  against  the  individual  concerned  in  which  he ought  to  be  given  an  opportunity  of  putting  up  his defence  and  that  the  allegations  must  stand substantiated for a discharge to follow.

12. Para  5(f)(2)  underscores  the  importance  of  the truism that termination of the individual's service is an extreme step which ought to be taken only if the facts of  the  case  so  demand.  What  is  evident  from  the procedural  mandate  given  to  the  authorities  is  to ensure that discharge is not ordered mechanically and that  the  process  leading  to  the  discharge  of  an individual  is  humanised  by  the  requirement  of  an impartial enquiry into the matter and fair opportunity to the concerned especially when he is about to complete his pensionable service. Equally significant is the fact that the authority competent to discharge is required to take into consideration certain factors made relevant by the  Circular  to  prevent  injustice,  unfair  treatment  or arbitrary exercise of the powers vested in the authority competent to discharge. For instance Note 2 to Rule 5 requires  the  competent  authority  to  take  into

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consideration  the  long  service  rendered  by  the individual, the hard stations he has been posted to and the difficult living conditions to which the individual has been  exposed  during  his  tenure.  It  is  only  when the competent  authority  considers  discharge  to  be absolutely essential after taking into consideration the factors aforementioned that discharge of the individual can be validly ordered.

   xxx xxx xxx

18.  Coming then to the case at hand, we find that no enquiry whatsoever was conducted by the Commanding Officer at any stage against the appellant as required under Para 5(a) of the procedure extracted above. More importantly, there is nothing on record to suggest that the authority competent  had taken into consideration the long service rendered by the appellant, the difficult living conditions and the hard stations at which he had served. 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…”

(emphasis supplied)

7) We do not find any merit in the present appeal. Para 5(a) of the Circular dated December 28, 1988 deals with an enquiry which is

not  a  court  of  inquiry  into  the  allegations  against  an  army

personnel.   Such  enquiry  is  not  like  departmental  enquiry  but

semblance of the fair decision-making process keeping in view the

reply filed. The court of inquiry stands specifically excluded.  What

kind of  enquiry is  required to be conducted would depend upon

facts of each case.  The enquiry is not a regular enquiry as para

5(a)  of  the  Army  Instructions  suggests  that  it  is  a  preliminary

enquiry.   The  test  of  preliminary  enquiry  will  be  satisfied  if  an

explanation of a personnel is submitted and upon consideration, an

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order is passed thereon. In the present case, the appellant has not

offered  any  explanation  in  the  reply  filed  except  giving  vague

family  circumstance.  Thus,  he  has  been  given  adequate

opportunity  to  put  his  defence.   Therefore,  the  parameters  laid

down in para 5(a) of the Army Instructions dated December 28,

1988 stand satisfied.

8) In reply to the show-cause notice, the appellant has not given any explanation of his absence from duty on seven occasions.  He has

been punished on each occasion for rigorous imprisonment ranging

from 2 days to 28 days.  A Member of the Armed Forces cannot

take his duty lightly and abstain from duty at his will.  Since the

absence of duty was on several different occasions for which he

was imposed punishment of imprisonment, therefore, the order of

discharge  cannot  be  said  to  be  unjustified.   The  Commanding

Officer has recorded that the appellant is a habitual offender.  Such

fact is supported by absence of the appellant from duty on seven

occasions.   

9) In view thereof, we do not find any error in the order of discharge of the appellant.  Appeal is dismissed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; SEPTEMBER 2, 2019.

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