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REPORTABLE

        IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.12179-12180 of 2016 (Arising out of CIVIL APPEAL (D)No. 34132 OF 2013)

VIJAY SHANKAR MISHRA             .....APPELLANT         

      Versus  

UNION OF INDIA & ORS        .....RESPONDENTS  

J U D G M E N T

Dr D Y CHANDRACHUD, J      

Leave granted

Delay condoned.

1 These appeals arise from judgment of the Armed Forces Tribunal dated

23 September 2010 and 15 September, 2016.    

2 The appellant was enrolled in the Army Medical Corps on 23 June 1984.

On 3 October 1997, a notice to show cause was issued to him to explain why

he should not be discharged from service under Rule 13(3)III(v) of the Army

Rules on the ground that his conduct which in service had not been found

satisfactory. On 15 October 1997 the appellant was placed in a low medical

category BEE (Permanent). On 4 December 1998, he was discharged from

service under Rule 13(3)  Table (III)(v).       By that  time he had rendered

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service of 13 years 8 months and 19 days (excluding 188 days non qualifying

service). The minimum qualifying service for earning pension under Rule 132

of the Pension Regulations for the Army 1961 (Part-I) is fifteen years.  By an

order of 22 May 1999 the appellant was also denied disability pension.   

3 The  petitioner  filed  a  writ  petition  before  the  Madhya  Pradesh  High

Court  which  was  dismissed on  21  November  2006.   In  appeal  a  Division

Bench by its judgment dated 3 January 2007 directed reconsideration of the

case of the appellant in terms of a circular bearing No.0201/A/164/Admn-1

dated 10 January 1989. Pursuant to the order of the High Court an order was

issued on 26 February 2007 rejecting his claim for pension on the ground that

he did not have fifteen years’ service and had been discharged for the reason

that he was unlikely to become an efficient soldier. Moreover, it was stated

that disability pension was denied to the appellant (despite being placed in a

low medical category on account of primary hypertension) on the ground that

he had earned six red ink entries which were a part of an award of punishment

on nine occasions.   

4 The  appellant  filed  a  writ  petition  before  the  Madhya  Pradesh  High

Court in 2007 which was eventually transferred to the Armed Forces Tribunal

registered as TA 320 of 2010.  The Tribunal dismissed the application by its

order dated 23 September 2010.  The appellant then filed a review application

in 2011 which was rejected by the Tribunal  on 15 September 2011.  A writ

petition was filed before the Madhya Pradesh High Court which was dismissed

on 4 July 2012 since the remedy of the appellant would lie before this Court.

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The application filed by the appellant before the Tribunal for leave to appeal to

this Court was rejected on the ground of delay on 4 April 2013.

5 The contention of the appellant is that his discharge shortly before he

would  complete  qualifying  service  for  the  grant  of  pension  was  grossly

disproportionate. Moreover, reliance was placed on behalf of the appellant on

circular  No.0201/A/164/Admn-1  dated  10  January  1989  which  provides  as

follows:

“Discharge  from  service  consequent  to  four  red entries is not a mandatory or legal requirement.  In such  cases,  Commanding  Officer  must  consider the nature of offences for which each red ink entry has  been  awarded  and  not  be  harsh  with  the individuals,  especially  when  they  are  about  to complete  the  pensionable  service.   Due consideration should be given to the long service, hard stations and difficult living conditions that the OR has been exposed to during his  service and the discharge should  be ordered only  when it  is absolutely necessary in the interest of service”.  

6 In  the  submission  of  the  appellant  the  mere  fact  that  he  had  been

punished while in service on nine occasions inclusive of six red entries was no

ground to exercise the power under Rule 13(3) Table III(v).  It was urged that

the mere award of four red entries does not render a discharge mandatory

and that the individual facts including the nature of the offence for which the

entries were awarded and long service in hard stations where a member of

the force was posted have to be duly borne in mind.  

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7 The issue which arises in the present case is not res integra. A Bench of

three  learned Judges of  this  Court  including  one of  us  (the  learned Chief

Justice) in Veerendra Kumar Dubey v. Chief of Army Staff1 held as follows :  

“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 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.”

1

(2016) 2 SCC 627

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This Court has in the above judgment construed the provisions of Rule 13 of

the Army Rules, 1954 together with a letter of the Army Headquarters dated

28 December 1988 (bearing No. A/15010/150/AG/PS-2(c). Emphasising the

factors which have to be borne in mind, this Court held thus :

“16. The  procedure  prescribed  by  the  Circular

dated  28-12-1988  far  from  violating  Rule  13

provides  safeguards  against  an  unfair  and

improper use of the power vested in the authority,

especially  when  even  independent  of  the

procedure stipulated by the competent authority in

the  Circular  aforementioned,  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. Inasmuch

as the procedure stipulated specifically made them

relevant  for  the  exercise  of  the  power  by  the

competent authority there was neither any breach

nor  any  encroachment  by  executive  instructions

into the territory covered by the statute.”

8 In the present case, it is evident that there was no application of mind

by  the  authorities  to  the  circumstances  which  have  to  be  taken  into

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consideration while exercising the power under Rule 13.  The mere fact that

the appellant had crossed the threshold of four red entries could not be a

ground  to  discharge  him without  considering  other  relevant  circumstances

including (i) the nature of the violation which led to the award of the red ink

entries; (ii) whether the appellant had been exposed to duty in hard stations

and  to  difficult  living  conditions;  (iii)  long  years  of  service,  just  short  of

completing the qualifying period for pension.  Even after the Madhya Pradesh

High Court specifically directed consideration of his case bearing in mind the

provisions of the circular, the relevant factors were not borne in mind.  The

order that was passed on 26 February 2007 failed to consider relevant and

germane circumstances and does not indicate a due application of mind to the

requirements of the letter of Army Headquarters dated 28 December 1988 and

the circular dated 10 January 1989.

9 For these reasons, we are of the view that the Armed Forces Tribunal

was in error in rejecting the application.  The orders of the Tribunal dated 23

September 2010 and 15 September 2011 are set aside. Since the appellant

would have attained the age of superannuation, the ends of justice would be

met  if  he  is  treated  to  have  been  in  service  till  the  time  he  would  have

completed the qualifying service for grant of pension. No back-wages shall

however  be  admissible.  The  benefit  of  continuity  of  service  for  all  other

purposes shall be granted to the appellant including pension. The monetary

benefits  payable  to  the appellant  shall  be released within  a  period of  four

months from the date of this order.

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10 The appeals are allowed in these terms. There shall be no order as to

costs.   

                                                        .......................................CJI                                                  [T S  THAKUR]  

     ...........................................J                      [Dr D Y  CHANDRACHUD]

New Delhi December 15, 2016.