Army Rules, 1954 – r. 13(3)(III)(v) – Discharge from service – Appellant was enrolled in the Indian Army as a driver – He suffered four red ink entries during the period from 07.06.1993 and 03.05.1994 – Appellant served for 13 years 7 months and 6 days and before he could complete the pensionable service, he was discharged u/r. 13(3)(III)(v) of the Army Rules solely on the ground of four red ink entries – Aggrieved, appellant filed application before the Armed Forces Tribunal, which was dismissed – Review application was also dismissed – On appeal, held: 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 – In the instant case, there was nothing adverse against the appellant from the period between 1980 to 07.06.1993 – All the four red ink entries related to period between 07.06.1993 and 03.05.1994 – There was nothing on record to suggest that the nature of the mis-conduct 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 – The Commanding Officer failed to take into consideration the relevant aspects and appellant was discharged from service mechanically and solely on the basis of award of four red ink entries – Thus, order of discharge unjustified and not sustainable in law – Service Law – Armed Forces.
Allowing the appeals, the Court
HELD: 1. On perusal of the four red ink entries and the nature of allegations and the charge on the basis of which four red 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, this Court is of the opinion that on the basis of such red ink entries, the appellant could not have been discharged from service and that 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, 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 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. [Para 6.2][120-C-H; 121-A]
2. Coming then to the case at hand, 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 mis-conduct 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 mis-conduct and/or offences 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 mis-conduct 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. [Para 6.3][121-B-D]
Veerendra Kumar Dubey v. Chief of Army Staff and Others (2016) 2 SCC 627 : [2015] 10 SCR 1013 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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