NARAIN SINGHversusUNION OF INDIA & ORS.

                        [2019] 13 S.C.R. 115                            115


                         NARAIN SINGH                                   A
                                 v.
                    UNION OF INDIA & ORS.
               (Civil Appeal Nos. 7452-7453 of 2019)
                      SEPTEMBER 20, 2019                                B
    [ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]
       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
                                                                        C
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         D
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
                                                                        E
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    F
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                                   G
      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
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                                115
116            SUPREME COURT REPORTS                      [2019] 13 S.C.R.


A     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
B
      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
C     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
D
      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
E     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
F
      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
G     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
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         NARAIN SINGH v. UNION OF INDIA & ORS.                            117


consideration the long service rendered by the appellant. There           A
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
                                                                          B
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]                                      C
      Veerendra Kumar Dubey v. Chief of Army Staff and
      Others (2016) 2 SCC 627 : [2015] 10 SCR 1013 –
      relied on.
                       Case Law Reference
                                                                          D
[2015] 10 SCR 1013               relied on               Para 4.2
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7452-
7453 of 2019.
      From the Judgment and Order dated 06.02.2015 of the Armed
Forces Tribunal, Bench at Jaipur in Original Application T.A. No. 02 of   E
2011 and order dated 31.08.2015 in Review Application No. 02 of 2015.
      Shaumit Mukherjee, Satya Narayan Vashishth, Sanjai Kumar
Pathak, Ms. Shashi Pathak, Arvind Kumar Tripathi, Advs. for the
Appellant.
                                                                          F
       K. M. Natraj, ASG, Vikrant Yadav, Mohd. Akhil, A. K. Sharma,
Mukesh Kumar Maroria, Vinayak Sharma, Ms. Indira Bhakhar, Advs.
for the Respondents.
      The Judgment of the Court was delivered by
      M. R. SHAH, J.                                                      G
      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

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118             SUPREME COURT REPORTS                           [2019] 13 S.C.R.


A     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 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.
B            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
C     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.
D     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 application, which also came to be dismissed.
      Hence, the present appeals.
E            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
F     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/
G     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 13 years or more and when he was about to
      complete the pensionable service.
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NARAIN SINGH v. UNION OF INDIA & ORS. [ M. R. SHAH, J.]                       119


        4.2 Learned advocate appearing on behalf of the appellant has         A
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
                                                                              B
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.            C
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 an admitted
position that there were four red ink entries awarded to the appellant        D
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.     E
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.
                                                                              F
      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     G
the appellant was discharged from service in exercise of powers under
Rule 13(3)(III)(v) of the Army Rules, he had served 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
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120             SUPREME COURT REPORTS                         [2019] 13 S.C.R.


A     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
B
      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
C     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 too after
D     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
E     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
F     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
G     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
H     exposed to hard stations and difficult living conditions during his tenure
NARAIN SINGH v. UNION OF INDIA & ORS. [ M. R. SHAH, J.]                          121


and that he may be completing pensionable service, are factors which             A
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                 B
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              C
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.                                                                 D
        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              E
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         F
purpose shall be granted to the appellant including pension. The monetary
benefits payable to the appellant shall be released expeditiously, but not
later than four months from the date of this order. No costs.


Ankit Gyan                                                    Appeals allowed.   G




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