SEP. SATGUR SINGHversusUNION OF INDIA & ORS.

                        [2019] 11 S.C.R. 1023                         1023


                       SEP. SATGUR SINGH                              A
                                v.
                     UNION OF INDIA & ORS.
                  (Civil Appeal No. 1857 of 2018)
                                                                      B
                      SEPTEMBER 02, 2019
    [L. NAGESWARA RAO AND HEMANT GUPTA , JJ.]
      Service Law:
      Discharge from service - On account of seven red ink entries    C
- Plea that discharge order since passed without conducting
enquiry as required under Para 5(a) of Army Instructions dated
28.12.1988, was not sustainable - Held: The nature of enquiry as
contemplated under Para 5(a) is a preliminary enquiry and not a
regular enquiry - The test of preliminary enquiry is satisfied if     D
explanation of the personnel is submitted and an order is passed
thereon - Thus, as per Para 5(a) adequate opportunity is granted
to the personnel to put his defence - Order of discharge cannot
be said to be unjustified.
      Dismissing the appeal, the Court                                E
      HELD: 1. Para 5(a) of the Army Instructions/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     F
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   G
of a personnel is submitted and upon consideration, an 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
                                                                      H
                               1023
1024               SUPREME COURT REPORTS                      [2019] 11 S.C.R.


 A     down in para 5(a) of the Army Instructions dated December 28,
       1988 stand satisfied. [Para 7] [1028-E-G]
             2. 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
 B     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 w as imposed punishment of
       imprisonment, therefore, the order of discharge cannot be said
 C     to be unjustified. [Para 8] [1028-H; 1029-A-B]
                 Veerendra Kumar Dubey v. Chief of Army Staff & Ors.
                 (2016) 2 SCC 627 : [2015] 10 SCR 1013 -
                 distinguished.
                                 Case Law Reference
 D
       [2015] 10 SCR 1013                   distinguished        Para 5
              CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1857
       of 2018.
             From the Judgment and Order dated 30.04.2014 in TA No. 286
 E     of 2010 (arising out of CWP 13268 of 2009)/order dated 21.02.2017 of
       the Armed Forces Tribunal, Chandigarh Regional Bench at
       Chandimandir in MA No. 3876 & 3877 of 2016 in T.A. No. 286 of
       2010 (arising out of CWP No. 13268 of 2009)
                 Aftab Ali Khan, Adv. for the Appellant.
 F
            Ms. Madhavi Divan, ASG, A. K. Sharma, Vimla Sinha, Vanshdeep
       Dalmia, Suchakshu Jain, Mukesh Kumar Maroria, Advs. for the
       Respondents.
                 The Judgment of the Court was delivered by
 G               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
       1
 H         AFT
          SEP. SATGUR SINGH v. UNION OF INDIA & ORS.                         1025
                     [HEMANT GUPTA, J.]

account of seven red ink entries during his 11 years 9 months and 15         A
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          B
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 Act21 days RI on 02.09.1995
         (b) U/s 51 of Army Act28 days RI on 07.09.1995                      C
         (c) U/s 39(a) of Army Act21 days RI on 04.08.1998
         (d) U/s 39(b) of Army Act07 days RI on 02.11.2000
         (e) U/s 63 of Army Act02 days RI on 15.11.2000
                                                                             D
         (f) U/s 39(b) of Army Act05 days RI on 12.02.2004
         (g) U/s 63 of Army Act21 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              E
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        F
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
                                                                             G
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:
2
    (2016) 2 SCC 627                                                         H
1026              SUPREME COURT REPORTS                      [2019] 11 S.C.R.


 A           “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
             Headquarters, Southern Command, Pune Eastern Command,
 B           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
 C           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
 D
             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.”
 E
              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:

 F           “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
 G           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
 H           some kind of Laxman rekha, which if crossed would by itself
 SEP. SATGUR SINGH v. UNION OF INDIA & ORS.                            1027
            [HEMANT GUPTA, J.]

render the individual concerned undesirable or unworthy of             A
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
                                                                       B
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              C
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       D
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.                                                   E
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            F
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   G
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 consideration the long service rendered by
the individual, the hard stations he has been posted to and the        H
1028            SUPREME COURT REPORTS                         [2019] 11 S.C.R.


 A           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.
 B                      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
 C           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
 D
             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
 E     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
 F     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 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
 G     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
 H     been punished on each occasion for rigorous imprisonment ranging from
        SEP. SATGUR SINGH v. UNION OF INDIA & ORS.                          1029
                   [HEMANT GUPTA, J.]

2 days to 28 days. A Member of the Armed Forces cannot take his             A
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
                                                                            B
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.


Kalpana K. Tripathy                                     Appeal dismissed.   C




                                                                            D




                                                                            E




                                                                            F




                                                                            G




                                                                            H