Holding

The discharge order is set aside; the authority must conduct an impartial inquiry and consider prescribed factors before discharging a serviceman, and administrative instructions prescribing such safeguards are valid and not ultra vires.

Summary

Veerendra Kumar Dubey, an operator in the Indian Army, was discharged after accruing four red‑ink entries for overstaying leave. Although a show‑cause notice was issued, no impartial inquiry was conducted as required by the Army Headquarters circular of 28 December 1988, which prescribes a preliminary enquiry and consideration of factors such as long service, hard stations and difficult living conditions before discharge. The Supreme Court held that while Rule 13(11)(v) of the Army Rules, 1953 does not expressly mandate an inquiry, the administrative instruction is a valid procedural safeguard and cannot be ignored without violating Article 14. Consequently, the discharge order was set aside and the appellant was deemed to have remained in service for pension purposes, though no back wages were awarded. The appeal was allowed.

Issues considered

The scope of Rule 13(11)(v) of the Army Rules, 1953 regarding the necessity of a disciplinary inquiry before discharge for four red‑ink entries.
Whether the Army Headquarters circular of 28 December 1988, an administrative instruction, can impose procedural safeguards beyond the statutory provision without being ultra vires.
Whether discharge without an inquiry violates the constitutional guarantee of equality (Article 14).
Entitlement to pension benefits despite the appellant having crossed the age of superannuation.

Legislation cited

Subjects

Service lawDisciplinary dischargeRed‑ink entriesArmy RulesAdministrative instructionsProcedural fairnessArticle 14Pension entitlementArmed Forces TribunalShow cause noticeInquiry

Judgment

[2015] 10 S.C.R. 1013

VEERENDRA KUMAR DUBEY A
v.
CHIEF OF ARMY STAFF & ORS.
(Civil Appeal D.No. 32135 of2015)
B
OCTOBER 16, 2015
[ T.S. THAKUR, V. GOPALA GOWDA AND
R. BANUMATHI, JJ. ]
Service Law- Disciplinary inquiry- Whether required -
In case of discharge under r. 13(11/)(v) ofArmy Rules, 1953 rl C
w. Army HQ letter NO. A/150101150/AGIPS-2(c) dated 28th
December, 1988- Discharge of delinquent without following
the procedure for discharge laid down under the letter dated
28th December, 1988 - On the ground that he had been
0
awarded four 'red ink entries' - Held: R. 13 does not in specific
terms envisage an inquiry - However, the letter dated 2EJlh
December, 1988 prescribes for an impartial inquiry-As per
the procedure laid in letter dated 28th December, 1988 it is
not mandatory to discharge on the ground of four 'red ink E
entries' - Thus discharge on this ground has no statutory
sanction - Its genesis lies in administrative instructions -
Therefore, administrative instructions would regulate the
exercise of power to discharge - The letter dated 281h
December, 1988 provides safeguards against an unfair and F
improper use ofpower which ifleft unregulated or uncanalised
would offend Art. 14 of the Constitution - The administrative
instructions neither breached nor encroached into the tenitory
covered by the statute - In the present case, the discharge
order was passed without taking into consideration the factors G
made relevant under Note to Para 5(f) of the letter - It was
necessary by the competent authority to hold an inquiry for
finding out the defence of the delinquent besides
consideration of the factors provided under Note to Para 5(f)
H
1013
1014 SUPREME COURT REPORTS [2015] 10 S.C.R.

A - The order of discharge is set aside - Since the delinquent
has superannuated, he would be treated to have been in
service, till he would have completed the qualifying service
for grant of pension - No back wage$ are granted -Army HQ
Letter NO. A/15010!150/AG!PS-2(c) dated 281h December,
B 1988.

Administrative Law-Administrative Instructions- Scope
of - Held: Administrative instructions cannot make inroads
into statutory rights of an individual - But if an administrative
C authority prescribes a certain procedural safeguard against
arbitrary exercise of powers, such safeguards or procedural
equity and fairness will not fall foul of the rule or called ultra
vires the statute.

D Allowing the appeal, the Court.

HELD: 1. A plain reading of r. 13 of Army Rules, 1953
makes it abundantly clear that the rule does not provide
for anything beyond an opportunity to the individual
E concerned to show cause against his contemplated
discharge before the competent authority passes any
such order of discharge. On a strict interpretation of Rule
13(111)(V), therefore, one could perhaps say that the letter
of the law has been complied with inasmuch as an
F opportunity has been afforded to the appellant to show
cause against the contemplated discharge. [Para 8]
(1025-G-H; 1026-A-B]
2. However, the Government has, stipulated not only
G a show cause notice which is an indispensable part of
the requirement of Rule 13 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,
H certain inbuilt safeguards against discharge from service
VEERENDRA KUMAR DUBEYv. CHIEF OF ARMY STAFF 1015
&ORS.

based on four red ink entries have also been prescribed. A
Mere award of four red ink entries to an individual does
not make his discharge mandatory. It simply pushes the
individual concerned into a grey area where he can be
considered for discharge. Four red ink entries in that
sense takes the individual closer to discharge but does B
not push him over. T.he 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. [Para 8) [1026-B-G] C
3. 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 humanized by the D
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 E
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 consideration the long service rendered by F
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 G
factors aforementioned that discharge of the individual
can be validly ordered. [Para 11] [1029-C-F]
4. It is true that Rule 13 does not in specific terms
envisage an enquiry. But it is equally true that Rule 13 H
1016 SUPREME COURT REPORTS [2015] 10 S.C.R.

A does not in terms make it mandatory for the competent
authority to discharge an individual just because he has
been awarded four red ink entries. The threshold of four
red ink entries as a ground for discharge has no statutory
sanction. Its genesis lies in administrative instructions
B issued on the subject. That being so, administrative
instructions could, while prescribing any such threshold
as well, regulate the exercise of the power by the
competent authority qua an individual who qualifies for
consideration on any such administratively prescribed
C norm. The instructions are aimed at ensuring a non-
discriminatory fair and non-arbitrary application of the
statutory rule. Administrative instructions cannot make
inroads into statutory rights of an individual. But if an
administrative authority prescribes a certain procedural
0
safeguard to those affected against arbitrary exercise
of powers, such safeguards or procedural equity and
fairness will not fall foul of the rule or be dubbed ultra
vires of the statute. [Para 12] [1029-H; 1030-A-F]
E 5. The procedure prescribed by Circular dated 28 1h
December, 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
F competent authority in the circular aforementioned, the
authority exercising the power of discharge is expected
to ~ake into consideration all relevant factors. [Para 12]
[1030-F-G]
G 6. The procedure presented simply regulates the
exerc.ise of power which would, but for such regulation
and safeguards against arbitrariness, be perilously close
to being ultra vires in that the authority competent to
discharge shall, but for the safeguards, be vested with
H uncanalised and absolute power of discharge without
VEE REN ORA KUMAR DUBEYv. CHIEF OF ARMY STAFF 1017
&ORS ..

.any guidelines as to the manner in which such power A
may be exercised. Any such unregulated and
uncanalised power would in turn offend Article 14 of the
Constitution. [Para 12] [1031-B-D]

7. In the present case, no enquiry whatsoever was B
conducted by the Commanding Officer at any stage
against the appellant as required under para 5(a) of the
procedure. 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 C
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 oompetent authority had
no option but to direct his dis_charge to prevent D
indiscipline in the force. Number of other personnel are
still in service no matter they have earned four red ink
entries on account of overstaying leave. If that be so,
the only safeguard against arbitrary exercise of power
by the authority would be to ensure that there is an E
enquiry howsoever summary and a finding about the
defence set-up by the individual besides consideration
of the factors made relevant under the note to para 5(f)
of the procedure. [Para 13] [1031-D-H; 1032-A]
F
8.The order of discharge passed against the
appellant is set aside. Since the appellant has already
crossed the age of superannuation, interest of justice
will be sufficiently served if it is directed that the appellant
shall be treated to have been in service till the time he G
would have completed the qualifying service for grant
of pension.No back wages shall, however, be admissible.
Benefit of continuity of service for all other purpose shall,
be granted to the appellant including pension. [Para 15)
[1033-H; 1034-A-B] H
1018 SUPREME COURT REPORTS [2015) 10 S.C.R.

A Union of India and Ors. v. Corporal A. K. Bakshi
and Anr. (1996) 3 sec 65: 199"' (2) SCR 986;
Union of India and Ors. v. Rajesh Vyas (2008) 3
sec 386: 2008 (2) SCR 571; Union of India and
Ors. v. Deepak Kumar Santra (2009) 7 SCC
B 370: 2009 (8 ) SCR 281; Union of India v.
Ba/want Singh 2015(7) JT 368 - distinguished.·

Surinder Singh v. Union of India (2003) 1 SCT
697 - not approved.
c
Union of India and Ors. v. Harjeet Singh Sandhu
(2001) 5 sec 593: 2001 ( 2 ) scR 1121 -
referred to.

Case- Law Reference
D
2001 ( 2) SCR 1127 referred to. Para 6

1996 (2) SCR 986 distinguished. Para 14

E 2008 (2) SCR 571 distinguished. Para 14

2009 (8 ) SCR 281 distinguished. Para 14

2015(7) JT 368 distinguished. Para 14

F (2003) 1 SCT 697 not approved. Para 14

CIVILAPPELLATE JURISDICTION: Civil Appeal D. No.
32135 of2013

From the Judgment and Order dated 14.12.2011 of the
G Armed Forces Tribunal Chandigarh Regional Bench, Lucknow
in Transferred Application No. 16 of2011

Jitendra Mohan Sharma, Girish Chand Tyagi, Varinder
Kumar Sharma, Kailash Pandey, Balendra Tiwari, lndrajeet
H Mishra, Brijesh Tyagi, Chi rag Mahalwal for the Appellant.
VEERENDRA KUMAR DUBEYv. CHIEF OF ARMY STAFF 1019
&ORS.

Maninder Singh, ASG, R. Balasubramanian, Ashok A
Panigrahi, Santosh Kumar, Pranav Kumar, B. V. Bairam Das
forthe Respondents.
The Judgment of the Court was delivered by

T. S. THAKUR, J. 1.This appeal under Section 31 of the B
Armed Forces Tribunal Act, 2007, is directed against a
judgment and order dated 14th December 2011 passed by
the Armed Forces Tribunal, Regional Bench at Lucknow
whereby the Tribunal has dismissed Transferred Application
No.16 of 2011 filed by the appellant in the process affirming C
an order of discharge passed against the appellant by the
competent authority under Rule 13(11 l)(v) of the Army Rules,
1954.

2. The appellant was enrolled as an Operator in the corps D
of Artillery of Indian Army on 27th September, 1980. Having
served in that capacity for nearly 12 years, he received a show
cause notice pointing out that he had been awarded four red
ink entries for various offences set out in the notice and that
the appellant had become a habitual offender thereby setting E
a bad example of indiscipline in the army. The notice, on that
premise, called upon the appellant to show cause as to why
he should not be discharged from service under Army Rule
13(111)(v) read with Army HQ letter No.A/15010/150/AG/PS-2(c)
dated 28th December, 1988. F

3. The appellant submitted a reply to the show cause notice
which does not appear to have cut any ice with the competent
authority resulting in his discharge by an order dated 141h
December, 1992. Aggrieved, the appellant preferred an appeal G
before respondent No.2 which proved of no avail. The authority
in the meantime issued a discharge order/certificate of service
on 15th October, 1993 which the appellant challenged in MP
No.1980of1994 before the High Court of Madhya Pradesh at
Jabalpur. That petition was dismissed by the High Court on H
1020 SUPREME COURT REPORTS [2015] 10 S.C.R.

A 18th January, 2006 on the ground of lack of territorial jurisdiction
aggrieved whereof the appellant filed \/VritAppeal No.429 of
2006 which came to be transferred to the Armed Forces
Tribunal, RE::gional Bench, Lucknow and renumbered as
Transferred Application No.16 of2011. The Tribunal by its order
B dated 14th December, 2011 has now dismissed the transferred
petition giving rise to the present appeal.

4. The material facts are not in dispute. It is not in dispute
thatthe appellant had within a period of 12 years of the seNice
c suffered as many as four red ink entries. All these entries were
awarded to him on account of overstaying leave for a period
ranging between 29 days to 66 days. The fourth red ink entry
was earned on account of a severe reprimanq awarded to
him by the Commanding Officer in August, 1992. It is
D noteworthy that the first red ink entry was made on 251h July,
1982, the second on 28th December, 1985, the third on 13th
September, 1991 and the last on 13th August, 1992. It is also
not in dispute that the appellant had filed a reply to the show
cause notice issued to him in which he had explained the
E reasons for his overstaying the leave period in 1982 and
attributed his failure to report back for duty to the medical
condition of his wife. In regard to the second red ink entry he
had offered an explanation based on his own illness and
treatment in the district hospital. So also he had offered
F explanations for the other two red ink entries. These
explanations notwithstanding the competent authority decided
to discharge him from seNice without any enquiry whatsoever.

5. Before the Courts below and so also before us, the
G competence of the authority who discharged the appellant was
not questioned by the appellant. What was all the same argued
at considerable length by learned counsel for the appellant was
that the availability of power to discharge was not enough. What
was equally important is whether the power was exercised in
H . a fair and reasonable manner keeping in view the guidelines
VEERENDRAKUMAR DUBEYv. CHIEF OF ARMY STAFF 1021
& ORS. [T.S.THAKUR, J.] ,

which the Government had issued for such exercise. It was A
contended that the Government had prescribed the procedure
for the removal of undesirable and inefficient JC Os, WO and
ORs in terms of a circular dated 281h December, 1988. The
circular, it was contended, postulates not only the issue of a
show cause notice to the individual concerned, but also a B
preliminary enquiry before recommending his discharge or
dismissal. The individual concerned, it was argued, must have
had an adequate opportunity to offer his explanation and to
produce evidence in his defence. Not only that the enquiry ought
to conclude that the allegations stood substantiated warranting C
termination of service of the delinquent. The fact that discharge
from service, consequent upon an individual earning four red
ink entries is not mandatory. This, according to the learned
counsel, was evident from a plain reading of the procedure D
prescribed by the competent authority. It was also submitted
that while considering the question of retention or discharge
based on four red ink entries, the Commanding Officer was
duty bound to consider not only the nature of the offences for
which such entries had been awarded but also take into E
consideration the long service and the harsh conditions to which
the individual had been exposed during his tenure. Discharge
can under the guidelines issued by the competent authority be
ordered only where it is absolutely necessary to do so. The
procedure prescribed by the competent authority for the F
exercise of the power of discharge under Rule 13 was,
according to the learned counsel, observed but only in breach
thereby rendering the discharge of the appellant illegal.

6. On behalf of the respondent it was contended by Mr. G
Maninder Singh, Additional Solicitor General that Rule 13 of
the Army Rules did not provide for any specific procedure to
be followed for discharge of undesirable persons or habitual
offenders. The procedure prescribed for the exercise of the
power of discharge in terms of the circular relied upon by the H
1022 SUPREME COURT REPORTS (2015] 10 S.C.R.

A appellant was, according to the learned counsel, directory and
did not create any right in the individual concerned to demand
an enquiry in the matter. The procedure was in any case de
hors the provisions of Rule 13 of the Army Rules, hence un-
enforceable. Reliance in support was placed upon the
B decisions of this Court in Union of India and Ors. v. Corporal
A.K. Bakshi andAnr. (1996) 3 SCC 65, Union of India and
Ors. v. Rajesh Vyas (2008) 3 SCC 386, and Union of India
and Ors. v. Deepak Kumar Santra (2009) 7 SCC 370.
Reliance was also placed upon a recent decision of this Court
C in Union of India v. Ba/want Singh (Civil Appeal No. 5616
of2015) and a three-Judge Bench decision in Union oflndia
and Ors. v. Harjeet Singh Sandhu (2001) 5 SCC 593 apart
from a Division Bench decision of the High Court of Delhi in
Surinder Singh v. Union of India (2003) 1 SCT 697.
0
7. Section 22 of the Army Act, 1950 provides that any
person subject to the said Act may be retired, released or
discharged by such authority and in such manner as may be
prescribed. Section 23 envisages the issue of a certificate on
E termination of service to every junior commissioned officer,
warrant officer, or enrolled person, who is dismissed, removed,
discharged, retired or released from service. Section 191 of
the Act empowers the Central Government to make rules for
F the purpose of. carrying into effect the provisions of the Act.
The rules may, inter a/ia, provide for removal, retirement, or
release upon discharge from service of persons subject to the
rule. The Government has in exercise of that power framed
Army Rules, 1953, Rule 13(111)(v) whereof applicable to the case
G at hand empowers the Brigade and Sub Area Commander to
direct such discharge after giving to the person whose
discharge is contemplated, an opportunity to show cause·
against the same provided the circumstances of the case
permit the grant of such opportunity. Rule 13 (1 ), (2), (2A), (3)(111)
H and the Table below the same are extracted :
VEERENDRA KUMAR DUBEYv. CHIEF OF ARMY STAFF 1023
& ORS. [TS.THAKUR, J.]

"13.Authorities empowered to authorise A
discharge- (1) Each of the authorities specified
in column 3 of the Table below shall be the
competent authority to discharge from service
person subject to the Act specified in column 1
thereof on the grounds specified in column 2. B

(2) Any power conferred by this rule on any of the
aforesaid authorities shall also be exercisable by
any other authority Superior to it.
c
(2A) Where the Central Government or the Chief
of the Army Staff decides; that any person or class
or persons subject to the Act should be discharged
from service, either unconditionally or on the
fulfilment of certain specified conditions, then, o
notwithstanding anything contained in this rule, the
Commanding Officer shall also be the competent
authority to discharge from service such person
or any person belonging to such class in
accordance with the said decision. E

(3) In this table "commanding officer" means the
officer commanding the corps or department to
which the person to be discharged belongs except
that in the case of junior commissioned officers F
and warrant officers of the Special Medical Section
of the Army Medical Corps, the "commanding
officer" means the Director of the Medical
Services, Army, and in the case of junior
commissioned officer and warrant officers of G
Remounts, Veterinary and Farms, Corps, the
"Commanding Officer" means the Director
Remounts, Veterinary and Farms.

H
1024 SUPREME COURT REPORTS [2015] 10 S.C.R.

A

Category Grounds of Competent Manner of I
discharge authority to discharge
authorize
B dischalJJ!!.
1 2 3 4
Junior xxxxxxxxx xxx '
Commissioned
officers . ,
I
11\fcurant Officer xxxxxxxxx xxx
c Persons enrolled Ill. (i) On fulfilling , Corrur.anding
under the Act the conditions of Officer in the case
who have been his enrolrrent or of a person of the
attested having reached rank of havildar
the stage at which (or equivalent
discharge may be rank) where such
D enforced. person is to be
discharged
Otherwise than at
his own request
and where the
commanding
officer below the
E rank of Ueutenant
Colonel, the
brigade or sub
Area Corrmander,
(SRO 11&'65
Ill. (ii) On Commanding Applicable to
F corrpletion of a Officer (in case of person enrolled for
period of anny the persons both Anny seNice
service only, there unwilling to and Reserve
being no vacancy extend their Arm/ Service. (A pers9n
in the Reserve Service) who has the right
to extend his Anny
G service and wishes
to exerdse that
right cannot be
. discharge under
1
this head) I

H
VEERENDRAKUMAR DUBEYv. CHIEF OF ARMY STAFF 1025
&ORS. [TS.THAKUR, J.] .

Ill (iiij Having Corrmanding To be carried out A
been found aficer only • on the.
n:scJically unfit for rerorrrnendation
further service of an Invaliding
Board
Ill (iv) At his owi Corrmanding The Corrrranding
request before aficer officer will exercise B
fulfilling the the power only
conditions of his when he is
enro/rrent satisfied as to the
desirability of
sanctioning the
application and the
strength of the unit c
will not thereby be
undulv reduced.
Ill (v) All other Brigade/Sub-Area The Brigade or
dasses of Corrmander Sub Area
discharge Corrrrander
before ordering the D
discharge shall, if
the circumstances
of the case perrrit
give to the person
whose discharge is
conterrplated an E
opportunity to
shON cause
against
- the
. conterrplated
discharge.
Persons enrolled xxxxxxxxx xxx
under the Act
F
wf1o have not
been arrested
8. A plain reading of the above makes it abundantly clear
that the rule does not provide for anything beyond an opportunity
to the individual concerned to stiow cause against his G
contemplated discharge before the competent authority
passes any such order of discharge. That a show cause notice
was issued to the petitioner in the present case before his
discharge is not denied. On a strict interpretation of Rule H
1026 SUPREME COURT REPORTS [2015] 10 S.C.R.

A 13(111)(V), therefore, one could perhaps say that the letter of
the law has been complied with inasmuch as an opportunity
has been afforded to the appellant to show cause against the
contemplated discharge. The question·, however, is whether
that was enough having regard to the procedure which the
B Government has stipulated for the exercise of the power vested
in the competent authority under Rule 13 of the Army Rules
(supra). The Government has, as rightly mentioned by learned
counsel for the appellant, stipulated not only a show cause
notic;e which is an indispensable part of the requirement of the
C 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
0
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 lax man rekha, which if crossed
E 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
F necessarily suffer that fate. It is one thing to qualify for
consideration and an entirely different to be found fit for
discharge. 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
G 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 prescribeC:.

9. We may at this stage gainfully extract the relevant
H portion of the procedure prescribed for dismissal:
VEERENDRA KUMAR DUBEYv. CHIEF OF ARMY STAFF 1027
& ORS. [T.S.THAKUR, J.]

"Procedure for dismissal/discharge of A
Undesirable JCOs/WOs/OR:

4. AR 13 ahd 17 provide that a JCOIWOIOR whose
dismissal or discharge is contemplated will be
given a show cause notice. As an exception to this, B
services of such a person may be terminated
without giving him a show cause notice provided
the competent authority is satisfied that it is not
expedient or reasonably practicable to service
such a notice. Such cases should be rare, e.g., C
where the interests of the security of the State so
require. Where the service of a show cause notice
is dispensed with, the reasons for doing so are
required to be recorded. See proviso to AR 17.
D
5. xxxxxxxxxxxxx

(a) Preliminary Enquiry. Before recommending
discharge or dismissal of an individual the authority
concerned will ensure:- E
(i) that an impartial enquiry (not necessarily a
Court of Inquiry) has been made into the _a/legations
·against him and that he has had adequate
opportunity of putting up his defence or explanation F
and of adducing evidence in his defence.
(ii) that the a/legations have been substantiated
and that the extreme step of termination of the
individual's service is warranted on the merits of the
case. G

(f) Final orders bv the competent Authoritv. The authority
competent to sanction the dismissal/discharge of the
individual will before passing orders reconsider the
case in the light of the individual's reply to the show H
1028 SUPREME COURT REPORTS [2015] 10S.C.R.

A cause notice. A person who has been served with a show
cause notice for proposed dismissal may be ordered
to be discharged if it is considered that discharge would
meet the requirements of the case. If the competent
authority considers that termination of the individual's
B service is not warranted but any of the actions referred
to in (b) to (d) of Para 2 above would meet the
requirements of the case, he may pass orders
accordingly. On the other hand, if the competent
authority accepts the reply of the individual to the show
c cause notice as entirely satisfactory, he will pass orders
accordingly.

Note:-1. As far as possible, JCO, WO and OR awaiting
dismissal orders will not be allowed to mix with other
D personnel.

2. Discharge from service consequent to four red ink
entries is not a mandatory or legal requirement. In such
cases, Commanding Officer must consider the nature
E 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
F 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. Such discharge should be approved by the next
higher Commander."
G
10. A careful re~ding 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
H enquiry into the allegations made against the individual
VEERENDRA KUtv1AR L:UBEYv. CHIEF OF ARMY STAFF 1029
& ORS. [TS.THAKUR, J.]

concerned in which he ought to be given an opportunity of A
putting up his defence and that the allegations must stand
substantiated for a discharge to follow.

11. Para 5(f)(2) (supra) underscores the importance of
the truism that termination of the individual's service is an B
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 humanized by the requirement of C
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 D
prevent injustice, unfair treatment or arbitrary exercise of the
powers vested in the Authority competent to discharge. For
instance Note 2 to Rule 5 (supra) requires the competent
authority to take into consideration the long service rendered
by the individual, the hard stations he has been posted to and E
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 F
discharge of the individual can be validly ordered.

12.The argument that the procedure prescribed by the
competent authority de hors the provisions of Rule 13 and the
breach of that procedure should not nullify the order of
discharge otherwise validly made has not impressed us. It is G
true that Rule 13 does not in specific terms envisage an enquiry
nor does it provide for consideration of factors to which we
have referred above. But it is equally true that Rule 13 does
not in terms make it mandatory for the competent authority to H
1030. SUPREME COURT REPORTS [2015] 1OS.C.R.

A discharge an individual just because he has been awarded
four red ink entries. The threshold of four red ink entries as a
ground for discharge has no statutory sanction. Its genesis lies
in administrative instructions issued on the subject. That being
so, administrative instructions could, while prescribing any such
B threshold as well, regulate the exercise of the power by the
competent authority qua an individual who qualifies for
consideration on any such administratively prescribed norm.
Inasmuch as the competent authority has insisted upon an
enquiry to be conducted in which an opportunity is given to the
C individual concerned before he is discharged from service,
the instructions cannot be faulted on the ground !hat the
instructions concede to the individual more than what is
provided for by the rule. The instructions are aimed at ensuring
a non-discriminatory fair and non-arbitrary application of the
0
statutory rule. It may have been possible to assail the circular
instructions if the same had taken away something that was
granted to the individual by the rule. That is because
administrative instructions cannot make inroads into statutory
E rights of an individual. But if an administrative authority
prescribes a certain procedural safeguard to those affected
against arbitrary exercise of powers, such safeguards or
procedural equity and fairness will not fall foul of the rule or be
dubbed ultra vires of the statute. The procedure prescribed
F by circular dated 28th December, 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
G 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
H completing pensionable service are factors which the authority
VEERENDRAKUMAR DUBEYv. CHIEF OF ARMY STAFF 1031
&ORS. [T.S.THAKUR, J.]

competent to discharge wou!d have even independent of the A
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 B
the territory covered by the statute. The procedure presented
simply regulates the exercise of power which would, but for
such regulation and safeguards ag3inst arbitrariness, be
perilously close to being ultra vires in that the authority
competent to discharge shall, but for the safeguards, be vested C
with uncanalised and absolute power of discharge without any
guidelines as to the manner in which such pow~r may be
exercised. Any such unregulated and uncanalised power would
in turn offend Article 14 of the Constitution.
D
13. 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. M..ore importantly,
there is nothing on record to suggest that the authority E
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 F
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. We must, in fairness,
mention that Mr. Maninder Singh, ASG, did not dispute the fact
that any number of other personnel are still in service no matter G
they have earned four red ink entries on account of overstaying
leave. If that be so, the only safeguard against arbitrary exercise
of power by the authority would be to ensure that there is an
enquiry howsoever summary and a finding about the defence
set-up by the individual besides consideration of the factors H
1032 SUPREMECOURTREPORTS [2015] 10 S.C.R.

A made relevant under the note to para S(f) of the procedure. It
is common ground that a red ink entry may be earned by an
individual for overstaying leave for one week or for six months.
In either case the entry is a red ink entry and would qualify for
consideration in the matter of discharge. If two persons who
B suffer such entries are treated similarly notwithstanding the
gravity of the offence being different, it would be unfair and
unjust for unequals cannot be treated as equals. More
importantly, a person who has suffered four such entries on a
graver misconduct may escape discharge which another
C individual who has earned such entries for relatively lesser
offences may be asked to go home prematurely. The
unfairness in any such situation makes it necessary to bring in
safeguards to prevent miscarriage of justice. That is precisely
D what the procedural safeguards purport to do in the present
case.

14. Reliance upon the decisions of this Court in the cases
referred to earlier is, in our opinion, of no help to the responder:it
for the· same tiave not adverted to the procedure prescribed
E for the exercise of the power of discharge. In Union of India
v. Corpora/A.K. ljJakshi &Anr. (supra) the question before
this Court was whether an order of discharge passed in
pursuance of the Policy for Discharge of Habitual Offenders
F could be considered a discharge simplicitor as envisaged in
15(2)(g)(ii) or if it would tantamount to termination of service
by way of punishment under Rule 18 of the said Rules. The
Court came to the conclusion that it was a discharge simplicitor
and a~ such it could not be held as termination of service by
G way of a punishment for misconduct. This was clearly not a
case where the procedure for discharge was not followed. The
Court had, in that case, unequivocally held that there was no
dispute between the parties that the procedure had been duly
followed. Similarly, the decision of this Court in Union oflndia
H v. Rajesh Vyas (supra) is also distinguishable. In that case,
VEERENDRA KUMAR DUBEY v. CHIEF OF ARMY STAFF 1033
& ORS. [TS.THAKUR, J.]

the discharge order was challenged on the ground that it was A
passed without regard to the response to the show cause
notice filed by the discharge order. Upon a perusal of the
material, this Court held that the case was not one wherein the
discharge order was passed without application of mind and
that there was evidence to show that power was exercised B
upon consideration of all relevant records. The decision of this
Court in Union of India and Ors. v. Dipak Kumar Santra
(supra) is also of no relevance to the case at hand as that
case dealt with a recruit who had failed twice in clerks'
proficiency and aptitude test and was discharged under Rule C
13(3) of the Army Rules. Without adverting to the procedure
prescribed for such removal, the discharge was maintained
by this Court opining that the discharging authority was
empowered to do so under Rule 13(3) of the Army Rules. D
Reliance upon the recent judgment of this Court in Union of
India & Ors. v. Ba/want Singh [Civil Appeal No. 5616 of
2015] is also misplaced. The grievance of the respondent in
that case, primarily, rested upon the alleged excessive
punishment meted out for the red ink entries suffered by him. E
The respondent also claimed to have been discriminated due
to discharge from theArmed Forces. That was also not a case
where discharge order was challenged as bad in law on the
basis of irregularities nor was it a case where the authority
was said to have failed to follow the necessary procedure. The F
decision of the High Court of Delhi in Surinder Singh v. Union
of India (2003) 1 SCT 697, to the extent the same toes a line
of reasoning different from the one adopted by us does not lay
down the correct proposition and must, therefore, be confined
to the facts of that case only. G

15. In the result this appeal succeeds and is hereby
allowed. The order of discharge passed against the appellant
is hereby set aside. Since the appellant has already crossed
the age of superannuation, interest of justice will be sufficiently H
1034 SUPREME COURT REPORTS [2015] 10 S.C.R.

A served if we direct that the appellant shall be 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. Benefit of continuity of service for all
other purpose shall, however, be granted to the appellant
B including pension. Monetary benefits payable to the appellant
shall be released expeditiously but not later than four months
from the date of this order. No costs.

Kalpana K. Tripathy Appeal allowed.