VIJAY SHANKAR MISHRAversusUNION OF INDIA & ORS.

                              [2016] 12 S.C.R. 200



A                         VIJAY SHANKAR MISHRA
                                         v.
                           UNION OF INDIA & ORS.
                     (Civil Appeal Nos.12179-12180of2016)
B                             DECEMBER 15, 2016
       (T. S. THAKUR, CJI AND DR. D. Y. CHANDRACHUD, J.]
             Armed Forces:
            Army Rules, 1954 - r.13(3)Table(lll)(v) - Discharge from
c service - Unsatisfactory conduct - Army Medical Corps - Appellant
  discharged from service on the ground that his conduct had not
  been satisfactory - Further, he was denied disability pension on
  the ground that he had earned six red ink entries in his service -
  Held: There was no application of mind by the authorities to the
  circumstances to be taken into consideration while exercising power'
D
  u/r.13 - Mere fact that appellant had crossed the threshold·of four
  red entries not a ground to discharge him without considering other
  relevant circu111stances 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 condi-
E tions; (iii) long years of service, just short of co111pleting the quali-
  fying period of pension - Since, the appellant would have attained
  the age of superannuation, the ends ofjustice 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
  admissible - Benefit of continuity of service for all other purposes
F
  to be granted including pension - Pension Regulations for the Army
  1961(Part-I) - r.132 - Service Law - Pension.
             The appellant was enrolled in the Army Medical Corps. He was
      discharged from service u/r. 13(3) Table Ill (v) of the Army ~ules, 1954
      on the ground that his conduct had not been found satisfactory. The
G     appellant was also denied disability pension. The appellant filed a writ
      petition before the High Court, which directed reconsideration of his
      case. However, the authorities concerned rejected his claim for pen-
      sion on the ground that he had not completed 15 years' of qualifying
      service for grant of pension and tliat he had been punished while in
I-I   service on nine occasions inclusive of six red ink entries. The appellant
                                         200
       VIJAY SHANKAR MISHRA v. UNION OF INDIA                         20 l


again filed a writ petition before the High Court which was transferred A
to the Armed Forces Tribunal. Application filed by appellant was dis-
missed by the Tribunal.                                                ·
      Allowing the appeals, the Court
      HELD: 1. In the present case, it is evident that there was
no application of mind by the authorities to the circumstances B
which have to be taken into consideration while exercising the
power under Rule 13 of the Army Rules, 1954. 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 inCiuding (i) the nature of the violation C
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 High
Court specifically directed consideration of his case bearing in
mind the provisions of the circular dated 10 January 1989, the D
relevant factors were not borne in mind. The order that was
passed subsequently, failed to consider relevant and germane
circumstances arid does not indicate a due application of mind to
the requirements of the letter of Army Headquarters and the
circular dated 10 January 1989. [Para 8) (239-E-G)
                                                                     E
      2. The Armed Forces Tribunal was, therefore, in error in
rejecting the application filed by the appellant. The orders of the
Tribmial;i,re 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- F
wages shall however be admissible. The benefit of continuity of
service for all other purposes shall be granted to the appellant
including pension. [Para 9) [239-H; 240-A-B]
      Veerendra Kumar Dubey v. Chief of Army Staff (2016)
      2 SCC 627 : 2015 (10) SCR 1013 - referred to.                    G

                        Case Law Reference
      2015 (10) SCR 1013        referred to            Para 7
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 12179-
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202            SUPREME COURT REPORTS                          [2016] 12 S.C.R.


A     12180of2016.
             From the Judgment and Order dated 23.09.2010 in T. A. 320 of
      2010 and 15.09.2011 in R.A. 10 of201l,04.04.2013 in M.A. No. 201 in
      T. A. No. 320 of2010 and M.A. No. 202 of2013 in R. A. 10 of201 l of
      theArmed Forces Tribunal, Regional Bench, Lucknow.
B           Sarvesh Singh, Ms. Herinder Kaur Brar, Ad vs. for the Appellant.
            Maninder Singh, ASG., R. Balasubrainanian, Ms. Rashmi Malhotra,
      Prabhas Bajaj, Santosh Kumar, Ananya Mishra, Mukesh Kumar Maroria,
      Advs. for the Respondents.

c           The Judgment of the Court was delivered by
            DR. D. Y. CHANDRACHUD, J.
            Leave granted
            Delay condoned.
D           1. These appeals arise from judgment of the Armed Forces Tri-
      bunal 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
 E 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 (Ill)(v).
     By that time he had rendered service of 13 years 8 months and 19 days
     (excluding 188 days non qualifying service). The minimum qualifying
 F . service for earning pension under Rule 132 of the Pension Regulations
     for the Army 1961 (Part-I) is fifteen years. By an orderof22 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
 G    Division Bench by its judgment dated 3 January 2007 directed
      reconsideration of the case of the appe Hant in terms of a ~ircular bearing
      No.0201/A/164/Admn-l dated 10 January 1989. Pursuant tg 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
H     and had been di~charged for the reason that he was unlikely t_o become
         VIJAY SHANKAR MISHRA v. UNION OF INI5IA                                203
                [DR. D. Y. CHANDRACHUD, J.]

an efficient soldier. Moreover, it was stated that disability pension was       A
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         B
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 July2012 since the remedy of the
                                                                                c
appellant would lie before this Court. 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             D
was grossly disproportionate. Moreover, reliance was placed on behalf
of the appellant on circular No.020 IIA/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,                      E
       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          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".
       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 G
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
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204             SUPREME COURT REPORTS                           [2016] 12 S.C.R.


A     to be duly borne in mind.
             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
      Staff' held as follows :
B            ;'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
c            adequate opportunity of putting up his defence and adducing
             evidence in suppo1t thereof. More impo1tantly, 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
D            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
 E           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
F            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."
G           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. Nl5010/150/AG/
      PS-2(c). Emphasising the factors which have to be borne in mind, this
       1 (2016) 2   sec 627
H
          VIJAY SHANKAR MISHRA v. UNION OF INDIA                                    205
                 [DR. D. Y. CHANDRACHUD, J .]

. Court held thus: .,                                                               A
       "16. The procedure prescribed by the Circular dated 28-
       12-1988 far from violating Rule 13 provides safeguards
       against an unfair and imp1·oper use of the power vested in
       the authority, especially when even independent of the
       procedure stipulated 1;y the competent authority in the                       B
       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
                                                                                     c
       may be completing pensionable service, are factors which
       the a~thority competent to discharge would have even
       independent of the p~ocedure been required to take into
       consideration while exercising the power of discharge.
       Inasmuch as the procedure s,dpulated specifically made them                   D
        relevant for the exerc~~.e 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 ev!dent that there was no application         E
 of mind by the authorities to the circumstances which have to be taken
 into 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           F
 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 th;: pro,,~isions of the circular, the relevant
 factors were not borne in 111i11d. The order that was passed on 26                  G
 February 2007 failed to consider relevant and germane circumstances
 and does not indicate a due application of mind to the requirements of
 the letter ofArmy 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
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206                SUPREME COURT REPORTS                        f2016112 S.C.R.



A     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
B
      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 fromthe date of this order.
             I 0. The appeals are allowed in these terms. There shall be no
      order as to costs.
c
      Ankit Gyan                                                     Appeals allowed.


                                    END OF 2016
                                         *****