Leave granted
Delay condoned. 1 These appeals arise from judgment of the Armed Forces Tribunal 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 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 (III)(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 service for earning pension under Rule 132
of the Pension Regulations for the Army 1961 (Part-I) is fifteen years. By an
order of 22 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 Division
Bench by its judgment dated 3 January 2007 directed reconsideration of the
case of the appellant in terms of a circular bearing No.0201/A/164/Admn-1
dated 10 January 1989. Pursuant to 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 and had been discharged for the reason
that he was unlikely to become an efficient soldier. Moreover, it was stated
that disability pension was 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 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 July 2012 since the remedy of the 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 was grossly
disproportionate. Moreover, reliance was placed on behalf of the appellant on
circular No.0201/A/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, 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 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 entries was no JUDGMENT 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 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 Staff1 held as follows :
“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 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 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
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 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.”
(2016) 2 SCC 627
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. A/15010/150/AG/PS-2(c). Emphasising the
factors which have to be borne in mind, this Court held thus :
“16. The procedure prescribed by the Circular
dated 28-12-1988 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 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 JUDGMENT
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 the territory covered by the statute.”
8 In the present case, it is evident that there was no application 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 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 the
provisions of the circular, the relevant factors were not borne in mind. The
order that was passed on 26 February 2007 failed to consider relevant and
germane circumstances and does not indicate a due application of mind to the
requirements of the letter of Army 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 Tribunal
was in error in rejecting the application. The orders of the Tribunal dated 23 September 2010 and 15JUDGMENTSeptember 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 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 from the date of this order.
10 The appeals are allowed in these terms. There shall be no order as to
costs.
New Delhi December 15, 2016.