Sep. Satgur Singh v. Union of India & Ors.

HEMANT GUPTA, J. 1. The challenge in the present appeal is to an order passed on April 30, 2014 by the Armed Forces Tribunal 1, Chandigarh, Regional Bench at Chandimandir whereby, the discharge of the appe llant on 1 AFT 1025 account of seven red ink entries during his 11 years 9 months and 15 days service was not found to be unjustified. 2. The appellant was served with a show-cause notic e on September 22, 2004 that the appellant has proved himself undesirabl e and retention in service is not considered suitable, in respe ct of seven punishments: two in the year 1995; one in the year 1998; two in the year 2000; and two in the year 2004. The details of his punis hments 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) 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 (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 mistakes due to his family problems and that he would not co mmit a single mistake again. 4. After considering the reply filed, the reasons for discharge have been recorded by General Officer Commanding 24 Infantry Div ision on November 26, 2004 wherein, it has been recorded that the appellant is habitual offender, therefore, he be discharged from serv ice. 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 sufficient to discharge any person, but the Commanding Of ficer 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 SEP. SATGUR SINGH v. UNION OF INDIA & ORS. [HEMANT GUPTA, J.] “Addl. Director General Personal Services (PS-2) Ar my 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 , 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 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 inqui ry) has been made into the allegations against him and that he has 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 th at the extreme step of termination of the individual's ser vice is warranted on the merits of the case.” 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 unde r: “10. The Government has, as rightly mentioned by the learn ed 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. M ore importantly, certain inbuilt safeguards against discharg e from service based on four red ink entries have also been pre scribed. The first and foremost is an unequivocal declaration that mer e 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 1027 render the individual concerned undesirable or unworth y 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 fo r such discharge, does not mean that he must necessarily suffer that fate. It is one thing to qualify for consideration and an ent irely 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 consid er the nature of the offence for which such entries ha ve been awarded and other aspects made relevant by the Government 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 onl y should there be a show-cause notice but an enquiry into the allegations made against the individual concerned in w hich he ought to be given an opportunity of putting up his def ence and that the allegations must stand substantiated f or a discharge to follow. 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. W hat 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 individ ual is humanised by the requirement of an impartial enquiry into the matter and fair opportunity to the concerned es pecially when he is about to complete his pensionable service. Equally significant is the fact that the authority competent to di scharge is required to take into consideration certain factors made relevant by the Circular to prevent injustice, unfair treatment or arbitrary exercise of the powers vested in the authority compet ent 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 SEP. SATGUR SINGH v. UNION OF INDIA & ORS. [HEMANT GUPTA, J.] 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. 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 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 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 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 enquir y 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 of a personnel is submi tted and upon consideration, an order is passed thereon. In the pre sent 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 down in para 5(a) of the Army Instructions dated December 28, 198 8 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 been punished on each occasion for rigorous imprisonment ranging from 1029 2 days to 28 days. A Member of the Armed Forces cannot take h is duty lightly and abstain from duty at his will. Since the absence of duty was on several different occasions for which he was i mposed punishment of imprisonment, therefore, the order of discharge c annot be said to be unjustified. The Commanding Officer has recorde d that the appellant is a habitual offender. Such fact is supported by absence of the appellant from duty on seven occasions. 9. In view thereof, we do not find any error in the or der of discharge of the appellant. Appeal is dismissed. Kalpana K. Tripathy Appeal dismissed. SEP. SATGUR SINGH v. UNION OF INDIA & ORS. [HEMANT GUPTA, J.]