TMI Blog2022 (7) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... es on the basis of which the authority is alleged to have formed the opinion. It is true that ordinarily the court should not inquire into the correctness or otherwise of the facts found except in a case where it is alleged that the facts which have been found existing were not supported by any evidence at all or that the finding in regard to circumstances or material is so perverse that no reasonable man would say that the facts and circumstances exist. The courts will not readily defer to the conclusiveness of the authority s opinion as to the existence of matter of law or fact upon which the validity of the exercise of the power is predicated. The doctrine of reasonableness thus may be invoked. Where there are no reasonable grounds for the formation of the authority s opinion, judicial review in such a case is permissible. Having regard to the nature of the misconduct alleged against the appellant, the ends of justice would be met if we set aside the order of discharge and treat the appellant herein to have been in service till the time, he could be said to have completed the qualifying service for grant of pension. Such an order is passed with a view to do substantial jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dt. 02 Sep., 2003. 3. AND WHEREAS No 2401637W Rfn/GD Amrandra Kumar Pandey submitted his replies vide letter No. Nil dated 01. Oct.2003. the same was considered in terms of ROI 4/99 and was found unsatisfactory by the competent authority. 4. NOW WHEREFORE, In exercise of the powers conferred on me under AR Act 1941 Sec 4(a) read with Para 24, Chapter VIII of AR Manual and Para 6 of ROI 4/99, the undersigned hereby discharge the said No.2401637W Rfn/GD Amrandra Kumar Pandey from the Assam Rifles being incorrigible offender soldier with effect from 31 Jan., 2004 (Afternoon) No.2401637W Rfn/GD Amrandra Kumar Pandey is entitled to get pension and gratuity as admissible under rule. s/d (Santosh Joseph) Lt. Col Offg Comdt 3. Thus, the aforesaid order of discharge was passed on the basis of the four RedInk entries received by him during his period of service. The four RedInk entries were on the following grounds: Entry 1 (1996) For staying back to take care of his ailing mother without sufficient cause over staying leave granted . Sentenced to 14 days of rigorous imprisonment with deduction in salary. Entry 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase he receives four or more Red Ink entries. The Division Bench held that the use of the expression four or more Red Ink entries and also the use of the word may in Clause5 indicates that discretion is vested in the disciplinary authority to decide as to whether the person who is found to have received the Red Ink entries ought to be discharged from service or not. It was held that merely because a man receives four Red Ink entries, discharge is not automatic. Discretion is given to the Commanding Officer to consider discharge. The severity and the nature of the misconduct will have to be weighed before recourse is taken to exercise power conferred by Clause5 of the ROI. It is a settled position in law that when a discretion is vested in an authority to exercise a particular power, the same is required to be exercised with due diligence, and in reasonable and rational manner. Since order of discharge and the procedure preceding such discharge is of a summary nature, it is necessary that the order of discharge is a speaking order and must indicate how and in what manner the authority exercised the discretionary power. The Hon ble Supreme Court in a catena of decisions has re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Appeal Court took the view having regard to the provision of Clause 5 of the ROI 1/2004 that the Commandant has the discretion to discharge a person who has four or more Red Ink entries. All that is required is to serve a notice on the individual affording an opportunity to explain. The provision of Clause 5 does not require the Commandant to record the reasons of satisfaction in the order of discharge. 7. Being dissatisfied with the impugned order passed by the Appeal Court of the High Court, the appellant herein (original writ petitioner) is here before this Court with the present appeal. SUBMISSIONS : 8. The learned Counsel appearing for the appellant vehemently submitted that the High Court committed a serious error in passing the impugned order. He would submit that there was no good reason for the Appeal Court to disturb the order passed by the learned Single Judge of the High Court. 9. The learned Counsel has broadly classified his submissions as under: (a) Discharge is not mandatory even after four Red entries. (b) There is a difference between cases of major misconducts and minor misconducts. (c) In the order of discharge no reasons have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ience or neglect, it is generally the only appropriate punishment 12. The principal argument of the learned Counsel appearing for the appellant is that the discharge from service is not automatic or mandatory after four Red entries. Four Red entries are only a minimum requirement and cannot be the sole ground to order discharge. It is argued that the Rule itself states that the power may be invoked and that as far as practicable, however, discharge under this provision should be avoided as the Personnel sent on discharge on this account are not eligible for pension . The submission is that the provision can be pressed into service only when continued and willful disobedience or neglect comes on record. 13. The learned Counsel with a view to fortify his aforesaid submission placed strong reliance on the decisions of this Court in the case of Virendra Kumar Dubey v. Chief of Army Staff Ors., (2016) 2 SCC 627, and Vijay Shankar Mishra v. Union of India and Ors., (2017) 1 SCC 795, respectively. 14. In such circumstances referred to above, the learned Counsel prays that there being merit in his appeal the same be allowed and the impugned judgment and order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, and 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 down in Para 5(a) of the Army Instructions dated 28121988 stand satisfied . 7. In reply to the showcause 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 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 occ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as equals. More importantly, a person who has suffered four such entries on a graver misconduct may escape discharge which another 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 what the procedural safeguards purport to do in the present case. Taking the aforesaid view, this Court ultimately passed the following order: 21. 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 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 be granted to the appellant including pension. Monetary benefits payable to the appellant shall be released expeditiously but not later than four months from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the circular, the relevant factors were not borne in mind. The order that was passed on 2622007 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 28121988 and the Circular dated 10011989. 10. 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 2392010 Vijay Shankar Mishra V. Union of India, 2010 SCC OnLine AFT 1127 and 1592011 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. 25. In both the aforesaid decisions, this Court took into consideration the fact that there was no application of mind by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts found except in a case where it is alleged that the facts which have been found existing were not supported by any evidence at all or that the finding in regard to circumstances or material is so perverse that no reasonable man would say that the facts and circumstances exist. The courts will not readily defer to the conclusiveness of the authority s opinion as to the existence of matter of law or fact upon which the validity of the exercise of the power is predicated. 30. The doctrine of reasonableness thus may be invoked. Where there are no reasonable grounds for the formation of the authority s opinion, judicial review in such a case is permissible. [See Director of Public Prosecutions v. Head, (1959) AC 83 (Lord Denning). 31. When we say that where the circumstances or material or state of affairs does not at all exist to form an opinion and the action based on such opinion can be quashed by the courts, we mean that in effect there is no evidence whatsoever to form or support the opinion. The distinction between insufficiency or inadequacy of evidence and no evidence must of course be borne in mind. A finding based on no evidence as opposed to a finding which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nister of Housing and Local Govt., (1962) 2 QB 147; Iveagh (Earl of) v. Minister of Housing and Local Govt. (1964) 1 AB 395]. 36. Fourthly, it is permissible to interfere in a case where the power is exercised for improper purpose. If a power granted for one purpose is exercised for a different purpose, then it will be deemed that the power has not been validly exercised. If the power in this case is found to have not been exercised genuinely for the purpose of taking immediate action but has been used only to avoid embarrassment or wreck personal vengeance, then the power will be deemed to have been exercised improperly. [See Natesa Asari v. State of Madras, AIR 1954 Mad 481]. 37. Fifthly, the grounds which are relevant for the purpose for which the power can be exercised have not been considered or grounds which are not relevant and yet are considered and an order is based on such grounds, then the order can be attacked as invalid and illegal. In this connection, reference may be made to Ram Manohar v. State of Bihar, AIR 1966 SC 740; Dwarka Das v. State of J. and K., AIR 1957 SC 164 at p. 168 and Motilall v. State of Bihar, AIR 1968 SC 1509. On the same principle, the admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice. A person who has been served a show cause notice for proposed dismissal may be ordered to be discharged if it is considered that discharge would meet the end of justice. If the competent authority accepts the reply of the individual to the show cause notice as entirely satisfactorily, he will pass orders accordingly. 108. Discharge on ground of red ink entries. A Subordinate Officer, Under Officer or other enrolled person who has incurred four or more red ink entries may be recommended for discharge from the service on the ground of unsuitability, subject to the following conditions: (a) After an individual has earned three red ink entries, he shall be warned in writing that his service will be liable to be terminated by the competent authority if he earns one more red ink entry. Such a warning letter shall be issued to him by the concerned Sector Commander through Commandant of the individual. (b) Each case of individuals having earned four or more red ink entries shall be examined on its own merit depending upon the nature and gravity of the offences and the aggravating circumstances under which these were committed. The authority competent to sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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