TaxTMI 
TaxTMI 
2022 (7) TMI 1326
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....hus: OFFICE OF THE COMMANDANT 24 ASSAM RIFLES, C/O 99 APO ORDER 2401637/AKP/2004 DATED 31.01.2004 1.WHEREAS it is considered that the conduct of No 2401637W Rfn/GD Amrandra Kumar Pandey of which has led him getting four Red Ink entries is such as to render his further retention in the public Service undesirable being a incorrigible offender and having shown no improvement during his service. 2. AND WHEREAS No. 2401637W Rfn/GD Amrandra Kumar Pandey was afforded opportunity to show cause against the proposed action vide 24 AR letter No. 11014/A362003/ 635 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 e....
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....related to intoxication and one related to overstay of leave period. The Division Bench examined the provisions of Clause5 of the Record Branch Instruction (ROI) No.1/2004. Clause5 of ROI provides that under ChapterVIII, Rule 24 of the Assam Rifles Manual power is conferred on the Commandant of an Assam Rifles battalion to discharge any member of the Assam Rifles below the rank of Naib Subedar in case 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,....
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....nd thereby set aside the order passed by the learned Single Judge referred to above. The Appeal Court while allowing the writ appeal filed by the Union of India essentially took the view that neither the Assam Rifles Act, 1941 under which the decision to discharge was taken nor the Assam Rifles Act, 2006 requires the authority to record any reasons or the satisfaction in the order of discharge itself. 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 ....
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....e proper word to be used. A "dimissed" officer may not be re-employed. Dismissal is the last resource, and should not ordinarily be ordered until all other means of punishment have been tried and failed. For incorrigible offenders; confirmed bad characters, confirmed drunkards, for offences involving moral disgrace, fraud and dishonesty, continued and willful disobedience 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 decisio....
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....v. UOI & Ors. reported in (2019)9 SCC 205, more particularly, the observations made in Para 6 and 7 respectively. Para 6 & 7 respectively are as under: "6. We do not find any merit in the present appeal. Para 5(a) of the circular dated 28121988 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 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....
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.... 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 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 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 w....
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....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 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 servi....
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.... based on the subjective opinion or satisfaction, in our opinion, can judicially be reviewed first to find out the existence of the facts or circumstances 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. 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 act....
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.... the power has either been misapplied or misinterpreted. The Courts have always equated the jurisdictional review with the review for error of law and have shown their readiness to quash an order if the meaning of the constitutional or statutory term has been misconstrued or misapplied. [See Iveagh (Earl of) v. Minister 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 b....
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.... complete case file will be forwarded to next superior authority/Sector Headquarters for approval of the superior authority/Sector Commander. (v) The authority competent to sanction the dismissal/discharge of the individual will before passing orders reconsider the case in the light of the individual reply to the 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 ....