AMARENDRA KUMAR PANDEY versus UNION OF INDIA & ORS.

AMARENDRA KUMAR PANDEY

UNION OF INDIA & ORS.

(Civil Appeal Nos. 11473-11474 of 2018)

JULY 14, 2022

[SURYA KANT AND J. B. PARDIWALA, JJ.]

Service Law: Armed forces – Discharge from service –Appellant was discharged from service on the basis of four Red-Inkentries received by him during his period of service – Writ petitionfiled by him challenging order of discharge – Single judge reliedupon the judgment in Balwant Singh wherein similar issue wasinvolved regarding discharge from Assam Rifles on securing fourRed-Ink entries – In that case, it was held that the authority vestedwith the power to discharge must examine the response of theconcerned person and weigh the same vis-a-vis the severity of themisconduct which led to incurring of the Red-Ink entries in the servicerolls; and that the order of discharge and the procedure precedingsuch discharge being of summary nature, it is necessary that theorder of discharge is speaking order – Relying on the saidjudgment, Single Judge set aside the order of discharge and remittedmatter to competent authority for fresh decision – However, DivisionBench set aside the order passed by Single Judge on the groundthat neither the Assam Rifles Act, 1941 nor the Assam Rifles Act,2006 requires the authority to record any reasons or satisfaction inthe order of discharge itself – On appeal, held: Where there are noreasonable grounds for formation of the authority’s opinion, judicialreview in such case is permissible – There is nothing on record toindicate that the nature of the misconduct leading to the award offour Red Ink entries was so unacceptable that the competentauthority had no option but to direct his discharge to preventindiscipline in the force – Therefore, to do substantial justice, orderof discharge is set aside and appellant is treated to have been inservice till the time, he could be said to have completed thequalifying service for grant of pension – Assam Rifles Act, 1941 –Assam Rifles Act, 2006 – Assam Rifles Regulation, 2016 – Regns.107and 108.

224SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1. Where an Act or the statutory rules framedthereunder left an action dependent upon the opinion of theauthority concerned, by some such expression as ‘is satisfied’ or‘is of the opinion’ or ‘if it has reason to believe’ or ‘if it consideredBnecessary’, the opinion of the authority is conclusive, (a) if theprocedure prescribed by the Act or rules for formation of theopinion was duly followed, (b) if the authority acted bona fide, (c)if the authority itself formed the opinion and did not borrow theopinion of somebody else and (d) if the authority did not proceedon fundamental misconception of the law and the matter in regardCto which the opinion had to be formed. The action based on thesubjective opinion or satisfaction, can judicially be reviewed firstto find out the existence of the facts or circumstances on thebasis of which the authority is alleged to have formed the opinion.It is true that ordinarily the court should not inquire into theDcorrectness or otherwise of the facts found except in case whereit is alleged that the facts which have been found existing werenot supported by any evidence at all or that the finding in regardto circumstances or material is so perverse that no reasonableman would say that the facts and circumstances exist. The courtswill not readily defer to the conclusiveness of the authority’sEopinion as to the existence of matter of law or fact upon which thevalidity of the exercise of the power is predicated. The doctrineof reasonableness thus may be invoked. Where there are noreasonable grounds for the formation of the authority’s opinion,judicial review in such case is permissible. [Para 28-30][239-E-FH; 240-A-C]2. When this Court say that where the circumstances ormaterial or state of affairs does not at all exist to form an opinionand the action based on such opinion can be quashed by the courts,this Court means that in effect there is no evidence whatsoeverGto form or support the opinion. The distinction betweeninsufficiency or inadequacy of evidence and no evidence must ofcourse be borne in mind. finding based on no evidence asopposed to finding which is merely against the weight of theevidence is an abuse of the power which courts naturally are loathto tolerate. Whether or not there is evidence to support aH

particular decision has always been considered as question oflaw. Secondly, the court can inquire whether the facts andcircumstances so found to exist have reasonable nexus withthe purpose for which the power is to be exercised. In otherwords, if an inference from facts does not logically accord withand flow from them, the Courts can interfere treating them as anerror of law. Thus, this Court can see whether on the basis of thefacts and circumstances found, any reasonable man can say thatan opinion as is formed can be formed by reasonable man. Thatwould be question of law to be determined by the Court. Thirdly,this Court can interfere if the constitutional or statutory termessential for the exercise of the power has either been misappliedor misinterpreted. The Courts have always equated thejurisdictional review with the review for error of law and haveshown their readiness to quash an order if the meaning of theconstitutional or statutory term has been misconstrued ormisapplied. Fourthly, it is permissible to interfere in case wherethe power is exercised for improper purpose. If power grantedfor one purpose is exercised for different purpose, then it willbe deemed that the power has not been validly exercised. If thepower in this case is found to have not been exercised genuinelyfor the purpose of taking immediate action but has been usedonly to avoid embarrassment or wreck personal vengeance, thenthe power will be deemed to have been exercised improperly.Fifthly, the grounds which are relevant for the purpose for whichthe power can be exercised have not been considered or groundswhich are not relevant and yet are considered and an order isbased on such grounds, then the order can be attacked as invalidand illegal. [Para 31, 34-37][240-D-E, H; 241-A-B, D-G]

3. Having regard to the nature of the misconduct allegedagainst the appellant in the ends of justice, the order of dischargeis set aside and the appellant is treated to have been in servicetill the time, he could be said to have completed the qualifyingservice for grant of pension. Such an order is passed with viewto do substantial justice as there is nothing on record to indicatethat the nature of the misconduct leading to the award of fourRed Ink entries was so unacceptable that the competent authorityhad no option but to direct his discharge to prevent indisciplinein the force. [Para 39][244-F]

ABC

DEF

Ram Manohar v. State of Bihar AIR 1966 SC 740 :[1966] 1 SCR 709; Dwarka Das v. State of J. and K.AIR 1957 SC 164; Motilall v. State of Bihar AIR 1968SC 1509 : [1968] 3 SCR 587; Virendra Kumar Dubeyv. Chief of Army Staff & Ors. (2016) 2 SCC 627 : [2015]10 SCR 1013; Vijay Shankar Mishra v. Union of Indiaand Ors. (2017) 1 SCC 795 : [2016] 12 SCR 200;Rasbihari v. State of Orissa AIR 1969 SC 1081 : [1969]3 SCR 374; Rohtas Industries Ltd. v. S.D. Agarwal andAnother AIR 1969 SC 707 : [1969] 3 SCR 108; BariumChemicals Ltd. and Another v. Company Law Board andOthers AIR 1967 SC 295 : [1966] Suppl. SCR 311 –relied on.

Union of India v. Balwant Singh (2015) 14 SCC 389 –referred to.

Satgur Singh v. UOI & Ors. (2019) 9 SCC 205 : [2019]D11 SCR 1023 - held inapplicable.

Director of Public Prosecutions v. Head (1959) AC 83;Reg. v. Governor of Brixton Prison, Armah, Ex Parte(1966) 3 WLR 828; Bean v. Doncaster AmalgamatedCollieries (1944) 2 All ER 279; Farmer v. Cotton’sTrustees, 1915 AC 922; Iveagh (Earl of) v. Minister ofHousing and Local Govt. (1962) 2 QB 147; Iveagh(Earl of) v. Minister of Housing and Local Govt. (1964)1 AB 395 - referred to.

Muthu Gounder v. Government of Madras (1969) 82Mad LW 1; Natesa Asari v. State of Madras AIR 1954Mad 481 – referred to.

Case Law Reference

AMARENDRA KUMAR PANDEY v. UNION OF INDIA & ORS.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 11473-11474 of 2018.

From the Judgment and Order dated 21.12.2017 and 22.08.2017of the High Court of Gauhati at Guwahati in W.A. No. 354 of 2017 andW.A. No. 399 of 2016.

Mehul M. Gupta, R. P. Gupta, Advs. for the Appellant.

Ms. Manjula Gupta, Sharath Narayan Nambiar, V. Balaji, ShaileshMadiyal, Arvind Kumar Sharma, B. V. Balaram Das, Advs. for theRespondents.

The Judgment of the Court was delivered by

J. B. PARDIWALA, J.

1. These appeals, by special leave, are directed against the judgmentand order passed by Division Bench of the Guwahati High Court dated21.12.2017 in the Writ Appeal No. 354 of 2017 by which the HighCourt allowed the appeal filed by the Union of India & Ors. therebysetting aside the judgment and order passed by learned Single Judgeof the High Court dated 19.01.2015 in the Writ Petition (C) 2783 of2004 filed by the appellant herein.

2. The facts giving rise to this appeal may be summarized as under:

(i) The appellant herein (original writ petitioner) had joined theAssam Rifles as Rifleman in the year 1993. While he was in service,he came to be discharged vide order dated 31.01.2004 passed by Lt.Col Offg Comdt.

(ii) The order of discharge referred to above reads thus:

OFFICEOFTHECOMMANDANT24ASSAMRIFLES,

C/O99APO

ORDER

2401637/AKP/2004

DATED 31.01.2004

1. WHEREAS it is considered that the conduct of No 2401637WRfn/GD Amrandra Kumar Pandey of which has led him gettingfour Red Ink entries is such as to render his further retention inthe public Service undesirable being incorrigible offender andhaving shown no improvement during his service.

2. AND WHEREAS No. 2401637W Rfn/GD Amrandra KumarPandey was afforded opportunity to show cause against theproposed action vide 24 AR letter No. 11014/A36-2003/635 dt. 02Sep., 2003.

3. AND WHEREAS No 2401637W Rfn/GD Amrandra KumarPandey submitted his replies vide letter No. Nil dated 01. Oct.2003.the same was considered in terms of ROI 4/99 and was foundunsatisfactory by the competent authority.

4. NOW WHEREFORE, In exercise of the powers conferred onme under AR Act 1941 Sec 4(a) read with Para 24, Chapter VIIIof AR Manual and Para 6 of ROI 4/99, the undersigned herebydischarge the said No.2401637W Rfn/GD Amrandra KumarPandey from the Assam Rifles being incorrigible offender soldierwith effect from 31 Jan., 2004 (Afternoon) No.2401637W Rfn/GDAmrandra Kumar Pandey is entitled to get pension and gratuity asadmissible under rule.

s/d(Santosh Joseph)Lt. Col Offg Comdt

3. Thus, the aforesaid order of discharge was passed on the basisFof the four Red-Ink entries received by him during his period of service.The four Red-Ink entries were on the following grounds:

Entry 1 (1996)

For staying back to take care ofhis ailing mother – ‘withoutsufficient cause over stayingleave granted’. Sentenced to 14days of rigorous imprisonmentwith deduction in salary.

Entry 2 (1998)

For being on the way out to makea phone call, but stopped beforehe could leave the compound –

“visited out of bound areas asAspecified in unit BRO Part I SerNo 202 dated 30 Aug 96without permission from hissuperior officers”. Sentenced to28 days of rigorous custody andB14 days of Military Custody.

Entry 3 (1999)For losing his luggage whilecoming back from home – “losthis identity card bearingmachine No. 078550 byCneglect the property of theGovernment issued to him forhis use”. Sentenced to 28 daysof rigorous imprisonment and 14days of detention in AR custody.

Entry 4 (2004)

For playing cards all alone byhimself – ‘to obey unit standingorders and was found Gamblingin unit line’. Sentenced to 28days of rigorous imprisonment and14 days of fine.

4. The appellant herein challenged the order of discharge beforethe Guwahati High Court by filing the Writ Petition (C) No. 2738 of2002. It appears from the materials on record that learned SingleJudge of the Guwahati High Court decided the Writ Petition filed by theappellant herein along with two other identical petitions of two similarlysituated riflemen and by common judgment and order dated 19.01.2015allowed the same. The impugned order of discharge came to be setaside. The learned Single Judge remitted the matter to the authoritiesconcerned for fresh decision in the light of Division Bench decisionof the Guwahati High Court.

5. The learned Single Judge while allowing the Writ Petition filedby the appellant herein held as under:

“The issue regarding discharge from Assam Rifles on securingfour Red Ink entries was gone into by Division Bench ofthis Court in Balwant Singh Vs. Union of India & Ors.,

reported in 2011 (5) GLT 640. That was case where aRifleman was discharged from the Assam Rifles on getting fourRed Ink entries. Out of the four Red Ink entries, three relatedto intoxication and one related to overstay of leave period.The Division Bench examined the provisions of Clause-5 ofthe Record Branch Instruction (ROI) No.1/2004. Clause-5 ofROI provides that under Chapter-VIII, Rule 24 of the AssamRifles Manual power is conferred on the Commandant of anAssam Rifles battalion to discharge any member of the AssamRifles below the rank of Naib Subedar in case he receivesfour or more Red Ink entries. The Division Bench held thatthe use of the expression “four or more Red Ink entries” andalso the use of the word “may” in Clause-5 indicates thatdiscretion is vested in the disciplinary authority to decide asto whether the person who is found to have received the RedInk entries ought to be discharged from service or not. It washeld that merely because man receives four Red Ink entries,discharge is not automatic. Discretion is given to theCommanding Officer to consider discharge. The severity andthe nature of the misconduct will have to be weighed beforerecourse is taken to exercise power conferred by Clause-5 ofthe ROI.It is settled position in law that when discretion is vestedin an authority to exercise particular power, the same isrequired to be exercised with due diligence, and in reasonableand rational manner. Since order of discharge and theprocedure preceding such discharge is of summary nature,it is necessary that the order of discharge is speaking orderand must indicate how and in what manner the authorityexercised the discretionary power. The Hon’ble Supreme Courtin catena of decisions has reiterated time and again thenecessity and importance of giving reasons by the authorityin support of its decision. It has been held that the face of anorder passed by quasi-judicial authority or even by anadministrative authority affecting the rights of parties mustspeak. The affected party must know how his case or defencewas considered before passing the prejudicial order. Comingback to the three impugned orders, it is evident that none ofthe orders disclose how the responses of the petitioners were

considered and why discharge was necessary. As held bythe Division Bench just because the petitioners incurred fourRed Ink entries, it does not ipso facto mean that they are to bedischarged from the Assam Rifles. As pointed out by theDivision Bench, the authority vested with the power todischarge must examine the response of the concerned personand weigh the same vis-à-vis the severity of the misconductwhich led to incurring of the Red Ink entries in the servicerolls. Such examination is not discernible from the impugnedorders.

Having regard to the above, this Court is of the view that theimpugned orders of discharge cannot be sustained.Accordingly, the orders of discharge of the petitioners are setaside and quashed. Matter is remanded back to the respondentsfor fresh decision in the light of the Division Bench judgmentin Balwant Singh (Supra) and the discussions made above.Respondents may consider imposition of any lesser punishmenton the petitioners balancing the interest of the organizationand also that of the petitioners subject to assessment ofphysical fitness of the petitioners.

Writ petitions are allowed to the above extent. No costs.”

6. The Union of India being dissatisfied with the judgment andorder passed by the learned Single Judge referred to above challengedthe same by filing the writ appeal before the Division Bench of theGuwahati High Court. The Division Bench allowed the writ appeal filedby the Union of India and thereby set aside the order passed by thelearned Single Judge referred to above. The Appeal Court while allowingthe writ appeal filed by the Union of India essentially took the view thatneither the Assam Rifles Act, 1941 under which the decision to dischargewas taken nor the Assam Rifles Act, 2006 requires the authority to recordany reasons or the satisfaction in the order of discharge itself. The AppealCourt took the view having regard to the provision of Clause 5 of theROI 1/2004 that the Commandant has the discretion to discharge aperson who has four or more Red Ink entries. All that is required is toserve notice on the individual affording an opportunity to explain. Theprovision of Clause 5 does not require the Commandant to record thereasons of satisfaction in the order of discharge.

A7. Being dissatisfied with the impugned order passed by the AppealCourt of the High Court, the appellant herein (original writ petitioner) ishere before this Court with the present appeal.

SUBMISSIONS:

8. The learned Counsel appearing for the appellant vehementlyBsubmitted that the High Court committed serious error in passing theimpugned order. He would submit that there was no good reason for theAppeal Court to disturb the order passed by the learned Single Judge ofthe High Court.

9. The learned Counsel has broadly classified his submissions asCunder:

(a) Discharge is not mandatory even after four Red entries.

(b) There is difference between cases of major misconductsand minor misconducts.

(c) In the order of discharge no reasons have been assigned.

(d) The plea of malafide raised against the authority has not beenconsidered.

10. The learned Counsel appearing for the appellant invited theattention of this Court to the Record Office Instruction No. 4 of 1999Ewhich provides for the procedure for discharge/retirement from serviceof Assam Rifles personnel. The same reads thus:

RECORDOFFICEINSTRUCTIONNO.4/99

PROCEDURE FOR DISCHARGE/RETIREMENT FROMFSERVICE ASSAM RIFLES PERSONNEL

1. comprehensive instruction, containing all existing orderson the subject has been compiled in the form of this ROI forguidance and strict compliance by all concerned.***** ***** *****

***** ***** *****

6. Discharge/Disposal of Undesirable/Inefficient Personnel

Chapter VIII, Rules 24 of the Assam Rifles Manual invests

powers to the Commandant of Assam Rifles Battalions to‘dismiss’ or ‘remove’ any member of the Assam Rifles belowthe rank of Nb/Sub. This power may be invoked by aCommandant in case where person has got four red inkentries. As far as practicable, however, discharge under thisprovision should be avoided as personnel sent on dischargeon this account are not eligible for pension. In case it isnecessary to send an individual on discharge under thisprovision, notice will be served on the individual to giveopportunity to explain his case. Complete case will beforwarded to Range HQ alongwith the notice and replyreceived from the individual, for the approval of the DIGAR.The documents will be sent to this Directorate Records (Doc)/UPAO (And the individual to Depot Coy (No.1 Constr Coy))……

11. The learned Counsel also invited the attention of this Court tothe Assam Rifles Manual. The relevant clause of the Assam RiflesManual reads thus:

ASSAMRIFLESMANUAL

“24. Commandant may dismiss any member of the AssamRifles below the rank of Jemadar.

The word “dismissal” should be restricted to the case of anofficer removed with disgrace. In other cases

“removal” is the proper word to be used. “dimissed” officermay not be re-employed.

Dismissal is the last resource, and should not ordinarily beordered until all other means of punishment have been triedand failed. For incorrigible offenders; confirmed badcharacters, confirmed drunkards, for offences involving moraldisgrace, fraud and dishonesty, continued and willfuldisobedience or neglect, it is generally the only appropriatepunishment”

12. The principal argument of the learned Counsel appearing forthe appellant is that the discharge from service is not automatic ormandatory after four Red entries. Four Red entries are only minimumrequirement and cannot be the sole ground to order discharge. It is arguedthat the Rule itself states that the power “may be invoked” and that “as

Afar as practicable, however, discharge under this provision should beavoided as the Personnel sent on discharge on this account are noteligible for pension”. The submission is that the provision can be pressedinto service only when “continued and willful disobedience or neglect”comes on record.B13. The learned Counsel with view to fortify his aforesaidsubmission placed strong reliance on the decisions of this Court in thecase 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.

C14. In such circumstances referred to above, the learned Counselprays that there being merit in his appeal the same be allowed and theimpugned judgment and order passed by the High Court may be setaside including the order of discharge and the appellant may be orderedto be reinstated in service with all Full Back Wages and all other statutorybenefits.D

15. On the other hand, this appeal has been vehemently opposedby the learned Counsel appearing for the respondents. The learnedCounsel would submit that no error not to speak of any error of lawcould be said to have been committed by the High Court in passing theimpugned judgment and order. She would submit that the High CourtEwas absolutely justified in taking the view that it was not necessary forthe authority concerned to assign any reasons for the purpose of passingan order of discharge. The four Red Ink entries were sufficient for theauthority to arrive at the subjective satisfaction that the appellant hereinwas not fit to be retained in service and more particularly being Riflemanwith the Assam Rifle.F

16. It is argued that before passing the order of discharge, noticeto show cause was issued to the appellant herein and an opportunity ofhearing was given to him.

17. The learned Counsel submitted that all that the appellant didGwas to tender an apology for his mistakes. No other ground was raisedin his reply to the show cause notice except that he hails from poorfamily and his parents and children are dependent on him. Having regardto the reply the authority concerned rightly formed an opinion that theappellant was habitual offender. She invited the attention of this Courtto Para 6 of the impugned judgment of the High Court wherein the HighH

Court has noted that the appellant failed to offer any explanation in thereply to the show cause notice except the family circumstances.

18. The learned Counsel further submitted that the decision of thisCourt in the case of Union of India v. Balwant Singh, (2015) 14 SCC389, has not been referred to in the case of Virendra Kumar Dubey(supra).

19. In the last the learned Counsel placed reliance on the decisionof this Court in the case of Satgur Singh v. UOI & Ors. reported in(2019)9 SCC 205, more particularly, the observations made in Para 6and 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 28-12-1988 deals with an enquiry whichis not court of inquiry into the allegations against an armypersonnel. Such enquiry is not like departmental enquiry butsemblance of the fair decision-making process keeping in viewthe reply filed. The court of inquiry stands specificallyexcluded. What kind of enquiry is required to be conductedwould depend upon facts of each case. The enquiry is not aregular enquiry as Para 5(a) of the Army Instructions suggeststhat it is preliminary enquiry. The test of preliminary enquirywill be satisfied if an explanation of personnel is submittedand upon consideration, and order is passed thereon. In thepresent case, the appellant has not offered any explanationin the reply filed except giving vague family circumstance.Thus, he has been given adequate opportunity to put hisdefence. Therefore, the parameters laid down in Para 5(a) ofthe Army Instructions dated 28-12-1988 stand satisfied….

7. In reply to the show-cause notice, the appellant has notgiven any explanation of his absence from duty on sevenoccasions. He has been punished on each occasion forrigorous imprisonment ranging from 2 days to 28 days. Amember of the Armed Forces cannot take his duty lightly andabstain from duty at his will. Since the absence of duty wason several different occasions for which he was imposedpunishment of imprisonment, therefore, the order of dischargecannot be said to be unjustified. The Commanding Officerhas recorded that the appellant is habitual offender. Such

Afact is supported by absence of the appellant from duty onseven occasions.”

20. In such circumstances referred to above the learned Counselappearing for the respondents pray that there being no merit in this appeal,the same may be dismissed.

BANALYSIS

21. Having heard the learned counsel appearing for the partiesand having gone through the materials on record, the only question thatfalls for our consideration is whether the Division Bench of the HighCourt committed any error in passing the impugned order?

22. We must first look into the decision of this Court rendered inthe case of Virendra Kumar Dubey (supra). In the said case, the appellantVirendra Kumar Dubey was enrolled as an operator in the corps of Artilleryof Indian Army on 27.09.1980. Having served in that capacity for nearlytwelve years, he received show cause notice pointing out that he hadDbeen awarded four Red Ink entries for various offences set out in thenotice and that Virendra Kumar Dubey had become habitual offender,thereby setting bad example of indiscipline in the army. Virendra KumarDubey ultimately came to be discharged from service by an order dated14.12.1992. He preferred departmental appeal, which failed. He,Ethereafter, went to the High Court of Madhya Pradesh at Jabalpur,however, the High Court declined to entertain the petition on the groundof lack of territorial jurisdiction. He, thereafter, preferred an appealbefore the Appeal Court and the writ appeal was ultimately ordered tobe transferred to the Armed Forces Tribunal Regional Bench, Lucknow.The Tribunal ultimately dismissed the transferred petition which gaveFrise to the appeal before this Court.

23. This Court in Virendra Kumar Dubey (supra) held as under:

“19. It is common ground that red ink entry may be earnedby an individual for overstaying leave for one week or forsix months. In either case the entry is red ink entry andwould qualify for consideration in the matter of discharge. Iftwo persons who suffer such entries are treated similarlynotwithstanding the gravity of the offence being different, itwould be unfair and unjust for unequals cannot be treatedas equals. More importantly, person who has suffered foursuch entries on graver misconduct may escape discharge

which another individual who has earned such entries forrelatively lesser offences may be asked to go home prematurely.The unfairness in any such situation makes it necessary tobring in safeguards to prevent miscarriage of justice. That isprecisely what the procedural safeguards purport to do inthe present case.”

Taking the aforesaid view, this Court ultimately passed the followingorder:

“21. In the result this appeal succeeds and is hereby allowed.The order of discharge passed against the appellant is herebyset aside. Since the appellant has already crossed the age ofsuperannuation, interest of justice will be sufficiently servedif we direct that the appellant shall be treated to have been inservice till the time he would have completed the qualifyingservice for grant of pension. No back wages shall, however,be admissible. Benefit of continuity of service for all otherpurpose shall be granted to the appellant including pension.Monetary benefits payable to the appellant shall be releasedexpeditiously but not later than four months from the date ofthis order. No Costs.”24. In Vijay Shankar Mishra (supra), the appellant therein wasenrolled in the Army Medical Corps on 23.06.1984. On 03.10.1997, anotice to show cause was issued to him to explain why he should notbe discharged from service under Rule 13(3) Table (III)(v) of the ArmyRules, 1954 on the ground that his conduct and service had not beenfound satisfactory. He ultimately came to be discharged from service.By that time, he had rendered service of thirteen years and eight months.The minimum qualifying service for earning pension under Rule 132 ofthe Pension Regulations for the Army ,1961 is fifteen years. He filed awrit petition before the Madhya Pradesh High Court which was dismissedon 21.11.2006. In appeal, Division Bench directed reconsideration ofthe case of the appellant. Pursuant to the order of the High Court, anorder was issued rejecting his claim for pension on the ground that hehad not put in fifteen years of service and had been discharged for thereason that he was unlikely to become an efficient soldier. He againfiled writ petition before the Madhya Pradesh High Court which wastransferred to the Armed Forces Tribunal. The Tribunal dismissed thematter. Thereafter, Mishra came before this Court. The very same

Aargument was canvassed before this Court on behalf of Vijay ShankarMishra that the mere fact that he had been punished while in service onnine occasions inclusive of six Red entries was no ground to exercisethe power under the relevant rule for the purpose of discharge. TheCourt relied upon Vijay Shankar Mishra (supra) and ultimately held asunder:B

“9. In the present case, it is evident that there was noapplication of mind by the authorities to the circumstanceswhich have to be taken into consideration while exercisingthe power under Rule 13. The mere fact that the appellanthad crossed the threshold of four red entries could not be aground to discharge him without considering other relevantcircumstances including: (i) the nature of the violation whichled to the award of the red ink entries; (ii) whether the appellanthad been exposed to duty in hard stations and to difficultliving conditions; (iii) long years of service, just short ofcompleting the qualifying period for pension. Even after theMadhya Pradesh High Court specifically directedconsideration of his case bearing in mind the provisions ofthe circular, the relevant factors were not borne in mind. Theorder that was passed on 26-2-2007 failed to consider relevantand germane circumstances and does not indicate dueapplication of mind to the requirements of the letter of ArmyHeadquarters dated 28-12-1988 and the Circular dated10-01-1989.

10. For these reasons, we are of the view that the Armed ForcesTribunal was in error in rejecting the application. The ordersof the Tribunal dated 23-9- 2010 Vijay Shankar Mishra V.Union of India, 2010 SCC OnLine AFT 1127 and 15-9-2011are set aside. Since the appellant would have attained the ageof superannuation, the ends of justice would be met if he istreated to have been in service till the time he would havecompleted the qualifying service for grant of pension. No backwages shall however be admissible. The benefit of continuityof service for all other purposes shall be granted to theappellant including pension. The monetary benefits payableto the appellant shall be released within period of fourmonths from the date of this order.”

25. In both the aforesaid decisions, this Court took intoconsideration the fact that there was no application of mind by the authorityto the relevant aspects which were taken into consideration whileexercising the power under Rule 13 of the Rules. In both the aforesaidcases, this Court took the view that the mere fact that the Personnel hadcrossed the threshold of few Red Ink entries could not have been madea ground to discharge them without considering other relevantcircumstances, more particularly, the nature of the violation which led tothe award of the Red Ink entries. The crux of the ratio of the decisionof this Court in the case on Veerendra Kumar Dubey (supra) is thatthe only safeguard against arbitrary exercise of power by the authoritywould be to ensure that there is an enquiry, howsoever, summary and afinding about the defence set up by the individual besides considerationof the factors made relevant under the procedure.

26. The reliance placed by the learned Counsel appearing for therespondents on the decision of this Court in the case Satgur Singh (supra)is of no avail. It was case in which the appellant failed to furnish anyexplanation of his absence from duty on seven occasions. On facts, thisCourt took the view that as the absence from duty was on severaldifferent occasions for which he was imposed punishment ofimprisonment, the order of discharge could not be said to unjustified.

27. We may elaborate the aforesaid little further.

28. Where an Act or the statutory rules framed thereunder left anaction dependent upon the opinion of the authority concerned, by somesuch expression as ‘is satisfied’ or ‘is of the opinion’ or ‘if it has reasonto believe’ or ‘if it considered necessary’, the opinion of the authority isconclusive, (a) if the procedure prescribed by the Act or rules forformation of the opinion was duly followed, (b) if the authority actedbona fide, (c) if the authority itself formed the opinion and did not borrowthe opinion of somebody else and (d) if the authority did not proceed ona fundamental misconception of the law and the matter in regard towhich the opinion had to be formed.

29. The action based on the subjective opinion or satisfaction, inour opinion, can judicially be reviewed first to find out the existence ofthe facts or circumstances on the basis of which the authority is allegedto have formed the opinion. It is true that ordinarily the court should notinquire into the correctness or otherwise of the facts found except in

Acase where it is alleged that the facts which have been found existingwere not supported by any evidence at all or that the finding in regard tocircumstances or material is so perverse that no reasonable man wouldsay that the facts and circumstances exist. The courts will not readilydefer to the conclusiveness of the authority’s opinion as to the existenceof matter of law or fact upon which the validity of the exercise of theBpower is predicated.

30. The doctrine of reasonableness thus may be invoked. Wherethere are no reasonable grounds for the formation of the authority’sopinion, judicial review in such case is permissible. [See Director ofPublic Prosecutions v. Head, (1959) AC 83 (Lord Denning).C

31. When we say that where the circumstances or material orstate of affairs does not at all exist to form an opinion and the actionbased on such opinion can be quashed by the courts, we mean that ineffect there is no evidence whatsoever to form or support the opinion.The distinction between insufficiency or inadequacy of evidence andDno evidence must of course be borne in mind. finding based on noevidence as opposed to finding which is merely against the weight ofthe evidence is an abuse of the power which courts naturally are loath totolerate. Whether or not there is evidence to support particular decisionhas always been considered as question of law. [See Reg. v. GovernorEof Brixton Prison, Armah, Ex Parte, (1966) 3 WLR 828 at p. 841].32. It is in such case that it is said that the authority would bedeemed to have not applied its mind or it did not honestly form its opinion.The same conclusion is drawn when opinion is based on irrelevant matter.[See Rasbihari v. State of Orissa, AIR 1969 SC 1081].

33. In the case of Rohtas Industries Ltd. v. S.D. Agarwal andanother, AIR 1969 SC 707, it was held that the existence of circumstancesis condition precedent to form an opinion by the Government. Thesame view was earlier expressed in the case of Barium ChemicalsLtd. and another v. Company Law Board and others, AIR 1967 SC295.G

34. Secondly, the court can inquire whether the facts andcircumstances so found to exist have reasonable nexus with the purposefor which the power is to be exercised. In other words, if an inferencefrom facts does not logically accord with and flow from them, the Courtscan interfere treating them as an error of law. [See Bean v. Doncaster

Amalgamated Collieries, (1944) 2 All ER 279 at p. 284]. Thus, thisCourt can see whether on the basis of the facts and circumstances found,any reasonable man can say that an opinion as is formed can be formedby reasonable man. That would be question of law to be determinedby the Court. [See Farmer v. Cotton’s Trustees, 1915 AC 922]. TheirLordships observed:

“……….. in my humble judgment where all the material factsare fully found, and the only question is whether the facts aresuch as to bring the case within the provisions properlyconstrued of some statutory enactment, the question is one oflaw only.”

[See also Muthu Gounder v. Government of Madras, (1969)82 Mad LW 1].

35. Thirdly, this Court can interfere if the constitutional or statutoryterm essential for the exercise of the power has either been misappliedor misinterpreted. The Courts have always equated the jurisdictionalreview with the review for error of law and have shown their readinessto quash an order if the meaning of the constitutional or statutory termhas been misconstrued or misapplied. [See Iveagh (Earl of) v. Ministerof 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 case where thepower is exercised for improper purpose. If power granted for onepurpose is exercised for different purpose, then it will be deemed thatthe power has not been validly exercised. If the power in this case isfound to have not been exercised genuinely for the purpose of takingimmediate action but has been used only to avoid embarrassment orwreck personal vengeance, then the power will be deemed to have beenexercised improperly. [See Natesa Asari v. State of Madras, AIR 1954Mad 481].

37. Fifthly, the grounds which are relevant for the purpose forwhich the power can be exercised have not been considered or groundswhich are not relevant and yet are considered and an order is based onsuch grounds, then the order can be attacked as invalid and illegal. Inthis connection, reference may be made to Ram Manohar v. State ofBihar, AIR 1966 SC 740; Dwarka Das v. State of J. and K., AIR1957 SC 164 at p. 168 and Motilall v. State of Bihar, AIR 1968 SC

A1509. On the same principle, the administrative action will be invalidatedif it can be established that the authority was satisfied on the wrongquestion: [See (1967) 1 AC 13].

38. At this stage, it may be apposite to refer to the Assam RiflesRegulation, 2016. We are conscious of the fact that these regulationsBdo not apply to the case on hand as the order of discharge is of 2004.However, we deem fit to reproduce the relevant regulations, moreparticularly, 107(c) and 108 respectively, as these regulations seem tohave been enacted and brought into force having regard to the ratio ofthe decision of this Court in the case of Veerendra Kumar Dubey(supra). Regulation 107(c) reads thus:C“107. Removal of undesirable, incorrigible and inefficientSubordinate Officers, Under Officers and other enrolledpersons.

(a) …………

D(b) …………

(c) The procedure for dismissal/discharge of unsuitable subordinateofficer/under officer/enrolled person will be as under:-

(i) As provided under Rules 24 and 25 of Assam Rifles Rules,the person concerned, subject to the exception mentionedEtherein, shall be served with Show Cause Notice against thecontemplated action.

(ii) Preliminary enquiry. Before recommending discharge ordismissal of an individual the authority concerned will ensurethat an impartial enquiry (not necessarily Court of Inquiry)Fhas been made into the allegations against him and that he hashad adequate opportunity of hearing.

(iii) Rule 24 of the Assam Rifles confers powers on theCommandants of the Assam Rifles Units/ establishment todischarge any subordinate officer/under officer/enrolled personsof Assam Rifles. However, the power of discharge by theCommandant shall be exercised with prior approval of immediatesuperior officer not below Sector Commander in case of UnderOfficers and other enrolled person and that of Inspector GeneralAssam Rifles in case of Subordinate Officers.

(iv) After compliance of the provisions enumerated above, ashow cause notice will be served on the individual affordinghim an opportunity to explain his case. Thereafter, the completecase file will be forwarded to next superior authority/SectorHeadquarters for approval of the superior authority/SectorCommander.

(v) The authority competent to sanction the dismissal/dischargeof the individual will before passing orders re-consider the casein the light of the individual reply to the show cause notice. Aperson who has been served show cause notice for proposeddismissal may be ordered to be discharged if it is consideredthat discharge would meet the end of justice. If the competentauthority accepts the reply of the individual to the show causenotice as entirely satisfactorily, he will pass orders accordingly.

108. Discharge on ground of red ink entries. SubordinateOfficer, Under Officer or other enrolled person who has incurredfour or more red ink entries may be recommended for dischargefrom the service on the ground of unsuitability, subject to thefollowing conditions:-

(a) After an individual has earned three red ink entries, he shallbe warned in writing that his service will be liable to beterminated by the competent authority if he earns one morered ink entry. Such warning letter shall be issued to him bythe concerned Sector Commander through Commandant ofthe individual.

(b) Each case of individuals having earned four or more redink entries shall be examined on its own merit depending uponthe nature and gravity of the offences and the aggravatingcircumstances under which these were committed. Theauthority competent to sanction discharge under this para shallrecord reasons for ordering the discharge, or otherwise.

(c) person who has put in eighteen years of qualifying servicefor pension may be allowed to complete the required qualifyingservice for grant of pension before he is recommended fordischarge on ground of four or more red ink entries, unlessthere are compelling reasons to sanction his discharge before

completion of the qualifying service for pension, which mustbe specified in the discharge order.

(d) Before taking the final decision to order the discharge, theperson concerned shall be informed through show cause noticethat his retention in the service is considered undesirable forhaving incurred four or more red ink entries, thereby also callingupon him to show cause as to why he should not be dischargedfrom the service for being considered unsuitable for the servicein the Assam Rifles. The individual shall be given minimumfifteen days, after receipt of Show Cause Notice, to submit hisreply.

(e) After receipt of the individual’s reply, if any, the case shallbe put up to the authority competent to sanction the dischargealongwith recommendations of the Commandant of the unitconcerned. Before passing the discharge order, the authoritycompetent to sanction the discharge under this para may seekthe advise of the Law Officer concerned.

(f) An order of discharge under this para shall be passed byan officer not less than Sector Commander in the case ofUnder Officer or other enrolled persons and an officer not lessthan Inspector General Assam Rifles/Additional DirectorGeneral Assam Rifles in case of Subordinate Officers.”

39. Having regard to the nature of the misconduct alleged againstthe appellant we are of the view that the ends of justice would be metif we set aside the order of discharge and treat the appellant herein tohave been in service till the time, he could be said to have completed thequalifying service for grant of pension. We are inclined to pass such anorder with view to do substantial justice as there is nothing on recordto indicate that the nature of the misconduct leading to the award of fourRed Ink entries was so unacceptable that the competent authority hadno option but to direct his discharge to prevent indiscipline in the force.

40. The order of discharge passed against the appellant herein ishereby set aside. The appellant shall be treated to have been in servicetill the time he would have completed the qualifying service for grant ofpension. We are informed that only six months were left for the qualifyingservice to be completed before the appellant came to be discharged. Noback wages shall, however, be admissible. The benefit of continuity of

service for all other purpose shall be granted to the appellant includingpension. The monetary benefits payable to the appellant shall be releasedexpeditiously but not later than four months from the date of this order.

41. The appeals are allowed in the aforesaid terms. No order asto costs.

42. Pending application, if any, stands disposed of.

Devika Gujral

Appeals allowed.

(Assisted by : Rahul Rathi, LCRA)