ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- TA 111 of 2012 (arising out of SWP 165 of 2009)

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1 1 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- TA 111 of 2012 (arising out of SWP 165 of 2009) Mustaq Ahmad Sheikh Petitioner(s) Vs Union of India and others Respondent(s) -.- For the Petitioner (s) : Mr. Bhim Sen Sehgal, Advocate For the Respondent(s) : Mr. SK Sharma, Sr. PC. Coram: Justice Prakash Krishna, Judicial Member. Air Marshal (Retd) SC Mukul, Administrative Member. -.- ORDER The SWP No. 165 of 2009 filed in the High Court of Jammu and Kashmir at Srinagar has been received on transfer to this Tribunal for adjudication and registered as TA 111 of 2012 and is taken up under Section 14 of the Armed Forces Tribunal Act, By this petition, the petitioner prays for the following reliefs: i) Certiorari, the impugned order of discharge dated issued by respondent No.3 be quashed. ii) Mandamus, commanding the respondents to allow the petitioner to rejoin his duties and continue him in service and also to pay him the salary increments, emoluments and all other service benefits including promotion along with all consequential benefits. iii) Mandamus, commanding the respondents not to fill up the post of Rifle Man on the basis of the impugned order against which the petitioner was working but to treat him to be in service.

2 2 iv) Any other writ, order or discretion which this Hon ble Court deem fit and proper under the facts and circumstances of the case be also passed in favour of the petitioner and against the respondents. 3. As per the averments made in the petition, on 29 th October, 1995, the petitioner was enrolled in Jammu & Kashmir Light Infantry Regiment and after completion of basic training, posted to 12 th Battalion of Jammu & Kashmir Light Infantry Regiment w.e.f He was sent on Extra Regimental Employment (ERE) to 31 st Rashtriya Rifle and Jammu & Kashmir Light Infantry Centre. After posting back to his parent Unit i.e. 12 th Battalion Jammu and Kashmir Light Infantry Regiment, on he was discharged from service under Army Rule 13(3) Item III (V). The cause of discharge was Service no longer required. He was found to be habitually remaining absent from duty and having been awarded punishment for overstaying on leave six times during his service carrier and to have earned number of red ink entries in his service record. 4. The petitioner questions the discharge order dated on the grounds that the order has been passed in a mechanical manner and in colourable exercise and abuse of the power available to respondent No.3 under Rule 13(3) Item III (V). The respondents are said to have failed to issue show cause notice to the petitioner before the impugned order. The petitioner also questions competence of respondent No.3 to issue the discharge order and alleges double jeopardy on the ground that in addition to his discharge, he was also sentenced to imprisonment. The discharge order is also questioned on the ground of proportionality and the order being stigmatic in character. The counsel for the petitioner during the course of arguments contended that since the petitioner s wife was ill during leave period, he could not join the duty in time.

3 3 5. The respondents apart from opposing the writ petition on the grounds set out in their reply bring out its maintainability on the ground that the petitioner has equally efficacious remedy available under the Army Act and Rules made there under to challenge the order impugned in the present petition. The petition is liable to be dismissed on this ground alone. 6. On merits, it is pleaded that the petitioner was enrolled in to the Army (Jammu & Kashmir Light Infantry Regiment) on 29 th October, He remained posted at various Extra Regimental Employment Units. He was posted back to his parent Unit and discharged from service under Army Rule 13 (3) Item III (V) being service no longer required w.e.f. 16 th February, 2008 on account of having incurred more than four red ink entries. He was habitual offender of overstaying leave/absenting himself without leave. During a short span of 12 years, 3 months and 17 days of service, he was awarded the six Red Ink entries in his conduct sheet. 7. The respondents during their arguments brought out that the plea taken by the learned counsel for the petitioner that the petitioner s wife was ill and thus he could not join the duty in time does not hold water as the petitioner had never taken this aspect of the matter during summary trial resulting in annotation of red ink entries in his conduct sheet. 8. Accordingly to maintain the discipline in the battalion and in the organizational interest, under the provisions of Army Rule 13(3) Item III (V) read in conjunction with Integrated HQ MoD (Army) letter dated 28 th December, 1988, further retention of the petitioner in service was not considered and he was discharged from service on account of service no longer required w.e.f. 16 th February, 2008 after having served a show cause notice by Commander 36 Infantry Brigade vide letter dated 14 th January, Heard the learned counsel for the parties and perused the record.

4 4 10. The learned counsel for the petitioner challenges the discharge order dated on the ground that the order has been passed in a mechanical manner and in colourable exercise and abuse of the power available to respondent No.3 under Rule 13(3) Item III(V). The respondents have failed to issue show cause notice before passing the impugned order. The petitioner alleges double jeopardy on the ground that in addition to his discharge he was also sentenced to imprisonment for earlier punishments. The discharge order is stigmatic in character. The counsel for the petitioner heavily placed reliance on a Division Bench judgment of the Punjab & Haryana High Court in case Jagraj Singh v. Union of India and others (CWP No of 2012 ) decided on 12 th April, 2013 in support of his contention. 11. The respondents in their arguments relied upon this Tribunal s judgment in the case of OA 362 of 2011 rendered on named Shinghara Singh Vs UoI, 12. Coming first to the question of red ink entries, we find that the petitioner during a short span of 12 years, 3 months and 17 days of service was awarded six Red Ink entries which are not disputed by the petitioner. The details are as under: a) Awarded 14 days pay fine by CO 12 JAK LI for an offence under Army Act Section 39(b) without sufficient cause overstaying leave granted to him on 4 th October, b) Awarded 28 days RI by CO, 12 JAK LI overstaying leave granted to him on 17 Nov, c) Awarded 07 days RI by Administrative Battalion Command, JAK LI Regt Centre for an offence under Army Act Section 39(a), absenting himself without leave on 24 Jun 2003.

5 5 d) Awarded 14 days RI by CO, 12 JAK LI for an offence under Army Act section 39(b) without sufficient cause overstaying leave granted to him on 18 Jan e) Awarded 28 days RI by CO, 12 JAK LI for an offence under Army Act Section 39 (a) absenting himself without leave on 10 May, 2005 f) Awarded 07 days RI by Officer Commanding Officer, 12 JAK LI for an offence under Army Act Section 39(b) without sufficient cause overstaying leave granted to him on 24 Dec The total ineffective period works out to 144 days. Thus, the total reckonable service for consideration of pension works out to 11 years 328 days. 14. Now coming to the question of discharge of the petitioner under the provisions of Item III (v) of the Table annexed to Rule 13(3) of Army Rules, 1954 as a habitual offend due to having earned seven red ink entries, we find that the petitioner had been absenting himself regularly without leave without any justifiable cause. It is not in dispute that he was tried summarily by then Commanding Officers and awarded punishments which were not challenged and attained finality. Further he had been advised several times not to commit offences and mend his ways but he never paid any attention to the advice of his superiors and continued with committing offences. Since he had become a perpetual offender, his retention in the service was considered inadvisable as he was setting bad example for others in the Unit. 15. Guidelines laid down by the Army HQ for discharge of unsuitable or undesirable soldiers are embodied in letter dated which is reproduced below: A/13210/159/AG/PS 2 (c) 28 Dec 88 PROCEDURE FOR THE REMOVAL OF UNDESIRABLE AND INEFFICIENT

6 6 JCOs, WOs AND OR. 1. The procedure outlined in the succeeding paragraphs will be followed for the disposal of undesirable and inefficient JCOs, WOs and OR. JCOs, WOs and OR Who Have Proved Undesirable 2.(a) An individual who has proved himself undesirable and whose retention in t he service is considered inadvisable will be recommended for discharge/dismissal. Dismissal should only be recommended where a court martial, if held, would have awarded a sentence not less than dismissal, but trial by court martial is considered impracticable or inexpedient. In other cases, recommendations will be for discharge. (b) Should it be considered that a JCO s discharge/dismissal is not warranted and that transfer will meet the case, he will be transferred in his substantive rank and not recommended for further promotion and/or increment of pay until he proves his fitness for promotion and/or increment of pay in his new unit. (c) Should it be considered that a WO or NCO s discharge/dismissal is not warranted and that transfer will meet the requirement of the case, he will be transferred. If the merits of the case so warrant, he may be reduced to lower grade or rank or the ranks under AA Sec 20(4) by an officer having powers not l ess than a Bde or equivalent Comdr, before he is transferred. A WO reduced to the ranks shall not be required to serve in the ranks. AA Sec 20(5) refers. (d) Should it be considered that an acting NCO s discharge/dismissal is not warranted and that transfer will meet the requirement of the case, he may be reverted by his CO to his substantive rank and if he has no substantive NCO rank then he may be reverted to the ranks under AA Sec 20(6) before he is transferred. (e) In cases where it is considered that all or part of JCOs/WO s/or s pension should be withheld, this fact will be noted on the recommendation for discharge. JCOs WOs and OR Who Have Proved Inefficient 3. (a) Before recommending or sanctioning discharge, the following points must be considered:- (i)if lack of training is the cause of his inefficiency, arrangements will be made for his further training. (ii) If an individual has become unsuitable in his arm/service through no fault of his own, he will be recommended for suitable extra-regimental employment. (b) Should it be decided to transfer a JCO, he may be transferred in his acting/ substantive rank according to the merits of the case, and will not be recommended for further promotion and/or increment of pay until he proves his fitness for promotion and/or increment of pay in his new unit. (c ) Prior to transfer, if such a course is warranted on the merits of the case, a WO or an NCO may be reduced to one rank lower than his substantive rank under Army Act Section 20(4). Procedure for dismissal/discharge of Undesirable JCOs/WOs/OR 4. AR 13 and 17 provide that a JCO/WO/OR whose dismissal or discharge is contemplated will be given a show cause notice. As an exception to this, service

7 7 of such person may be terminated without giving him a show cause notice provided the competent authority is satisfied that it is not expedient or reasonably practicable to serve such a notice. Such cases should be rare, eg, where the interests of the security of the State so require. Where the serving of a show cause notice is dispensed with, the reasons for doing so are required to be recorded. See provision to AR Subject to the foregoing, the procedure to be followed for dismissal or discharge of a person under AR 13 or AR 17, as the case may be, is set out below:- (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 Inquiry) 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 that the extreme step of termination of the individual s service is warranted on the merits of the case. (b) Forwarding of Recommendations. The recommendation for dismissal or discharge will be forwarded, through normal channels, to the authority competent to authorise the dismissal or discharge, as the case may be, along with a copy of the proceedings of the enquiry referred to in (a) above. (c) Action by Intermediate Authorities. Intermediate authorities through whom the recommendations pass will consider the case in the light of what is stated in (a) above and make their own recommendations as to the disposal of the case. (d) Action by Competent Authority. The authority competent to authorise the dismissal or discharge of the individual will consider the case in the light of what is stated in (a) above. If he is satisfied that the termination of the individual s service is warranted, he should direct that a show cause notice be issued to the individual in accordance with AR 13 or AR 17 as the case may be. No lower authority will direct the issue of a show cause notice. The show cause notice should cover the full particulars of the cause of action against the individual. The allegations must be specific and supported by sufficient details to enable the individual to clearly understand and reply to them. A copy of the proceedings of the enquiry held in the case will also be supplied to the individual and he will be afforded reasonable time to state in writing any reasons he may have to urge against the proposed dismissal or discharge. (e) Action on Receipt of the Reply to the Show Cause Notice. The individual s reply to the show cause notice will be forwarded through normal channels to the authority competent to authorise his dismissal/ discharge together with a copy of each of the show cause notice and the proceedings of the enquiry held in the case and recommendations of each forwarding authority as to the disposal of the case. (f) Final Orders by the Competent Authority. The authority competent to sanction the dismissal/discharge of the individual will before passing orders reconsider the case in the light of the individual s reply to the show cause notice. A person who has been served with a show cause notice for proposed dismissal may be ordered to be discharged if it is considered that discharge would meet the requirements of the case. If the competent authority considers that termination of the individual s service is not warranted but any of the actions referred to in (b) to (d) of Para 2 above would meet the requirements of the case, he may pass orders accordingly. On the other hand, if the competent authority accepts the reply of the individual to the show cause notice as entirely satisfactory, he will pass orders accordingly. Note:-

8 8 1. As far as possible, JCO, WO and OR awaiting dismissal orders will not be allowed to mix with other personnel. 2. Discharge from service consequent to four red ink 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. Such discharge should be approved by the next higher Commander. (g) Carrying Out Dismissal/Discharge. On receipt of the orders of the competent authority for dismissal/ discharge, all action to effect dismissal/ discharge will be taken by the Regt Centre/ Record Office, or the unit, as the case may be. Procedure for Discharge of Inefficient JCOs/WOs/OR. 6. Such JCO, WO and OR will remain with their unit and will be dealt with as Paras 4 and 5 above in so far as it relates discharge from the service. 7. This letter supersedes the provisions of this HQ letter of even number dated 23 Aug 65 and 14 Mar For deciding the issues arising in the petition we may take help of detailed judgment of this Tribunal in the case of OA 362 of 2011 rendered on named Shinghara Singh Vs Union of India & Ors, wherein the import of above referred letter dated 28 th December, 1988, has been thoroughly discussed, which brings out that Having examined the related issues raised by the petitioners, we proceed to examine the fundamental argument of non compliance of holding an inquiry as contained in the policy letter of In so far as the red ink entries are concerned, the fact of having incurred red ink entries is not in dispute. These were earned after complying with the statutory provisions, they were not challenged at the relevant time of award under the relevant statutory provisions, these were not assailed at the time of replying to the show cause notice and were accepted as such. They had thus attained finality well before these petitions were filed. We find no grounds to go into the awards resulting in these red ink entries. This view was clearly held in the recent recent judgment of Division Bench of Delhi High Court dated , passed in W.P.(C) No.5747/2011 in Om Lat Vs. Union of India & Ors, Delhi High Court in the cases of Pratap Singh Vs. Chief of Army Staff & Ors (L.P.A. No.136/2003 on ) and Sepoy Islam Khan Vs. UOI & Ors (W.P.(C) No.5023/2011 on ) and the judgment of the Principal Bench of this Tribunal passed in Ex. Nk. Birendra Kumar Singh Vs. Union of India & Ors. (T.A. No.563/2009 on ). The red ink entries being endorsed in the service record of individuals are not a matter of investigation or confirmation at the time of issue of show cause notice. In other words these are an established fact. Even if an inquiry was held, it would only re confirm such entries in the service record and would serve no useful purpose whatsoever in so far as evaluating the merit of the contemplated discharge is concerned. Not holding an inquiry in such cases does not cause any prejudice to the petitioners. In the case of Union of India vs Inderjeet Sharma (TA No 14 of 2010 decided on ) it was held by this Bench of the Tribunal that insisting upon such an inquiry would be an empty formality and being in the nature of complying with the principles of natural justice, no prejudice would be suffered by the petitioner even if such an inquiry were not held. The above judgments of the Delhi High Court and the Principal Bench of this Tribunal further negate the contention of the petitioners

9 9 sought to be raised on the basis of the Government of India letter dated that before giving a show cause notice, a proper inquiry, with given opportunity of hearing to the petitioner, was required to be held. We may observe that in Om Lat s case, the Division Bench of Delhi High Court has held that this giving of show cause notice is only in the nature of compliance with the principles of natural justice and if the factum of having incurred red ink entries is not in dispute, giving of show cause notice would be an empty formality, and is not required to be insisted upon. In the case of Ashok Kumar v. Union of India, (2007) 4 SCC 54, the Supreme Court had held that the principles of natural justice may not be applicable in a given case unless a prejudice is shown, as application of principles of natural justice is not necessary where it would be a futile exercise. It was held that principles of natural justice cannot be put in any straitjacket formula and that the principles may not be applied in a given case unless a prejudice is shown if the same is not complied to. The Court further held that the Court of law does not insist on compliance with useless formalities and it will not issue any such direction where the result would remain the same, in view of the factual situation prevailing in a matter or in terms of the legal consequences. In our view, that closes the argument of the learned counsel for the petitioners sought to be raised on the anvil of the Government of India letter dated In the case of Surinder Singh Sihag, The Division Bench of the Delhi High Court took the view that no action could be taken under Rule 13 without an inquiry and since no inquiry was held against Surender Singh Sihag when his services were dispensed with by way of discharge pursuant to a show cause notice alleging against him that he had earned five red ink entries, the order was quashed. But we find that the Supreme Court, in the decision reported as 2009 (7) SCC 370 UOI & Ors. Vs. Deepak Kumar Santra, had taken a view contrary to the one taken by the Division Bench of the Delhi High Court. In so far as discharge by an authority exercising power under Rule 13 of the Army Rules was concerned, the Supreme Court had held that once statutory Rules occupy the field, there is no place for a policy guideline and as long as the procedure prescribed by the statutory Rule is followed, it hardly matters whether a policy guideline is not followed. It would be relevant to state that where a Rule deals with a subject matter and the procedure to be followed with respect to the subject matter is also prescribed by the Rule, there is no scope to issue a policy guideline with respect to the procedure to be followed. The procedure under Rule 13 of the Army Rule simply contemplates a prior notice to the person concerned before exercising power under the Rule. Introducing the requirement of holding an inquiry under the policy guideline of is redundant. 17. One of the contentions of the learned counsel for the petitioner is that he was not served with a Show Cause Notice. A perusal of Annexure IV of the paper book at page 76 reveals that the petitioner was served with a Show Cause Notice vide letter dated and the petitioner has signed as having received it on the same day. Further this Show Cause Notice was replied to by the petitioner vide his reply dated (page 77 of the paper book). On this count the petitioner has not come with clean hands. No other irregularity in following the procedure could be pointed out. After following the due process the case was scrutinized by the competent authority and discharge sanctioned by the Commander 36 Inf Bde on the Discharge Roll (IAFY-1948) dated 13 Feb 2008 (Annx VI at 109 of the paper book). The petitioner was issued with a Discharge Certificate dtd placed at page 102 of the paper book.

10 Further on the question of issue of double jeopardy we may once again take help of detailed judgment of this Tribunal in the case of OA 362 of 2011 rendered on in case of Shinghara Singh Vs UoI, which brings out that Here we may refer to the judgment of Hon ble Supreme Court passed in Union of India & Ors. Vs. Corporal A.K. Bakshi, (1996) 3 SCC 65. In that case two persons being Corporal A.K. Bakshi and Corporal Sobhanan had been punished for six offences on different occasions and on that basis they were found to be habitual offenders. They were issued show cause notices by the Group Captain of Headquarters Training Command, IAF, Bangalore, acting for the Air Officer Commanding-in-Chief, requiring them to show cause as to why for the said acts of indiscipline, they should not be discharged from service under Rule 15(2)(g)(ii) of the Rules, for having become habitual offenders, liable for discharge. Reply to the show cause notice was submitted, and after considering the same, recommendations for discharge were made, which was accepted by the Air Officer In-Charge, Personnel and thereafter the orders for their discharge were issued. Those orders were challenged by way of the writ petitions, which were dismissed by the learned Single Judge, however, in appeal, the Division Bench allowed the appeal, and rejected the contentions of the respondents therein, and held, that the termination of services of the persons subject to the Act could be by way of punishment involving their misconduct, or for causes not involving misconduct i.e. not by way of punishments. It was held by the Division Bench that Rule 15(2)(g)(ii) makes provision for termination of services, for causes not involving any misconduct, and Rule 18 provides for termination by way of punishment for misconduct. It was thus held that the discharge under the policy for discharge amounts to termination of services of the Airman for misconduct, falling under Rule 18 and is not a mere discharge simplicitor envisaged under Rule 15(2)(g)(ii). The Division Bench also found that the show cause notice was issued by the Group Captain and not by the Air Officer In-Charge, being the authority to dismiss. With these facts, the Hon ble Supreme Court posed a question, being as to whether an order of discharge passed in pursuance of policy for discharge can be regarded as discharge under Rule 15(2)(g)(ii), or has to be treated as termination from the service for misconduct, falling under Rule 18, and the question was answered, by holding that : The punishments referred to in the Policy for Discharge are punishments that have been imposed for misconduct under the relevant provisions of the Act and the Rules. The Policy for Discharge envisages that in cases where an airman has been awarded such punishments six times, he is to be treated as a habitual offender and action for his discharge from service should be taken against him under Rule 15(2)(g)(ii) of the Rules. This action for discharge is not by way of punishment for the misconducts for which he has already been punished. The basic idea underlying the Policy for Discharge is that recurring nature of punishments for misconduct imposed on an airman renders him unsuitable for further retention in the Air Force. Suitability for retention in the Air Force has to be determined on the basis of record of service. The punishments that have been imposed earlier being part of the record of service have to be taken into consideration for the purpose of deciding whether such person is suitable for retention in the Air Force. Thus, the discharge was upheld. 19. The learned counsel for the petitioner has placed reliance upon the following decisions in support of his cause.

11 11 (a) Judgment of J&K High Court in the case of Nail Gulshan Singh Vs Union of India & Ors 2009(3) SCT.01 rendered on , wherein absence of 2 hours was not condoned by the authorities and a disproportionate punishment of discharge was awarded, which is not so in the present case. (b) Judgment of Delhi High Court in the case of sepoy Durga Prashad Vs Union of India & Ors 2005(2) SCT 3 deals with discharge on red ink entries after having been granted extension of service by two years in DSC. This too is not relevant in the present case. (c) Judgment of Delhi High Court in the case of Ex Hav Satbir Singh Vs Chief of Army Staff 2009 (2) SCT 343 deals with non holding of Court of Inquiry. This has been discussed adequately in OA 362 of 2011 rendered on named Shinghara Singh Vs UoI (supra). (d) Judgment of AFT Chandigarh Bench in OA 13/2009 in the case of Suresh Chand Vs Union of India & Ors decided on brings out that the punishment awarded was disproportionate to the allegations leveled. In order to appreciate the circumstances of the case it is relevant to quote paragraph of the Division Bench Order in the case which reads as under:- 7. Sequence of facts noted above clearly shows that the allegations of overstaying leave was during the first year and thereafter the appellant was given promotion and he had rendered more than 12 years of service. During the said period of 12 years, only allegation is of shouting during roll call or absence for 30 minutes or representing to the authorities, which could hardly call for such a harsh view as has been taken. The appellant has already been given other punishments. On completion of 15 years of service, he would have been entitled to pension. He has already worked for 13 years. A look at the conduct sheet of the petitioner reveals that he had been habitually overstaying his granted leave and was not responding to the advice of the respondents, and

12 12 as such this is also not of much help to the facts of the present case. (e) The judgment of Hon ble Punjab & Haryana High Court in the case of Jagraj Singh Vs UoI in CWP 6991 of 2012 decided on , setting aside AFT Chandigarh Bench order dated in the case of OA 146 of 2010 on the ground (i) that the petitioner had not earned any red ink entry for the last seven years indicating his willingness to improve (ii) Discharge of the petitioner under Section 13 (iii) (v) is incorrect and not sustainable. (iii) As stipulated at Note 2 of letter dated , in the case of the petitioner the fact that he had only one year and four days to complete his pensionable service had not been considered in the decision making process of discharging the petitioner from service. 20. Coming to the question of discharge of the petitioner under Section 13 (iii) (v) once again take help of detailed judgment of this Tribunal in the case of OA 362 of 2011 rendered on in case of Shinghara Singh Vs Union of India & Others, which brings out that :- The individuals were enrolled in the Army and having completed varying periods of service were subjected to disciplinary action under the Army Act, 1950 resulting in award of punishments and where such punishments were so classified, entries were made in their service records termed as Red Ink Entries. After having earned a certain number of such entries such individuals were found to be Habitual Offenders and administrative action was initiated for their discharge from service and they were so discharged for Services No Longer Required. Such discharge is challenged on various grounds which we shall examine later. However it is relevant to place in perspective the statute, rules and instructions related to this controversy.

13 13 Section 80 of the Army Act, 1950 empowers a Commanding Officer, or such other officer as specified, to proceed in the prescribed manner against a person subject to the Army Act other than an officer, junior commissioned officer or warrant officer who is charged with an offence under the Army Act and award one or more of the punishments prescribed; varying from imprisonment in military custody upto twenty eight days to penal deductions. Such awards result in a red ink entry in the service record. An individual may also be tried by any of the Court Martials as defined in Section 108, and where an individual is not dismissed from service, and a lesser punishment is awarded, it would also result in a similar red ink entry in the service record. The procedure prescribed for proceeding against an individual is detailed in Army Rule 22 which reads as under INVESTIGATION OF CHARGES AND TRIAL BY COURT-MARTIAL SECTION 1 INVESTIGATION OF CHARGES AND REMAND FOR TRIAL Power of Commanding Officers 22. Hearing of Charge. (1) Every Charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence: Provided that where the charge against the accused arises as a result of investigation by a Court of Inquiry, wherein the provisions of Rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in sub-rule (1). (2) The commanding officer shall dismiss a charge brought before him if, in his opinion the evidence does not show that an offence under the Act has been committed, and may do so if, he is satisfied that the charge ought not to be proceeded with: Provided that the commanding officer shall not dismiss a charge which he is debarred to try under sub-section (2) of Sec. 120 without reference to superior authority as specified therein. (3) After compliance of sub-rule (1), if the commanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time manner (a) dispose of the case under Section 80 in accordance with the and form in Appendix III; or (b) (c) reduced to refer the case to the proper superior military authority; or adjourn the case for the purpose of having the evidence writing; or (d) if the accused is below the rank of warrant officer, order his trial by a summary court-martial: Provided that the commanding officer shall not order trial by a summary court-martial without a reference to the officer empowered to convene a district court-martial or on active service a summary general courtmartial for the trial of the alleged offender unless (a) the offence is one which he can try by a summary court-martial without any reference to that officer; or (b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline. (4) Where the evidence taken in accordance with sub-rule (3) of this rule discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge(s) on the basis of the evidence so taken as well as the investigation of the original charge.

14 14 The case having been disposed of under Section 80 of the Army Act, or by a court martial and culminating in an appropriate sentence, would result in a red ink entry in the service record, as above. Authorities authorized to order discharge of Junior Commissioned Officers, Warrant Officers and Other Ranks are prescribed in Army Rule 13. The relevant part applicable to Other Ranks (Item 3) reads as under 13. Authorities empowered to authorise discharge. (1) each of the authorities specified in column 3 of the Table below, shall be the competent authority to discharge from service person subject to the Act specified in column 1 thereof on the grounds specified in column 2 TABLE Category Grounds of Competent authority Manner of Discharge to authorise discharge Discharge Persons enrolled under the Act who have been attested. III.(i) On fulfilling the conditions of his enrolment or having reached the stage at which discharge may be enforced. (ii) On completion of a period of army service only, there being no vacancy in the Reserve. Commanding Officer and, in the case of a person of the rank of havildar (or equivalent rank) where such person is to be discharged. Otherwise than at his own request and where the commanding officer below the rank of Lieutenant Colonel, the Brigade or Sub-Area Commander.) Commanding Officer (in the case of persons unwilling to extend their Army service). Applicable to person enrolled for both Army service and Reserve service. (A person who has the right to extend his Army service and wishes to exercise that right cannot be discharged under this head.) (iii) Having been found medically unfit for further service. Commanding Officer. To be carried out only on the recommendation of an invaliding Board. (iv) At his own request before fulfilling the conditions of his enrolment. Commanding Officer. The Commanding Officer will exercise the power only when he is satisfied as to the desirability of sanctioning the application and the strength

15 15 of the unit will not thereby be unduly reduced. (v) All other classes of discharge. Brigade/Sub Area Commander. The Brigade or Sub-Area Commander before ordering the discharge shall, if the circumstances of the case permit give to the person whose discharge is contemplated an opportunity to show cause against the contemplated discharge. 21. The reckonable service of the petitioner for consideration for grant of pension works out to 11 years and 328 days. In the judgment relied upon by the learned counsel for the petitioner in Jagraj Singh Vs Union of India and others (CWP 6991 of 2012) decided on , the total service rendered was 13 years 11 months and 26 days i.e. he had only 1 year and 4 days to complete 15 years of service. It is not the position in the present petition. Thus, we find that this judgment is not applicable to the facts of the present case. In any view of the matter, the petitioner in the case of Jagraj Singh (supra) has not ordered to be reinstated therein, instead the alternative relief for grant of pensionary benefits by treating the period of about one year and four as leave of the kind due was allowed. 22. We could lay our hands on a judgment of the Apex Court in Union of India & Ors v. Rajesh Vyas (2008) 3 SCC 386, which clinches the issue against the petitioner. It is also the case of red ink entries. The Apex Court has upheld the impugned order therein based on red ink entries. The relevant portion of the judgment is reproduced below: That the red ink entries are for punishment higher in the scale of the punishment under Section 82 of the Air Force Act, 1982 (in short the Act ) while the black ink entries are for punishment

16 16 lower in scale in Section 82. The detailed actions and procedure which were required to be followed to implement the policy for discharge are given in the appendix to the policy which was known as the Procedure for Discharge. Habitual offenders who were not found suitable for retention in service were initially placed in two categories, (a) habitual offenders who have already crossed the criteria as laid down vide paragraph 4(a), (b) and (c) of the policy guidelines, and (b) offenders who are on the threshold. Warning had to be given as per the procedure to an Airman who was on the threshold and he was called upon to improve his conduct and behavior and that in case he committed any further offence, and came within the purview of an habitual offender, he would be liable to be discharged. In case he commits any further offence then would be given a show cause notice and, thereafter discharge was to be ordered by the competent authority under Rule 15(2) (g)(ii). As noted above, policy for discharge of habitual offender was considered by this Court in A.K.Bakshi s case (supra). After analyzing the policy, it was observed that the whole idea underlying the policy was to weed out the indisciplined personnel from the force. It was further observed that it was a discharge simplicitor and as such it cannot be held as termination of service by way of punishment for misconduct. 23. Viewed as above, we find no merit in the petition and the same is hereby dismissed, but no order as to costs. (Justice Prakash Krishna) (Air Marshal (Retd) SC Mukul) raghav Whether the judgment for reference is to be put on internet? Yes / No.