Nature Of Misconduct Not So Unacceptable- Supreme Court Sets Aside Order Of Discharge From Assam Rifles For Four Red Entries
The two-judge bench of Justice Surya Kant, and Justice J.B. Pardiwala set aside an order of discharge as confirmed by the Division Bench of the Guwahati High Court issued to a Rifleman in Assam Rifles on grounds that the Appellant had four Red-Ink Entries received during his service.
".... there is nothing on record to indicate that the nature of the misconduct leading to the award of four Red Ink entries was so unacceptable that the competent authority had no option but to direct his discharge to prevent indiscipline in the force", the Bench held.
The Bench further issued directives that the Appellant shall be treated to have been in service and hence be eligible for pension.
Facts & History of the Case
The Appellant/Original Writ Petitioner had joined the Assam Rifles as a Rifleman in 1993. He was discharged in 2004, six months short of qualifying service for grant of pension. He challenged the discharge before the High Court. A Single Judge decided the Writ Petition in favor of the Appellant and set aside the order of discharge.
The Union of India challenged the Oder passed by the Single Judge before a Division Bench. The Division Bench of the Guwahati High Court on examining the facts and circumstances of the case, allowed the appeal filed by the Union of India and set aside the order passed by the Single Judge.
The Order was passed by Division Bench observing that neither the Assam Rifles Act 1941 nor the Assam Rifles Act 2006 requires the authority to record any reasons in the order of discharge. It was further noted as per Clause 5 of the ROI 1/2004 the Commandant has the discretion to discharge a person who has four or more Red Ink entries, after serving a notice calling for an explanation from the individual. There is no requirement for the commandant to record reasons of satisfaction.
Feeling aggrieved by the Order of the High Court of Guwahati the Appellant/Original Writ Petitioner has approached the Supreme Court.
Advocate Mehul M. Gupta appearing on behalf of the Appellant contended that discharge is not mandatory or automatic even after four Red Entries and there is a difference between major and minor misconduct. It was also argued that with no reasons being assigned for the discharge, it is arbitrary.
Advocate B. V. Balaram Das representing the Respondent, Union of India argued that the four Red Ink Entries were sufficient for discharge and the Appellant was issued a notice giving him an opportunity to present his case, wherein he did not tender any apology or raise any reason/explanation.
On considering the submission made by the Counsels, the Bench considered the decisions laid down in Virendra Kumar Dubey v. Chief of Army Staff &Ors.,(2016) and Vijay Shankar Mishra v. Union of India and Ors., (2017)and reiterated that – "the mere fact that the Personnel had crossed the threshold of few Red Ink entries could not have been made a ground to discharge them without considering other relevant circumstances, more particularly, the nature of the violation which led to the award of the Red Ink entries."
The Bench also took note of the case of Virendra Kumar Dubeyto state that – "the only safeguard against arbitrary exercise of power by the authority would be to ensure that there is an enquiry, howsoever, summary and a finding about the defence set up by the individual besides consideration of the factors made relevant under the procedure."
In view of the aforementioned decisions of the Apex Court, held that the order of discharge issued against the Appellant may be set aside and consequently the Appellant shall be treated to have been in service and hence be eligible to receive the pension. The Bench clarified that no back wages shall, however, be admissible.