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Judgment
Invoking the jurisdiction of this Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007, the applicant calls in question his discharge from service vide impugned order (Annexure A-1) dated 16th June, 2015 wherein the Competent Authority has invoked the jurisdiction available to it under Rule 13(3) Item III (v) of the Army Rules, 1954 and discharged the applicant on account of four Red Ink Entries entered in his service record.
It is the case of the applicant that he was enrolled in the Army as a Sepoy and was assigned to the Armoured Corps on 29th December, 2004. He completed his training successfully between 12th May 2006 to 4th January, 2008 while being posted in the 52 Armd Regiment. After training he was posted back to his unit where he worked from 8th February, 2010 to 3rd March, 2011. On 4th March, 2011, he was posted to a new raising unit, i.e., 55 Armd Regiment. Thereafter, he was posted to various units and while so working a show cause notice was issued to him on 9t1 December, 2013 by the Competent Authority vide Annexure A-3 purported to be a show cause for termination of service under Army Act 20(3) read with Army Rule 12(3) Item III (v) wherein following punishments for offences committed by him were indicated:
Ser. No.
Date of offence
AA Sec
Punishment awarded
Date Of Award
a)
26 Mar 2009
AA Sec 63
10 days RI & 14 days pay fine
31 Mar 2009
b)
22 May 2011
AA Sec 48
07 days RI
30 May 2011
c)
16 Feb 2012
AA Sec 48
07 days RI
12 Mar 2012
d)
09 Mar 2012
AA Sec 48
07 days RI
10 Apr 2012
e)
08 Aug 2013
AA Sec 48
14 days pay fine
24 Sep 2013
The applicant submitted his reply to the same vide Annexure A-4 and in the reply it was stated by him that due to the death of the husband of his younger sister and her sister in law harassing her, the applicant was upset and he admitted the mistakes committed by him and promised that he would not commit the mistakes in future. It is the grievance of the applicant that in spite of the above, without considering his reply to the show cause notice, he was discharged from service. A representation was submitted by him vide Annexure A-5 on 28th April, 2015. This was not considered in the right perspective and when nothing was done, he invoked the jurisdiction of this Tribunal in the matter of challenging the impugned action.
Mr. S.M. Dalai, learned counsel for the applicant, took us through various assertions made in the petition. He referred to the Army Headquarters Policy letter dated 28th December, 1988 filed as Annexure A-6; the consideration to be made and the procedure to be followed for discharge/removal of an undesirable or inefficient personnel. The following provisions, namely, Clause 2(d), 4, 5(a), (c), (d), (f) and Note 2 to Clause 5 to say that without following the detailed procedure contemplated therein; without considering his reply to the show cause notice; without causing an inquiry into the matter in accordance with the policy and without appreciating the difficulties of the applicant, the impugned action has been taken. He also referred to Item No.1, Clause (e) of the show cause notice dated 8t1iAugust, 2013 and argued that he is charged with violating the provisions of Section 48 of the Army Act, i.e., for being intoxicated while on duty, whereas in the documents available on record the incident of 8th August, 2013 is one which pertains to rash and negligent driving. It is argued that the respondents by making false allegations have discharged the applicant from service in violation to the mandate of the policy dated 28t1 December, 1988 (Annexure A-6) and without appreciating the totality of the facts and circumstances in the right perspective. It was argued before us that merely on the ground that the applicant had earned four Red Ink Entries in his service record, the impugned action has been taken, which, according to the learned counsel, is clearly unsustainable and, therefore, liable to be quashed. In support of his contention that merely based on the four Red Ink Entries, the impugned action cannot be taken, learned counsel referred to a judgment of the Hon'ble Supreme Court in the case of Vijay Shankar Mishra Vs. Union of India and Ors. [(2017) 1 SCC 795] and the observations made by the Hon'ble Supreme Court in paras 7 and 9 of the aforesaid judgment to say that merely on the basis of the four Red Ink Entries, the applicant could not be discharged. It was argued that various aspects of the matter, as detailed by the Honlle Supreme Court in para 9 of the aforesaid judgment, have not been adverted to by the Competent Authority while taking action against the applicant. That apart, reference is also made to the judgment by a Coordinate Bench of this Tribunal in OA 527/2013 Swr Manoj Singh Bhadaunya Vs. Union of India and Ors. decided on 26t1 November, 2014 wherein, based on a Division Bench judgment of the Delhi High Court in the case of Dr Sepoy Sube Singh Vs. Union of India reported in 140 (2007) DLT 26, similar views have been taken in the matter of discharging merely on the basis of Red Ink Entry without looking to the problems explained by him in the explanation. Referring to the observations made by the learned Bench in para 5 of the said judgment, interference is sought for.
Refuting the aforesaid contentions, Ms. Jyotsna Kaushik, learned counsel for the respondents, argued that the applicant was proceeded against and finding him to be an undesirable soldier within the meaning of Rule 13 (3) Item III (v) of the Army Rules, 1954, based on four Red Ink Entries earned by him along with one Black Ink Entry after he has rendered nine years three months and twenty four days of service he has been proceeded with. It was pointed out by her that in this case before taking action against the applicant, the requirement of policy (Annexure A-6) dated 28th December, 1988 was followed. The procedure for discharge/dismissal of an undesirable person, as contained in paras 4 and 5 of the aforesaid policy letter, was taken note of and then only action taken. Based on various acts of commission and omission committed by the applicant while in service, imputations were conveyed to him vide tentative charge sheet (Annexure R-1) wherein five acts of commission and omission were indicated. Thereafter, based on the preliminary report of a Court of Inquiry, brought on record on I 4th July, 2021, the action is taken. Ms. Kaushik took us through various material that came in the Court of Inquiry and emphasized that the finding with regard to the applicant's being an undesirable soldier is not based on the Red Ink Entry alone in his service record, it is based on evaluation of the statement of witnesses recorded in the preliminary inquiry conducted and the subjective satisfaction arrived at by the Competent Authority based on the same. Accordingly, she submits that in the facts and circumstances of the case, no indulgence into the matter is called for. She further argued that the cases replied upon by learned counsel for the applicant, i.e., Vijay Shankar Mishra and Swr Manoj Singh Ehadauriya (supra) will not apply in the facts and circumstances of the present case for the simple reason that in this case a proper inquiry has been conducted and it is only after a detailed inquiry was conducted that action was taken.
We have considered the submissions and have also taken note of the pleadings and the documents available on record. We find that a show cause notice was issued to the applicant and in the show cause notice it was clearly brought to the notice of the applicant that as per record it was found that he had earned four Red Ink Entries and the punishment and offences awarded to him have been detailed in the show cause notice. He was found to be intoxicated while on duty on more than four occasions and on one occasion he was found to have violated Section 63 of the Army Act. In reply to the show cause notice the applicant admits the mistakes committed by him just gives a commitment not to repeat the mistakes in future. It was the case of the applicant that his explanation to the show cause notice was not considered sympathetically and without taking note of his family circumstances the impugned action was taken. We find that in reply to the show cause notice the applicant does not give any details about the problems faced by him, the period during which he faced the problems etc. On the contrary, the acts of commission and omission alleged against him are for the period from 2009 to 2013. That apart, it was also pointed out that in accordance to the provisions of Policy Rule 2 (d), the discharge was not warranted as the applicant could be transferred and given an opportunity to improve.
Before adverting to consider various questions that have been canvassed before us, it would be appropriate to take note of the procedure contemplated for removal or discharge of undesirable and inefficient JCOs and other officers, as contained in the Policy (Annexure A-6) dated 28th December, 1988. The procedure is laid down in paras 4 and 5 and we find that in this case, before issuance of the show cause notice to the applicant on 9th December, 2013, tentative charges were served on him vide Annexure R-1 in September 2013 and in the said charge sheet all the five imputations, which formed part of the show cause notice, were indicated. The first charge was pertaining to an incident that took place on 8th August, 2013 at Hissar wherein he caused hurt to himself and his child by driving an official vehicle in a rash and negligent manner in a drunken state. This was violation of Section 63 of the Army Act. Thereafter, on 16th February, 2012 at 2100 Hrs. he was found in an intoxicated stage. Similarly, he was found in an intoxicated stage on 9th March, 2012 and 22nd May, 2011 at Ahmed Nagar and in the Court of Inquiry, which was conducted by the Board of Officers, all the five charges were put before him. The Board asked him as to whether he pleads guilty of the offence or the allegation made against him to which the applicant answered that he admits all the offences committed by him in the entire service without any pressure. He also stated that he is aware that for these allegations his services may be terminated. He again indicated his family problems and said that he will try to improve himself. In the inquiry nine departmental witnesses were examined. The first witness was Nb Ris Dalip Raj whose statement clearly indicates that while the applicant was posted at '13' Sqn, 55 Armd Regt., on 10th April 2011, while on duty the applicant was found in a drunken condition having consumed excessive alcohol in day time, during working hours and he was behaving in a manner which was dangerous to the Army discipline and conduct. It was also stated by this officer, under whom the applicant was working, that the applicant was an irregular and indisciplined soldier and was found to be absent from regiment, did not attend PT and games parade and when asked he used to give false and baseless reasons. In spite of repeated counseling, he did not show any improvement. Similar is the statement of witness No.2 — Ris Kamal Kishore who had also found the applicant drunken while on duty in a surprise check in May, 2011. This witness also says that the applicant was habitual in doing so and in spite of counseling and warning did not show any improvement. Dafadar Dharmendra Kumar was examined as witness No.3 and in para 2, 3 and 4 of his statement this witness makes the following statement against the applicant:
'2. I Dafadar Dharmendra Kumar performing the duties of SDM of HQ Sqn, 55 Arrnd Rest c/o 56 APO since 01 Apr 2011. No 15498920L Swr/Dvr Narendra Singh Dhaiya was posted to HQ Sqn on 01 Jun 2011 from 93' sqn. After reporting- to this sqn he was performing the duties of dvr at Adm Tp. He has been caught in the state of intoxication on many occasions wef Oct 2011 to Aug 2013 on non issue days for which I have given repeated verbal warnings to him to improve upon himself and also made him join defaulters parade. Since 01 Jun 2011 he has been very irregular and an ill disciplined soldier in the sqn primarily due to his alcohol dependency which also resulted in frequent hospital admissions and acts of indiscipline.
He is habitual offender of not attending Rest FT and games parade. It has also been reported by his tp Dafadar that the indl is becoming absent from his duties in the Adm tp during the parade. On 16 Feb 2012, during the surprise check, No 15498920L Swr/Dvr Narendra Singh Dhaiya was caught drunk on non issue day for which he was awarded punishment of 07 Dec RI on 12 Mardi 2012. On 09 Mar 2012 again he was caught drunk during surprise chech for which he was awarded
07 days RI on 10 April 2012.
On 05 May 2012, during his 30 days of leave he was found in excessive drunk condition at his home where he broke glass window of his qtr and got injured in his right hand for which he was admitted in MH Hisar. On 08 Aug 2013, I was informed that No 15498920L Swr/Dvr Narendra Singh Dhaiya was found lying in a excessive drunk condition near Dhatvhar chowk along with his child from where he was then picked up by Nb Ris Kamlesh. He was awarded 14 days of pay fine on 24 Sep 2013 for this act. As SDNI of HQ Sqn I have given him number of opportunities to improve himself through verbal warnings and counselings but he has failed to show any improvement and has always been a habitual defaulter in the sqn.
Similar statements have been given by other witnesses who have been examined, namely, Swr Mangesh K., witness No.5, Nb Ris R.N. Tripathi, witness No.6, Dfr Rajendra Kumar, witness No.7, Ris Vinod Bambra, witness No.8 and Maj Sahil Nehra, witness No.9. Consistently, all these witnesses have testified to the effect that the applicant was found to be drunken on duty, absent unauthorisedly, not in a state to perform any duty and even while driving vehicle, he was found to be in an intoxicated condition. In the findings recorded by the Three Member Inquiry Board it has been found that the applicant, on several occasions, was found in an intoxicated condition after having consumed alcohol even while on duty and when surprise checks were conducted, he was found to have consumed liquor; his behavior was erratic and dangerous, he was absent from parade and other duties after consuming liquor; he used to rashly and negligently drive the official vehicle and his conduct was unbecoming of an officer. With regard to the allegation No.5 in the charge sheet pertaining to be an act of rash and negligent driving, the statement of the witness available on record clearly shows that on the date of the incident, i.e., 8th August, 2013, he was found lying near a vehicle along with his child in an intoxicated condition and had caused the accident by rash and negligent driving after consuming liquor. From the aforesaid material that has come on record, it is clear that action against the applicant is not taken solely on the basis of the four Red Ink Entries in his service record. Action has been taken based on the preliminary inquiry conducted against him after subjecting him to medical examination on all occasions and the entire files of the Court of Inquiry have been produced before us which go to show that the applicant has been dealt with after complying with the requirement of the policy (Annexure A-6) and after conducting an inquiry into the matter wherein the applicant admits all the mistakes committed by him.
That being so, it is a case where there are adequate material available on record to hold that the applicant is an undesirable soldier and is discharged on the grounds canvassed by the respondents which is sustainable in law. Action has been taken against the applicant in accordance to the requirement of Rule 13 and, therefore, it cannot be said that merely by issuing a show cause notice and without considering the explanation of the applicant impugned action has been taken. On the contrary, before taking action against the applicant, based on his past acts of commission and omission, a tentative charge sheet was issued to him and an inquiry conducted where the applicant admitted all the charges/allegations. In spite thereof, witnesses were examined and based on the findings recorded in the inquiry the Competent Authority arrived at a subjective satisfaction to hold that the applicant is an indisciplined soldier, unfit to be retained in the service and, therefore, discharged. The judgments relied up by learned counsel for the applicant, in our considered view, will not apply in the facts and circumstances of the present case. In the case of Vijay Shankar Mishra (supra) a show cause notice was issued to the applicant wherein it was informed that as he has received four Red Ink Entries in his service record, he is proposed to be discharged. After taking note of the law laid down by the Hon'ble Supreme Court in an earlier judgment, namely, Veerendra Kumar Dubey Vs. Chief of Army Staff [(2016) 2 SCC 627] and observations made in para 10, the Hon'ble Supreme Court has come to the conclusion that the mere fact of an employee having crossed the thrash hold of four Red Ink Entries cannot be a ground alone to discharge him without considering the other relevant circumstances, which should include the nature of violation which led to award of the Red Ink Entries; (2) whether the applicant has been exposed to duty in hard stations in difficult living conditions and long service rendered by him and if he has a short period left to earn pension, he should not be discharged. In this case action has been taken against the applicant not only based on the four Red Ink Entries but his acts of commission and omission which formed the basis for the Red Ink Entries were evaluated in the inquiry and finding him to be habitual in coming to duty in a drunken state and performing the duty in an indisciplined manner, action has been taken. That apart, in the case before the Hon'ble Supreme Court the employee had completed more than fourteen years of service and just few months before his retirement, after completing fifteen years which could have earned him pension, the Hon'ble Supreme Court interfered into the matter. On the contrary in this case the applicant has just completed nine years of service and repeatedly for various periods between 2009 to 2013 he has committed offences and, therefore, the action has been taken.
In view of the above, we are of the considered view that this case is clearly distinguishable from the facts and circumstances of the issue before us and the judgments of the Hon'ble Supreme Court may not apply in this case. Similarly, in the case of Swr Manoj Singh Bhadauriya (supra), considered by this Tribunal, the allegation of more than four Red Ink Entries pertaining to certain acts like absent without leave, loss of identity card, losing the pay book in a negligent manner etc, apart from being in intoxicated state on about two occasions, the action in that case was also taken only on the basis of Six Red Entries without looking to the explanation given by the employee. The facts of the present case are clearly distinguishable. This is a case where the applicant consistently was found to come for duty in an intoxicated state. On medical examination, these facts were proved. He used to be absent from duty, did not attend parade and EF and finding him to be an indisciplined soldier, action has been taken. The subjective satisfaction arrived at by the Competent Authority for taking action against the applicant is not based on the Red Ink Entries alone but on the basis of an inquiry conducted wherein the gravity of the allegations have been assessed in its right perspective and after taking note of the explanation of the applicant, action has been taken which show application of mind and consideration of all relevant and material facts. That being so, we in exercise of our jurisdiction under Section 14 of the Armed Forces Tribunal Act, 2007, cannot sit in appeal over the decision taken by the Competent Authority.
In the facts and circumstances of the present case, as we find that all the requirements of the policy (Annexure A-6) have been complied with and after following a proper procedure the impugned action has been taken. Accordingly, in the facts and circumstances of this case we are not inclined to interfere into the matter. The OA stands dismissed.
No order as to costs.
Pronounced in open Court on this 5th day of April, 2022