IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5616 OF 2015

(Arising from SLP(C) No.12917/2012)

Union of India and others ...Appellants

versus

Balwant Singh ..Respondent

J U D G M E N T

Jagdish Singh Khehar, J.

1. The respondent was inducted into the service of the Assam

Rifles as a Rifleman on 25.11.1991. He claims to have discharged his

duties to the absolute satisfaction of his superiors, and earned promotions

to higher ranks till 2007, when he came to hold the rank of Havaldar.

Whilst holding the rank of Havaldar, he was issued a show cause notice

dated 27.08.2008 informing him, that he had earned four “Red Ink entries”,

and asking him why he should not be discharged from service. The aforesaid

show cause notice relied upon certain provisions of the Assam Rifles Act,

1941, besides the Assam Rifles Manual, and also Clause 5 of the Record of

Office Instructions 1/2004 (hereinafter referred to as the 'ROI 1/2004').

2. In the show cause notice, the respondent was intimated, that he

had earned nine punishments which included five “Red Ink entries” and “four

Black Ink entries”. The details of the disciplinary action taken against

the respondent has been depicted in a compilation, which is a part of the

record of the case, and is being extracted hereunder:

| | | |overstaying leave |99 |

| |good order and | | |05 |

| | | | |07 |

| | | | |07 |

| | | | |15 Oct 07 |

| | | | |07 |

| | | |overstaying leave |01 Mar 08 |

| | | | |26 Aug 08 |

| | | |intoxication |06 Jan 09 |

It is relevant to mention, that the four “Red Ink entries” taken into

consideration, insofar as the show cause notice dated 27.08.2008 is

concerned, are depicted at serial nos. (d), (e), (g) and (h) of the above

compilation. The details of the cause/action, why the above punishments

were inflicted on the respondent (at serial nos. (d), (e), (g) and (h)),

have also been expressed in the pleadings. Insofar as the punishment at

serial no. (d) is concerned, the same came to be imposed on the respondent

on account of the fact that on 23.07.2007, while he was on “motor vehicle

check post duty” at 19:50 hrs., he was found in an intoxication state.

Insofar as the punishment at serial no. (e) is concerned, it was pointed

out, that the respondent was again found in an intoxicating state, while on

“platoon training duty” at Diphu on 07.10.2007 at 20:45 hrs. The third

punishment at serial no. (g) was imposed on the respondent, on account of

his having overstayed leave, granted to him, for a period of eighteen days.

The last of the above punishments, depicted at serial no. (h), was imposed

on the respondent, on account of the fact, that he was again found in an

intoxicated state on 11.08.2008 at 17:00 hrs., while on “road opening

party duty”.

3. In addition to the factual position, indicated hereinabove,

learned counsel for the appellants highlights the fact, that after the

first three “Red Ink entries” were recorded against the respondent, a

notice dated 2.3.2008 was issued to him, informing the respondent, that he

had already been issued three “Red Ink entries”, and that he was liable to

be discharged from service, in case one further “Red Ink entry” is

recorded. The respondent submitted a reply thereto, undertaking not to

commit any further delinquency, and acknowledging, that in case one further

“Red Ink entry” was issued to him, he may be discharged from service.

4. In response to the show cause notice dated 27.08.2008, which

was issued to the respondent after the fourth “Red Ink entry” was recorded

on 26.08.2008, the respondent submitted a reply acknowledging the entire

factual position depicted in the show cause notice. It is therefore, that

an order of discharge dated 7.2.2009 was passed. In the above order of

discharge, it was mentioned, that the action had been taken against the

respondent, inter alia, under Clause 5 of ROI 1/2004, as it had been

concluded, that he was an 'incorrigible offender'. Despite having so

concluded, he was held entitled to pension and gratuity, as were admissible

under the rules.

5. Dissatisfied with the order of discharge, the respondent

addressed a representation dated 20.04.2009 to the Director General, Assam

Rifles. The aforesaid representation was rejected by an order dated

8.5.2009. The respondent assailed all the adverse orders passed against

him, by filing Writ Petition No. 167(SH) of 2009 before the Gauhati High

Court. The aforesaid writ petition was dismissed by a learned Single Judge

on 22.4.2010. The respondent then preferred Writ Appeal No. (SH)54 of

2010, which was allowed by an order dated 2.11.2011. The instant special

leave petition was filed by the Union of India and others, so as to assail

the order passed by the Division Bench on 2.11.2011.

6. Delay condoned. Leave granted.

7. A perusal of the impugned order reveals, that the Division

Bench of the High Court did not find any serious fault with the impugned

order passed by the learned Single Judge, except that it was felt, that the

punishment imposed upon the respondent was disproportionate, when compared

to the charges on which the four “Red Ink entries” had been recorded. To

appreciate the basis of the directions, and the nature of the direction

issued by the High Court while disposing of the writ appeal filed by the

respondent on 2.11.2011, we find it just and appropriate to extract

paragraphs 18 and 19 of the order passed by the Division Bench:

“18. Bearing in mind the long service career that the delinquent was left

with in the Organization and considering the serious hardship that the

family would suffer when the breadearner is discharged at the age of 35

years after 17 years of service and also taking into consideration the

discretionary nature of the power under Clause 5 of the Record Office

Instructions (ROI) and taking into account the nature of the 4 violations

for which the red ink entries were given, we feel that a penalty which will

not result in discontinuation of service, would better serve the cause of

justice. In the context of the charges, we feel that the punishment is

disproportionate and the disciplinary authority should have inflicted a

lesser punishment to the delinquent, so that he could continue in service.

19. Consequently we feel inclined to interfere with the impugned order(s)

of 07-07-2009 and 08-05-2009 and accordingly the same are set aside and

quashed. The petitioner is ordered to be reinstated in service subject to

assessment of his physical fitness. However, the respondents are at liberty

to impose any lesser punishment balancing the interest of the organization

and also of the delinquent. Accordingly we interfere with the impugned

judgment of 29-11-2010 and allow this Appeal without any order of cost.”

8. During the course of hearing, learned counsel for the

appellants supported the impugned order of discharge dated 7.2.2009,

merely on the strength of Clause 5 of the ROI 1/2004. The same is being

extracted hereunder:

“5. Discharge/Disposal of Undesirable/Inefficient Personnel : Vide

Chapter VIII, Rule 24 of the Assam Rifles Manual confers powers on the

commandants of Assam Rifles Battalion to discharge any members of the Assam

Rifles below the rank of Nb/Sub. This power may be exercised by a

Commandant in case where a person has got four or more red ink entries. In

case, it is necessary to send an individual on discharge under this

provision, a notice will be served on the individual affording an

opportunity to him to explain his case. Thereafter the complete case will

be forwarded to Sector HQ along with the notice and reply received from the

individual, for the approval of the Sector Commander. Thereafter the

documents will be sent to this Directorate, Record Branch/UPAO for final

settlement of his IRLA.”

Referring to the above clause, it was the contention of the learned counsel

for the appellants, that before an order of discharge could be passed by

the Commandant, there were certain perquisites which included that a notice

need to be served to the concerned individual, affording him an opportunity

to explain his case. Upon receipt of his reply and the determination of

the issue, the complete case need to be forwarded to the Sector Headquarter

(along with the notice and the reply, for approval at the hands of the

Commander), and finally all the documents were to be sent to the

Directorate, Record Branch/UPAO for final settlement of the “individual

running ledger account”. It was submitted by the learned counsel for the

appellants, that all the necessary perquisites were complied with, and more

particularly, the show cause notice dated 27.8.2008 was issued to the

respondent, and action was taken against the respondent, only upon his

having submitted a reply thereto. It is also the contention of the learned

counsel for the appellants, that in the reply filed by the respondent, he

had admitted the factual position, namely, the recording of four “Red Ink

entries”, which constituted the basis for the show cause notice for

discharge, issued to him.

9. Despite the satisfaction of the terms and conditions of

discharge emerging from Clause 5 of ROI 1/2004, it was the contention of

the learned counsel for the respondent, that it will be unfair and unjust

to discharge the respondent from service, on account of his unblemished

record of service, including the fact that he had been selected for

participation in the Republic Day contingent for three consecutive years,

besides that, he had also earned laurels for having captured militants and

recovered arms and ammunitions. Additionally, it was the contention of the

learned counsel, that the respondent had discharged unblemished service

selflessly by risking his life on various occasions, only with the object

of obediently discharging the duties assigned to him.

10. The second contention advanced at the hands of the learned

counsel for the respondent, was of discrimination. It was the contention

of the learned counsel for the respondent, that one Jose Nedum Joseph, who

was dismissed from service, had approached the High Court by filing Writ

Petition (C) No. 2099 of 1999, and the order of dismissal from service

inflicted upon him, was reduced to that of discharge. It was submitted,

that the afore-stated Jose Nedum Joseph was alleged to have committed

delinquencies relating to cheating, indiscipline, and such actions, where

the safety of the unit was compromised. Additionally, the aforesaid Jose

Nedum Joseph was also accused of insubordination. It was the contention of

the learned counsel for the respondent, that as compared to the delinquency

alleged against the afore-stated Jose Nedum Joseph, the charges levelled

against the respondent were only, that of having been found intoxicated

while on duty on three occasions, and absent from duty without leave on one

occasion. It was submitted, that none of the above charges compromised the

security of the unit, and as such, the punishment of discharge was highly

disproportionate to the accusations levelled against him.

11. We have given our thoughtful consideration to the submissions

advanced at the hands of the learned counsel for the rival parties. Assam

Rifles is admittedly a disciplined force, wherein indiscipline would

undermine the task entrusted to it. Therefore, indiscipline at that hands

of the uniformed personnel of force, cannot be tolerated. Insofar as the

present controversy is concerned, after three “Red Ink entries” were issued

to the respondent, wherein he was “severely reprimanded”, he was issued a

notice dated 2.3.2008 informing him that one further “Red Ink entry” would

entail discharge from service. The respondent acknowledged the receipt of

the aforesaid notice, and undertook to ensure that he would not earn any

further “Red Ink entry”. And that, in case another “Red Ink entry” was

issued to him, he would accept discharge from service. Despite the above,

soon after the receipt of the above notice dated 2.3.2008, yet another “Red

Ink entry” was issued to the respondent on 11.08.2008. Not only that, even

a further punishment was inflicted on the respondent, after the last of the

four “Red Ink entries”, on 29.12.2008, when he was again severely

reprimanded and issued a further “Red Ink entry” on 6.1.2009, for having

absented himself without leave and for having been found in an intoxicated

state, while on duty, on 29.12.2008.

12. In the above view of the matter, we are of the view, that not

only were the parameters depicted in Clause 5 of the ROI 1/2004 fully

satisfied, even the Commanding Officer was satisfied that the delinquency

of the respondent could be ignored, and as such, the order of discharge

dated 7.2.2009 was passed. We find no infirmity in the passing of the above

order.

13. Another basis, for concluding the issue in favour of the

respondent by the Division Bench was, that while exercising the power to

discharge, the competent authority had not complied with the mandate

contained in sub-section (3) of Section 4 of the Assam Rifles Act. Section

4, relied upon by the High Court, is being extracted hereunder:

“4. APPOINTMENTS AND DISCHARGE

1.) The appointment of all riflemen shall rest with the Commandant.

2.) Before any person is appointed to be a rifleman, the statement in the

Schedule shall be read and if necessary explained to him in the presence of

a Magistrate, Commandant, and shall be signed by him in acknowledgment of

it's having been so read to him.

3.) A rifleman shall not be entitled to be discharged except in accordance

with the terms of the statement which he has signed under this Act or under

the Assam Rifles Act, 1920.”

14. Learned counsel for the appellants vehemently contended, that

sub-section (3) of Section 4, referred to by the High Court, is

inapplicable in a situation where the discharge is to be ordered by the

employer. According to the learned counsel, sub-section (3) of Section 4,

would be applicable when the concerned employee claims discharge after

having rendered specified service, as depicted in “The Schedule Statement”,

appended to the Assam Rifles Act, namely, four years of service in the

first instance.

15. We find merit in the contention advanced at the hands of the

learned counsel for the appellants. In a case of discharge by the

employer, namely, the Assam Rifles, sub-section (3) of Section 4 has no

applicability. A collective perusal of Section 4 extracted above, and “The

Schedule Statement” appended to the Assam Rifles Act, leaves no room for

any doubt, that the provisions of the Act also vest an option with the

employees governed by the Act to seek discharge from service. Section 4(3)

is the pointed provision. As such, it is imperative for us to hold, that

the Division Bench of the High Court erroneously concluded, that the

punishment in the present case, could not have been supported on the basis

of the powers given to the Commandant, under Section 4 of the Assam Rifles

Act.

16. Insofar as the issue of discrimination is concerned, insofar as

the instance of Jose Nedum Joseph has been cited on behalf of the

respondent, we find no comparison thereof with the delinquency alleged

against the respondent. Firstly, because Jose Nedum Joseph was originally

ordered to be dismissed from service. The High Court had reduced the order

of punishment of dismissal to that of discharge. In the instant case, on

account of the compliance of the provisions of Clause 5 of ROI 1/2004, the

respondent was merely discharged from duty. The order of discharge was in

compliance with the provisions made by the authorities. Moreover, it

cannot be accepted that the respondent did not compromise the safety of his

unit, whilst he was found to be in an intoxicated state while on duty. It

is quite another matter, that no incident occurred at the time, when the

respondent was found to be intoxicated. The plea of discrimination is

accordingly unacceptable.

17. For the reasons recorded hereinabove, we are satisfied that the

impugned order passed by the Division Bench of the High Court dated

2.11.2011 deserves to be set aside. Ordered accordingly.

18. The instant appeal is accordingly allowed. The parties shall

bear their own costs.

…...................................J.

[JAGDISH SINGH KHEHAR]

NEW DELHI;

…....................................J.

JULY 22, 2015. [ADARSH KUMAR GOEL]

ITEM NO.2 COURT NO.4 SECTION XIV

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Civil Appeal No.5616/2015 @ SLP(C) No. 12917/2012

UNION OF INDIA & ORS. Appellant(s)

VERSUS

BALWANT SINGH Respondent(s)

(with appln. (s) for c/delay in filing SLP and interim relief and office

report)

Date : 22/07/2015 This appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR

HON'BLE MR. JUSTICE ADARSH KUMAR GOEL

For Appellant(s) Mr. R. Balasubramanian, Adv.

Ms. Madhvi Divan, Adv.

Ms. Rashmi Malhotra, Adv.

Mr. Santosh Kumar, Adv.

for Mr. B. Krishna Prasad,AOR

For Respondent(s) Mr. Avijit Bhattacharjee,Adv.

Ms.Upma Shrivastava, Adv.

UPON hearing the counsel the Court made the following

O R D E R

Delay condoned.

Leave granted.

The appeal is allowed in terms of the signed judgment.

(Renuka Sadana) (Parveen Kr. Chawla)

Court Master AR-cum-PS

{signed judgment is placed on the file]