# VIJAY SHANKAR MISHRA v. UNION OF INDIA & ORS

- **Citation:** [2016] 12 S.C.R. 200
- **Court:** Supreme Court of India
- **Decided:** 2016-12-15
- **Case number:** Civil Appeal Nos.12179-12180of2016
- **Bench:** T. S. Thakur, Dr. D. Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vijay-shankar-mishra-v-union-of-india-ors-31199
- **Pages:** 7

## Headnote

Armed Forces:
Army Rules, 1954 - r.13(3)Table(lll)(v) - Discharge from
service - Unsatisfactory conduct - Army Medical Corps - Appellant
discharged from service on the ground that his conduct had not
been satisfactory - Further, he was denied disability pension on
the ground that he had earned six red ink entries in his service -
Held: There was no application of mind by the authorities to the
circumstances to be taken into consideration while exercising power'
u/r.13 - Mere fact that appellant had crossed the threshold·of four
red entries not a ground to discharge him without considering other
relevant circu111stances including (i) the nature of the violation which
led to the award of the red ink entries; (ii) whether the appellant
had been exposed to duty in hard stations and to difficult conditions; (iii) long years of service, just short of co111pleting the qualifying period of pension - Since, the appellant would have attained
the age of superannuation, the ends of justice would be met if he is
treated to have been in service till the time he would have completed
the qualifying service for grant of pension - No back-wages
admissible - Benefit of continuity of service for all other purposes
to be granted including pension - Pension Regulations for the Army
1961(Part-I) - r.132 - Service Law - Pension.
The appellant was enrolled in the Army Medical Corps. He was
discharged from service u/r. 13(3) Table Ill (v) of the Army ~ules, 1954
on the ground that his conduct had not been found satisfactory. The
G
appellant was also denied disability pension. The appellant filed a writ
petition before the High Court, which directed reconsideration of his
case. However, the authorities concerned rejected his claim for pension on the ground that he had not completed 15 years' of qualifying
service for grant of pension and tliat he had been punished while in
I-I
service on nine occasions inclusive of six red ink entries. The appellant
200
VIJA Y SHANKAR MISHRA v. UNION OF INDIA
20 l
again filed a writ petition before the High Court which was transferred
A
to the Armed Forces Tribunal. Application filed by appellant was dismissed by the Tribunal.
·
Allowing the appeals, the Court
HELD: 1. In the present case, it is evident that there was
no application of mind by the authorities to the circumstances B
which have to be taken into consideration while exercising the
power under Rule 13 of the Army Rules, 1954. The mere fact
that the appellant had crossed the threshold of four red entries
could not be a ground to discharge him without considering other
relevant circumstances inCiuding (i) the nature of the violation
C
which led to the award of the red ink entries; (ii) whether the
appellant had been exposed to duty in hard stations and to difficult
living conditions; (iii) long years of service, just short of
completing the qualifying period for pension. Even after the High
Court specifically directed consideration of his case bearing in
mind the provisions of the circular dated 10 January 1989, the D
relevant factors were not borne in mind. The order that was
passed subsequently, failed to consider relevant and germane
circumstances arid does not indicate a due application of mind to
the requirements of the letter of Army Headquarters and the
circular dated 10 January 1989. [Para 8) (239-E-G)
2. The Armed Forces Tribunal was, therefore, in error in
rejecting the application filed by the appellant. The orders of the
Tribmial;i,re set aside. Since the appellant would have attained
the age of superannuation, the ends of justice would be met if he
is treated to have been in service till the time he would have
completed the qualifying service for grant of pension. No backwages shall however be admissible. The benefit of continuity of
service for all other purposes shall be granted to the appellant
including pension. [Para 9) [239-H; 240-A-B]
Veerendra Kumar Dubey v. Chief of Army Staff (2016)
2 SCC 627 : 2015 (10) SCR 1013 - referred to.
Case Law

## Text

A
[2016] 12 S.C.R. 200
VIJAY SHANKAR MISHRA
v.
UNION OF INDIA & ORS.
(Civil Appeal Nos.12179-12180of2016)
B
DECEMBER 15, 2016
c
D
E
F
(T. S. THAKUR, CJI AND DR. D. Y. CHANDRACHUD, J.]
Armed Forces:
Army Rules, 1954 - r.13(3)Table(lll)(v) - Discharge from
service - Unsatisfactory conduct - Army Medical Corps - Appellant
discharged from service on the ground that his conduct had not
been satisfactory - Further, he was denied disability pension on
the ground that he had earned six red ink entries in his service -
Held: There was no application of mind by the authorities to the
circumstances to be taken into consideration while exercising power'
u/r.13 - Mere fact that appellant had crossed the threshold·of four
red entries not a ground to discharge him without considering other
relevant circu111stances including (i) the nature of the violation which
led to the award of the red ink entries; (ii) whether the appellant
had been exposed to duty in hard stations and to difficult conditions; (iii) long years of service, just short of co111pleting the qualifying period of pension - Since, the appellant would have attained
the age of superannuation, the ends of justice would be met if he is
treated to have been in service till the time he would have completed
the qualifying service for grant of pension - No back-wages
admissible - Benefit of continuity of service for all other purposes
to be granted including pension - Pension Regulations for the Army
1961(Part-I) - r.132 - Service Law - Pension.
The appellant was enrolled in the Army Medical Corps. He was
discharged from service u/r. 13(3) Table Ill (v) of the Army ~ules, 1954
on the ground that his conduct had not been found satisfactory. The
G
appellant was also denied disability pension. The appellant filed a writ
petition before the High Court, which directed reconsideration of his
case. However, the authorities concerned rejected his claim for pension on the ground that he had not completed 15 years' of qualifying
service for grant of pension and tliat he had been punished while in
I-I
service on nine occasions inclusive of six red ink entries. The appellant
200
VIJA Y SHANKAR MISHRA v. UNION OF INDIA
20 l
again filed a writ petition before the High Court which was transferred
A
to the Armed Forces Tribunal. Application filed by appellant was dismissed by the Tribunal.
·
Allowing the appeals, the Court
HELD: 1. In the present case, it is evident that there was
no application of mind by the authorities to the circumstances B
which have to be taken into consideration while exercising the
power under Rule 13 of the Army Rules, 1954. The mere fact
that the appellant had crossed the threshold of four red entries
could not be a ground to discharge him without considering other
relevant circumstances inCiuding (i) the nature of the violation
C
which led to the award of the red ink entries; (ii) whether the
appellant had been exposed to duty in hard stations and to difficult
living conditions; (iii) long years of service, just short of
completing the qualifying period for pension. Even after the High
Court specifically directed consideration of his case bearing in
mind the provisions of the circular dated 10 January 1989, the D
relevant factors were not borne in mind. The order that was
passed subsequently, failed to consider relevant and germane
circumstances arid does not indicate a due application of mind to
the requirements of the letter of Army Headquarters and the
circular dated 10 January 1989. [Para 8) (239-E-G)
2. The Armed Forces Tribunal was, therefore, in error in
rejecting the application filed by the appellant. The orders of the
Tribmial;i,re set aside. Since the appellant would have attained
the age of superannuation, the ends of justice would be met if he
is treated to have been in service till the time he would have
completed the qualifying service for grant of pension. No backwages shall however be admissible. The benefit of continuity of
service for all other purposes shall be granted to the appellant
including pension. [Para 9) [239-H; 240-A-B]
Veerendra Kumar Dubey v. Chief of Army Staff (2016)
2 SCC 627 : 2015 (10) SCR 1013 - referred to.
Case Law Reference
2015 (10) SCR 1013
referred to
Para 7
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 12179E
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202
SUPREME COURT REPORTS
[2016] 12 S.C.R.
A
12180of2016.
B
c
From the Judgment and Order dated 23.09.2010 in T. A. 320 of
2010 and 15.09.2011 in R.A. 10 of201l,04.04.2013 in M.A. No. 201 in
T. A. No. 320 of2010 and M.A. No. 202 of2013 in R. A. 10 of201 l of
theArmed Forces Tribunal, Regional Bench, Lucknow.
Sarvesh Singh, Ms. Herinder Kaur Brar, Ad vs. for the Appellant.
Maninder Singh, ASG., R. Balasubrainanian, Ms. Rashmi Malhotra,
Prabhas Bajaj, Santosh Kumar, Ananya Mishra, Mukesh Kumar Maroria,
Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. D. Y. CHANDRACHUD, J.
Leave granted
Delay condoned.
D
1. These appeals arise from judgment of the Armed Forces Tribunal dated 23 September 2010 and 15 September, 2016.
2. The appellant was enrolled in the Army Medical Corps on 23
June 1984. On 3 October 1997, a notice to show cause was issued to
him to explain why he should not be discharged from service under Rule
E
13(3)III(v) of the Army Rules on the ground that his conduct which in
service had not been found satisfactory. On 15 October 1997 the appellant
was placed in a low medical category BEE (Permanent). On 4 December
1998, he was discharged from service under Rule 13(3) Table (Ill)(v).
By that time he had rendered service of 13 years 8 months and 19 days
(excluding 188 days non qualifying service). The minimum qualifying
F . service for earning pension under Rule 132 of the Pension Regulations
for the Army 1961 (Part-I) is fifteen years. By an orderof22 May 1999
the appellant was also denied disability pension.
3. The petitioner filed a writ petition before the Madhya Pradesh
High Court which was dismissed on 21 November 2006. In appeal a
G
Division Bench by its judgment dated 3 January 2007 directed
reconsideration of the case of the appe Hant in terms of a ~ircular bearing
No.0201/A/164/Admn-l dated 10 January 1989. Pursuant tg the order
of the High Court an order was issued on 26 February 2007 rejecting his
claim for pension on the ground that he did not have fifteen years' service
H
and had been di~charged for the reason that he was unlikely t_o become
VIJAY SHANKAR MISHRA v. UNION OF INI5IA
203
[DR. D. Y. CHANDRACHUD, J.]
an efficient soldier. Moreover, it was stated that disability pension was
A
denied to the appellant (despite being placed in a low medical category
on account of primary hypertension) on the ground that he had earned
six red ink entries which were a part of an award of punishment on nine.
occasions.
4. The appellant filed a writ petition before the Madhya Pradesh
High Court in 2007 which was eventually transferred to the Armed Forces
Tribunal registered as TA 320 of 2010. The Tribunal dismissed the
application by its order dated 23 September 2010. The appellant then
filed a review application in 2011 which was rejected by the Tribunal on
15 September 2011. A writ petition was filed before the Madhya Pradesh
High Court which was dismissed on 4 July2012 since the remedy of the
appellant would lie before this Court. The application filed by the appellant
before the Tribunal for leave to appeal to this Court was rejected on the
ground of delay on 4 April 2013.
5. The contention of the appellant is that his discharge shortly
before he would complete qualifying service for the grant of pension
was grossly disproportionate. Moreover, reliance was placed on behalf
of the appellant on circular No.020 II A/164/ Admn-1 dated 10 January
1989 which provides as follows:
"Discharge from service consequent to four red 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".
6. In the· submission of the appellant the mere fact that he had
been punished ·while in service on nine occasions inclusive of six red
entries was no ground to exercise the power under Rule 13(3) Table
III(v). It was urged that· the mere award of four red entries does not
render a discharge mandatory and that the individual facts including the
nature of the offence for which the entries were· awarded and long .
service in hard stations where a member of the force was posted have
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SUPREME COURT REPORTS
[2016] 12 S.C.R.
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7. The issue which arises in the present case is not res integra. A
Bench of three learned Judges of this Court including one of us (the
learned Chief Justice) in Veerendra Kumar Dubey v. Chief of Army
Staff' held as follows :
;'10. The Government has, as rightly mentioned by the
learned counsel for the appellant, stipulated not only a
show-cause notice which is an indispensable part of the
requirement of the Rule but also an impartial enquiry into
the allegations against him in which he is entitled to an
adequate opportunity of putting up his defence and adducing
evidence in suppo1t thereof. More impo1tantly, certain inbuilt
safeguards against discharge from service based on four
red ink entries have also been prescribed. The first and
foremost is an unequivocal declaration that mere award of
four red ink entries to an individual does not make his
discharge mandatory. This implies that four red ink entries
is not some kind of Laxman rekha, which if crossed would
by itself render the individual concerned undesirable or
unworthy of retention in the force. Award of four red ink
entries simply pushes the individual concerned into a grey
area where he can be considered for discharge. But just
because he qualifies for such discharge, does not mean that
he must necessarily suffer that fate. It is one thing to qualify
for consideration and an entirely different thing to be found
fit for discharge. Four red ink entries in that sense take the
individual closer to discharge but does not push him over. It
is· axiomatic that the Commanding Officer is, even after
the award of such entries, required to consider the nature
of the offence for which such entries have been awarded
and other aspects made relevant by the Government in the
procedure it has prescribed."
This Court has in the above judgment construed the provisions of
Rule 13 of the Army Rules, 1954 together with a letter of the Army
Headquarters dated 28 December 1988 (bearing No. Nl5010/150/AG/
PS-2(c). Emphasising the factors which have to be borne in mind, this
1 (2016) 2 sec 627
VIJAY SHANKAR MISHRA v. UNION OF INDIA
[DR. D. Y. CHANDRACHUD, J .]
. Court held thus: .,
"16. The procedure prescribed by the Circular dated 2812-1988 far from violating Rule 13 provides safeguards
against an unfair and imp1·oper use of the power vested in
the authority, especially when even independent of the
procedure stipulated 1;y the competent authority in the
Circular aforementioned, the authority exercising the power
of discharge is expected to take into consideration all
relevant factors. That an individual has put in long years of
service giving more often than not the best part of his life to
armed forces, that he has been exposed to hard stations
and difficult living conditions during his tenure and that he
may be completing pensionable service, are factors which
the a~thority competent to discharge would have even
independent of the p~ocedure been required to take into
consideration while exercising the power of discharge.
Inasmuch as the procedure s,dpulated specifically made them
relevant for the exerc~~.e of the. power by the competent
authority there was neither any breach nor any
encroachment by executive instructions into the territory
covered by the statute."
8. In the present case, it is ev!dent that there was no application
of mind by the authorities to the circumstances which have to be taken
into consideration while exercising the power under Rule 13. The mere
fact that the appellant had crossed the threshold of four red entries could
not be a ground to discharge him without considering other relevant
circumstances including (i) the nature of the violation which led to the
award of the red ink entries; (ii) whether the appellant had been exposed
to duty in hard stations and to difficult living conditions; (iii) long years of
service, just short of completing the qualifying period for pension. Even
after the Madhya Pradesh High Court specifically directed consideration
of his case bearing in mind th;: pro,,~isions of the circular, the relevant
factors were not borne in 111i11d. The order that was passed on 26
February 2007 failed to consider relevant and germane circumstances
and does not indicate a due application of mind to the requirements of
the letter of Army Headquarters dated 28 December 1988 and the circular
dated 10 January 1989.
9. For these reasons, ·we are of the view that the Armed Forces
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SUPREME COURT REPORTS
f2016112 S.C.R.
Tribunal was in error in rejecting the application. The orders of the
Tribunal dated 23 September 2010 and 15 September 2011 are set aside.
Since the appellant would have attained the age of superannuation, the
ends of justice would be met if he is treated to have been in service till
the time he would have completed the qualifying service for grant of
pension. No back-wages shall however be admissible. The benefit of
continuity of service for all other purposes shall be granted to the appellant
including pension. The monetary benefits payable to the appellant shall
be released within a period of four months fromthe date of this order.
I 0. The appeals are allowed in these terms. There shall be no
order as to costs.
Ankit Gyan
Appeals allowed.
END OF 2016
*****