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While working at Military Hospital, Allahabad, a show-cause notice dated 28.7.1989, issued by Lieutenant Colonel 'A' from Headquarter, Allahabad Sub Area, Allahabad, was served upon the appellant/petitioner, mentioning the details of four red ink entries, requiring the appellant/petitioner to show-cause as to why he be not discharged from service. Appellant/petitioner herein has filed his reply on 21.8.1989. A copy of the show-cause notice as well as the discharge order are on record of this appeal. The Competent Authority i.e. Commanding Officer has passed the order of discharge on 17.11.1989 (Annexure No. 3 of the Stay Application).

Refuting the submission of the learned counsel for the petitioner, Sri Ashok Singh, learned counsel for Central Government submitted that before awarding red ink entries to the appellant/petitioner, the petitioner was given full opportunity and after considering his reply the red ink entries were awarded. There was no need to provide further opportunity to rebut the charges as has been submitted by the learned counsel for the petitioner. In addition to that, he also submitted that under the Army Rule 13(III)(V), there was no requirement to hold an enquiry for proving the charges mentioned in the show-cause notice, therefore, there was no procedural lapse for which it can be said that the inquiry is vitiated. He has also submitted that there is no requirement to record the reasons in detail after considering the contents of the show-cause notice and reply to the show-cause notice, while passing the order of discharge.

"14. It is true that Rule 13 does not in specific terms envisage an enquiry nor does it provide for consideration of factors to which we have referred above. But it is equally true that Rule 13 does not in terms make it mandatory for the competent authority to discharge an individual just because he has been awarded four red ink entries. The threshold of four red ink entries as a ground for discharge has no statutory sanction. Its genesis lies in administrative instructions issued on the subject. That being so, administrative instructions could, while prescribing any such threshold as well, regulate the exercise of the power by the competent authority qua an individual who qualifies for consideration on any such administratively prescribed norm. Inasmuch as the competent authority has insisted upon an enquiry to be conducted in which an opportunity is given to the individual concerned before he is discharged from service, the instructions cannot be faulted on the ground that the instructions concede to the individual more than what is provided for by the rule. The instructions are aimed at ensuring a non-discriminatory, fair and non-arbitrary application of the statutory rule."

The order of discharge did not follow the spirit of the circular dated 28.12.1988 which mandates that before passing the order of discharge, the authority concerned must look into the gravity of the charges and consider other facts. The appellant/petitioner was going to complete pensionable service within five months. Further more this is not mandatory that when a person has been awarded four red ink entries, he must be terminated/discharged from the service.

In view of the facts that no reason is recorded to discharge the petitioner/appellant from the service and he has been discharged only for the reasons that four red ink entries have been awarded to the petitioner/appellant, in our view, it is in violation of the circular dated 11.03.1985. Therefore, in the light of discussions made, herein above, and the law laid down by the Apex Court in the case of Veerendra Kumar Dubey (supra), we are of the considered opinion that the order passed by the commanding officer to discharge the petitioner/appellant from the service is petantly illegal unsustainable in the eye of law. Therefore, we set aside the order of writ Court dated 23.03.2004 and discharge order dated dated 17.11.1989 passed by Colonel/Commanding Officer.