IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SIXTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 22230 of 1997 Between: Sri M.A.Aleem, S/o Sri M.A.Wahab, R/o Village & Mandal Kodangal, Mahaboobnagar District, Residing at C/o H.No.8-3-234/66/16, Lakshmi Narasimha Nagar, Hyderabad. ..... PETITIONER AND 1 The Union Of India, Rep by its Director of general/Personal Affairs, Cheif of Army Staff, Army head Quarters, Sainabhavan, New Delhi. 2 The Director General of EME, Army Head Quarters, DHQ, PO New Delhi-110 011. 3 The Brigade Commander, Head Quarters, 33 ARTY BED, C/o 56 APO. 4 The Commanding Officer, 153, MED REGT(SP), C/o 56 APO. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue writ or order particularly writ in the nature of certiorari calling for the records pertaining to the proceedings of Respondent No.3 in discharge order vide HQ 33 ARTY BDE, Lr.No.403503/35/A, dt.27-1-97 through which petitioner was discharged as un-desirable person to serve in the Army and quash the same being highhanded, arbitrary and illegal act of the Respondent No.3 and direct the respondents to take petitioner in service with all backwages and other benefits and pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice. Counsel for the Petitioner:MR.BAJRANG SINGH THAKUR Counsel for the Respondents: 1. MR.S.S.VARMA (ADDL CGSC) 2.MR.A.SANJEEVA KUMAR The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.22230 of 1997 ORDER: This Court had, earlier, disposed of the writ petition, by an order dated 01.03.2007, holding that the impugned order of discharge did not necessitate interference as the petitioner did not suffer any prejudice on the failure on the part of the respondents in complying with certain procedural requirements. This Court, taking into consideration Note-2 of para 5(f) of the instructions dated 28.12.1988, directed the 2nd respondent to place the entire records including the sanction order passed by the 3rd respondent, before the next higher Commander for his necessary approval, and that the higher Commander should pass an order within a period of three months from the date of receipt of a copy of the order of this Court. Aggrieved thereby the petitioner filed Writ Appeal No.865 of 2007 and the Division Bench of this Court, by an order dated 12.10.2008, after extracting Clause 5(f) Note-2 of the instructions dated 28.12.1998, observed as under:- “ A reading of the above reproduced clause makes it clear that mere incurring of four red ink entries does not make discharge of an employee mandatory. In order to discharge an employee, the officer must be satisfied that it is absolutely necessary to do so in the interest of service. As could be seen from the show cause notice dated 28.11.1996, the sole ground on which the discharge of the appellant was proposed was his incurring four red ink entries between November 1991 and August 1996. In his reply, the appellant cited ill-health and domestic problems as the reasons for his incurring red ink entries and requested that he may be given another chance to serve the Indian Army without blemish. The order of discharge does not show objective consideration of Note-2 of Clause 5(f) and the reply submitted by the appellant. It is, therefore, reasonable to take the view that respondent No.3 discharged the appellant without applying his mind to the relevant provision and the reply of the appellant. The learned Single Judge has not gone into this aspect of the matter. Therefore, we feel that ends of justice will be met by setting aside the order under challenge and remanding the case to the Single Bench for fresh adjudication. In the result, the appeal is allowed. The order of the learned Single Judge is set aside and the case is remanded for fresh adjudication of the writ petition.” It is not in dispute that the order of the Division Bench has attained finality, as the respondents have not chosen to carry the matter in appeal to the Supreme Court. The judgment of the Division Bench is, therefore, binding interparties. As has been held by the Division Bench, Clause 5(f) Note-2 does not automatically necessitate an order of discharge being passed against an employee merely on his incurring four red ink entries, and since the impugned order of discharge has been passed only on that account without taking into consideration several other factors stipulated in Clause 5(f) Note-2 and the reasons furnished by the petitioner in his reply, the impugned order of discharge is liable to be quashed. Needless to state that quashing of the impugned order would not preclude the competent authority from passing an order afresh, in accordance with law. It goes without saying that, as required under Clause 5(f) Note-2, even if the competent authority passes an order of discharge, the said order would require approval by the next higher Commander. The writ petition is allowed. However, in the circumstances, without costs. _______________________ (RAMESH RANGANATHAN,J) 26th March, 2008 v v To 1 Director of general/Personal Affairs, Chief of Army Staff, Army head Quarters, Union Of India, Sainabhavan, New Delhi. 2 The Director General of EME, Army Head Quarters, DHQ, PO New Delhi-110 011. 3 The Brigade Commander, Head Quarters, 33 ARTY BED, C/o 56 APO. 4 The Commanding Officer, 153, MED REGT(SP), C/o 56 APO. 5. Two CD copies.