Case: Vijay Shankar Mishra Vs. Union Of India

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 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 (III) (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 service for earning pension under Rule 132 of the Pension Regulations for the Army 1961 (Part-I) is fifteen years. By an order of 22 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 Division Bench by its judgment dated 3 January 2007 directed reconsideration of the case of the appellant in terms of a circular bearing No.0201/A/164/Admn-1 dated 10 January 1989. Pursuant to 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 and had been discharged for the reason that he was unlikely to become an efficient soldier. Moreover, it was stated that disability pension was 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 July 2012 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.

Reasoning:
8. In the present case, it is evident 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 the provisions of the circular, the relevant factors were not borne in mind. 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 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 from the date of this