VEERENDRA KUMAR DUBEY versus CHIEF OF ARMY STAFF & ORS.
[2015] 10 S.C.R. 1013, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
[2015] 10 S.C.R. 1013 
VEERENDRA KUMAR DUBEY 
v. 
CHIEF OF ARMY STAFF & ORS. 
(Civil Appeal D.No. 32135 of2015) 
OCTOBER 16, 2015 
[ T.S. THAKUR, V. GOPALA GOWDA AND 
R. BANUMATHI, JJ. ] 
A 
B 
Service Law- Disciplinary inquiry- Whether required -
In case of discharge under r. 13(11/)(v) of Army Rules, 1953 rl C 
w. Army HQ letter NO. A/150101150/AGIPS-2(c) dated 28th 
December, 1988- Discharge of delinquent without following 
the procedure for discharge laid down under the letter dated 
28th December, 1988 - On the ground that he had been 0 
awarded four 'red ink entries' - Held: R. 13 does not in specific 
terms envisage an inquiry - However, the letter dated 2EJlh 
December, 1988 prescribes for an impartial inquiry-As per 
the procedure laid in letter dated 28th December, 1988 it is 
not mandatory to discharge on the ground of four 'red ink E 
entries' - Thus discharge on this ground has no statutory 
sanction - Its genesis lies in administrative instructions -
Therefore, administrative instructions would regulate the 
exercise of power to discharge -
The letter dated 281h 
December, 1988 provides safeguards against an unfair and F 
improper use of power which ifleft unregulated or uncanalised 
would offend Art. 14 of the Constitution - The administrative 
instructions neither breached nor encroached into the tenitory 
covered by the statute - In the present case, the discharge 
order was passed without taking into consideration the factors G 
made relevant under Note to
Para 5(f) of the letter - It was 
necessary by the competent authority to hold an inquiry for 
finding out the defence of the delinquent besides 
consideration of the factors provided under Note to Para 5(f) 
H 
1013
1014 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A - The order of discharge is set aside - Since the delinquent 
has superannuated, he would be treated to have been in 
service, till he would have completed the qualifying service 
for grant of pension - No back wage$ are granted -Army HQ 
Letter NO. A/15010!150/AG!PS-2(c) dated 281h December, 
B 
1988. 
Administrative Law-Administrative Instructions- Scope 
of - Held: Administrative instructions cannot make inroads 
into statutory rights of an individual - But if an administrative 
C authority prescribes a certain procedural safeguard against 
arbitrary exercise of powers, such safeguards or procedural 
equity and fairness will not fall foul of the rule or called ultra 
vires the statute. 
D 
Allowing the appeal, the Court. 
HELD: 1. A plain reading of r. 13 of Army Rules, 1953 
makes it abundantly clear that the rule does not provide 
for anything beyond an opportunity to the individual 
E concerned to show cause against his contemplated 
discharge before the competent authority passes any 
such order of discharge. On a strict interpretation of Rule 
13(111)(V), therefore, one could perhaps say that the letter 
of the law has been complied with inasmuch as an 
F opportunity has been afforded to the appellant to show 
cause against the contemplated discharge. [Para 8] 
(1025-G-H; 1026-A-B] 
2. However, the Government has, stipulated not only 
G a show cause notice which is an indispensable part of 
the requirement of Rule 13
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 support thereof. More importantly, 
H certain inbuilt safeguards against discharge from service
VEERENDRA KUMAR DUBEYv. CHIEF OF ARMY STAFF 1015 
&ORS. 
based on four red ink entries have also been prescribed. A 
Mere award of four red ink entries to an individual does 
not make his discharge mandatory. It simply pushes the 
individual concerned into a grey area where he can be 
considered for discharge. Four red ink entries in that 
sense takes the individual closer to discharge but does B 
not push him over. T.he 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. [Para 8) [1026-B-G] 
C 
3. What is evident from the procedural mandate given 
to the authorities is to ensure that discharge is not 
ordered mechanically and that the process leading to 
the discharge of an individual is humanized by the D 
requirement of an impartial enquiry into the matter and 
fair opportunity to the concerned especially when he is 
about to complete his pensionable service. Equally 
significant is the fact that the authority competent to 
discharge is required to take into consideration certain E 
factors made relevant by the circular to prevent injustice, 
unfair treatment or arbitrary exercise.of the powers 
vested in the Authority competent to discharge. For 
instance Note 2 to Rule 5 requires the competent authority 
to take into consideration the long service rendered by F 
the individual, the hard
stations he has been posted to 
and the difficult living conditions to which the individual 
has been exposed during his tenure. It is only when the 
competent authority considers discharge to be 
absolutely essential after taking into consideration the G 
factors aforementioned that discharge of the individual 
can be validly ordered. [Para 11] [1029-C-F] 
4. It is true that Rule 13 does not in specific terms 
envisage an enquiry. But it is equally true that Rule 13 H
1016 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 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 
B 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 
C norm. The instructions are aimed at ensuring a non-
discriminatory fair and non-arbitrary application of the 
statutory rule. Administrative instructions cannot make 
inroads into statutory rights of an individual. But if an 
0 
administrative authority prescribes a certain procedural 
safeguard to those affected against arbitrary exercise 
of powers, such safeguards or procedural equity and 
fairness will not fall foul of the rule or be dubbed ultra 
vires of the statute. [Para 12] [1029-H; 1030-A-F] 
E 
5. The procedure prescribed by Circular dated 281h 
December, 1988 far from violating Rule 13 provides 
safeguards against an unfair and improper use of the 
power vested in the authority, especially when even 
independent of the procedure stipulated by the 
F competent authority in the circular aforementioned, the 
authority exercising the power of discharge is
expected 
to ~ake into consideration all relevant factors. [Para 12] 
[1030-F-G] 
G 
6. The procedure presented simply regulates the 
exerc.ise of power which would, but for such regulation 
and safeguards against arbitrariness, be perilously close 
to being ultra vires in that the authority competent to 
discharge shall, but for the safeguards, be vested with 
H uncanalised and absolute power of discharge without
VEE REN ORA KUMAR DUBEYv. CHIEF OF ARMY STAFF 1017 
&ORS .. 
. any guidelines as to the manner in which such power A 
may be exercised. Any such unregulated and 
uncanalised power would in turn offend Article 14 of the 
Constitution. [Para 12] [1031-B-D] 
7. In the present case, no enquiry whatsoever was B 
conducted by the Commanding Officer at any stage 
against the appellant as required under para 5(a) of the 
procedure. There is nothing on record to suggest that 
the authority competent had taken into consideration the 
long service rendered by the appellant, the difficult living C 
conditions and the hard stations at which he had served. 
There is nothing on record to suggest that the nature of 
the misconduct leading to the award of red ink entries 
was so unacceptable that the oompetent authority had 
no option but to direct his dis_charge to prevent D 
indiscipline in the force. Number of other personnel are 
still in service no matter they have earned four red ink 
entries on account of overstaying leave. If that be so, 
the only safeguard against arbitrary exercise of power 
by the authority would be to ensure that there is an E 
enquiry howsoever summary and a finding about the 
defence set-up by the individual besides consideration 
of the factors made relevant under the note to para 5(f) 
of the procedure. [Para 13] [1031-D-H; 1032-A] 
F 
8.The order of discharge passed against the 
appellant is set aside. Since the appellant has already 
crossed the age of
superannuation, interest of justice 
will be sufficiently served if it is directed that the appellant 
shall be treated to have been in service till the time he G 
would have completed the qualifying service for grant 
of pension.No back wages shall, however, be admissible. 
Benefit of continuity of service for all other purpose shall, 
be granted to the appellant including pension. [Para 15) 
[1033-H; 1034-A-B] 
H
1018 
SUPREME COURT REPORTS 
[2015) 10 S.C.R. 
A 
Union of India and Ors. v. Corporal A. K. Bakshi 
and Anr. (1996) 3 sec 65: 199"' (2) SCR 986; 
Union of India and Ors. v. Rajesh Vyas (2008) 3 
sec 386: 2008 (2) SCR 571; Union of India and 
Ors. v. Deepak Kumar Santra (2009) 7 SCC 
B 
370: 2009 (8 ) SCR 281; Union of India v. 
c 
D 
E 
F 
Ba/want Singh 2015(7) JT 368 - distinguished.· 
Surinder Singh v. Union of India (2003) 1 SCT 
697 - not approved. 
Union of India and Ors. v. Harjeet Singh Sandhu 
(2001) 5 sec 593: 2001 ( 2 ) scR 1121 -
referred to. 
Case- Law Reference 
2001 ( 2) SCR 1127 
referred to. 
Para 6 
1996 (2) SCR 986 
distinguished. Para 14 
2008 (2) SCR 571 
distinguished. Para 14 
2009 (8 ) SCR 281 
distinguished. Para 14 
2015(7) JT 368 
distinguished. Para 14 
(2003) 1 SCT 697 
not approved. 
Para 14 
CIVILAPPELLATE JURISDICTION: Civil Appeal D. No. 
32135 of2013 
From the Judgment and Order dated 14.12.2011 of the 
G Armed Forces Tribunal Chandigarh Regional Bench, Lucknow 
in Transferred Application No. 16 of2011 
Jitendra Mohan Sharma, Girish Chand Tyagi, Varinder 
Kumar Sharma, Kailash Pandey, Balendra Tiwari, lndrajeet 
H Mishra, Brijesh Tyagi, Chi rag Mahalwal for the Appellant.
VEERENDRA KUMAR DUBEYv. CHIEF OF ARMY STAFF 1019 
&ORS. 
Maninder Singh, ASG, R. Balasubramanian, Ashok A 
Panigrahi, Santosh Kumar, Pranav Kumar, B. V. Bairam Das 
forthe Respondents. 
The Judgment of the Court was delivered by 
T. S. THAKUR, J. 1.This appeal under Section 31 of the 
B 
Armed Forces Tribunal Act, 2007, is directed against a 
judgment and order dated 14th December 2011 passed by 
the Armed Forces Tribunal, Regional Bench at Lucknow 
whereby the Tribunal has dismissed Transferred Application 
No.16 of 2011 filed by the appellant in the process affirming C 
an order of discharge passed against the appellant by the 
competent authority under Rule 13(11 l)(v) of the Army Rules, 
1954. 
2. The appellant was enrolled as an Operator in the corps D 
of Artillery of Indian Army on 27th September, 1980. Having 
served in that capacity for nearly 12 years, he received a show 
cause notice pointing out that he had been awarded four red 
ink entries for various offences set out in the notice and that 
the appellant had become a habitual offender thereby setting 
E 
a bad example of indiscipline in the army. The notice, on that 
premise, called upon the appellant to show cause as to why 
he should not be discharged from service under Army Rule 
13(111)(v) read with Army HQ letter No.A/15010/150/AG/PS-2(c) 
dated 28th December, 1988. 
F 
3. The appellant submitted a reply to the show cause notice 
which does not appear to have cut any ice with the competent 
authority
resulting in his discharge by an order dated 141h 
December, 1992. Aggrieved, the appellant preferred an appeal G 
before respondent No.2 which proved of no avail. The authority 
in the meantime issued a discharge order/certificate of service 
on 15th October, 1993 which the appellant challenged in MP 
No.1980of1994 before the High Court of Madhya Pradesh at 
Jabalpur. That petition was dismissed by the High Court on 
H
1020 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 
18th January, 2006 on the ground of lack of territorial jurisdiction 
aggrieved whereof the appellant filed \/VritAppeal No.429 of 
2006 which came to be transferred to the Armed Forces 
Tribunal, RE::gional Bench, Lucknow and renumbered as 
Transferred Application No.16 of2011. The Tribunal by its order 
B dated 14th December, 2011 has now dismissed the transferred 
petition giving rise to the present appeal. 
4. The material facts are not in dispute. It is not in dispute 
thatthe appellant had within a period of 12 years of the seNice 
c suffered as many as four red ink entries. All these entries were 
awarded to him on account of overstaying leave for a period 
ranging between 29 days to 66 days. The fourth red ink entry 
was earned on account of a severe reprimanq awarded to 
him by the Commanding Officer in August, 1992. It is 
D noteworthy that the first red ink entry was made on 251h July, 
1982, the second on 28th December, 1985, the third on 13th 
September, 1991 and the last on 13th August, 1992. It is also 
not in dispute that the appellant had filed a reply to the show 
cause notice issued to him in which he had explained the 
E reasons for his overstaying the leave period in 1982 and 
attributed his failure to report back for duty to the medical 
condition of his wife. In regard to the second red ink entry he 
had offered an explanation based on his own illness and 
treatment in the district hospital. So also he
had offered 
F explanations for the other two red ink entries. These 
explanations notwithstanding the competent authority decided 
to discharge him from seNice without any enquiry whatsoever. 
5. Before the Courts below and so also before us, the 
G competence of the authority who discharged the appellant was 
not questioned by the appellant. What was all the same argued 
at considerable length by learned counsel for the appellant was 
that the availability of power to discharge was not enough. What 
was equally important is whether the power was exercised in 
H . a fair and reasonable manner keeping in view the guidelines
VEERENDRAKUMAR DUBEYv. CHIEF OF ARMY STAFF 1021 
& ORS. [T.S.THAKUR, J.] 
, 
which the Government had issued for such exercise. It was A 
contended that the Government had prescribed the procedure 
for the removal of undesirable and inefficient JC Os, WO and 
ORs in terms of a circular dated 281h December, 1988. The 
circular, it was contended, postulates not only the issue of a 
show cause notice to the individual concerned, but also a 
B 
preliminary enquiry before recommending his discharge or 
dismissal. The individual concerned, it was argued, must have 
had an adequate opportunity to offer his explanation and to 
produce evidence in his defence. Not only that the enquiry ought 
to conclude that the allegations stood substantiated warranting C 
termination of service of the delinquent. The fact that discharge 
from service, consequent upon an individual earning four red 
ink entries is not mandatory. This, according to the learned 
counsel, was evident from a plain reading of the procedure D 
prescribed by the competent authority. It was also submitted 
that while considering the question of retention or discharge 
based on four red ink entries, the Commanding Officer was 
duty bound to consider not only the nature of the offences for 
which such entries had been awarded but also take into E 
consideration the long service and the harsh conditions to which 
the individual had been exposed during his tenure. Discharge 
can under the guidelines issued by the competent
authority be 
ordered only where it is absolutely necessary to do so. The 
procedure prescribed by the competent authority for the 
F 
exercise of the power of discharge under Rule 13 was, 
according to the learned counsel, observed but only in breach 
thereby rendering the discharge of the appellant illegal. 
6. On behalf of the respondent it was contended by Mr. 
G 
Maninder Singh, Additional Solicitor General that Rule 13 of 
the Army Rules did not provide for any specific procedure to 
be followed for discharge of undesirable persons or habitual 
offenders. The procedure prescribed for the exercise of the 
power of discharge in terms of the circular relied upon by the H
1022 
SUPREME COURT REPORTS 
(2015] 10 S.C.R. 
A 
appellant was, according to the learned counsel, directory and 
did not create any right in the individual concerned to demand 
an enquiry in the matter. The procedure was in any case de 
hors the provisions of Rule 13 of the Army Rules, hence un-
enforceable. Reliance in support was placed upon the 
B decisions of this Court in Union of India and Ors. v. Corporal 
A.K. Bakshi andAnr. (1996) 3 SCC 65, Union of India and 
Ors. v. Rajesh Vyas (2008) 3 SCC 386, and Union of India 
and Ors. v. Deepak Kumar Santra (2009) 7 SCC 370. 
Reliance was also placed upon a recent decision of this Court 
C in Union of India v. Ba/want Singh (Civil Appeal No. 5616 
of2015) and a three-Judge Bench decision in Union oflndia 
and Ors. v. Harjeet Singh Sandhu (2001) 5 SCC 593 apart 
from a Division Bench decision of the High Court of Delhi in 
0 
Surinder Singh v. Union of India (2003) 1 SCT 697. 
7. Section 22 of the Army Act, 1950 provides that any 
person subject to the said Act may be retired, released or 
discharged by such authority and in such manner as may be 
prescribed. Section 23 envisages the issue of a certificate on 
E termination of service to every junior commissioned officer, 
warrant officer, or enrolled person, who is dismissed, removed, 
discharged, retired or released from service. Section 191 of 
the Act empowers the Central Government to make rules for 
F the purpose of. carrying into effect the provisions of the Act. 
The
rules may, inter a/ia, provide for removal, retirement, or 
release upon discharge from service of persons subject to the 
rule. The Government has in exercise of that power framed 
Army Rules, 1953, Rule 13(111)(v) whereof applicable to the case 
G at hand empowers the Brigade and Sub Area Commander to 
direct such discharge after giving to the person whose 
discharge is contemplated, an opportunity to show cause· 
against the same provided the circumstances of the case 
permit the grant of such opportunity. Rule 13 (1 ), (2), (2A), (3)(111) 
H and the Table below the same are extracted :
VEERENDRA KUMAR DUBEYv. CHIEF OF ARMY STAFF 1023 
& ORS. [TS.THAKUR, J.] 
"13.Authorities empowered to authorise 
A 
discharge- (1) Each of the authorities specified 
in column 3 of the Table below shall be the 
competent authority to discharge from service 
person subject to the Act specified in column 1 
thereof on the grounds specified in column 2. 
B 
(2) Any power conferred by this rule on any of the 
aforesaid authorities shall also be exercisable by 
any other authority Superior to it. 
(2A) Where the Central Government or the Chief 
of the Army Staff decides; that any person or class 
or persons subject to the Act should be discharged 
from service, either unconditionally or on the 
c 
fulfilment of certain specified conditions, then, 
o 
notwithstanding anything contained in this rule, the 
Commanding Officer shall also be the competent 
authority to discharge from service such person 
or any person belonging to such class in 
accordance with the said decision. 
E 
(3) In this table "commanding officer" means the 
officer commanding the corps or department to 
which the person to be discharged belongs except 
that in the case of junior commissioned officers 
F 
and warrant officers of the Special Medical Section 
of the Army Medical Corps, the "commanding 
officer" means the Director of the Medical 
Services, Army, and in the case of junior 
commissioned officer and warrant officers of 
G 
Remounts, Veterinary and Farms, Corps, the 
"Commanding Officer" means the
Director 
Remounts, Veterinary and Farms. 
H

1024 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 
Category 
Grounds of 
Competent 
Manner of 
I 
discharge 
authority to 
discharge 
authorize 
B 
dischalJJ!!. 
1 
2 
3 
4 
Junior 
xxxxxxxxx 
xxx 
' 
Commissioned 
officers 
. 
, 
11\fcurant Officer 
xxxxxxxxx 
xxx 
I 
Persons enrolled Ill. (i) On fulfilling , Corrur.anding 
under the Act the conditions of Officer in the case 
c 
who have been his enrolrrent or of a person of the 
attested 
having 
reached rank of havildar 
the stage at which (or 
equivalent 
discharge may be rank) where such 
D 
enforced. 
person is to be 
discharged 
Otherwise than at 
his own request 
and where 
the 
commanding 
officer below the 
rank of Ueutenant 
E 
Colonel, 
the 
brigade or sub 
Area Corrmander, 
(SRO 11&'65 
Ill. 
(ii) 
On Commanding 
Applicable 
to 
F 
corrpletion of a Officer (in case of person enrolled for 
period of anny the 
persons both Anny seNice 
service only, there unwilling 
to and 
Reserve 
being no vacancy extend their Arm/ Service. (A pers9n 
in the Reserve 
Service) 
who has the right 
to extend his Anny 
service and wishes 
to 
exerdse 
that 
G 
right 
cannot 
be 
. discharge 
under 1 
this head) 
I 
H
VEERENDRAKUMAR DUBEYv. CHIEF OF ARMY STAFF 1025 
& ORS. [TS.THAKUR, J.] . 
Ill 
(iiij 
Having Corrmanding 
To be carried out 
A 
been 
found aficer 
only 
• on 
the. 
n:scJically unfit for 
rerorrrnendation 
further service 
of an Invaliding 
Board 
Ill (iv) At his owi Corrmanding 
The Corrrranding 
request 
before aficer 
officer will exercise 
B 
fulfilling 
the 
the 
power only 
conditions of his 
when 
he 
is 
enro/rrent 
satisfied as to the 
desirability 
of 
sanctioning 
the 
application and the 
strength of the unit c 
will not thereby be 
undulv reduced. 
Ill (v) All other Brigade/Sub-Area 
The 
Brigade or 
dasses 
of Corrmander 
Sub 
Area 
discharge 
Corrrrander 
before ordering the 
D 
discharge shall, if 
the circumstances 
of the case perrrit 
give to the person 
whose discharge is 
conterrplated 
an 
E 
opportunity 
to 
shON 
cause 
against 
- the 
conterrplated 
. 
discharge . 
Persons enrolled xxxxxxxxx 
xxx 
under the Act 
F 
wf1o have not 
been arrested 
8. A plain reading of the above makes it abundantly clear 
that the rule does not provide for anything beyond an opportunity 
to the individual concerned to stiow cause against his G 
contemplated discharge before the competent authority 
passes any such order of discharge. That a show cause notice 
was issued to the petitioner in the present case before his 
discharge is not denied. On a strict interpretation of Rule H
1026 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 
13(111)(V), therefore, one could perhaps say that the letter of 
the law has been complied with inasmuch as an opportunity 
has been afforded to the appellant to show cause against the 
contemplated discharge. The question·, however, is whether 
that was enough having regard to the procedure which the 
B 
Government has stipulated for the exercise of the power vested 
in the competent authority under Rule 13 of the Army Rules 
(supra). The Government has, as rightly mentioned by learned 
counsel for the appellant, stipulated not only a show cause 
notic;e which is an indispensable part of the requirement of the 
C 
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 support thereof. More 
importantly, certain inbuilt safeguards against discharge from 
0 
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 lax man rekha, which if crossed 
E 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 
F 
necessarily suffer that fate. It is one thing to qualify for 
consideration and an entirely different to be found fit for 
discharge. Four red ink entries in that sense takes 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 
G 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 prescribeC:. 
9. We may at this stage gainfully extract the relevant 
H portion of the procedure prescribed for dismissal:
VEERENDRA KUMAR DUBEYv. CHIEF OF ARMY STAFF 1027 
& ORS. [T.S.THAKUR, J.] 
"Procedure 
for dismissal/discharge 
of 
A 
Undesirable JCOs/WOs/OR: 
4. AR 13 ahd 17 provide that a JCOIWOIOR whose 
dismissal or discharge is contemplated will be 
given a show cause notice. As an exception to this, 
B 
services of such a person may be terminated 
without giving him a show cause notice provided 
the competent authority is satisfied that it is not 
expedient or reasonably practicable to service 
such a notice. Such cases should be rare, e.g., 
C 
where the interests of the security of the State so 
require. Where the service of a show cause notice 
is dispensed with, the reasons for doing so are 
required to be recorded. See proviso to AR 17. 
5. 
xxxxxxxxxxxxx 
(a) Preliminary Enquiry. Before recommending 
discharge or dismissal of an individual the authority 
concerned will ensure:-
(i) 
that an impartial enquiry (not necessarily a 
Court of Inquiry) has been made into the _a/legations 
D 
E 
·against him and that he has had adequate 
opportunity of putting up his defence or explanation F 
and of adducing evidence in his defence. 
(ii) 
that the a/legations have been substantiated 
and that the extreme step of termination of the 
individual's service is warranted on the merits of the 
case. 
G 
(f) Final orders bv the competent Authoritv. The authority 
competent to sanction the dismissal/discharge of the 
individual will before passing orders reconsider the 
case in the light of
the individual's reply to the show H
1028 
A 
B 
c 
D 
E 
F 
G 
SUPREME COURT REPORTS 
[2015] 10S.C.R. 
cause notice. A person who has been served with a show 
cause notice for proposed dismissal may be ordered 
to be discharged if it is considered that discharge would 
meet the requirements of the case. If the competent 
authority considers that termination of the individual's 
service is not warranted but any of the actions referred 
to in (b) to (d) of Para 2 above would meet the 
requirements of the case, he may pass orders 
accordingly. On the other hand, if the competent 
authority accepts the reply of the individual to the show 
cause notice as entirely satisfactory, he will pass orders 
accordingly. 
Note:-1. As far as possible, JCO, WO and OR awaiting 
dismissal orders will not be allowed to mix with other 
personnel. 
2. Discharge from service consequent to four red ink 
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. Such discharge should be approved by the next 
higher Commander." 
10. A careful re~ding of the above
would show that the 
competent authority has made it abundantly clear to officers 
competent to direct discharge that before discharging an 
individual, not only should there be a show cause notice but an 
H enquiry into the allegations made against the individual
VEERENDRA KUtv1AR L:UBEYv. CHIEF OF ARMY STAFF 1029 
& ORS. [TS.THAKUR, J.] 
concerned in which he ought to be given an opportunity of A 
putting up his defence and that the allegations must stand 
substantiated for a discharge to follow. 
11. Para 5(f)(2) (supra) underscores the importance of 
the truism that termination of the individual's service is an 
B 
extreme step which ought to be taken only if the facts of the 
case so demand. What is evident from the procedural mandate 
given to the authorities is to ensure that discharge is not 
ordered mechanically and that the process leading to the 
discharge of an individual is humanized by the requirement of C 
an impartial enquiry into the matter and fair opportunity to the 
concerned especially when he is about to complete his 
pensionable service. Equally significant is the fact that the 
authority competent to discharge is required to take into 
consideration certain factors made relevant by the circular to D 
prevent injustice, unfair treatment or arbitrary exercise of the 
powers vested in the Authority competent to discharge. For 
instance Note 2 to Rule 5 (supra) requires the competent 
authority to take into consideration the long service rendered 
by the individual, the hard stations he has been posted to and 
E 
the difficult living conditions to which the individual has been 
exposed during his tenure. It is only when the competent 
authority considers discharge to be absolutely essential after 
taking into
consideration the factors aforementioned that F 
discharge of the individual can be validly ordered. 
12.The argument that the procedure prescribed by the 
competent authority de hors the provisions of Rule 13 and the 
breach of that procedure should not nullify the order of 
discharge otherwise validly made has not impressed us. It is G 
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 
H
1030. 
SUPREME COURT REPORTS 
[2015] 1 O S.C.R. 
A 
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 
B 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 
C individual concerned before he is discharged from service, 
the instructions cannot be faulted on the ground !hat the 
instructions concede to the individual more than what is 
provided for by the rule. The instructions are aimed at ensuring 
0 
a non-discriminatory fair and non-arbitrary application of the 
statutory rule. It may have been possible to assail the circular 
instructions if the same had taken away something that was 
granted to the individual by the rule. That is because 
administrative instructions cannot make inroads into statutory 
E rights of an individual. But if an administrative authority 
prescribes a certain procedural safeguard to those affected 
against arbitrary exercise of powers, such safeguards or 
procedural equity and fairness will not fall foul of the rule or be 
dubbed
ultra vires of the statute. The procedure prescribed 
F 
by circular dated 28th December, 1988 far from violating Rule 
13 provides safeguards against an unfair and improper use 
of the power vested in the authority, especially when even 
independent of the procedure stipulated by the competent 
authority in the circular aforementioned, the authority exercising 
G 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 
H completing pensionable service are factors which the authority
VEERENDRAKUMAR DUBEYv. CHIEF OF ARMY STAFF 1031 
& ORS. [T.S.THAKUR, J.] 
competent to discharge wou!d have even independent of the A 
procedure been required to take into consideration while 
exercising the power of discharge. Inasmuch as the procedure 
stipulated specifically made them relevant for the exercise of 
the power by the competent authority there was neither any 
breach nor any encroachment by executive instructions into 
B 
the territory covered by the statute. The procedure presented 
simply regulates the exercise of power which would, but for 
such regulation and safeguards ag3inst arbitrariness, be 
perilously close to being ultra vires in that the authority 
competent to discharge shall, but for the safeguards, be vested 
C 
with uncanalised and absolute power of discharge without any 
guidelines as to the manner in which such pow~r may be 
exercised. Any such unregulated and uncanalised power would 
in turn offend Article 14 of the Constitution. 
D 
13. Coming then to the case at hand, we find that no 
enquiry whatsoever was conducted by the Commanding 
Officer at any stage against the appellant as required under 
para 5(a) of the procedure extracted above. M .. ore importantly, 
there is nothing on record to suggest that the authority E 
competent had taken into consideration the long service 
rendered by the appellant, the difficult living conditions and 
the hard stations at which he had served. There is nothing on 
record to suggest that the nature of
the misconduct leading to 
F 
the award of red ink entries was so unacceptable that the 
competent authority had no option but to direct his discharge 
to prevent indiscipline in the force. We must, in fairness, 
mention that Mr. Maninder Singh, ASG, did not dispute the fact 
that any number of other personnel are still in service no matter G 
they have earned four red ink entries on account of overstaying 
leave. If that be so, the only safeguard against arbitrary exercise 
of power by the authority would be to ensure that there is an 
enquiry howsoever summary and a finding about the defence 
set-up by the individual besides consideration of the factors 
H
1032 
SUPREMECOURTREPORTS 
[2015] 10 S.C.R. 
A 
made relevant under the note to para S(f) of the procedure. It 
is common ground that a red ink entry may be earned by an 
individual for overstaying leave for one week or for six months. 
In either case the entry is a red ink entry and would qualify for 
consideration in the matter of discharge. If two persons who 
B suffer such entries are treated similarly notwithstanding the 
gravity of the offence being different, it would be unfair and 
unjust for unequals cannot be treated as equals. More 
importantly, a person who has suffered four such entries on a 
graver misconduct may escape discharge which another 
C individual who has earned such entries for relatively lesser 
offences may be asked to go home prematurely. The 
unfairness in any such situation makes it necessary to bring in 
safeguards to prevent miscarriage of justice. That is precisely 
D what the procedural safeguards purport to do in the present 
case. 
14. Reliance upon the decisions of this Court in the cases 
referred to earlier is, in our opinion, of no help to the responder:it 
for the· same ti ave not adverted to the procedure prescribed 
E for the exercise of the power of discharge. In Union of India 
v. Corpora/A.K. ljJakshi &Anr. (supra) the question before 
this Court was whether an order of discharge passed in 
pursuance of the Policy for Discharge of Habitual Offenders 
F 
could be considered a discharge simplicitor as envisaged in 
15(2)(g)(ii) or
if it would tantamount to termination of service 
by way of punishment under Rule 18 of the said Rules. The 
Court came to the conclusion that it was a discharge simplicitor 
and a~ such it could not be held as termination of service by 
G way of a punishment for misconduct. This was clearly not a 
case where the procedure for discharge was not followed. The 
Court had, in that case, unequivocally held that there was no 
dispute between the parties that the procedure had been duly 
followed. Similarly, the decision of this Court in Union oflndia 
H v. Rajesh Vyas (supra) is also distinguishable. In that case,
VEERENDRA KUMAR DUBEY v. CHIEF OF ARMY STAFF 1033 
& ORS. [TS.THAKUR, J.] 
the discharge order was challenged on the ground that it was A 
passed without regard to the response to the show cause 
notice filed by the discharge order. Upon a perusal of the 
material, this Court held that the case was not one wherein the 
discharge order was passed without application of mind and 
that there was evidence to show that power was exercised 
B 
upon consideration of all relevant records. The decision of this 
Court in Union of India and Ors. v. Dipak Kumar Santra 
(supra) is also of no relevance to the case at hand as that 
case dealt with a recruit who had failed twice in clerks' 
proficiency and aptitude test and was discharged under Rule C 
13(3) of the Army Rules. Without adverting to the procedure 
prescribed for such removal, the discharge was maintained 
by this Court opining that the discharging authority was 
empowered to do so under Rule 13(3) of the Army Rules. 
D 
Reliance upon the recent judgment of this Court in Union of 
India & Ors. v. Ba/want Singh [Civil Appeal No. 5616 of 
2015] is also misplaced. The grievance of the respondent in 
that case, primarily, rested upon the alleged excessive 
punishment meted out for the red ink entries suffered by him. 
E 
The respondent also claimed to have been discriminated due 
to discharge from theArmed Forces. That was also not a case 
where discharge order was challenged as bad in law on the 
basis of irregularities nor was
it a case where the authority 
was said to have failed to follow the necessary procedure. The 
F 
decision of the High Court of Delhi in Surinder Singh v. Union 
of India (2003) 1 SCT 697, to the extent the same toes a line 
of reasoning different from the one adopted by us does not lay 
down the correct proposition and must, therefore, be confined 
to the facts of that case only. 
G 
15. In the result this appeal succeeds and is hereby 
allowed. The order of discharge passed against the appellant 
is hereby set aside. Since the appellant has already crossed 
the age of superannuation, interest of justice will be sufficiently H

1034 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A served if we direct that the appellant shall be 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. Benefit of continuity of service for all 
other purpose shall, however, be granted to the appellant 
B including pension. Monetary benefits payable to the appellant 
shall be released expeditiously but not later than four months 
from the date of this order. No costs. 
Kalpana K. Tripathy 
Appeal allowed.