ADS Case Dismissal

MANU/AF/0129/2015
IN THE ARMED FORCES TRIBUNAL

REGIONAL BENCH, LUCKNOW
Original Application No. 168 of 2013
Decided On: 23.09.2015
Appellants: Abhilash Singh Kushwah
Vs.
Respondent: Union of India and Ors.
Hon'ble Judges/Coram:
D.P. Singh, J. (Member (J)) and Anil Chopra, Member (A)
Counsels:
For Appellant/Petitioner/Plaintiff: R.D. Singh, Advocate
For Respondents/Defendant: Mukund Tewari, Ld. Counsel assisted by Subodh Verma,
Departmental Representative
ORDER
D.P. Singh, J. (Member (J))
1. This is an application under section 14 of the Armed Forces Tribunal Act 2007 (in
short Act) by applicant being aggrieved with the punishment awarded on the ground
of Alcohol Dependency Syndrome.
2. The applicant was enrolled in the Army (PARA Regt) on 17.04.1998 and latter on
posted to 7 PARA. He was transferred to Rajput Regiment being non PARA institution
on 30.01.2011 and thereby posted to 26 Rajput on 30.04.2011. He was discharged
from service on 07.01.2003 in pursuance of powers conferred by Army Rule 13(3)
(3)iii (v) read with Rule 17 being undesirable to retain in service. A copy of
movement order dated 07.01.2013 and letter dated 30.11.2012 have been filed as
Annexure No CR1, CR2 and CR-3 respectively.
3 . Counsel for the Applicant submits that the applicant has been removed from
service because of 'red ink entries' and on unfounded grounds. It is also submitted
that the Alcohol Dependency Syndrome has not been affirmed by Medical Board
hence the order of discharge is arbitrarily and malafidely based on extraneous
consideration and without any application of mind. The procedure prescribed by Army
Order has not been followed as per law and harsh decision has been taken in haste
without any regular enquiry and also without providing any opportunity to the
applicant for his defence. The order is without application of mind to the vital point
of issue as well as of natural justice. The applicant has not been granted the
opportunity to improve himself for laxity if any. The order has not been passed by
the Competent Authority. It is also submitted that discharge from service consequent
to red ink entries is not legal requirement. The Commanding Officer should not be so
harsh with the individuals especially when they are about to complete their
pensionable service.
4 . On the other hand it is brought on record that the punishment awarded to the
applicant is based on different ground in the form of charge (red ink entry)
reproduced in Para 5 of the Counter Affidavit. The relevant portions are reproduced
as under :--
01-09-2019 (Page 1 of 30) www.manupatra.com Directorate of Air Veterans

5 . It is further stated that the applicant had developed Alcohol Dependency
Syndrome and was referred to Military Hospital, Jaipur. On account of Alcohol
Dependency he became dangerous to his own safety. In consonance thereon a Show
Cause Notice dated 30.12.2012 was issued to the petitioner in response to which the
applicant replied vide letter dated 31.12.2012. On perusal of the Show Cause Notice,
it was found that the punishment was awarded from time to time is the part of Show
Cause Notice and reply was sought within 30 days. In response to Show Cause Notice
issued under Army Rule 17 read in conjunction with Army Rule 13(3) iii (v) the
applicant seems to have half heartedly admitted his mistake vide letter dated
31.12.2012 and conveyed that he will not commit any wrong acts in future and be
permitted to complete pensionable tenure. However admission seems to be, with
regard to the red ink entries.
6 . After the receipt of response to the Show Cause Notice the applicant has been
discharged from service. Apart from Alcohol Dependency Syndrome the punishment
awarded to the applicant is based on misconduct recorded through red ink entries
seems to be admitted fact on record. Applicant has not denied that was not punished
as stated above. After considering the applicant's reply the Brigade Commander held
that the applicant is a undesirable soldier and he should be discharged in terms of
powers conferred vide Army Rule 13(3) iii (v) read with the Army Rule 17.
7 . The provisions contained in Army Rule 13(3) iii (v) shows that Brigade or Sub
Area Commander before ordering discharge, if the circumstances of the case permit,
shall provide an opportunity to Show Cause Against the contemplated discharge. In
the present case a Show Cause Notice dated 30.11.2012 was served on the applicant
containing the charge with regard to Alcoholism and absent without leave. In Para 2
of the Show Cause Notice received by the applicant, it is alleged that despite
repeated measures elicited by the unit the applicant has been failed to improve
himself. Hence he was required to respond the Show Cause Notice within a month as
to why his services should not be terminated. Para 2 and 3 of the Show Cause Notice
for connivance is reproduced as under :--
"(a) It is apparent that despite repeated correcting measures initiated by
unit, you have made no evident efforts to improve your conduct. Your
repeated offences have a negative impact on other soldiers and also
adversely affect the unit discipline state. Keeping the above in mind, I call
upon you to show cause to the undersigned as to the reasons why your

service should not be terminated as an undesirable soldier under the
provision of Army Rule 17 read in conjunction with Army Rule 13(3) iii (v).
(b) Your reply should reach to the undersigned through proper channel
within 30 days of receipt of this notice, failing which it will be presumed that
you have nothing to state in your defence and the competent authority will
be free to initiate action to terminate your service under existing rules and
regulations."
8. After serving the Show Cause Notice on receipt of reply (supra) by the impugned
order the applicant's services were terminated vide order dated 07.01.2013. So far as
the provision contained in section 13(3) iii (v) is concerned the requirement is only
the serving a Show Cause Notice with regard to proposed punishment which seems to
have been duly complied with. However notice is silent as to what corrective
measures were initiated by the unit.
9 . Rule 13(3) iii (v) required only the serving of Show Cause Notice for proposed
punishment. The provision does not contemplate of a regular enquiry. Statutory
provision warrants only for a Show Cause Notice which seems to be in compliance of
nature justice.
Constitutional Mandate
1 0 . Before considering the arguments advanced by the learned Counsel for the
parties, firstly, it is necessary to have a look over constitutional as well as statutory
provisions, since the arguments advanced by the learned counsel for the petitioner
relates to application of principles of nature justice in the present case. Article 33 of
the Constitution of India provides that Parliament may by law determine to restrict or
abrogate the applicability of fundamental rights guaranteed under part III of the
Constitution of India for the discharge of duties by the members of armed forces. For
convenience, Article 33 of the Constitution of India is reproduced as under :--
"33. Power of Parliament to modify the rights conferred by this Part in their
application to Forces, etc. - Parliament may, by law, determine to what
extent any of the rights conferred by this Part shall, in their application to--
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with maintenance of public
order; or
(c) Persons employed in any bureau or other organization
established by the State for purpose of intelligence or counter
intelligence; or
(d) Persons employed in, or in connection, with the
telecommunication systems set up for the purposes of any Force,
bureau or organization referred to in clauses (a) to (c), be restricted
or abrogated so as to ensure the proper discharge of their duties and
the maintenance of discipline among them."
11. The Government of India has framed Army Rules, 1950 (herein short referred as
rules) which provides the service conditions of the Army Personnel. On the basis of
the submissions of the learned counsel for the parties, the provisions contained in
Sections 20, 21 and 22 of the Army Act are relevant for the purposes of the present
controversy which are reproduced as under :--

"20. Dismissal, removal or reduction by the Chief of the Army Staff and by
other officers: (The Chief of the Army Staff) may reduce to a lower grade or
rank or the ranks, any warrant officer or any non-commissioned officer.
(3) An officer having power not less than a brigade or equivalent commander
or any prescribed officer may dismiss or remove from the service any person
serving under his command other than an officer or a junior commissioned
officer.
(4) Any such officer as is mentioned in sub section (3) may reduce to a
lower grade or rank or the ranks, any warrant officer or any non-
commissioned officer under his command.
(5) A warrant officer reduced to the ranks under this section shall not,
however, be required to serve in the ranks as a sepoy.
(6) The commanding officer of an acting noncommissioned officer may order
him to revert to his permanent grade as a noncommissioned officer, or if he
has not permanent grade above the ranks, to the ranks.
(7) The exercise of any power under this section shall be subject to the said
provisions contained in this Act and the rules and regulations made
thereunder.
21. Power to modify certain fundaments rights in their application to persons
subject to this Act: Subject to the provisions of any law for the time being in
force relating to the regular Army or to any branch thereof the Central
Government may, by notification, make rules, restricting to such extent and
in such manner as may be necessary the right of any person subject to this
Act-
(a) to be a member of, or to be associated in any way with, any
trade union or labour union, or any class of trade or labour unions or
any society, institution or association or any class of societies,
institutions or associations.
(b) To attend or address any meeting or to take part in any
demonstration organized by anybody or persons for any political or
other purposes.
(c) To communicate with the press or to publish or cause to be
published any book, letter or other document.
22. Retirement, release or discharge: Any person subject to this Act may be
retired, released or discharged from the service by such authority and in such
manner as may be prescribed."
12. Under Section 191 & 192 of the Army Act, the Central Government has got power
to frame the rules. Under section 193 of the Act, the rules and regulations are to be
published in official gazette. In pursuance to the powers conferred under section 191
of the Army Act, the Government of India had framed rules namely Army Rules, 1950
(in short referred in above as Rules). Under Rule 13, the power of the various
authorities to pass the order of discharge has been mentioned. The relevant portion
of the said rules as produced by the learned Standing for the Central government is
reproduced as under :--
"13. Authorities empowered to authorize 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 to the Act specified in Column 1 thereof on the
grounds specified in column.
(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
form service, either unconditionally or on the fulfillment of certain specified
conditions, then, 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.
(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 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 ion the case of junior
commissioned officer and warrant officers of Remounts, veterinary and farms
Corps, the "Commanding Officer " means the Director Remounts, Veterinary
and Farms.
1 3 . Under sub-rule 3 of Rule 13, 'Commanding Officer' means, the officer

commanding the Corps or department, which in the present case includes Brigade or
Sub Area Commander. Sub-rule 2A of Rule 13 of the Army Order empowers to
provide specific conditions to regulate function of Commanding Officer for exercising
power under Rule 13.
Power conferred by sub-rule 2A of Rule 13 of the Army Order is coupled with duty. It
is for the Government as well as Chief of the Army Staff to ensure that no
discontentment originates or persists in the army because of arbitrary exercise of
power, accordingly authorized to provide specified conditions to secure fundamental
rights under Part III of the Constitution of India.
14. Thus, power under sub-rule 2A of Rule 13 is coupled with duty and the Chief of
the Army Staff must genuinely address itself to the matter before him/her. He must

have regard to all relevant considerations and not shirk from his duty for the good of
all army personnel.
Supreme Court in a case of Andhra Pradesh S.R.T.C. v. State Transport Appellate
Tribunal & Ors., MANU/SC/0496/1998 : (1998) 7 SCC 353, while interpreting power
conferred by statute coupled with duty held that the statutory power conferred to
statutory authority should be exercised and such authority must not shirk to promote
alien to the letter and spirit of the legislation that gives it power to act and must not
act arbitrarily and capriciously.
This principle has been reiterated in Comptroller and Auditor General of India, Gian
Prakash, New Delhi and Anr. v. K.S. Jagannathan & Anr, MANU/SC/0066/1986 : AIR
1987 SC 537, Dai-Ichi Karkaria Ltd. v. Union of India & ors., MANU/SC/0276/2000 :
(2000) 4 SCC 57, Consumer Action Group & Anr. v. State of T.N. & Ors.
MANU/SC/0516/2000 : (2000) 7 SCC 425 & Praveen Singh v. State of Punjab & Ors.,
MANU/SC/0694/2000 : (2000) 8 SCC 633.
1 5 . In the case of, Kameshwar Prasad and others, v. State of Bihar reported in
MANU/SC/0410/1962 : AIR 1962 Supreme Court 1166, the Hon'ble Supreme Court
had considered the rights conferred by Article 33 read with para 3 of the Constitution
for the Govt. servants with regard to extent of exclusion of prospects of the
fundamental rights under para 3. The relevant portion is reproduced as under :--
"(a) In our opinion, this argument even if otherwise possible, has to be
repelled in view of the terms of Art 33. That article selects two of the
services under the state members of the armed forces and forces charged
with the maintenance of public order and saves the rules prescribing the
conditions of service in regard to them-from invalidity on the ground of
violation of any of the fundamental rights guaranteed by Part III and also
defines the purpose for which such abrogation or restriction might take
place, this being limited to ensure the proper discharge of duties and the
maintenance of discipline among them. The Article having thus selected the
services members of which might be deprived of the benefit of the
fundamental rights guaranteed to other persons and citizens and also having
prescribed the limits within which such restrictions or abrogation might take
place, we consider that other classes of servants of government in common
with other persons and other citizens of the country cannot be excluded from
the protection of the rights guaranteed by Part III by reason merely of their
being Govt. servants and the nature and incidents of the duties which they
have to discharge in that capacity might necessarily involve restrictions of
certain freedoms as we have pointed out in relation to Art. 19(1)(e) & (g)."
16. Another Constitution Bench of Hon'ble Supreme Court in a case of Ram Sarup V.
Union of India, reported in MANU/SC/0047/1963 : AIR 1965 SC 247 while
considering the power flowing from Section 153, 154 and 164 (2 of the Army Act)
with regard to finding a sentence of General Court Martial, held that the Central Govt.
has not appointed any other officer to exercise his power by some other officer.
Government can itself exercise the power while considering Article 33 of the
constitution of India. The Hon'ble Supreme Court held that the Army Act 1950 is a
law made by Parliament as in case it tends to affect the fundamental right of any part
of Article 33 of the Constitution, the provision does not become void and it must be
taken with Parliament to exercise its powers under Article 33. The Hon'ble Supreme
Court with regard to cover under Article 14, 20 and 22 has considered. The relevant
portion is reproduced as under:--

"(a) Lastly, Mr. Rana Ld. Counsel for the petitioner urged in support of the
first point that in the exercise of the power conferred on Parliament under
Article 33 of the Constitution to modify the fundamental rights guaranteed by
Part III, in their application to the Armed Forces, it enacted S. 21 of the Act
which empowers the Central Govt, by notification, to make rules restricting
to such extent and in such manner as may be necessary, the right of any
person with respect to certain matters, that these matters do not cover the
fundamental rights under Article 14, 20 and 22 of the Constitution, and that
this indicated the intention of Parliament not to modify any other
fundamental right. The learned Attorney General has urged that the entire act
has been enacted by parliament and if any of the provisions of the act is not
consistent with the provisions of any of the articles in Part II of the
Constitution, it must be taken that to the extent of the inconsistency
Parliament had modified the fundamental rights under those articles in their
application to the person subject to that Act. Any such provision in the Act is
as much law as the entire Act. We agree that each and every provision of the
Act is a law made by Parliament and that if any such provision tends to affect
the fundamental right under Part III of the Constitution that provision does
not, on that account, become void, as it must be taken that Parliament has
thereby, in the exercise of its power under Article 33 of the Constitution,
made the requisite modification to affect the respective fundamental right.
We are however, of the opinion that the provisions of S.125 of the Act are
not discriminatory and do not infringe the provisions of Art. 14 of the
Constitution. It is not disputed that the persons to whom the provisions of S.
125 apply do form a distinct class. They apply to all those persons who are
subject to Act and such persons are specified in S. 2 of the Act".
17. Keeping in view the aforesaid principles the Supreme Court while laying down
the guidelines with regard to supply of ACR entries not extended it to military
officers, in a case of Dev Dutt v. Union of India and others, MANU/SC/7666/2008 :
2008 Supreme Court Cases 725, the relevant portion is reproduced as under:--
"We, however, make it clear that the above directions will not apply to
military officers because the position for them is different as clarified by this
court in Union of India V. Major Bahadur Singh. But they will apply to
employees of statutory authorities, public sector corporations and other
instrumentalities of the State (in addition to Government servants)".
Accordingly the applicability of the principle of Natural Justice may be restricted, with
reasonable conditions, so far as armed forces personnel are concerned.
Red Ink Entries
1 8 . Section 4, Regulations 386, 387 and 388 of Army Regulation contains the
provisions for maintenance of conduct sheet and red ink entries, reproduced as under
:--
"386. Conduct Sheet to be Maintained. A conduct sheet shall be prepared and
maintained for every person subject to Army Act. The conduct sheets of
Officers, JCOs and WOs will be kept as confidential documents; those of
NCOs and men will be kept with other service documents.
387. Conduct Sheet Entries.
(a) Entries will be made in the conduct sheets of officers in respect
of all convictions by court martial, criminal court or summary

punishments awarded under Army Act Sections 83 or 84.
(b) The following entries will be made in the conduct sheets of JCOs,
WOs and OR as red ink entries :--
(i) Forfeiture of seniority of rank (JCOs and WOs only).
(ii) Conviction by a court martial.
(iii) Conviction by a civil court, except when a fine was the
only punishment and the CO does not consider that a red ink
entry should be made.
(iv) Reduction of a NCO to a lower grade or to the ranks for
an offence but not for inefficiency.
(v) Deprivation of an appointment or of lance or acting rank,
for an offence but not for inefficiency.
(vi) Severe reprimand (JCOs, WOs and NCOs only).
(vii) Imprisonment.
(viii) Detention.
(ix) Field punishment (on active service only).
(x) Confinement to the lines exceeding fourteen days.
(xi) Forfeiture of good service or good conduct pay.
(c) Black ink entries will be made in the conduct sheets of JCOs,
WOs and OR in respect of all punishments not included in the list of
red ink entries convictions by civil courts not meriting in the CO's
opinion a red ink entry.
388. Manner in which Entries are to be Made.
(a) Entries will be made in the conduct sheets as follows :--
(i) The statement of offence as set out in Army Rules will be
entered. Where the statement does not disclose the full
nature of offence such as charges under Army Act, Sections
42 (e) and 63, the purport of the particulars will be added,
thus :
"Neglecting to obey garrison orders - bathing in the river at
a prohibited hour".
"Act prejudicial to good order and military discipline -
negligent performance of duties".
(ii) The original sentence, together will any alteration,
revision or variation by a competent authority will be
recorded in the column "punishment awarded". In case of
sentences by courts martial the remarks of the
confirming/reviewing officer and the date of
confirmation/counter signature will be entered immediately

under "punishment awarded". When the accused is found
guilty of a charge different from the one on which arraigned,
the charge on which found guilty will also be entered in
column - "punishment awarded".
(iii) Every suspension of a sentence under Army Act, Section
182 will be entered in the "remarks" column, showing the
date on which and the authority by whom the suspension
was ordered. If the sentence was subsequently put into
execution or remitted, a further entry will be made in the
same column to this effect, stating the date and the
authority.
(iv) When the record of a court martial or a summary award
is ordered to be removed, the entry will be erased and the
authority quoted.
(v) No entry will be made of any charge of which the
accused has been found not guilty.
(b) In the case of JCOs, WOs and OR, the number of days spent in
hospital on account of disease due to neglect or misconduct and
willful, self-inflicted injury will be recorded in the sheet roll under
the heading "prominent occurrences affecting conduct and
character".
(c) In the case of boys, conduct sheet entries will be made on IAFK-
1166. IAFK-1166 will be destroyed and the ordinary conduct sheet
be brought into use on a boy attaining the age of sixteen. These
entries will also be similarly made in the statement of service page
of the sheet roll."
19. Regulations for the Army under Section 4 provide the procedure with regard to
entries and maintenance of Conduct Sheet. Regulation 386, 387 and 388 are relevant
(supra).
20. In view of the above, red or black ink entries made in the conduct sheet of the
officer depends upon serious and major misconduct and in case a person is aggrieved
by such entries, he has right to submit statutory complaint or approach the Tribunal
for judicial review. In case it is not challenged at the time of awarding entries, then it
shall attain finality.
21. So far as the discharge under Rule 13(3) iii (iv) read with Rule 17 of the Army
Order 1988 is concerned provision of inquiry is to take it into account the subsequent
development in person's career and in case improvement has been made, or red ink
entries are not so serious, then red ink entry may not suffice to be sole ground to
discharge or dismiss an army personal. Broadly for this reason preliminary inquiry
seems to be conducted in pursuance of 1988 Army Order.
22. During arguments, the learned counsel for the applicant relied upon the Army
Order dated 18.01.1988. Since his personal cause was broadly based on order dated
28.12.1988 which is reproduced as under:--
"Copy of Additional Directorate General Personal Services (PS2), AG's
Branch, Army Headquarters letter No A/13210/159/AG/PS2(C) dated 28
December 1988 addressed to All Commands with copy to All Records Offices,

circulated vide Records, the Grenadiers, Post Bag No. 17, Jabalpur (MP) vide
letter No. 0201/A/164/Adm-1 dated 18 January 1989.
PROCEDURE FOR THE REMOVAL OF UNDESIRABLE AND INEFFICIENT JCOs,
WOs and OR
1. The procedure outlined in the succeeding paragraphs will be followed for
the disposal of undesirable and inefficient JCOs, WOs and OR.
JCOs, WOs and OR who have proved undesirable
(a) An individual who has proved himself undesirable and whose
retention in the service is considered inadvisable will be
recommended for discharge/dismissal. Dismissal should only be
recommended where a court martial, if held, would have awarded a
sentence not less than dismissal, but trial by court martial is
considered impracticable or inexpedient. In other cases,
recommendations will be for discharge.
(b) Should it be considered that a JCO's discharge/dismissal is not
warranted and that transfer will meet the case, he will be transferred
in his substantive rank and not recommended for further promotion
and/or increment of pay until he proves his fitness for promotion
and/or increment of pay in his new unit.
(c) Should it be considered that a WO or an NCO's
discharge/dismissal is not warranted and that transfer will meet the
requirements of the case, he will be transferred. If the merits of the
case so warrant, he may be reduced to a lower grade or rank or the
ranks under AA Sec. 20 (4) by an officer powers not less than a
Brigade or equivalent Commander, before he is transferred. A WO
reduced to the ranks shall not be required to serve in the ranks. AA
Sec. 20 (5) refers.
(d) Should it be considered that an acting NCO's discharge/dismissal
is not warranted and that transfer will meet the requirements of the
case, he may be reverted by his CO to his substantive rank and if he
has no substantive NCO rank then he may be reverted to the ranks
under AA Sec. 20 (6) before he is transferred.
(e) In cases where it is considered that all or part of JCOs/WO's/OR's
pension should be withheld, this fact will be noted on the
recommendation for discharge.
JCOs, WOs and OR who have proved inefficient
3 . (a) Before recommending or sanctioning discharge, the following points
must be considered:--
(i) If lack of training is the cause of his inefficiency, arrangements
will be made for his further training.
(ii) If an individual has become unsuitable in his arm/service
through no fault of his own, he will be recommended for suitable
extra-regimental employment.
(b) Should it be decided to transfer a JCO, he may be transferred in his

acting/substantive rank according to the merits of the case and will not be
recommended for further promotion and/or increment of pay until he proves
his fitness for promotion and/or increment of pay in his new unit.
(c) Prior to transfer, if such a course is warranted on the merits of the case,
a WO or an NCO may be reduced to one rank lower than his substantive rank
under Army Act Section 20 (4).
Procedure for Dismissal/Discharge of Undesirable JCOs/WOs/OR
4. AR 13 and AR 17 provide that a JCO/WO/OR whose dismissal or discharge
is contemplated will be given a show cause notice. As an exception to this,
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 serve such a notice. Such cases
should be rate, eg, where the interests of the security of the state so require.
Where the serving of a show cause notice is dispensed with, the reasons for
doing so are required to be recorded. See provision to AR 17.
5 . Subject to the foregoing, the procedure to be followed for dismissal or
discharge of a person under AR 13 or AR 17, as the case may be, it set out
below:--
(a) Preliminary Enquiry. Before recommending discharge or
dismissal of an individual the authority concerned will ensure:--
(i) that an impartial enquiry (not necessarily by a Court of
Inquiry) has been made into the allegations against him and
that he has had adequate opportunity for putting up his
defence or explanation and of adducing evidence in his
defence.
(ii) that the allegations have been substantiated and that the
extreme step of termination of the individual's service is
warranted on the merits of the case.
(b) Forwarding of Recommendations. The recommendations for
dismissal or discharge will be forwarded, through normal channels,
to the authority competent to authorize the dismissal or discharge,
as the case may be, alongwith a copy of the proceedings of the
enquiry referred to in (a) above.
(c) Action by Intermediate Authorities. Intermediate authorities
through whom the recommendations pass will consider the case in
the light of what is stated in (a) above and make their own
recommendations as to the disposal of the case.
(d) Action by Competent Authority. The authority competent to
authorize the dismissal or discharge of the individual will consider
the case in the light of what is stated in (a) above. If he is satisfied
that the termination of the individual's service is warranted, he
should direct that a show cause notice be issued to the individual in
accordance with AR 13 or AR 17 as the case may be. No lower
authority will direct the issue of a show cause notice. The show
cause notice should cover the full particulars of the cause of action
against the individual. The allegations must be specific and

supported by sufficient details to enable the individual to clearly
understand and reply to them. A copy of the proceedings of the
enquiry held in the case will also be supplied to the individual and
he will be afforded reasonable time to state in writing any reasons
he may have to urge against the proposed dismissal or discharge.
(e) Action on Receipt of the Reply to the Show Cause Notice. The
individual's reply to the show cause notice will be forwarded through
normal channels to the authority competent to authorize his
dismissal/discharge together with a copy of each of the show cause
notice and the proceedings of the enquiry held in the case and
recommendations of each forwarding authority as to the disposal of
the case.
(f) Final Orders by the Competent Authority. 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 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.
(g) Carrying Out Dismissal/Discharge. On receipt of the orders of the
competent authority for dismissal/discharge, all action to effect
dismissal/discharge will be taken by the Regt Centre/Record office,
or the unit, as the case may be.
Procedure for Discharge of Inefficient JCOs/WOs/OR
6. Such JCO, WO and OR will remain with their unit and will be dealt with as
in Paras 4 and 5 above in so far as it relates to discharge from service.
7 . This letter supersedes the provisions of this HQ letter of even number

dated 23 August 1965 and 14 March 1985.
Sd/- xxxxxxx
(RP Agarwal)
Maj. Gen.
Addl DG PS
For Adjutant General"
23. The provision contained in Army Order 1988 for the supply of preliminary inquiry
report seems to be in tune with the constitutional spirit as affirmed by Constitution
Bench in the case of Managing Director ECIL v. B.K. Karunakar, MANU/SC/0237/1994
: (1993) 4 SCC 727.
2 4 . Learned Counsel for the Applicant relying upon the case reported in 2009 in
respect of Rifleman Tilak Raj v. UOI and others, MANU/JK/0155/2009 : 2009 (4) SCT
645 delivered by J&K High Court, followed by another judgment reported in respect
of Jagdish Chand v. State of Delhi, Surinder Singh Sihag v. UOI
MANU/DE/1441/2002 : (2003) (1) SCT 697) :(2002) DLT 705 in Delhi High Court,
Prithi Pal Singh v. UOI and others 1985 LAB IC 264 (J&K High Court), Vinayak Daulat
Rao Nalawade v. Corps, GOC 15 Corps 1987 LAB IC 860, submits that non
compliance of procedure prescribed by 1988 circular (supra) vitiates the impugned
order.
It is submitted by respondents' counsel that the case AR 180, relates to disciplinary
proceedings and has no concern to present dispute.
25. However, Lt Col Subodh Verma, Departmental Representative invited attention to
a judgment of Armed Forces Tribunal Chandigarh delivered on 07.01.2013 in Ex Sep
Arun Bali Ram Chuge V. Union of India and others alongwith other connected cases
by a bench of Justice Rajesh Chandra, Judicial Member and Lt Gen N.S. Brar (Retd) at
Chandigarh where after relying upon the case reported in UOI & others v. Dipak
Kumar Santra MANU/SC/1105/2009 : (2009) 7 SCC 370 held that the policy
guidelines by the COAS has no place to affect the proceeding under Rule 13 of the
Army Rule (supra). However, as discussed hereinafter the judgment of Dipak Kumar
Santra (supra) seems to be incorrectly interpreted by the bench of Chandigarh in
view of follow up discussion.
2 6 . Under the above facts and provisions of law laid down by Hon'ble Supreme
Court, the right conferred by Article 14 of the Constitution of India, which includes
the principles of natural justice, shall not be available to persons covered by Article
33 of the Constitution of India with same vigor or force which is available to other
employees or government servants subject to legislation by Parliament. Article 33 of
the Constitution of India has been included in the Part III itself of the Constitution.
For the larger cause i.e. to protect the boundary and sovereignty of the country and
preserve the discipline in the Indian Armed Forces, someone has to sacrifice more
than others. This is what is expected from the persons occupying posts in the various
fields referred in Article 33 of the Constitution of India, may be, by sacrificing their
fundamental rights to some extent to serve the country and society at large. There
may be some incorrect decision on the part of an officer passing a consequential
order in pursuance of disciplinary proceedings, but that should be accepted unless it
causes serious miscarriage of justice or prejudice.
27. In the present case, after due selection, petitioner was enrolled as Sepoy and
after completion of probation period, at the time of attestation provided under rule
17, allegations were brought on record by the complainant. Accordingly, after serving
notice in the manner discussed herein above, the impugned order was passed.
Admittedly, the Brigadier/Sub Area Commander who had passed the original order

was the competent authority to pass the same. Rule 13(III)(5) provides that Brigadier
or Sub Area Commander before ordering to discharge, shall permit to give the
affected person opportunity to show cause against the contemplation to discharge
and admittedly, a show cause notice was given and after receipt of reply, the
competent authority found it fit to discharge the petitioner for the reasons discussed
hereinabove.
A show cause notice dated 16th of May, 1991, copy of which has been filed as C.R.-3
to the Counter Affidavit was served on the petitioner and after receipt of petitioner's
reply, the impugned order was passed.
28. Validity of Rule 13 III (v) is not in question and it is also not disputed that
Brigadier or Sub Area Commander has got power to pass the impugned order. The
arguments advanced by the learned counsel for the petitioner relates to the
competence of Commanding Officer and involvement of principles of natural justice
i.e. for holding of regular departmental inquiry in the manner provided by law for the
govt. employees seems to be misconceived. Army Rules provides the procedure
referred herein above. While interpreting the statutory provisions in the present case,
principle of literal interpretation of the provision should be applied as there seems to
be no vacuum under the rule. Rule 13 III (v) specifically provides that order of
discharge may be passed by competent authority, after providing the opportunity to
show cause against the contemplated discharge. Rule does not provide that regular
enquiry should be held before issuance of a show cause notice. A perusal of the rule
further shows that discretion has been given to the Brigade or Sub Area Commander
to issue a show cause notice if circumstance of the case permits to do so. It means
that there may be cases where in national interest or for some reasonable cause, the
competent authority may pass orders of discharge without issuing a show cause
notice of the contemplated discharge. However, that may be done only in rarest of
rare cases in national interest and in exceptional circumstances. But, it shall always
be the subject to judicial review by the competent Court/Tribunal.
2 9 . Since Rule 13(III)(v) does not provide for holding of a regular departmental
enquiry which includes recording of oral evidence and provide the opportunity of
cross examination and to defend, this court while exercising jurisdiction of judicial
review may not expand the procedure provided by the Rule by adding its own view.
What cannot be done directly, it cannot be done indirectly. Where the language of the
rule is clear, then nothing can be read within it by addition. A plain and unambiguous
provision of the rule should be read in the same manner, what is being reflected by it
literal interpretation, vide Dayal Singh and others v. Union of India and others,
MANU/SC/0058/2003 : (2003) 2 Supreme Court Cases 593.
Subject to aforesaid statutory provisions and the Army Order, Rule 13 should be
interpreted in accordance with settled provisions of law after taking into account the
Army Order of 1988 (supra).
Jurisdiction
30. Under Army Rule 13(3)(iv) power of discharge has been conferred on Brigade or
Sub Area Commander and it is the Brigadier and the Sub Area Commander, as the
case may be, to issue notice of show cause. The Brigadier is the head of a Brigade.
An officer of the rank of Brigadier may also be the head of Sub Area whereas
Commanding Officer is of the rank of Colonel. Under rule (supra), power has been
conferred on the Brigade or Sub Area Commander, means the person issuing a notice
or passing order of discharge should be of the rank of Brigadier. We have been
informed that sometimes the post of Sub Area Commander is held by Brigadier. In

any case the two ranks have been delegated to pass the order of discharge under rule
(supra) is above the rank of Commanding Officer.
31. In the present case show cause notice has been issued by Brigadier P.K. Jayswal,
Commander 45 Infantry Brigade and order of discharge has also been sanctioned by
him. There appears to be no illegality in the impugned order so far as question of
jurisdiction is concerned. Arguments advanced by learned counsel for the applicant to
this extent fails.
Interpretation:
32. It is well settled proposition of law that while interpreting a statute, each word of
the statute must be given its original meaning. "Contemporanea exposition" Rule is
well settled Rule of interpretation of statutes. It refers to exposition which the statute
received from contemporary authorities. However, where language is clear, plain and
unambiguous, rule must be given weight. Statute is to be construed according to the
intent of the Legislature and make it a duty of the Court to act upon true intention of
the legislature. While interpreting statute, every section, line and every word and
statute as a whole should be looked into and in the context in which it is used and
not in isolation. Statute should be read in entirety and purpose and object of the Act
be given its full effect by applying principle of purposive construction if required. It
must be construed having regard to its scheme and the ordinary state of affairs and
consequence flowing there from. It can be construed in such a manner so as to
effective and operative on the principle of "ut res magis valeat quam pereat". Further
if a statute is silent and there is no specific provision, then statute should be
interpreted so as to advance cause of justice. (Vide District Mining Officer v. Tata
Iron and Steel Co; MANU/SC/0412/2001 : (2001) 7 SCC 358 Rohitash Kumar and
others v. Om Prakash Sharma and others MANU/SC/0936/2012 : JT 2012 (11) SC
218 Grasim Industries Ltd. v. Collector of Custom; MANU/SC/0256/2002 : (2002) 4
SCC 297: Bhatia International v. Bulk Trading S.A MANU/SC/0185/2002 : (2002) 4
SCC 105 Deepal Girish Bhai Soni v. United India Insurance Ltd.;
MANU/SC/0246/2004 : (2004) 5 SCC 385 Pratap Singh v. State of Jharkhand,
MANU/SC/0075/2005 : (2005) 3 SCC 551 and State of Goa v. Western Builders
MANU/SC/2967/2006 : (2006) 6 SCC 239.
33. In the case of Bhatia International (supra) the Hon'ble Supreme Court has held
that where statutory provision can be interpreted in more than one way, court must
identify the interpretation which represents the true intention of legislature. While
deciding which is the true meaning and intention of legislature, court must consider
the consequences that would result from the various alternative constructions.
Court must reject the construction which leads to hardships, serious inconvenience,
injustice, anomaly or uncertainty and friction in very system that the statute
concerned is supposed to regulate.
34.(i) In a recent judgment reported in Vipulbhai M. Chaudhary v. Gujarat Coop. Milk
Mktg. Federation Ltd. MANU/SC/0319/2015 : (2015) 8 SCCC 1, the Hon'ble Supreme
Court has held:--
"In the background of the constitutional mandate, the question is not what
the statute does say but what the statute must say. If the Act or the Rules or
the bye-laws do not say what they should say in terms of the Constitution, it
is the duty of the court to read the constitutional spirit and concept into the
Acts."
In the same judgment Hon'ble Supreme Court, while applying interpretative

jurisprudence, further emphasized to implement constitutional mandate in the
following words:--
"When the Constitution is eloquent, the laws made thereunder cannot be
silent. If the statute is silent or imprecise on the requirements of the
Constitution, it is for the court to read the constitutional mandate into the
provisions concerned and declare it accordingly."
Again the Hon'ble Supreme Court has said as under:
"Where the Constitution has conceived a particular structure of certain
institutions, the legislative bodies are bound to mould the status accordingly.
Despite the constitutional mandate, if the legislative body concerned does
not carry out the required structural changes in the statutes, then, it is the
duty of the court to provide the statute with the meaning as per the
Constitution. As a general rule of interpretation, no doubt, nothing is to be
added to or taken from a statute. However, when there are adequate grounds
to justify an interference, it is the bounden duty of the court to do so."
(ii) According to the 'Maxwell on The Interpretation of Statutes (12th Edition Page
36), to quote:--
"A construction which would leave without effect any part of the language of
a statute will normally be rejected."
(iii) In Deevan Singh v. Rajendra Prasad Ardevi 2007 (10) SCC 28, Hon'ble Supreme
Court held that while interpreting Statute the entire statute must be read as a whole,
then section by section, clause by clause, phrase by phrase and word by word.
Further it is the settled law that causus omissus (Principle of reading down) may be
applied in case there is any ambiguity or absurdity in the statutory provisions, vide
Gujrat Urja Vikash Nigam Ltd. v. Essar Power Ltd., MANU/SC/1055/2008 : 2008 (4)
SCC 755.
Rule 13 of the Army Rule
35. The provision contained in Rule 13 as well as Army Order should be interpreted
keeping the aforesaid broader principle of interpretative jurisprudence. Sub rule 2A,
which has been added through amendment with effect from 12th March, 1964
empowers Central Government as well as Chief of the Army Staff to decide that any
person or class of persons subject to the Act should be discharged from service,
either unconditionally or on the fulfillment of certain specified conditions, then,
notwithstanding anything contained in this rule, (Rule 13) 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 conditions. Sub-Rule 2A
gives statutory power to the Central Govt. as well as the Chief of The Army Staff to
provide certain specified conditions to comply the provisions contained in Rule 13 in
addition to procedure contained there. So far as the Chief of Army Staff is concerned,
the conditions may be provided by Army Order. Apart from Rule 13 Army Act and
Rules further empowers the Chief of The Army Staff to dismiss or remove from
service any person subject to provisions contained in the Act. Section 22 of the Army
Act provides that any person subject to the Act may be retired, released or
discharged from service by such authority. Section 21 of the Army Act provides that
subject to the provisions of the Act the regular army or any branch thereof may be
deprived of the fundamental rights to some extent by the Central Government.

In view of the above while interpreting Rule 13 the provision contained in sub-rule
2A read with rule may not be ignored and must be considered alongwith other
provisions. Similarly 1988 order should also be taken into account keeping in view
the constitutional spirit as held by Hon'ble Supreme Court in the case Vipulbhai M.
Chaudhary (supra).
36. These special provisions have been made to maintain discipline and the nature of
service which armed forces personnel discharge. In view of the above, under sub-rule
2A of Rule 13, the Central Govt. or the Chief of the Army Staff has got right to issue
orders to specify certain condition which shall be binding for the Commanding
Officers empowered under Rule 13 to comply with the procedure while exercising
powers under Rule 13.
Statutory Power:
3 7 . Chief of The Army Staff is a statutory authority. Order passed by him in
pursuance of powers conferred by the statute shall be deemed to be passed in
pursuance of statutory obligation and will have statutory force. The Black's Law
Dictionary defines the word 'statutory' as (1) of or relating to legislation, (2)
Legislatively created, and (3) Conformable to a statute.
38. A question cropped up as to whether 1988 Army Instruction has got statutory
force or is mandatory. William M. Lile in the Major Law Lexicon in Brief Making and
the use of Law Books 8 (3d ed. 1914) defined' statutory law as under:--
"We are not justified in limiting the statutory law to those rules only which
are promulgated by what we commonly cause 'legislatures'. Any positive
enactment to which the State gives the force of a law is a 'statute,' whether it
has gone through the usual stages of legislative proceedings, or has been
adopted in other modes of expressing the will of the people or other
sovereign power of the State. In a absolute monarchy, an edict of the ruling
sovereign in statutory law. Constitutions, we direct legislation by the people,
must be included in the statutory law, and indeed there are examples of the
highest form that the statute law can assume. Generally speaking, treaties
also are statutory law, because in this country, under the provisions of the
United States Constitution treaties have not the force of law until so declared
by the representatives of the people."
39. Hon'ble Supreme Court in the case of Inspector v. Laxminarayan Chopra reported
in MANU/SC/0221/1961 : AIR 1962, SC 159 held that a statute may be interpreted to
include circumstances or situations which were unknown or did not exist at the time
of enactment of statute. In the Major Law Lexicon (4th Edition) the word, 'Statutory
order and statutory rule' has been interpreted as under:--
"Ordinances made whether by the Sovereign in counsel, a department of the
Executive, a local authority or any other corporation or person under powers
expressly delegated by the Legislature and the sections of Acts which effects
such specific delegations are referred to as "statutory powers."
40. It is well settled law that exercise of statutory discretion must conform to good
administration, vide M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu,
MANU/SC/0999/1999 : AIR 1999 SC 2468.
The implied limitations or conditions are that the person whom the powers conferred
must exercise it in good faith for furtherance of the object of the statute; he must not
proceed upon a misconstruction of the statute; he must take into account matters

relevant for the exercise of the power; he must not be influenced by irrelevant
matters; he must not act unreasonably, i.e. irrationally or perversely, vide, Rohtas
Industries Ltd. v. S.D. Agarwal (MANU/SC/0020/1968 : AIR. 1969 SC. 707),
Hukumchand Shyamlal v. Union of India, MANU/SC/0423/1974 : [(1975) 2 SCC 81],
Air India Ltd. v. Cochin International Airport Ltd., (MANU/SC/0055/2000 : AIR. 2000
SC 801), Humanity and another v. State of West Bengal [MANU/SC/0662/2011 :
(2011) 6 SCC 125].
41. It is trite law that the delegate cannot override the Act either by exceeding the
authority or by making provisions inconsistent with the Act. But when the enabling
Act itself permits to lay down additional conditions or modification under the rules,
the rules may prevail over the provisions of the Act (vide State of T.N. v. P.
Krishnamurthy MANU/SC/1581/2006 : (2006) 4 SCC 517). In the present case, sub-
rule 2A read with sub rule 3 of Rule 13 of the Army Rules empowers the Chief of the
Army Staff to further modify the condition with regard to matter of discharge and in
consequence thereof, the Chief of the Army Staff issued Army Order in question
which related back to 1988 (supra). The Order seems not to be a base policy
decision, but is additional service condition and has statutory force and its
compliance seems to be mandatory.
Mandatory:
4 2 . Subject to discussion and finding recorded herein above (supra), question
cropped up whether the 1988 Army Order is mandatory. Hon'ble Supreme Court in
catena of judgments held that whether a statute is mandatory or directory depends
upon the intent of the legislature and not upon the language in which the intent is
clothed. The meaning and intention of the legislature must govern, and these are to
be ascertained not only from the phraseology of the provision but also by considering
its nature, its design, and consequences which would follow from construing it in the
one way or the other way (vide State of U.P. v. Manbodhan Lal Shrivastava,
MANU/SC/0123/1957 : AIR 1957 SC 912, State of U.P. v. Babu Ram Upadhya,
MANU/SC/0312/1960 : AIR 1961 SC 751, "Vali Pero" v. Fernandes Lopez,
MANU/SC/0395/1989 : AIR 1989 SC 2206 and State of M.P. v. Pradeep Kumar
MANU/SC/0566/2000 : (2000) 7 SCC 372).
43. In a case reported in, Indian Administrative Service (SCS) Ass. U.P. v. Union of
India, MANU/SC/0643/1993 : 1993 Supp (1) SCC 730 while considering the
mandatory or directory element of consultation process, Hon'ble Supreme Court has
culled down the preposition, which reads as under:--
"(1) Consultation is a process which requires meeting of minds between the
parties involved in the process of consultation on the material facts and
points involved to evolve a correct or at least satisfactory solution. There
should be meeting of minds between the proposer and the persons to be
consulted on the subject of consultation. There must be definite facts which
constitute the foundation and source for final decision. The object of the
consultation is to render consultation meaningful to serve the intended
purpose. Prior consultation in that behalf is mandatory.
(2) When the offending action affects fundamental rights or to effectuate
built-in insulation, as fair procedure, consultation is mandatory and non-
consultation renders the action ultra vires or invalid or void.
(3) When the opinion or advice binds the proposer, consultation is
mandatory and its infraction renders the action or order illegal.

(4) When the opinion or advice or view does not bind the person or
authority, any action or decision taken contrary to the advice is not illegal,
nor becomes void.
(5) When the object of the consultation is only to apprise of the proposed
action and when the opinion or advice is not binding on the authorities or
person and is not bound to be accepted, the prior consultation is only
directory. The authority proposing to take action should make known the
general scheme or outlines of the actions proposed to be taken be put to
notice of the authority or the persons to be consulted; have the views or
objections, take them into consideration, and thereafter, the authority or
person would be entitled or has/have authority to pass appropriate orders or
take decision thereon. In such circumstances, it amounts to an action 'after
consultation'.
(6) No hard-and-fast rule could be laid, no useful purpose would be served
by formulating words or definitions nor would it be appropriate to lay down
the manner in which consultation must take place. It is for the court to
determine in each case in the light of its facts and circumstances whether the
action is 'after consultation'; 'was in fact consulted' or was it a 'sufficient
consultation'."
4 4 . Keeping the aforesaid principle, since the Army Order of 1988 (supra) is to
advance and effectuate built in insulation to secure fundamental right in tune with
Articles 14 and 21 of the Constitution of India, it is mandatory and non compliance
thereof shall vitiate the decision.
Executive Instructions:
45. Even if 1988 Army Order is held to be executive instruction or administrative
order, it seems to have got binding force being issued in pursuance of power
conferred by sub-rule 2A of Rule 13. The Constitutional Bench in the case of Sant
Ram Sharma v. State of Rajasthan and anr. (MANU/SC/0330/1967 : AIR 1967 SC
1910) held that, it is true that Government cannot amend or supersede statutory
rules by administrative instructions, but if the rules are silent on any particular point
Government can fill up the gaps and supplement the rules and issue instructions not
inconsistent with the rules already framed. The law laid down above (supra) has
constantly been followed and it is settled proposition of law that authority may issue
executive instructions to supplement the statutory rules.
46. The Constitution Bench in Sant Ram Sharma v. State of Rajasthan & Ors., (supra)
has observed as under :--
"It is true that the Government cannot amend or supersede statutory Rules
by administrative instruction, but if the Rules are silent on any particular
point, the Government can fill-up the gap and supplement the rule and issue
instructions not inconsistent with the Rules already framed."
4 7 . The law laid down above, has consistently been followed and it is settled
proposition of law that an Authority cannot issue orders/office
memorandum/executive instructions in contravention of the statutory Rules.
However, instructions can be issued only to supplement the statutory rule but not to
supplant it. Such instructions should be subservient to the statutory provisions. (Vide
The Commissioner of Income-tax, Gujrat v. M/s. A Raman & Co.,
MANU/SC/0134/1967 : AIR 1968 SC 49; Union of India & ors. v. Majji Jangammayya
& Ors., MANU/SC/0470/1976 : AIR 1977 SC 757; The District Registrar, Palghat &

ors. v. M.B. Koyyakutty & Ors., MANU/SC/0637/1979 : AIR 1979 SC 1060; Ramendra
Singh & Ors. v. Jagdish Prasad & ors., MANU/SC/0288/1984 : AIR 1984 SC 885; P.D.
Aggarwal & Ors. v. State of U.P. & ors., MANU/SC/0671/1987 : AIR 1987 SC 1676;
M.S. Beopar Sahayak (P) Ltd. & ors. v. Vishwa Nath & ors., MANU/SC/0780/1987 :
AIR 1987 SC 2111; Paluru Ramkrishnnaiah & Ors. v. Union of India & Anr.,
MANU/SC/0405/1989 : AIR 1990 SC 166; Comptroller & Auditor General of India &
ors. v. Karnataka Lokayukta & ors., MANU/SC/0441/1998 : AIR 1998 SC 2496).
4 8 . The Constitution Bench of the Supreme Court, in Naga People's Movement of
Human Rights v. Union of India, MANU/SC/0906/1998 : AIR 1998 SC 431, held that
the executive instructions are binding provided the same have been issued to fill up
the gap between the statutory provisions and are not inconsistent with the said
provisions. However in the present case sub rule 2A (supra) itself empowers to
provide specified conditions.
49. In the present case the Army Order provides for holding of a preliminary enquiry
while taking a decision for discharge from service. It further provides that mere
adverse entry shall not be sufficient to discharge armed force personnel, but the
authority has to apply mind and record satisfaction with regard to necessity of
punishment awarded to the armed force personnel. The order shows that after
preliminary enquiry, a notice is to be served on the armed force personnel (alongwith
preliminary enquiry report), and after recording such satisfaction, may pass order
either rejecting the reply or accepting the same, and discharge order should be
approved by the next higher authority. Army Order dated 28th December, 1988
supplements the Rule in tune with Articles 14 and 21 of the Constitution of India.
Accordingly, it is not merely a policy decision, but an order by statutory exercise of
power to further strengthen the constitutional rights (fundamental right) of army
personnel in the matter of extreme punishment of dismissal or discharge from
service. When the power conversed itself tends to follow the principles of natural
justice by issuing appropriate order or framing rules, then the original Rule 13 would
not come in the way. However, it does not mean that armed forces or Government
have no right to curtail fundamental rights, but for that, Government of India has to
frame rules or guidelines to meet out the requirement through Parliament. If once the
rule is relaxed (supra), then it must be adhered to during the course of disciplinary
proceedings, discharge or Court Martial as the case may be. Of course the Army
Order may be modified, reviewed or recalled by the Chief of the Army Staff within
constitutional parameter subject to judicial review.
Statutory Force:
50. As held herein above, the Army Order dated 28 December 1988 (supra) has been
passed in pursuance of power conferred by sub rule 2A of Rule 13 of the Army Rules.
Since it has been issued in pursuance of power conferred by statute, that too by Chief
of the Army Staff, who is statutory authority, it has statutory force and its compliance
is must. Non compliance shall vitiate the proceeding or the order of punishment. It is
mandatory also for the reason that for the command and control of army, power has
been conferred upon the Chief of the Army Staff. It is necessary to confer certain
power on the Chief of the Army Staff who is well acquainted with the ground realities
of the Army. Accordingly 1988 order is mandatory.
Per incuriam
51. In the case of Ex Sep Arun Bali Ram Chuge V. Union of India and others (supra)
along with other connected cases, the Chandigarh bench by order dated 07.01.2013
held that provision contained in Army Order of 1988 is policy decision and directory.

Chandigarh bench had relied upon the case reported in UOI & others v. Dipak Kumar
Santra, MANU/SC/1105/2009 : 2009 Vol 7 SCC 370 and has held that the policy
guidelines by the COAS has no place to affect the proceeding under Rule 13 of the
Army Rule (supra). It shall be appropriate to reproduce the relevant portion from the
case of Ex Sep Arun Bali Ram Chuge (supra) whereby the Division Bench at
Chandigarh observed that 1988 Army Order (supra) is a policy decision and is
directory. Order seems to be per incuriam to sub-rule 2A read with sub-rule 3 of rule
13 and Apex Court Judgments (supra).
52. Relevant portion of the case of Arun Bali Ram Chuge (supra) is reproduced as
under:--
"In the case of Surinder Singh Sihag, The Division Bench of the Delhi High
Court took the view that no action could be taken under Rule 13 without an
inquiry and since no inquiry was held against Surender Singh Sihag when his
services were dispensed with by way of discharge pursuant to a show cause
notice alleging against him that he had earned five red ink entries, the order
was quashed. But we find that the Supreme Court, in the decision reported
as MANU/SC/1105/2009 : 2009 (7) SCC 370 UOI & Ors. v. Deepak Kumar
Santra, had taken a view contrary to the one taken by the Division Bench of
the Delhi High Court. In so far as discharge by an authority exercising power
under Rule 13 of the Army Rules was concerned, the Supreme Court had held
that once statutory Rules occupy the field, there is no place for a policy
guideline and as long as the procedure prescribed by the statutory Rule is
followed, it hardly matters whether a policy guideline is not followed."
53. Per incuriam means in ignorance of or without taking note of some statutory
provisions or the judgment of Hon'ble Supreme Court or the larger Bench, vide;
MANU/SC/0346/2003 : 2003 (5) SCC 448, State of Bihar v. Kalika Singh and others
MANU/SC/0616/1991 : (1991) 4 SCC 139 State of U.O. and another v. Synthetics and
chemicals Ltd. And Another, MANU/SC/0413/1975 : AIR 1975 SC 907 Mamleshwar
Prasad and others v. Kanhaiya Lal, MANU/SC/1032/2004 : 2005 (1) SCC 608, Sunita
Devi v. State of Bihar, 1999 (3) SCC 112; Ram Gopal Baheti v. Giridharilal Soni and
others, MANU/SC/0002/1988 : AIR 1988 SC 1531; Municipal Corporation of Delhi v.
Gurnam Kaur, MANU/SC/0948/1999 : 1999 (5) SCC 638; Sarnam Singh v. Dy.
Director of Consolidation and others, MANU/SC/0412/2004 : 2004 (4) SCC 590 State
v. Ratan Lal Arora;
5 4 . The concept of "per incuriam" in all those decisions given is ignorance or
forgetfulness of some inconsistent statutory provisions or of some authority binding
on the Court concerned, i.e.' previous decisions of the Court i.e. its own court or by a
Court of co-ordinate or higher jurisdiction or in ignorance of a term of a statute or by
a rule having the force of law. "Incuria", literally means "carelessness". In practice,
per incuriam is taken to mean per ignorantiam. (Vide Mamleshwar Prasad & Anr. v.
Kanhaiya Lal, MANU/SC/0413/1975 : (1975) 2 SCC 232; A.R. Antule v. R.S. Nayak,
MANU/SC/0002/1988 : (1988) 2 SCC 602; State of U.P. & Ors. v. Synthetics and
Chemicals Ltd., MANU/SC/0616/1991 : (1991) 4SCC 139; B. Shama Rao v. Union
territory of Pondicherry, MANU/SC/0299/1967 : AIR 1967 SC 1480; Municipal
Corporation of Delhi v. Gurnam Kaur, MANU/SC/0323/1988 : (1989) 1 SCC 101; Ram
Gopal Baheti v. Girdharilal Soni & others, (1999) 3 SCC 112; Sarnam Singh v. Dy.
Director of Consolidation & others, MANU/SC/0948/1999 : (1999) 5 SCC 638;
Government of Andhra Pradesh v. B. Satyanarayana Rao, (dead) by L.Rs, & others;
MANU/SC/0275/2000 : AIR 2000 SC 1729; M/s. Fuerst Day Lawson Ltd. v. Jindal
Exports Ltd., MANU/SC/0329/2001 : AIR 2001 SC 2293; Suganthi Suresh Kumar v.
Jagdeeshan, MANU/SC/0037/2002 : AIR 2002 SC 681; State of Bihar v. Kalika Kuer,

MANU/SC/0346/2003 : AIR 2003 SC 2443; Director of Settlements, A.P. & others v.
M.R. Apparao & Anr., MANU/SC/0219/2002 : 2002 4 SCC 638; Manda Jaganath v.
K.S. Rathnam & ors MANU/SC/0346/2004 : (2004) 7 SCC 492; Sunita Devi v. State
of Bihar & others, MANU/SC/1032/2004 : 2004 AIR SCW 7116; Central Board of
Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr.,
MANU/SC/1069/2004 : (2005) 2 SCC 673; K.H. Siraj v. High Court of Kerala &
others, MANU/SC/8184/2006 : AIR 2006 SC 2339; and Union of India & Anr. v.
Manik Lal Banerjee, MANU/SC/3283/2006 : AIR 2006 SC 2844.
5 5 . In State v. Ratan Lal Arora MANU/SC/0412/2004 : (2004) 4 SCC 590, the
Hon'ble Supreme Court held that where in a case the decision has been rendered
without reference to statutory bars, the same cannot have any precedent value and
shall have to be treated as having been rendered per incuriam.
56. In N. Bhargavan Pillai v. State of Kerala, MANU/SC/0367/2004 : AIR 2004 SC
2317, the Hon'ble Supreme Court held that in view of the specific statutory bar, the
view, if any, expressed without analyzing the statutory provision cannot, in our view,
be treated as a binding precedent, and at the most is to be considered as having been
rendered per incuriam.
57. A similar view has been reiterated in Mayuram Subramanian Srinivasan v. CBI,
MANU/SC/8200/2006 : AIR 2006 SC 2449, wherein the Apex Court has observed as
under:--
"Incuria" literally means "carelessness". In practice per incuriam is taken to
mean per ignorantiam. English Courts have developed this principle in
relaxation of the rule of stare decisis. The "quotable in law", as held in
Youong v. Bristol Aeroplane Co. Ltd., (1944) 2 All ER 293, is avoided and
ignored if it is rendered, "ignorantiam of a statute or other binding
authority". Same has been accepted, approved and adopted by this court
while interpreting Article 141 of the Constitution of India, 1950 (in short "the
Constitution") which embodies the doctrine of precedents as a matter of law.
The above position was highlighted in State of U.P. v. Synthetics and
Chemicals Ltd., MANU/SC/0616/1991 : (1991) 4 SCC 139. To perpetuate an
error is no heroism. To rectify it is the compulsion of the judicial consigns.
The position was highlighted in Nirmal Jeet Kaur v. State of M.P.,
MANU/SC/0695/2004 : (2004) 7 SCC 58."
58. Thus at the face of the recorded the bench at Chandigarh relied upon the case of
Dipak Kumar Santra (supra). In the case of Dipak Kumar Santra Hon'ble Supreme
Court has not recorded any finding as to whether the 1988 order is mandatory or
directory. It was also not argued with regard to mandatory or statutory nature of
1988 order. Entire finding with regard to Rule 13 is contained in Para 6 of the
judgment which is reproduced below:--
"It is not in dispute that Rule 13(3) of the Rules clearly applied to the facts
of the case. Reference has been made by the Ld. Counsel for the appellants
to the Letter of the Army Headquarters, New Delhi laying down the procedure
required to be followed in respect of the individuals who fail in the clerks'
proficiency and aptitude test while undergoing the basic military training. We
need not go into the applicability of the letter referred to, in view of the clear
stipulation in Rule 13(3) of the Rules, which has application to the facts of
the case".
59. A plain reading of the observations made by the Hon'ble Supreme Court in the
case of Dipak Kumar Santra (supra) shows that their Lordships have not felt

necessary to go into the applicability of letter placed before the court. The Hon'ble
Supreme Court also did not specify that letter dated 28.12.1988 was placed before
their Lordships, which is subject matter of dispute before the tribunal.
60. With profound respect in the case of Arun Bali Ram Chuge (supra), the Bench
had not taken into account sub-rule 2A read with sub-rule 3 of Rule 13 and catena of
judgments of Hon'ble Supreme Court with regard to interpretative jurisprudence
while holding the 1988 Army Order (supra) directory. Hence for the reasons
discussed hereinafter, the judgment lacks binding effect being per incuriam to
statutory mandate and Supreme Court judgments.
6 1 . It is well settled law that even if in the Army Order the statutory provision
conferring power has not been mentioned, it shall be deemed to exercise within the
jurisdiction and the order shall apply with vigour for the purpose it has been issued
vide Ujjam Bai v. State of U.P. MANU/SC/0101/1961 : AIR 1962 SC 1621.
62. It is trite law that even if the source of power is not quoted or a wrong provision
is quoted, it will not invalidate the order, and the exercise of the power will be
referable to a jurisdiction which confers validity upon it. Similarly, when a
subordinate legislation is made without jurisdiction but expressed to be made under
a wrong provision, shall be held to be valid one. (Vide Balakotiah v. Union of India,
MANU/SC/0119/1957 : AIR 1958 SC 232 (at p. 236 Hazarimal Kuthiala v. I.T.O.,
MANU/SC/0108/1960 : AIR 1961 SC 200, Gopalnarain v. State of U.P.
MANU/SC/0040/1963 : AIR 1964 SC 370 (at p. 377), Roshan Lal Gautam v. State of
U.P., MANU/SC/0223/1964 : AIR 1965 SC 991, P. Radhakrishna Naidu v. Government
of Andhra Pradesh, MANU/SC/0543/1976 : AIR 1977 SC 854, Union of India v. Tulsi
Ram Patel MANU/SC/0373/1985 : (1985) 3 SCC 398, State of Karnataka v. Krishnaji
Srinivas Kulkarni, MANU/SC/0658/1994 : (1994) 2 SCC 558, Union of India v. Azadi
Bachao Andolan, MANU/SC/1219/2003 : AIR 2004 SC 1107 at (p.1125), Afzal Ullah
v. State of U.P., MANU/SC/0042/1963 : AIR 1964 SC 264, Peerless General Finance &
Investment Co. v. Reserve Bank of India, MANU/SC/0685/1992 : AIR 1992 SC 1033 &
Om Prakash v. State of U.P. MANU/SC/0202/2004 : (2004) 3 SCC 402.
Judgment:
63. It is well settled principle of law that judgment is to be read with reference to the
context of particular statutory provision interpreted by the court. The decision cannot
be relied upon in support of the provision that it did not decide the fact.
6 4 . Judgments has to be read in reference to context of particular statutory
provisions interpreted by the Court. Decision cannot be relied upon in support of the
proposition that it did not decide (vide H.H. Maharajadhiraja Madhav Rao Jivaji Rao
Scindia Bahadur & others. v. Union of India, MANU/SC/0050/1970 : AIR 1971 SC
530; M/s. Amar Nath Om Parkash & others. v. State of Punjab & others
MANU/SC/0224/1984 : AIR 1985 SC 218; Rajpur Ruda Meha & others v. State of
Gujrat, MANU/SC/0213/1979 : AIR 1980 SC 1707; C.I.I. v. Sun Engineering Works
(P) Ltd., MANU/SC/0707/1992 : (1992) 4 SCC 363; Sar Shramik Sangh, Bombay v.
Indian Hume Pipe Co. Ltd. & Anr., MANU/SC/0487/1993 : (1993) 2 SCC 386;
Haryana Financial Corporation & Anr. v. Mehboob Dawod Shaikh v. State of
Maharashtra, MANU/SC/0048/2004 : (2004) 2 SCC 362; ICICI Bank & Anr. v.
Municipal Corporation of Greater Bombay & others: MANU/SC/0456/2005 : AIR 2005
SC 3315; M/s. Makhija Construction and Enggr. Pvt. Ltd. v. Indore Development
Authority & others: MANU/SC/0302/2005 : AIR 2005 SC 2499; and Shin-Etsu
Chemical Co. Ltd. v. Aksh Optifibre Ltd. & Anr., MANU/SC/0488/2005 : (2005) 7 SCC
234.

6 5 . The expression 'Judgment' has been defined in Section 2(9) of C.P.C., as
"judgment means the statement given by the Judge on the grounds of a decree or
order". Thus the essential element in any 'judgment' is the statement of grounds of
decision, meaning thereby the Court has to state the ground on which it bases its
decision. It must be intelligible and must have a meaning. It is distinct from an order
as the latter may not contain reasons. Unless the judgment is based on reason, it
would not be possible for an Appellate/Revisional Court to decide as to whether the
judgment is in accordance with law. (Vide Surendra Singh & Ors. v. State of U.P.,
AIR 1854 SC 194; and Arjan Das Ram Lal v. Jagan Nath Sardari Lal,
MANU/PH/0236/1965 : AIR 1966 Pune 227).
66. The expression 'judgment' means a final adjudication by the court of the rights of
the parties; an interlocutory judgment, even if it decides an issue or issues without
finally determining the rights and liabilities of the parties, is not a judgment, however
cardinal the issue may be. (M/s. Tarapore & Madras v. Tractors Export Moscow, (Vide
MANU/SC/0300/1968 : AIR 1970 SC 1168).
67. Judgment is statement of reasons given by the Judge. (Vide Vidyacharan Shukla
v. Khubchand Baghel & Ors., MANU/SC/0120/1963 : AIR 1964 SC 1099 (C.B.).
68. A judgment is the expression of the opinion of the Court arrived at after due
consideration of the evidence and the arguments, it means a judicial determination,
vide U.J.S. Chopra v. State of Bombay, MANU/SC/0028/1955 : AIR 1955 SC 633 and
State of Bihar v. Ram Naresh Pandey & Anr., MANU/SC/0034/1957 : AIR 1957 SC
389. In Ghourlal Mitra v. Smt. Hara Sundari Paul, MANU/WB/0075/1974 : AIR 1974
Cal 331, it was held that 'judgment' means a decision which affects the merits of the
question between the parties by determining some right or liability and such decision
might be either final, preliminary or interlocutory.
6 9 . In view of the above, with profound respect, we feel that the Bench at
Chandigarh (supra) has not applied its mind in reference to the context of Santra's
case (supra) in the light of aforesaid proposition of law. Hence it seems to be per
incuriam to the law settled by Hon'ble Supreme Court and statutory provision. In
nutshell judgment in the case of Ex Sep Arun Bali Ram Chuge (supra) is per incuriam
to the statutory provisions and the law settled by Supreme Court for the following
reasons:
"(i) The provision contained in sub Rule 2A read with sub-rule 3 of Rule 13
has been given a go by while declaring Army Order of 1988 as policy matter
and holding it to be directory statutory provisions (supra). It has not been
considered at all.
(ii) The case of Santra (supra) has not been looked into by the bench at
Chandigarh in its totality. Keeping in view the settled proposition of law
(supra), it appears to be over sighted by the members of the bench with
regard to its true interpretation.
(iii) Power to issue Army Order 1988 has been conferred by sub-rule 2A read
with sub-rule 3 of Rule 13 to provide additional specific circumstances or
conditions for exercising the powers by the commanders. Chief of the Army
Staff is a statutory authority and admittedly the 1988 order has been issued
by him, hence it has got statutory force.
(iv) Reliance placed by the applicant's counsel upon the division bench
judgment of Jammu & Kashmir High Court reported in Vinayak Daultatrao
Nalawade v. Core Commander Lt. Gen. G.O.C., H.Q. 15 Corps reported in

1987 LAB. I.C. 860 has not been considered. High Court being constitutional
forum, its orders and judgments have binding effects unless it is held that
the judgment is per incuriam or has not considered statutory provisions or
apex court's judgments."
70. With profound respect in the case of Arun Bali Ram Chuge (supra), the Bench
had not taken into account sub-rule 2A read with sub-rule 3 of Rule 13 and catena of
judgments of Hon'ble Supreme Court with regard to interpretative jurisprudence
while holding the 1988 Army Order (supra) directory. Hence for the reasons
discussed hereinafter, the judgment lacks binding effect being per incuriam to
statutory mandate and Supreme Court judgments.
71. It is well settled law that even if in an Order the statutory provision conferring
power has not been mentioned, it shall be deemed to exercise within the jurisdiction
and the order shall apply with vigour for the purpose it has been issued vide Ujjam
Bai v. State of U.P. MANU/SC/0101/1961 : AIR 1962 SC 1621.
72. It is trite law that even if the source of power is not quoted or a wrong provision
is quoted, it will not invalidate the order, and the exercise of the power will be
referable to a jurisdiction which confers validity upon it. Similarly, when a
subordinate legislation is made without jurisdiction but expressed to be made under
a provision, shall be held to be valid one. (Vide Balakotiah v. Union of India,
MANU/SC/0119/1957 : AIR 1958 SC 232 (at p. 236 Hazarimal Kuthiala v. I.T.O.,
MANU/SC/0108/1960 : AIR 1961 SC 200, Gopalnarain v. State of U.P.,
MANU/SC/0040/1963 : AIR 1964 SC 370 (at p. 377), Roshan Lal Gautam v. State of
U.P., MANU/SC/0223/1964 : AIR 1965 SC 991, P. Radhakrishna Naidu v. Government
of Andhra Pradesh, MANU/SC/0543/1976 : AIR 1977 SC 854, Union of India v. Tulsi
Ram Patel MANU/SC/0373/1985 : (1985) 3 SCC 398, State of Karnataka v. Krishnaji
Srinivas Kulkarni, MANU/SC/0658/1994 : (1994) 2 SCC 558, Union of India v. Azadi
Bachao Andolan, MANU/SC/1219/2003 : AIR 2004 SC 1107 at (p.1125), Afzal Ullah
v. State of U.P., MANU/SC/0042/1963 : AIR 1964 SC 264, Peerless General Finance &
Investment Co. v. Reserve Bank of India, MANU/SC/0685/1992 : AIR 1992 SC 1033 &
Om Prakash v. State of U.P. MANU/SC/0202/2004 : (2004) 3 SCC 402.
73. The Division Bench of the Delhi High Court, in a case reported in Surinder Singh
Sihag v. Union of India, MANU/DE/1441/2002 : 2003 (1) SCT 697 held that
discharge in pursuance to red ink entries after show cause notice, without giving
opportunity to defend himself shall not be sustainable. The relevant portion is
reproduced as under:
"In the aforementioned situation, the respondents were bound to follow the
procedure laid down in the circular letter dated 28.12.1988."
74. The Jammu & Kashmir High Court in the case of Ex. Rifleman Tilak Raj v. Union
of India and others reported in MANU/JK/0155/2009 : 2009 (4) SCT 645 also held
that enquiry should be held in pursuance of circular letter dated 28.12.1988. Justice
Sunil Hali, J., in aforesaid judgment, held:--
"The aforementioned procedure clearly provides that before recommending
discharge/dismissal of an individual, the authority concerned will ensure that
preliminary enquiry be conducted and adequate opportunity of putting up his
defence be given to the person. Note-2 reveals that discharge from service
consequent to four red ink entries is not mandatory or legal requirement. In
such, cases, the Commanding Officer must consider the nature of the offence
for which each red ink entry has been awarded and not to be harsh with the
individual."

Some other cases relied upon by the learned counsel for the applicant need not be
discussed for the reason that they neither relate to Army Rule 180 or applicability of
principles of natural justice where the Courts have not taken into account the
provision contained in Article 33 of the Constitution of India.
75. In view of above, since the applicant has been discharged from Army without
following the additional procedure provided by A.O. 1988 (supra) seems to suffer
from vice of arbitrariness. Finding with regard to applicability of Army Order 1988
(supra) is summarized and culled down as under:
"(i) In view of provision contained in sub-rule 2A read with sub-rule 3 of
Rule 13 of the Army Order (supra), in case the Chief of the Army Staff or the
Government add certain additional conditions to the procedure provided by
Rule 13 of the Army Rule 1954 (supra), it shall be statutory in nature, hence
shall have binding effect and mandatory for the subordinate authorities of the
Army or Chief of the Army Staff himself, and non compliance shall vitiate the
punishment awarded thereon.
(ii) The Chief of the Army Staff as well as the Government in pursuance to
Army Act, 1950 are statutory authorities and they have right to issue order or
circular regulating service conditions in pursuance to provisions contained in
Army Act, 1950 and Rule 2A of Rule 13 (supra). In case such statutory power
is exercised, circular or order is issued thereon it shall be binding and
mandatory in nature subject to limitations contained in the Army Act, 1950
itself and Article 33 of the Constitution of India.
(iii) The case of Santra (supra) does not settle the law with regard to
applicability of Army Order of 1988 (supra), hence it lacks binding effect to
the extent the Army Order of 1988 is concerned.
(iv) The judgment of Jammu & Kashmir High Court and Division Bench
judgment of Delhi High Court as well as provisions contained in sub-rule 2A
of Rule 13 of the Army Act, 1950 and the proposition of law flowing from the
catena of judgments of Hon'ble Supreme Court and High Court (supra) relate
to interpretative jurisprudence, hence order in Ex Sepoy Arun Bali (supra) is
per incuriam to statutory provisions as well as judgments of Hon'ble
Supreme Court and lacks binding effect.
(v) The procedure contained in Army Order of 1988 (supra) to hold
preliminary enquiry is a condition precedent to discharge an army personnel
on account of red ink entries and non-compliance of it shall vitiate the order.
Till the procedure in Army Order of 1988 (supra) continues and remain
operative, its compliance is must. None compliance shall vitiate the
punishment awarded to army personnel.
(iv) The procedure added by Army Order of 1988 is to effectuate and
advances the protection provided by Part III of the Constitution of India,
hence also it has binding effect.
(vii) Order of punishment must be passed by the authority empowered by
Rules 13, otherwise it shall be an instance of exceeding of jurisdiction, be
void and nullity in law."
76. A prayer has been made by the applicant to set aside red ink entries which do
not seem to be sustainable at this belated stage since the applicant had not
challenged red ink entries awarded to him at the relevant time. Now it is not open to

him to challenge the same with common prayer under O.A., hence we declined to
interfere with the red ink entries.
77. Subject to aforesaid findings, discussions and observations made in the body of
the present order, and while parting with the case, we draw attention to certain
observations made by Kautilya in his famous treatise 'The Arthashastra'. (edited,
rearranged, translated and introduced by L.N. Rangarajan). Kautilya says that the
army should be well paid, honoured and kept up to strength. It should not have any
traitors or dissension within its ranks. It should not be scattered but kept together. It
should always have adequate reinforcements. It should not be allowed to become too
tired by long marches or otherwise during peace.
7 8 . Kautilya while considering calamities (supra) which effect adversely the army
observed, to quote:
"- not given due honours;
- not paid;
- not healthy;
- tired after a long march;
- exhausted after a battle;
- depleted in strength;
- having suffered a set-back
- after defeat in a frontal battle;
- having to fight in an unsustainable terrain;
- having to fight in an unsuitable season;
- low in morale;
- abandoned by its commander;
- having women in it;
- with traitors in it;
- an angry one;
- a disunited one;
- one which has run away (from battle);
- a dispersed one;
- one finding along with another;
- one absorbed in another force;
- one obstructed;
- one encircled;

- one cut off from supplies;
- one cut off from reinforcements;
- one demobilized and dispersed;
- one threatened (also) by an army in the rear;
- one whose base has been weakened and
- one without leaders.
An unhonoured army will fight if honoured with money; not so a
dishonoured army which holds resentment in its heart.
An unpaid army will fight if paid immediately, but not so a sick army, which
is unfit to fight.
An army newly arrived in a region will fight if, mixed with experienced, it
learns about the region from others; not so an army tired after a long march.
An exhausted army will fight after refreshing itself by bathing, eating and
sleeping but not so a depleted army, having been reduced in fighting men
and draught animals.
An army repulsed will fight if rallied by heroic men; not so an army defeated
after a frontal attack since it would have lost many of its brave men.
An army (made to fight) in an unsuitable season will do so if provided with
suitable vehicles, weapons and armour. An army cannot fight in unsuitable
terrain because its movement will be impeded and it cannot undertake raids.
A Despondent army will fight if its hopes are fulfilled, but not an army
abandoned by its chief.
An army with women (accompanying it) will fight if the women are separated
from it; not so an army with traitors and enemies in it.
An angry army (whose officers are provoked for some reason) will fight if
their resentment is overcome by conciliation and similar means; not so
disunited army whose members are estranged from each other.
(A defeated army may take refuge in one state or be scattered in many
states.) An army staying together and taking refuge with an ally or in a
fortress will fight if persuaded by diplomatic and conciliatory tactics. It is
more dangerous to try to collect together a scattered army.
(In the case of a joint expedition, one's own army may be encamped near
another and fight alongside or may be merged completely into another.) An
army fighting alongside can fight the enemy separately because it will have
its own positions and possibilities of mounting independent attacks. An army
completely integrated with another has no independence of movement.
An obstructed army can fight the (enemy), being obstructed on all sides.
An army with its supply of grain cut off can fight if grain is brought in from
elsewhere; it can also subsist on (locally available) animals and vegetables.
But an army cut off from reserves of men cannot fight, being bereft of

reinforcements.
An army kept dispersed in one's own land can be collected together in case
of trouble, being disbanded in one's own territory; not so an army dispersed
in the land of an ally, being far removed in place and (requiring) time (to
collect and move it.)
An army full of traitors will (still) fight if officered by trustworthy
commanders who can isolate the traitorous units; not so an army with a
hostile army in the rear being frightened of an attack from behind.
An army with a denuded capital city behind it will fight after it is fully
mobilized with the support of the citizens; not so an army cut off from its
leaders being without king or commander.
An army whose commander is dead will fight under a new commander; not
so a blind (leaderless) army.
The means of prevailing calamities to an army are : removal of vices and
defects, reinforcement with fresh troops, entrenching oneself in a strong
(defensible) place, reaching over the enemy (to secure allies or to attack him
from the rear) and making a treaty with one who can help (in counteracting
the calamity)."
The king shall always guard his army carefully against troubles caused by enemies
and strike at the weak points of the enemy's army.
The different conditions visualized by the Kautilya some times 2004 years back
broadly still guide how to administer and discipline army so that it may be ready to
meet out the challenges from its enemies or natural calamities.
7 9 . If the members of the armed force are dealt in an autocratic and feudalistic
manner, then, they may loose morale and have resentment in heart with ill
consequences. Compliance of fair and just procedure while dealing with them even if
mis-conduct is serious one is must as it shall boost the morale of the army with a
message that at no stage injustice shall be done to them while serving the Nation as
members of armed forces. The Army Order 1988 broadly meet out this requirement,
keeping in view the constitutional spirit.
80. It should be kept in mind that major contribution to the integrity and unity of the
country is upon the shoulders of judiciary and armed forces. Neither they are chosen
nor appointed on the basis of cast, creed and religion. In case their anguish,
angriness, discontentment and frustration or a feeling of injustice continues then the
country may suffer with disastrous consequences. By nature and on account of
discipline, members of the armed forces ordinarily in majority of cases do not raise
voice to ventilate their grievances. Trade unionism is neither justified nor practical or
graceful even after retirement. However, after constitution of Armed Forces Tribunal,
their grievances are attended efficaciously to impart justice. Hence, the circular letter
or Order which facilitate the applicability of fundamental rights conferred by Part III
of the Constitution of India should be enforced rigorously subject to limitation
contained in the Army Act itself.
81. Once country expects that armed force personnel should serve the country with
dedication and may sacrifice their life to protect the boundaries, then, it is for the
countrymen and the Government to look into their grievances within constitutional
spirit, by giving much more financial and other benefits (perks) than what is being

provided to the bureaucracy and legislature as was at the dawn of independence or
suitably higher.
Army Order, 1988 (supra) seems to has been issued with the same spirit so that even
if an armed force personnel committed some serious misconduct, he or she should
feel that they have been dealt with fairly and justly, keeping in view constitutional
spirit.
82. John Webster c 1580-c.1634 in his book (Play) 'The White Devil" commented
with regard to discontent in a person in the following words:--
"Tis just like a summer birdcage in a garden;
The birds that are without despair to get in,
and the birds that are within despair,
and are in consumption,
for fear they shall never get out."
83. In view of the above, the O.A. deserves to be allowed, hence allowed in part.
8 4 . Order dated 07.01.2011 as contained in Annexure-1 and the order dated
11.01.2013 as contained in Annexure 1A to the extent of discharge are set aside with
all consequential benefits. Let the applicant be provided consequential benefits within
three months. However, we declined to grant relief (b) with regard to prayer made
for setting aside red ink entries, hence rejected.
No order as to cost.
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MANU/AF/0129/2015

IN THE ARMED FORCES TRIBUNAL

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1 3 . Under sub-rule 3 of Rule 13, 'Commanding Officer' means, the officer

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