JUDGMENT : R.B. Misra, J. Heard Sri. I.R. Singh, learned Counsel for the Petitioner and Sri. Ashok Singh, learned Counsel for the Respondent. The original records pertaining to the service of the Petitioner were summoned and has been perused. 2. In this petition prayer has been made for quashing the discharge and consequential orders passed after discharge and punishment awarded to the Petitioner and for a further direction to the Respondent not to interfere with the functioning of the Petitioner. 3. The facts emerges from the pleadings of the parties are that Ex. No.13944536 Sep./Nursing Assistant Ram Manorath joined the Indian Army on 26.12.1977 and was deputed to the Army Medical Corps. The Petitioner was discharged from service on 3.10.1989 under item III (v) of Rule 13 of the Army Rules 1954, after completion of 12 years and 282 days of regular service. The instant writ petition has been filed by the Petitioner in the year 1989 against the show cause notice and thereafter consequent to the discharge order the same was challenged by an amendment application filed by the Petitioner for quashing the same. 4. According to the Petitioner the discharge of the Petitioner by the Respondent on the ground of four red ink entries in the service was against his reply dated 12.8.1989 and ignoring the long service of 11 years 9 months and 26 days, where only three years more remains for pensionary service of the Petitioner, however, ignoring the long service of the Petitioner the Respondent have passed the order dated 27.10.1989 indicating that the same is no longer required without assigning any reason by a non-speaking order. According to the Petitioner the discharge of the Petitioner is against the spirit of the Army Circular letter dated 11th March, 1985. The circular dated 11th March, 1985 reads as below: Copy of Army H.Q. letter No. A/13210/A.G./R.S.-2 (C) dated 11th March, 1985. As Above (1) It has been laid down vide this H.Q. letter No. A/210/A.G./R.S.-2 (C) dated 23rd August, 1985 that an individual who has proved himself undesirable and whose retention in service considered inadvisable will be recommended for discharge or dismissal. In view of the above policy, normally who incurs four red ink entries in his conduct sheet as discharged from service under the provisions of A.R. 13 (iii) as service no longer required. In view of the above policy, normally who incurs four red ink entries in his conduct sheet as discharged from service under the provisions of A.R. 13 (iii) as service no longer required. (2) In this connection, it is clarified that discharge from service consequent to four red ink entries is not a mandatory or legal requirement, while taking cognizance of four red ink entries and recommending discharge of O.R. in terms of A.R. 13 (iii) (v) the Commanding Officer must consider the nature of offence for which each red ink entry has been awarded and not to be harsh with the individuals, especially when they are about to complete pensionable service. Before taking a decision in this regard, due consideration should be given to the long service, hard stations and difficult living conditions that the O.R. has been exposed to during his service. Each case of discharge consequent ordered only when it is considered absolutely necessary in the interest of service. As an additional safeguard, such discharge should be approved by the next high commander. Sd. xxxxx (Sami Khan) Maj. Gen. Additional D.G.R.S. for C.D.A.S. CONFIDENTIAL 5. According to the Petitioner, discharge of the Petitioner from service is arbitrary, mala fide and by way of punishment, without affording opportunity of hearing to the Petitioner, in contravention of Rule 13 (iii) (v) of the Army Rules, and is also against the verdict of the different judgments in Chaukas Ram Vs. Sub Area Commander and Another, (1990) 3 UPLBEC 1876 ; Ram Pravesh Rai v. Union of India and Ors. 1988 UPLBEC 783; Captain Rachpal Singh v. Union of India 1987 UPLBEC 114 (SC) and Capt. Virendra Kumar Vs. Union of India (UOI), AIR 1981 SC 947 . 6. In Shri Chaukas Ram (supra) in paragraph 10 it has been held as under: 10. In this connection it may be mentioned that by a letter dated 11.3.1985 of the Army Head Quarter directions had been issued requiring that the officials should not be harsh while taking an action of discharge consequent to the four red ink entries or in term of Rule 13 (3) (iii) (v), especially when the person concerned is about to complete pensionable service. It was further provided that before taking action due consideration should be given to the long service and discharge should be ordered only when it is considered absolutely necessary in the interest of service. It was further provided that before taking action due consideration should be given to the long service and discharge should be ordered only when it is considered absolutely necessary in the interest of service. Para 2 of the aforesaid letter is quoted below: 2. In this connection, it is clarified that discharge from service consequent to four red ink entries is not mandatory or legal requirement, while taking cognizance of four red ink entries and recommending discharge of or in term of Rule 13 (iii) (v) the Commanding Officer must consider the nature of offence for which each red ink entry has been awarded and not be harsh with the individuals especially when they are about to complete pensionable service. Before taking a decision in this regard, due consideration should be given to the long service, hard stations and difficult living conditions that the O.R. has been exposed to during his service. Each case of discharge consequent ordered only when it is considered absolutely necessary in the interest of service. As an additional safeguard, such discharge should be approved by the next High Commander. 7. In paragraph 14 of the judgment in Ram Pravesh Rai (supra) this Court has held as under: 14. In the case of Ranjit Thakur Vs. Union of India (UOI) and Others, AIR 1987 SC 2386 Hon'ble Supreme Court had the occasion to consider, the proportionality of punishment awarded to a Signal Man of "4 Corps Operating Signal Regiment" of the Indian Army for almost identical offence, namely, refusal to eat food when ordered amounting to disobedience of lawful command given by his superior officers as contemplated by Section 41(2) of the Act. The punishment of rigorous imprisonment for one year and his dismissal from the service was held by Hon'ble Supreme Court to be "strikingly disproportionate as to call for and justify interference". Hon'ble Supreme Court found that it could not be "allowed to remain uncorrected in judicial review." In the instant case also we do feel that punishment awarded to the Petitioner, tested on the doctrine of proportionality, is not commensurate to the gravity of the charge levelled against him and, therefore, violative of the provisions of Article 14 of the Constitution of India. 8. In the case of Captain Rachpal Singh (supra) the Supreme Court in paragraph 8 has held as below: 8. 8. In the case of Captain Rachpal Singh (supra) the Supreme Court in paragraph 8 has held as below: 8. The Army Act, the Rules and Regulations and Instructions thereunder govern the service conditions of the Commissioned Officers including those on Emergency Commission, like the Appellant before us. Termination of Emergency Commission is provided in Rule 15 of the Army Instruction. A contention was raised in Virendra Kumar's case (supra) that the Army Instruction did not have any statutory status and could not therefore, bind the service conditions of the Emergency Commissioned Officer. The contention was repelled by this Court. We respectfully agree. 9. The Supreme Court in Capt. Virendra Kumar (supra) in paragraphs 4 and 10 observed as follows: 4. It is common ground that the Appellant was released or discharged on account of physical disability. This is also vouched for by the communication from the President's Secretariat to the Appellant dated 13/23 April, 1971 extracted in the paper book. Once we assume that the termination of the emergency commission of the Appellant was on the basis of medical unfitness or physical disability, the procedure to be followed in releasing the officers become important. In Service Jurisprudence, procedural safeguards are of prime significance. 10. These two rules, so far as we are able to see, lay down the procedural basis for termination of service of Regular Commissioned Officers on account of physical disability or medical unfitness. If Rule 15 applies to Emergency Commissioned Officer, as it does, prescribes a certain procedure which must be followed. The Chief of the Army Staff must be satisfied that the officer is unfit to be retained in the service due to physical disability. By the way there are sedentary posts in the Army. This satisfaction is not purely subjective and only on its formation the Chief of the Army Staff shall proceed further. He may thereafter, inform the officer concerned about the ground for release from service. Natural justice comes in at this stage. Once the Chief of the Army Staff holds that the officer's physical disability justifies termination of service, there is another opportunity given by the Rule (Rule 15 (2) for the affected officer to make an explanatory representation to the Central Government. Natural justice comes in at this stage. Once the Chief of the Army Staff holds that the officer's physical disability justifies termination of service, there is another opportunity given by the Rule (Rule 15 (2) for the affected officer to make an explanatory representation to the Central Government. The orders of the Central Government, after considering the reports and the explanations, and the recommendation of the Chief of the Army Staff, will be made under Rule 15 (3). This finishes the exercise under Rule 15. If Rule 15A is to be invoked in the case of the Commissioned Officer, the Army Chief has to make up his mind: the procedure to be followed is set out therein. A Medical Board has to examine the officer. Other procedures in keeping with natural justice are also set out. But nothing has been brought to our notice indicating that the fair procedure under Rule 15 or 15A has been fairly or at all followed. Mere injury in action does not automatically end the Officer's service. The consequence is that the order of termination of service is invalid for failure to adhere to basic procedure. Even the top brass must act according to law as lawlessness in the Defence Force is a grave risk, four-star general or foot infantory jawan. 10. Counter-affidavit has been filed indicating as under: (a) The Petitioner was discharged w.e.f. 3.10.1989 under item III (v) of the Army Rule 13 after having been served a show cause notice dated 28.7.1989 duly underlying the proposed action to be taken against him on account of the misconduct, owing to which he had already incurred four red ink entries and was a habitual offender. (b) The Petitioner had incurred four red ink punishment entries including 3, before joining u/s control of Respondent No. 3. As a matter of fact even opportunity was given to him and he was also got under observation to improve and correct himself but all in vain and as such the competent authority, i.e., Respondent No. 2 took a decision in accordance with the provisions of Army Rules 13 (3) III (v) and show cause notice was issued to the Petitioner on 28.7.1989 giving him 20 days time to reply. After considering the reply and having found it to be unconvincing and unsatisfactory, the Respondent No. 2 directed that the Petitioner discharged from service vide letter dated 2.9.1989. After considering the reply and having found it to be unconvincing and unsatisfactory, the Respondent No. 2 directed that the Petitioner discharged from service vide letter dated 2.9.1989. (c) The Petitioner was discharged after taking into consideration the reply of Petitioner, which was found unsatisfactory and the discharge order was duly sanctioned and authorized by the Sub-Area Commander on the form I.A.F.Y.-1948A dated 13.10.1989. (d) According to the Respondent, the Petitioner is erroneously relying on the judgment of Chaukas Ram (supra) as the entire fact in that case was that the writ Petitioner was called upon by way of show cause notice to explain as to why 'suitable administrative action' be not taken in respect of the alleged misconduct against him, where the Court found that mention of suitable administrative action was vague and it was not possible to comprehend the proposed action as to what proposed action was to be taken against the Petitioner as the specific action or proposed action to be taken was not specified in the show cause notice, where the writ Petitioner was not in a position to give effective reply. In those circumstances, the show cause notice in question was not treated to be in consonance to the Rule 13 of the Army Rules, whereas the facts and circumstances of the present case are different and distinguishable as in the instant case a detail show cause notice mentioning specific misconduct in different sections referable to the Army Act was mentioned and the Petitioner was clearly indicated that the action is proposed to be taken in reference to four red ink entries. (e) The Petitioner, however, had duly replied the show cause notice and had never disputed the incidence and events referred by the Respondent as incorrect in reference to Union of India and others Vs. Corporal A.K. Bakshi and another, AIR 1996 SC 1368 , where the Supreme Court has held that the policy to discharge a habitual offender of a disciplined force is perfectly within the domain of Union of India. Corporal A.K. Bakshi and another, AIR 1996 SC 1368 , where the Supreme Court has held that the policy to discharge a habitual offender of a disciplined force is perfectly within the domain of Union of India. (f) As contended on behalf of Respondent, the Army being a disciplined organization and if the Petitioner would have been permitted to be retained in the force despite having shown utter indiscipline on 4 occasions, for which he had incurred red ink entries and two other punishments on different occasions, the same would bring about indiscipline in an otherwise disciplined force as this would send a wrong signal to the effect that other would also go scot free even on showing their indiscipline and thus the retention of the Petitioner in the force was not desirable. (g) It is the subjective satisfaction of the Commanding Officer to decide as to what actions are proposed to be taken under what circumstances in the interest of force and in the interest of justice and in the present case four red ink entries available on the record of the Petitioner were analysed and a correct decision was taken by the Respondent as claimed by the Respondent. 11. In Sep. Bhag Singh v. Union of India and Ors. 2001 Mh LJ 165, it was held in reference to Rule 13 (iii) of Army Rules, 1954, in respect of five red ink entries, where the writ Petitioner contended that he had suffered from the disease as he had given considerable reply to the show cause and the matter was ought to have been inspected and the discharge was bad, and the discharge without consent of the writ Petitioner amounted to termination without investigating further after receiving the reply to the show cause notice. In those circumstances, it was held that the Army Act having used the word 'retired', 'discharged', 'released', 'removed', 'dismissed' and 'cashiered' and having provided distinct rules governing each of them, must not be confused with each other as the Rules 11, 12 and 13 of Army Rules abundantly make clear that the discharge as provided in the Army Act is not removal or termination. It was further observed in Sep. It was further observed in Sep. Bhag Singh (supra) case that if a person is charged for misconduct then only rules provided for investigation, however, in his case no allegation against the Petitioner was of any misconduct, as such, there was no question of investigation and the claim of the writ Petitioner was dismissed. In the case of Sep. Bhag Singh (supra) in paragraphs 5 and 8 it was observed as under: 5. The act having used the words 'retired,' 'discharged,' 'released,' 'removed,' 'dismissed' and 'cashiered' and having provided distinct rules governing each of them must not be confused with each other. A bare perusal of Rules 11, 12 and 13 makes it abundantly clear that discharge is not removal or dismissal. Rule 11 says that every person, as soon as he becomes entitled to be discharged, should be discharged with all convenient speed. Rule 12 talks about the discharge certificate. Rule 13 provides who can be discharged, when he can be discharged ; who would discharge and the manner of discharge. The first ground of discharge is fulfilment of the conditions of enrolment or having reached the stage, discharge may be enforced. The second ground is on completion of the period of Army service only and there being no vacancy in the reserve ; the third being if found medically unfit for further service ; the fourth ground is discharge at the own request of the person seeking such discharge and the last one is all other classes of discharge. The same makes it abundantly clear that the discharge, as thought in the Army Act, is not removal or termination. It is not a fall out of a misconduct. If a person is charged for misconduct, the rules provided how such charge is to be investigated upon and if the charge is proved against such person, how to remove or dismiss or cashier him. If a person is charged with misconduct, rules say that he would not face a discharge, but may face removal or dismissal or termination or he may be cashiered. 8. The allegation against the Petitioner in the instant case is that he has acted in a manner which shows that he is beyond discipline, for he having earned five red ink marks in his career and, therefore, his retention in the force is not desirable. 8. The allegation against the Petitioner in the instant case is that he has acted in a manner which shows that he is beyond discipline, for he having earned five red ink marks in his career and, therefore, his retention in the force is not desirable. What really was meant in the show cause notice was that if the Petitioner is permitted to be kept in the force despite having had shown utter indiscipline on five occasions, the same would bring about indiscipline in the otherwise disciplined force as every member of the force would get a wrong signal to the effect that they may also go scot free despite showing their utter indiscipline in the force. He contended in his reply that the decisions taken to sentence him for having committed indiscipline were bad. He, therefore, had shown utter apathy towards the disciplined force. There exists a Government policy not to retain in a disciplined force persons, who are habitual offenders of discipline. 12. Rejoinder-affidavit has been filed on behalf of the Petitioner controverting the contents of the counter-affidavit and reiterating the stand taken in the writ petition. 13. I have heard learned Counsel for the parties and perused the records. I find that after perusing four red ink entries and on proper analysis the concerned competent authority on its subjective satisfaction has taken a decision of discharge of the Petitioner, which cannot be said to be dismissal with stigma. I find no arbitrariness and the said action of the Respondent are not in derogation to the spirit of the circular dated 11th March, 1985, as the said action of the Respondent is in the interest of service of the Petitioner, based on documentary evidence. In the present case, the three years service was left to complete the pensionable service and verdict of Ram Pravesh Rai (supra) and also verdict of the Supreme Court in Captain Rachpal Singh (supra) and Capt. Virendra Kumar (supra) are not applicable to the facts and circumstances of the present case. I do not find any illegally and impropriety in the said order, therefore, there was no necessity to make a further probe or inquiry and provide opportunity of hearing as the action of the Respondent is in consonance to the provisions of Army Rules. Virendra Kumar (supra) are not applicable to the facts and circumstances of the present case. I do not find any illegally and impropriety in the said order, therefore, there was no necessity to make a further probe or inquiry and provide opportunity of hearing as the action of the Respondent is in consonance to the provisions of Army Rules. In these circumstances, this Court is not inclined to invoke its extraordinary discretionary jurisdiction under Article 226 of the Constitution, therefore, the writ petition is dismissed.