JUDGMENT Hon’ble Shishir Kumar, J.—This writ petition has been filed for quashing the order of discharge dated 25th May, 2000 (Annexure 10 to the writ petition) as well as the order dated 31st May, 2005 (Annexure 17 to writ petition). Further prayer in the nature of mandamus commanding the respondent No. 1 to treat petitioner to have continued in Colour Service till he would have completed requisite service laid down in Para 164 of Defence Service Regulation ( Regulations for Army), 1987 with all consequential benefits. 2. The facts stated in the writ petition are that petitioner who was recruited in army was granted annual leave from 12th September, 1999 upto 28th December,1999. Various other facts stated in the writ petition are not necessary to be mentioned herein. It has been stated that during leave period, petitioner was called back and due to aforesaid fact, annual leave of petitioner for the year 1999 has been elapsed. A show cause notice was issued to petitioner submitting reply and subsequently a show cause notice was also issued directing petitioner to submit reply to said show cause notice. Petitioner has submitted reply and an order of discharge from service was passed on the ground that petitioner was awarded four red ink entries during his 13 years of service and petitioner was send on leave for 64 days but without any permission for extension of leave, he has overstayed, which is an offence under the Army Act but respondent without adopting any procedure as provided under the Act, an administrative action has been taken under the Army Rule 13(3)(4) of the Army Rules. The ground taken in the discharge certificate was that as petitioner has earlier been punished under Sections 40, 39, 63 of the Army Act, for various offences, therefore, he is being discharge from service being undesirable as inefficient solider. Petitioner filed a complaint as provided under the Act that too has been dismissed. Hence, the present writ petition. 3. Counter and rejoinder affidavits have already been exchanged, therefore, with the consent of parties, present writ petition is being disposed of on the admission stage. 4. Learned counsel for petitioner submits that the ground taken by respondents while discharging petitioner from service cannot be sustained in view of the fact that if petitioner has committed some offence, he is liable for trial by the Court Martial. 4. Learned counsel for petitioner submits that the ground taken by respondents while discharging petitioner from service cannot be sustained in view of the fact that if petitioner has committed some offence, he is liable for trial by the Court Martial. Court Martial being a procedure for punishment under the Act is to be adopted. Under Section 108 of the Army Act, there are four types of Court Martial by which petitioner can be tried. In case in the opinion of respondents, petitioner has committed any offence or overstayed on leave without sanction of the same, unless and until an opportunity to that effect is given, petitioner cannot be discharged from service. Under the Army Act and Rules, there is a procedure that, in case, some offence is committed by a person subject to the Army Act, a Court of enquiry as provided under Rule 177 has to be ordered by the competent authority and in case it is found that prima-facie case is made out, then the commanding officer will pass an order for holding a Court Martial either summary, general or district. But taking action under Rule 13, without affording an opportunity to petitioner is not sustainable in law and is liable to be quashed. 5. Assuming without admitting this fact, if petitioner was punished earlier on some offence that cannot be a ground for discharge of petitioner from army service. Petitioner has placed reliance upon a judgment of this Court in C.M.W.P. No. 10816 of 2000 No. 5042301A, L.B.Thapa v. Chief of Army Staff and others. Another judgment has been relied upon by petitioner in C.M.W.P. No. 3201 of 1994, Shambu Gurung v. Union of India and others, decided on 2.2.2005. Further reliance has been placed upon 1990 ACJ, 597, Chaukas Ram v. Sub-Area Commander and Another. Taking support of the aforesaid judgments, learned counsel for petitioner submits that, in case, no notice against contemplated discharge having been given to petitioner, it will be treated that order impugned of discharge has been passed in violation of the procedure laid down by Rule 13 and also against the principle of natural justice. Further argument has been raised that unless and until submission is recorded that trial of petitioner by Court Martial is inexpedient or impracticable against Rule 13, cannot be taken. Further argument has been raised that unless and until submission is recorded that trial of petitioner by Court Martial is inexpedient or impracticable against Rule 13, cannot be taken. In such situation, learned counsel for petitioner submits that discharge order passed by respondents is liable to be set aside. 6. On the other hand, learned counsel for respondents submits that petitioner was NCO Incharge, Kerbside Petrol Pump and was posted to 45 Company ASC (Supply) Type-B on 3.9.1998. Petitioner had four red-ink entries from his previous units under various Sections of the Army Act, awarded by different Commanding Officer under whom he was working. Petitioner requested for annual leave for the year 1999 in the month of December, 1999. His leave was sanctioned and he was issued a railway warrant for both ways in advance as per the existing rules. Petitioner before proceeding on leave has to handover the charge but petitioner became absent without leave with effect from 29.12.1999 without handing over the charge of the petrol pump. An apprehension roll was issued as he left the unit without any proper order and permission. Petitioner reported on 4.1.2000. Thereafter petitioner was sent on 34 days part of annual leave for the year 2000 on compassionate ground. His leave was extended by 30 days till 12th March, 2000. After re-joining on leave, petitioner was awarded “Severe Reprimand” for being absent without leave with effect from 29.12.1999 to 3.1.2000. This was his 5th red ink entry. Then a show cause notice was issued to petitioner on 17.1.2000 to discharge on account of four red ink entries being an undesirable/inefficient person. Petitioner submitted a reply and same was considered and statutory complaint filed by petitioner has also been dismissed. 7. It has further been submitted on behalf of respondents that army authorities in view of provisions had an option to try a person either by a Court Martial or to take an administrative action as provided under Rule 13 of the Army Rules. Further Section 20 of the Act gives power to Army authority to dismiss or remove any person subject to the act other than officer. The procedure has been prescribed that he can be dismissed from service on the basis of show cause notice and then he will have a remedy under Section 26 of the Army Act. Further Section 20 of the Act gives power to Army authority to dismiss or remove any person subject to the act other than officer. The procedure has been prescribed that he can be dismissed from service on the basis of show cause notice and then he will have a remedy under Section 26 of the Army Act. The procedure for discharge has been provided under Rule 13 of the Rules. Reliance has been placed upon a judgment of this Court reported in 2002 (2) ESC 207 (All), Sugreev Singh Desuriya v. The Central Government (HC). Placing reliance upon aforesaid judgment, learned counsel for respondent submits that this Court while considering similar provision which is under the Air Force Act and Rules has held that if a non-commissioned officer was discharged from service on the ground of service no longer required and unsuitable retention for Air Force on the ground of red and black ink entries in his conduct book, this Court has held that, in such circumstances, it cannot be said that procedure prescribed and adopted by respondents is faulted. The Court has further held that respondents have followed the procedure of giving warning and also issuing a show cause notice after he again incorporated red-ink entry in the conduct book and after considering the explanation has discharged him from service, it cannot be said to be contrary to the policy of discharge of habitual offender. The submission of petitioner regarding policy as ultra-virus was also not accepted. Further reliance has been placed on a Apex Court judgment reported in JT 2008 (2) SC 302, Union of India and others v. Rajesh Vyas. Relevant para 10 is being reproduced below : “10. As noted above, policy for discharge of habitual offender was considered by this Court in A.K.Bakshi’s case (supra).After analyzing the policy, it was observed that the whole idea underlying the policy was to weed out the indisciplined personnel from the force. It was further observed that it was a discharge simplicitor and as such it cannot be held as termination of service by way of punishment for misconduct. 8. Learned counsel for respondents has also placed reliance upon a judgment of this Court reported in 2005 (2) ESC 892 , Ali Jabed v. Union of India and others. It was further observed that it was a discharge simplicitor and as such it cannot be held as termination of service by way of punishment for misconduct. 8. Learned counsel for respondents has also placed reliance upon a judgment of this Court reported in 2005 (2) ESC 892 , Ali Jabed v. Union of India and others. Placing reliance upon aforesaid judgment, learned counsel for respondents submits that this Court in similar circumstances taking into consideration the previous four red entries has held that discharge of a person cannot be said to be by way of punishment and has held that policy of discharging of habitual offender cannot be said to be ultra-virus and if a person has been awarded red-ink entries, punishment cannot be said to be illegal. Further it has been held by this Court that the person concerned has given adequate opportunity of placing his defence in accordance with rules and procedure provided, therefore, it cannot be held that punishment awarded is not correct and proper. 9. I have considered the submissions made on behalf of parties. From the record, it is clear that earlier petitioner has been awarded four red ink entries under various Sections of the Army Act and he was punished for the same and it was incorporated in his service record. (a) Army Act Section 40 © on 16 Oct., 8914 days RI, by Lt.Col N.C. Dutta (b) Army Act Section 39 (d) on 30 March, 96 severe Reprimand by Lt.Col Surjit Singh. (c)Army Act Section 63 on 16 Sep., 96 Severe Reprimand by Col Kamal Mohey. (d) Army Act Section 63 on 2 Apr., 96 Severe Reprimand by Col J.S. Dhillon. (e) Army Act Section 30 (a) on 18 Mar., 2000 Severe Reprimand by Major J.S. Shekhawat. 10. Lastly, petitioner was awarded Severe Reprimand under Section 39(A) on 18th March, 2000. The argument raised on behalf of petitioner to this effect that if some punishment is to be awarded to petitioner, there was no occasion for initiating an administrative action against petitioner Under Rule 13 (3)(iv) of the Army Rules. It was incumbent on the part of respondents to have an enquiry to hold a trial for the purposes of initiations action against petitioner. It was incumbent on the part of respondents to have an enquiry to hold a trial for the purposes of initiations action against petitioner. Rule 13 gives the power to the Sub-Area Commander ordering discharge in the circumstances of the case permit to give the person whose discharge is contemplated, an opportunity to show cause against the contemplated discharge is to be given. From the perusal of aforesaid rule, it is clear that power has been conferred to army authorities to take administrative action against a person who is serving in the army. From the record it is clear that petitioner was habitual offender and earlier he was punished four times under various Section of the army. The contention regarding that no administrative action should have been taken against petitioner as no Court Martial has been held, therefore, punishment is bad in law and cannot be accepted in view of provision of Section 125 of the Act. It is the army authority to choose the forum. Under the Army Act, there are two modes of punishment which can be awarded to a army person, one by a Court Martial and another is administrative action provided under Army Act and procedure provided under Rule 13 of the Rules. The decision citied by learned counsel for petitioner is not applicable to the present case as in Chaukas Ram’s case (supra), it was not a case of red-ink entry. In the aforesaid case, petitioner was involved in a crime and has concealed the said fact. The other two cases relied upon by learned counsel for petitioners relates to the decision of the statutory complaint. This Court in that circumstances has directed the army authorities to pass appropriate orders to decide the statutory complaint. The submission of the learned counsel for petitioner to this effect that punishment awarded to petitioner is very harsh. In my opinion, case in hand is a case of military personnel and discipline in the military service has to be maintained for the purposes and security of the country. In the case of Vidya Prakash v. Union of India, AIR 1988 SC 705 , question raised before the Apex Court was in order to withdrawing red-ink entries and if a person is absent without leave, whether the punishment of dismissal is disproportionate or not. In the case of Vidya Prakash v. Union of India, AIR 1988 SC 705 , question raised before the Apex Court was in order to withdrawing red-ink entries and if a person is absent without leave, whether the punishment of dismissal is disproportionate or not. The Apex Court has held that if a person is punished for an offence of absent from duty on four occasions and red ink entry has been awarded, punishment awarded by the Court Martial for dismissal from service cannot be said to be disproportionate to the charges levelled against the person concerned. In AIR 1996 SC 1368 , Union of India and others v. A.K. Bakshi, while considering similar provision of Air Force, which is in the Army Act, it has been held by the Apex Court that policy of discharge of habitual offender as prescribed in the policy discharging a person in accordance with law with the procedure laid down does not amount to removal by way of punishment. It is a discharge under the Rules. Similar policy for removal for undesirable and inefficient solders have been framed by the Army Authorities dated 28th December, 1988. The relevant part is being quoted below : “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 17 provide that a JCO/WO/OR whose dismissal or discharge is contemplated will be given a show cause notice. Procedure for Dismissal/Discharge of undesirable JCOs/WOs/OR 4. AR 13 and 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 reasonable practice to serve such a notice. Such cases should be rare, e.g., where the interests of the security of the State so require. Where the serving of a show cause notice is dispensed with, the reason 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 AR17, as the case may be, is 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 a Court of Inquiry) has been made into the allegations against him and that he has adequate opportunity of 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 recommendation for dismissal or discharge will be forwarded through normal channels, to the authority competent to authorise the dismissal or discharge, as the case may be, along with 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 authorise 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 wait ranted he should direct that 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. If he is satisfied that the termination of the individual’s service is wait ranted he should direct that 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 or 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 authorise 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 individuals service is not warranted but any of the actions referred to in (b) to (j) 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 notices entirely satisfactory, he will pass orders accordingly.” 11. The Apex Court has further held that in the said circumstances discharge from service cannot be said to be by way of punishment. In Sugreev Singh’s case (supra), the Division Bench has also taken the same view. 12. The Apex Court has further held that in the said circumstances discharge from service cannot be said to be by way of punishment. In Sugreev Singh’s case (supra), the Division Bench has also taken the same view. 12. After considering all facts and circumstances of the present case and decisions of this Court as well as the Apex Court, I am of view that discharge of petitioner from service cannot be said to be illegal or disproportionate. 13. In view of aforesaid fact, the writ petition is devoid of merits and is hereby dismissed. 14. No order is passed as to costs. ————