Hrishikesh Roy, J.- Heard Mr. R. Choudhury, learned coun­sel appearing for the petitioner. Also heard Mr. S. C. Shyam, the learned Central Gov­ernment counsel representing the respon­dents. 2. This appeal is presented against the judgment and order dated 29.11.2010 in WP (C) No. (SH) 167/2009 whereby the learned Court dismissed the writ petition. 3. The petitioner was serving as a Havildar/GD in the Assam Rifles Organiza­tion and he had filed the writ petition to chal­lenge the order dated 07.02.2009, whereby he was discharged for service and also the order dated 08.05.2009, whereby his prayer for reinstatement was rejected. 4. It appears from the impugned penalty that the delinquent was considered to be an incorrigible offender having secured 4 red ink entries on his service career and accordingly purporting to act under Clause 5 of the Record Branch Instruction No. 1/2004 (here­inafter referred to as "the ROI"), the delin­quent was discharged from service. 5. Mr. R. Choudhury, learned counsel points out that the petitioner had a distin­guished service career spanning over 17 years in the Assam Rifles Organization and only during 23.07.2007 to 11.08.2008 within a span of one year, the then Commandant re­corded four red ink entries and this has re­sulted in the order of discharge by the same Commanding Officer. That the petitioner had maintained high standard of discipline and turnout to the satisfaction of all his superior officers and was selected for participation in the Republic Day contingent for three con­secutive years because of his discipline, fit­ness and devotion. His records in capturing militants and recovery of arms and ammuni­tions are very good and his selfless devotion to duty was demonstrated in several occa­sions, when the petitioner risked his life in performance of his assigned task. Notwith­standing such fine carrer, within a one year span for some unknown reasons, one Com­manding Officer (C.O.) recorded four adverse red ink entries against the petitioner and he was then discharged from service. Accord­ingly the counsel alleges biasness against the Commanding Officer. 6. The provisions of Section 4 of the Assam Rifles Act, 1941 (hereinafter referred to as "the A.R. Act") and more particularly sub­section 3 of Section 4 is read out by Mr. Accord­ingly the counsel alleges biasness against the Commanding Officer. 6. The provisions of Section 4 of the Assam Rifles Act, 1941 (hereinafter referred to as "the A.R. Act") and more particularly sub­section 3 of Section 4 is read out by Mr. Choudhury to project that a Riflemen cannot be discharged except in accordance with the terms of the statement which he has signed under the A.R. Act and specifying the state­ment in the schedule, the learned counsel ar­gues that discharge under Section 4 could not have been ordered against the delinquent on the stated grounds. 7. Referring to four specific violations which led to the discharge order, Mr. Choud­hury contends that three of them related to intoxication and the 4th charge was of to overstaying leave without sufficient cause. He submits that these violations are not on the heinous category and are not relatable to charges akin to lack of integrity, moral tur­pitude or indiscipline jeopardizing the secu­rity of the unit. Accordingly the Counsel con­tends that, the disciplinary authority should not have taken such a drastic view of the acts and a lesser punishment should have been inflicted. 8. Mr. S.C. Shyam, learned Central Gov­ernment counsel, on the other hand, points out that despite earning red ink entries one after another, the delinquent did not amend his ways and, therefore, to ensure mainte­nance of discipline in the organization, the authorities had to discharge the delinquent. 9. The learned counsel submits that the career records of the delinquent was consid­ered by the authorities and accordingly pro­visions was made for payment of pensionary benefits to the petitioner, notwithstanding what was recorded in the impugned order dated 08.05.2009. 10. The respondents also contends that the petitioner was given a show cause notice before the impugned action was taken when he had pleaded guilty to the charges and only after complying with the procedure prescribed under clause 5 of the RO1, the impugned dis­charge order was issued by the Command­ing Officer. 11. We have given our anxious consider­ation to the argument advanced by the rival counsels. The reasoning's given by the learned Single Judge for passing the impugned order have also been considered by us, 12. Since the source of the discharge or­der is under clause 5 of the RO1, same is ex­tracted herein below for ready reference: "5. 11. We have given our anxious consider­ation to the argument advanced by the rival counsels. The reasoning's given by the learned Single Judge for passing the impugned order have also been considered by us, 12. Since the source of the discharge or­der is under clause 5 of the RO1, same is ex­tracted herein below for ready reference: "5. Discharge/Disposal of Undesirable/In­efficient Personnel: Vide Chapter 8, Rule 24 of the Assam Rifles Manual confers powers on the Commandants of Assam Rifles Battalion to discharge any members of the Assam Rifles below the rank of Nb/Sub. This power may be exercised by a Commandant in case where a person has got four or more red ink entries. In case, it is necessary to send an individual on discharge under this provision, a notice will be served on the individual affording an opportu­nity to him to explain his case. Thereafter the complete case will be forwarded to Sector HQ along with the notice and reply received from the individual, for the approval of the Sector Commander. Thereafter the documents will be sent to the Directorate, Record Branch/UPAO for final settlement of his IRLA." Clause 5 empowers the Commandant to discharge an Assam Rifles personnel below the rank of Naib Subedar in case he receives "four or more red ink entries". Considering the wordings it is apparent that, merely be­cause a man receives four red ink entries, dis­charge is not automatic and discretion is given to the Commanding Officer to consider dis­charge. Obviously the severity and the nature of the misconduct will have to be weighed before recourse is taken to exercise power conferred by Clause 5 of the ROI. 13. Furthermore since Clause 24 of Chap­ter 8 pertaining to discipline in Assam Rifles organization is also referred to by the learned Central Government counsel, an examination of ambit of Clause 24 would be appropriate at this stage. A Commandant of the Assam Rifles is empowered to pass a dismissal or­der under Clause 24 but it is also provided that dismissal should not ordinarily be ordered until all other means of punishment have been tried. However for incorrigible offenders in­cluding confirmed drunkards, dismissal can be generally ordered. But this not about dis­missal but of discharge and that also because, the delinquent got four red ink entries. However for incorrigible offenders in­cluding confirmed drunkards, dismissal can be generally ordered. But this not about dis­missal but of discharge and that also because, the delinquent got four red ink entries. There­fore, we feel that since specific power of pun­ishment is conferred under Clause 5 of the R01 for red ink entries, the penalty in this case cannot appropriately be related to Clause 24 of the Assam Rifles Manual, which conspicu­ously doesn't speak of discharge. 14. Furthermore, while Section 4 of the A.R. Act permits discharge of personnel by the Commandant the said power is exercis-able only under the circumstances mentioned in sub-section 3 of Section 4. But the respon­dents haven't specified any violation of the "terms of statement" mentioned in this provision. Therefore, we are of the view that the punishment in the present case cannot be sup­ported on the basis of the powers given to the Commandant under Section 4 of the A.P. Act. 15. After tracing out the source of the power for the penalty to Clause 5 of the RO1, we should now consider the nature and grav­ity of the four violation for which, the red ink entries were recorded. To appreciate this as­pect a comparison of red ink entries recorded against another Assam Rifles Personnel (Jose Nedum Joseph) whose case is referred to by the learned Government Counsel, may be in order. It is seen that in the case of Jose Nedum Joseph (who had filed WP (C) No. 2099/1999 where this Court altered the pun­ishment of dismissal with an order of discharge and which decision was eventually upheld by the Apex Court), the violations related to cheating, indiscipline where the safety of the unit was compromised and insubordination. If we compare this with the four violation of the present delinquent, it becomes apparent that 3 charges of intoxication and 1 of over­staying can't be considered in the same class of serious offence more particularly when, the violation did not jeopardize the security of the Unit. 16. Furthermore, we find from Clause 5 of the ROI, that discharge is not automatic. Under Clause 5 when "four or more red ink entries" are recorded the power of discharge is available to be exercised. 16. Furthermore, we find from Clause 5 of the ROI, that discharge is not automatic. Under Clause 5 when "four or more red ink entries" are recorded the power of discharge is available to be exercised. The use of the expression "four or more" and also the use of the word "may" in Clause 5 indicates that the discretion is given to the disciplinary author­ity to decide as to whether the person who is found to have recevied the red ink entries, ought to be discharged from service. 17. Considering the discretionary nature of power vested on the disciplinary authority under Clause 5 of the ROI and also the na­ture of the delinquent's 4 violations for which the red ink entries were given, we find that the punishment of discharge is disproportion­ate and it also shocks our judicial conscience. Furthermore it can't also be overlooked that all the four red ink entries were recorded by one particular C.O. within a span of one year in the petitioner's 17 years service career, which otherwise have remained free from such red ink entries, for 16 years of his service carrer. 18. Bearing in mind the long service ca­reer that the delinquent was left with in the Organization and considering the serious hardship that the family would suffer when the bread earner is discharged at the age of 35 years after 17 years of service and also tak­ing into consideration the discretionary nature of the power under Clause 5 of the ROI and taking into account the nature of the 4 viola­tions for which the red ink entries were given, we feel that a penalty which will not result in discontinuation of service, would better serve the cause of justice. In the context of her charges, we feel that the punishment is dis- proportionate and the disciplinary authority should have inflicted a lesser punishment to the delinquent, so that he could continue in service. 19. Consequently we feel inclined to in­terfere with the impugned order(s) of 07.07.2009 and 08.05.2009 and accord­ingly the same are set aside and quashed. The petitioner is ordered to be reinstated in service subject to assessment of his physi­cal fitnes. However, the respondents are at liberty to impose any lesser punishment bal­ancing the interest of the organization and also of the delinquent. The petitioner is ordered to be reinstated in service subject to assessment of his physi­cal fitnes. However, the respondents are at liberty to impose any lesser punishment bal­ancing the interest of the organization and also of the delinquent. Accordingly, we in­terfere with the impugned judgment of 29.11.2010 and allow this Appeal without any order of cost.