JUDGMENT : 1. This petition, initially filed as a writ petition under Article 226 of the Constitution of India before the Hon'ble High Court of Jammu & Kashmir, stands transferred to this Tribunal in terms of provisions of Section 34 of the Armed Forces Tribunal Act. The petition is accordingly treated as a petition in terms of provisions of Section 14 of the Armed Forces Tribunal Act, by virtue whereof petitioner has assailed the impugned discharge order dated 29.8.2009 whereby he has been discharged from the army. The impugned discharge order is sought to be quashed on the grounds urged in the petition. The case set up by the petitioner is that he was working and discharging his duties as a Rifleman in JAKLI when he came to be severely beaten up by the Adjutant and other unit personnel. He was referred to Military Hospital on 28.3.2009. It is alleged that instead of initiating action against the delinquent Officer/officials, Respondent No.3 issued the order dated 29.8.2009, discharging the petitioner from the service of JAKLI. The impugned order of discharge is assailed on the ground that the same is illegal, unlawful and unconstitutional and in contravention of the provisions of Army Act and the rules made thereunder. It is alleged that the order of Discharge was issued without affording opportunity of being heard to the petitioner. It is further contended that Respondent No.3 was required and obliged to conduct an enquiry before issuing the impugned order of Discharge. However, the same has been waived of without any cogent reasons. 2. Respondents have contested the petition on the ground that the petitioner has not availed the efficacious and alternate remedy available under the Armed Forces Tribunal Act. It is pleaded that the petitioner was habitual offender of overstaying leave, absenting himself without leave and an undisciplined soldier. He was awarded five red-ink entries and discharged from service w.e.f. 21.8.2009 by the order of Commandant, 19 Infantry Brigade on the ground of "services no longer required". It is pleaded that the petitioner was habitual offender of overstaying leave, absenting himself without leave and an undisciplined soldier. He was awarded five red-ink entries and discharged from service w.e.f. 21.8.2009 by the order of Commandant, 19 Infantry Brigade on the ground of "services no longer required". It is further pleaded that during the span of six years and 26 days of his service petitioner was awarded : (a) 14 days rigorous imprisonment under Section 631 of Army Act on 28.3.2006; (b) 7 days rigorous imprisonment under Section 39(a)2 of Army Act on 15.4.2006; (c) 3 days rigorous imprisonment under Section 39(b)3 of Army Act on 24.4.2009; (d) 7 days rigorous imprisonment for offence under Section 63 of the Army Act on 20.6.2009; (e) 7 days rigorous imprisonment & 14 days pay fine for offence under Section 56(a)4 on 31.7.2009; 3. It is further pleaded that the petitioner, despite being provided enough opportunities, failed to improve upon his discipline. He was awarded five red-ink entries during his short span of service. That to maintain discipline in the Battalion/Army further retention of the petitioner in service was not considered conducive to good order and military discipline and the petitioner was dealt under provisions of Army Rule 13(3)(III)(v)5 read in conjunction with Integrated Headquarters, Ministry of Defense (Army) letter dated 28.12.1988. He was discharged from service on the ground of "Services no longer required" w.e.f. 21.8.2009 by the order of Commandant, 19 Infantry Brigade, the Competent Authority. It is pleaded that before passing of the impugned Discharge order petitioner was served show cause notice vide letter dated 8.7.2009 which came to be replied by the petitioner vide letter dated 17.7.2009. It is further pleaded that the petitioner was discharged from service on 21.8.2009 on the order of Competent Authority as he was found undesirable and undisciplined soldier having incurred more than four red-ink entries on disciplinary grounds. 4. In the rejoinder petitioner has stated that he was neither been declared nor proved to be "Undesirable" before the impugned order of Discharge came to be passed. It is further stated that the respondents have not adopted and followed the mandate of procedure before recommending Discharge of petitioner. No preliminary inquiry, as envisaged under rules, was conducted before the impugned order was issued. It is further stated that the respondents have not adopted and followed the mandate of procedure before recommending Discharge of petitioner. No preliminary inquiry, as envisaged under rules, was conducted before the impugned order was issued. It is further stated that no impartial inquiry was conducted into the allegations against the petitioner and he was not afforded adequate opportunity of putting up his defence. 5. Heard the learned counsel for the parties and perused the record. 6. The moot question for determination is whether procedure for removal of undesirable and inefficient JCOs, WOS and Ors. laid down in terms of Circular No. A/13210/159/AG/PS-2(c), dated 28.12.1988 of the Adjutant General's Branch, Army Headquarters has been followed in the case of petitioner. The procedure for discharge of an individual who has proved himself undesirable and whose retention in the service is considered unadvisable is laid down in para 4 of the Circular which envisages a show cause notice being given to the individual. Service of notice may be dispensed with if the competent authority is satisfied that it is not expedient or reasonably practicable to serve such a notice. However, such cases are very rare and generally limited to matters involving security of the state. Recording of reasons in such a case is imperative. The procedure to be followed for discharge of an individual contemplates holding of an impartial enquiry, not necessarily a Court Inquiry with adequate opportunity provided to individual to offer explanation, put up his defence and adduce evidence in defence. It is further provided that the allegations against individual have to be substantiated and that the extreme step of discharge of individual shall be warranted on merits of the case. The circular makes it amply clear that the discharge from service consequent to four Red-ink entries is not a mandatory or legal requirement. Commanding Officer is required to consider the nature of offences for which each Red-ink entry has been awarded. He cannot be harsh to the individuals, more particularly when they are about to complete pensionable service. The Commanding Officer should have due regard to the long service, hard stations and difficult living conditions to which the individual has been exposed during his service. Discharge should be ordered only when it is absolutely necessary in the interest of justice. He cannot be harsh to the individuals, more particularly when they are about to complete pensionable service. The Commanding Officer should have due regard to the long service, hard stations and difficult living conditions to which the individual has been exposed during his service. Discharge should be ordered only when it is absolutely necessary in the interest of justice. The circular incorporates the safeguards governing exercise of power of discharge vested in the competent authority and ensures that the discharge is ordered only as a last resort. The order of discharge dehors the nature of offence for which the individual has been convicted, circumstances in which such offence has been committed and the hardship faced, would not be justifiable. A duty is cast upon the competent authority to ensure that no harsh treatment is meted out to the individual and that the order of discharge is passed only when it is absolute necessary in the interest of service. A compassionate and humane view lies at the core of the circular and a blood thirsty approach emanating from mere four Red-ink entries against individual is discouraged. 7. Rule 13(III)(v) of the Army rules empowers the competent authority to direct discharge of individual after giving to the individual whose discharge is contemplated an opportunity to show cause against same provided the circumstances of the case permit such a course to be adopted. The Hon'ble Apex Court had an opportunity to delve on the subject and interpret the aforesaid rule in Veerendra Kumar Dubey v. Chief of Army Staff & Ors. reported in (2016) 2 SCC 627 . It noticed that the government stipulated not only a show cause notice which is an indispensable part of the requirement of the rule but also an impartial enquiry into the allegations against him in which he is entitled to an adequate opportunity of putting up his defence and adducing evidence in support thereof. Mere award of four Red-ink entries to an individual does not make his discharge mandatory. Four Red-ink entries is not a Lakshman Rekha which, if crossed, would by itself render the individual concerned undesirable or unworthy of retention in the force. Award of four Red-ink entries simply pushes the individual concerned into a grey area where he can be considered for discharge. But just because he qualifies for such discharge does not mean that he must necessarily suffer that fate. Award of four Red-ink entries simply pushes the individual concerned into a grey area where he can be considered for discharge. But just because he qualifies for such discharge does not mean that he must necessarily suffer that fate. It further held that it is axiomatic that the Commanding Officer is, even after the award of such entries, required to consider the nature of the offences for which such entries have been awarded and other aspects made relevant in the procedure prescribed. It would follow that before discharging an individual not only should there be a show cause notice but an inquiry into the allegations made against individual concerned in which he ought to be given an opportunity of putting up his defence and that the allegations must stand substantiated for a discharge to follow. The administrative instructions regulate the exercise of power by competent authority qua an individual who qualifies for consideration on any such administratively prescribed norm. The instructions are aimed at ensuring a non-discriminatory, fair and non-arbitrary application of the statutory rule. It further held that the circular dated 28.12.1988 provides safeguards against an unfair and improper use of power vested in the authority. 8. In case Rifleman Tilak Raj v. Union of India & Ors., reported in 2009 (2) JKJ 720 [HC] the Hon'ble High Court of J & K while interpreting Circular dated 28.12.1988 (supra) observed that the procedure clearly provides that before recommending discharge of an individual the authority concerned will ensure that the preliminary inquiry be conducted and adequate opportunity for putting up his defence or explanation and adducing evidence in defence be given to the individual. It further observed that discharge from service consequent to four Red-ink entries is not mandatory. The Commanding Officer must consider the nature of offence for which each Red-ink entry has been awarded and not to be harsh to the individual. 9. In Krishan Dutt v. Union of India & Ors., reported in 2014 (1) JKJ 537 [HC] the Hon'ble High Court observed that Brigade/Sub area Commander in terms of Army Rule 13 (3) item (III)(v) have been given power to discharge an individual who is undesirable for retention in the army because of misconduct proved against him on more than one occasion resulting in Red-ink entries in his service record. It would be profitable to quote the following passage from the judgment : "7. XXXXXXXXXX. It would be profitable to quote the following passage from the judgment : "7. XXXXXXXXXX. Cases may arise, where army personnel, notwithstanding penalty imposed, continues to indulge in misconduct and is visited with penalty again and again. In case he goes on repeating misconduct, the imposition of penalty may not be an answer to his misconduct and in tune with over all discipline of the Army. Such person does not deserve to be part of a disciplined force. Right course in such situation is to get rid-off of the habitually erring personnel and discharge him from Army." 10. It is indisputable that discharge of an army personnel from army service has catastrophic consequences for him and his dependants. Such power has, therefore, to be exercised with circumspection. The most relevant factor would be nature of offence proved against the individual. Conviction for a minor offence may not justify the discharge because of red-ink entries. Length of service is of vital importance. Longer the service and closer to superannuation would render it inadvisable to order discharge of the individual. Period between the last red-ink entry and order of discharge would also be relevant consideration. Only incorrigible characters should be weeded out who persist in misconduct. An individual who improves in his conduct can be spared the discharge on the ground of red-ink entries. 11. Adverting to the facts of the instant case be it seen that the petitioner in the instant case has been awarded five red-ink entries and discharged from service w.e.f. 21.8.2009 by order of the Commander 19 Infantry Brigade under Army Rule 13(3) Item (III)(v) on account of "service no longer required". Petitioner had a short span of service spread over 6 years and 26 days. He was awarded five convictions and sentences under Section 63, 39(a), 39(b), 63 and 56(a) of Army Act respectively with terms of sentence varying between 3 days to 14 days rigorous imprisonment and 7 days to 14 days pay fine. It appears that despite enough opportunities petitioner failed to mend his ways and improve upon his discipline. It emanates from record that the last conviction and sentence was awarded to petitioner on 3.7.2009 and impugned order of discharge effective from 21.8.2009 bears proximity to the same. It appears that despite enough opportunities petitioner failed to mend his ways and improve upon his discipline. It emanates from record that the last conviction and sentence was awarded to petitioner on 3.7.2009 and impugned order of discharge effective from 21.8.2009 bears proximity to the same. In so far as the nature of offences is concerned, petitioner has been found guilty of absenting himself without leave, overstaying leave without sufficient cause and making false accusations against an army personnel besides indulging in an act prejudicial to good orders and military discipline. It emanates from record that before ordering the discharge of petitioner he was served show cause notice by Commander 19 Infantry Brigade vide letter dated 8.7.2009 which was replied to petitioner on 17.7.2009. Petitioner has admitted that he had been convicted and sentenced culminating in recording of four red ink entries in his service record. Record of preliminary inquiry lays bare that the petitioner admitted his misconduct in unambiguous terms and did not raise any defence. The explanation offered by him did not plead any ground as an extenuating circumstance or mitigating the punishment. He admits having served for a very short period and prayed that he be provided opportunity to continue on the roll of Army. Therefore, it cannot lie in the mouth of the petitioner that he has been victimised and the impugned order of discharge has not been the culmination of an inquiry envisaged by the rules and that an adequate opportunity was not provided to him for defending himself. Admittedly petitioner served for a short period. It emanates from his service records that he not only persisted in his acts of misconduct but also committed as many as three acts of misconduct in the year 2009 itself. The impugned order of discharge was passed in consequence of a properly constituted inquiry in close proximity to the last act of misconduct. On going through the record we are satisfied that the petitioner has indulged in witch-hunt and that the impugned order of discharge has justifiably been slapped on him to maintain decorum and discipline of the troops. None of the safeguards provided in the rules have been breached. On merits the impugned order of discharge is warranted. 12. We find no force in this petition and the same is dismissed. File be consigned to record after its due completion. 163. None of the safeguards provided in the rules have been breached. On merits the impugned order of discharge is warranted. 12. We find no force in this petition and the same is dismissed. File be consigned to record after its due completion. 163. Violation of good order and discipline:-Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned. 2. Absents himself without leave. 3. Without sufficient cause overstays leave granted to him. 4. Makes a false accusation against any person subject to this Act, knowing or having reason to believe such accusation to be false. 5. All other classes of discharge.