JUDGMENT By the Court.—Heard Sri S.K. Singh, Advocate for appellant. None appeared for respondent. 2. This intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter referred to as the ‘Rules, 1952’) has arisen from judgment dated 23.10.2009 passed by learned Single Judge dismissing appellant’s Writ Petition No. 60367 of 2005 (No. 63829833 Naik R.K. Mahapatra v. Chief of Army Staff and others). 3. Facts in brief giving rise to the present appeal are stated as under : 4. The appellant was recruited in Indian Territorial Army on 19th December, 1986 and earmarked for Army Supply Core. After completion of training he was posted at different wings/stations and served at different places and different States like Jammu Kashmir, Maharashtra, Rajsthan, West Bengal and Uttar Pradesh. While he was serving at Agra (State of U.P.) as Incharge Kerbside Pump in 1999, he was sanctioned annual leave from 12.9.1999 to 28th December, 1999 and 29th December, 1999 to 1.3.2000. Railway warrant was exchanged to appellant on 28th December, 1999. He moved on 29th December, 1999 by Utkal Express for onward journey from Agra to Behrampur and reached his home station on leave on 31st December, 1999. On 1st January, 2000 two persons visited appellant’s house and informed that as per oral directions of Major J.S. Shekhawat, Officer Commanding 45 Coy ASC Type ‘B’, he was to report back to his unit. Petitioner-appellant when reached his unit, was called by Captain Ravi Shekhar. He was required to produce leave certificate dated 28th December, 1999. Since photo copy of leave certificate was possessed by petitioner-appellant, he produced the same, whereafter he was informed by Non Commissioned Officer (hereinafter referred to as ‘NCO’) Incharge, Kerbside Pump, Agra to pay a sum of Rs. 1,00,000/- to Officer Commanding Unit, if wants to avail leave. Petitioner-appellant expressed his inability stating that it is not possible. A show-cause notice was issued to petitioner-appellant. He replied. Thereafter an order of discharge was issued on 25.5.2000 stating that he has been struck off strength. The discharge from service was made on the ground that petitioner-appellant was awarded four red ink entries during his 13 years of service and that he was absent about 64 days, on without permission for extension of leave, he over stayed. 5. Thereafter an order of discharge was issued on 25.5.2000 stating that he has been struck off strength. The discharge from service was made on the ground that petitioner-appellant was awarded four red ink entries during his 13 years of service and that he was absent about 64 days, on without permission for extension of leave, he over stayed. 5. Aforesaid order of discharge was passed by Captain R.K. Swair, in purported exercise of power under Rules 11 and 18 of Army Rules, 1954 (hereinafter referred to as the ‘Rules, 1954’) read with ASC Records, (SUP) letter dated 2.5.2000 and Army Headquarters letter dated 28th December, 1999. 6. Petitioner-appellant filed a complaint under Section 26 of Army Act, 1950 (hereinafter referred to as the ‘Act, 1950’) before Chief of Army Staff but same has also been rejected, as communicated to petitioner-appellant on 1.3.2001. 7. Petitioner’s writ petition has been dismissed by learned Single Judge observing that petitioner-appellant was admittedly awarded four red ink entries under various sections of Act, 1950, details whereof are as under : (a) Army Act Section 40 (c) on 16th Oct 8914 days RI. By Lt. Col. N.C. Dutta. (b) Army Act Section 39 (d) on Mar 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 02 Apr 96-Severe Reprimand by Co. J.S. Dhillon. (e) Army Act Section 30 (a) on 18 Mar 2000-Severe Reprimand by Major J.S. Shekhawat. 8. There was another punishment of severe reprimand vide order dated 18th March, 2000 awarded by Major J.S. Shekhawat under Section 39(A) of Act, 1950. 9. It was argued on behalf of petitioner-appellant before learned Single Judge that no order of discharge could have been passed under Section 13(iii)(iv) of Rules, 1954 and this amounts to punishment if made without holding any enquiry. 10. Learned Single Judge has observed that under Act, 1950 there are two kind of punishments, which can be awarded to an army personnel, (i) by Court Martial and another i.e. (ii) by administrative action under Act, 1950 read with procedure provided under Rule 30 of Rules, 1954. After quoting army authorities instructions dated 28th December, 1988 in extentio, learned Single Judge has observed that discharge of appellant from service cannot be said to be stigmatic, hence warrants no interference. After quoting army authorities instructions dated 28th December, 1988 in extentio, learned Single Judge has observed that discharge of appellant from service cannot be said to be stigmatic, hence warrants no interference. Learned Single Judge in non suiting appellant has also relied on Supreme Court’s judgment in Union of India and others v. Corporal A.K. Bakshi and another, (1996) 3 SCC 65 , to hold that discharge of habitual offender in accordance with law does not amount to removal by way of punishment. It is a discharge under Rules, 1954. 11. However, we find that a similar issue has been considered recently by a Bench of three Judges of Supreme Court in Veerendra Kumar Dubey v. Chief of Army Staff and others, 2016 (2) SCC 627 in Civil Appeal (D) No. 32135 of 2013, decided on 16th October, 2015. Therein also Veerendra Kumar Dubey was enrolled as an Operator in the Corps of Artillery of Indian Army on 27th September, 1980 and was served with a show notice that he has been awarded four red ink entries for various offences set out in the notice and that he had become a habitual offender and why he should not be discharged from service under Rule 13(iii)(v) read with Army Headquarter letter dated 28th December, 1988. He submitted reply but competent authority passed an order of discharge on 14th December, 1992. He challenged order in Writ Petition No. 429 of 2006, which came to be transferred to Armed Forces Tribunal, Regional Bench, Lucknow (hereinafter referred to as ‘Tribunal’) and renumbered as Transferred Application No. 16 of 2011. The same, however, was dismissed by Tribunal vide judgment and order dated 14th December, 2011. Where-after matter went to Supreme Court. The question came up for consideration before Supreme Court was : “Whether power was exercised in a fair and reasonable manner keeping in view the guidelines which the Government had issued for such exercise.” 12. It was argued in Veerendra Kumar Dubey (Supra) that not only a show-cause notice was contemplated under circular dated 28th December, 1988 but it also contemplates a preliminary enquiry before recommending discharge of person concerned. The person concerned must have an adequate opportunity to offer his explanation and to produce evidence in his defence. The enquiry ought to conclude that allegations stood substantiated warranting termination. The person concerned must have an adequate opportunity to offer his explanation and to produce evidence in his defence. The enquiry ought to conclude that allegations stood substantiated warranting termination. Discharge from service, consequent upon an individual earning four red ink entries is not mandatory. While considering question of retention or discharge, based on four red ink entries, Commanding Officer was duty bound to consider not only nature of offences for which such entries had been awarded but also take into consideration long service and harsh conditions to which individual had been exposed during his tenure. Discharge under guidelines issued by competent authority can be ordered only where it is absolutely necessary to do so. The mere conferment of power is not sufficient but manner of exercise, in which it has been exercised, is real consideration. 13. On behalf of Union of India, an argument was opposed stating that Rule 13 of the Army Rules, 1954 did not provide for any specific procedure to be followed for discharge of undesirable persons or habitual offenders and procedure prescribed under circular relied upon by appellant is only directory and did not create any right in individual concerned to demand an enquiry in matter. The procedure under circular is de hors provisions of Rule 13 of the Army Rules, 1954, hence un-enforceable. Reliance was placed on the decisions in Union of India and others v. Corporal A.K. Bakshi and another, (1996) 3 SCC 65 and subsequent judgments i.e. Union of India v. Rajesh Vyas, (2008) 3 SCC 386 and Union of India and others v. Deepak Kumr Santra, (2009) 7 SCC 370 etc. 14. Supreme Court considered the matter in the light of Rule 13 of Rules, 1954 and then observed in para-8 of the Judgment as under: “8. A plain reading of the above makes it abundantly clear that the rule does not provide for anything beyond an opportunity to the individual concerned to show-cause against his contemplated discharge before the competent authority passes any such order of discharge. That a show-cause notice was issued to the petitioner in the present case before his discharge is not denied. On a strict interpretation of Rule 13(III)(V), therefore, one could perhaps say that the letter of the law has been complied with inasmuch as an opportunity has been afforded to the appellant to show-cause against the contemplated discharge. That a show-cause notice was issued to the petitioner in the present case before his discharge is not denied. On a strict interpretation of Rule 13(III)(V), therefore, one could perhaps say that the letter of the law has been complied with inasmuch as an opportunity has been afforded to the appellant to show-cause against the contemplated discharge. The question, however, is whether that was enough having regard to the procedure which the Government has stipulated for the exercise of the power vested in the competent authority under Rule 13 of the Army Rules (supra). The Government has, as rightly mentioned by learned counsel for the appellant, 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. More importantly, certain inbuilt safeguards against discharge from service based on four red ink entries have also been prescribed. The first and foremost is an unequivocal declaration that mere award of four red ink entries to an individual does not make his discharge mandatory. This implies that four red ink entries is not some kind of laxman 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. It is one thing to qualify for consideration and an entirely different to be found fit for discharge. Four red ink entries in that sense takes the individual closer to discharge but does not push him over. It is axiomatic that the Commanding Officer is, even after the award of such entries, required to consider the nature of the offence for which such entries have been awarded and other aspects made relevant by the Government in the procedure it has prescribed.” 15. Thereafter it refers to procedure for dismissal/discharge of undesirable JCO’s, WO’s and OR, in para-9 of the judgment, and then further said in para-10 as under: “10. Thereafter it refers to procedure for dismissal/discharge of undesirable JCO’s, WO’s and OR, in para-9 of the judgment, and then further said in para-10 as under: “10. A careful reading of the above would show that the competent authority has made it abundantly clear to officers competent to direct discharge that before discharging an individual, not only should there be a show-cause notice but an enquiry into the allegations made against the 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.” 16. Supreme Court rejected arguments advanced on behalf of Government of India and said in para-11 and 12 of the judgment as under: 11. Para 5(f)(2) (supra) underscores the importance of the truism that termination of the individual’s service is an extreme step which ought to be taken only if the facts of the case so demand. What is evident from the procedural mandate given to the authorities is to ensure that discharge is not ordered mechanically and that the process leading to the discharge of an individual is humanized by the requirement of an impartial enquiry into the matter and fair opportunity to the concerned especially when he is about to complete his pensionable service. Equally significant is the fact that the authority competent to discharge is required to take into consideration certain factors made relevant by the circular to prevent injustice, unfair treatment or arbitrary exercise of the powers vested in the Authority competent to discharge. For instance Note 2 to Rule 5 (supra) requires the competent authority to take into consideration the long service rendered by the individual, the hard stations he has been posted to and the difficult living conditions to which the individual has been exposed during his tenure. It is only when the competent authority considers discharge to be absolutely essential after taking into consideration the factors aforementioned that discharge of the individual can be validly ordered. 12. The argument that the procedure prescribed by the competent authority de hors the provisions of Rule 13 and the breach of that procedure should not nullify the order of discharge otherwise validly made has not impressed us. It is true that Rule 13 does not in specific terms envisage an enquiry nor does it provide for consideration of factors to which we have referred above. It is true that Rule 13 does not in specific terms envisage an enquiry nor does it provide for consideration of factors to which we have referred above. But it is equally true that Rule 13 does not in terms make it mandatory for the competent authority to discharge an individual just because he has been awarded four red ink entries. The threshold of four red ink entries as a ground for discharge has no statutory sanction. Its genesis lies in administrative instructions issued on the subject. That being so, administrative instructions could, while prescribing any such threshold as well, regulate the exercise of the power by the competent authority qua an individual who qualifies for consideration on any such administratively prescribed norm. Inasmuch as the competent authority has insisted upon an enquiry to be conducted in which an opportunity is given to the individual concerned before he is discharged from service, the instructions cannot be faulted on the ground that the instructions concede to the individual more than what is provided for by the rule. The instructions are aimed at ensuring a non-discriminatory fair and non-arbitrary application of the statutory rule. It may have been possible to assail the circular instructions if the same had taken away something that was granted to the individual by the rule. That is because administrative instructions cannot make inroads into statutory rights of an individual. But if an administrative authority prescribes a certain procedural safeguard to those affected against arbitrary exercise of powers, such safeguards or procedural equity and fairness will not fall foul of the rule or be dubbed ultra vires of the statute. The procedure prescribed by circular dated 28th December, 1988 far from violating Rule 13 provides safeguards against an unfair and improper use of the power vested in the authority, especially when even independent of the procedure stipulated by the competent authority in the circular aforementioned, the authority exercising the power of discharge is expected to take into consideration all relevant factors. That an individual has put in long years of service giving more often than not the best part of his life to armed forces, that he has been exposed to hard stations and difficult living conditions during his tenure and that he may be completing pensionable service are factors which the authority competent to discharge would have even independent of the procedure been required to take into consideration while exercising the power of discharge. Inasmuch as the procedure stipulated specifically made them relevant for the exercise of the power by the competent authority there was neither any breach nor any encroachment by executive instructions into the territory covered by the statute. The procedure presented simply regulates the exercise of power which would, but for such regulation and safeguards against arbitrariness, be perilously close to being ultra vires in that the authority competent to discharge shall, but for the safeguards, be vested with uncanalised and absolute power of discharge without any guidelines as to the manner in which such power may be exercised. Any such unregulated and uncanalised power would in turn offend Article 14 of the Constitution.” 17. Applying the above dictum, Supreme Court in para-13 of the judgment said: “13. Coming then to the case at hand, we find that no enquiry whatsoever was conducted by the Commanding Officer at any stage against the appellant as required under para 5(a) of the procedure extracted above. More importantly, there is nothing on record to suggest that the authority competent had taken into consideration the long service rendered by the appellant, the difficult living conditions and the hard stations at which he had served. There is nothing on record to suggest that the nature of the misconduct leading to the award of red ink entries was so unacceptable that the competent authority had no option but to direct his discharge to prevent indiscipline in the force. We must, in fairness, mention that Mr. Maninder Singh, ASG, did not dispute the fact that any number of other personnel are still in service no matter they have earned four red ink entries on account of overstaying leave. We must, in fairness, mention that Mr. Maninder Singh, ASG, did not dispute the fact that any number of other personnel are still in service no matter they have earned four red ink entries on account of overstaying leave. If that be so, the only safeguard against arbitrary exercise of power by the authority would be to ensure that there is an enquiry howsoever summary and a finding about the defence set-up by the individual besides consideration of the factors made relevant under the note to para 5(f) of the procedure. It is common ground that a red ink entry may be earned by an individual for overstaying leave for one week or for six months. In either case the entry is a red ink entry and would qualify for consideration in the matter of discharge. If two persons who suffer such entries are treated similarly notwithstanding the gravity of the offence being different, it would be unfair and unjust for unequals cannot be treated as equals. More importantly, a person who has suffered four such entries on a graver misconduct may escape discharge which another individual who has earned such entries for relatively lesser offences may be asked to go home prematurely. The unfairness in any such situation makes it necessary to bring in safeguards to prevent miscarriage of justice. That is precisely what the procedural safeguards purport to do in the present case.” 18. Court also distinguished decisions cited on behalf of Union of India including Union of India and others v. Corporal A.K. Bakshi and another (Supra) and thereafter allowed appeal and set aside order of discharge. 19. In view of above dictum laid down by Supreme Court in Veerendra Kumar Debey (Supra), we find that judgment of learned Single judge cannot be sustained and order of discharge impugned in the writ petition is also liable to be set aside. 20. In the result, this appeal succeeds and is hereby allowed. Judgment dated 23.10.2009 passed by learned Single Judge dismissing writ petition and order dated 22.12.2009 rejecting review application, impugned in this appeal, are set aside. The order of discharge dated 25.5.2000 is also set aside. Appellant shall be treated to be in continuous service with all consequential benefits except back wages from the date of order of discharge till the date of the judgment. The order of discharge dated 25.5.2000 is also set aside. Appellant shall be treated to be in continuous service with all consequential benefits except back wages from the date of order of discharge till the date of the judgment. This order of denial of back wages, we are passing order following aforesaid judgment in Veerendra Kumar Dubey (Supra) wherein Supreme Court also denied back wages.