This is an army case, decided by the Supreme Court of India, but the principle involved is equally applicable in civil cases also.
This is a case where it was found that no enquiry whatsoever was conducted by the Commanding Officer at any stage against the appellant in this case as required under the procedure. More importantly, there was 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.
The material facts were not in dispute. It was not in dispute that the appellant had within a period of 12 years of the service suffered as many as four red ink entries. All these entries were awarded to him on account of overstaying leave for a period ranging between 29 days to 66 days.
There was 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. Also the ASG, did not dispute the fact that many number of other personnel were still in service no matter they have earned four red ink entries on account of overstaying leave. In such cases, 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 procedure.
The SC took notice that it was common ground that a red ink entry might be earned by an individual for overstaying leave for one week or for six months. In either case the entry would a red ink entry and would qualify for consideration in the matter of discharge. If two persons who suffer such entries were treated similarly notwithstanding the gravity of the offence being different, it would be unfair and unjust for unequal could not be treated as equal. More importantly, a person who had 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 was precisely what the procedural safeguards purported to do in this case.
In the result this appeal against a judgment and order dated 14th December 2011 passed by the Armed Forces Tribunal succeeded and was allowed by the Supreme Court andt he order of discharge passed against the appellant was set aside. Since the appellant has already crossed the age of superannuation, it was directed that the appellant should be treated to have been in service till the time he would have completed the qualifying service for grant of pension but without back wages. Benefit of continuity of service for all other purpose should, however, be granted to the appellant including pension. Monetary benefits payable to the appellant shall be released expeditiously but not later than four months from the dateof this order.
(Ref.:Supreme Court Judgement dated October 16, 2015 in Veerendra Kumar Dubey V/s Chief of Army Staff & Ors.)