AMARENDRA KUMAR PANDEYversusUNION OF INDIA & ORS.

                        [2022] 12 S.C.R. 223                              223


                AMARENDRA KUMAR PANDEY                                    A
                                  v.
                    UNION OF INDIA & ORS.
               (Civil Appeal Nos. 11473-11474 of 2018)
                           JULY 14, 2022                                  B
         [SURYA KANT AND J. B. PARDIWALA, JJ.]
       Service Law: Armed forces – Discharge from service –
Appellant was discharged from service on the basis of four Red-Ink
entries received by him during his period of service – Writ petition
                                                                          C
filed by him challenging order of discharge – Single judge relied
upon the judgment in Balwant Singh wherein similar issue was
involved regarding discharge from Assam Rifles on securing four
Red-Ink entries – In that case, it was held that the authority vested
with the power to discharge must examine the response of the
concerned person and weigh the same vis-a-vis the severity of the         D
misconduct which led to incurring of the Red-Ink entries in the service
rolls; and that the order of discharge and the procedure preceding
such discharge being of summary nature, it is necessary that the
order of discharge is a speaking order – Relying on the said
judgment, Single Judge set aside the order of discharge and remitted
                                                                          E
matter to competent authority for fresh decision – However, Division
Bench set aside the order passed by Single Judge on the ground
that neither the Assam Rifles Act, 1941 nor the Assam Rifles Act,
2006 requires the authority to record any reasons or satisfaction in
the order of discharge itself – On appeal, held: Where there are no
reasonable grounds for formation of the authority’s opinion, judicial     F
review in such a case is permissible – There is nothing on record to
indicate that the nature of the misconduct leading to the award of
four Red Ink entries was so unacceptable that the competent
authority had no option but to direct his discharge to prevent
indiscipline in the force – Therefore, to do substantial justice, order
                                                                          G
of discharge is set aside and appellant is treated to have been in
service till the time, he could be said to have completed the
qualifying service for grant of pension – Assam Rifles Act, 1941 –
Assam Rifles Act, 2006 – Assam Rifles Regulation, 2016 – Regns.107
and 108.
                                                                          H
                                 223
224            SUPREME COURT REPORTS                        [2022] 12 S.C.R.


A           Allowing the appeal, the Court
              HELD: 1. Where an Act or the statutory rules framed
      thereunder left an action dependent upon the opinion of the
      authority concerned, by some such expression as ‘is satisfied’ or
      ‘is of the opinion’ or ‘if it has reason to believe’ or ‘if it considered
B     necessary’, the opinion of the authority is conclusive, (a) if the
      procedure prescribed by the Act or rules for formation of the
      opinion was duly followed, (b) if the authority acted bona fide, (c)
      if the authority itself formed the opinion and did not borrow the
      opinion of somebody else and (d) if the authority did not proceed
      on a fundamental misconception of the law and the matter in regard
C     to which the opinion had to be formed. The action based on the
      subjective opinion or satisfaction, can judicially be reviewed first
      to find out the existence of the facts or circumstances on the
      basis of which the authority is alleged to have formed the opinion.
      It is true that ordinarily the court should not inquire into the
D     correctness or otherwise of the facts found except in a case where
      it is alleged that the facts which have been found existing were
      not supported by any evidence at all or that the finding in regard
      to circumstances or material is so perverse that no reasonable
      man would say that the facts and circumstances exist. The courts
      will not readily defer to the conclusiveness of the authority’s
E     opinion as to the existence of matter of law or fact upon which the
      validity of the exercise of the power is predicated. The doctrine
      of reasonableness thus may be invoked. Where there are no
      reasonable grounds for the formation of the authority’s opinion,
      judicial review in such a case is permissible. [Para 28-30][239-E-
F     H; 240-A-C]
            2. When this Court say that where the circumstances or
      material or state of affairs does not at all exist to form an opinion
      and the action based on such opinion can be quashed by the courts,
      this Court means that in effect there is no evidence whatsoever
G     to form or support the opinion. The distinction between
      insufficiency or inadequacy of evidence and no evidence must of
      course be borne in mind. A finding based on no evidence as
      opposed to a finding which is merely against the weight of the
      evidence is an abuse of the power which courts naturally are loath
      to tolerate. Whether or not there is evidence to support a
H
AMARENDRA KUMAR PANDEY v. UNION OF INDIA & ORS.                        225


particular decision has always been considered as a question of        A
law. Secondly, the court can inquire whether the facts and
circumstances so found to exist have a reasonable nexus with
the purpose for which the power is to be exercised. In other
words, if an inference from facts does not logically accord with
and flow from them, the Courts can interfere treating them as an
                                                                       B
error of law. Thus, this Court can see whether on the basis of the
facts and circumstances found, any reasonable man can say that
an opinion as is formed can be formed by a reasonable man. That
would be a question of law to be determined by the Court. Thirdly,
this Court can interfere if the constitutional or statutory term
essential for the exercise of the power has either been misapplied     C
or misinterpreted. The Courts have always equated the
jurisdictional review with the review for error of law and have
shown their readiness to quash an order if the meaning of the
constitutional or statutory term has been misconstrued or
misapplied. Fourthly, it is permissible to interfere in a case where
                                                                       D
the power is exercised for improper purpose. If a power granted
for one purpose is exercised for a different purpose, then it will
be deemed that the power has not been validly exercised. If the
power in this case is found to have not been exercised genuinely
for the purpose of taking immediate action but has been used
only to avoid embarrassment or wreck personal vengeance, then          E
the power will be deemed to have been exercised improperly.
Fifthly, the grounds which are relevant for the purpose for which
the power can be exercised have not been considered or grounds
which are not relevant and yet are considered and an order is
based on such grounds, then the order can be attacked as invalid
                                                                       F
and illegal. [Para 31, 34-37][240-D-E, H; 241-A-B, D-G]
       3. Having regard to the nature of the misconduct alleged
against the appellant in the ends of justice, the order of discharge
is set aside and the appellant is treated to have been in service
till the time, he could be said to have completed the qualifying
service for grant of pension. Such an order is passed with a view      G
to do substantial justice as there is nothing on record to indicate
that the nature of the misconduct leading to the award of four
Red Ink entries was so unacceptable that the competent authority
had no option but to direct his discharge to prevent indiscipline
in the force. [Para 39][244-F]                                         H
226          SUPREME COURT REPORTS                      [2022] 12 S.C.R.


A          Ram Manohar v. State of Bihar AIR 1966 SC 740 :
           [1966] 1 SCR 709; Dwarka Das v. State of J. and K.
           AIR 1957 SC 164; Motilall v. State of Bihar AIR 1968
           SC 1509 : [1968] 3 SCR 587; Virendra Kumar Dubey
           v. Chief of Army Staff & Ors. (2016) 2 SCC 627 : [2015]
           10 SCR 1013; Vijay Shankar Mishra v. Union of India
B
           and Ors. (2017) 1 SCC 795 : [2016] 12 SCR 200;
           Rasbihari v. State of Orissa AIR 1969 SC 1081 : [1969]
           3 SCR 374; Rohtas Industries Ltd. v. S.D. Agarwal and
           Another AIR 1969 SC 707 : [1969] 3 SCR 108; Barium
           Chemicals Ltd. and Another v. Company Law Board and
C          Others AIR 1967 SC 295 : [1966] Suppl. SCR 311 –
           relied on.
           Union of India v. Balwant Singh (2015) 14 SCC 389 –
           referred to.
           Satgur Singh v. UOI & Ors. (2019) 9 SCC 205 : [2019]
D          11 SCR 1023 - held inapplicable.
           Director of Public Prosecutions v. Head (1959) AC 83;
           Reg. v. Governor of Brixton Prison, Armah, Ex Parte
           (1966) 3 WLR 828; Bean v. Doncaster Amalgamated
           Collieries (1944) 2 All ER 279; Farmer v. Cotton’s
E          Trustees, 1915 AC 922; Iveagh (Earl of) v. Minister of
           Housing and Local Govt. (1962) 2 QB 147; Iveagh
           (Earl of) v. Minister of Housing and Local Govt. (1964)
           1 AB 395 - referred to.
           Muthu Gounder v. Government of Madras (1969) 82
F          Mad LW 1; Natesa Asari v. State of Madras AIR 1954
           Mad 481 – referred to.
                           Case Law Reference
      [2015] 10 SCR 1013            relied on                Para 13
G     [ 2016] 12 SCR 200            relied on                Para 13
      (2015) 14 SCC 389             referred to              Para 18
      [2019] 11 SCR 1023            held inapplicable        Para 19
      [1969] 3 SCR 374              relied on                Para 32
H
AMARENDRA KUMAR PANDEY v. UNION OF INDIA & ORS.                                227


[1969] 3 SCR 108                   relied on                  Para 33          A
[1966] Suppl. SCR 311              relied on                  Para 33
[1966] 1 SCR 709                   relied on                  Para 37
[1968] 3 SCR 587                   relied on                  Para 37
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 11473-                   B
11474 of 2018.
       From the Judgment and Order dated 21.12.2017 and 22.08.2017
of the High Court of Gauhati at Guwahati in W.A. No. 354 of 2017 and
W.A. No. 399 of 2016.
                                                                               C
      Mehul M. Gupta, R. P. Gupta, Advs. for the Appellant.
     Ms. Manjula Gupta, Sharath Narayan Nambiar, V. Balaji, Shailesh
Madiyal, Arvind Kumar Sharma, B. V. Balaram Das, Advs. for the
Respondents.
      The Judgment of the Court was delivered by                               D
      J. B. PARDIWALA, J.
       1. These appeals, by special leave, are directed against the judgment
and order passed by a Division Bench of the Guwahati High Court dated
21.12.2017 in the Writ Appeal No. 354 of 2017 by which the High
Court allowed the appeal filed by the Union of India & Ors. thereby            E
setting aside the judgment and order passed by a learned Single Judge
of the High Court dated 19.01.2015 in the Writ Petition (C) 2783 of
2004 filed by the appellant herein.
      2. The facts giving rise to this appeal may be summarized as under:
                                                                               F
      (i) The appellant herein (original writ petitioner) had joined the
Assam Rifles as a Rifleman in the year 1993. While he was in service,
he came to be discharged vide order dated 31.01.2004 passed by Lt.
Col Offg Comdt.
      (ii) The order of discharge referred to above reads thus:
                                                                               G
     OFFICE OF THE COMMANDANT 24 ASSAM RIFLES,
                     C/O 99 APO
                                ORDER
      2401637/AKP/2004                          DATED 31.01.2004
                                                                               H
228            SUPREME COURT REPORTS                         [2022] 12 S.C.R.


A           1. WHEREAS it is considered that the conduct of No 2401637W
            Rfn/GD Amrandra Kumar Pandey of which has led him getting
            four Red Ink entries is such as to render his further retention in
            the public Service undesirable being a incorrigible offender and
            having shown no improvement during his service.
B           2. AND WHEREAS No. 2401637W Rfn/GD Amrandra Kumar
            Pandey was afforded opportunity to show cause against the
            proposed action vide 24 AR letter No. 11014/A36-2003/635 dt. 02
            Sep., 2003.
            3. AND WHEREAS No 2401637W Rfn/GD Amrandra Kumar
C           Pandey submitted his replies vide letter No. Nil dated 01. Oct.2003.
            the same was considered in terms of ROI 4/99 and was found
            unsatisfactory by the competent authority.
            4. NOW WHEREFORE, In exercise of the powers conferred on
            me under AR Act 1941 Sec 4(a) read with Para 24, Chapter VIII
D           of AR Manual and Para 6 of ROI 4/99, the undersigned hereby
            discharge the said No.2401637W Rfn/GD Amrandra Kumar
            Pandey from the Assam Rifles being incorrigible offender soldier
            with effect from 31 Jan., 2004 (Afternoon) No.2401637W Rfn/GD
            Amrandra Kumar Pandey is entitled to get pension and gratuity as
            admissible under rule.
E
                                                                           s/d
                                                              (Santosh Joseph)
                                                           Lt. Col Offg Comdt
             3. Thus, the aforesaid order of discharge was passed on the basis
F     of the four Red-Ink entries received by him during his period of service.
      The four Red-Ink entries were on the following grounds:
            Entry 1 (1996)                   For staying back to take care of
                                             his ailing mother – ‘without
                                             sufficient cause over staying
                                             leave granted’. Sentenced to 14
G
                                             days of rigorous imprisonment
                                             with deduction in salary.
            Entry 2 (1998)                   For being on the way out to make
                                             a phone call, but stopped before
                                             he could leave the compound –
H
AMARENDRA KUMAR PANDEY v. UNION OF INDIA & ORS.                              229
             [J. B. PARDIWALA, J.]

                                       “visited out of bound areas as        A
                                       specified in unit BRO Part I Ser
                                       No 202 dated 30 Aug 96
                                       without permission from his
                                       superior officers”. Sentenced to
                                       28 days of rigorous custody and
                                                                             B
                                       14 days of Military Custody.
      Entry 3 (1999)                   For losing his luggage while
                                       coming back from home – “lost
                                       his identity card bearing
                                       machine No.         078550 by
                                       neglect the property of the           C
                                       Government issued to him for
                                       his use”. Sentenced to 28 days
                                       of rigorous imprisonment and 14
                                       days of detention in AR custody.
      Entry 4 (2004)                   For playing cards all alone by        D
                                       himself – ‘to obey unit standing
                                       orders and was found Gambling
                                       in unit line’. Sentenced to 28
                                       days of rigorous imprisonment and
                                       14 days of fine.                      E
       4. The appellant herein challenged the order of discharge before
the Guwahati High Court by filing the Writ Petition (C) No. 2738 of
2002. It appears from the materials on record that a learned Single
Judge of the Guwahati High Court decided the Writ Petition filed by the
appellant herein along with two other identical petitions of two similarly   F
situated riflemen and by a common judgment and order dated 19.01.2015
allowed the same. The impugned order of discharge came to be set
aside. The learned Single Judge remitted the matter to the authorities
concerned for a fresh decision in the light of a Division Bench decision
of the Guwahati High Court.
                                                                             G
       5. The learned Single Judge while allowing the Writ Petition filed
by the appellant herein held as under:
      “The issue regarding discharge from Assam Rifles on securing
      four Red Ink entries was gone into by a Division Bench of
      this Court in Balwant Singh Vs. Union of India & Ors.,
                                                                             H
230     SUPREME COURT REPORTS                       [2022] 12 S.C.R.


A     reported in 2011 (5) GLT 640. That was a case where a
      Rifleman was discharged from the Assam Rifles on getting four
      Red Ink entries. Out of the four Red Ink entries, three related
      to intoxication and one related to overstay of leave period.
      The Division Bench examined the provisions of Clause-5 of
      the Record Branch Instruction (ROI) No.1/2004. Clause-5 of
B
      ROI provides that under Chapter-VIII, Rule 24 of the Assam
      Rifles Manual power is conferred on the Commandant of an
      Assam Rifles battalion to discharge any member of the Assam
      Rifles below the rank of Naib Subedar in case he receives
      four or more Red Ink entries. The Division Bench held that
C     the use of the expression “four or more Red Ink entries” and
      also the use of the word “may” in Clause-5 indicates that
      discretion is vested in the disciplinary authority to decide as
      to whether the person who is found to have received the Red
      Ink entries ought to be discharged from service or not. It was
      held that merely because a man receives four Red Ink entries,
D
      discharge is not automatic. Discretion is given to the
      Commanding Officer to consider discharge. 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.
E     It is a settled position in law that when a discretion is vested
      in an authority to exercise a particular power, the same is
      required to be exercised with due diligence, and in reasonable
      and rational manner. Since order of discharge and the
      procedure preceding such discharge is of a summary nature,
F     it is necessary that the order of discharge is a speaking order
      and must indicate how and in what manner the authority
      exercised the discretionary power. The Hon’ble Supreme Court
      in a catena of decisions has reiterated time and again the
      necessity and importance of giving reasons by the authority
      in support of its decision. It has been held that the face of an
G     order passed by a quasi-judicial authority or even by an
      administrative authority affecting the rights of parties must
      speak. The affected party must know how his case or defence
      was considered before passing the prejudicial order. Coming
      back to the three impugned orders, it is evident that none of
H     the orders disclose how the responses of the petitioners were
AMARENDRA KUMAR PANDEY v. UNION OF INDIA & ORS.                                231
             [J. B. PARDIWALA, J.]

      considered and why discharge was necessary. As held by                   A
      the Division Bench just because the petitioners incurred four
      Red Ink entries, it does not ipso facto mean that they are to be
      discharged from the Assam Rifles. As pointed out by the
      Division Bench, the authority vested with the power to
      discharge must examine the response of the concerned person
                                                                               B
      and weigh the same vis-à-vis the severity of the misconduct
      which led to incurring of the Red Ink entries in the service
      rolls. Such examination is not discernible from the impugned
      orders.
      Having regard to the above, this Court is of the view that the
      impugned orders of discharge cannot be sustained.                        C
      Accordingly, the orders of discharge of the petitioners are set
      aside and quashed. Matter is remanded back to the respondents
      for a fresh decision in the light of the Division Bench judgment
      in Balwant Singh (Supra) and the discussions made above.
      Respondents may consider imposition of any lesser punishment             D
      on the petitioners balancing the interest of the organization
      and also that of the petitioners subject to assessment of
      physical fitness of the petitioners.
      Writ petitions are allowed to the above extent. No costs.”
       6. The Union of India being dissatisfied with the judgment and          E
order passed by the learned Single Judge referred to above challenged
the same by filing the writ appeal before the Division Bench of the
Guwahati High Court. The Division Bench allowed the writ appeal filed
by the Union of India and thereby set aside the order passed by the
learned Single Judge referred to above. The Appeal Court while allowing        F
the writ appeal filed by the Union of India essentially took the view that
neither the Assam Rifles Act, 1941 under which the decision to discharge
was taken nor the Assam Rifles Act, 2006 requires the authority to record
any reasons or the satisfaction in the order of discharge itself. The Appeal
Court took the view having regard to the provision of Clause 5 of the
ROI 1/2004 that the Commandant has the discretion to discharge a               G
person who has four or more Red Ink entries. All that is required is to
serve a notice on the individual affording an opportunity to explain. The
provision of Clause 5 does not require the Commandant to record the
reasons of satisfaction in the order of discharge.
                                                                               H
232              SUPREME COURT REPORTS                        [2022] 12 S.C.R.


A           7. Being dissatisfied with the impugned order passed by the Appeal
      Court of the High Court, the appellant herein (original writ petitioner) is
      here before this Court with the present appeal.
               SUBMISSIONS :
            8. The learned Counsel appearing for the appellant vehemently
B     submitted that the High Court committed a serious error in passing the
      impugned order. He would submit that there was no good reason for the
      Appeal Court to disturb the order passed by the learned Single Judge of
      the High Court.
               9. The learned Counsel has broadly classified his submissions as
C     under:
               (a) Discharge is not mandatory even after four Red entries.
            (b) There is a difference between cases of major misconducts
      and minor misconducts.
D              (c) In the order of discharge no reasons have been assigned.
            (d) The plea of malafide raised against the authority has not been
      considered.
             10. The learned Counsel appearing for the appellant invited the
      attention of this Court to the Record Office Instruction No. 4 of 1999
E     which provides for the procedure for discharge/retirement from service
      of Assam Rifles personnel. The same reads thus:
               RECORD OFFICE INSTRUCTION NO.4/99
               PROCEDURE FOR DISCHARGE/RETIREMENT FROM
F              SERVICE ASSAM RIFLES PERSONNEL
               1. A comprehensive instruction, containing all existing orders
               on the subject has been compiled in the form of this ROI for
               guidance and strict compliance by all concerned.
               ***** ***** *****
G
               ***** ***** *****
               ***** ***** *****
               6. Discharge/Disposal of Undesirable/Inefficient Personnel
               Chapter VIII, Rules 24 of the Assam Rifles Manual invests
H
AMARENDRA KUMAR PANDEY v. UNION OF INDIA & ORS.                              233
             [J. B. PARDIWALA, J.]

      powers to the Commandant of Assam Rifles Battalions to                 A
      ‘dismiss’ or ‘remove’ any member of the Assam Rifles below
      the rank of Nb/Sub. This power may be invoked by a
      Commandant in case where a person has got four red ink
      entries. As far as practicable, however, discharge under this
      provision should be avoided as personnel sent on discharge
                                                                             B
      on this account are not eligible for pension. In case it is
      necessary to send an individual on discharge under this
      provision, a notice will be served on the individual to give
      opportunity to explain his case. Complete case will be
      forwarded to Range HQ alongwith the notice and reply
      received from the individual, for the approval of the DIGAR.           C
      The documents will be sent to this Directorate Records (Doc)/
      UPAO (And the individual to Depot Coy (No.1 Constr Coy))……
      11. The learned Counsel also invited the attention of this Court to
the Assam Rifles Manual. The relevant clause of the Assam Rifles
Manual reads thus:                                                           D
      ASSAM RIFLES MANUAL
      “24. A Commandant may dismiss any member of the Assam
      Rifles below the rank of Jemadar.
      The word “dismissal” should be restricted to the case of an            E
      officer removed with disgrace. In other cases
      “removal” is the proper word to be used. A “dimissed” officer
      may not be re-employed.
      Dismissal is the last resource, and should not ordinarily be
      ordered until all other means of punishment have been tried            F
      and failed. For incorrigible offenders; confirmed bad
      characters, confirmed drunkards, for offences involving moral
      disgrace, fraud and dishonesty, continued and willful
      disobedience or neglect, it is generally the only appropriate
      punishment”
                                                                             G
       12. The principal argument of the learned Counsel appearing for
the appellant is that the discharge from service is not automatic or
mandatory after four Red entries. Four Red entries are only a minimum
requirement and cannot be the sole ground to order discharge. It is argued
that the Rule itself states that the power “may be invoked” and that “as
                                                                             H
234             SUPREME COURT REPORTS                          [2022] 12 S.C.R.


A     far as practicable, however, discharge under this provision should be
      avoided as the Personnel sent on discharge on this account are not
      eligible for pension”. The submission is that the provision can be pressed
      into service only when “continued and willful disobedience or neglect”
      comes on record.
B           13. The learned Counsel with a view to fortify his aforesaid
      submission placed strong reliance on the decisions of this Court in the
      case of Virendra Kumar Dubey v. Chief of Army Staff & Ors., (2016)
      2 SCC 627, and Vijay Shankar Mishra v. Union of India and Ors.,
      (2017) 1 SCC 795, respectively.
C            14. In such circumstances referred to above, the learned Counsel
      prays that there being merit in his appeal the same be allowed and the
      impugned judgment and order passed by the High Court may be set
      aside including the order of discharge and the appellant may be ordered
      to be reinstated in service with all Full Back Wages and all other statutory
      benefits.
D
             15. On the other hand, this appeal has been vehemently opposed
      by the learned Counsel appearing for the respondents. The learned
      Counsel would submit that no error not to speak of any error of law
      could be said to have been committed by the High Court in passing the
      impugned judgment and order. She would submit that the High Court
E     was absolutely justified in taking the view that it was not necessary for
      the authority concerned to assign any reasons for the purpose of passing
      an order of discharge. The four Red Ink entries were sufficient for the
      authority to arrive at the subjective satisfaction that the appellant herein
      was not fit to be retained in service and more particularly being a Rifleman
F     with the Assam Rifle.
            16. It is argued that before passing the order of discharge, notice
      to show cause was issued to the appellant herein and an opportunity of
      hearing was given to him.
             17. The learned Counsel submitted that all that the appellant did
G     was to tender an apology for his mistakes. No other ground was raised
      in his reply to the show cause notice except that he hails from a poor
      family and his parents and children are dependent on him. Having regard
      to the reply the authority concerned rightly formed an opinion that the
      appellant was a habitual offender. She invited the attention of this Court
      to Para 6 of the impugned judgment of the High Court wherein the High
H
AMARENDRA KUMAR PANDEY v. UNION OF INDIA & ORS.                              235
             [J. B. PARDIWALA, J.]

Court has noted that the appellant failed to offer any explanation in the    A
reply to the show cause notice except the family circumstances.
      18. The learned Counsel further submitted that the decision of this
Court in the case of Union of India v. Balwant Singh, (2015) 14 SCC
389, has not been referred to in the case of Virendra Kumar Dubey
(supra).                                                                     B
       19. In the last the learned Counsel placed reliance on the decision
of this Court in the case of Satgur Singh v. UOI & Ors. reported in
(2019)9 SCC 205, more particularly, the observations made in Para 6
and 7 respectively. Para 6 & 7 respectively are as under:
      “6. We do not find any merit in the present appeal. Para 5(a)          C
      of the circular dated 28-12-1988 deals with an enquiry which
      is not a court of inquiry into the allegations against an army
      personnel. Such enquiry is not like departmental enquiry but
      semblance of the fair decision-making process keeping in view
      the reply filed. The court of inquiry stands specifically              D
      excluded. What kind of enquiry is required to be conducted
      would depend upon facts of each case. The enquiry is not a
      regular enquiry as Para 5(a) of the Army Instructions suggests
      that it is a preliminary enquiry. The test of preliminary enquiry
      will be satisfied if an explanation of a personnel is submitted
      and upon consideration, and order is passed thereon. In the            E
      present case, the appellant has not offered any explanation
      in the reply filed except giving vague family circumstance.
      Thus, he has been given adequate opportunity to put his
      defence. Therefore, the parameters laid down in Para 5(a) of
      the Army Instructions dated 28-12-1988 stand satisfied….               F
      7. In reply to the show-cause notice, the appellant has not
      given any explanation of his absence from duty on seven
      occasions. He has been punished on each occasion for
      rigorous imprisonment ranging from 2 days to 28 days. A
      member of the Armed Forces cannot take his duty lightly and            G
      abstain from duty at his will. Since the absence of duty was
      on several different occasions for which he was imposed
      punishment of imprisonment, therefore, the order of discharge
      cannot be said to be unjustified. The Commanding Officer
      has recorded that the appellant is a habitual offender. Such
                                                                             H
236             SUPREME COURT REPORTS                          [2022] 12 S.C.R.


A           fact is supported by absence of the appellant from duty on
            seven occasions.”
            20. In such circumstances referred to above the learned Counsel
      appearing for the respondents pray that there being no merit in this appeal,
      the same may be dismissed.
B           ANALYSIS
             21. Having heard the learned counsel appearing for the parties
      and having gone through the materials on record, the only question that
      falls for our consideration is whether the Division Bench of the High
      Court committed any error in passing the impugned order?
C
             22. We must first look into the decision of this Court rendered in
      the case of Virendra Kumar Dubey (supra). In the said case, the appellant
      Virendra Kumar Dubey was enrolled as an operator in the corps of Artillery
      of Indian Army on 27.09.1980. Having served in that capacity for nearly
      twelve years, he received a show cause notice pointing out that he had
D     been awarded four Red Ink entries for various offences set out in the
      notice and that Virendra Kumar Dubey had become a habitual offender,
      thereby setting a bad example of indiscipline in the army. Virendra Kumar
      Dubey ultimately came to be discharged from service by an order dated
      14.12.1992. He preferred a departmental appeal, which failed. He,
E     thereafter, went to the High Court of Madhya Pradesh at Jabalpur,
      however, the High Court declined to entertain the petition on the ground
      of lack of territorial jurisdiction. He, thereafter, preferred an appeal
      before the Appeal Court and the writ appeal was ultimately ordered to
      be transferred to the Armed Forces Tribunal Regional Bench, Lucknow.
      The Tribunal ultimately dismissed the transferred petition which gave
F     rise to the appeal before this Court.
            23. This Court in Virendra Kumar Dubey (supra) held as under:
            “19. 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
G
            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
H           such entries on a graver misconduct may escape discharge
AMARENDRA KUMAR PANDEY v. UNION OF INDIA & ORS.                                  237
             [J. B. PARDIWALA, J.]

         which another individual who has earned such entries for                A
         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.”
                                                                                 B
         Taking the aforesaid view, this Court ultimately passed the following
order:
         “21. In the result this appeal succeeds and is hereby allowed.
         The order of discharge passed against the appellant is hereby
         set aside. Since the appellant has already crossed the age of           C
         superannuation, interest of justice will be sufficiently served
         if we direct that the appellant shall be treated to have been in
         service till the time he would have completed the qualifying
         service for grant of pension. No back wages shall, however,
         be admissible. Benefit of continuity of service for all other
         purpose shall be granted to the appellant including pension.            D
         Monetary benefits payable to the appellant shall be released
         expeditiously but not later than four months from the date of
         this order. No Costs.”
       24. In Vijay Shankar Mishra (supra), the appellant therein was
enrolled in the Army Medical Corps on 23.06.1984. On 03.10.1997, a               E
notice to show cause was issued to him to explain why he should not
be discharged from service under Rule 13(3) Table (III)(v) of the Army
Rules, 1954 on the ground that his conduct and service had not been
found satisfactory. He ultimately came to be discharged from service.
By that time, he had rendered service of thirteen years and eight months.        F
The minimum qualifying service for earning pension under Rule 132 of
the Pension Regulations for the Army ,1961 is fifteen years. He filed a
writ petition before the Madhya Pradesh High Court which was dismissed
on 21.11.2006. In appeal, a Division Bench directed reconsideration of
the case of the appellant. Pursuant to the order of the High Court, an
order was issued rejecting his claim for pension on the ground that he           G
had not put in fifteen years of service and had been discharged for the
reason that he was unlikely to become an efficient soldier. He again
filed a writ petition before the Madhya Pradesh High Court which was
transferred to the Armed Forces Tribunal. The Tribunal dismissed the
matter. Thereafter, Mishra came before this Court. The very same                 H
238            SUPREME COURT REPORTS                        [2022] 12 S.C.R.


A     argument was canvassed before this Court on behalf of Vijay Shankar
      Mishra that the mere fact that he had been punished while in service on
      nine occasions inclusive of six Red entries was no ground to exercise
      the power under the relevant rule for the purpose of discharge. The
      Court relied upon Vijay Shankar Mishra (supra) and ultimately held as
      under:
B
            “9. In the present case, it is evident that there was no
            application of mind by the authorities to the circumstances
            which have to be taken into consideration while exercising
            the power under Rule 13. The mere fact that the appellant
            had crossed the threshold of four red entries could not be a
C           ground to discharge him without considering other relevant
            circumstances including: (i) the nature of the violation which
            led to the award of the red ink entries; (ii) whether the appellant
            had been exposed to duty in hard stations and to difficult
            living conditions; (iii) long years of service, just short of
D           completing the qualifying period for pension. Even after the
            Madhya Pradesh High Court specifically directed
            consideration of his case bearing in mind the provisions of
            the circular, the relevant factors were not borne in mind. The
            order that was passed on 26-2-2007 failed to consider relevant
            and germane circumstances and does not indicate a due
E           application of mind to the requirements of the letter of Army
            Headquarters dated 28-12-1988 and the Circular dated
            10-01-1989.
            10. For these reasons, we are of the view that the Armed Forces
            Tribunal was in error in rejecting the application. The orders
F           of the Tribunal dated 23-9- 2010 Vijay Shankar Mishra V.
            Union of India, 2010 SCC OnLine AFT 1127 and 15-9-2011
            are set aside. Since the appellant would have attained the age
            of superannuation, the ends of justice would be met if he is
            treated to have been in service till the time he would have
G           completed the qualifying service for grant of pension. No back
            wages shall however be admissible. The benefit of continuity
            of service for all other purposes shall be granted to the
            appellant including pension. The monetary benefits payable
            to the appellant shall be released within a period of four
            months from the date of this order.”
H
AMARENDRA KUMAR PANDEY v. UNION OF INDIA & ORS.                                 239
             [J. B. PARDIWALA, J.]

       25. In both the aforesaid decisions, this Court took into                A
consideration the fact that there was no application of mind by the authority
to the relevant aspects which were taken into consideration while
exercising the power under Rule 13 of the Rules. In both the aforesaid
cases, this Court took the view that the mere fact that the Personnel had
crossed the threshold of few Red Ink entries could not have been made
                                                                                B
a ground to discharge them without considering other relevant
circumstances, more particularly, the nature of the violation which led to
the award of the Red Ink entries. The crux of the ratio of the decision
of this Court in the case on Veerendra Kumar Dubey (supra) is that
the only safeguard against arbitrary exercise of power by the authority
would be to ensure that there is an enquiry, howsoever, summary and a           C
finding about the defence set up by the individual besides consideration
of the factors made relevant under the procedure.
       26. The reliance placed by the learned Counsel appearing for the
respondents on the decision of this Court in the case Satgur Singh (supra)
is of no avail. It was a case in which the appellant failed to furnish any      D
explanation of his absence from duty on seven occasions. On facts, this
Court took the view that as the absence from duty was on several
different occasions for which he was imposed punishment of
imprisonment, the order of discharge could not be said to unjustified.
      27. We may elaborate the aforesaid a little further.                      E
       28. Where an Act or the statutory rules framed thereunder left an
action dependent upon the opinion of the authority concerned, by some
such expression as ‘is satisfied’ or ‘is of the opinion’ or ‘if it has reason
to believe’ or ‘if it considered necessary’, the opinion of the authority is
conclusive, (a) if the procedure prescribed by the Act or rules for             F
formation of the opinion was duly followed, (b) if the authority acted
bona fide, (c) if the authority itself formed the opinion and did not borrow
the opinion of somebody else and (d) if the authority did not proceed on
a fundamental misconception of the law and the matter in regard to
which the opinion had to be formed.
                                                                                G
       29. The action based on the subjective opinion or satisfaction, in
our opinion, can judicially be reviewed first to find out the existence of
the facts or circumstances on the basis of which the authority is alleged
to have formed the opinion. It is true that ordinarily the court should not
inquire into the correctness or otherwise of the facts found except in a
                                                                                H
240             SUPREME COURT REPORTS                          [2022] 12 S.C.R.


A     case where it is alleged that the facts which have been found existing
      were not supported by any evidence at all or that the finding in regard to
      circumstances or material is so perverse that no reasonable man would
      say that the facts and circumstances exist. The courts will not readily
      defer to the conclusiveness of the authority’s opinion as to the existence
      of matter of law or fact upon which the validity of the exercise of the
B
      power is predicated.
            30. The doctrine of reasonableness thus may be invoked. Where
      there are no reasonable grounds for the formation of the authority’s
      opinion, judicial review in such a case is permissible. [See Director of
      Public Prosecutions v. Head, (1959) AC 83 (Lord Denning).
C
             31. When we say that where the circumstances or material or
      state of affairs does not at all exist to form an opinion and the action
      based on such opinion can be quashed by the courts, we mean that in
      effect there is no evidence whatsoever to form or support the opinion.
      The distinction between insufficiency or inadequacy of evidence and
D     no evidence must of course be borne in mind. A finding based on no
      evidence as opposed to a finding which is merely against the weight of
      the evidence is an abuse of the power which courts naturally are loath to
      tolerate. Whether or not there is evidence to support a particular decision
      has always been considered as a question of law. [See Reg. v. Governor
E     of Brixton Prison, Armah, Ex Parte, (1966) 3 WLR 828 at p. 841].
            32. It is in such a case that it is said that the authority would be
      deemed to have not applied its mind or it did not honestly form its opinion.
      The same conclusion is drawn when opinion is based on irrelevant matter.
      [See Rasbihari v. State of Orissa, AIR 1969 SC 1081].
F            33. In the case of Rohtas Industries Ltd. v. S.D. Agarwal and
      another, AIR 1969 SC 707, it was held that the existence of circumstances
      is a condition precedent to form an opinion by the Government. The
      same view was earlier expressed in the case of Barium Chemicals
      Ltd. and another v. Company Law Board and others, AIR 1967 SC
G     295.
            34. Secondly, the court can inquire whether the facts and
      circumstances so found to exist have a reasonable nexus with the purpose
      for which the power is to be exercised. In other words, if an inference
      from facts does not logically accord with and flow from them, the Courts
      can interfere treating them as an error of law. [See Bean v. Doncaster
H
AMARENDRA KUMAR PANDEY v. UNION OF INDIA & ORS.                                  241
             [J. B. PARDIWALA, J.]

Amalgamated Collieries, (1944) 2 All ER 279 at p. 284]. Thus, this               A
Court can see whether on the basis of the facts and circumstances found,
any reasonable man can say that an opinion as is formed can be formed
by a reasonable man. That would be a question of law to be determined
by the Court. [See Farmer v. Cotton’s Trustees, 1915 AC 922]. Their
Lordships observed:
                                                                                 B
       “……….. in my humble judgment where all the material facts
       are fully found, and the only question is whether the facts are
       such as to bring the case within the provisions properly
       construed of some statutory enactment, the question is one of
       law only.”
                                                                                 C
       [See also Muthu Gounder v. Government of Madras, (1969)
       82 Mad LW 1].
      35. Thirdly, this Court can interfere if the constitutional or statutory
term essential for the exercise of the power has either been misapplied
or misinterpreted. The Courts have always equated the jurisdictional             D
review with the review for error of law and have shown their readiness
to quash an order if the meaning of the constitutional or statutory term
has been misconstrued or misapplied. [See Iveagh (Earl of) v. Minister
of Housing and Local Govt., (1962) 2 QB 147; Iveagh (Earl of) v.
Minister of Housing and Local Govt. (1964) 1 AB 395].
                                                                                 E
      36. Fourthly, it is permissible to interfere in a case where the
power is exercised for improper purpose. If a power granted for one
purpose is exercised for a different purpose, then it will be deemed that
the power has not been validly exercised. If the power in this case is
found to have not been exercised genuinely for the purpose of taking
immediate action but has been used only to avoid embarrassment or                F
wreck personal vengeance, then the power will be deemed to have been
exercised improperly. [See Natesa Asari v. State of Madras, AIR 1954
Mad 481].
       37. Fifthly, the grounds which are relevant for the purpose for
which the power can be exercised have not been considered or grounds             G
which are not relevant and yet are considered and an order is based on
such grounds, then the order can be attacked as invalid and illegal. In
this connection, reference may be made to Ram Manohar v. State of
Bihar, AIR 1966 SC 740; Dwarka Das v. State of J. and K., AIR
1957 SC 164 at p. 168 and Motilall v. State of Bihar, AIR 1968 SC
                                                                                 H
242            SUPREME COURT REPORTS                         [2022] 12 S.C.R.


A     1509. On the same principle, the administrative action will be invalidated
      if it can be established that the authority was satisfied on the wrong
      question: [See (1967) 1 AC 13].
            38. At this stage, it may be apposite to refer to the Assam Rifles
      Regulation, 2016. We are conscious of the fact that these regulations
B     do not apply to the case on hand as the order of discharge is of 2004.
      However, we deem fit to reproduce the relevant regulations, more
      particularly, 107(c) and 108 respectively, as these regulations seem to
      have been enacted and brought into force having regard to the ratio of
      the decision of this Court in the case of Veerendra Kumar Dubey
      (supra). Regulation 107(c) reads thus:
C
            “107. Removal of undesirable, incorrigible and inefficient
            Subordinate Officers, Under Officers and other enrolled
            persons.
            (a) …………
D           (b) …………
            (c) The procedure for dismissal/discharge of unsuitable subordinate
            officer/under officer/enrolled person will be as under:-
                (i) As provided under Rules 24 and 25 of Assam Rifles Rules,
                the person concerned, subject to the exception mentioned
E
                therein, shall be served with a Show Cause Notice against the
                contemplated action.
                (ii) Preliminary enquiry. Before recommending discharge or
                dismissal of an individual the authority concerned will ensure
                that an impartial enquiry (not necessarily a Court of Inquiry)
F
                has been made into the allegations against him and that he has
                had adequate opportunity of hearing.
                (iii) Rule 24 of the Assam Rifles confers powers on the
                Commandants of the Assam Rifles Units/ establishment to
                discharge any subordinate officer/under officer/enrolled persons
G               of Assam Rifles. However, the power of discharge by the
                Commandant shall be exercised with prior approval of immediate
                superior officer not below Sector Commander in case of Under
                Officers and other enrolled person and that of Inspector General
                Assam Rifles in case of Subordinate Officers.
H
AMARENDRA KUMAR PANDEY v. UNION OF INDIA & ORS.                              243
             [J. B. PARDIWALA, J.]

       (iv) After compliance of the provisions enumerated above, a           A
       show cause notice will be served on the individual affording
       him an opportunity to explain his case. Thereafter, the complete
       case file will be forwarded to next superior authority/Sector
       Headquarters for approval of the superior authority/Sector
       Commander.
                                                                             B
       (v) The authority competent to sanction the dismissal/discharge
       of the individual will before passing orders re-consider the case
       in the light of the individual reply to the show cause notice. A
       person who has been served a show cause notice for proposed
       dismissal may be ordered to be discharged if it is considered
       that discharge would meet the end of justice. If the competent        C
       authority accepts the reply of the individual to the show cause
       notice as entirely satisfactorily, he will pass orders accordingly.
    108. Discharge on ground of red ink entries. A Subordinate
    Officer, Under Officer or other enrolled person who has incurred
    four or more red ink entries may be recommended for discharge            D
    from the service on the ground of unsuitability, subject to the
    following conditions:-
       (a) After an individual has earned three red ink entries, he shall
       be warned in writing that his service will be liable to be
       terminated by the competent authority if he earns one more            E
       red ink entry. Such a warning letter shall be issued to him by
       the concerned Sector Commander through Commandant of
       the individual.
       (b) Each case of individuals having earned four or more red
       ink entries shall be examined on its own merit depending upon         F
       the nature and gravity of the offences and the aggravating
       circumstances under which these were committed. The
       authority competent to sanction discharge under this para shall
       record reasons for ordering the discharge, or otherwise.
       (c) A person who has put in eighteen years of qualifying service      G
       for pension may be allowed to complete the required qualifying
       service for grant of pension before he is recommended for
       discharge on ground of four or more red ink entries, unless
       there are compelling reasons to sanction his discharge before
                                                                             H
244            SUPREME COURT REPORTS                           [2022] 12 S.C.R.


A               completion of the qualifying service for pension, which must
                be specified in the discharge order.
                (d) Before taking the final decision to order the discharge, the
                person concerned shall be informed through a show cause notice
                that his retention in the service is considered undesirable for
B               having incurred four or more red ink entries, thereby also calling
                upon him to show cause as to why he should not be discharged
                from the service for being considered unsuitable for the service
                in the Assam Rifles. The individual shall be given minimum
                fifteen days, after receipt of Show Cause Notice, to submit his
                reply.
C
                (e) After receipt of the individual’s reply, if any, the case shall
                be put up to the authority competent to sanction the discharge
                alongwith recommendations of the Commandant of the unit
                concerned. Before passing the discharge order, the authority
                competent to sanction the discharge under this para may seek
D               the advise of the Law Officer concerned.
                (f) An order of discharge under this para shall be passed by
                an officer not less than a Sector Commander in the case of
                Under Officer or other enrolled persons and an officer not less
                than Inspector General Assam Rifles/Additional Director
E               General Assam Rifles in case of Subordinate Officers.”
             39. Having regard to the nature of the misconduct alleged against
      the appellant we are of the view that the ends of justice would be met
      if we set aside the order of discharge and treat the appellant herein to
      have been in service till the time, he could be said to have completed the
F     qualifying service for grant of pension. We are inclined to pass such an
      order with a view to do substantial justice as there is nothing on record
      to indicate that the nature of the misconduct leading to the award of four
      Red Ink entries was so unacceptable that the competent authority had
      no option but to direct his discharge to prevent indiscipline in the force.
G             40. The order of discharge passed against the appellant herein is
      hereby set aside. The appellant shall be treated to have been in service
      till the time he would have completed the qualifying service for grant of
      pension. We are informed that only six months were left for the qualifying
      service to be completed before the appellant came to be discharged. No
      back wages shall, however, be admissible. The benefit of continuity of
H
AMARENDRA KUMAR PANDEY v. UNION OF INDIA & ORS.                                  245
             [J. B. PARDIWALA, J.]

service for all other purpose shall be granted to the appellant including        A
pension. The monetary benefits payable to the appellant shall be released
expeditiously but not later than four months from the date of this order.
       41. The appeals are allowed in the aforesaid terms. No order as
to costs.
       42. Pending application, if any, stands disposed of.                      B


Devika Gujral                                                 Appeals allowed.
(Assisted by : Rahul Rathi, LCRA)


                                                                                 C




                                                                                 D




                                                                                 E




                                                                                 F




                                                                                 G




                                                                                 H