Page No.# 1/28 GAHC020005692022 2025:GAU-NL:376 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : WP(C)/212/2022 NO.G/144503A,RFN/GD MOALONG 42 ASSAM RIFLES, PERMANENT ADDRESS - KHENSA VILLAGE, MOKOKCHUNG, NAGALAND VERSUS THE UNION OF INDIA AND 3 ORS THROUGH THE SECRETARY TO THE GOVERNMENT OF INDIA,MINISTRY OF HOME AFFAIRS, GOVERNMENTT OF INDIA, NEW DELHI 2:THE DIRECTOR GENERAL ASSAM RIFLES HQ DGAR SHILLONG - 10 MEGHALAYA 3:THE DEPUTY INSPECTOR GENERAL HEADQUARTERS 10 SECTOR ASSAM RIFLES C/O 99 APO 4:THE COMMANDANT 42 ASSAM RIFLES Page No.# 2/28 C/O 99 AP Advocate for the Petitioner : I. IMTI LONGCHAR, SUPONGWATI WALLING,KIROBA,R ATSULA KIPS,KEKHRIESENUO,H ZELIANG Advocate for the Respondent : CGSC, BEFORE HON'BLE MR. JUSTICE SOUMITRA SAIKIA Advocates for the petitioner : Mr. I Imti Longchar, Advocate Advocate for the respondents : Mr. Yangerwati, CGC Date of hearing : 14.11.2024, 10.02.2025 & 23.06.2025 Date of Judgment : 13.08.2025 Judgment and Order (CAV) Heard Mr. I Imti Longchar, learned counsel for the petitioner. Also heard Mr. Yangerwati, learned Central Government Counsel, for the respondents. 2] The petitioner before this Court hails from Khensa Village, Mokokchung, Nagaland belonging to AO Tribe of Nagaland. He is a citizen of India and belongs to a declared Scheduled Tribe of India. The petitioner was enlisted in the 42 Assam Rifle as a Rifleman (General Duty) on 19.11.2000 with Regimental No.G/144503A. The petitioner incurred four Page No.# 3/28 ‘red ink entries’ during his services and therefore, he was discharged from service by order dated 15.05.2010. Against the said discharge order dated 15.05.2010, the petitioner had filed this writ petition being WP(C) No.3(K) of 2015 before the Kohima Bench, Gauhati High Court. This writ petition came to be allowed and disposed of by judgment and order dated 29.07.2015, whereby the discharge order was set aside on the ground that the Commandant of the 42nd Assam Rifles does not have the authority to discharge the petitioner under Section 11 of the Assam Rifles Act, 2006. Pursuant to the said judgment and order, the petitioner was reinstated in service and he reported on 19.09.2015. However, with effect from 15.05.2010 to 19.09.2015 the petitioner was treated as ‘dies non’ by order dated 09.09.2016. Being aggrieved, the petitioner approached the Court for the second time by filing WP(C) No.17(K)/2017. This Court by judgment and order dated 25.10.2017 allowed the writ petition directing the respondents to pay the allowances of the petitioner for the period from 15.05.2010 to 19.09.2015. Thereafter, the Union of India filed an appeal against the said order passed in WP(C) No. 17 (K) of 2017. The appeal being WA No.3(K)/2018 filed by the Union of India came to be disposed of by order dated 29.05.2019. The Appellate Court directed that the issue of payment of back wages will have to be considered again, Page No.# 4/28 however, as the decision to be made relates to the facts, the Appellate Court held that the question of payment of back wages would be best considered by the appellants i.e. the Union of India. The appellant no.2, namely, the Director General, Assam Rifles, Head Quarter, DGAR Shillong, Meghalaya was directed to consider the payment of back wages to the respondent, if any, for the period of 15.05.2010 to 19.09.2015 by keeping in view the proposition discussed by the Appellate Court in the forgoing Paragraphs of the order. The appellant no.2 was directed to take a decision on the question of payment of back wages within a period of 3 (three) months from the date of receipt of a certified copy of the order. The writ appeal came to be disposed of modifying the order passed by the learned Single Judge in WP(C) No.17(K)/2017. Pursuant to the direction of the Appellate Court by order dated 29.05.2019 the back wages of the writ petitioner was paid. 3] The petitioner after being reinstated in service and his backwages were also being paid, the petitioner continued to serve as a Member of the Assam Rifles. The petitioner was thereafter served with the impugned show cause notice no.1.14012/08/2020-A/046 dated 06.02.2020, whereby the petitioner was asked to show-cause that since he has incurred four red ink entries in his dossier, he thus becomes an Page No.# 5/28 incorrigible offender and it becomes essential to initiate action against the petitioner i.e. discharge him from service under Section 11 (2) of the Assam Riles Act, 2006 and Rule 25 of the Assam Rifles Rule, 2010. Accordingly, it has become essential to initiate action against the petitioner i.e. discharge from service under Section 11 (2) of the Assam Rifles Act, 2006 and Rule 25 of the Assam Rifles Rule, 2010. The petitioner was asked to submit his reply to the show-cause notice within 30 (thirty) days from the date of receipt of the show-cause notice. The petitioner on 08.05.2020 filed his reply to the show-cause notice dated 06.02.2020. Pursuant thereto by the impugned discharge order No.16011/Disch-42AR/101/2021-A/091 dated 22.03.2021 the petitioner was discharged from his service as a Rifleman, General Duty. Being aggrieved, the present writ petition has been filed by the petitioner praying for setting aside and quashing the show-cause notice dated 06.02.2020 as well as the discharge order dated 22.03.2021 and to reinstate the petitioner back into service with all consequential benefits and cost for the proceedings. 4] Learned counsel for the petitioner submits that perusal of the show-cause notice dated 06.02.2020 reveals that out of the four red ink entries three red ink entries were stated to have been incurred by the Page No.# 6/28 petitioner with reference to the Army Act, 1950. It is submitted that the petitioner is in the employment of the Assam Rifles and therefore, he is governed by the Assam Rifles Act, 2006 and therefore, the provisions of the Army Act, 1950 is not applicable to the petitioner. Therefore, the provisions of the Army Act, 1950 on the face of it cannot be made applicable to the petitioner for giving him red ink entries. It is submitted by learned counsel for the petitioner that, out of four red ink entries, three are stated to have been incurred under the Army Act, 1950 and are therefore not applicable to the petitioner. As such, these cannot be taken into account to issue the impugned show-cause notice on the ground that the petitioner has incurred four red ink entries. From the show-cause notice dated 06.02.2020, it is evident that he has incurred only 1 (one) red ink entry under the Assam Rifles Act, 2006. It is submitted that the action of the respondent authorities in issuing the impugned show-cause notice dated 06.02.2020 as well as the impugned discharge order dated 22.03.2021 is contrary to rules and regulations of the Assam Rifles Act, 2006. The respondent authorities have wrongly applied the provisions of the Army Act, 1950, notwithstanding that the petitioner is covered by the Assam Rifles Act, 2006. It is submitted by learned counsel for the petitioner that the Assam Rifles Act, 2006 does not provide that the Page No.# 7/28 personnel of the Assam Rifles can also be simultaneously governed by the Army Act, 1950. It is submitted that the Assam Rifles Act, 1941 was repealed and in its place Assam Rifles Act, 2006 was brought into force. Therefore, learned counsel for the petitioner, referring to the provisions of the Assam Rifles Act, Rules, and Regulations, submits that, even otherwise, the mere incurrence of four red ink entries by any personnel of the Assam Rifles does not automatically warrant discharge under Regulation 108 of the Assam Rifles Regulations, 2016. It is submitted that the petitioner was discharged by the impugned order dated 22.03.2021 as he was considered to be ‘incorrigible offender’. It is submitted that such term is not defined under the Assam Rifles Act, 2006 or the Assam Rifles Regulations, 2016. 5] Learned counsel for the petitioner strongly submits that even otherwise the procedure prescribed under Regulation 107 and 108 of the Assam Rifles Regulations, 2016 were completely ignored and not followed. It is submitted that no order by the competent authority as required under regulation 107 (v) of the Assam Rifles Regulations, 2016 was passed. It is further submitted that under the Assam Rifles Regulations, 2016, there are 3 (three) courts prescribed, namely, (i) General Assam Rifles Courts, (ii) Petty Assam Rifles Courts and (iii) Summary Assam Rifles Courts. It is Page No.# 8/28 submitted by learned counsel for the petitioner that the proceedings in respect of the writ petitioner were considered by the Summary Assam Rifles Court presided by the Commandant and as such, it is evident that these offences were minor offences only. It is submitted by learned counsel for the petitioner that the Assam Rifles Act, 1941 was repealed only after the Assam Rifles Act, 2006 was notified and brought into force. Therefore, till the time the Assam Rifles Act, 2006 was not in force, the Assam Rifles Act of 1941 was in operation and therefore, the provision of the 1941 Act will continue to govern the services of the petitioner till the time the Assam Rifles Act of 2006 came to be incorporated and enforced. It is submitted that the action of the respondents are arbitrary and totally in contravention of the provisions of the Assam Riles Act, 1941 as well as the Assam Rifles Act, 2006 read with the rules and regulation. It is submitted that the manner in which the respondent authorities have proceeded to issue the discharge order dated 22.03.2021 to the petitioner, it is quite apparent that the respondent authorities are acting as if they are ‘Henry VIII’. In support of his contention, learned counsel for the petitioner has referred to the judgment of the Apex Court rendered in Central Inland Water Transport Corporation Ltd. & Another vs. Brojo Nath Ganguly & Another AIR 1986 SC 1571. Learned counsel for the petitioner Page No.# 9/28 in support of his contention has also submitted that no medical examination was conducted or relied upon by the respondent authority to sustain their allegation that the petitioner was found intoxicated. He refers to the judgment of the Meghalaya High Court rendered in Rupesh Suryabanshi vs. Union of India, WP(C) No. SH 307/ 2011 disposed of 25.11.2013 and Shri Vijay Kumar vs. Union of India, WP(C) No. 361 of 2011 disposed of on 26.02.2014 and Balwant Singh vs. Union of India and Others reported in (2013) 1 MJ 110. It is also submitted that there was no independent witness examined in support of the allegation made against the petitioner that he was found intoxicated. 6] Learned CGC for the respondents vehemently disputes the contention of the learned counsel for the petitioner. Learned CGC referring to the affidavit-in-opposition filed by the respondents submits that the history of misconduct for which the petitioner incurred red ink entries have been described in detailed in the said affidavit-in-opposition. There is no denial by the petitioner that these episodes which are described in the affidavit-in-opposition leading to incurring red ink entries by the petitioner were incorrect. He refers to the various sections of the Assam Rifles Act, 2006 to contend that the Act contains detailed provision relating to intoxication, absence without leave as well as overstay. It is submitted Page No.# 10/28 that the respondent authorities have time and again put the petitioner to notice so that he may correct his conduct and make himself worthy for being retained in the services of the Assam Rifles. However, the show- cause notice dated 06.02.2020 as well as the discharge order dated 22.03.2021, which are impugned in the present writ petition, will reveal that the petitioner admitted to his misconduct which incurred red ink entries but fail to rectify his conduct and thereby rendered himself ‘incorrigible offender’. The petitioner was therefore discharged from service by the impugned order dated 22.03.2021. In rejoinder, learned counsel for the petitioner has reiterated the submissions made by the learned CGC. 7] Learned counsel for the parties have been heard and pleadings available on record have been carefully perused. 8] At the outset, it is necessary to deal with the contention raised by the writ petitioner that the provisions of the Army Act, 1950, are not applicable to the Assam Rifles personnel. In this context from the pleadings available, it is seen that at the relevant point in time although the petitioner was employed as a Rifleman in the Assam Rifles, his unit was placed under the army unit or regiment for operational reasons. This Page No.# 11/28 fact is not disputed in the wit petition by the petitioner. Section 4 of the Army Act, 1950 provides for the application of the Act to certain forces under the Central Government. Under Section 4 (1) of the Act it is provided that the Central Government may, by notification, apply, with or without modifications, all or any of the provisions of the Act to any force raised or maintained in India under the authority of the Government of India. Section 4 (3) of the Act provides that the provisions of the Act shall also have the effect in respect of the persons who are employed by or are in the services of, or are followers of or accompany any portion of the said force as they have effect in respect of the persons subject to this Act under clause (i) of sub-section (1) of Section 2. The provisions of Sections 2 & 4 of the Army Act, 1950 is extracted below: 2. Persons subject to this Act. - (1)The following persons shall be subject to this Act wherever they may be, namely:- (a) officers, junior commissioned officers and warrant officers of the regular Army; (b) persons enrolled under this Act; (c) persons belonging to the Indian Reserve Forces; (d) persons belonging to the Indian Supplementary Reserve Forces when called out for service or when carrying out the annual test; (e) officers of the Territorial Army, when doing duty as such officers, and enrolled persons of the said Army when called out or embodied or attached to any regular forces, subject to such adaptations and modifications as may be made in the application of this Act to such persons under sub-section (1) of section 9 of the Territorial Army Act, 1948 (56 of 1948.) (f) persons holding commissions in the Army in India Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces; (g) officers appointed to the Indian Regular Reserve of Officers, when ordered on any Page No.# 12/28 duty or service for which they are liable as members of such reserve forces; (h) *** (i) persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of, the regular Army. (2)Every person subject to this Act under clauses (a) to (g) of sub-section (1) shall remain so subject until duly retired, discharged, released, removed, dismissed or cashiered from the service. 4. Application of Act to certain forces under Central Government. (1) The Central Government may, by notification, apply, with or without modifications, all or any of the provisions of this Act to any force raised and maintained in India under the authority of that Government, and suspend the operation of any other enactment for the time being applicable to the said force. (2) The provisions of this Act so applied shall have effect in respect of persons belonging to the said force as they have effect in respect of persons subject to this Act holding in the regular Army the same or equivalent rank as the aforesaid persons hold for the time being in the said force. (3) The provisions of this Act so applied shall also have effect in respect of persons who are employed by or are in the service of or are followers of or accompany any portion of the said force as they have effect in respect of persons subject to this Act under clause (i) of sub- section (1) of section (2). (4) While any of the provisions of this Act apply to the said force, the Central Government may, by notification, direct by what authority any jurisdiction, powers or duties incident to the operation of these provisions shall be exercised or performed in respect of the said force. 9] A bare perusal of the provisions of Army Act, 1950 reveals that the Act may also be made applicable as may be notified by the Central Government or in respect of such persons who are followers or accompanied by said force. It is also defined under Section 2 of the Act which prescribes the persons who shall be subject to the Act. The prescription under Section 2 (i) regarding applicability of the Army Act, 1950 to persons who are not otherwise subject to military law but who on active service, in camp or on the march or any frontier post specified by the Central Government by notification are employed by or are in the Page No.# 13/28 service of, or are followers of, or are accompany of any portion of, regular army. It is evident that at the relevant point in time the unit of the petitioner was posted at a place where he was assigned for duties together with regular army and to that extent, the unit was subject to the commanding officer of the regular army at that point in time and in that view of the matter, and in terms of the provisions of the Army Act, 1950, it is evident that the said provisions would be equally applicable to the petitioner, as his unit was operating under the regular Army. The Assam Rifles Act, 2006 lays down detailed provisions with regard to the procedure prescribed for imposition of punishments. Section 57 of the Assam Rifles Act, 2006 lays down the punishment that may be inflicted in response to the offences committed by the persons subject to this Act and convicted by the Assam Rifles Courts. Dismissal form service is one of the punishments prescribed. Minor punishments are prescribed under Section 62 of the Assam Rifles Act, 2006. Section 86 of the Act provides the kind of Assam Rifles Courts required to be constituted. There are three Courts that may be constituted under Section 86 of the Assam Rifles Act, 2006: i). General Assam Rifles Court, ii) Petty Assam Rifles Court and iii) Summery Assam Rifles Court. 10] The powers to convene these Courts are also prescribed in the Page No.# 14/28 subsequent section of the Act. The Assam Rifles Regulations under Regulation 107 lays down the procedure for removal of undesirable, incorrigible and inefficient subordinate officers under the officers and other enrolled persons. Regulation of 107 of the Assam Rifles Regulations, 2016 is extracted below: 107. Removal of undesirable, incorrigible and inefficient Subordinate Officers, Under Officers and other enrolled persons. (a) A Subordinate Officer, Under Officers and other enrolled person who by his conduct has proved himself undesirable, incorrigible, inefficient and whose retention in the service is therefore considered unsuitable for the Force will be recommended for discharge/dismissal from service. Dismissal should only be recommended where an Assam Rifles Court, if held, would have awarded a sentence not less than dismissal but trial by a Assam Rifles Court is considered impracticable or inexpedient. In other cases, recommendations will be for discharge from service. (b) Before recommending or sanctioning discharge, the following points must be considered:- (i) If lack of training is the cause of his inefficiency, arrangements will be made for his further training. (ii) If an individual has become unsuitable through no fault of his own, he will be recommended for suitable extra regimental employments instead of discharge from service. (c) The procedure for dismissal/discharge of unsuitable subordinate Page No.# 15/28 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 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) 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 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. iv) After compliance of the provisions enumerated above, 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. (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 Page No.# 16/28 the end of justice, if the competent authority accepts the reply of the individual to the show cause notice as entirely satisfactorily, he will pass orders accordingly. 11] The regulation 108 of the Assam Rifles Regulations, 2016 prescribes discharge of a subordinate officer on the ground of red ink entries. It is provided that any subordinate officer or under officer or any enrolled person, who has incurred 4 (four) or more red ink entries may be recommended for discharge on the ground of unsuitability, subject to the conditions mentioned therein. Regulation 108 is extracted below: 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 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 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 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 Page No.# 17/28 otherwise. (c) A person who has put in eighteen years of qualifying service 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 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 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. (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 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 General Assam Rifles in case of Subordinate Officers. Page No.# 18/28 12] A perusal of the provisions, more particularly, Regulation 108 (b) of the Assam Rifles Regulations, 2016 provides that each case of individual who has earned 4 or more red ink entries shall be examined on its own merit depending upon the nature and gravity of the offences and aggravating circumstances under which these offences were committed. Clause 108(c) of the Assam Rifles Regulations, 2016 provides that a person who has put in 18 years of qualifying service for pension may be allowed to complete the require 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 completion of the qualifying service for pension. From a reading of the provisions as extracted above, it is clear that incurring of four red ink entries does not contemplate automatic discharge from the service. This interpretation is no longer res integra in view of the judgment of the Apex Court rendered in Amarendra Kumar Pandey vs. Union of India and Others reported in 2022 SCC OnLine SC 881. What is contemplated under Section 108 of the Act is that upon a personnel incurring red ink entries, the authorities are required to issue a show cause notice to him as to why he should not be discharged from services and upon receipt of his reply, the competent authority is required to examine the case to arrive at a Page No.# 19/28 conclusion that the personnel is not suitable for being retained any further into service. It is to be mentioned herein that when the competent authority examines the case of any personnel under Regulation 108 for considering his ability to discharge his duties on the ground of red ink entries, ordinarily, if the personnel has completed 18 years of service, he should be allowed to complete the qualifying service required for the grant of pension before being recommended for discharge on the ground of four or more red ink entries. Coming to the facts of the present case, the petitioner was issued impugned show cause notice on 06.02.2020, whereby the petitioner was asked to show-cause as to why he should not be discharged from service due to incurring the 4 (four) red ink entries. The offence as are alleged in the show-cause notice is extracted below : SHOW CAUSE NTOICE 1.You were enrolled as Recruit (General Duty) on 19 Nov 2000 in Assam Rifles. Since then, in your service of 19 years, 02 months and 17 days, you have incurred four (04) red ink entries in your service dossier. The details of the offences are as given below: Page No.# 20/28 2. After you have incurred three red ink entries, a warning was given to you vide 42 AR Ser No Offence Date of Offence Statement of Offence Punishment awarded (a) ARMY ACT SEC 39(a) Absenting himself without leave 03 Dec 06 in that he, at field, absented himself without leave from unit lines on 03.Dec 2006 at 1630 hrs. (Total period of absence-14 hrs.) Awarded 14 days RI in AR custody on 09 Dec 2006 by Col KPS Sirohi, Comdt 42 AR. (b) ARMY ACT SEC 48 Intoxication 20 Nov 08 in that he, at field, on 20 Nov 2008 at about 2015 hrs was found intoxicated while reporting back from out pas at Coy loc. contrary to Bn Standing orders. Awarded 03 days RI in AR custody on 21 Nov 2008 by Col KPS Sirohi, Comdt 42 AR (c) ARMY ACT SEC 39(b) Without sufficient cause overstaying leave granted to him 29 Dec 08 in that he, at field, on 27 Nov 2008 having been granted 30 days EL plus 02 days JP wef 27 Nov 2008 to 28 Dec 2008, failed w/o sufficient cause to rejoin duty on 29 Dec 2008 (FN) on expiry of said leave, till he voluntarily rejoined duty on 11 Feb 2009(AN). (Total period of absence-45 days) Awarded 03 days RI in AR custody on 13 Feb 2009 by Col KPS Sirohi, Comdt 42 AR (d) AR ACT SEC 26(a) Absenting himself without leave 22 Feb 19 in that he, at field, on 22 Feb 2019, absented himself without leave from Transit Camp, Minuthong from 22 Feb 2019 (FN) to 15 Mar 2019 (AN). (Total period of absence-22 days) Awarded 07 days RI in Force custody on 06 Oct 2019 by Col S Bhuyan, Comdt 42 AR. Page No.# 21/28 letter No I.1101/A-107/2009/099 dated 14 Feb 2009 to show improvement. It is clear from above that inspite of having been advised many time to improve your conduct, you did not show any improvement. You were already warned that if you incurred fourth red ink entry, your service would be terminated. Now you have incurred fourth red ink entry in your service dossier. 3. You have thus become an incorrigible offender. Keeping in view, it becomes essential to initiate action against you i.e. discharge from service under Section 11(2) of Assam Rifles Act, 2006 and Rule 25 of Assam Rifles Rule, 2010. 4. You should submit your reply to this Show Cause Notice within 30 days of its receipt, failing which it shall be presumed that you have no grounds to argue against the proposed action and ex-parte decision will be taken against you. 13] The petitioner had furnished his reply on 08.05.2020 which is not disputed by the respondents authority and subsequently, by impugned order dated 22.03.2021, the petitioner stood discharged from service on account of incurring the 4 (four) red ink entries, whereupon the respondent authorities come to the conclusion that the petitioner is an Incorrigible Offender,. The impugned order of discharge dated 22.03.2021 is also extracted below: “ OFFICE OF THE DEPUTY INSPECTOR GENERAL, Page No.# 22/28 HEADQUARTERS 10 SECTOR ASSAM RIFLES, C/O 99 APO ORDER 16011/Disch-42AR/101/2021-A/091 Dated 22 March 2021 1. WHEREAS, it is considered that the conduct of Number G/144503A Rank Rifleman (General Duty) Name Moalong of 42 Assam Rifles of which has led him getting four red ink entries ins such as to render his further retention in the public service undesirable being an incorrigible offender and having show no improvement during his service. 2. AND WHEREAS, Number G/144503A Rank Rifleman (General Duty) Name Moalong was afforded an opportunity to show cause against the proposed action vide Headquarters 10 Sector Assam Rifles letter Number I.14012/08/2020-A/046 dated 06 February 2020. 3. AND WHEREAS, Number G/144503A Rank Rifleman (General Duty) Name Moalong has submitted his reply vide letter dated 08 May 2020. The same was considered in terms of para 108 of Assam Rifles Regulations, 2016 and was found unsatisfactory by the undersigned. 4. NOW, THEREFORE, in exercise of the powers conferred on me under Record office instruction 1/2004, Para-5 vide Chapter-VIII, Rule 108 of Assam Rifles Regulation, 2016 read with Section 11(1)/(2) of the Assam Rifles Act 2006, Rule 17 and 25 of Assam Rifles Rule 2010, the undersigned hereby discharges the said Number G/144503A Rank Rifleman (General Duty) Name Moalong from the Assam Rifles being incorrigible offender with effect from 31 March 2021 (forenoon). Number G/144503A Rank Rifleman (General Duty) Name Moalong is entitled to get pension and service/retirement gratuity as admissible under the existing Rules.” 14] Upon perusal of the show-cause notice, it is seen that out of Page No.# 23/28 the four red ink entries, two were incurred for unauthorized absence from duty, while the remaining two pertain to overstaying leave and reporting back to duty in an intoxicated state, respectively. Three of the red ink entries are shown to be in violation of Section 39 (a), Section 48 and Section 39 (b) of the Army Act, 1950. 15] As has been discussed above that since the unit of the petitioner was attached with Indian Army at the relevant point in time, the provisions of Section 2 and Section 4 of the Army Act, 1950, will be applicable to the personnel who are attached on the official duty of the Indian Army. In that view of the matter, the contentions raised by the petitioner that since the petitioner was employed under the Assam Rifles Act, 2006, the provisions of the Army Act, 1950 cannot be accepted and such contention is rejected. 16] If the provisions of the Army Act, 1950 are held to be applicable then it is to be held that the petitioner has incurred 4 (four) red ink entries-3 under Army Act, 1950 and one under the Assam Rifles Act, 2006 as is evident from the impugned show-cause notice dated 06.02.2020. The show-cause notice itself reflects that the petitioner has put in service for 19 years 2 months 17 days as on 06.02.2020. Page No.# 24/28 17] The provision of Section 108 of the Assam Rifles Regulations, 2016 relating to red ink entries read with the judgment of the Apex Court rendered in Amarendra Kumar Pandey (surpa) makes it abundantly clear that incurring four or more red ink entries do not entail automatic discharge of the Assam Rifles personnel. Section 108 (b) provides that each case of individuals having earned four or more red ink entries shall be examined on its own merit depending upon the nature and gravity of the offences. Regulation 108 (c) of the Assam Rifles Regulations, 2016 provides that a person who is putting 18 years of qualifying service may be allowed to complete the required qualifying service for grant of pension before he is recommended for discharge on the ground of four or more red ink entries. This impugned discharge order which is extracted in ongoing paragraphs was issued in respect of the petitioner as he was found to be Incorrigible Offender. The discharge order dated 22.03.2021 does not reflect the procedure undertaken to examine the case of the petitioner as provided under Section 108 (b) of the Assam Rifles Regulations, 2016. The discharge order merely comes to a conclusion that the petitioner has been found to be an Incorrigible Offender. There is no finding in the discharge order that the petitioner continued to be unruly or has deliberately and repeatedly continued the Page No.# 25/28 offences alleged even in spite of the impugned show cause notice having been served. Neither the show cause notice dated 06.02.2020 nor the impugned discharge order dated 22.03.2021, insofar as it pertains to the allegation of misconduct relating to intoxication, on the basis of which the petitioner was awarded one red ink entry, is supported by any relevant medical document to establish that the petitioner was duly examined and/or was found to be in a state of intoxication and a consequence thereof it was treated as misconduct. The prescription of Regulation 108 (b) of the Assam Rifles Regulations, 2016 has to be given its meaningful interpretation. The provisions of Section 108 (b) of the Assam Rifles Regulations, 2016 provides that each case of individual having earned four or more red ink entries shall be examined on its own merit depending on the nature and the gravity of the offences. There is no dispute that the four red ink entries were proceeded with by the Departmental Authority by way of Summary Court proceedings, resulting in punishment and the same is challenged by the writ petitioner. However, it is pertinent to note that the writ petitioner is a Rifleman (General Duty), not even a middle- ranking officer. Given his limited education and understanding, it cannot be presumed that he was fully aware of the provisions of the Assam Rifles Act, 2006 and the Assam Rifles Regulations, 2016, or the various Page No.# 26/28 pronouncements of the Hon’ble Apex Court and High Court laying down the law iHigh hhHiregarding discharge upon four red ink entries. It cannot be expected that the concerned personnel would comprehend the implications in the absence of appropriate measures undertaken by the Assam Rifles authorities during the evaluation procedure conducted under Sections 107 and 108 of the Assam Rifles Regulations, 2016, to ensure that the individual is fully aware of the consequences that may be fall on him or her as the case maybe. In disciplined forces, subordinate officers or non-commissioned officers are generally not expected to defy or question the authority of senior officers, including the Commanding or Deputy Commanding Officer. It is, therefore, unreasonable to expect a charged officer to effectively present his defence without the aid or guidance of a competent officer well-versed in the provisions of the Act, the Rules, and the Regulations. Whether such opportunity was granted to the petitioner is not evident from the pleadings available on record. The offences on which the red ink entries have been incurred as have been discussed above relate to two instances of absence without leave, one instances of over staying on leave and one instance of intoxication without supporting any medical documents. These offences in view of the Court are not grievous offences which can lead the competent authority to arrive Page No.# 27/28 at a finding that the petitioner is an Incorrigible Offender. The term “Incorrigible Offender” not having been defined under the Acts, it is incumbent upon the respondent authority to arrive at a proper finding to prove that the petitioner is an ‘Incorrigible Offender’ and such a conclusion can be drawn by the respondent authorities only upon a proper and accurate evaluation of the materials and the evidences. A reading of the impugned discharge order dated 22.03.2021 as well as the affidavit- in- opposition and the record do not reveal that such process was undertaken by the respondent authorities. 18] Under such circumstances, this Court is of the considered view that the discharge of the writ petitioner under Section 107 of the Assam Rifles Regulations, 2016 upon having incurred 4 red ink entries appears to have been done without proper application of mind by the respondent authorities as incurring of four or more red ink entries does not automatically entail discharge of the Assam Rifles personnel. In view of the foregoing discussions, this Court is of the view that the petitioner has been able to make out a case for issuance of a writ. Since the Court has come to the conclusion that findings arrived at in the impugned discharge order dated 22.03.2021 was not on the basis of a proper and accurate evaluation of the materials and the evidences, this Court allows the writ Page No.# 28/28 petition in part by interfering with the impugned order of discharge dated 22.03.2021. The discharge order dated 22.03.2021 therefore is set aside. The petitioner shall be reinstated in service forthwith with full back wages and all other service benefits. The matter is remanded back to the respondent authorities to re-decide on the question of the necessity to discharge the petitioner under the provision of Section 107 read with Section 108 of the Assam Rifles Regulations, 2016, keeping in view of the discussions made by this Court in this judgment. 19] Writ Petition is, therefore, allowed and disposed of. No order as to cost. Records, if any, be remitted back forthwith. JUDGE Comparing Assistant