Union Of India vs R. Karthik on 21 January, 2020


Supreme Court of India

Union Of India vs R. Karthik on 21 January, 2020

Author: Hemant Gupta

Bench: A.M. Khanwilkar, Hemant Gupta, Dinesh Maheshwari

                                                                                      REPORTABLE

                                                    IN THE SUPREME COURT OF INDIA

                                                CRIMINAL APPELLATE JURISDICTION


                                                    CRIMINAL APPEAL NO. 831 OF 2015


                         UNION OF INDIA & ORS.                                    .....APPELLANT(S)

                                                                   VERSUS

                         R. KARTHIK                                             .....RESPONDENT(S)




                                                          JUDGMENT

HEMANT GUPTA, J.

1. The orders passed by the Armed Forces Tribunal, Regional Bench,

Chennai are subject matter of challenge by the Union of India.

Vide the said orders, the verdict dated 24 th July, 2013 of Summary

Trial dismissing the respondent1 from service was partly modified

by setting aside the order of dismissal but substituting it with

punishment of 75 days detention and maintaining second part of

sentence i.e. deprivation of First Good Conduct Badge.

2. The Sailor entered in Naval service on 31 st July, 2008 when he was

Signature Not Verified
about 19 years of age having born on 1 st November, 1989. He was
Digitally signed by
DEEPAK SINGH
Date: 2020.01.21

on board INS Gharial which started sailing on 29 th May, 2013. He
17:40:52 IST
Reason:

1 for short, ‘Sailor’

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was Writer and assigned duties in the Pay Office for preparation of

pay bills and payment of salaries and maintenance of records. An

unfortunate incident happened on 29 th May, 2013 at about 10:00

hours when Lt. Abhishek Vardhan made a complaint requesting

strict possible action against the Sailor. The complaint dated 29 th

May, 2013 reads as under:

“The ship left harbour on 29 May 13 at about 0830 hrs.
We were to receive Seaking C-560 onboard at 1000 hrs
an so flying stations was piped & Aviation Core Team
was mustered on helo deck. Being the Aviation Officer
of the ship, I went to helo deck to prepare the deck for
flying. When I mustered the Aviations Core Team,
Karthik, WTR I was missing. I called up bridge and
requested SSD OOW to announce for him. After about
15-20 minutes and 2 more announcements Karthik,
Writer, I, finally came to helo deck. When I asked him
about the delay, he said that he had closed for SSD.
When I told him that Aviation Core Team was mustered
& he should have come, he said that his name is not in
Aviations Core Team & that he is standby for Prasad,
Cook II. I asked him if he was aware that Prasad was
on leave. He said he was aware of it. I asked him
again that as he was standby for Prasad and he knew
he was on leave, he should have closed up. To this he
replied that Chief Writer has told him that as there are
only 2 writers onboard, they will not do any duty. I told
him to get Chief Writer to helo deck. He then replied
that Chief Writer is not onboard & is admitted in
hospital. Then I told him to remain on helo deck &
once Aviations Core Team is secured, write a statement
saying “he came late to helo hanger because Chief
Writer had told him not to do any duty”. He then
became more aggressive & shouted upon me that “I
will not write any statement, Chief Writer is
hospitalized.” I told him again that it does not make
any difference whether Chief Writer is onboard or not,
he must write a statement at end of Flying Stations.

He now shouted on the top of his voice saying “Chief
Sahab is admitted”. I then lost my cool and shouted
back at him abusing him. He then hit me with his fist

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on my left cheek & abused me. I did not shout at him
further or even touch him, I called a Regulating Sailor
who was in Helo Hanger & told him to take Karthik,
Writer to Executive Officer in bridge. I told the whole
episode to the Executive Officer & EXO took us to
Commanding Officer and I apprised him of the
situation. After this I was asked to go to helo deck by
EXO & ensure safe recovery of SC-560. I composed
myself & went to the helo deck for recovering SC-560.
After this when at 1400 hrs. Aviation Core Team was
asked to muster in helo deck again, Karthik, Writer I
did not come to helo deck once against. I asked POA
(AH) Gupta to announce for him & went to oversee the
ground run of SC-560. Post ground run, I was told by
POA(AH) Gupta that Karthik, Writer did not come for
Aviation Core Team again. I do not think that such an
offence should be accepted by anyone and the most
strict possible action be taken against the sailor. It was
with this faith in Indian Navy that I did not hit the sailor
back and I hope that my faith in the system remains
so.”

3. On the basis of such complaint, the investigations were conducted

by Lt. Cdr. Ishwar Chandra, Investigating Officer. The accused was

brought before the Investigating Officer on 29 th May, 2013 at

16:00 hrs. Ganesh Kumar Tiwari, Tara Chand Nehra and Vikash

Sharma were examined as witnesses. The Investigating Officer

referred the case to Executive Officer. The Executive Officer

conducted the proceedings on 1st June, 2013 wherein the

abovenamed three witnesses were again examined. Lt. Vivek

Rajput was provided to the Sailor as a Defending Officer. They

were not cross-examined by the Defending Officer. Jenish George,

Lt. Cdr., acting as Executive Officer, referred the case to the

Commanding Officer on 1st June, 2013. It may be stated that the

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three witnesses examined either before the Investigating Officer or

before the Executive Officer have denied the incident as alleged.

Lt. Abhishek Vardhan was neither cited as a witness nor was

examined either by the Investigating Officer or by the Executive

Officer.

4. The Commanding Officer found the charges to be proved of an

offence under Section 45(a) of the Navy Act, 1957 2 and

recommended the detention for a period of 60 days and

deprivation of First Good Conduct Badge. However, the Chief of

Naval Staff on 19th July, 2013 passed an order of dismissal of Sailor

from Naval Service and deprivation of First Good Conduct Badge.

It is the said order which was challenged by the Sailor by way of

an Original Application before the Tribunal.

5. The Tribunal found that the Sailor was a member of Aviation Core

Team and was on actual duty. He did not report for duty when

called upon to do so. The Sailor has sought to justify his action on

the ground that he was not required to do so as ordered by his

Chief Writer. The Tribunal found that the statement of Suraj

Pradhan in respect of a past incident in August, 2012 was not

made before the Sailor and no opportunity was given to him to

cross-examine the witness. The Tribunal found the use of force by

the Sailor was not premeditated or deliberate but was a

consequence of provocation in the form of use of abusive language
2 for short, ‘Act’

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by a superior officer. It was admitted by the Sailor that it was a

reflex action to the provocation and he immediately cooled down

and owned up his mistake voluntarily. The officer has handled

situation poorly and the use of abusive language to subordinates is

an unbecoming act of an officer. It is also found that Lt. Abhishek

Vardhan was found guilty of an act of using profane/abusive

language under Section 74 of the Act and was given a punishment

of one-month loss of seniority. The Tribunal held as under:

“16. It appears that the punishment given to the officer
was light in nature and, therefore, given the
extenuating circumstances under which the whole
episode occurred, the applicant’s plea for mitigation
ought to have been considered.

17. Viewed in light of the above, we are of the
considered opinion that the sentence of dismissal from
service awarded to the applicant by the Chief of Naval
Staff is disproportionate and excessive.”

6. After holding so, the punishment of dismissal was set aside by

substituting it with a punishment of 75 days detention which

detention the Sailor has since undergone.

7. The Sailor is not aggrieved against the order passed by the

Tribunal substituting punishment of deprivation of First Good

Conduct Badge.

8. Learned counsel for the appellants vehemently argued that as per

admission of the Sailor, he has hit his superior officer, therefore, he

is guilty of an offence under Section 45(a) of the Act.

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9. We find that none of the three witnesses have deposed regarding

hitting of superior officer by the Sailor. The superior officer Lt.

Abhishek Vardhan was not examined either before the

Investigation Officer or the Executive Officer nor he has been made

available for cross-examination as per the proceedings produced

before us. It has also come on record that the superior officer has

been found to be guilty for using abusive language against the

Sailor.

10. In terms of Section 15 of the Armed Forces Tribunal Act, 2007 3, the

Tribunal exercises jurisdiction, powers and authority against any

order, decision, finding or sentence passed by a court martial or

any matter connected therewith or incidental thereto. Sub-section

(6) of Section 15 of the AFT Act empowers the Tribunal to

substitute the findings of the court martial which includes the

disciplinary proceedings under the said Act (see Section 3 (f) of the

AFT Act) and also to interfere if the sentence is found to be

excessive, illegal or unjust. Section 15(6) of the AFT Act reads as

under:

“15 (6) Notwithstanding anything contained in the
foregoing provisions of this section, the Tribunal shall
have the power to—

(a) substitute for the findings of the court martial, a
finding of guilty for any other offence for which the
offender could have been lawfully found guilty by the
court martial and pass a sentence afresh for the offence
specified or involved in such findings under the

3 for short, ‘AFT Act’

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provisions of the Army Act, 1950 (46 of 1950) or the
Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950
(45 of 1950), as the case may be; or

(b) if sentence is found to be excessive, illegal or
unjust, the Tribunal may—

(i) remit the whole or any part of the sentence, with or
without conditions;

(ii) mitigate the punishment awarded;

(iii) commute such punishment to any lesser
punishment or punishments mentioned in the Army Act,
1950 (46 of 1950), the Navy Act, 1957 (62 of 1957)
and the Air Force Act, 1950 (45 of 1950), as the case
may be;

(c) enhance the sentence awarded by a court martial:
Provided that no such sentence shall be enhanced
unless the appellant has been given an opportunity of
being heard;

(d) release the appellant, if sentenced to imprisonment,
on parole with or without conditions;

(e) suspend a sentence of imprisonment;

(f) pass any other order as it may think appropriate.”

11. We find that the Commanding Officer who was on the high seas

with the Sailor and the superior officer was aware of the extent of

misconduct of the Sailor. None of the three witnesses have

deposed regarding striking of the superior officer by the Sailor.

The superior officer has not made himself available before the

Investigating Officer or the Executive Officer.

12. Even though, the superior officer has used abusive language but

the Sailor was not expected to retort and hit the superior officer.

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The conduct of the Sailor cannot be condoned in any manner.

13. In terms of provisions of the AFT Act, the Tribunal is competent to

substitute the findings in the disciplinary proceedings leading to

dismissal of the Sailor and to substitute and/or mitigate the

punishment awarded. Therefore, the order passed by the Tribunal

to set aside the dismissal is within the jurisdiction of the Tribunal

finding that the punishment imposed is disproportionate to the

misconduct. This Court in appellate jurisdiction under Section 30

of the AFT Act would be slow in interfering with the substituted

punishment, unless the order passed by the Tribunal is found to be

arbitrary, unreasonable or capricious. We find that the view taken

by the Tribunal is not patently illegal warranting interference in the

present appeal. The appeal is accordingly dismissed.

14. However, it is directed that the respondent shall be reinstated

within two months but shall not be entitled to any back wages

from the date of dismissal till reinstatement but he shall be

entitled to computation of all consequential benefits including pay

fixation.

………………………………………J.

(L. NAGESWARA RAO)

………………………………………J.

(HEMANT GUPTA)

NEW DELHI;

JANUARY 21, 2020.

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