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SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, JJ.
UNION OF INDIA & ORS. – APPELLANT(S)
VERSUS
R. KARTHIK – RESPONDENT(S)
CRIMINAL APPEAL NO. 831 OF 2015
Decided On : 21-01-2020
Navy Act, 1957 – Sections 45(a) and 74 – Armed Forces Tribunal Act, 2007 – Section 15 – Imposition of punishment by Armed Forces Tribunal – Punishment of dismissal was set aside by substituting it with a punishment of 75 days’ detention which detention Sailor has since undergone – None of three witnesses have deposed regarding hitting of superior officer by Sailor – Superior officer was not examined either before Investigation Officer or Executive Officer nor he has been made available for cross-examination – Superior officer has been found to be guilty for using abusive language against Sailor – Commanding Officer who was on high seas with Sailor and superior officer was aware of extent of misconduct of Sailor – Even though, superior officer has used abusive language but Sailor was not expected to retort and hit superior officer – Conduct of Sailor cannot be condoned in any manner – Tribunal is competent to substitute findings in disciplinary proceedings leading to dismissal of Sailor and to substitute and/or mitigate punishment awarded – Order passed by Tribunal to set aside dismissal is within jurisdiction of Tribunal finding that punishment imposed is disproportionate to misconduct – This Court in appellate jurisdiction under Section 30 of AFT Act would be slow in interfering with substituted punishment, unless order passed by Tribunal is found to be arbitrary, unreasonable or capricious – View taken by Tribunal is not patently illegal warranting interference in present appeal – Appeal dismissed – Respondent shall be reinstated within two months but shall not be entitled to any back wages. (Paras 6, 9, 11, 12, 13 and 14)
Facts of the case:
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 24th 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.
Findings of Court:
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 Investigating Officer or the Executive Officer.
Result : Appeal dismissed.
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 24th July, 2013 of Summary Trial dismissing the respondent [for short, ‘Sailor’] 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 31st July, 2008 when he was about 19 years of age having born on 1st November, 1989. He was on board INS Gharial which started sailing on 29th May, 2013. He 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 29th May, 2013 at about 10:00 hours when Lt. Abhishek Vardhan made a complaint requesting strict possible action against the Sailor. The complaint dated 29th 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 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, Investi
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