UNION OF INDIA & ORS. versus R. KARTHIK on 21 January 2020

1. The orders passed by the Armed Forces Tribunal, RegionalBench, Chennai are subject matter of challenge by the Union of India.Vide the said orders, the verdict dated 24[th] July, 2013 of Summary Trialdismissing the respondent[1] from service was partly modified by settingaside the order of dismissal but substituting it with punishment of 75days detention and maintaining second part of sentence i.e. deprivationof First Good Conduct Badge.

2. The Sailor entered in Naval service on 31[st] July, 2008 when hewas about 19 years of age having born on 1[st] November, 1989. He wason board INS Gharial which started sailing on 29[th] May, 2013. He wasWriter and assigned duties in the Pay Office for preparation of pay billsand payment of salaries and maintenance of records. An unfortunateincident happened on 29[th] May, 2013 at about 10:00 hours when Lt.Abhishek Vardhan made a complaint requesting strict possible actionagainst 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 wereto receive Seaking C-560 onboard at 1000 hrs an so flying stationswas piped & Aviation Core Team was mustered on helo deck.Being the Aviation Officer of the ship, I went to helo deck toprepare the deck for flying. When I mustered the Aviations CoreTeam, Karthik, WTR I was missing. I called up bridge andrequested SSD OOW to announce for him. After about 15-20minutes and 2 more announcements Karthik, Writer, I, finally cameto helo deck. When I asked him about the delay, he said that hehad closed for SSD. When I told him that Aviation Core Teamwas mustered & he should have come, he said that his name isnot in Aviations Core Team & that he is standby for Prasad, CookII. I asked him if he was aware that Prasad was on leave. Hesaid he was aware of it. I asked him again that as he was standbyfor Prasad and he knew he was on leave, he should have closedup. To this he replied that Chief Writer has told him that as thereare only 2 writers onboard, they will not do any duty. I told him to 1 for short, ‘Sailor’

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Aget Chief Writer to helo deck. He then replied that Chief Writeris not onboard & is admitted in hospital. Then I told him to remainon helo deck & once Aviations Core Team is secured, write astatement saying “he came late to helo hanger because ChiefWriter had told him not to do any duty”. He then became moreaggressive & shouted upon me that “I will not write any statement,BChief Writer is hospitalized.” I told him again that it does notmake any difference whether Chief Writer is onboard or not, hemust write a statement at end of Flying Stations. He now shoutedon the top of his voice saying “Chief Sahab is admitted”. I thenlost my cool and shouted back at him abusing him. He then hit meCwith his fist on my left cheek & abused me. I did not shout at himfurther or even touch him, I called a Regulating Sailor who was inHelo Hanger & told him to take Karthik, Writer to ExecutiveOfficer in bridge. I told the whole episode to the Executive Officer& EXO took us to Commanding Officer and I apprised him of thesituation. After this I was asked to go to helo deck by EXO &Densure safe recovery of SC-560. I composed myself & went tothe helo deck for recovering SC-560. After this when at 1400hrs. Aviation Core Team was asked to muster in helo deck again,Karthik, Writer I did not come to helo deck once against. I askedPOA (AH) Gupta to announce for him & went to oversee theEground run of SC-560. Post ground run, I was told by POA(AH)Gupta that Karthik, Writer did not come for Aviation Core Teamagain. I do not think that such an offence should be accepted byanyone and the most strict possible action be taken against thesailor. It was with this faith in Indian Navy that I did not hit thesailor back and I hope that my faith in the system remains so.”

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3. On the basis of such complaint, the investigations were conductedby Lt. Cdr. Ishwar Chandra, Investigating Officer. The accused wasbrought before the Investigating Officer on 29[th] May, 2013 at 16:00 hrs.Ganesh Kumar Tiwari, Tara Chand Nehra and Vikash Sharma wereexamined as witnesses. The Investigating Officer referred the case toExecutive Officer. The Executive Officer conducted the proceedingson 1[st] June, 2013 wherein the abovenamed three witnesses were againexamined. Lt. Vivek Rajput was provided to the Sailor as a DefendingOfficer. They were not cross-examined by the Defending Officer. JenishGeorge, Lt. Cdr., acting as Executive Officer, referred the case to the G

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Commanding Officer on 1[st] June, 2013. It may be stated that the threewitnesses examined either before the Investigating Officer or beforethe Executive Officer have denied the incident as alleged. Lt. AbhishekVardhan was neither cited as a witness nor was examined either by theInvestigating Officer or by the Executive Officer.

4. The Commanding Officer found the charges to be proved ofan offence under Section 45(a) of the Navy Act, 1957[2] and recommendedthe detention for a period of 60 days and deprivation of First GoodConduct Badge. However, the Chief of Naval Staff on 19[th] July, 2013passed an order of dismissal of Sailor from Naval Service and deprivationof First Good Conduct Badge. It is the said order which was challengedby the Sailor by way of an Original Application before the Tribunal.

5. The Tribunal found that the Sailor was a member of AviationCore Team and was on actual duty. He did not report for duty whencalled upon to do so. The Sailor has sought to justify his action on theground 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 apast incident in August, 2012 was not made before the Sailor and noopportunity was given to him to cross-examine the witness. The Tribunalfound the use of force by the Sailor was not premeditated or deliberatebut was a consequence of provocation in the form of use of abusivelanguage by a superior officer. It was admitted by the Sailor that it wasa reflex action to the provocation and he immediately cooled down andowned up his mistake voluntarily. The officer has handled situation poorlyand the use of abusive language to subordinates is an unbecoming act ofan officer. It is also found that Lt. Abhishek Vardhan was found guiltyof an act of using profane/abusive language under Section 74 of the Actand was given a punishment of one-month loss of seniority. The Tribunalheld as under:

“16. It appears that the punishment given to the officer was lightin nature and, therefore, given the extenuating circumstances underwhich the whole episode occurred, the applicant’s plea formitigation ought to have been considered.

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

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6. After holding so, the punishment of dismissal was set aside bysubstituting it with a punishment of 75 days detention which detentionthe Sailor has since undergone.

7. The Sailor is not aggrieved against the order passed by theTribunal substituting punishment of deprivation of First Good ConductBBadge.

8. Learned counsel for the appellants vehemently argued that asper admission of the Sailor, he has hit his superior officer, therefore, he isguilty of an offence under Section 45(a) of the Act.

C9. We find that none of the three witnesses have deposed regardinghitting of superior officer by the Sailor. The superior officer Lt. AbhishekVardhan was not examined either before the Investigation Officer orthe Executive Officer nor he has been made available for cross-examination as per the proceedings produced before us. It has also comeon record that the superior officer has been found to be guilty for usingDabusive 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 againstany order, decision, finding or sentence passed by a court martial or anymatter connected therewith or incidental thereto. Sub-section (6) ofESection 15 of the AFT Act empowers the Tribunal to substitute the findingsof the court martial which includes the disciplinary proceedings underthe said Act (see Section 3 (f) of the AFT Act) and also to interfere ifthe sentence is found to be excessive, illegal or unjust. Section 15(6) ofthe AFT Act reads as under:

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

(a) substitute for the findings of the court martial, a finding ofguilty for any other offence for which the offender could havebeen lawfully found guilty by the court martial and pass a sentenceGafresh for the offence specified or involved in such findings underthe provisions of the Army Act, 1950 (46 of 1950) or the NavyAct, 1957 (62 of 1957) or the Air Force Act, 1950 (45 of 1950), asthe case may be; or (b) if sentence is found to be excessive, illegal or unjust, the Tribunalmay—

(i) remit the whole or any part of the sentence, with or withoutconditions;

(ii) mitigate the punishment awarded;

(iii) commute such punishment to any lesser punishment orpunishments mentioned in the Army Act, 1950 (46 of 1950), theNavy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of1950), as the case may be;

(c) enhance the sentence awarded by a court martial: Providedthat no such sentence shall be enhanced unless the appellant hasbeen given an opportunity of being heard; (d) release the appellant, if sentenced to imprisonment, on parolewith 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 highseas with the Sailor and the superior officer was aware of the extent ofmisconduct of the Sailor. None of the three witnesses have deposedregarding striking of the superior officer by the Sailor. The superiorofficer has not made himself available before the Investigating Officeror the Executive Officer.

12. Even though, the superior officer has used abusive languagebut the Sailor was not expected to retort and hit the superior officer.The conduct of the Sailor cannot be condoned in any manner.

13. In terms of provisions of the AFT Act, the Tribunal is competentto substitute the findings in the disciplinary proceedings leading to dismissalof the Sailor and to substitute and/or mitigate the punishment awarded.Therefore, the order passed by the Tribunal to set aside the dismissal iswithin the jurisdiction of the Tribunal finding that the punishment imposedis disproportionate to the misconduct. This Court in appellate jurisdictionunder Section 30 of the AFT Act would be slow in interfering with thesubstituted punishment, unless the order passed by the Tribunal is foundto be arbitrary, unreasonable or capricious. We find that the view taken A

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Aby the Tribunal is not patently illegal warranting interference in the presentappeal. The appeal is accordingly dismissed.

14. However, it is directed that the respondent shall be reinstatedwithin two months but shall not be entitled to any back wages from thedate of dismissal till reinstatement but he shall be entitled to computationBof all consequential benefits including pay fixation.

Kalpana K. Tripathy

Appeal dismissed.

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