UNION OF INDIA & ORS.versusR. KARTHIK

                          [2020] 1 S.C.R. 105                            105


                     UNION OF INDIA & ORS.                               A
                                  v.
                           R. KARTHIK
                 (Criminal Appeal No. 831 of 2015)
                        JANUARY 21, 2020                                 B
     [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
      Service Law:
       Dismissal from service – Of a sailor in Naval forces – Pursuant
to proceedings against the sailor – Upon complaint from superior         C
officer alleging that the sailor used physical force against him –
Application before Armed Forces Tribunal – Tribunal substituted
the punishment of dismissal from service to the punishment of his
detention for 75 days – Appeal by State to Supreme Court – Held:
In the facts of the case, the order of Tribunal setting aside the
                                                                         D
dismissal order on the ground that the punishment was
disproportionate to the misconduct, is within the jurisdiction of the
Tribunal – Supreme Court in exercise of appellate jurisdiction would
be slow in interfering with the substituted punishment, unless the
order of Tribunal is found to be arbitrary, unreasonable or
capricious – The view taken by the Tribunal in the present case is       E
patently not illegal – Navy Act, 1957 – s. 45(a) – Armed Forces
Tribunal Act, 2007 – ss. 15(6) and 30.
      Dismissing the appeal, the Court
      HELD : 1.1 In terms of Section 15 of the Armed Forces
Tribunal Act, 2007, the Tribunal exercises jurisdiction, powers          F
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 Act
empowers the Tribunal to substitute the findings of the court
martial which includes the disciplinary proceedings under the said       G
Act (Section 3 (f) of the AFT Act) and also to interfere if the
sentence is found to be excessive, illegal or unjust. [Para 10]
[110-D-F]


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                                 105
106            SUPREME COURT REPORTS                        [2020] 1 S.C.R.


A           1.2 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. It has also come
B
      on record that the superior officer has been found to be guilty for
      using abusive language against the Sailor. Even though, the
      superior officer has used abusive language but the Sailor was not
      expected to retort and hit the superior officer. The conduct of
      the Sailor cannot be condoned in any manner. [Paras 9, 11 and
C     12] [110-D; 111-E-F]
            1.3 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 Act would
D     be slow in interfering with the substituted punishment, unless
      the order passed by the Tribunal is found to be arbitrary,
      unreasonable or capricious. The view taken by the Tribunal is
      not patently illegal warranting interference in the present appeal.
      [Para 13] [111-G-H; 112-A]
E           2. 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. [Para 14]

F           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 831 of 2015.
            From the Judgment and Order dated 06.02.2015 of the Armed
      Forces Tribunal, Regional Bench, Chennai in O.A. (Appeal) No. 45 of
      2014 and order dated 20.03.2015 in M.A. No. 53 of 2015 in O.A. (Appeal)
G     No. 45 of 2014.
           Anmol Chandan, Deepak Goel, Arvind Kumar Sharma, B.V.
      Balram Das, Mukesh Kumar Maroria, Advs. for the Appellants.
            Ashok Panigrahi, Adv. (A.C.),

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                  UNION OF INDIA & ORS. v. R. KARTHIK                             107


     Anmol Tayal, S. Vinay Ratnakar, Nabab Singh, Advs. for the                   A
Respondent.
           The Judgment of the Court was delivered by
           HEMANT GUPTA, J.
       1. The orders passed by the Armed Forces Tribunal, Regional                B
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.                                                      C

      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                D
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     E
           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               F
           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           G
           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
1
    for short, ‘Sailor’                                                           H
108            SUPREME COURT REPORTS                           [2020] 1 S.C.R.


A           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,
B
            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
C           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 &
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            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
E           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.”
F
             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 29th 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
G     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
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                 UNION OF INDIA & ORS. v. R. KARTHIK                             109
                        [HEMANT GUPTA, J.]

Commanding Officer on 1st June, 2013. It may be stated that the three            A
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               B
an offence under Section 45(a) of the Navy Act, 19572 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.             C

       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           D
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 by a superior officer. It was admitted by the Sailor that it was        E
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          F
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.                              G
          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.”
2
    for short, ‘Act’                                                             H
110                SUPREME COURT REPORTS                         [2020] 1 S.C.R.


A            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
B     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.

C            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
D     abusive language against the Sailor.
             10. In terms of Section 15 of the Armed Forces Tribunal Act,
      20073, 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
E     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:
F              “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
G              afresh for the offence specified or involved in such findings under
               the 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

      3
H         for short, ‘AFT Act’
             UNION OF INDIA & ORS. v. R. KARTHIK                                   111
                    [HEMANT GUPTA, J.]

       (b) if sentence is found to be excessive, illegal or unjust, the Tribunal   A
       may—
       (i) remit the whole or any part of the sentence, with or without
       conditions;
       (ii) mitigate the punishment awarded;
                                                                                   B
       (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               C
       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;                                     D
       (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
                                                                                   E
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.
The conduct of the Sailor cannot be condoned in any manner.                        F

       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        G
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
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112             SUPREME COURT REPORTS                            [2020] 1 S.C.R.


A     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
B     of all consequential benefits including pay fixation.


      Kalpana K. Tripathy                                           Appeal dismissed.



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