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)

J U D G M E N T

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 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 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

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 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

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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  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  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,  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.   

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, 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  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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