Case: Union of India (UOI) and Ors Vs. Ravindra V. Desai

as NULL and which could not materialise are still maintained because the company was to earn revenue. 23. We, thus, do not agree with the submission of the learned Counsel for the Respondent that there were discrepancies in the CDR produced by Vodafone before the AFT. In fact, the witness from Vodafone was able to clear all the doubts which were expressed by the Respondent. 24. In view of this factual position emerging on record, judgment in the case of Shafhi Mohammad. v. State of Himachal Pradesh (2018) 2 SCC 801 is of no avail to the Respondent as it is not applicable to the facts and circumstances of the present case. 25. At the end, insofar as appeal of the Respondent is concerned, we would like to comment that once the charges are proved in the court martial conducted by the authorities and the AFT also has given its imprimatur to the same by putting its stamp of approval, that too, after recording the evidence, with detailed analyses thereof, it is not the function of this Court to revisit the entire evidence to find out as to whether the finding of the authorities below are correct or not. No doubt, the instant proceedings are in the form of appeal preferred Under Sections 30 and 31 of the Act and, therefore, the Court is examining the matter as an appellate authority. However, the scope of such appeal is limited as can be seen from the language of these provisions: 30. Appeal to Supreme Court.--(1) Subject to the provisions of Section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed Under Section 19): Provided that such appeal is preferred within a period of ninety days of the said decision or order: Provided further that there shall be no appeal against an interlocutory order of the Tribunal. (2) An appeal shall lie to the Supreme Court as of right from any order or decision of the Tribunal in the exercise of its jurisdiction to punish for contempt: Provided that an appeal under this Sub-section shall be filed in the Supreme Court within sixty days from the date of the order appealed against. (3) Pending any appeal Under Sub-section (2), the Supreme Court may order that-- (a) the execution of the punishment or the order appealed against be suspended; or (b) if the Appellant is in confinement, he be released on bail: Provided that where an Appellant satisfies the Tribunal that he intends to prefer an appeal, the Tribunal may also exercise any of the powers conferred under Clause (a) or Clause (b), as the case may be. 31. Leave to appeal.--(1) An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court. (2) An application to the Tribunal for leave to appeal to the Supreme Court shall be made within a period of thirty days beginning with the date of the decision of the Tribunal and an application to the Supreme Court for leave shall be made within a period of thirty days beginning with the date on which the application for leave is refused by the Tribunal. (3) An appeal shall be treated as pending until any application for leave to appeal is disposed of and if leave to appeal is granted, until the appeal is disposed of; and an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it might have been made, but it is not made within that time. 26. A combined reading of the aforesaid provisions clearly brings out that appeal to this Court has to be on a point of law on general public importance. 27. In any case, this Court has examined the records having regard to the submissions made by Dr. Sharma on behalf of the Respondents. However, no case is made out that the conclusion arrived at by the Tribunal was utterly perverse which no reasonable person could have arrived at. We have not found any such infirmity at all. 28. Resultantly, we do not find any merit in the appeal preferred by the Officer. 29. We now advert to the appeal preferred by the Union of India. As pointed out above, the limited scope of this appeal is to be on the quantum of sentence given by the AFT. After setting aside the sentence of dismissal from service, the Tribunal has substituted the same by the sentence of loss of seniority for 24 months. Further, while directing reinstatement in service, the Tribunal has also ordered that the Respondent herein shall not be entitled to pay and allowances for the period from the date when he was dismissed from the service till the date of reinstatement, if it is within three months from the date of order of the Tribunal. 30. The Respondent has not reinstated in service as this Court had, vide orders dated August 31, 2015, stayed the operation of the said order/direction. Thus, the Respondent is still out of service and, therefore, lost his salary from the date of the order of the Tribunal which was passed on March 04, 2015. The Respondent was dismissed from service vide orders dated January 26, 2013. For all these reasons, we are not inclined to interfere with the order of the Tribunal on sentence inasmuch the effect is that not only seniority of the Respondent is forfeited by 24 months, he is also deprived of his salary for more than five years. Such a sentence, according to us, would meet the ends of justice and in these circumstances discretion exercised by the Tribunal does not need any interference.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Apart from the aforesaid contradictory versions given by thet himself, one particular piece of evidence produced by thes clinches the issue. It is noticed by the AFT that as per report dated July 04, 2011 (Ex. P-29) lodged by the wife of thet on July 04, 2011, the sim card was lost sometime between 6 pm on June 20, 2011 to June 25, 2011. However, even after June 20, 2011, calls were made from this mobile number to Cdr. Arjun Kumar (PW-33) and Cdr. Arjun Kumar deposed that he has received these calls from the. This aspect is discussed by the AFT in the following manner:If we go by this report lodged by the wife of the accused, it appears that the said SIM card was lost in transit sometimes from 6.00 p.m. of 20th to 25th June, 2011. Now, according to the accused, from 19th June, 2011, the SIM card of his wife was replaced by the new card and sometimes between the evening of 20th June, 2011 till 25th June, 2011, the old SIM card of 9564784782 was lost. If it is so, this number could not have been used for making any call at least from 21st June, 2011 onwards. On perusal of the CDR, Exhibit T-2, it appears that on 20th June, 2011 at 13.29 hours, a call was made from this mobile number to mobile No. 9619796549, which was the mobile number of Cdr. Arjun Kumar. The record also shows that on 20th June, 2011 itself at 18.31 hours, again, there was a call from the said mobile to the above referred mobile number of Cdr. Arjun Kumar. There was also call from the said mobile of theto the mobile of Cdr. Arjun Kumar on 23rd June, 2011 at 11.46 hours. On 25th June, 2011 at 09.50 hours and 15.06 hours, again, there were two calls from the said mobile No. 9564784782 to mobile No. 9619796549 of Cdr. Arjun Kumar. Again, there were three calls from the said mobile number to the mobile of Cdr. Arjun Kumar on 28th June, 2011 between 17.15 to 17.55 hours. PW-33 Cdr. Arjun Kumar has deposed on oath that he had received these calls and that thewas in contact with him on all these days from his mobile. It shows that the said mobile was being used by theeven after 25th June, 2011. Cdr. Arjun Kumar had no reason to falsely depose that he had received the calls from theDr. Sharma had made extensive argument in endeavour to dislodge the creditworthiness of Cdr. Arjun Kumar. However, in our view, his deposition remains unshaken and credible13. Another interesting evidence which have surfaced and which nails thet on this aspect is that as per thet himself, he had proceeded to Kochi on June 29, 2011 to join the duty on INS Viraat. For this purpose, he had left Mumbai on June 29, 2011 by Air India AI-681 flight which left Mumbai at 5:30 pm and arrived Kochi at 7:20 pm on June 29, 2011. One of the calls was made from this phone at 05:01 pm from Mumbai area. Thereafter, another call was made from this very phone on the same day at 08:01 pm from Kerala area. At 05:01 pm, when the call was made from Mumbai, thet was in Mumbai and his flight left Mumbai at 05:30 pm. He had reached Kochi at 07:20 pm and another call is made at 08:01 pm. This also shows that the Cell Phone with the aforesaid number was with the15. Coming to the second ingredient, in order to prove that sexually explicit calls were received by the wives of the three officers, the prosecution produced these ladies as PW-9, PW-12 and PW-18. They have explained in detail having received these calls and the offending language. To show that the calls were received from the aforesaid phone which belongs to the, the prosecution had produced Call Data Record (CDR) of NOFRA land line numbers. Cdr. Anurag Saxena, Officer-in-Charge of NOFRA who appeared as PW-3 probe the said CDRs of NOFRA Telephone Exchange showing that all the calls had originated from Mobile No. 9564784782. He also produced Exh. P-10, which is the certificate issued by him to the effect that the land line numbers of the three female victims were provided by the NOFRA Telephone Exchange. He specifically deposed that true and correct call records have been produced and there is no reason to disbelieve that.It is also pertinent to note that apart from raising the dispute that NOFRA record shows that it was Idea Cell number, it is not disputed that phone number in question as recorded in NOFRA system is the same which belongs to the. It is only the description of the phone number that had been erroneously displayed as Idea Cell which aspect has been satisfactorily explained by the. It would be of no significance, inasmuch as same Cell number could not belong to both the Idea as well as Vodafone18. We are in agreement with the aforesaid findings. Learneds rightly argued that non-production of the certificateSection 65-B of the Indian Evidence Act, 1872 on an earlier occasion was a curable defect which stood cured. Law in this behalf has been settled by the judgment of this Court in Sonu alias Amar v. State of Haryana19. We may point out, at this stage, that when the AFT found the technical defect in Exhibit T-2, it was in support of Section 65-B of the Indian Evidence Act. The AFT had summoned the record in exercise of its power contained in Section 17 of the Actnecessary to pinpoint the alleged discrepancies which according to Dr. Sharma had occurred in these documents as we find that these are suitably take care of by the Tribunal itself and the above discussion as well as the discussion contained hereinafter would reflect the nature of so-called discrepancies and the answer thereto by the AFT23. We, thus, do not agree with the submission of the learned24. In view of this factual position emerging on record, judgment in the case of Shafhi Mohammad.is of no avail to thet as it is not applicable to the facts and circumstances of the present case.25. At the end, insofar as appeal of thet is concerned, we would like to comment that once the charges are proved in the court martial conducted by the authorities and the AFT also has given its imprimatur to the same by putting its stamp of approval, that too, after recording the evidence, with detailed analyses thereof, it is not the function of this Court to revisit the entire evidence to find out as to whether the finding of the authorities below are correct or not. No doubt, the instant proceedings are in the form of appeal preferredSections 30 and 31 of the Act and, therefore, the Court is examining the matter as an appellate authority. However, the scope of such appeal is limited27. In any case, this Court has examined the records having regard to the submissions made by Dr. Sharma on behalf of the. However, no case is made out that the conclusion arrived at by the Tribunal was utterly perverse which no reasonable person could have arrived at. We have not found any such infirmity at all.28. Resultantly, we do not find any merit in the appeal preferred by the Officert has not reinstated in service as thishad, vide orders dated August 31, 2015, stayed the operation of the said order/direction. Thus, thet is still out of service and, therefore, lost his salary from the date of the order of the Tribunal which was passed on March 04, 2015. Thet was dismissed from service vide orders dated January 26, 2013. For all these reasons, we are not inclined to interfere with the order of the Tribunal on sentence inasmuch the effect is that not only seniority of thet is forfeited by 24 months, he is also deprived of his salary for more than five years. Such a sentence, according to us, would meet the ends of justice and in these circumstances discretion exercised by the Tribunal does not need any interference.