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

2. On certain allegations against the, he was served witht containing ten charges which led to the court martials against him. Court Martial returned the finding ofon all charges which led to imposition of sentence of dismissal from the naval service as well as forfeiture of 24 calender months of seniority. After exhausting departmental remedies, thet challenged its conviction before the Armed Forces Tribunal (for short,. Finding certain reasons stated at the appropriate stage, the AFT decided to itself record the evidence on those charges by giving opportunities to both the parties. On the basis of evidence produced before the AFT, the AFT set aside the finding ofin respect of three charges (8th charges) on the ground of misjoinder of charges holding that it had no connection with charges 1 to 7. However, in respect of charges 1 to 7, the AFT maintained that thet could successfully prove these charges by cogent evidence. The AFT, thereafter, proceeded to consider the quantum of punishment and came to the conclusion that the punishment of ais disproportionate to the nature of charges. It also observed that when thet had been awarded the punishment ofsecond punishment, namely, forfeiture of seniority for 24 months did not make any sense. On these grounds, the AFT set aside the punishment ofdismissal from the serviceand held that interest of justice would be met if only the punishment offorfeiture of seniority of 24 monthsis inflicted upon the. It has, accordingly, directed thet in naval service without payment of any salary for the intervening period, i.e., the back wages. Both the parties feel aggrieved by this judgment. In the first instance, they moved application before the AFT seeking leave to appeal. The AFT declined this request stating that no question of law of public importance is involved. This is the reason for both the parties to approach this Court. These appeals were clubbed together. In the appeal, filed by thet while issuing notice, operation of the order of the AFT was also stayed. As a result, thet has not been allowed to join back the service. Both these appeals were admitted formally on July 01, 2016 and direction was given to expedite the hearing. It was also directed that interim order shall continue to operate. This is how the appeals have come up for final hearing in which both the sides were heard at length3. With the aforesaid introductory remarks, we now proceed to narrate the factual matrix of the case in some more detail. Thet was commissioned in Indian Navy on January 01, 1998 as Sub. Lieutenant. He was promoted to the rank of Commander on January 16, 2011. At that time, he was posted as the Executive Officer of INS Mahish at Port Blair in Andaman Island. His aforesaid posting was from May, 2010 to June, 2011. In June, 2011, he was transferred toS Viraat as Commander Operations vide orders dated June 02,2011. In obedience to the said orders, thet along with his wife and daughters left for Mumbai on June 15, 2011. Thet joined duties at the transferred place with 10 daysleave/joining time. He had undertaken the aforesaid journey from Port Blair to Mumbai by Indian Airlines. According to him, on reaching Mumbai he stayed with hisw Amita Gavankar at Goregaon, Mumbai as he was on leave till June 25, 2011. From June 16, 2011 to June 19, 2011, he visited different places in Maharashtra and even went to Goa with his family. On June 25, 2011, he shifted to the official accommodation, i.e., Integrated Mess Sports Complex Cottage No. 1, along with his wife and daughter, which accommodation was allotted to him at that time. On June 26, 2011, he reported to INS Taragiri, the waiting ship for INS Viraat, as INS Viraat was berth at Kochi at that time. On June 29, 2011, he reported for duty at INS Viraat at Kochi4. It may be mentioned, at this stage, that according to him he had earlier purchased two mobile sim cards for mobile handsets when he was posted at INS Mahish, Port Blair. One from BSNL with. 9476045470 for himself and 2nd from Vodafone South Limited with. 9564784782 for his wife. Again, according to him, on 19th June, 2011 when he had come to Mumbai, he purchased two sim cards from Idea Cellular Pvt. Ltd., one having 8108770020 for himself and other. 8108770030 which was meant for his wife.5. On July 01, 2011 at about 22.45 hours, he was woken up from his sleep and escorted by Commander Manoj Jha (PW-20) to Captain Hari Kumar, the Commanding Officer of INS Viraat. Captain Hari Kumar questioned him about mobile. 9564784782, as sexually explicit calls were received from the same number by wives of some naval officers. He explained that this sim card remained in possession of his wife throughout who had used the same. Search was made but no such sim card was found with the. 8108770020 was confiscated and detailed for 18 hours whereafter, on the next day, it was returned back to him. Thereafter, One Man Inquiry (for short,) was ordered on January 05, 2012. This OMI was conducted with effect from January 11, 2012 and concluded on January 31, 2012. Thereupon, thet was issued a charge sheet dated September 05, 2012 for trial by Court Martial. Ten charges were framed against the. Seven out of which wereSection 77(2) of the Navy Act, 1957 (hereinafter referred to as the the Act) read with Section 509 of the Indian Penal Code) and three charges were framed against ther Sections 58, 74 and 48(c) of the Navy Act. These charges pertained to the alleged obscene calls purportedly made by thet to the three ladies.6. It is on the findings of the OMI, Headquarters Western Naval Command directed the Commanding Officer, INS Kunjali where thet was attached for the investigation, to investigate and record Summary of Evidence (SoE) of prosecution witnesses.7. On September 05, 2012, the Commanding Officer, INS Kunjali read the charges mentioned in the charge sheet and thet was given a chance to file reply thereto, which he did. Thereafter, decision was taken that thet be brought to trial of the Court Martial. In the Court Martial, the prosecution examined 33 witnesses and produced 40 documents which were exhibited. The court called for five witnesses as co-witnesses and exhibited 19 documents as(C-1 to C-19). After the conclusion of the trial, finding ofwas returned in respect of all the 10 charges and the punishment was awarded as mentioned above. Thereafter, thet filed O.A. before the Tribunal.8. The facts which have been noted upto now would demonstrate that main allegation against thet was that he had made explicit sexual calls to three ladies, namely, Mrs. Reena Chandel (PW-9), Mrs. Aditi Barathwal (PW-12) and Mrs. Pallavi Tiwari (PW-18), who are wives of three officers of Navy. These calls were made from Vodafone Cell Phone No. 9564784782. Further, these calls were made on their landline numbers which were provided by NOFRA Exchange installed and operated by NOFRA (Naval Officers Residential Area). Each of the officers residing in the area is provided with an extension number from the Exchange of NOFRA. They were not knowing the person making the calls. They complained to their husbands, who, in turn, reported to their senior officers and finally, all the sexually explicit calls made to these three ladies were traced to Mobile No. 9564784782. These calls were made to Reena Chandel on June 21, 2011 in the night, on June 22, 2011 in the morning, on June 23, 2011 in the afternoon and the last call was made to her on June 30, 2011 in the morning at 06:57. Her extension number was 222217. Thirteen calls were made to Mrs. Pallavi (PW-18) during the night between June 31, 2011 and July 01, 2011. PW-12 Aditi received similar calls twice in the night on June 30, 2011. According to the prosecution, all the calls were traced through the record of NOFRA Exchange to Mobile No. 9564784782 registered in the name of the accused. Initially, the Naval Authorities or the officers operating NOFRA Exchange had no knowledge as to whom the said mobile belonged. Therefore, it was difficult for them to trace the person making the calls. They approached the Deputy Commissioner of Police, Zone I, Mumbai, who made inquiries from several service providers about the said mobile number. Finally, it was revealed that the said mobile was registered in the name of thet with Vodafone South Limited, having office in Kolkata.10. Insofar as first ingredient is concerned, it has been admitted by thet himself that he was having Cell Phone with Vodafone Connection and the sim card was provided with phone number 9564784782. The defence of the, however, was that on the relevant dates, thet was not having this number and, in fact, the sim card had been lost and a report regarding the loss of sim card was made to the Police. Details of his explanation, in this behalf, are that when thet was posted at Port Blair in Andaman and Nicobar Islands, he had purchased two mobile sim cards for mobile handsets: one from BSNL with No. 9476045470 for himself and the second from Vodafone South Limited with No. 9564784782 for his wife, Mrs. Pallavi Desai. In June, 2011, he was transferred and posted to INS Viraat as Commander Operations vide order dated June 02, 2011. Pursuant to the said transfer orders, after reaching Mumbai, he purchased two Idea sim cards from Idea Cellular Private Limited on June 19, 2011, having number 8108770020 for himself and 8108770030 for his wife. He claimed that he destroyed his mobile sim card No. 9476045470 and replaced the same with new mobile sim No. 8108770020. He also claimed to have advised his wife to replace her old sim No. 9564784782 by the new mobile sim No. 8108770030. According to him, when officers visited his cabin while he was at INS, Viraat at Kochi on July 01, 2011 and inquired him about Mobile No. 9564784782, he explained that the said number was used throughout by his wife. Thereafter, when he called his wife, he was informed that said sim card was missing from her purse. Then, he advised his wife to lodge a report with the Police and inform the service provider which she did on July 04, 2011. It is also his case that when the officers searched his cabin, they could not find that sim card with thet which shows that the said sim card was not with thet and, therefore, he could not have used the sim to make the purported obscene calls29. 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 thet 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.

Reasoning:
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.