Union Of India vs Cdr. Ravindra V. Desai

NIDHI AHUJA 2. Date: 2018.04.18 17:39:03 IST Reason: On certain allegations against the respondent, he was served with charge-sheet containing ten charges which led to the court martial Criminal Appeal No. 579 of 2016 a/w connected matter Page 1 of 29 proceedings against him. Court Martial returned the finding of ‘guilty’ on 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, the respondent challenged its conviction before the Armed Forces Tribunal (for short, ‘AFT’). 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 of ‘guilty’ in respect of three charges (8th, 9th and 10th 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 the appellant 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 a ‘dismissal from service’ is disproportionate to the nature of charges. It also observed that when the respondent had been awarded the punishment of ‘dismissal from service’, second punishment, namely, forfeiture of seniority for 24 months did not make any sense. On these grounds, the AFT set aside the punishment of ‘dismissal from the service’ and held that interest of justice would be met if only the punishment of ‘forfeiture of seniority of 24 months’ is inflicted upon the Criminal Appeal No. 579 of 2016 a/w connected matter Page 2 of 29 respondent. It has, accordingly, directed the appellants to reinstate the respondent 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 the respondent while issuing notice, operation of the order of the AFT was also stayed. As a result, the respondent 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 length.

3. With the aforesaid introductory remarks, we now proceed to narrate the factual matrix of the case in some more detail. The respondent 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 to Criminal Appeal No. 579 of 2016 a/w connected matter Page 3 of 29 INS Viraat as Commander Operations vide orders dated June 02, 2011. In obedience to the said orders, the respondent along with his wife and daughters left for Mumbai on June 15, 2011. The respondent joined duties at the transferred place with 10 days’ leave/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 his sister-in-law 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 Kochi.

4. It may be mentioned, at this stage, that according to him he had earlier purchased two mobile sim cards for mobile hand sets when he was posted at INS Mahish, Port Blair. One from BSNL with no. 9476045470 for himself and 2nd from Vodafone South Limited with no. 9564784782 for his wife. Again, according to him, on 19 th June, 2011 when he had come to Mumbai, he purchased two sim cards from Idea Criminal Appeal No. 579 of 2016 a/w connected matter Page 4 of 29 Cellular Pvt. Ltd., one having 8108770020 for himself and other no.

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 no. 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 through out who had used the same. Search was made but no such sim card was found with the respondent. His mobile telephone no. 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, ‘OMI’) was ordered on January 05, 2012. This OMI was conducted with effect from January 11, 2012 and concluded on January 31, 2012. Thereupon, the respondent was issued a charge sheet dated September 05, 2012 for trial by Court Martial. Ten charges were framed against the respondent. Seven out of which were under Section 77(2) of the Navy Act, 1957 (hereinafter referred to as the ‘the Act”) read with Section 509 of the Indian Penal Code (‘IPC’) and three charges were framed against the respondent under Sections 58, 74 and 48(c) of the Navy Act. These charges pertained to the alleged obscene calls purportedly made by the Criminal Appeal No. 579 of 2016 a/w connected matter Page 5 of 29 respondent to the three ladies.

7. On September 05, 2012, the Commanding Officer, INS Kunjali read the charges mentioned in the charge sheet and the respondent was given a chance to file reply thereto, which he did. Thereafter, decision was taken that the respondent 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 ‘exhibits’ (C-1 to C-19). After the conclusion of the trial, finding of ‘guilty’ was returned in respect of all the 10 charges and the punishment was awarded as mentioned above. Thereafter, the appellant filed O.A. before the Tribunal.

8. The facts which have been noted upto now would demonstrate that main allegation against the respondent 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 Criminal Appeal No. 579 of 2016 a/w connected matter Page 6 of 29 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 Criminal Appeal No. 579 of 2016 a/w connected matter Page 7 of 29 the said mobile was registered in the name of the respondent with Vodafone South Limited, having office in Kolkata.

9. In order to prove the aforesaid charge, the appellants were required to establish the aforesaid ingredients:

11. It is clear from the above that the respondent has admitted the fact that he had purchased sim card from Vodafone with Mobile No. 9564784782. However, according to him, this sim card was not with Criminal Appeal No. 579 of 2016 a/w connected matter Page 9 of 29 him and was being used by his wife. Moreover, after he had purchased another sim card on reaching Mumbai, this sim card was not used and was ultimately found missing even from his wife custody. The aforesaid explanation of the respondent has not been accepted either by the GCM or the AFT, and rightly so.

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 28 th 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 the accused was in contact with him on all these days from his mobile. It shows that the said mobile was being used by the accused even after 25th June, 2011. Cdr. Arjun Kumar had no reason to falsely depose that he had received the calls from the accused on these days.” Dr. Sharma had made extensive argument in endeavour to dislodge the creditworthiness of Cdr. Arjun Kumar. However, in our view, his deposition remains unshaken and credible.

13. Another interesting evidence which have surfaced and which nails the respondent on this aspect is that as per the respondent himself, he had proceeded to Kochi on June 29, 2011 to join the duty on INS Criminal Appeal No. 579 of 2016 a/w connected matter Page 11 of 29 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, the respondent 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 the respondent only. The AFT has lucidly discussed this aspect in the following manner:

16. We now advert to the third ingredient. From the evidence discussed above, it stands established that calls were made from Cell Phone No. 9564784782. However, some controversy has arisen in respect of CDRs produced from the service provider, namely, Vodafone South Criminal Appeal No. 579 of 2016 a/w connected matter Page 13 of 29 Mumbai and the respondent is trying to take advantage thereof. In this behalf, it may be mentioned that in the NOFRA records, though Cell Phone No. 9564784782 is rightly mentioned, the said phone number is displayed as belonging to Idea network. On that basis, it was argued that NOFRA CDRs could not have been relied upon. However, it needs to be recorded that the appellants had given satisfactory explanations for the aforesaid mistake. It was explained before the AFT that the mobile number of the respondent had been erroneously shown as an Idea Cell Number due to feeding of Code “95” as that of Idea Cell in the system of NOFRA. This was also clarified by Mr. Fernandes who appeared as CW-2. He was the Programmer of the NOFRA system. It is significant to point out that there is no cross-examination by the respondent on this point. The discussion of the AFT, on this aspect, runs as follows:

17. One aspect remains to be discussed. In the Court Martial proceedings, officer from Vodafone South Mumbai was produced who had brought the CDR of the Cell Phone in question to prove that calls were made from this phone. The said officer was examined as PW- 13 and CDR record produced by him was marked as Exh. P-27. However, before the AFT, the respondent had raised the objection that Exh. P-27 did not have any evidentiary value as Certificate under Section 65-B of the Indian Evidence Act, 1872 produced by PW-13 was in relation to customer agreement and not for CDR and that PW- 13 was Nodal Officer for Vodafone Mumbai and not for Vodafone South. In view of the aforesaid technical objection, the appellants Criminal Appeal No. 579 of 2016 a/w connected matter Page 15 of 29 filed an application under Section 17 of the Armed Forces Tribunal Act, 2007 for summoning Nodal Officer, Mumbai Sector, Vodafone along with a direction to produce the CDR of the mobile number of the respondent. Order dated November 20, 2014 was passed on this application whereby prayer contained in the application was allowed and summons issued to the Nodal Officer, Mumbai Sector, Vodafone for production of CDR of the mobile number belonging to the respondent along with the Certificate under Section 65-B of the Indian Evidence Act, 1872. This order was not challenged by the respondent. In response to the summons issued by the AFT on November 10, 2014, Vodafone South Limited, Kolkata had submitted the CDR as well as the Customer Agreement of the respondent along with the certificate under Section 65-B which came to be exhibited as Exhibit T-3. However, the AFT was not satisfied with the format in which Exhibit T-3 had been made available by Vodafone South Limited. In its order dated February 26, 2015, the AFT categorically observed that the CDR (Exhibit T-3) made available to the AFT was identical to the previous CDR (Exhibit P-27) in respect of the serial number of calls, the A Number (i.e. the number from which the calls had originated) and the B Number (the number to which the call had been made), the year, time and duration of the call. However, certain details such as the date, time, month etc. were missing from the said Criminal Appeal No. 579 of 2016 a/w connected matter Page 16 of 29 CDR (Exhibit T-3). Further, Section 65-B certificate did not bear the designation of the person who had signed the certificate. As such, vide order dated February 26, 2015, the AFT directed the Nodal Officer, Vodafone South to produce before the Tribunal the complete CDR of the said Mobile phone number for the period from June 01, 2011 to July 04, 2011 along with the Customer Agreement and the Certificate under Section 65-B before the AFT. The concerned official of Vodafone had also been directed to be present before the Tribunal on March 03, 2015. In compliance Mr. Subir Kumar Deb from Vodafone appeared as TW-1 before the AFT and explained that it is only due to improper alignment etc. that certain information had been omitted from being generated in the CDR Exhibit T-3. He also explained that sometimes because of the failure of the linking system in the server, some information may not come out. However, the AFT decided not to take into consideration the CDR Exhibit T-3. In terms of the order dated February 26, 2015 of the AFT, Mr. Sudhir Kumar Deb, official of Vodafone India, appeared before the AFT as TW-1. The AFT has recorded the testimony of TW-1 in relation to the manner in which the CDRs are stored by Vodafone in the Centralized Server located at Pune. TW-1 also produced before the Tribunal – the CDR of the Mobile number of the respondent (Exhibit T-2) along with the Certificate under Section 65-B of the Indian Evidence Act, Criminal Appeal No. 579 of 2016 a/w connected matter Page 17 of 29 1872 (Exhibit T-1). CDR Exhibit T-2 along with the certificate under Section 65-B being Exhibit T-1 duly proved by TW-1. In his cross- examination, TW-1 had inter alia stated that whereas CDR Exhibit T-3 (submitted to the AFT in December, 2014) had been generated on November 01, 2011, Exhibit T-2 had been generated on March 02, 2015 and had been signed and certified by TW-1. The alleged discrepancy in CDR Exhibit T-2 sought to be pointed out during his cross-examination was also duly explained by TW-1. He had explained that after 2011, as per guidelines issued by DoT, Government of India, the format of the CDR had been changed. After considering the testimony of TW-1, AFT has observed that Exhibit T- 2, submitted by TW-1, is reliable and is properly stored and generated in the Centralized Server of Vodafone, as under:

“17. Powers of the Tribunal on appeal under section 15.— The Tribunal, while hearing and deciding an appeal under Section 15, shall have the power—

24. In view of this factual position emerging on record, judgment in the case of Shafhi Mohammad. V. State of Himachal Pradesh 3 is of no avail to the respondent as it is not applicable to the facts and circumstances of the present case.

(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.”

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 Criminal Appeal No. 579 of 2016 a/w connected matter Page 28 of 29 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.

31. As a consequence, both the appeals are dismissed. The respondent herein shall be reinstated in service within 2 weeks from the date of passing of this order and he shall not be entitled to any salary for the intervening period, i.e., from the date of dismissal till the date of reinstatement.

There shall be no orders as to costs.

APRIL 18, 2018.

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