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ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI

O.A.No.26 of 2014

Friday, the 21 st day of August 2015

THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH (MEMBER - JUDICIAL) AND THE HONOURABLE LT GEN K. SURENDRA NATH (MEMBER – ADMINISTRATIVE)

Radhe Shyam Singh,S/o Shri Shivajee Singh Ex LME, S.No.1731210F Village-Englishpur, Post-Dhoba Bazar, District-Bhojpur (ARA) State-Bihar, Pin-802 156. ... Applicant

By Legal Practitioner: Mrs. Tonifia Miranda

vs.

1. Union of India, rep. by its Secretary Ministry of Defence, New Delhi-110 011.

2. Chief of Naval Staff Naval HQ, Sena Bhavan New Delhi-11.

3. The Flag Officer Commanding-in-Chief Headquarters, Visakhapatnam-530 014 (AP).

4. The Commanding Officer Indian Navalship Circars Naval Base, Visakhapatnam-14.

5. The Regulating Officer, INS Circars Naval Base, Vishakapatinam-14. …Respondents

By Mr. E. Arasu, CGSC

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ORDER

(Order of the Tribunal made by Hon’ble Justice V. Periya Karuppiah, Member (Judicial)

1. The applicant has filed this application for setting aside the 2nd respondent’s letter No.DL/1477/187 dated 19.08.2013 in rejecting the

Review Petition filed under sections 162 and 163 of the Navy Act 1057 as arbitrary, illegal and non est in the eye of law and violative of the principles of natural justice and consequently to set aside the

Punishment Warrant dated 22.11.2011 and thereby to direct the respondents to re-instate the applicant with all monetary benefits such as pay and allowances, seniority and other emoluments from the date of dismissal to the date of re-entry.

2. The factual matrix of the applicant’s case in brief would be as follows:

The applicant joined the on 05.05.1989 with INS

Circars, Naval Base, Visakhapatnam. The applicant submits that he specialized in Submarine Mechanical Engineer Sailor and took active part in “Operation Pawan” in Srilanka against LTTE and “Operation

Tasha” (i.e) patrolling the Tamil Nadu Coast. During his tenure of service, the applicant had an unblemished record. On 30.06.1999, he was called to NPM (Naval Provost Marshal)/CAPO office in the Naval

Base and was put in Naval Lock Up/Cell (Naval Close Custody) without 3

informing any reason for the arrest. The family members of the applicant were also not informed. He was in the lock-up from

30.06.1999 to 16.07.1999 . He was forced to sign in some documents

without showing the contents during the investigation by the

Commanding Officer, INS Circars for the alleged offence of issuing

false seniority certificate of accommodation office. The involvement of

the applicant was not possible because he was associated with

accommodation office and without permission he cannot leave the

Submarine Squadron Base. The applicant and other 17 sailors

reported for investigation and were told that the probable duration of

the investigation would be two weeks. The Regulating Officer

recorded the statement of all the sailors. Out of them, 13 sailors were

sent back to their parent Unit for further action by their respective

Commanding Officers. The Commanding Officer of the applicant

recommended severe punishment to the applicant and 3 others,

subject to the approval of the superior officer and subsequently the CO

was transferred. The Superior Officer refused to award punishment

and asked the Commanding Officer to send back the applicant to his

Unit since the probable duration of the investigation was only two

weeks. But the applicant was not transferred to his parent Unit.

Thereafter, a new Commanding Officer Mr. K.K. Panda commenced

the re-investigation in November 1999. Later, on 03.03.2000, the 4

applicant was produced before the Commanding Officer, INS Circars and was kept in open custody. Against the same, the applicant made an appeal under Regulation 235 of the Navy Regulations Part II 1965 read with Section 23 of the Navy Act to his Superior Officer highlighting the irregularities committed on the applicant by the investigating authorities. But the officer concerned who was to recommend the appeal to the higher officer, rejected it on mere perusal and it is without any jurisdiction. Out of above said sailors, 13 sailors were given lesser punishment like warning, 3 sailors were punished with 90 days RI, one (1) sailor, viz., (Tel) R.Singh was awarded stoppage of liberty for 30 days and was retained in service and yet another sailor was given warning only. The applicant submits that this reveals the arbitrariness of the Commanding Officer who handled the trial. The applicant had to undergo 90 days RI at the

Visakhapatnam Central Prison. Thereafter, the applicant moved the

High Court of Andhra Pradesh by filing a Writ Petition which was transferred to the AFT Regional Bench at Chennai and was assigned the number as T.A.No.171 of 2010 and the same was allowed by this

Regional Bench by an order dated 22.10.2010 with a direction to conduct a “de novo” trial by giving an opportunity to cross-examine

the witnesses who have deposed against the applicant for the offence

u/s 60 (c) of the Navy Act. But the respondents preferred an appeal 5

before the Hon’ble Apex Court against the said order passed in

T.A.No.171 of 2010 and it was dismissed. Thereafter, the applicant received a letter No.203/17312F, dated 11.07.2011 from Commanding

Officer, INS Circars to appear for retrial on 01.08.2011. The applicant submits that he was not taken on the strength of the Naval Force, nor issued a Genform for reporting in INS Circars, nor provided with accommodation, food and mess and also uniform to the applicant.

The Commanding Officer without understanding the fact that the applicant was not re-instated and he was only a civilian had conducted the retrial which is clearly an irregularity. Instead of calling 18 witnesses, the 4 th respondent called only 6 witnesses for “de novo” trial, though the other witnesses are material witnesses. The 4 th respondent committed many more irregularities, viz., (i) copy of charge-sheet was not served, (ii) no Defending Officer or an Advocate was provided to the accused/applicant (iii) not served with the list of witnesses (iv) not served with the deposition of witnesses and (v) the crucial documents were not examined or marked as exhibits. The applicant submits that the main accused was not examined and no material witnesses were examined which is fatal to the prosecution case. The applicant is yet to be served with the Punishment Warrant.

The 4 th respondent once again awarded and confirmed the same punishment, though the applicant had already served the punishment. 6

Though the applicant filed a Review as per the order of this Tribunal, it was mechanically rejected by the 2 nd respondent without appreciating the Review Petition. Therefore, the applicant prays that this application may be allowed.

3. The objections of the respondents in the reply-statement would be as follows:

The applicant joined Indian Navy on 05.05.1989 and served at various ships/establishments during the tenure of his service. In

1999, the Naval Barracks, Indian Naval Ship Angre by letter dated 17.05.1999 intimated that seniority certificates issued by

Officer-in-charge, Sailors Married Accommodation, Visakhapatnam appear to be forged. On getting the intimation from the Commanding

Officer, INS India by letter dated 21.06.1999, a preliminary investigation was carried out by Headquarters, Eastern Naval

Command and it came to light that the applicant made false seniority certificates of Sailors Married Accommodation. It was also revealed that the applicant involved in abetting one Kaushal Kishore Sah (then

Sea 1, No.165165-A of INS Circars) in preparing the false seniority certificates of Sailors Married Accommodation and he was awarded RI for 90 days and was also awarded the punishment of reduction in rank to ME 1 and Deprivation of third, second and first Good Conduct

Badges. The allegations of the applicant that he was not provided 7

food and accommodation during “de novo” trial are denied by the

respondents. In the “de novo” trial, it was considered that the applicant was a “person subject to Naval Law” in accordance with CTM

143/2011, dated 27.07.2011 and the applicant never raised any objection regarding the jurisdiction of the CO, INS Circars to try him.

Though notices were served on all the original witnesses, only six (6) witnesses appeared. The witnesses were examined and cross- examined by the applicant and all relevant documents were examined in accordance with Paras 22 to 33 of Regulations for the Navy Part II

(Statutory). The charge was read out and explained to the accused as given in Para 27(2) of Regulation for the Navy Part II (Statutory) and the same was counter-signed by the applicant and therefore, there was no violation of any provision of law. There is no provision for handing over the punishment warrant to the accused as it was publicly read out to the accused along with the charges. On the basis of the evidence, the charge against the applicant was reduced from

Rs.15,700/- to Rs.7,500/- and the punishments awarded earlier were maintained. Further, the applicant was afforded the service of Cdr

Sunil Kumar as Defending Officer in accordance with Regulation 26 of

Regulations for the Navy Part II. Though the prime accused KK

Shah(Ex-Sea-I) did not appear during “de novo” trial, yet the documents endorsed by him and the corroborated evidence of the 8

attending witnesses would be sufficient to prove the charge framed against the applicant and therefore, the allegation of the accused regarding non-examination of material witnesses is not sustainable.

The respondents submit that since this Tribunal directed for “de novo ”

trial, the applicant was considered person subject to Naval Law and

the applicant was tried in accordance with the provisions of the Navy

Act, 1957. A perusal of the CTM 143/2011 dated 27.07.2011 would

show that the applicant was considered to be a subject to Naval Law.

Therefore, the respondents pray that this application may be

dismissed.

4. On the above pleadings, we find the following points emerged

for our consideration in this appeal.

(1) Whether the order of second respondent in Letter

No.DL/1477187, dated 19.08.2013 in rejecting the Review

Petition filed by the applicant under sections 162 and 163 of

Navy Act 1957 is liable to be set aside?

(2) Whether the punishment warrant dated 22.11.2011 passed

against the applicant is liable to be set aside?

(3) Whether the applicant is entitled for re-instatement in service

with all mandatory benefits such as pay and allowances, seniority

and other emoluments from the date of his dismissal to the date

of his re-entry as ordered? 9

(4) To what relief the applicant/appellant is entitled for?

5. We heard the arguments advanced by Ms. Tonifia Miranda, learned counsel for the applicant and Mr. E.Arasu, learned CGSC assisted by Lt

Raul Ahlawat, Assistant JAG Officer, Navy appearing for respondents.

We also perused the written arguments submitted on either side and the original summary proceedings conducted against the applicant and the order passed in the Review Application.

6. The learned counsel for the applicant would submit in her argument that the applicant joined Indian Navy on 05.05.1989 from

INS Circars, Naval Base, Visakhapatnam and lastly served on Virba submarine, Visakhapatnam since April 1987. However the applicant was charged for abetting for making false documents and under

Section 60 of Indian Naval Act and summarily tried by the then

Commanding Officer without following regulations and process of law and awarded punishment and the applicant challenged the said decision before this Tribunal in a Writ Petition which was later transferred to this Tribunal in T.A.No.171 of 2010 and this Tribunal set aside the trial and punishment and ordered de novo trial with the direction to complete the same within three (3) months from the date of receipt of the order. However, the respondents challenged the above order before the Hon’ble Apex Court and the same was dismissed at the admission stage and therefore, the respondents had 10

necessarily commenced the de novo trial against the applicant. She would further submit that the Commanding Officer committed many irregularities in the conduct of de novo trial and the attitude of the

Commanding Officer is nothing but a mockery of justice. The crucial documents were not examined or marked as exhibits and were barred by Sections 62, 63 and 64 of Indian Evidence Act. She would also submit that Regulation 25(6) of Navy Regulations 1965 was violated and the burden on the respondents to prove that the document was a forged one was not discharged. She would also submit that the respondents could have taken steps to compare the signature of the officer said to have forged in the seniority certificate or through examining a hand-writing expert after obtaining his opinion. The evidence of the witnesses examined and the documents produced would not be sufficient to convict the applicant and impose punishment through a punishment warrant. She would also refer that similarly placed accused viz., K.K.Sah was awarded with pensionary benefits and disability pension apart from a wife of an accused R.K. Misra (died

pendente lite ) was granted family pension. She would also submit that the punishment imposed against the applicant was also not proportionate to the gravity of the offence where similarly charged accused were given pensionary benefits with lesser punishments. She would also cite a judgment of Hon’ble Apex Court reported in 2000 11

Supp(4) SCR 693 between Om Kumar and Ors and UOI in support of her argument. She would also place reliance on Allahabad High Court

judgment reported in 1994 Crl.L.J. 762 between R.R.Verma and UOI.

She would further submit that the Review Application made by the applicant was also not considered in consonance with equality before law and therefore, the order passed by the competent authority in the

Review Application under Section 162 and 163 of Navy Act should be set aside. She would therefore request this Tribunal to set aside the punishment and the order passed by the competent authority in the

Review Application and consequently to re-instate the applicant in service with all backwages and benefits.

7. Per contra, the learned CGSC would submit in his argument that the direction of this Tribunal made in T.A.171 of 2010 was promptly complied with and the applicant/accused was given ample opportunities in all procedures of summary trial held by Investigating

Officer, Executive Officer and Commanding Officer and the punishment was imposed on the basis of summary of evidence and it was duly approved by the competent authority and there was no defect in the procedures adopted in de novo trial. He would also submit that all the witnesses were summoned to prove the charges and the witnesses turned were examined and their evidence was sufficient to prove the guilt of the applicant and the applicant was punished accordingly on 12

the gravity of the offence. He would also submit that the direction issued by this Tribunal in O.A. 27 of 2012 to entertain Review

Application under sections 162 and 163 of Navy Act was also

considered by the competent authority and a speaking order was

passed. He would also submit that the circumstances under which the

other accused were granted pensionary benefits were different, when

compared with the present case. In R.K. Misra’s case, the trial was

found vitiated and since he was not alive at that time, the charge

against him was quashed and family pension was granted in favour of

his wife. In the case of the applicant also, the trial was considered

vitiated for not giving an opportunity to cross-examine the witnesses

and de novo trial was ordered since the applicant was very much

available and de novo trial was thus promptly conducted. In the case

of K.K. Sah, he has submitted the application for revision on

compassionate grounds, it was considered by the Chief of Naval Staff

and benefit was given to him whereas the applicant has not applied so

far for mitigating the punishment of dismissal and to seek for any

relief on compassionate grounds. He would therefore submit that

those cases cannot be compared with the present case and the

applicant cannot seek similar orders in this O.A. He would submit

that the de novo trial was conducted in accordance with the

Regulations of Navy 1965 Part-II and the order passed in the Review 13

Application by the competent authority as per rules in a speaking order and therefore, both are liable to be set aside.

8. We have given our anxious thoughts to either side and accordingly perused every document and the written submissions on both sides.

9. Point Nos. 1 to 4: The facts that the applicant was charged with the offence in abetting K.K.Sah of INS Circars in preparation of seniority certificates of Sailors Married Accommodation between 15 th

April 1989 and May1989 under Section 60(c) of the Navy Act 1967 and was summarily tried by the then Commanding Officer and the applicant was imposed RI for 90 days, dismissal from Naval Service

Regiment in rank to MEI and depriving Third, Second and First Good

Conduct Badges and the punishment imposed by the said summary court proceedings were challenged by the applicant in a writ petition which was transferred to this Tribunal in T.A.No.171 of 2010 and the same was allowed by this Tribunal in which de novo trial was ordered against the applicant and the respondents took the matter on appeal before the Hon’ble Apex Court and that was also dismissed and thereafter, de novo trial was conducted by the respondents against the applicant are admitted on either side. Similarly, against the said de novo trial, the applicant has come forward with another application in

O.A.No.27 of 2012 before this Tribunal and this Tribunal after hearing both parties had directed the applicant to file a Review Petition before 14

the competent authority under Sections 162 and 163 of the Navy Act and thereafter to approach this Tribunal if further aggrieved by the said order to be passed by the competent authority were also not disputed. The applicant had obeyed the order of this Tribunal and filed Review Application under Sections 162 and 163 of the Navy Act before the competent authority and the same was rejected by the competent authority by confirming the punishment warrant issued by the Commanding Officer in the Summary Trial proceedings. The said punishment warrant issued against the applicant and the order of rejection in the Review Petition filed by the applicant are challenged in this Original Application for not following the relevant rules.

10. We have to see whether the de novo trial ordered by this

Tribunal has been promptly conducted as per the Regulations for Navy

1965 Part-II. The regulations governing the summary trial proceedings

are envisaged in Section-II investigation, commencing from Regulation

22 to 29. In the said Regulation we find three officers to do the

investigation-cum-trial according to the nature of punishments to be

imposed for the offences. The charges framed against the applicant

were based upon the evidence adduced before the Investigating

Officer. For better appreciation, the charge framed against the

applicant before the Investigation Officer is necessarily to be extracted

as hereunder: 15

“ DID BETWEEN FIFTH DAY OF APRIL 1999 AND THIRD DAY OF MAY 1999 ABET KAUSHL KUMAR

SAH SEAMAN FIRST CLASS (UNDERWATER WEAPON 2 nd CLASS NUMBER 165165A IN MAKING OF

ELEVEN IN NUMBER FALSE DOCUMENTS NAMELY SENIORITY CERTIFICATES OF SAILORS

MARRIED ACCOMMODATION PURPORTED TO BE ISSUED BY THE OFFICER IN-CHARGE SAILORS

MARRIED ACCOMMODATION NAUSENA BAUGH VISAKHAPATNAM TO BE USED FOR OFFICIAL

PURPOSE BY ACCEPTING A TOTAL SUM OF RUPEES 15,700/- FROM THE FOLLOWING AS

MENTIONED AGAINST EACH:-

S.NO. NAME RANK NO. UNIT AMOUNT

(A) N KUMAR EX CHEMCH (then MECH 4) 170261 -H SINDHU VIJAY 1000.00

(B) SZ RIZWAN EX CHEMCH (then MECH 4) 171951 -Z SINDHURAKSHAK 2000.00

(C) KR TARAI EX POELP (then LEMP) 172208 -H VAJRABAHU 2000.00

(D) TK PAUL CHELP (then LEMP) 172316 -B VAJRABAHU ……..

(E) S SINGH EX PO (then PO) 166375 -A SINDHUKIRTI 2000.00

(F) ANIL BAHRI EX PO (then PO) 163858 -H SINDHUKIRTI 1200.00

(G) S K TRIPATHI MCPOII (then PO) 112765 -K SINDHUVIJAY 2000.00

(H) VV KULKARNI EX POME (then POME) 112212 -B VAJRABAHU …….

(J) RC SRIVASTAVA EX POME (then LME) 167744 -N UDAYGIRI 2000.00

(K) FC YADAV CHME (then LME) 172687 -Y AJAY 1500.00

(L) I SINGH EX POWTR (then LWTR) 178311 -B INDIA 2000.00

THEREBY COMMITTED AN OFFENCE PUNISHABLE UNDER SECTION 60(c) OF THE NAVY

ACT 1957. “

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11. The applicant did not plead guilty to those charges, but denied them as baseless and false stories against him. The Investigating

Officer has examined K.R.Tarai, T.K. Paul, F.C. Yadav, and S.K.

Tripathi on 1.8.2011 and in his investigation report he would say that the case was beyond his powers of punishment and therefore he forwarded the case to the Executive Officer. The Executive Officer in turn read the same charge as was read by the Investigating Officer and did the investigation by examining witnesses K.R. Tarai, T.K. Paul,

F.C.Yadav, S.K. Tripathi and after satisfying himself that he cannot pass any sentence to the offence proved before him, he forwarded the case on 4.9.2011 to the Commanding Officer for further proceedings.

The Commanding Officer in turn examined the witnesses on the charge against the accused and on the basis of the evidence framed the charge and read over to the accused on 8.9.2011 which reads as follows:

“ DID BETWEEN FIFTH DAY OF APRIL 1999 AND THIRD DAY OF MAY 1999 ABET KAUSHL KUMAR

SAH SEAMAN FIRST CLASS (UNDERWATER WEAPON 2 nd CLASS NUMBER 165165A IN MAKING OF

SIX IN NUMBER FALSE DOCUMENTS NAMELY SENIORITY CERTIFICATES OF SAILORS MARRIED

ACCOMMODATION PURPORTED TO BE ISSUED BY THE OFFICER IN-CHARGE SAILORS MARRIED

ACCOMMODATION NAUSENA BAUGH VISAKHAPATNAM TO BE USED FOR OFFICIAL PURPOSE BY

ACCEPTING A TOTAL SUM OF RUPEES 7,500/-- FROM THE FOLLOWING AS MENTIONED AGAINST

EACH:- 17

S.NO. NAME RANK NO. UNIT AMOUNT

(A ) KR TARAI EX POELP (then LEMP) 172208 -H VAJRABAHU 2000.00

(B ) TK PAUL CHELP (then LEMP) 172316 -B VAJRABAHU ……..

(C ) S K TRIPATHI MCPOII (then PO) 112765 -K SINDHUVIJAY 2000.00

(D) VV KULKARNI EX POME (then POME) 112212 -B VAJRABAHU …….

(E) FC YADAV CHME (then LME) 172687 -Y AJAY 1500.00

(F) I SINGH EX POWTR (then LWTR) 178311 -B INDIA 2000.00

THEREBY COMMITTED AN OFFENCE PUNISHABLE UNDER SECTION 60(c) OF THE NAVY

ACT 1957. “

12. We find some difference between the charges framed by the

Investigating Officer and the Executive Officer on one part and the

Commanding Officer in another part. The Commanding Officer under

Regulation 29 recorded the evidence and on finding a prima facie case on the basis of the evidence had altered the charges according to the evidence adduced by the witnesses before him. For that purpose, he had examined (1) K.R. Tarai, (2) Ishwar Singh (3) V.V.Gulkarni (4)

T.K. Paul (5) F.C. Yadav and (6) S.K. Tripathi. In all the proceedings before Investigating Officer, Executive Officer and Commanding

Officer, the applicant was given opportunity to cross-examine the witnesses. Even though four witnesses alone were examined by the

Investigating Officer and Executive Officer, six witnesses were 18

examined before the Commanding Officer to prove the offence against the applicant. The Commanding Officer found a prima facie case and had decided to try the case by going into the summary of evidence given by the witnesses. In his summary of evidence, he has not only set forth the evidence given by the witnesses and also reasons for arriving to the conclusion to issue punishment warrant. All the procedures to be followed by the Commanding Officer are contemplated in Regulation 29 of the Regulations for the Navy 1965,

Part-II. The Commanding Officer did not recommend for the trial being relegated to Court Martial, in view of the fact that the applicant is not attracted by Para 30 of the Regulations for the Navy 1965.

Since the applicant was only an Ex LME, the said right to elect the trial by Court Martial under Regulation 30 would not apply to him, but such contingency is only for Chief Petty Officer or Petty Officer. In the summary of evidence recorded by the Commanding Officer, we find that he has come to a conclusion that the charge against the applicant was substantiated against him and the punishments already awarded to the applicant earlier, viz., rigorous imprisonment for 90 days, dismissal from naval service, reduction in rank to MEI and deprivation of Second and First Good Conduct Badges were recommended to be maintained. He has also come to the conclusion that since the applicant had already undergone these punishments, the applicant 19

need not once again undergo such sentence. The said summary of evidence was recorded by the Commanding Officer on that day itself after he read out the charge and the accused was warned under

Regulation 28 of Regulations for the Navy 1965, Part-II. The

Commanding Officer thereafter submitted the papers to Flag Officer

Commanding-in-Chief Headquarters, Eastern Navy Command,

Visakhapatnam-14 on 13.09.2011 for approval of the punishment.

The said punishments recommended by the Commanding Officer were approved by the Senior Officer on 20.11.2011. On the foot of the said approval of punishments, punishment warrant was prepared by the

Commanding Officer on 25.11.2011. The punishments have been intimated to the applicant by the Commanding Officer through a letter dated 25.11.2011.

13. On a careful perusal of the proceedings of the summary trial against the applicant, right from the Investigating Officer, Executive

Officer and Commanding Officer, the procedures have been meticulously followed and the applicant was given opportunity and was warned as per the Regulations for the Navy 1965 Part-II. Therefore, there is no reason for us to find that the summary trial proceedings are vitiated by not adopting these regulations. As regards number of offences said to have been committed by the applicant, we find that the Commanding Officer had examined six witnesses who appeared 20

before him whereas he had summoned all the eleven witnesses.

Originally the charge was framed against the accused for making of 11 false documents, viz., Seniority Certificates of Sailors Married

Accommodation at Nausena Baugh, Visakhapatnam to be used for official purpose by accepting a total sum of Rs.15,700/- from those eleven witnesses. However, six witnesses have turned up to depose against the applicant before Commanding Officer. An argument was advanced by the learned counsel for the applicant that the main accused, viz., K.K.Sah ought to have been examined by the respondents in order to prove the charge against the applicant and therefore, the evidence adduced before the Commanding Officer would not be helpful to come to any conclusion against the applicant as charges against him. Whether the argument advanced by the learned counsel for the applicant is sustainable and could be decided on the adequacy of the witnesses produced before the Commanding Officer.

The Commanding Officer had examined K.R. Tarai, T.K. Paul, F.C.

Yadav, S.K. Tripathi , Ishwar Singh, V.V.Kulkarni who appeared before him on 5.8.2011 and 8.9.2011. The applicant was present throughout and was given opportunity to cross-examine the witness on those days. All the witnesses would categorically state that the applicant had induced them to get seniority certificates of Sailors Married

Accommodation for consideration/money to be obtained from K.K.Sah 21

and accordingly all the witnesses have received such seniority certificates of Sailors Married Accommodation. Among those witnesses

Mr. K.R. Tarai said that he paid a sum of Rs.2,000/-; Mr. F.C. Yadav paid a sum of Rs.1500/-; Mr. S.K. Tripathi paid a sum of Rs.2000/-;

Mr. Ishwar Singh paid a sum of Rs.2000/- to the applicant in consideration of supplying fake Accommodation Seniority Certificate.

The applicant was given opportunity to cross-examine the witnesses and nothing was elicited by the applicant in respect of the evidence spoken against him. No motive was suggested or established during cross-examination of those witnesses against the applicant. In the said circumstances, all the six witnesses who are disinterested on the accused can be considered as reliable witnesses. The certificates issued to them have also been produced in order to support the evidence of all the six witnesses. Therefore, there cannot be any suspicion on the evidence given by the witnesses. The witnesses spoke about the inducement and the offence of abetting the crime of producing false certificates after receiving money from those witnesses. Thus, we find that the charge framed against the applicant has been proved through the witnesses. The procuring of those certificates from K.K. Sah after its preparation need not be spoken in this case since there was no necessity of proving any offence against K.K. Sah. Therefore, the evidence of the main accused K.K. 22

Sah is not necessary for the purpose of proving the offence against the applicant as the evidence of P.W.1 to P.W.6 have proved the guilt of the applicant. The original charge was scheduled to be proved by examining eleven (11) witnesses but six (6) of them have turned up before the Commanding Officer. The charge has been framed compositely for a consolidated sum of Rs.15,400/- as if a single offence has been committed. Actually, the offence committed by the applicant would be for eleven times. However, the witnesses who adduced the evidence would prove that the applicant has committed the offence of abetting or inducing the witnesses to pay money for fake Accommodation Seniority Certificate. It has been proved for six times. However, the charge has been framed compositely as a single offence. Therefore, there cannot be any defect in examining six of the available witness to prove the offence. It is sufficient even if one of the witnesses turn against the applicant and depose about abetment or inducement to pay money for getting a fake Accommodation

Seniority Certificate. Therefore, the finding reached in the summary of evidence recorded by the Commanding Officer to recommend the punishment as already imposed against the applicant is also in order.

14. As we have already discussed the submission of the recommendation for imposing punishment before the Flag Officer

Commanding was also approved and the punishment warrant was 23

given to the applicant and the applicant was not committed to serve the sentence since he had already served the sentence in the earlier proceedings. In the backdrop of the case, we find that the summary of de novo trial proceedings held by the Commanding Officer on the

direction of this Tribunal to go on with the de novo trial is perfectly in

order in procedures and on merit.

15. However, we have directed the applicant to submit a review

petition before the competent authority under Regulations 162 and

163 of Regulations for Navy, 1965 Part-II to redress his grievances.

Accordingly, he has submitted an application before the competent

authority and the competent authority has also passed a speaking

order on the review petition under Section 163 of the Navy Act on

7.10.2014.

16. We have carefully perused the speaking order produced before

us. The Chief of Naval Staff who is the competent authority had

passed the order after going through each and every fact and had

given reasons for every ground raised in the review petition. He has

also considered the non-examination of other witnesses in Para 4(m).

Similar reasons have been given for the grounds raised by the

applicant in his review petition and we find that the Chief of Naval

Staff in his speaking order had considered every aspect and had come

to a correct conclusion on merits in dismissing the review petition. 24

17. However, the learned counsel for the applicant would submit in her argument that the applicant was charged to have abetted the offence and was imposed with the punishment of rigorous imprisonment for 90 days, dismissal from Naval service, reduction in rank to MEI (4) and deprivation of Second and First Good Conduct

Badges (GCB No.9) and at the same time, the main accused K.K. Sah was imposed with the punishment of RI for 90 days, dismissal from

Naval service, deprivation of II and I (GCB No.9) only. His rank was not reduced as was done in the case of the applicant. Similarly, the

Review Petition filed under sections 162 and 163 of Naval Act was considered by the Chief of Naval Staff and in his order dated 29 th

December 2011, the punishment of dismissal from Naval service was converted into discharge from Naval service. Apart from that, his deficiency in service to an extent of 246 days was condoned in order to give him the benefit of pension. His disability pension was also considered subject to report of a Release Medical Board and he is receiving disability pension also. These benefits were given by the

Chief of Naval Staff on compassionate ground. She would also point out that the order passed in the Review Petition filed by the applicant before the Chief of Naval Staff was not considered with the same yardstick, but was rejected. No compassionate ground has been considered even though the applicant has stated in a separate 25

paragraph about his family condition. She would also quote a

judgment reported in 2007 14 SCC 711 (Umar Mohammad vs. State of

Rajasthan) to the principle that the accused who are on the same footing should be given similar treatment by the Courts while imposing punishment or in granting benefit of doubt. She would also submit that the rejection of the Review Petition filed by the applicant under

Sections 162 and 163 of Navy Act while the Review Petition filed by the main accused K.K. Sah was accepted for modification of the punishment of dismissal from service into that of discharge from service and the condonation of deficiency in service for grant of disability pension would ex facie show discrimination against the applicant by the Chief of Naval staff. She would also submit that it is nothing but a violation of the right given under Article 14 of the

Constitution of India. Therefore, the punishment of dismissal should have been considered for conversion into discharge on par with the case of K.K. Sah. She would also submit that the benefits payable to the applicant shall also be directed to be paid on the said conversion.

18. On a careful consideration of the submission made by the learned counsel for the applicant, it has become necessary for us to peruse the

Review Petition filed by the applicant before the Chief of Naval Staff.

In the said Review Petition at page-21, the applicant has stated about his family situation and the duties awaiting him and he had sought for 26

consideration of his representation on compassionate ground for re- instatement with all benefits. The said request was not answered in the speaking order submitted by the respondents. No doubt the Chief of Naval Staff while considering the Review Petition filed by the main accused K.K. Sah in his order dated 29.12.2011 had converted the dismissal from Naval service into that of discharge from Naval service and had granted benefits of condonation of deficiency in service, pension and disability pension to the main accused K.K. Sah. The principle laid down by the Hon’ble Apex Court that the co-accused who are on the same pedestal should be considered equally is also applicable in this case. Therefore, the Chief of Naval Staff while applying his mind to pass an order of rejection of Review Petition of the applicant, ought to have answered in terms of the order passed in the Review Petition filed by the main accused K.K. Sah. In fact, the qualifying service of the main accused K.K. Sah was above 14 years, is a condonable period of service. But the applicant has got less than

14 years of service and therefore, his service cannot be condoned nor he be found with any disability. The benefit of conversion of the punishment from service could have been made to discharge from service. But it was not done by the Chief of Naval Staff in the Review

Petition filed by the applicant. Therefore, we are of the considered view that the punishment of dismissal from Naval service imposed 27

against the applicant which was confirmed by the Chief of Naval Staff in his speaking order is alone liable to the converted into that of discharge from service. In other respects, the summary trial proceedings and the orders passed by the Chief of Naval Staff in the

Review Petition are confirmed. In view of the same, the applicant cannot be re-instated into service. Accordingly, all these points are decided.

19. In the result, the application is allowed to the extent of converting the punishment of dismissal from Naval service into that of discharge from service and in other respects, the application is dismissed. The applicant is therefore entitled to attendant benefits on the conversion of punishment of dismissal from Naval service into that of discharge from Naval service. The respondents are directed to pay the said benefits payable to the applicant within a period of three (3) months from this date. Failing to comply, the applicant is entitled for interest at 9% per annum till it is fully paid. No order as to costs.

Sd/ Sd/ LT GEN K. SURENDRA NATH JUSTICE V.PERIYA KARUPPIAH MEMBER (ADMINISTRATIVE) MEMBER (JUDICIAL)

21.08.2015 (True copy)

Member (J) – Index : Yes/No Internet : Yes/No Member (A) – Index : Yes/No Internet : Yes/No VS 28

To:

1. The Secretary Ministry of Defence New Delhi-110 011.

2. Chief of Naval Staff Naval HQ, Sena Bhavan New Delhi-11.

3. The Flag Officer Commanding-in-Chief Headquarters, Eastern Naval Command Visakhapatnam-530 014 (AP).

4. The Commanding Officer Indian Navalship Circars Naval Base, Visakhapatnam-14.

5. The Regulating Officer, INS Circars Naval Base, Visakhapatinam-14.

6. Mrs. Tonifia Miranda Counsel for applicant.

7. Mr. E. Arasu Counsel for respondents

8. OIC, Legal Cell,Navy, Chennai.

9. Library, AFT, Chennai.

29

HON’BLE MR.JUSTICE V. PERIYA KARUPPIAH MEMBER (JUDICIAL) AND HON’BLE LT GEN K. SURENDRA NATH MEMBER ( ADMINISTRATIVE)

O.A.No.26 of 2014

Dt: 21.08.2015