1 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, 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, Vishakapatinam-14. …Respondents By Mr. E. Arasu, CGSC 2 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 Indian Navy 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 Commodore 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.