ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI. O.A.No. 27 of 2014 THURSDAY, THE 11TH DAY OF DECEMBER, 2014/20TH AGRAHAYANA, 1936 CORAM:

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1 ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI O.A.No. 27 of 2014 THURSDAY, THE 11TH DAY OF DECEMBER, 2014/20TH AGRAHAYANA, 1936 CORAM: HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) JOSE GEORGE, S/O.GEORGE, EX-STEWARD I, NO Y INS VENDURUTHY, RESIDING AT MANIYAMKOTTIL HOUSE, IRIMPANAM P.O., KOLLANPADY JUNCTION, CHITHRAPUZHA, ERNAKULAM DISTRICT, KERALA STATE. APPLICANT: BY ADVS.M/S.CHERIAN SEBASTIAN & V.K.SATHYANATHAN 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF DEFENCE, NEW DELHI CHIEF OF THE NAVAL STAFF, NAVAL QUARTERS, NEW DELHI COMMODORE, BUREAU OF SAILORS, CHEETAH CAMP, MANKHURD, MUMBAI versus 4. FLAG OFFICER COMMANDING IN CHIEF, SOUTHERN NAVAL COMMAND, COCHIN THE COMMANDING OFFICER, INDIAN NAVAL SHIP VENDURUTHY, SOUTHERN NAVAL COMMAND, COCHIN BY SHRI K. RAMAKUMAR, SENIOR ADVOCATE & BY ADV.SRI.K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL RESPONDENTS:

2 O.A.No. 27 of 2014 : 2 : O R D E R VAdm.M.P.Muralidharan,Member (A): 1. The applicant, Jose George, Ex Steward-I, No Y of Indian Navy has challenged his dismissal from the Navy following proceedings against him under Section 93 of the Navy Act, The applicant has prayed for setting aside his dismissal orders and has requested for reinstatement in service with all benefits including back wages. 2. The applicant was enrolled into the Navy as a Steward, Class II on 12 January In due course he was promoted as Ag LSTD, was posted to Indian Naval Ship Venduruthy at Kochi and was working in Southern Naval Command Officers' Mess. Allegedly on 16 December 1994 at about 1430 hours, the applicant accompanied by one Shri Francis, Motor Transport Driver of Indian Naval Ship, Venduruthy came to the catering office of Southern Naval

3 O.A.No. 27 of 2014 : 3 : Command Officer's Mess, the office of S.Rodrigues, MCPO, STD I. Shri Fancis, allegedly asked Rodrigues to stop harassing the applicant. Subsequently a scuffle broke out between Shri Francis and S.Rodrigues, MCPO STD I and the applicant pushed Rodrigues from behind. Rodrigues was thereafter beaten by Shri Francis till separated by Mess staff and shifted to Indian Naval Hospital Ship Sanjivani for treatment. 3. For his role in the incident, the applicant was summarily tried by the Commanding Officer INS Venduruthy and was awarded the following punishments (Annexure A4) with the approval of the Chief of the Naval Staff : (a) Rigorous imprisonment for 90 days (No.1). (b) Dismissal from Naval Service (No.3). (c) Reduction in rank to STD 1 (No.4) and (d) Deprivation of Second and First Good Conduct Badges (No.9).

4 O.A.No. 27 of 2014 : 4 : 4. Many rounds of litigation have been undertaken by the applicant challenging the punishment awarded to him. Prior to this Original Application, Writ Petition (C) No.23952/2008 filed in the Honourable High Court of Kerala, was transferred under Section 34 of the Armed Forces Tribunal Act and registered as T.A. No.83 of 2010 before this Tribunal. The said Transferred Application was allowed by this Bench (Annexure A7) and the respondents were directed to reconsider the matter and pass appropriate orders after providing a reasonable opportunity of hearing to the applicant. Based on the above orders, Respondent No.1 gave a personal hearing to the applicant and passed a detailed speaking order vide Government of India, Ministry of Defence letter MF DL/1374/622 Vol I dated 22 nd October 2013 (Annexure A9). Vide the order, Respondent No.1 concluded that the contentions raised by the applicant were devoid of merit and rejected his request for reconsideration of the punishments awarded. Aggrieved by the same, the

5 O.A.No. 27 of 2014 : 5 : applicant has filed the present Original Application. 5. Heard Mr.V.K.Sathyanathan for the applicant and Mr.K.Ramakumar, senior counsel assisted by Mr.K.M.Jamaludheen for the respondents. 6. The learned counsel for the applicant brought out that on 12 December 1994, the applicant was treated by the duty Doctor of INS Venduruthy for severe dysentery and tummy pain and was also given 'Attend C'. On 15 December 1994, as he was not fully cured, he was again awarded 'Attend C'. On 16 December 1994, the applicant once again went to the Doctor who advised him to take rest on that day also. He then met Lt Cdr AK Singh, who told him that he had to proceed to Goa and directed him to meet the Executive Officer. Since he felt uneasy, he went to a toilet near the catering office. While coming out of the toilet, he heard some commotion from the catering office

6 O.A.No. 27 of 2014 : 6 : where he observed some Sailors and Officers separating S. Rodrigues, MCPO STD I and another civilian later identified as driver by name Shri Francis. One Balakrishnan, Petty Officer Steward, who had witnessed the entire incident had reported the same to the Naval Provost Marshal who conducted an enquiry, during which the applicant stated whatever he observed. Provost report is placed at Annexure A1. Subsequently, the applicant was charge sheeted and arrested on 29 December 1994 almost 13 days after the incident, alleging that on 16 December 1994 he had pushed from behind his superior officer S.Rodrigues MCPO STD I and that he stood and watched without interfering, while Shri Rodrigues was being manhandled by Francis. 7. The counsel further stated that, while the applicant had seen Rodrigues MCPO STD I and another person fighting with each other, there were other Sailors and Officers trying to separate them and hence there was no

7 O.A.No. 27 of 2014 : 7 : opportunity for the applicant to intervene. Balakrishnan PO STD who was apparently the only eye witness to the incident was never examined in the summary trial. PO STD Kanwar, whose name was not on the Provost report was made a key witness. The applicant was arrested based on statements given by some others who were present. The charges levelled against the applicant of pushing Rodrigues MCPO STD I from behind and not intervening during the fight, were only based on the statement of the complainant (Rodrigues). There were no independent witnesses to prove any of these charges. 8. The learned counsel brought out that in accordance with Regulations for the Navy, Part II, (Regs Navy), Regulation 25, preliminary investigation of offences should take place as soon as possible, but there was considerable delay in conduct of the investigation. The learned counsel further brought out that the applicant was not given a fair

8 O.A.No. 27 of 2014 : 8 : trial in that he was not afforded a reasonable opportunity of defending himself nor was he given a copy of the charge sheet stating the charges framed against him. He was not permitted to appoint defence counsel of his choice. He was produced for the Summary trial from his detention Cell and the entire examination of witnesses had been done in a hasty manner. 9. The applicant had approached the Hon'ble High Court of Kerala and subsequently other authorities including this Tribunal. While a hearing was granted by Respondent No.1 on 19 September 2013, his representation was rejected without a proper hearing stating that there was no new contention in his representation to Government. The learned counsel for the applicant contended that actions taken against the applicant, imposing four punishments were violative of the provisions contained in Section 93 of the Navy Act read with principles of natural justice as

9 O.A.No. 27 of 2014 : 9 : embodied under Article 14 of the Constitution of India. The learned counsel therefore prayed that the dismissal of the applicant and the speaking order of Respondent No.2 be set aside and the applicant be reinstated in service with all benefits including back wages. 10. Mr.K.M.Jamaludheen, the learned counsel for the respondents brought out that the applicant had been posted at INS Venduruthy, Kochi with effect from 01 April 1992 and was employed in the Southern Naval Command Officers' Mess. On 15 December 1994, he was directed to proceed on temporary duty to Goa to INS Gomantak, but instead of doing so he reported sick and obtained medical exemption from all duties. However a subsequent medical check at the Naval Hospital Sanjivani and investigations revealed that the applicant was in good state of health and had also attended a civil court case on 15 December 1994, even though he was supposed to be taking bed rest.

10 O.A.No. 27 of 2014 : 10 : 11. On 16 December 1994, at around 1430 hours the applicant along with Shri Francis, a Motor Transport Driver (MTD) of INS Venduruthy, who was in a drunken state entered the catering office of Southern Naval Command Officers' Mess. Shri Francis threatened S.Rodrigues MCPO STD I, superior officer of the applicant, against sending the applicant on temporary duty and when Rodrigues asked them to leave his office, Shri Francis held Rodrigues, MCPO STD I, by his collar and the applicant pushed S.Rodrigues from behind. In the scuffle that ensued, the applicant aided and abetted Shri Francis to beat Rodrigues until he collapsed out of shock. At that time R.Kanwar, PO STD who was passing by the catering office heard shrieks of S.Rodrigues and pushed open the door of the office. He observed the applicant coming out of the room and saw Shri Francis holding the throat and hand of Rodrigues. In the meantime, other staff also gathered and separated both of them. Rodrigues MCPO STD I who

11 O.A.No. 27 of 2014 : 11 : sustained injuries was taken to Naval Hospital in a semi conscious state. 12. The learned counsel brought out that the Provost report (Annexure A1) was a preliminary investigation done by the Naval Police. The charges against the applicant for which he was summarily tried were independently investigated and full opportunity was given to the applicant to defend the case. Rodrigues, MCPO, STD I deposed that the applicant pushed him from behind during summary trial. Further during trial, Kanwar PO STD, witness No.1 stated that he had seen the applicant coming out of the Catering Office and four others, out of nine witnesses examined, stated that they had seen the applicant at the place of the incident at the time of occurrence. The learned counsel further stated that there was no reason to disbelieve the statements made by the complainant Rodrigues or Witness No.1 as the applicant did not give any logical reason for him to be there at that time as he had been medically

12 O.A.No. 27 of 2014 : 12 : advised to take bed rest. 13. The learned counsel further brought out that the contention of the applicant that the lone witness to the incident Balakrishnan PO STD was never examined in summary trial was raised for the first time during hearing by Secretary, Ministry of Defence. The learned counsel further brought out that the prosecution was well within its rights to produce evidence as required to prove the charges and the applicant, if he so desired, could have called Balakrishnan to depose as a defence witness. The learned counsel also brought out that, as the applicant was involved in a case of manhandling, he was kept in close custody in accordance with Regulation 92 of Regs Navy Part II. Summary trial of the applicant was conducted in accordance with relevant rules and regulations. The applicant was defended by Lt Cdr PKV Pillai. He was given opportunity to cross examine prosecution witnesses and to call for any witness in his

13 O.A.No. 27 of 2014 : 13 : defence. However he did not call any witness in defence. The contention of the applicant that he was not allowed to meet his defending officer or was not given a defence counsel of his choice is incorrect as there is nothing on record to prove his contentions. 14. The learned counsel for respondents further submitted that the applicant was given a fair trial and all principles of natural justice were complied with. As regards the punishment, procedure as laid down in Regulation 17 of Regs Navy Part II was complied with and the competent authority in this case, the Chief of the Naval Staff, under powers conferred by Regulation 17(1) enhanced the punishment of imprisonment from 30 to 90 days. Learned counsel further brought out that the punishments of Reduction in Rank and Deprivation of GCB were awarded as consequential penalties in terms of Section 82 of the Navy Act The learned counsel further added that the

14 O.A.No. 27 of 2014 : 14 : applicant soon after his release from Prison was given all the documents requested for except the Provost report as it was never relied upon during his trial. 15. The learned counsel also brought out that Shri Francis who was involved in the offence being a civilian, Central Government employee, was subjected to departmental inquiry in accordance with Rule 14 of the CCS (CC & A) Rules, 1965 and the disciplinary authority finding the individual guilty had imposed the penalty of removal from service. This was challenged in the Hon'ble High Court, where the inquiry was upheld, but the punishment of Shri Francis was reduced to compulsory retirement. However, the applicant being a uniformed sailor of the Navy was expected to behave in a disciplined manner while interacting with his superiors and therefore he cannot claim that since Shri Francis was only compulsorily retired, such benefit should also be given to him.

15 O.A.No. 27 of 2014 : 15 : 16. Shri K.Ramakumar, learned senior counsel who appeared for the respondents brought out that contrary to the contentions of the applicant, a fair trial was given to him. The learned senior counsel brought out that all along the applicant had contended that proceedings against him were violative of provisions contained in Section 93 of the Navy Act read with rules of natural justice as embodied in Article 14 of the Constitution of India. He stated that Section 93 conferred powers on Court Martial and Commanding Officers to try offences. He further stated that under Article 14 of the Constitution of India right to equality is provided in that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The learned counsel stated that none of this had been violated. He stated that Section 7 of Regs Navy Part II also gave the Commanding Officer powers to summarily try and punish a Sailor for any offence triable under the Act other than a capital offence. He further

16 O.A.No. 27 of 2014 : 16 : stated that accused), in the statement made by the applicant (as his presence at the scene of the incident was established. The complainant has also clearly brought out that the applicant pushed him and his testimony stood firm even when cross examined by defence during trial. He further stated that even Witness No.1 brought out during his deposition and when cross examined by defence that when he opened the door of the catering office, the applicant came out from inside. He further brought out that prior to recording statements of the applicant before the Commanding Officer and other Investigating Officers he had been warned in accordance with Regulation 28 of Regs Navy Part II. While the wording of the Regulation per se has not been recorded, it has been brought out that the applicant understood the charges and the warning. While he did not plead guilty to the charges, he made a statement on the incident.

17 O.A.No. 27 of 2014 : 17 : 17. The learned senior counsel further brought out that after hearing evidence in support of the charges, the Commanding Officer proceeded to try the case. It was heard and remanded on 9 January As a warrant punishment was decided by the Commanding Officer, which required approval of higher authorities, it was forwarded up the chain for approval of the Chief of the Naval Staff who approved it on 15 February The learned Senior Counsel reiterated that the applicant had been given a fair trial. All procedures in accordance with the Regs Navy and the Navy Act were strictly followed. The present claims of the applicant were all an afterthought. Therefore the contentions of the applicant are liable to be dismissed. records. 19. We have heard rival submissions and perused the

18 O.A.No. 27 of 2014 : 18 : 20. The applicant has essentially contended that the proceedings initiated against him which culminated in his being awarded four punishments were violative of the provisions contained in Section 93 of the Navy Act read in conjunction with the principles of natural justice as embodied in Article 14 of the Constitution of India. He further contended that he was not afforded a reasonable opportunity of defending himself and that he was not given a fair trial. He has also contended that the charges against him were falsely framed. 21. Section 93 of Navy Act being relevant is reproduced below: Power of court-martial and commanding officers to try offences:- (1) An offence triable under this Act may be tried and punished by court-martial. (2) An offence not capital which is triable under this Act and which is committed by a person other than an officer (and in cases by this Act

19 O.A.No. 27 of 2014 : 19 : expressly provided for when committed by an officer), may, subject to regulations made under this Act be summarily tried and punished by the commanding officer of the ship to which the offender belongs at the time either of the commission or of the trial of the offence, subject to the restriction that the commanding officer shall not have power to award Imprisonment or detention for more than three months, or to award dismissal with disgrace from the naval service. Provided that no sentence of imprisonment or dismissal shall be carried into effect until approved by the prescribed authorities. below: 22. Relevant Regulations for Navy, is reproduced 7. Powers of punishment of Commanding Officer:-(1) The Commanding officer may summarily try and punish any offence triable under the Act Committed by a sailor other than a capital offence and may, subject to the provisions of these regulations, award the

20 O.A.No. 27 of 2014 : 20 : several punishments specified in regulation Punishments requiring approval of superior authority:- (1) Punishment No.3, dismissal from the Naval Service, and where any other punishment accompanies it, the whole of the punishment proposed to be awarded shall require the approval of the Chief of the Naval Staff. 17. Approval of Warrants:- (1) If an officer having power to approve a warrant considers for any reason that the punishment proposed is inadequate, he may alter the punishment within the limits of the powers of punishment of a Commanding Officer and the punishment so altered shall be the punishment awarded. 23. As is evident Section 93 of the Navy Act, confers powers on Commanding Officers to summarily try offences not capital in nature, committed by a person other than an Officer who belongs to his ship and to award punishment for it. It also further brings out that sentence of imprisonment or dismissal shall not be brought into effect unless approved

21 O.A.No. 27 of 2014 : 21 : by the appropriate authorities. Reg 7(1) and 15(1) of Regs Navy amplifies the same aspects. In the instant case, it is observed that the trial of the applicant was carried out by the Commanding Officer of the Indian Naval Ship Venduruthy to which the applicant belonged and where the offences were committed. The charges were under sections triable under the Navy Act. It is also observed that the punishments awarded which included dismissal and imprisonment, were duly approved by the Chief of the Naval Staff in accordance with Regulation 15 of the Regs Navy. Enhancement of Rigorous Imprisonment to 90 days by the Chief of the Naval Staff was in accordance with Reg 17(1). So, in our view, Section 93 of the Navy Act has not been violated in any way. 24. Investigation of offences is to be conducted in accordance with Regulations for the Navy Part II. The relevant regulations are re-produced below:

22 O.A.No. 27 of 2014 : 22 : 22. Investigation of departmental offences: (1) If a sailor commits a departmental or a divisional offence, the offence shall be investigated by his Departmental or Divisional officer as the case may be, and he may be summarily tried and punished by his Departmental officer or his Divisional officer provided that the offence can be adequately punished within the powers of punishment delegated to such officer. (2) If the Departmental or the Divisional officer decides not to deal with the case himself, he shall refer the case to the Executive officer. (5) The Executive officer may investigate and try and punish summarily any offence referred to him provided it can be adequately punished within the powers of punishment delegated to him. (6) If the Executive officer decides not to deal with the case himself, he shall refer it to the Commanding Officer. 25. Investigation of other offences:- (1) The preliminary investigation of offences by the officer of the Watch or officer of the day shall take place as soon

23 O.A.No. 27 of 2014 : 23 : as possible after the commission of the offence while witnesses' memory is still fresh. (2)The formal investigation of offences shall, when the service and circumstances admit, be deferred until the day following that of the commission of the offence. 28. Investigation by the officer of the watch, the officer of the Day, or the Executive officer:- (1) If, after hearing the evidence in support of the charge, the officer of the watch, the officer of the Day or the Executive officer is of opinion that the charge, if proved, would be beyond his power to punish, he must bear in mind that a confession made before him by the accused will not be admissible in evidence at any further proceedings unless the accused has been cautioned, before he speaks, that he is not obliged to say anything unless he wishes to do so, and that any statement he may make may be given in evidence. Care should be taken to avoid any suggestion that the accused's answers can only be used in evidence against him, as this may discourage an innocent person from making a statement which might help to clear him of the charge. The investigating officer must also bear in mind that in case beyond his power of punishment his functions are to see whether there is a Prima facie case, to collect evidence when it is important that evidence be collected immediately, and, to give the accused a chance to make

24 O.A.No. 27 of 2014 : 24 : a statement. If the alleged offence is one which is likely in itself to lead at least to a warrant punishment (as distinct from one which may lead to a warrant punishment because it is the culminating offence in a series of minor offences), the investigating officer should address the accused in the following words after hearing the evidence in support of the charges:- Do you wish to say anything in answer to the charge? You are not obliged to say any thing unless you wish to do so; but what ever you say will be taken down in writing and may be given in evidence. (2) The officer of the watch or officer of the Day need not use these words unless he decides to hear the defence before sending the case to the Executive Officer. (3) If the accused makes a statement, it should be taken down in writing. On conclusion of this statement the investigating officer should not ask any question save to point out any ambiguity and ask if the accused wishes to clear it up or to point out that no reference has been made to some charge and ask if the accused wishes to say anything about it. In particular, nothing must be said which indicates that the

25 O.A.No. 27 of 2014 : 25 : accused is expected to make any further statement. (4) If he has not already done so, the investigating officer must then make up his mind whether the case against the accused has been made out. If he decides that no case has been made out, he is to dismiss the charge. (5) If the investigating officer decides to refer the case to higher authority, the accused is to be informed accordingly, the customary terminology Commander's report or Captain's report, as the case may be, being used. 29. Investigation by the Commanding Officer:- (1) The investigation of any offence by the commanding officer shall also be regulated so far as may be by the preceding regulation. (2) If, after hearing the evidence in support of the charge, the Commanding officer is of opinion that there is a Prima facie case and that the charge, if proved, would be within his power to punish, he shall proceed to try the case.

26 O.A.No. 27 of 2014 : 26 : (3) If the Commanding Officer decides to apply for trial by court-martial, or to give a warrant punishment, the accused shall be told that the case is remanded. 25. In accordance with Regs Navy, offences shall be investigated as soon as possible. The Investigating Officer on completion of the investigation has to try the case himself or if he finds that the punishments to be awarded are beyond his powers, has to refer the same to the Executive Officer, who has to independently investigate the same. If the punishments considered to be awarded are beyond his powers, the Executive Officer has to forward the case to the Commanding Officer. 26. In this case, soon after the incident, an initial investigation was conducted by the Provost Staff, which included written statements taken on the day of the incident from the applicant and PO STD Balakrishnan. They have also recorded statement of Rodrigues MCPO STD I, the

27 O.A.No. 27 of 2014 : 27 : complainant. Even though the report is dated 26 December 1994, date of occurrence is shown as 16 December Lt Cdr AK Singh, Secretary of Southern Naval Command Officers' Mess, the departmental officer, vide his letter dated 19 December 1994, made a formal report of the incident to Commanding Officer, Venduruthy. The report requested Commanding Officer Venduruthy to initiate necessary disciplinary action against the applicant. 27. Lt Sanjay Jaiswal carried out the formal investigation of the case and recorded statements of the complainant (Rodrigues MCPO STD I), PO STD Kanwar and the applicant. The Investigating Officer has warned the applicant in accordance with Reg 28 of Regs Navy Part II as the charges, if proved, could have lead to at least a Warrant punishment. The applicant has stated that he understood the charges and the warning and pleaded not guilty to the charges. It is also seen that in accordance with

28 O.A.No. 27 of 2014 : 28 : the regulations, after the statement by the applicant, no further questions were asked and the statement was read back to the applicant who signed the same. The Investigating Officer then forwarded the case to the Executive Officer. The Executive Officer also recorded the statements of the complainant, Kanwar PO STD and after warning, that of the applicant (Annexure A2). It is observed that the even to the Executive Officer the applicant stated that he understood the charges and the Warning in accordance with Reg 28. Once again he pleaded not guilty and post his statement no other questions were asked. The Executive Officer forwarded the case to the Commanding Officer. 28. Inputs from Kanwar PO STD is not there in Provost report, but is included in the report of Mess Secretary and subsequent investigations. It is however pertinent that the applicant himself has mentioned Kanwar's

29 O.A.No. 27 of 2014 : 29 : presence in Provost records. In our view, therefore, even though the commencement of the formal investigation was delayed, the subsequent procedures were in accordance with the laid down regulations and no prejudice has been caused to the applicant. 29. The Hon'ble Apex Court has held that trial per se is more important than investigations. In Union of India & Ors. vs. Major A Hussain, (1998) 1 SCC 537, though the examining the case of a court martial, the Apex Court held that:...when there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trail investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court martial unless it is shown that the accused has been prejudiced or a mandatory

30 O.A.No. 27 of 2014 : 30 : provision has been violated The case was put up to the Commanding Officer on 29 December 1994 who held over the case on that day and once again on 02 January The Commanding Officer, carried out investigation and summary trial of the applicant on 09 January, Before the Commanding Officer, the applicant while stating that he understood the charges pleaded not guilty to the same. He was warned in accordance with Reg 28 of Regs Navy, admitted to understanding it and made a statement in answer to the charges. 31. The applicant was summarily tried by the Commanding Officer on the following charges:-- I. On Sixteenth day of December 1994 at about 1430 hours used violence against S Rodrigues MCPO STD I No Z of Southern Naval Command Mess his

31 O.A.No. 27 of 2014 : 31 : superior officer in Catering Office and thereby committed an offence punishable under Section 45(c) of Navy Act, II. On Sixteenth day of December 1994 at about 1430 hours aid and abet Shri Francis MT Driver of Indian Naval Ship Venduruthy to strike S Rodrigues MCPO STD I No Z of Southern Naval Command Mess his superior officer in Catering Office and thereby committed an offence punishable under Section 45(a) of the Navy Act, 1957 read with Section 76 of the Navy Act, III. On Sixteenth day of December 1994 at about 1430 hours guilty of an act to the prejudice of good order and Naval discipline in that he created disturbance at Catering Office at Southern Naval Command Officers Mess and thereby committed an offence punishable under Section 74 of the Navy Act, 1957.

32 O.A.No. 27 of 2014 : 32 : 32. The relevant sections of the Navy Act are reproduced below: 45. Striking Superior officers.-- Every person subject to naval law who commits any of the following offences that is to say.-- (a) superior officer; or strikes or attempts to strike his (b) such officer; or draws or lifts up any weapon against (c) against such officer, uses or attempts to use any violence shall be punished.-- if the offence is committed on active service with imprisonment for a term which may extend to ten years or such other punishment as is hereinafter mentioned; and

33 O.A.No. 27 of 2014 : 33 : in any other case, with imprisonment for a term which may extend to five years or such other punishment as is hereinafter mentioned. 74. Offences against good order and naval discipline.-- Every person subject to naval law who is guilty of an act, disorder, or neglect to the prejudice of good order and naval discipline, not hereinbefore specified, shall be punished with imprisonment for a term which may extent to three years or such other punishment as is hereinafter mentioned. 76.Abetment of offences.-- Any person subject to naval law who abets the commission of any of the offences specified in sections 34 to 74 shall, whether the act abetted is committed or not in consequence of the abetment, and where no express provisions is made by this Act for the punishment of such abetment, be punished with the punishment provided for that offence.

34 O.A.No. 27 of 2014 : 34 : 33. Nine witnesses were examined by the Commanding Officer for prosecution. The applicant was defended by Lt. Commander P.K.V.Pillai who cross-examined the complainant and witnesses No.1. The applicant did not produce any witnesses for his defence. As per records, the applicant did not object to being defended by Lt. Commander Pillai nor did he ask for any other counsel to defend him. 34. It is observed that the applicant (as accused) was first told about the charges against him by the Investigating Officer on 29 December Applicant stated that he understood the charges. While he pleaded not guilty he did make a statement to the Investigating Officer. Similar stand was taken by him during investigation by the Executive Officer. While the case was put up to the Commanding Officer on 29 th December itself, it was held over on that day and on 02 January The Commanding Officer carried

35 O.A.No. 27 of 2014 : 35 : out his investigation, summarily tried the case and Remanded it for approval of Warrant Punishment on 09 January As brought out earlier, the applicant made a statement to the Commanding Officer. It is observed that he did not raise any objections or complaints while making the statement about not being aware or not understanding the charges or lack of preparation time to defend his case. Further, he also did not object to Lt. Commander Pillai defending his case nor did he make an issue of not having a qualified counsel or a person of his choice to defend him. He had an opportunity to do all this at that stage, therefore, in our view, there is no merit in the contention of the applicant at this stage about the lack of preparation time or a suitable counsel to defend his case. 35. The applicant made similar statements in relation to the charges to the Investigating Officer, Executive Officer and to the Commanding Officer. The statement being

36 O.A.No. 27 of 2014 : 36 : relevant is re-produced below: Q. Do you wish to make any statement in answer to the charges? A. Yes Sir, I was not feeling well that day, I was suffering from stomach pain and loose motions. I was ATT 'C' for 3 days from that day onwards. When I was going home after collecting medicines from INHS Sanjivani, PO STD Rajan told me that I am required urgently by LCDR AK Singh. When I asked why I have been called he told me that to enquire as to how I got three days ATT 'C'; I then told the same to Medical Officer who told me to see LCDR AK Singh. After I met LCDR AK Singh he told me to see EXO. I went and met EXO and he told me to go on ty duty. In order to proceed on ty duty, I went to mess where I felt like going to Latrine. When I was sitting in WC I heard some loud noise from the office, I went there to see what had happened. I saw that MCPO Rodrigues and one more man were fighting. I looked anybody else is there in the vicinity and saw PO STD Kanwar and

37 O.A.No. 27 of 2014 : 37 : MCPO Sinha taking food. I told the same to them and rang up NPM office to inform about the incident. 36. It is observed that the applicant in his statement in answer to the charges has not been specific in any manner as to from where he saw the fighting such as, was it through an open door or window or if he had entered the room per se. While it is true that he has pleaded not guilty to the charges, nowhere in his statement has he denied specific charges about physical violence against the complainant (Rodrigues) or helping Francis. He has also not indicated any previous issues or prejudices against him either from the side of the complainant (Rodrigues MCPO STD I) or witness No.1, Kanwar PO STD. 37.The learned counsel for the applicant has contended that PO STD Balakrishnan named in the Provost report has not been questioned and PO STD Kanwar who was not on the scene during the incident has been made a

38 O.A.No. 27 of 2014 : 38 : key witness. It is observed that the applicant himself never indicated presence of Balakrishnan PO STD, either in the Provost report or in statements before the Investigating Officer, Executive Officer or Commanding Officer. He has however brought out that he saw PO STD Kanwar and MCPO Sinha in the vicinity where the incident took place. It is also observed that even in the report of the Mess Secretary there is no mention of PO STD Balakrishnan, but PO STD Kanwar is mentioned along with other personnel who were present in the area. It is also pertinent that while Balakrishnan was not produced by the prosecution, the applicant was at liberty to call him as a defence witness, if he so desired. He has not done so and therefore at this stage there is no merit in the contention that PO STD Balakrishnan was not called as a witness. 38. The Sections of Navy Act under which the applicant was charged pertain to striking or use of violence

39 O.A.No. 27 of 2014 : 39 : against superior officers and offences against good order and Naval discipline and abetment of offences. It is not disputed that the alleged incident of fighting between S Rodrigues MCPO STD I and Shri Francis took place at about 1430 hours on 16 December His presence at the venue, at the time when the incident took place brought out by four witnesses, has also not been denied by the applicant. He himself has so stated in the provost report (Annexure A1) and during subsequent investigations. What has been disputed by him is his presence inside the Catering Office where the fighting actually took place. The complainant S Rodrigues MCPO STD I, a Superior Officer of the applicant, has brought out the presence of the applicant in the Catering Office and his abetment of Shri Francis in the provost report and during subsequent investigations. Witness No. 1 R. Kanwar PO STD whose presence at the scene has been brought on record by the applicant himself, has stated during investigations, that he saw the applicant

40 O.A.No. 27 of 2014 : 40 : coming out of the room where the fighting was taking place. No arguments or issues have been brought on record to show that the complainant and witness No.1 were making false statements. The applicant has not put forth any reasons to show they were prejudiced against him. Both of them have also stood firm in their testimony even when cross examined by defence. We therefore do not consider anything inappropriate in the Commanding Officer finding the applicant guilty. 39. As the punishments proposed to be awarded needed approval of higher authorities, the Commanding Officer has forwarded the summary of evidence to the Flag Officer Commanding in Chief, Southern Naval Command and the punishment was duly approved by the Chief of the Naval Staff on 15 February It is observed that the investigation by the Commanding Officer, the summary trial and subsequent approval of the punishments awarded

41 O.A.No. 27 of 2014 : 41 : were carried out in accordance with the laid down regulations. We do not observe any prejudice or violation of Article 14 of the Constitution of India in any way during the conduct of the summary trial. Therefore we do not agree with the learned counsel for the applicant that no fair trial was conducted. 40. As regards the quantum of punishment, the Hon'ble apex court in the case of Ranjit Thakur vs. Union of India & Ors. (1987) 4 SCC 611, held in para 26 that: 26. In Bhagat Ram v. State of Himachal Pradesh, (1983) 2 SCC 442, this Court held: [SCC p.453, SCC (L&S) p.353, para 15] It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of

42 O.A.No. 27 of 2014 : 42 : the misconduct Article 14 of the Constitution. would be violative of 41. As observed by the Apex Court, the quantum of punishment while not unduly harsh should be commensurate with gravity of offence. The applicant had been charged under Section 45 of the Navy Act (striking superior officers, Section 74 (offence against good order and Naval discipline) and Section 76 (abetment of offences). In our view, considering the high level of discipline expected and the sanctity of chain of command in the Armed Forces, it is indeed a serious offence to strike a superior officer or abet some one else to do so. It is also observed that punishments envisaged under Section 45 is imprisonment which may extend upto 05 years, under Section 74 imprisonment upto 03 years and under Section 76 it is punishment as applicable to the relevant sections, in this case, Sections 45 and 74. It is also observed that the applicant had been awarded 30 days detention (No.2) for an

43 O.A.No. 27 of 2014 : 43 : offence under Section 45 (striking superior officers) in May It is apparent that despite being punished once, the applicant has not learnt from his mistakes and has repeated the offence. Therefore, in our view, the punishments awarded in this case were not excessive considering the gravity of offence. 42. The learned counsel for the applicant claimed the benefit of the acquittal order passed in the criminal case launched against co-accused Shri Francis. In our view, acquittal order rendered in a different case has no relevancy in another trial even if it relates to the same incident. This view is fortified by the decision of the Allahabad High Court in the case of Akash Kumar Sharma & Anr. vs. State of U.P., Application No of The relevant observations of the High Court are as follows: 6. In order to appreciate the question of relevancy of a judgment of acquittal in the subsequent trial against another accused of the same incident, it seems to be just and expedient to examine the relevant provisions contained in the Evidence Act.

44 O.A.No. 27 of 2014 : 44 : Sections 40, 41, 42, 43 and 44 of the Evidence Act provides for relevancy of judgment of Courts of justice. Section 40 provides the circumstances in which a previous judgment, order or decree may be relevant to bar a subsequent suit or trial. Section 41 deals with the relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction. Section 42 deals with the relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41 in so far as they relate to matters of a public nature. Section 43 provides that judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Evidence Act. Section 44 deals with, fraud or collusion in obtaining judgment, or incompetency of the Court which delivered it. Therefore, a previous judgment, order or decree which is final, can be relied upon in any way as provided in sections 40 to 44 of the Evidence Act in a criminal case as well as in civil suits and not otherwise. 7. The Apex Court had occasions to consider the relevancy of judgments of acquittal in the subsequent trial being held against other accused. Some of the decisions of the Apex Court being

45 O.A.No. 27 of 2014 : 45 : relevant on the point in issue are as follows:- (1) S.P.E. Madras vs. K.V.Sundravelu (1978) 2 SCC 514; (2) Rajan Rai vs. State of Bihar, 2006 (1) SCC 191; (3) K.G.Premshanker vs. Inspector of Police & another, 2003 (1) JIC 206 (SC); (4) Karan Singh vs. State of M.P. AIR 1965 SC The aforesaid decisions have settled the legal position that judgments of courts of justice may be relevant under any of the provisions of sections 40 to 44 of the Evidence Act and not otherwise. In other words, if any judgment, order or decree of a court does not fulfill requirements of any of the aforesaid sections, it has no relevancy and must be held to be irrelevant. It is also well settled that every trial has to be decided on the basis of the evidence adduced in the trial itself, therefore, the previous judgment of acquittal rendered in a trial, if it is not relevant under any of sections 40 to 44 of the Evidence Act has no relevancy in the subsequent trial being held against co-accused and he can not be permitted to claim any advantage of such judgment, which is merely an opinion of the judge on the basis of the evidence led in the previous trial.... In this view of the

46 O.A.No. 27 of 2014 : 46 : matter the proceeding of the session trial being held against the petitioners cannot be quashed on the basis of the judgment of acquittal rendered in favour of co-accused persons. 43. In view of the above, in our view, the verdict in case of Shri Francis is of no help to the applicant. As earlier brought out, the charges against the applicant were proved and the quantum of punishment is in keeping with the gravity of offence committed by him. 44. We would like to place on record that while, we find that the procedures have been correctly followed and the applicant was given a fair hearing, it is observed that the records have not been kept properly. Even though the key records pertaining to the trial have been produced in original such as the Provost report, Punishment Warrant Form, IN 442 (trial conducted by the Commanding Officer), the statements of witnesses during trial by the Commanding Officer and summary of evidence, some of the other

47 O.A.No. 27 of 2014 : 47 : documents are photostats. It is also observed that identical statements have been made by the applicant and the complainant before the Investigating Officer, Executive Officer and the Commanding Officer. However it is pertinent that during investigation and trial by the Commanding Officer, all the statements recorded have been witnessed by the officer defending the applicant and he has also been given an opportunity to cross question witnesses. Further, the applicant himself has filed all documents relevant to trial by Commanding Officer as Annexures 1 to 3. Therefore, in our view, while there are some shortcomings, it has not vitiated the conduct of the trial in any manner. 45. In view of the reasons stated herein above, we do not find any legal infirmity or bias or any other reasons to set aside the punishments awarded to the applicant including

48 O.A.No. 27 of 2014 : 48 : dismissal from the Navy and therefore the Original Application is dismissed. 46. There will be no order as to costs. 47. Issue copy of the order to both side. Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J) an (true copy) Prl.Pvt.Secretary