TMI Blog2013 (9) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... fine of ₹ 10,000/- or six months imprisonment in default of payment of fine which was imposed on him. (iii) the order dated 27th August, 1991 passed by Admiral L.R. Ramdas, Chief of the Naval Staff under section 163 of the Navy Act, 1957 maintaining the conviction of the petitioner on all charges except the charge 20 and reducing the sentence of imprisonment to the period of imprisonment already undergone while maintaining the other punishments. (iv) the order dated 8th December, 2010 passed by the Armed Forces Tribunal in T.A. No. 23/2009 (v) and the order dated 23rd December, 2010 passed in M.A. No. 448/2010 by the Armed Forces Tribunal. The writ petitioner complains of violation of his Fundamental Rights under Articles 14, 19(1)(g) and 21 of Constitution of India as well as his statutory rights under the Navy Act, 1957 and principles of natural justice. Factual Narration 2. The petitioner was commissioned into the Indian Navy on 1st July, 1970 as Sub-Lieutenant. It is an admitted position that the petitioner was awarded the Sword of Honour for being the Best Mid-Shipman of his course. He has held various important assignments ashore and afloat during h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Board of Inquiry, Vice Admiral L. Ramdas appointed an Investigating Officer under Regulation 148 who recorded the Summary of Evidence in the matter. We are informed that the petitioner was not associated with this. 8. The petitioner has submitted that Commander B.K. Ahluwalia was the then Judge Advocate of the Command, who helped the investigating officer in drafting the chargesheet and the circumstantial letter i.e. the application for trial by court martial of the petitioner. 9. It is also necessary to note that the then Vice Admiral L. Ramdas who was the Flag Officer Commanding-in-Chief, Eastern Naval Command was the Convening Authority who took the decision on 1st November, 1990 to try the petitioner by court martial. 10. We may also note that the petitioner had filed a writ petition before the Andhra Pradesh High Court on 2nd January 1991 praying, inter alia, for a stay of the court martial proceedings. The High Court granted a stay of the court martial proceedings on 4th January 1991. This order was vacated on 26th February 1991. 11. The court martial proceedings recommenced which culminated in the finding of guilt against the petitioner on the 15th of Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is noteworthy that by the time the petitioner's judicial review came up for consideration, Vice Admiral L. Ramdas stood promoted as Admiral and had also been appointed as Chief of the Naval Staff. 17. An order dated 27th August, 1991 was passed by Admiral L. Ramdas in judicial review of the order of conviction and sentence of the petitioner. By this order, Admiral L. Ramdas dropped one charge i.e. Charge No. 20 against the petitioner and reduced his sentence of imprisonment to the period already spent in jail. The other two punishments were however maintained. We are informed that in order to avoid further imprisonment of six months, the petitioner deposited the fine of ₹ 10,000/- on the 5th of September, 1991 in terms of order of punishment. 18. Aggrieved by the above orders of the respondents, the petitioner filed W.P.(C) No. 3582/1997 in this court. This petition was transferred to the Armed Forces Tribunal where it was registered as T.A. No. 23/2009. The Armed Forces Tribunal considered the matter at length. By the judgment dated 8th December, 2010 the Tribunal set aside the findings of guilt of the court martial on all charges other than the charge No. 7. The T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contain the list of charges on which it is proposed to try the accused. (2) Subject to the provisions of the Act, a charge sheet may contain one or more charges. (3) Every charge sheet shall begin with the name and description of the person charged and state his rank, the number and the ship to which he belongs. (4) Each charge shall deal with a distinct offence and in no case shall an offence be described in the alternative in the same charge. (5) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. (6) If the law which creates an offence does not give it any specific name, so much of the definition of the offence must be stated so as to give the accused notice of the matter with which he is charged. (7) The law and the section of the law against which an offence is said to have been committed shall be mentioned in the charge. (8) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged with is fulfilled in the particular case. (9) The charge shall contain such particulars as to time and place of the all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framed and carefully drawn up. (2) The convening authority shall not convene a court martial unless he has satisfied himself that the evidence if uncontradicted or unexplained will probably suffice to ensure a conviction. (underlined by us) 157. Amendment of Charges by Convening authority. (1) The convening authority may amend the charges submitted to him and thereupon a fresh charge sheet shall be drawn up and signed by the convening authority and the charge sheet so amended shall stand substituted for the original charge sheet. (2) Where the charge sheet has not been amended, it shall be counter signed by the convening authority. Violation of Regulation 156-non application of mind by the Convening Authority. 21. Two fold submissions are made by Mr. D.J. Singh, Advocate in support of this objection. The first rests on the proceedings and steps undertaken by the respondents from reading of the charges (under Reg 153) to convening of the court material (under reg. 156) on the 1st of Nov 1990). The second submission is that there was no material or evidence to support the charges against the petitioner and that the commanding officer and the Convening Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision as to whether to convene a court martial has to be taken by the Commander-in-chief. 26. The importance of the compliance of Regulation 156 is writ large from the jurisdiction conferred upon the Convening Authority under Regulation 157 to even amend the charges submitted to him and thereafter direct a fresh charge sheet to be drawn up. As per Regulation 157, the Convening Authority was to take such decision on the circumstantial letter as may be necessary on the basis of the charge sheet and the summary of evidence. 27. After satisfaction in terms of the above regulations, under Regulation 159, the Convening Authority is required to issue warrants to the officer nominated by him as the President of the court martial directing him to assemble a court martial. 28. It appears that there was an inconsistency between the charge sheet and the contents of the circumstantial letter. In the charge sheet, allegations of misappropriation had been made whereas in the circumstantial letter, reference was made to diversion of funds for the purposes of the ships ward room and captain's cabin in lieu of various repair work. 29. Mr. D.J. Singh, learned counsel appearing fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 156 and application of mind by the Convening Authority in terms thereof. 34. The amended charge sheet, circumstantial letter and documents were served upon the petitioner on the very next day i.e. the 2nd of November, 1990 by the Trial Judge Advocate, Commander B.K. Ahluwalia. 35. Learned counsel for the petitioner points out that as a result of the dropping of the charge, concerned portions in the circumstantial letter required modifications. This was not done. This circumstance is also pressed in support of the petitioner's contention that there was no application of mind to the material which was placed before the Convening Authority. 36. If the respondent's plea were to be accepted, it would require acceptance of the suggestion that preparation of the circumstantial letter and compilation of the record which included documents in excess of 1000 pages; summary of evidence of over 55 witnesses; copies of exhibits, etc. for perusal of the Convening Authority was undertaken after completion of the reading of the charges to the petitioner after about 16:00 hours on the same day. It further means that the Convening Authority examined the Circumstantial Letter as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te later, that the proposal had reached the detaining authority along with 2272 out of 2301 pages much earlier. The proposal was sent to the Head Office on 18th April, 1996 which consisted of as many as 2272 pages. It was only the additional material in few pages, (in all 29 pages) which was sent on subsequent dates, which, in turn was forwarded by the Head Office of the sponsoring authority to the detaining authority immediately. 23. Both the learned Counsel Shri Khan and Shri Gupte placed reliance on three un-reported decisions of this Court. In Criminal Writ Petition No. 397 of 1992 of Mohd. Ahmed Ibrahim, decided on 22nd April, 1992 (Puranik Chapalgaonkar, JJ.), the proposal consisted of 262 pages. The order of detention was issued by the detaining authority in Delhi on 9th April, 1991 though the papers were sent by the sponsoring authority from Mumbai on 9th April, 1991 itself, alongwith the documents to Delhi. Some of the documents had come into existence on 9th April, 1991 itself. Some documents had come into existence on the 4th and 8th April, 1991 and they have been referred to as having taken birth in the week preceding the order of detention. It was in these peculia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support a plea that the decision was an informed one, and arrived at after due application of mind. 38. The scrutiny of and application of mind to the circumstantial letter; charge sheet; summary of evidence; exhibits dealing with minute statistical details; decision to amend and retyping of the charge sheet; issuance of various orders relating to the court martial, is claimed to have been completed by the Convening Authority on receipt of this voluminous record on the 1st of November, 1990 itself. Interestingly all claimed to have done after 16:00 hours (when the hearing of charges was completed), only a couple of working hours remain available. It is humanly impossible to have meaningfully completed the above exercise within the available working hours. 39. In this regard, learned counsel for the petitioner has also drawn our attention to the pronouncement reported at AIR 2009 SC 1100, Rajiv Arora v. Union of India wherein the court held as follows:- 14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non-examination. If the basic principles of law have not been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above circumstance lends substance in the petitioner's contention that the statement of Shri D.K. Das, Branch Manager, State Bank of India and Wing Commander Dawra were manipulated by the prosecution on 8th of November, 1990 and 30th of November, 1990. Shri Das was examined thereafter as PW 12 while Shri Dawra was examined as PW 8 during the petitioner's trial by court martial. 45. It appears that the order directing convening of court martial as well as the order of appointment of the Trial Judge Advocate were passed when there was no evidence/material on record in support of charge No. 7. 46. As per Regulation 156, the Convening Authority is required to satisfy himself not only that the charges are properly framed but also that the evidence if uncontradicted or unexplained would probably suffice to ensure a 'conviction'. On the issue of what would constitute 'satisfaction', reference may usefully be made to the pronouncement of the Supreme Court reported at (1997) 7 SCC 622, Manusukhlal Vithaldas Chauhan v. State of Gujarat wherein the court held thus:- 19. Since the validity of Sanction depends on the applicability of mind by the sanctioning a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recording of the complete summary of evidence before an application for trial can be made. These facts clearly support the petitioner's contention that recording of the summary of evidence was undertaken on different occasions by the respondents to fill the gaps and lacunae in the prosecution case. It also substantiates the petitioner's grievance that the summary of evidence was given to him on different occasion by the Trial Judge Advocate. 50. So far as application of the principles laid down in the aforenoticed judicial precedents to the instant case is concerned, it is an admitted position that on 1st of November, 1990, there was no evidence on charge No. 7 in the Summary of Evidence which could have been considered by the Convening Authority to direct a trial on this charge. It therefore, has to be held that the direction of the Convening Authority to direct the court martial was based on conjectures and surmises rather than any material in support of the charges. There was no evidence before the Convening Authority at all on charge No. 7. The Convening Authority failed to comply with the mandate of Regulation 156. Failure to permit inspection of documents 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... martial ought to be convened, he shall issue a warrant in the prescribed form together with a copy of the charge sheet to the officer nominated by him as president of the court martial directing him to assemble a court martial at the place and on the date mentioned in the warrant. (2) The circumstantial letter shall not be communicated to the president or to the other members of the court until the court assembles and is duly sworn. (3) The summary of evidence shall on no account be given to the president or the other members of the court at any stage of the proceedings. 55. The Trial Judge Advocate ('TJA') is legally required to ensure that the trial is conducted in accordance with the Provisions of the Indian Navy and the Regulations framed thereunder. From the above, it appears that the Trial Judge Advocate does not sit with the members of the court martial at the time they give their findings on the charges but he sits with them at the time of deciding the sentence under Regulation 157. 56. The Regulations confer further powers on the TJA. Any objection against the question put to a witness is required to be decided by the TJA under Regulation 179. By virtu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. The judicial review requested by the petitioner pursuant to the provisions in the Regulations was placed before this very Judge Advocate General. The petitioner had thus objected to his objectivity. 61. It has been submitted that having taken a prima facie view in the matter and having actively engaged in the processing of the records coupled with the recommendations which had been made, the proceedings and orders against the petitioner are vitiated on account of the institutional bias on the part of the Judge Advocate General also. 62. On the aspect of institutional bias of the Trial Judge Advocate, learned counsel for petitioner has placed reliance on the pronouncement of the Himachal Pradesh High Court reported at 1980 (3) SLR 124, Sansar Chand v. Union of India Ors. In this case also an objection was taken with regard to bias of the Judge Advocate in a general court martial under the Army Act. On this issue, the court has observed as follows:- 32. It must be borne in mind that not only a bias but a real likelihood of bias will also result in disqualification. The Supreme Court in S. Parthasarathi v. State of Andhra Pradesh 1974 (1) SLR 427, dealing with a similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judge Advocate General in terms of Section 162 of the Navy Act. It is submitted that the judicial review was improperly conducted by the very person who had prima facie found merit in the charges and had passed the order dated 1st November, 1990 convening the court martial. The factual narration in this regard is undisputed. 66. The order dated 1st of November, 1990 amending the charge sheet against the petitioner as well as the order of the same date directing court martial to be convened was passed by the Vice Admiral L. Ramdas (as the then Flag Officer Commanding-in-Chief of the Easter Naval Command). Prior thereto, in 1989, he had initiated the board of inquiry as well. Thereafter, on receipt of its report, he had appointed the Investigating Officer and ordered recording of the Summary of Evidence. The then Vice Admiral, Ramdas had passed the orders on 1st November, 1990 appointing the Trial Judge Advocate and the prosecutor. 67. In 1991, on receipt of the petitioner's application dated 29th July, 1991, the Judge Advocate General carried out the review under Section 160 of the Navy Act. In accordance with Section 160 of the Navy Act, his report was placed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view by the Judge Advocate General can be either suo moto or an application made to him by an aggrieved person. The Judge Advocate General is required to transmit the report of such review with such recommendations as may appear just and appropriate, to the Chief of the Navy Staff for his consideration and for such action as the Chief of the Navy Staff deems fit. In the instant case, the petitioner sought the review by an application under Section 160 of the Navy Act. 70. We notice that there is no statutory mandate under Section 161 that the Chief of the Naval Staff must necessarily consider the report of the JAG himself. Section 161 of the Navy Act permits the Chief of the Naval Staff to transmit the proceedings as well as report of the Judge Advocate to the Central Government in cases as the present with such recommendations as he may deem fit. Thus discretion is conferred on the Chief of the Naval Staff, in cases other than cases of capital sentence, whether to consider the report of the Judge Advocate General on judicial review or to refer the matter to the Central Government. 71. The question which arises is as to whether there was real likelihood of bias in the mind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng superior's orders and the very officer whose orders he alleged to have disobeyed, sat as a member of the court martial. It was held that the proceedings were vitiated by bias. We may usefully extract the relevant observations of the Supreme Court which read as follows:- 15. The second limb of the contention is as to the effect of alleged bias on part of respondent 4. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way. 16. It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial corm non-judice . (See Vassiliades v. Vassiliades AIR 1945 PC 38.) 17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich he may be interested in supporting. 78. Mr. Singh, learned counsel for the petitioner has drawn our attention also to the judicial pronouncement reported at 2012 (12) SC 331 Ramesh Ahluwalia v. State of Punjab. In this case, the school principal had supported the case of the school management against the delinquent employee. A question arose about the propriety of the participation by the same school principal in the disciplinary proceedings. It was held that the participation of the principal was inappropriate inasmuch as he had already supported the case of the school management. The Supreme Court reiterated the established legal principle that justice must not only be done but it must also appear to be done. 79. Mr. Singh, learned counsel for the petitioner has also placed reliance on the principle laid down by the Supreme Court in 2011 8 SCC 380 P.D. Dinakaran (I) Judges Inquiry Committee. After a detailed discussion, binding principles were laid down by the Supreme Court in para 43 of the pronouncement, the court cited with approval a judgment of Queen's Bench which reads as follows:- 43. In R. v. Rand [(1866) LR 1 QB 230] the Queen's Bench was called u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d because there was no conflict between duty and interest of the committee members and no one was a judge in his own cause. 81. In the instant case, there is nothing to show such independence on the part of the Chief of Naval Staff reviewing authority. Both had taken a view at several stages in the matter. 82. The Chief of the Naval Staff while functioning as the Flag Officer Commanding-in-Chief, Eastern Naval Command had already taken a view at every stage of the matter after receipt of the anonymous complaint. It is unnecessary to go into the question as to whether or not the judicial review by the Chief of the Naval Staff was actually fair or not. Given his involvement in the prosecution of the petitioner at the earlier pre-trial stages; his having accorded his satisfaction with regard to the charges against the petitioner and ordered the court martial to convene, there is every possibility of his being biased against the petitioner. He had taken a view in the matter. It is reasonable to expect that he would be interested in supporting it. He was the authority who passed the orders appointing the prosecutor as well as the Trial Judge Advocate. To expect independence of min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Board, New Delhi towards a flat booked by him for his personal use, thereby committed an offence punishable under section 403 of Indian Penal Code read in conjunction with section 77(2) of the Navy Act 1957. 90. The charge thus related to preparation of a draft of rupees fifty thousand on behalf of the petitioner for payment to the Naval Housing Board. 91. The petitioner disputes that he has misappropriated any amount from S.B. Account No. C3081 which was held in the name of the Commanding Officer, INS Magar . In support of this contention, reliance has been placed on the testimony of PW-12-Shri D.K. Das, Branch Manager, State Bank of India recorded before the court martial. It is urged that confusion appears to have been arisen because of two saving bank accounts maintained with the State Bank of India and two cheques for the same amount (₹ 20,000/-) having been drawn on these accounts on the same day. One saving bank account being account No. C3081 was held in the name of the Commanding Officer, INS Magar which was operated jointly by the petitioner herein and the Staff Officer Lt. A.K. Ahuja. The petitioner was maintaining a separate personal account bearing S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is noteworthy that the summary of evidence and the exhibits were placed before the Convening Authority before the court martial was ordered on 1st of November, 1990. On this date, there was no evidence to support charge No. 7 in this material. Conscious of this, the prosecution recorded additional evidence even after the Convening Authority had ordered the court martial. The parties have placed before us a statement of Shri D.K. Das, Branch Manager so recorded on 8th of November, 1990 as part of the summary of evidence. In this statement, Shri Das had stated about the preparation of the bank draft for ₹ 50,000/- which was the subject matter of the charge: (n) A draft in favour of Air force Naval Housing Board was made by us on 30.12.88 for ₹ 50,000/- ₹ 20,000/- was paid by cheque No. 184159 from the account of Commanding Officer, INS Magar and balance ₹ 30,000/- paid in cash, signed by Commander Avtar Singh (Draft No. 112759 ₹ 30,000/- was withdrawn on 30.12.88 from A/C No. C-7635, personal account of Commander Avtar Singh). 99. We may note that the above statement was made by Shri Das, the Branch Manager based on the letter dated 23rd June, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o correct. Whereas the cheque number which you have mentioned is not correct. The correct cheque number is 180854 for ₹ 20,000/- instead of 184159 and the relevant cheque was on SBI account No. C7635 of Cdr Avtar Singh. This cheque was not on the account of CO. INS Magar. However, the balance of ₹ 30,000/- of the draft in question was paid in cash. It was general mistake occurred due to the fact that ₹ 20,000/- was withdrawn from SBI account No. C7635 of Cdr Avtar Singh personal account and also from C3081 that is account of CO. INS Magar. (Emphasis by us) 101. The Branch Manager, State Bank of India has therefore clearly explained the mistake in the letter sent by the Bank (Exh. P-56) statement which was recorded in the summary of evidence. 102. The statement of account of the petitioner's Saving Bank account C7635 was proved on record which shows that an amount of ₹ 50,000/- had been withdrawn by the petitioner shortly before the preparation of the bank draft. The prosecution had thus clearly established the availability of this cash amount in the hand. 103. PW-12 Shri D.K. Das, Branch Manager had deposed before the court that the bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque for ₹ 20,000/- rest by cash. I was seeing the debit in CO. Magar's account of ₹ 20,000/- which is identical with amount of cheque deposited against issuance of draft. I thought it was the same withdrawal. But after receiving the summons when I was required to produce the certified copies of the records I have to carefully scrutiny all the records and at that stage only the withdrawal in Cdr Avtar Singh's personal account for issuance of the draft had come to my notice. 105. The above testimony is unequivocal that the cheque of ₹ 20,000/- from the petitioner's personal account was used for preparation of the draft and the balance amount of rupees thirty thousand was by cash. Despite repeated efforts to persuade this witness to show that the cash amount withdrawn by cheque No. 184159 from the ship's saving bank account No. C3081 on 30th December, 1990 was used towards preparation of the draft, the witness did not say so. 106. It is clearly evident that a total amount of ₹ 30,000/- was given by cash to the bank and a cheque of ₹ 20,000/- was given from the petitioner's personal account was used for the preparation of the ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said SB Account No. C-7635. We find that this deposit stands duly reflected in the statement of account of the petitioner's saving bank account proved by the prosecution on the record of the court martial as Exh. C-06. The petitioner had actually withdrawn an amount of ₹ 50,000/- from his personal account on the eve of ship's departure from Calcutta for personal use. Our attention is drawn to the Exh. C-96-which is the bank statement of account of SB account No. C-7635 (page 233). The deposit of ₹ 50,000/- as well as withdrawal of ₹ 50,000/- (just before the cheque transaction of ₹ 20,000/- on 30th December, 1988) are reflected therein. This document thus establishes that the petitioner had available a large amount and had the capacity to pay ₹ 30,000/- in cash and the cheque of ₹ 20,000/- dated 30th December, 1988 towards preparation of the said bank draft of ₹ 50,000/-. The evidence of the independent witness PW 12 Sh. D.K. Das clearly supports this position who has referred to cash amount of ₹ 30,000/-. 113. There is yet another important circumstance which has been overlooked in this matter. Mr. Singh, learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutored witness unworthy of reliance. It is the testimony of PW 12 an independent witness must be accepted. 117. Mr. D.J. Singh, learned counsel appearing for the petitioner has brought out the important circumstance that PW4-Lt. A.K. Ahuja was certainly nursing vengeance against the petitioner. During cross-examination, PW4-Lt. A.K. Ahuja gave evidence with regard to an occasion when the petitioner had roughed him up on board the ship. PW 4 Lt. A.K. Ahuja has further stated that he felt humiliated by the treatment meted out to him by the petitioner. It is pointed out that PW 4 was taken heavy drinking. PW11-Lt. (SDG) Dr. G.S. Deol has also deposed about the fact that PW4-Lt. A.K. Ahuja was taken to excessive drinking, on occasions from the time the bar opened till it closed even. In answer to question Nos. 2225 and 2259 PW-30 Cdr George has also testified with regard to the addiction to alcohol of PW4-Lt. A.K. Ahuja. Before the Tribunal, the petitioner had also highlighted the testimony of PW-53 in question No. Q/A 4349 to the effect that his own batch mates kept away from Lt. A.K. Ahuja as they felt that he was not a right sort of person to deal with. 118. This factual p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that A-4, A-5 and A-7 had also assaulted the deceased but it was found that he had not said so in the course of investigation in his statement recorded under Section 161 Cr. P.C. The trial court, therefore, did not accept this part of the evidence of PW-6, PW-4 stated that as many as 5 other accused, apart from A-1 and A-2 assaulted the deceased and in this connection he involved A-3, A-4, A-6, A-7 and A-8. No other witness had stated so and, therefore, the trial court did not accept this part of his evidence. On the other hand PWs. 3, 5 and 8 deposed that only A-1 and A-2 had actually assaulted the deceased. On the basis of such evidence on record, we do not find any fault with the finding of the trial court that only A-1 and A-2 assaulted the deceased and no other accused assaulted him. 121. Learned counsel for the petitioner urges that the petitioner's conduct was completely above board and all transactions transparent. It is urged that all amounts received for the ship were properly accounted for. The petitioner has also explained the manner in which the amount of ₹ 20,000/- which was withdrawn from the account of the ship on the 30th of December, 1988 was appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who released the amount after due scrutiny to the Commanding Officer of the ship (the petitioner) only on the 23rd of November, 1988. 126. The bill dated 11th October, 1988 of M/s. Art and Kraft for the high back/titling/revolving chair for the amount of ₹ 7,000/- was submitted to M/s. Garden Reach Ship Builders and Engineers Limited on 23rd October, 1988 which released the amount on 23rd of November, 1988 again after an obvious scrutiny. 127. Our attention has also been drawn to communication dated 18th November, 1988 of INS Magar which included the aforenoticed bills dated 8th October, 1988 and 11th October, 1988 for the amount of ₹ 6,720/- and 7,000/- in respect of two chairs. A request was made for reimbursing the amounts of several bills which totalled ₹ 1,89,350.00 mentioned in this letter. These bills included the bills for the chairs. 128. As per statement of account of S.B. A/c. No. C3081 of the ship account, this amount of ₹ 1,89,350/- was credited only on 29th of November, 1988. 129. In order to establish that these two chairs were actually received on board, INS Magar, PW11-Lt. CDR (SDG) Dr. G.S. Deol in his answers to question No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and bears the signatures of three independent officials who had been constituted the Work Overseeing Team and had recorded the Work Completion Report. The respondents do not assail the correctness of this document. 133. It is noteworthy that there is no dispute so far as the correctness or the authenticity of the Work Completion Report is concerned which establishes that the two chairs had been duly supplied and installed on board the ship. In view of the aforenoticed documents, the submission of the respondents before us that the chairs never came on board the ship has to be rejected. 134. Our attention has been drawn to the copy of the bills dated 8th October, 1988 (Ex. P-36), which contains 'H 54' in handwriting. The bill dated 11th October, 1988 (Ex. P37) similarly contains H 35 in handwriting. '11-54' and 'H-31' have been mentioned by the authority while processing the bills, obviously after due scrutiny. 135. We also find in the communication dated 18th November, 1988 reference is made to the Work Completion Report which was signed by the WOT and the ship's officer in which again reference to 'H-54' and 'H-31' is made. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Light fixtures and shade for wardroom and CO s cabin ₹ 6354/- 4. Ship s Welfare Fund ₹ 10,000/- Total ₹ 21354/- (vii) Thereafter only a balance of ₹ 20,700.80 remained in the saving bank account. The amount of ₹ 20,000/- was withdrawn by cash on the 30th of December, 1988 from the SB A/c. No. C3081 which was used for making payment towards the godrej executive chairs and wooden headings for the wardroom and wooden boxed for ship's speakers. (viii) The bills proved on record shows that the total cost of the two chairs was ₹ 13,200/- (ix) The amount of the bills for the chairs had been taken on temporary receipt from the non-public fund (canteen fund) and returned to it from the amount of ₹ 20,000/- (x) The balance amount was used to make payment for the wooden headings and wooden boxes for speakers. This aspect has not been considered in detail inasmuch as the same is not the subject matter of the charge. (xi) Thus, after utilization of the amount of ₹ 20,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .K. Das, Branch Manager, State Bank of India is supported by documentary evidence of bank statements of the two accounts and the cheques. The testimony of PW 4 Lt. A.K. Ahuja is tenuous and unbelievable. It merits disbelief by the very fact that if the stated facts were true, Lt. Ahuja would have made disclosure thereof on the first occasion. In fact he would have lodged the complaint against the petitioner. 146. It is important to note that PW12-Shri D.K. Das, Branch Manager, State Bank of India had deposed with regard to cash payment of ₹ 30,000/- and payment of ₹ 20,000/- by cheque. This witness has nowhere stated that cash amount of ₹ 30,000/-, comprised of ₹ 20,000/- drawn from the ships account No. C3081 and only ₹ 10,000/- in cash was handed over to PW-4. 147. The observations of the tribunal also show that the prosecution has failed to establish the charge beyond reasonable doubt. The presumption which has been drawn by the Tribunal is not based on any material evidence. The Tribunal also refers to using an amount for a different purpose which itself reflects that the amount has not been misappropriated. Mr. D.J. Singh, Advocate refers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficiency of evidence as a ground for interference. 153. We are satisfied that the finding of the Armed Forces Tribunal in the instant case is based on no evidence at all. The impugned order manifests an error of law which is therefore, not sustainable and is liable to be corrected by issuance of appropriate writ. 154. Before parting with this case, we may note that though no objection has been raised by the respondents with regard to maintainability of the petition, the petitioner has stated that he had filed a Miscellaneous Application No. 448/2010 before the Armed Forces Tribunal for leave to appeal to the Supreme Court which, by an order dated 23rd December, 2010 was rejected. The petitioner thereafter filed a Special Leave Petition being SLP(C) Nos. 12430-341/2011 before Supreme Court of India which was dismissed 'in limine' by an order dated 10th May, 2011. Placing reliance on the pronouncement of the Supreme Court reported at (1986) 4 SCC 146, Indian Oil Corporation Ltd. v. State of Bihar and others, the petitioner has filed the instant writ petition contending that his right to invoke extra writ jurisdiction of this court under Article 226 of the Constitution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporation for the first time during the course of arguments and over turn an otherwise well reasoned award passed by the Labour Court and depriving the appellant of what may be the only source of his sustenance and that of his family. In para 21 of this judgment, the Court quoted an extract from Justice Mathew treatise Democracy, Equality and Freedom , the relevant part whereof reads as follows:- 27...Where large number of people are unemployed and it is extremely difficult to find employment, an employee who is discharged from service might have to remain without means of subsistence for a considerably long time and damages in the shape of wages for a certain period may not be an adequate compensation to the employee for non-employment. In other words, damages would be a poor substitute for reinstatement. In the instant case, also, the petitioner was the bread earner of the family and by one stroke of the pen their complete means of support would have been extinguished. 159. On this very aspect, we may carefully refer to Division Bench judgment of the Rajasthan High Court reported at 1998 (1) WLC 646 (decision dated 19th November, 1997 in Civil Special Appeal No. 1007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings, and depending on the final outcome, [vide C.B. judgment in Managing Director ECIL Ltd. v. B. Karunakar: (1994) ILLJ 162 SC ]. 33. While considering the issue of entitlement of back wages, court must record a finding that employee was not otherwise gainfully employed during the relevant period and whether he was free from the blame, [vide State of U.P. and Ors. v. Atal Bihari Shastri and Ors. 1993 Suppl. (2) SCC 207]. 160. In the case in hand, the order of termination of the petitioner's service has been quashed on merits. The petitioner's case is covered under Serial No. 'A' above. No circumstance which could disentitle the petitioner to grant of full salary has been pointed out. In view of the findings returned by us, the petitioner deserves to be compensated for his confinement which was unwarranted. So far as his dues of salary are concerned, no reason has been pointed out to justify deductions from the petitioner's dues. The respondents have not placed anything to show that the petitioner was in gainful employment after dismissal of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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