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2018 (4) TMI 1939 - SC - Indian LawsValidity of order of dismissal from the service - punishment of forfeiture of seniority of 24 months, also passed - It was observed that when the Respondent had been awarded the punishment of dismissal from service, second punishment, namely, forfeiture of seniority for 24 months did not make any sense - HELD THAT - From the evidence discussed above, it stands established that calls were made from Cell Phone No. 9564784782. However, some controversy has arisen in respect of CDRs produced from the service provider, namely, Vodafone South Mumbai and the Respondent is trying to take advantage thereof. In this behalf, it may be mentioned that in the NOFRA records, though Cell Phone No. 9564784782 is rightly mentioned, the said phone number is displayed as belonging to Idea network. On that basis, it was argued that NOFRA CDRs could not have been relied upon. However, it needs to be recorded that the Appellants had given satisfactory explanations for the aforesaid mistake. It was explained before the AFT that the mobile number of the Respondent had been erroneously shown as an Idea Cell Number due to feeding of Code 95 as that of Idea Cell in the system of NOFRA. This was also clarified by Mr. Fernandes who appeared as CW-2. He was the Programmer of the NOFRA system. It is significant to point out that there is no cross-examination by the Respondent on this point - It is also pertinent to note that apart from raising the dispute that NOFRA record shows that it was Idea Cell number, it is not disputed that phone number in question as recorded in NOFRA system is the same which belongs to the Respondent. It is only the description of the phone number that had been erroneously displayed as Idea Cell which aspect has been satisfactorily explained by the Appellants. It would be of no significance, inasmuch as same Cell number could not belong to both the Idea as well as Vodafone. Learned Counsel for the Appellants rightly argued that non-production of the certificate Under Section 65-B of the Indian Evidence Act, 1872 on an earlier occasion was a curable defect which stood cured. Law in this behalf has been settled by the judgment of this Court in Sonu alias Amar v. State of Haryana 2017 (7) TMI 1366 - SUPREME COURT . In any case, this Court has examined the records having regard to the submissions made by Dr. Sharma on behalf of the Respondents. However, no case is made out that the conclusion arrived at by the Tribunal was utterly perverse which no reasonable person could have arrived at. We have not found any such infirmity at all - there are no merit in the appeal preferred by the Officer. Quantum of sentence given by the AFT - HELD THAT - After setting aside the sentence of dismissal from service, the Tribunal has substituted the same by the sentence of loss of seniority for 24 months. Further, while directing reinstatement in service, the Tribunal has also ordered that the Respondent herein shall not be entitled to pay and allowances for the period from the date when he was dismissed from the service till the date of reinstatement, if it is within three months from the date of order of the Tribunal. The Respondent has not reinstated in service as this Court had, vide orders dated August 31, 2015, stayed the operation of the said order/direction. Thus, the Respondent is still out of service and, therefore, lost his salary from the date of the order of the Tribunal which was passed on March 04, 2015. The Respondent was dismissed from service vide orders dated January 26, 2013. For all these reasons, the order of the Tribunal on sentence, need not be interfered, inasmuch the effect is that not only seniority of the Respondent is forfeited by 24 months, he is also deprived of his salary for more than five years. Such a sentence, would meet the ends of justice and in these circumstances discretion exercised by the Tribunal does not need any interference. The Respondent herein shall be reinstated in service within 2 weeks from the date of passing of this order and he shall not be entitled to any salary for the intervening period, i.e., from the date of dismissal till the date of reinstatement - appeal dismissed.
Issues Involved:
1. Validity of the court martial proceedings and the charges against the Respondent. 2. Admissibility and reliability of the Call Data Records (CDRs). 3. Quantum of punishment awarded by the Armed Forces Tribunal (AFT). Detailed Analysis: 1. Validity of the Court Martial Proceedings and the Charges Against the Respondent: The Respondent was charged with ten offenses, leading to a court martial that found him guilty on all charges, resulting in his dismissal from service and forfeiture of 24 months of seniority. The Respondent challenged this before the AFT, which set aside the findings of guilt for three charges due to misjoinder but upheld the remaining seven charges. The AFT found the punishment of dismissal disproportionate and reduced it to forfeiture of seniority for 24 months, directing reinstatement without back wages. The Supreme Court examined the evidence and found that the Respondent had indeed possessed the mobile number from which the obscene calls were made. The Court noted that the Respondent provided inconsistent explanations regarding the sim card's possession and use, which weakened his defense. The Court upheld the AFT's findings that the Respondent's explanations were not credible and that the prosecution had satisfactorily proven the charges. 2. Admissibility and Reliability of the Call Data Records (CDRs): The prosecution needed to prove that the Respondent possessed the mobile number in question, that obscene calls were made to the landline numbers of three ladies, and that these calls originated from the Respondent's mobile number. The Respondent admitted to purchasing the sim card but claimed it was lost and not in his possession at the relevant times. However, evidence showed that calls were made from the Respondent's mobile number even after he claimed it was lost. The Court found the testimony of Cdr. Arjun Kumar credible, who confirmed receiving calls from the Respondent's number after the alleged loss. The AFT and the Supreme Court addressed discrepancies in the CDRs, particularly the missing details in the records provided by Vodafone. The Court noted that the discrepancies were satisfactorily explained by Vodafone's officials, who clarified that the missing data was due to misalignment and network issues. The Court accepted the CDRs as reliable evidence, dismissing the Respondent's objections. 3. Quantum of Punishment Awarded by the Armed Forces Tribunal (AFT): The AFT reduced the punishment from dismissal to forfeiture of seniority for 24 months, considering the dismissal disproportionate. The Supreme Court agreed with the AFT's assessment, noting that the Respondent had already been deprived of his salary for over five years due to the interim stay on his reinstatement. The Court found that the reduced punishment was appropriate and met the ends of justice. It emphasized that the scope of appeal to the Supreme Court under Sections 30 and 31 of the Armed Forces Tribunal Act is limited to points of law of general public importance. The Court did not find any perverse conclusions in the AFT's decision that warranted interference. Conclusion: Both appeals were dismissed. The Respondent was ordered to be reinstated within two weeks without entitlement to back wages for the intervening period. The Court upheld the AFT's findings on the charges and the reduced punishment, finding no merit in the Respondent's appeal and no grounds to interfere with the AFT's discretion on the sentence.
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