Holding

The Supreme Court held that the prosecution proved the respondent’s guilt beyond reasonable doubt, the AFT’s sentencing discretion was proper, and the appeal did not raise a point of law of public importance, thus dismissing both appeals.

Summary

Commander Ravindra V. Desai was convicted by a court‑martial of making obscene telephone calls to the wives of three naval officers, resulting in dismissal from service and forfeiture of 24 months' seniority. The Armed Forces Tribunal (AFT) upheld the conviction on seven charges but substituted the dismissal with loss of seniority, directing reinstatement without back‑pay. The Union of India and the respondent appealed to the Supreme Court, arguing respectively that the AFT erred in reducing the punishment and that the sentence was excessive. The Court examined whether the evidence, particularly the Call Data Records (CDRs) and the procedural compliance with Section 65‑B of the Indian Evidence Act, was sufficient to sustain the conviction, and whether the appeal was limited to a question of law on public importance. It held that the prosecution had satisfactorily proved the respondent's possession of the mobile phone and the obscene calls, and that the AFT’s discretion in sentencing was not reviewable. Consequently, both appeals were dismissed and the respondent was ordered reinstated without salary for the intervening period.

Issues considered

The adequacy and admissibility of Call Data Records (CDRs) produced without a proper Section 65‑B certificate.
Whether the Armed Forces Tribunal erred in substituting dismissal with forfeiture of seniority and directing no back‑pay.
Whether the Supreme Court has jurisdiction to review the quantum of sentence under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007.
Whether the appeal raises a point of law of general public importance as required under Section 31 of the Armed Forces Tribunal Act.

Legislation cited

Armed Forces Tribunal Act, 2007s. 30, s. 31
Code of Criminal Procedure, 1973s. 161
Indian Evidence Act, 1872s. 65-B
Navy Act, 1957s. 77(2)

Subjects

court‑martialobscene telephone callsdismissal from serviceseniority forfeitureArmed Forces TribunalCall Data RecordSection 65‑BNavy ActArmed Forces Tribunal Actappealsentenceservice law

Judgment

806 [2018]REPORTS
SUPREME COURT 3 S.C.R. 806 [2018] 3 S.C.R.

A UNION OF INDIA & ORS.
v.
CDR. RAVINDRA V. DESAI
(Criminal Appeal No. 579 of 2016)
B APRIL 18, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Armed Forces Tribunal Act, 2007: ss.30 and 31 – Court
Martial proceedings – Charges pertained to the alleged obscene
calls purportedly made by the respondent to the three ladies who
C
were wives of three officers of navy – Finding of guilt – Dismissal
from service as well as forfeiture of 24 calender months of seniority
– Armed Force Tribunal (AFT) maintained the conviction on certain
charges, however, found that punishment of dismissal from service
was disproportionate to the nature of the charges – Aggrieved Union
D of India and the officer both appealed – Held: The prosecution
was able to prove that mobile phone used for making offending
calls was with the respondent during the relevant period – Further,
the prosecution was able to prove that sexually explicit calls were
received by the wives of the three officers – The charges were proved
and the AFT also recorded the evidence and approved the finding –
E
Appeal before Supreme Court is limited on the quantum of sentence
given by AFT – After setting aside the sentence of dismissal from
service, the AFT has substituted the same by the sentence of loss of
seniority for 24 months – Further, while directing reinstatement in
service, the AFT also ordered that the respondent shall not be
F 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 AFT – The
respondent has not been reinstated in service as this court had,
stayed the operation of the said order/direction – For all these
reasons, the order of the Tribunal is not interfered with on sentence
G
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 is
not interfered with – Navy Act, 1957 – s.77(2) – Service law – Armed
H Forces – Sentence.
806
UNION OF INDIA & ORS. v. CDR. RAVINDRA V. DESAI 807

Dismissing the appeal filed by the officer as well as the A
appeal filed by Union of India, the Court
HELD: 1. The prosecution has been able to give satisfactory
proof to prove that when the offending calls in question were
made, the Cell Phone with Mobile No. 9564784782 was with the
respondent. [Para 14] [816-C] B
2. In order to prove that sexually explicit calls were received
by the wives of the three officers, the prosecution produced these
ladies as PW-9, PW-12 and PW-18. They explained in detail having
received these calls and the offending language. To show that
the calls were received from the said phone which belongs to the C
respondent, the prosecution had produced Call Data Record
(CDR) of NOFRA land line numbers. The Officer-in-Charge of
NOFRA who appeared as PW-3 probe the said CDRs of NOFRA
Telephone Exchange showing that all the calls had originated
from Mobile No. 9564784782. He also produced certificate
issued by him to the effect that the land line numbers of the three D
female victims were provided by the NOFRA Telephone
Exchange. He specifically deposed that true and correct call
records have been produced and there is no reason to disbelieve
that. There was no discrepancies in the CDR produced by
Vodafone before the AFT. [Paras 15, 23] [816-D-E; 826-C] E
3. Once the charges are proved in the court martial
conducted by the authorities and the AFT also has given its
imprimatur to the same by putting its stamp of approval, that too,
after recording the evidence, with detailed analyses thereof, it is
not the function of this Court to revisit the entire evidence to F
find out as to whether the finding of the authorities below are
correct or not. The instant proceedings are in the form of appeal
preferred under Sections 30 and 31 of the Act and, therefore, the
Court is examining the matter as an appellate authority. However,
the scope of such appeal is limited. A combined reading of Section
30 and 31 clearly brings out that appeal to this Court has to be on G
a point of law on general public importance. The limited scope of
this appeal is to be on the quantum of sentence given by the
AFT. After setting aside the sentence of dismissal from service,
the Tribunal has substituted the same by the sentence of loss of
H
808 SUPREME COURT REPORTS [2018] 3 S.C.R.

A seniority for 24 months. Further, while directing reinstatement
in service, the Tribunal has also ordered that the respondent
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 been reinstated in
B
service as this court had, 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 by orders dated January 26, 2013. For all
C these reasons, the order of the Tribunal is not interfered with on
sentence 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 did not need any interference. [Paras 25, 26, 29,
D
30] [826-E-F; 828-A, C-F]
Sonu alias Amar v. State of Haryana (2017) 8 SCC
570 ; United Planters Association of Southern India v.
K.G. Sangameswaran and Another (1997) 4 SCC 741 :
[1997] 2 SCR 756 – referred to.
E
Shafhi Mohammad. v. State of Himachal Pradesh
(2018) 2 SCC 801 – held inapplicable.
Case Law Reference
(2017) 8 SCC 570 referred to Para 18
F
[1997] 2 SCR 756 referred to Para 20
(2018) 2 SCC 801 held inapplicable Para 24
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 579 of 2016.
G From the Judgment and Order dated 04.03.2015 of the Armed
Forces Tribunal, Regional Bench, Mumbai in Original Application
No. 55 of 2014
WITH

H Criminal Appeal No. 574 of 2016.
UNION OF INDIA & ORS. v. CDR. RAVINDRA V. DESAI 809

Maninder Singh, ASG, Amit Sharma, R. Balasubramanian, Prabhas A
Bajaj, Akshay Amritanshu, Mukesh Kumar Maroria, Dr. Harshvir Pratap
Sharma, A. K. Sravastava, Paras Joshi, Pankaj Kumar, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
A. K. SIKRI, J. 1. These two are cross appeals filed by both B
the parties to the lis. On the one hand is the Union of India, along with
the Chief of Naval Staff as well as the Flag Officer, Commanding-in-
Chief, Headquarters, Western Naval Command (hereinafter referred to
as the ‘appellants’). On the other hand is Commander Ravindra V.
Desai, a naval officer with Indian Navy (hereinafter referred to as the C
‘respondent’).
2. On certain allegations against the respondent, he was served
with charge-sheet containing ten charges which led to the court martial
proceedings against him. Court Martial returned the finding of ‘guilty’
on all charges which led to imposition of sentence of dismissal from the D
naval service as well as forfeiture of 24 calender months of seniority.
After exhausting departmental remedies, the respondent challenged its
conviction before the Armed Forces Tribunal (for short, ‘AFT’). Finding
certain reasons stated at the appropriate stage, the AFT decided to itself
record the evidence on those charges by giving opportunities to both the
parties. On the basis of evidence produced before the AFT, the AFT set E
aside the finding of ‘guilty’ in respect of three charges (8th, 9th and 10th
charges) on the ground of misjoinder of charges holding that it had no
connection with charges 1 to 7. However, in respect of charges 1 to 7,
the AFT maintained that the appellant could successfully prove these
charges by cogent evidence. The AFT, thereafter, proceeded to consider F
the quantum of punishment and came to the conclusion that the
punishment of a ‘dismissal from service’ is disproportionate to the nature
of charges. It also 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. On these
grounds, the AFT set aside the punishment of ‘dismissal from the service’ G
and held that interest of justice would be met if only the punishment of
‘forfeiture of seniority of 24 months’ is inflicted upon the respondent. It
has, accordingly, directed the appellants to reinstate the respondent in
naval service without payment of any salary for the intervening period,
i.e., the back wages. Both the parties feel aggrieved by this judgment. H
810 SUPREME COURT REPORTS [2018] 3 S.C.R.

A In the first instance, they moved application before the AFT seeking
leave to appeal. The AFT declined this request stating that no question
of law of public importance is involved. This is the reason for both the
parties to approach this Court. These appeals were clubbed together.
In the appeal, filed by the respondent while issuing notice, operation of
the order of the AFT was also stayed. As a result, the respondent has
B
not been allowed to join back the service. Both these appeals were
admitted formally on July 01, 2016 and direction was given to expedite
the hearing. It was also directed that interim order shall continue to
operate. This is how the appeals have come up for final hearing in
which both the sides were heard at length.
C 3. With the aforesaid introductory remarks, we now proceed to
narrate the factual matrix of the case in some more detail. The respondent
was commissioned in Indian Navy on January 01, 1998 as Sub.
Lieutenant. He was promoted to the rank of Commander on January 16,
2011. At that time, he was posted as the Executive Officer of INS
D Mahish at Port Blair in Andaman Island. His aforesaid posting was
from May, 2010 to June, 2011. In June, 2011, he was transferred to INS
Viraat as Commander Operations vide orders dated June 02, 2011. In
obedience to the said orders, the respondent along with his wife and
daughters left for Mumbai on June 15, 2011. The respondent joined
duties at the transferred place with 10 days’ leave/joining time. He had
E undertaken the aforesaid journey from Port Blair to Mumbai by Indian
Airlines. According to him, on reaching Mumbai he stayed with his
sister-in-law Amita Gavankar at Goregaon, Mumbai as he was on leave
till June 25, 2011. From June 16, 2011 to June 19, 2011, he visited different
places in Maharashtra and even went to Goa with his family. On June
F 25, 2011, he shifted to the official accommodation, i.e., Integrated Mess
Sports Complex Cottage No. 1, along with his wife and daughter, which
accommodation was allotted to him at that time. On June 26, 2011, he
reported to INS Taragiri, the waiting ship for INS Viraat, as INS Viraat
was berth at Kochi at that time. On June 29, 2011, he reported for duty
at INS Viraat at Kochi.
G
4. It may be mentioned, at this stage, that according to him he had
earlier purchased two mobile sim cards for mobile hand sets when he
was posted at INS Mahish, Port Blair. One from BSNL with no.
9476045470 for himself and 2nd from Vodafone South Limited with no.
9564784782 for his wife. Again, according to him, on 19 th June, 2011
H
UNION OF INDIA & ORS. v. CDR. RAVINDRA V. DESAI 811
[A. K. SIKRI, J.]

when he had come to Mumbai, he purchased two sim cards from Idea A
Cellular Pvt. Ltd., one having 8108770020 for himself and other no.
8108770030 which was meant for his wife.
5. On July 01, 2011 at about 22.45 hours, he was woken up from
his sleep and escorted by Commander Manoj Jha (PW-20) to Captain
Hari Kumar, the Commanding Officer of INS Viraat. Captain Hari B
Kumar questioned him about mobile no. 9564784782, as sexually explicit
calls were received from the same number by wives of some naval
officers. He explained that this sim card remained in possession of his
wife through out who had used the same. Search was made but no such
sim card was found with the respondent. His mobile telephone no.
8108770020 was confiscated and detailed for 18 hours whereafter, on C
the next day, it was returned back to him. Thereafter, One Man Inquiry
(for short, ‘OMI’) was ordered on January 05, 2012. This OMI was
conducted with effect from January 11, 2012 and concluded on January
31, 2012. Thereupon, the respondent was issued a charge sheet dated
September 05, 2012 for trial by Court Martial. Ten charges were framed D
against the respondent. Seven out of which were under Section 77(2)
of the Navy Act, 1957 (hereinafter referred to as the ‘the Act”) read
with Section 509 of the Indian Penal Code (‘IPC’) and three charges
were framed against the respondent under Sections 58, 74 and 48(c) of
the Navy Act. These charges pertained to the alleged obscene calls
purportedly made by the respondent to the three ladies. E

6. It is on the findings of the OMI, Headquarters Western Naval
Command directed the Commanding Officer, INS Kunjali where the
respondent was attached for the investigation, to investigate and record
Summary of Evidence (SoE) of prosecution witnesses.
F
7. On September 05, 2012, the Commanding Officer, INS Kunjali
read the charges mentioned in the charge sheet and the respondent was
given a chance to file reply thereto, which he did. Thereafter, decision
was taken that the respondent be brought to trial of the Court Martial. In
the Court Martial, the prosecution examined 33 witnesses and produced
40 documents which were exhibited. The court called for five witnesses G
as co-witnesses and exhibited 19 documents as ‘exhibits’ (C-1 to C-19).
After the conclusion of the trial, finding of ‘guilty’ was returned in respect
of all the 10 charges and the punishment was awarded as mentioned
above. Thereafter, the appellant filed O.A. before the Tribunal.
H
812 SUPREME COURT REPORTS [2018] 3 S.C.R.

A 8. The facts which have been noted upto now would demonstrate
that main allegation against the respondent was that he had made explicit
sexual calls to three ladies, namely, Mrs. Reena Chandel (PW-9),
Mrs. Aditi Barathwal (PW-12) and Mrs. Pallavi Tiwari (PW-18), who
are wives of three officers of Navy. These calls were made from
Vodafone Cell Phone No. 9564784782. Further, these calls were made
B
on their landline numbers which were provided by NOFRA Exchange
installed and operated by NOFRA (Naval Officers Residential Area).
Each of the officers residing in the area is provided with an extension
number from the Exchange of NOFRA. They were not knowing the
person making the calls. They complained to their husbands, who, in
C turn, reported to their senior officers and finally, all the sexually explicit
calls made to these three ladies were traced to Mobile No. 9564784782.
These calls were made to Reena Chandel on June 21, 2011 in the night,
on June 22, 2011 in the morning, on June 23, 2011 in the afternoon and
the last call was made to her on June 30, 2011 in the morning at 06:57.
Her extension number was 222217. Thirteen calls were made to
D
Mrs. Pallavi (PW-18) during the night between June 31, 2011 and July
01, 2011. PW-12 Aditi received similar calls twice in the night on June
30, 2011. According to the prosecution, all the calls were traced through
the record of NOFRA Exchange to Mobile No. 9564784782 registered
in the name of the accused. Initially, the Naval Authorities or the officers
E operating NOFRA Exchange had no knowledge as to whom the said
mobile belonged. Therefore, it was difficult for them to trace the person
making the calls. They approached the Deputy Commissioner of Police,
Zone I, Mumbai, who made inquiries from several service providers
about the said mobile number. Finally, it was revealed that the said
mobile was registered in the name of the respondent with Vodafone
F
South Limited, having office in Kolkata.
9. In order to prove the aforesaid charge, the appellants were
required to establish the aforesaid ingredients:
(a) The respondent possessed, at the relevant time, Vodafone
G Cell Phone No. 9564784782.
(b) Obscene Calls were made to the landline numbers of the
three ladies and on the dates mentioned above.
(c) These calls originated from Mobile No. 9564784782 and
were made by the respondent and none else.
H
UNION OF INDIA & ORS. v. CDR. RAVINDRA V. DESAI 813
[A. K. SIKRI, J.]

10. Insofar as first ingredient is concerned, it has been admitted A
by the respondent himself that he was having Cell Phone with Vodafone
Connection and the sim card was provided with phone number
9564784782. The defence of the respondent, however, was that on the
relevant dates, the respondent was not having this number and, in fact,
the sim card had been lost and a report regarding the loss of sim card
B
was made to the Police. Details of his explanation, in this behalf, are
that when the respondent was posted at Port Blair in Andaman and
Nicobar Islands, he had purchased two mobile sim cards for mobile
handsets: one from BSNL with No. 9476045470 for himself and the
second from Vodafone South Limited with No. 9564784782 for his wife,
Mrs. Pallavi Desai. In June, 2011, he was transferred and posted to C
INS Viraat as Commander Operations vide order dated June 02, 2011.
Pursuant to the said transfer orders, after reaching Mumbai, he purchased
two Idea sim cards from Idea Cellular Private Limited on June 19, 2011,
having number 8108770020 for himself and 8108770030 for his wife.
He claimed that he destroyed his mobile sim card No. 9476045470 and
D
replaced the same with new mobile sim No. 8108770020. He also
claimed to have advised his wife to replace her old sim No. 9564784782
by the new mobile sim No. 8108770030. According to him, when officers
visited his cabin while he was at INS, Viraat at Kochi on July 01, 2011
and inquired him about Mobile No. 9564784782, he explained that the
said number was used throughout by his wife. Thereafter, when he E
called his wife, he was informed that said sim card was missing from
her purse. Then, he advised his wife to lodge a report with the Police
and inform the service provider which she did on July 04, 2011. It is also
his case that when the officers searched his cabin, they could not find
that sim card with the respondent which shows that the said sim card
F
was not with the respondent and, therefore, he could not have used the
sim to make the purported obscene calls.
11. It is clear from the above that the respondent has admitted the
fact that he had purchased sim card from Vodafone with Mobile No.
9564784782. However, according to him, this sim card was not with
him and was being used by his wife. Moreover, after he had purchased G
another sim card on reaching Mumbai, this sim card was not used and
was ultimately found missing even from his wife custody. The aforesaid
explanation of the respondent has not been accepted either by the GCM
or the AFT, and rightly so.
H
814 SUPREME COURT REPORTS [2018] 3 S.C.R.

A 12. The reason for discarding the explanation of the respondent is
that he has been taking inconsistent stands in this behalf. Before the
Commanding Officer, the respondent had stated that he had thrown away
his sim card in Goregaon and, therefore, he could not have used this sim
card at the relevant time i.e. on the dates of alleged incident when the
obscene calls were made. On the other hand, when the show cause
B
notice has been issued to the respondent on July 02, 2011, in response
thereto, in his deposition, the respondent took up the position that his
wife has kept the sim card in his purse and could have dropped it while
travelling.
Apart from the aforesaid contradictory versions given by the
C respondent himself, one particular piece of evidence produced by the
appellants clinches the issue. It is noticed by the AFT that as per report
dated July 04, 2011 (Ex. P-29) lodged by the wife of the respondent on
July 04, 2011, the sim card was lost sometime between 6 pm on June 20,
2011 to June 25, 2011. However, even after June 20, 2011, calls were
D made from this mobile number to Cdr. Arjun Kumar (PW-33) and Cdr.
Arjun Kumar deposed that he has received these calls from the
respondent. This aspect is discussed by the AFT in the following manner:
“If we go by this report lodged by the wife of the accused, it
appears that the said SIM card was lost in transit sometimes from
E 6.00 p.m. of 20th to 25th June, 2011. Now, according to the accused,
from 19th June, 2011, the SIM card of his wife was replaced by
the new card and sometimes between the evening of 20th June,
2011 till 25th June, 2011, the old SIM card of 9564784782 was
lost. If it is so, this number could not have been used for making
any call at least from 21st June, 2011 onwards. On perusal of the
F CDR, Exhibit T-2, it appears that on 20th June, 2011 at 13.29 hours,
a call was made from this mobile number to mobile No.
9619796549, which was the mobile number of Cdr. Arjun Kumar.
The record also shows that on 20th June, 2011 itself at 18.31 hours,
again, there was a call from the said mobile to the above referred
G mobile number of Cdr. Arjun Kumar. There was also call from
the said mobile of the accused to the mobile of Cdr. Arjun Kumar
on 23rd June, 2011 at 11.46 hours. On 25th June, 2011 at 09.50
hours and 15.06 hours, again, there were two calls from the said
mobile No. 9564784782 to mobile No. 9619796549 of Cdr. Arjun
Kumar. Again, there were three calls from the said mobile
H number to the mobile of Cdr. Arjun Kumar on 28th June, 2011
UNION OF INDIA & ORS. v. CDR. RAVINDRA V. DESAI 815
[A. K. SIKRI, J.]

between 17.15 to 17.55 hours. PW-33 Cdr. Arjun Kumar has A
deposed on oath that he had received these calls and that the
accused was in contact with him on all these days from his
mobile. It shows that the said mobile was being used by the
accused even after 25th June, 2011. Cdr. Arjun Kumar had no
reason to falsely depose that he had received the calls from the
B
accused on these days.”
Dr. Sharma had made extensive argument in endeavour to dislodge
the creditworthiness of Cdr. Arjun Kumar. However, in our view, his
deposition remains unshaken and credible.
13. Another interesting evidence which have surfaced and which C
nails the respondent on this aspect is that as per the respondent himself,
he had proceeded to Kochi on June 29, 2011 to join the duty on INS
Viraat. For this purpose, he had left Mumbai on June 29, 2011 by Air
India AI-681 flight which left Mumbai at 5:30 pm and arrived Kochi at
7:20 pm on June 29, 2011. One of the calls was made from this phone at
05:01 pm from Mumbai area. Thereafter, another call was made from D
this very phone on the same day at 08:01 pm from Kerala area. At
05:01 pm, when the call was made from Mumbai, the respondent was in
Mumbai and his flight left Mumbai at 05:30 pm. He had reached Kochi
at 07:20 pm and another call is made at 08:01 pm. This also shows that
the Cell Phone with the aforesaid number was with the respondent only. E
The AFT has lucidly discussed this aspect in the following manner:
“He claims to have left Mumbai on 29th June, 2011 by Air India
AI-681 flight. Exhibit P-S is the flight details and the Boarding
Pass shows that the boarding time was 17.05 hrs. The flight
details show that AI-681 flight left Mumbai at 5.30 p.m. and F
arrived Kochi at 7.20 p.m. on 29th June, 2011. Going back to the
CDR, it is revealed that on 29th June, 2011, the said call was made
from the said mobile of the accused at 17.01 hrs. The record
clearly shows that the call was made from Vodafone Mumbai
area. Thereafter, the next call from the said mobile of the
accused on 29th June, 2011 at 20.01 hrs. was made and that call G
was made from Vodafone Kerala area. Thereafter, all the calls
on 29th and 30th June and 1st July, 2011 are made from the said
mobile of the accused from Vodafone Kerala area. Admittedly,
during that period, the accused was at Kochi. If the said SIM
Card was found by some other person and he was using the SIM H
816 SUPREME COURT REPORTS [2018] 3 S.C.R.

A card, he could not travelled along with the accused at the same
time and in the same flight. This document produced by the
accused himself goes to prove, beyond any reasonable doubt, that
the said mobile was being used by the accused and none else and,
therefore, it must be held that all the sexually explicit calls to the
three ladies were made by the accused from his said mobile and
B
none else.”
14. We are, therefore, of the opinion that the prosecution has
been able to give satisfactory proof to prove that when the offending
calls in question were made, the Cell Phone with Mobile No. 9564784782
was with the respondent.
C
15. Coming to the second ingredient, in order to prove that sexually
explicit calls were received by the wives of the three officers, the
prosecution produced these ladies as PW-9, PW-12 and PW-18. They
have explained in detail having received these calls and the offending
language. To show that the calls were received from the aforesaid
D phone which belongs to the respondent, the prosecution had produced
Call Data Record (CDR) of NOFRA land line numbers. Cdr. Anurag
Saxena, Officer-in-Charge of NOFRA who appeared as PW-3 probe
the said CDRs of NOFRA Telephone Exchange showing that all the
calls had originated from Mobile No. 9564784782. He also produced
E Exh. P-10, which is the certificate issued by him to the effect that the
land line numbers of the three female victims were provided by the
NOFRA Telephone Exchange. He specifically deposed that true and
correct call records have been produced and there is no reason to
disbelieve that.

F 16. We now advert to the third ingredient. 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
G 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
H mobile number of the respondent had been erroneously shown as an
UNION OF INDIA & ORS. v. CDR. RAVINDRA V. DESAI 817
[A. K. SIKRI, J.]

Idea Cell Number due to feeding of Code “95” as that of Idea Cell in the A
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. The discussion of the AFT, on this aspect, runs
as follows:
B
“The learned counsel for the accused pointed out that as per call
record from NOFRA, vide Exhibit P-8 for Extension No. 7000,
Exhibit P-9 for Extension No. 7164 and Exhibit P-10 for
Extension No. 6328, service provider of said Mobile No.
9564784782 was Idea Cell. He contended that in view of this
record, the CDR Exhibit P-27 or Exhibit T-2 from Vodafone South C
cannot be believed. However, the learned counsel for the
respondents contended that it was wrongly shown that said
Mobile Number was of Idea Cell and this mistake had occurred
due to feeding of Code “95” as of Idea Cell in the system of
NOFRA. This fact is clarified by CW-2 Fernandes, who was the D
Programmer for NOFRA System. The learned counsel for the
accused contended that the accused was not given opportunity to
cross-examine the Court-witnesses and, therefore, the evidence
of CW-2 Fernandes is liable to be rejected. During the trial, the
accused was defended by a lawyer. The accused and his advocate
were present at the time of recording of evidence of the Court- E
witnesses. There is nothing to show that the advocate wanted to
cross-examine the Court-witnesses but he was not allowed. The
evidence of CW-2 Fernandes has gone unchallenged. CDR
Exhibit T-2 is proved by TW-1 Sabir Kumar Deb, as discussed
earlier. Therefore, no importance needs to be given to the wrong F
information in NOFRA record that the mobile number was of
Idea Cell.”
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 G
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.
H
818 SUPREME COURT REPORTS [2018] 3 S.C.R.

A 17. One aspect remains to be discussed. In the Court Martial
proceedings, officer from Vodafone South Mumbai was produced who
had brought the CDR of the Cell Phone in question to prove that calls
were made from this phone. The said officer was examined as PW-13
and CDR record produced by him was marked as Exh. P-27. However,
before the AFT, the respondent had raised the objection that Exh. P-27
B
did not have any evidentiary value as Certificate under Section 65-B of
the Indian Evidence Act, 1872 produced by PW-13 was in relation to
customer agreement and not for CDR and that PW-13 was Nodal Officer
for Vodafone Mumbai and not for Vodafone South. In view of the
aforesaid technical objection, the appellants filed an application under
C Section 17 of the Armed Forces Tribunal Act, 2007 for summoning Nodal
Officer, Mumbai Sector, Vodafone along with a direction to produce the
CDR of the mobile number of the respondent. Order dated November
20, 2014 was passed on this application whereby prayer contained in the
application was allowed and summons issued to the Nodal Officer,
Mumbai Sector, Vodafone for production of CDR of the mobile number
D
belonging to the respondent along with the Certificate under Section 65-
B of the Indian Evidence Act, 1872. This order was not challenged by
the respondent. In response to the summons issued by the AFT on
November 10, 2014, Vodafone South Limited, Kolkata had submitted
the CDR as well as the Customer Agreement of the respondent along
E with the certificate under Section 65-B which came to be exhibited as
Exhibit T-3. However, the AFT was not satisfied with the format in
which Exhibit T-3 had been made available by Vodafone South Limited.
In its order dated February 26, 2015, the AFT categorically observed
that the CDR (Exhibit T-3) made available to the AFT was identical to
the previous CDR (Exhibit P-27) in respect of the serial number of calls,
F
the A Number (i.e. the number from which the calls had originated) and
the B Number (the number to which the call had been made), the year,
time and duration of the call. However, certain details such as the date,
time, month etc. were missing from the said CDR (Exhibit T-3). Further,
Section 65-B certificate did not bear the designation of the person who
G had signed the certificate. As such, vide order dated February 26, 2015,
the AFT directed the Nodal Officer, Vodafone South to produce before
the Tribunal the complete CDR of the said Mobile phone number for the
period from June 01, 2011 to July 04, 2011 along with the Customer
Agreement and the Certificate under Section 65-B before the AFT. The
concerned official of Vodafone had also been directed to be present
H
UNION OF INDIA & ORS. v. CDR. RAVINDRA V. DESAI 819
[A. K. SIKRI, J.]

before the Tribunal on March 03, 2015. In compliance Mr. Subir Kumar A
Deb from Vodafone appeared as TW-1 before the AFT and explained
that it is only due to improper alignment etc. that certain information had
been omitted from being generated in the CDR Exhibit T-3. He also
explained that sometimes because of the failure of the linking system in
the server, some information may not come out. However, the AFT
B
decided not to take into consideration the CDR Exhibit T-3. In terms of
the order dated February 26, 2015 of the AFT, Mr. Sudhir Kumar Deb,
official of Vodafone India, appeared before the AFT as TW-1. The
AFT has recorded the testimony of TW-1 in relation to the manner in
which the CDRs are stored by Vodafone in the Centralized Server located
at Pune. TW-1 also produced before the Tribunal – the CDR of the C
Mobile number of the respondent (Exhibit T-2) along with the Certificate
under Section 65-B of the Indian Evidence Act, 1872 (Exhibit T-1). CDR
Exhibit T-2 along with the certificate under Section 65-B being Exhibit
T-1 duly proved by TW-1. In his cross-examination, TW-1 had inter
alia stated that whereas CDR Exhibit T-3 (submitted to the AFT in
D
December, 2014) had been generated on November 01, 2011, Exhibit T-
2 had been generated on March 02, 2015 and had been signed and certified
by TW-1. The alleged discrepancy in CDR Exhibit T-2 sought to be
pointed out during his cross-examination was also duly explained by TW-
1. He had explained that after 2011, as per guidelines issued by DoT,
Government of India, the format of the CDR had been changed. After E
considering the testimony of TW-1, AFT has observed that Exhibit T-2,
submitted by TW-1, is reliable and is properly stored and generated in
the Centralized Server of Vodafone, as under:
“However, Subir Kumar Deb deposed on oath and explained that
though the CDR, Exhibit T-3, was submitted with certificate in F
December, 2014, the heading of the same clearly shows that it
was generated on November 01, 2011, while the CDR, Exhibit
T-2, signed and certified by him, was generated on March 2, 2015,
after receipt of summons from this Tribunal. He explained that if
the specific command is given for header or heading of the call
data for the target mobile number, i.e., the mobile number about G
which the call data is to be generated, the period, the date and the
time of generation are printed and in such case, the first column is
always the serial number of the calls. But if that command is not
given the heading and the serial number column are not printed.
H
820 SUPREME COURT REPORTS [2018] 3 S.C.R.

A He explained that everyday hundreds of CDRs are generated
and printed and possibly, while taking the print of the CDR,
Exhibit T-2, he had not given the command for header or heading
and, therefore, heading as well as column for serial number is
missing from the CDR, Exhibit T-2. He further explained that
after 2011, as per the guidelines issued by the Government of
B
India, Department of Tele-Communications, the format of CDR
has been changed and as per the said guidelines, missed calls are
also required to be deleted from the CDR. He pointed out that
these missed calls in respect of SMS are still maintained because
from the SMS, the company generates revenue, while no such
C revenue is generated from the missed calls. Therefore, the missed
calls, which were shown as ‘Null’ or ‘Nil’ call time in the earlier
record, are not shown in the present record, but such ‘Null’ record
about the SMS is still maintained. It appears that the column for
‘Call Time’ has been shifted from the 9th column to 3rd column
due to change in format. In view of the explanation given by
D
witness Subir Kumar Deb, we are satisfied that the CDR, Exhibit
T-2, now submitted by him, is reliable and it is properly stored and
generated in the Centralised Server, as deposed by him. We do
not find any major defect and the minor changes and the
differences in the earlier record and the present record, Exhibit
E T-2, are properly explained by the witness.”
18. We are in agreement with the aforesaid findings. 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
F behalf has been settled by the judgment of this Court in Sonu alias
Amar v. State of Haryana1, which can be traced to the following
discussion in the said judgment:
“32. It is nobody’s case that CDRs which are a form of
electronic record are not inherently admissible in evidence. The
G objection is that they were marked before the trial court without a
certificate as required by Section 65-B(4). It is clear from the
judgments referred to supra that an objection relating to the mode
or method of proof has to be raised at the time of marking of the
document as an exhibit and not later. The crucial test, as
1
(2017) 8 SCC 570
H
UNION OF INDIA & ORS. v. CDR. RAVINDRA V. DESAI 821
[A. K. SIKRI, J.]

affirmed by this Court, is whether the defect could have been A
cured at the stage of marking the document. Applying this test to
the present case, if an objection was taken to the CDRs being
marked without a certificate, the Court could have given the
prosecution an opportunity to rectify the deficiency. It is also
clear from the above judgments that objections regarding
B
admissibility of documents which are per se inadmissible can be
taken even at the appellate stage. Admissibility of a document
which is inherently inadmissible is an issue which can be taken up
at the appellate stage because it is a fundamental issue. The
mode or method of proof is procedural and objections, if not taken
at the trial, cannot be permitted at the appellate stage. If the C
objections to the mode of proof are permitted to be taken at the
appellate stage by a party, the other side does not have an
opportunity of rectifying the deficiencies. The learned Senior Coun-
sel for the State referred to statements under Section 161 CrPC,
1973 as an example of documents falling under the said category
D
of inherently inadmissible evidence. CDRs do not fall in the said
category of documents. We are satisfied that an objection that
CDRs are unreliable due to violation of the procedure prescribed
in Section 65-B(4) cannot be permitted to be raised at this stage
as the objection relates to the mode or method of proof.
(emphasis added)” E

19. We may point out, at this stage, that when the AFT found the
technical defect in Exhibit T-2, it was in support of Section 65-B of the
Indian Evidence Act. The AFT had summoned the record in exercise of
its power contained in Section 17 of the Act.
F
“17. Powers of the Tribunal on appeal under section 15.— The
Tribunal, while hearing and deciding an appeal under
Section 15, shall have the power—
(a) to order production of documents or exhibits connected
with the proceedings before the court-martial;
G
(b) to order the attendance of the witnesses;
(c) to receive evidence;
(d) to obtain reports from court-martial;
(e) order reference of any question for inquiry;
H
822 SUPREME COURT REPORTS [2018] 3 S.C.R.

A (f) appoint a person with special expert knowledge to act as
an assessor; and
(g) to determine any question which is necessary to be
determined in order to do justice in the case.”
20. It was argued by the learned ASG appearing for the Union of
B India that powers conferred upon the AFT under Section 17 of the Act
are similar to the powers of the Industrial Tribunal/Labour Court specified
in Section 11A of the Industrial Disputes Act and, therefore, judgment of
this Court in United Planters Association of Southern India v. K.G.
Sangameswaran and another2 explaining the powers of Labour Court/
Industrial Tribunal would be applicable to AFT as well. However, we
C need not go into this question in these proceedings inasmuch as the learned
counsel appearing for respondent did not question the powers of the
AFT to summon the records from Vodafone and permitting the parties
to lead evidence before it as well as examining the said evidence. Thus,
in the absence of any question mark put up by the learned counsel for
D the respondent to the course of action taken by the AFT, we proceed on
the basis that this exercise was validly done.
21. Dr. Sharma, learned counsel appearing for the respondent
had taken pains to point out certain discrepancies in Exhibit T-2 as well
as Exhibit P-27 and had, on that, basis, made a fervent plea that such
documents had no credence or evidentiary value and, therefore, AFT
E had committed a serious error in relying upon these documents. It is not
necessary to pinpoint the alleged discrepancies which according to Dr.
Sharma had occurred in these documents as we find that these are
suitably take care of by the Tribunal itself and the above discussion as
well as the discussion contained hereinafter would reflect the nature of
F so-called discrepancies and the answer thereto by the AFT. After purpose
would be served by reproducing the following portion of the orders dated
February 26, 2015 passed by AFT after the official of the Vodafone
South Limited, Kolkata produced the CDR as well as documents
pertaining to customer agreement of the respondent pertaining to his
mobile umber 9564784782 along with certificate under Section 65-B of
G the Indian Evidence Act.
“2. After receipt of the said record, we have carefully perused
the Call Data Record submitted with the aforesaid certificate dated
10th December, 2014, as well as the earlier Call Data Record
purporting to have been issued by Vodafone, along with the
H 2
(1997) 4 SCC 741
UNION OF INDIA & ORS. v. CDR. RAVINDRA V. DESAI 823
[A. K. SIKRI, J.]

Customer Agreement on 26th December, 2012. on careful perusal A
and comparison of both the records, we have noted that in the
record supplied earlier during the Court-Martial proceedings,
against every call, the date was mentioned in full like o1-Jun-2011”.
However, in the column for the date in the date which is now
supplied, against all the entries, except the entry dated
B
“01-Jul-2011”, the dates are missing. Only year ‘2011’ is shown.
In the prescribed proforma of the data, there are columns for
“First Cell ID A”, “Last Cell ID A’, “IMEI” and “IMSI” also. In
the previous record, the information under all the four heads was
provided against each call entry. However, that information is
completely missing in The record, which is now supplied to us. C
The record purports to have been stored on the designated hard
disk of the computer/system of Vodafone South Limited and the
data, which is supplied to us, purports to have been generated by
the computer automatically. In view of this system, when certain
data has been stored, it must be completely generated which the
D
hard copy is required to be taken. Only some of the record cannot
be lost. For example, if the full date is generated, the date and the
month cannot be lost if year “2011” remains. Similarly, the data
under the four heads, viz., First Cell ID A, Last Cell ID A, IMEI
and IMSI, could not be lost. Either the whole of the record could
have been lost or no part of it could be lost. The Call Data Record, E
which is supplied to us now, s identical with the previous record in
respect of the serial number of the calls, a number, i.e., Number
of the Mobile Phone to which the call is made, year, time and
duration of the call are shown. We fail to understand why the
data about the date, month and under other heads as indicated
F
above is not shown in the Call Data Record submitted to us. As
the certificate issued under Section 65-B does not bear the name
and designation of the person, who has signed the certificate, it is
difficult for us, at this stage, to know how and why the complete
Call Data Record is not submitted to us. In view of this, even
though the formality of issuance of certificate under Section 65-B G
of the Indian Evidence Act is completed, we are of the opinion
that our order to submit the complete Call Data Record and other
documents with the certificate under Section 65-B has not been
complied by Vodafone South Limited. Therefore, we find it
necessary to issue the following directions:-
H
824 SUPREME COURT REPORTS [2018] 3 S.C.R.

A Summons be issued to Nodal Officer, Vodafone South
Limited, to direct the officer, who is responsible for the
operations and the Management of the computer system
required for the purpose of providing mobile facility to secure
hard copies of the complete Call Data Record of Mobile Phone
No. 9564784782 for the period from 1st June, 2011 to 4th July,
B
2011, along with the record of Customer Agreement and to
submit the same to this Tribunal with certificate under Section
65-B, disclosing the name and designation of the person who
has signed the said certificate. The said record shall be
submitted before this Tribunal on 3rd March, 2015 before 11.00
C A.M. by the officer signing the certificate under Section 65-B
personally without fail.
We also hereby direct Vodafone South Limited to disclose the
name and designation of the person, who had issued the certificate
under Section 65-B on 10th December, 2014, along with Call Data
D Record and also to keep him present before this Tribunal on 3rd
March, 2015 at 11.00 A.M. to explain how some of the data,
particularly the dates, First Call ID A, Last Call ID A, IMEI and
IMSI, are missing from the said record.”
22. In this behalf, we also note that Mr. Sabir Kumar Deb, official
of Vodafone, appeared as a witness, in his deposition before the AFT
E
had suitably and satisfactorily clarified all the aspects including the
following :
“Examination-in-Chief :
The Call Data Record of the mobile phones are maintained in
the centralised server located at Pune. Call records of the phones
F
issued by all the 23 licensees under Vodafone Limited are
preserved and maintained in the centralised server.
The mobile number for which the date is extracted is the ‘target
numbers’ for the system. Identity number of hand set from which
that mobile number operates is recorded in the column IMEI.
G The same handset number will be shown in that column when a
call is made or is received by that mobile handset. However, if
the handset is changed, the identity of that handset is changed
and therefore, number may be same.
When mobile number is roaming outside the territory of the
H service provider/licensee the Cell IDA and IMEI will not record
UNION OF INDIA & ORS. v. CDR. RAVINDRA V. DESAI 825
[A. K. SIKRI, J.]

the correct numbers because it may not capture the correct number A
in the area outside the jurisdiction of the licensee. Therefore, at
page No. 4 from 3rd entry dated 15.06.2011, the column for IMEI
is blank. From that entry onwards till the end on 01.07.2011 the
mobile number was operating outside the home network area. In
the last column the area in which the mobile was roaming the
B
operating is indicated.
Now, I am shown the record which I have s8ubmitted to the
Court as per Ex. T-2. After perusing that record with the record
available with me, I say that due to oversight, page no. 8 of the
record showing the call from 30.06.2011 at 6:20:12 to the call on
01.07.2011 at 21:53:28 has not been submitted to the Court. Now, C
I am attaching the page containing the said record under my
signature and stamp of Vodafone South Limited. I state that this
record is true and generated as per the system. (The said record
is added to the CDR Ex. T-2 as page No. 8).
Now, the record and letter dated 10.12.2014 marked Article D
T-1 (Now T-3) collectively is shown to me. It contains same call
data record which I have produced today. However, in the record
data, first Cell IDA, last cell IDA, IMEI and IMSE columns are
blank. Also, SMS centre column is blank. The title of that record
shows that the record of mobile number 95664784782 from
E
1.6.2011 to 4.7.2011 and report dated was 1.11.2011. similar title
is not printed on the record which I have submitted today. The
columns noted above might have remained blank because of some
misalignment of columns while taking the prints of the call record.
Now, said record Article T-1 is marked Exhibit T-3.
I maintain that the information in the Call Data Record could F
not be selectively deleted before taking print.
Cross-Examination:
I voluntarily say tat sometimes, due to failure of network link also
some date may be missing at particular moment, and is not printed.
Now, it is brought to my notice that in Call Data Record at Exhibit G
T-2, column ‘call time’ is listed earlier the Call Data Record at
Ex. T-3 where it is 9th column. Now, on perusal of the two records,
I see that in Ex. T-2, SMS MT or SMS O are show but in Ex. T-
3 they are indicated as SMS INC and SMS OUT respectively.
Call Data Record Exh. T-3 shows that it was originated on
H
826 SUPREME COURT REPORTS [2018] 3 S.C.R.

A November 1st, 2011 and Call Data Record at Ex. T-2 was originated
on 2nd March, 2015.
Now, it is brought to my notice that entry nos. 329 and 330 are not
be seen in the Call Data Report Ex. T-2. There are similar other
numbers also which are missing from Exh. T-2. I say that
B wherever there were missed calls, they were shown as NULL.
In 2011, such ‘missed c alls’ have been deleted from the record
and, therefore, they are not seen in Call Data Record at Ex. T-2.
However, the SMS which were shown as NULL and which could
not materialise are still maintained because the company was to
earn revenue.”
C 23. We, thus, do not agree with the submission of the learned
counsel for the respondent that there were discrepancies in the CDR
produced by Vodafone before the AFT. In fact, the witness from
Vodafone was able to clear all the doubts which were expressed by the
respondent.
D 24. In view of this factual position emerging on record, judgment
in the case of Shafhi Mohammad. V. State of Himachal Pradesh3 is
of no avail to the respondent as it is not applicable to the facts and
circumstances of the present case.
25. At the end, insofar as appeal of the respondent is concerned,
we would like to comment that once the charges are proved in the court
E
martial conducted by the authorities and the AFT also has given its
imprimatur to the same by putting its stamp of approval, that too, after
recording the evidence, with detailed analyses thereof, it is not the function
of this Court to revisit the entire evidence to find out as to whether the
finding of the authorities below are correct or not. No doubt, the instant
F proceedings are in the form of appeal preferred under Sections 30 and
31 of the Act and, therefore, the Court is examining the matter as an
appellate authority. However, the scope of such appeal is limited as can
be seen from the language of these provisions:
“30. Appeal to Supreme Court.—(1) Subject to the provisions
G of section 31, an appeal shall lie to the Supreme Court against the
final decision or order of the Tribunal (other than an order passed
under section 19):
Provided that such appeal is preferred within a period of ninety
days of the said decision or order:
3
(2018) 2 SCC 801
H
UNION OF INDIA & ORS. v. CDR. RAVINDRA V. DESAI 827
[A. K. SIKRI, J.]

Provided further that there shall be no appeal against an A
interlocutory order of the Tribunal.
(2) An appeal shall lie to the Supreme Court as of right from
any order or decision of the Tribunal in the exercise of its jurisdiction
to punish for contempt:
Provided that an appeal under this sub-section shall be filed in B
the Supreme Court within sixty days from the date of the order
appealed against.
(3) Pending any appeal under sub-section (2), the Supreme
Court may order that—
(a) the execution of the punishment or the order appealed C
against be suspended; or
(b) if the appellant is in confinement, he be released on bail:
Provided that where an appellant satisfies the Tribunal that he
intends to prefer an appeal, the Tribunal may also exercise any of
the powers conferred under clause (a) or clause (b), as the case
D
may be.
31. Leave to appeal.—(1) An appeal to the Supreme Court
shall lie with the leave of the Tribunal; and such leave shall not be
granted unless it is certified by the Tribunal that a point of law of
general public importance is involved in the decision, or it appears
to the Supreme Court that the point is one which ought to be E
considered by that Court.
(2) An application to the Tribunal for leave to appeal to the Supreme
Court shall be made within a period of thirty days beginning with
the date of the decision of the Tribunal and an application to the
Supreme Court for leave shall be made within a period of thirty F
days beginning with the date on which the application for leave is
refused by the Tribunal.
(3) An appeal shall be treated as pending until any application for
leave to appeal is disposed of and if leave to appeal is granted,
until the appeal is disposed of; and an application for leave to
G
appeal shall be treated as disposed of at the expiration of the time
within which it might have been made, but it is not made within
that time.”

H
828 SUPREME COURT REPORTS [2018] 3 S.C.R.

A 26. A combined reading of the aforesaid provisions clearly brings
out that appeal to this Court has to be on a point of law on general public
importance.
27. In any case, this Court has examined the records having regard
to the submissions made by Dr. Sharma on behalf of the respondents.
B 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.
28. Resultantly, we do not find any merit in the appeal preferred
by the Officer.
29. We now advert to the appeal preferred by the Union of India.
C As pointed out above, the limited scope of this appeal is to be on the
quantum of sentence given by the AFT. 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
D 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.
30. 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
E
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, we are not inclined
to interfere with the order of the Tribunal on sentence inasmuch the
effect is that not only seniority of the respondent is forfeited by 24 months,
F he is also deprived of his salary for more than five years. Such a
sentence, according to us, would meet the ends of justice and in these
circumstances discretion exercised by the Tribunal does not need any
interference.
31. As a consequence, both the appeals are dismissed. The
respondent herein shall be reinstated in service within 2 weeks from the
G
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.
There shall be no orders as to costs.
H
Devika Gujral Appeals dismissed.
H