CORAMTHE HONOURABLE MR v. R. Anand

2. Saurabh Fluara3. Vishaka Fluara RR2 and 3 rep.by next friend and natural guardian 1st respondent...Respondents in W.A.No.1530/2009 Prayer in Writ Appeals: Writ appeals filed under Clause 15 of theLetters Patent against the common order dated 17.7.2009 passed bythis court in W.P.Nos.16123/1998, 16924/1998 and 57 of 1999.Prayer in W.P.No.16123 of 1998:- presented to this court underArticle 226 of the Constitution of India praying for the writ ofCertiorarified mandamus calling for the records of the thirdrespondent in SO/100/C dated 17.07.1998 served on 30.07.1998 andthe order of the fourth respondent passed in No.203/1-01113-L dated01.09.1998 and order of approval of punishment passed by the secondrespondent in No.203/1-01113-L dated 16.09.1998 and the order ofthe fourth respondent passed in CG/1785/N dated 16.09.1998 areillegal, void ultra vires and arbitrary and without jurisdictionand against the principles of natural justice and quash the sameand for consequential direction for reinstatement with back wageswith connected perquisites.Prayer in W.P.No.16924 of 1998:- presented to this Court underArticle 226 of the Constitution of India praying for the issuanceof a writ of Certiorarified mandamus calling for the records of thethird respondent relating to the punishment approval form bearingNo.203/1-02038-M dated 01.09.1998 and of the second respondentrelating to his consequent order dated 16.09.1998 approving thepunishment of dismissal from service and of the third respondentrelating to the subsequent order issued on his behalf bearing GXNo.CG/1787/N dated 16.09.1998 and quash the same and direct therespondents to reinstate the petitioner in service with continuityof service, backwages and all attendant benefits includingseniority and promotions.Prayer in W.P.No.57 of 1999:- Writ petition filed under Article226 of the Constitution of India praying for the issuance of a writof Certiorarified mandamus calling for the records of the thirdrespondent relating to the punishment approval form bearingNo.203/1-01815-Z dated 01.09.1998 and of the second respondentrelating to his consequent order dated 16.09.1998 approving thepunishment of dismissal from service and of the third respondentrelating to the subsequent order issued on his behalf bearing GXNo.CG 1664/1786/N dated 16.09.1998 and quash the same and directthe respondents to reinstate the petitioner in service withcontinuity of service, backwages and all attendant benefitsincluding seniority and promotions. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.M.Ravindran Additional Solicitor General of India Assisted by M/s Haja Mohindeen Gisthi. For Respondents: Mr. M. Kamalanathan for R.1 in W.A.No.1528 of 2009 Mr.V. Prakash Senior Counsel for Mr. Sudalai Kannan for R.1 in W.A.No.1529 of 2009 M/s. Lakshmi Priya Associates in W.A.No.1530 of 2009.J U D G M E N T K.K.SASIDHARAN, JThese Intra Court appeals at the instance of the Union ofIndia represented by its Secretary, Ministry of Defence and theDirector General of Coast Guard challenge the order dated 17 July2009 in W.P.Nos.16123, 16924 of 1998 and 57 of 1999 setting asidethe punishment of dismissal awarded to the respondents by theCommanding Officer, Coast Guard Station, Chennai and theconsequential order of re-instatement with backwages.THE BACKGROUND FACTS:2. The respondents were working as Coast Guards attached tothe Coast Guard Station at Chennai. While so, the respondents werearrested on 17 July, 1998 on charges that they conspired togetherto send anonymous letters to the higher authorities with the objectof highlighting their demands with respect to the implementation ofthe recommendations made by the Fifth Pay Commission, failingwhich, it was threatened that they would sabotage the ships and aircrafts. This was followed by a charge sheet dated 11 August, 1998.The respondents in their explanation to the charge sheet denied theallegations levelled against them. Thereafter, the CommandingOfficer authorised the Deputy Commandant to prepare the record ofevidence pertaining to the charges levelled against therespondents. Accordingly, the said officer recorded the evidenceand submitted a report to the Commanding Officer. The CommandingOfficer on the basis of the record of evidence, imposed thefollowing punishment to the respective respondents. https://hcservices.ecourts.gov.in/hcservices/ NAMENATURE OF PUNISHMENT IMPOSEDR.Anand(a) Simple Imprisonment for two months (b) Dismissal from service(c) Deprivation of 1st and 2nd Good ConductBadgesP.S. Shelli Raj(a) Dismissal from service(b) Deprivation of 1st and 2nd Good ConductBadgesHarish Chandra(a) Simple Imprisonment for two months (b) Dismissal from service(c) Deprivation of 1st and 2nd Good ConductBadges 3. The order passed by the Commanding Officer was challengedin W.P.Nos.16123, 16924 of 1998 and 57 of 1999.4. Before the Learned Single Judge, the respondents contendedthat the entire proceedings were conducted in violation of theprinciples of natural justice besides violation of Coast Guard Actand Rules. The respondents pressed into service the followingviolations."(i) The petitioners were not informed of theparticulars of the charges levelled against them atthe time when they were arrested as required underRule 15(A) of the Rules. (ii) The Commanding Officer, Mr.P.P.S.Sodhi whoimposed the punishment and submitted approval formsto the Approving Authority actively participated inthe investigation and he actively involved himselfin the interrogation of the witnesses duringinvestigation and inquiry. Under Rule 21 of theRules, the Commanding Officer shall not deal withany case, where he himself is a witness in the caseagainst the accused. Since Mr.P.P.S.Sodhi was fullyinvolved in the investigation, he was incompetent tohold the summary trial under Section 57 of the Actand therefore, the entire proceeding is violative ofRules 21(b) and 21(c). https://hcservices.ecourts.gov.in/hcservices/ (iii) The investigation into the allegedoffences were not done properly. (iv) Before recording evidence, charge sheetswere not furnished to them and they were notquestioned as to whether they pleaded guilty or notguilty by explaining to them the nature of charges. (v) During the course of recording evidence,sufficient opportunity was not given to them forcross examination(vi) Documents were exhibited in evidencewithout having given copies to them and without evenpermitting them to look into the documents.(vii) Though under Rule, 23(5), they areentitled to examine the defence witnesses, they werenot allowed to do so.(viii) The conclusion that they are guilty ofthe charges, has been arrived at without anyacceptable evidence for the same and thus thepunishments imposed on them are highly arbitrary.The evidence of the witnesses were not properlyappreciated. 5. The Coast Guard Act and Rules does not contain remedy ofappeal against the order passed by the Commanding Officer.Therefore, the learned Single Judge proceeded to consider thematter on merits and particularly, with reference to the relevantfile. Since the concerned employees were awarded SimpleImprisonment besides the major penalty of dismissal from service,the learned Single Judge wanted the Coast Guard to produce theoriginal records. However, the Coast Guard pleaded theirinability as according to them, they have lost or rather misplacedthe file during the time of shifting the Coast Guard Station. 6. The learned Single Judge adjourned the matter on severaloccasions so as to enable the Coast Guard to produce the file.However, the original file was not produced. This made the learnedSingle Judge to allow the writ petitions, as according to him eventhe xerox copies produced by the Coast Guard, appears to be anincomplete record and the issue cannot be decided on the basis ofsuch incomplete records. In short, the learned Single Judge https://hcservices.ecourts.gov.in/hcservices/ allowed the writ petitions principally on the ground of non-production of records. Dis-satisfied with the said common orderdated 17 July, 2009 the Coast Guard is before us.SUBMISSIONS:7. The learned Additional Solicitor General appearing onbehalf of the appellants, while admitting the loss of originalfile, contended that the xerox copies of the relevant records wereproduced before the learned Single Judge and the same should havebeen accepted as secondary evidence. According to the learnedAdditional Solicitor General, reasonable opportunity was given tothe respondents to prove their innocence. The respondents werefunctioning as members of a Disciplined force and as such, theywere not expected to come openly against the Coast Guard andtherefore, the Commanding Officer was justified in awarding themaximum punishment of dismissal from service.8. The learned Senior Counsel for the respondent inW.A.No.1529 of 2009 and the learned counsel for the otherrespondents contended that the Commanding Officer acted like aprosecutor and ultimately awarded the punishment himself andtherefore, the order of the learned Single Judge cannot be setaside even on merits. It was contended that the respondents wereillegally detained in the Coast Guard Station and other places andit was only pursuant to the action taken by their parents by filingHabeas Corpus Petitions before this Court, they were releasedsubsequently. According to the learned Senior Counsel the reportof the Fifth Pay Commission was implemented with respect to almostall Central Government departments. However no attempt was takenby the Coast Guard to give effect to the recommendation made by theFifth Pay Commission and naturally, there was discontent among themembers of the Coast Guard and the alleged anonymous letters werenothing but spontaneous reaction of the employees and the samecannot be construed to be an act of mutiny. In any case, accordingto the learned Senior counsel, the punishment of dismissal fromservice was disproportionate to the misconduct alleged against therespondents. The learned Senior Counsel further contended that RuleNisi was issued in the year 2003 and therefore, the Coast Guard wasexpected to produce the records before the High Court. The writpetitions were taken up for final hearing only during July, 2009.Even after a period of six years they were not in a position toproduce the records. This clearly shows that the records weresuppressed with a view to avoid the scrutiny by the Court.Charges:9. The principal charges framed against the respondents readthus: https://hcservices.ecourts.gov.in/hcservices/ Charges in respect of R. Anand "First chargeViolation of RulesSection 42 of Coast Guard Act, 1978In that he, at chennai on 16 July 98 at1350 hours, with the object to highlight CoastGuard personnel combined grievance regarding payand allowances, faxed an anonymous letter toCoast Guard Regional Headquarters (East), CoastGuard Regional Headquarters (West), Coast GuardRegional Headquarters (Andaman and NicobarIslands), Naval Headquarters, New Delhi andDefence minister.Second ChargeAn act pre prejudicial to good order andCoast Guard Discipline Section 44 of Coast GuardAct, 1978.In that he, at date and place mentioned inthe first charge, in company with HarishChander, Uttam Navik, No.10815-Z, PS Shelly RajUttam Navik, No.02038-M and Manoj Kumar, UttamNavik No.01774-M conspired to send anonymousletter to superior authorities with the objectto highlight their combined grievance regardingpay and allowances."Charges in respect of P.S.Shelly Raj: "First chargeAn act of Prejudicial to Good order andCoast guard Discipline Section 44 of CoastGuard, 1978.In that he, at Chennai in the first week ofJuly 98, improperly collected Rs.14,600.00(Rupees fourteen thousand six hundred only) fromCoast guard Air Station (Chennai) ship'scompany, which was later handed over to Harishchander, Uttam Navik No.01815-Z, with the objectto highlight their combined grievance throughNewspaper and anonymous letter.Second chargeAn Act Prejudicial to Good order and Coastguard Discipline Section 44 of Coast Guard Act,1978. https://hcservices.ecourts.gov.in/hcservices/ In that he, at date and place mentioned inthe first charge, in company with R.AnandPradhan navik, no.01113-L, harish Chandra, UttamNavik, No.01815-Z and Monoj Kumar, Uttam NavikNo.01774-M conspired to send anonymous letterswith the object to highlight their combinedgrievance regarding pay and allowances.Third chargeViolation of Act.Section 42 of Coast guard Act, 1978In that he, at Chennai on 13/14 July 1998with the object to highlight Coast guardpersonnel combined grievance unauthorisedlycommunicated to the press, consequence of which,news was published in Indian Express, ChennaiEdition on 18 July 1998, thereby violated theprovisions of section 13(c) of Coast Guard Act,1978."Charges against Harish Chandra "First chargeAn act prejudicial to good order and CoastGuard Discipline under Section 44 of Coast GuardAct 1978. IIn that he, at Chennai on first week of July,98, incited the Ship's Company of Coast GuardAir Station (Chennai), to contribute funds withthe object to highlight their combinedgrievances regarding pay and allowances throughpress and by sending anonymous letter,consequences of which, he received Rs.14,600.00(Rupees Fourteen thousand six hundred only) fromPS Shelly Raj, Pradhan Navik No.02038-M of CoastGuard Air Station, (Chennai).Second ChargeViolation of ActIn that he, at Chennai, with the object tohighlight Coast Guard Personnel grievancesregarding pay and allowances, ulauthorisedlycommunicated to the press, consequences of whichCoast Guard Headquarters letter No.PA/0172 dated23 January 98 regarding "Redressal ofgrievances" Harish Chander, Uttam Navik (ME) https://hcservices.ecourts.gov.in/hcservices/ No.01815-Z was puboished in local news papersnamely "Thinaboomi" Chennai edition on 03 August98, thereby contravened the provisions ofSection 13(c) of Coast Guard Act, 1978.Third charge:-An act prejudicial to good order and CoastGuard Discipline Section 44 of Coast Guard Act1978.In that he, at Chennai, on the first weekof July 98 guilty in company with R.Anand,Pradhan Navik No.01113-L, PS Shelly Raj, U/NavikNo.02038-M and Manoj Kumar, Uttam NavikNo.01774-M conspired to send anonymous letterswith the object to highlight their combinedgrievance regarding pay and allowances. "Discussion:10. The Commanding Officer Sri.P.P.S.Sodhi after initiatingthe action appears to have conducted the preliminary investigationand it was only on the basis of the said preliminary enquiry,further proceedings were taken against the respondents includingtheir detention in the Coast Guard Station. There is a referenceabout the preliminary investigation conducted by Sri.P.P.S.Sodhi inthe counter affidavit filed by Commandant Sri.V.S.R.Murthi in WritPetition No.16924 of 1998. The records produced by the Coast Guardalso give an indication that it was only the said Sri.Sodhi, whohas ordered the arrest of the respondents on the ground of mutinyin Coast Guard. It is true that the evidence was recorded byanother officer. However, the punishment was awarded only by theCommanding Officer, who was instrumental in commencing theproceedings. Therefore, the respondents were justified in theircontention that Sri. P.P.S.Sodhi, the then Commanding Officer,Coast Guard Station, Chennai acted as the de- facto complainant,prosecutor as well as the Judge. 11. The order passed by the Commanding Officer in the case ofP.S.Shelliraj (respondent in W.A.No.1529 of 2009) read thus:"PUNISHMENT APPROVAL FORM CGS MadrasDated 01 Sep, 98CGS Madras.No.203/1-02038-MFor: Proposed following punishmentsa) To suffer Rigorous Imprisonment for two https://hcservices.ecourts.gov.in/hcservices/ months.b) To dismiss from the servicec) Deprivation of first and second GoodConduct Badges.-----------------------------------------------Whereas PS Shelly Raj Rank Uttam Navik (ACD)No.02038 – MGood Conduct Medal : NilGood Conduct Badges: TwoDate of Birth: 27.03.71Date of Entry into Coast Guard Service:05.09.1989Date of joining CGAS (Chennai) : 22.05.96Character assessed to date: Very goodWas charge for that he did:(a) "Was in the first week of Jul 98guilty of an act prejudicial to good order andCoast Guard Discipline under Section 44 ofCoast Guard Act 1978. In that he, at Chennai onfirst week of Jul 98, improperly collectedRs.14,600/- (Rupees fourteen thousand sixhundred only) from Coast Guard Air Station(Chennai), Ship's Company, which was laterhanded over to Harish Chandra, Uttam NavikNo.01815-Z, with the object to highlight theircombined grievance through newspaper andanonymous letters to superior authorities."(b) " Was in the week of Jul 98, guilty ofan act prejudicial to good order of and CoastGuard Discipline Section 44 of Coast Guard Act1978, in that he, at the date and placementioned in the first charge, in company withR.Anand, Pradhan Navik No.01113-L, HarishChander Uttam Navik, No.01815-Z and Manoj KumarUttam Navik No.01774-M conspired to sendanonymous letters to superior authorities withthe object to highlight their combined grievanceregarding pay and allowances." (c) "Did contravened the provisions ofSection 13(c) of Coast Guard Act, 1978 hencecommitted an offence under Section 42 of CoastGuard Act 1978. In that he, at Chennai, with theobject to highlight Coast Guard Personnelcombined grievances regarding Pay andallowances, unauthorisedly communicated to the https://hcservices.ecourts.gov.in/hcservices/ press, consequences of which news was publishedin Indian Express, Chennai edition on 18 Jul98."AND WHEREAS I did, on the 01 day ofSeptember, 1998 personally and publically, inthe presence of the complainant and the accusedinvestigated the matter and whereas the accusedpleaded not guilty to the charges.Having heard the evidence of Dy. Comdt.K.Dikshit (0237-M) and Comdt RM Sharma (0018-P)in support of the charges as well as what theaccused has to offer in his defence and theevidence of Nil whom he called on his behalf, Iconsider the charges to be substantiated againsthim and taking into consideration that this isthe first offence registered against him on hisConduct Sheet, I adjudge him tobe punished asfollows:a) To suffer Rigorous Imprisonment for twomonths.b) To dismiss from the servicec) Deprivation of first and second GoodConduct Badges.Given under my hand on board CGS Chennai on thefirst day of September 1998.sd/Signature and Rank of CO(PPS Sodhi)CommanderCommanding Officer CGS Madras."12. Though the learned Single Judge has allowed the writpetitions on the ground of non-production of original file tosubstantiate the contentions taken by the Coast Guard, we haveperused the xerox copies of the documents produced by the Coastguard.13. The order dated 1 September, 1998 on the file of theCommanding Officer clearly shows that he has not made any attemptto consider the evidence recorded by the Deputy Commandant. TheCommanding Officer after extracting the background facts, abruptlyconcluded that the charges were proved and punishment was imposed. https://hcservices.ecourts.gov.in/hcservices/

14. The Commanding Officer has passed a brief order withoutreasons on account of his personal knowledge of the matter as hewas the officer who conducted the preliminary enquiry in thematter. The available materials clearly gives an impression thatthe Commanding Officer Sri.Sodhi actively took part in theproceedings except recording of evidence.Right to reason:15. The Supreme Court in Goyal Enterprises v. State ofJharkhand, {(2008) 13 SCC 570, at page 571} indicated that even inrespect of administrative orders reasons should be furnished. Thefollowing paragraph would make the legal position clear. "8. Even in respect of administrativeorders, Lord Denning, M.R. in Breen v.Amalgamated Engg. Union5 observed (All ER p.1154h): ‘The giving of reasons is one ofthe fundamentals of good administration.’ InAlexander Machinery (Dudley) Ltd. v. Crabtree6it was observed:‘Failure to give reasons amounts todenial of justice. Reasons are live linksbetween the mind of the decision-taker tothe controversy in question and thedecision or conclusion arrived at.’Reasons substitutesubjectivity by objectivity. Theemphasis on recording reasons isthat if the decision reveals the‘inscrutable face of the sphinx’,it can, by its silence, render itvirtually impossible for thecourts to perform their appellatefunction or exercise the power ofjudicial review in adjudging thevalidity of the decision. Rightto reason is an indispensablepart of a sound judicial system;reasons at least sufficient toindicate an application of mindto the matter before court.Another rationale is that theaffected party can know why thedecision has gone against him.One of the salutary requirements https://hcservices.ecourts.gov.in/hcservices/ of natural justice is spellingout reasons for the order made;in other words, a speaking-out.The ‘inscrutable face of thesphinx’ is ordinarily incongruouswith a judicial or quasi-judicialperformance.”* 16. In Rani Lakshmi Bai Kshetriya Gramin Bank v. JagdishSharan Varshney (2009 (4) SCC 240), the Honourable Supreme Courtagain underlined the necessity to furnish reasons in support of theorder thus:-"The purpose of disclosure ofreasons, as held by a ConstitutionalBench of this Court in S.N.Mukherjeev. Union of India is that people musthave confidence in the judicial orquasi-judicial authorities. Unlessreasons are disclosed, how can aperson know whether the authority hasapplied its mind or not? Also, givingof reasons minimises the chances ofarbitrariness. Hence, it is anessential requirement of the rule oflaw that some reasons, at least inbrief, must be disclosed in a judicialor quasi-judicial order, even if it isan order of affirmation." 17. The father of P.S.Shelliraj, respondent in Writ AppealNo.1529 of 2009 filed a Habeas Corpus Petition before this Court inH.C.P.No.1054 of 1998 for a direction to produce the body andperson of P.S.Shelliraj, who has been detained by the CommandingCoast Guard, Chennai. In the said Habeas Corpus petition, Sri.P.P.S.Sodhi, the Commanding Officer, who ultimately passed theorder of dismissal, filed a counter justifying the detention. Thecounter was filed as early as on 17 August 1998. It is a matter ofrecord that on 11 August, 1998 that the Commanding Officerappointed the Deputy Commandant to record the evidence. Therefore,the counter affidavit justifying the action taken against therespondents was filed even before the recording of evidence by theDeputy Commander. In the counter affidavit, Commander Sri.P.P.S.Sodhi contended that few disgruntled sailors had resorted tounlawful means to highlight their demand in respect of therecommendations made by Fifth Pay Commission regarding pay andallowances of Coast Guard Personnel. They pasted threatening https://hcservices.ecourts.gov.in/hcservices/ posters at Coast Guard Stations/ships at Mumbai, Cochin,Visakhapatnam and Chennai. It was found that fax message was sentfrom Kavitha Xerox to the Minister for Defence with regard to non-implementation of the recommendation of Fifth Pay Commission.Enquiry conducted in the matter and particularly with regard to faxmessage sent through Kavitha xerox confirmed the participation ofthe respondents. The respondents instigated the personnel of CoastGuard Air Station (Chennai) to make a demand before the DefenceMinister and for the purpose collected a sum of Rs.14,600/- to fundthe unlawful activities against Coast Guard. In short, theCommanding Officer arrived at a finding that the respondents havecommitted an offence punishable under the Coast Guard Act andRules.18. Rule 21 of the Coast Guard Rules (Disciplines), 1983 readsthus:21. Attachment to another unit:- TheCommanding Officer shall not deal with anycase:-(a) Where the offence with which theaccused is charged is against the CommandingOfficer himself; or(b) Where the Commanding Officer ishimself a witness in the case against theaccused; or(c) Where the Commanding Officer isotherwise (personally interested in the case)the accused shall be attached to another shipor station for the disposal of the case underthe orders of the District Commander or theRegional Commander:Provided that a Commanding Officer shallnot be disqualified from hearing a chargemerely because the offence was committedagainst the property of a Coast Guard Mess orband or institution of which the CommandingOfficer is a member or trustee or because theoffence is one of disobedience of suchCommanding Officer's orders."19. Rule 21 was introduced with a view to avoid the element ofarbitrariness. The misconduct in question was committed during thecommandership of Sri. P.P.S.Sodhi. He was instrumental in takingup this matter. Therefore he should be treated as a witness withrespect to the charges framed against the respondents. In suchcircumstances, the said Officer should have recused himself fromthe disciplinary proceedings. The proceedings initiated by the saidOfficer resulted in the punishment of respondents. The disciplinaryproceedings were conducted in total violation of Rule 21(b) of the https://hcservices.ecourts.gov.in/hcservices/ Coast Guard Rules (Disciplines), 1983.20. It is, therefore, a matter of record that the very sameofficer, who conducted the preliminary enquiry had ultimatelypassed the order of dismissal besides imposing jail sentence fortwo months in the case of R. Anand and Harish Chandra.21. The Supreme Court in State of U.P. v. Saroj Kumar Sinha(2010(2) Scale 42) indicated that a Government employee facingdepartmental enquiry is entitled to a reasonable opportunity todefend himself and the enquiry proceedings should be conductedunbiased. The Supreme Court said:"28. When a department enquiry isconducted against the Government servant itcannot be treated as a casual exercise. Theenquiry proceedings also cannot be conductedwith a closed mind. The enquiry officer has tobe wholly unbiased. The rules of naturaljustice are required to be observed to ensurenot only that justice is done but is manifestlyseen to be done. The object of rules of naturaljustice is to ensure that a government servantis treated fairly in proceedings which mayculminate in imposition of punishment includingdismissal/removal from service. In the case ofShaughnessy v. United States, 345 US 206 (1953)(Jackson J), a judge of the United StatesSupreme Court has said procedural fairness andregularity are of the indispensable essence ofliberty. Severe substantive laws can be enduredif they are fairly and impartially applied ."22. It is true that the respondents were members of adisciplined force. They were expected to maintain high degree ofdiscipline in a force like Coast Guard. However, it cannot be saidthat they are not entitled for a reasonable opportunity and theyshould be deprived of a fair enquiry. The disciplinary authorityshould not commence the enquriy with an element of bias. Theenquiry should have been initiated with an open mind and dependingupon the evidence adduced necessary action could have been takenagainst the delinquents. 23. However, in the case on hand, the entire proceedingsright from conducting the preliminary enquiry, filing Counter inthe Habeas Corpus Petition and ultimately passing the order ofdismissal, were all done by the very same officer. Therefore, the https://hcservices.ecourts.gov.in/hcservices/ respondents were fully justified in their contention that they weredenied of a fair hearing and the recording of evidence conducted bythe Deputy Commander was a make-belief affair.24. The Coast Guard was well aware that proceedings werepending before the High Court with respect to the order ofdismissal passed against the respondents. In fact Habeas CorpusPetitions were also filed before this Court on earlier occasion.The writ petitions were admitted in the year 2003 and Rule Nisi wasissued directing the appellants to produce the records. For thereasons best known to them, the original records were not produced.Finally when the learned Single Judge directed them to produce therecords they have given an explanation that during the course ofshifting their office, they lost the file. There was nothing onrecord to indicate as to when the file was lost and what preventedthem from producing the file immediately after receiving Rule Nisiby them. Non-production of the file has to be considered in thelight of the challenge made to the disciplinary proceedings at theinstance of the respondents.25. Therefore on a careful consideration of the entire factualmatrix, we are of the view that the Commanding Officer, Coast GuardStation failed to conduct the enquriy as contemplated under theCoast Guard Rules (Disciplines), 1983 and as such, the learnedSingle Judge was justified in quashing the order of dismissal,though on the ground of non-production of file. Even otherwise, ona careful perusal of the available records, we are convinced thatthe alleged attempt was only to redress their grievances withrespect to the non-implementation of the recommendations made bythe Fifth Pay Commission and it was not a mutiny. 26. The documents relied on by the Coast Guard themselvescontains statements with regard to the implementation of pay scalesby the other departments. There was no finding with regard tomutiny and the principal charge relates to despatch of anonymousletters and the evidence also proceeds on the basis that therespondents were instrumental in sending fax message to the DefenceMinister.27. We are, therefore, of the considered view that theavailable materials clearly give an indication that the CommandingOfficer was acting as the complainant, prosecutor as well as theJudge and as such, a fair enquiry was denied to the respondents.The Commanding Officer appears to have entertained a clear biasagainst the respondents and the same is evident from the records(xerox copies) produced before us.28. The secondary issue is as to whether we should remit the https://hcservices.ecourts.gov.in/hcservices/ matter to the Coast Guard for fresh consideration.29. The misconduct in question relates to the year 1998.According to the Coast Guard, none of the original records areavailable with them. In the said circumstances, there is no pointin remitting the matter to the Coast Guard for considering theissue afresh. We are, therefore, of the opinion that relief shouldbe moulded in this case.DISPOSITION:30. Accordingly, we confirm the order passed by the learnedSingle Judge with respect to setting aside the order of dismissalfrom service. 31. It is a matter of record that the respondents have notworked for the period in question. Therefore they are not entitledto the salary for the period up to 17 July, 2009, the date oforder passed by the learned Single Judge directing re-instatement.In short, the respondents are entitled to backwages with effectfrom 18 July, 2009. They should be given all the other benefitsincluding continuity of service and seniority, consequent to theorder setting aside the punishment.32. The original respondent in W.A.No.1530 of 2009 died duringthe pendency of the proceedings and as such, his legalrepresentatives are shown as respondents 1 to 3. Therefore, thethird appellant (The Commanding Officer, Coast Guard Station,Madras) is directed to calculate the benefits due to the deceased,consequent to the order setting aside the punishment of dismissalfrom service and the consequential order of re-instatement and paythe amount to the legal representatives as expeditiously aspossible and in any case within a period of three months from thedate of receipt or production of a copy of this judgment.33. The writ appeals are allowed in part. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.Tr/ https://hcservices.ecourts.gov.in/hcservices/ To1. Union of India rep.by its Secretary to Government Union of India Ministry of Defence New Delhi.2. The Director General Coast Guard Headquarters National Stadium Complex New Delhi-110 001.3. The Commanding Officer Coast Guard Air Station Rudra Road St. Thomas Mount Madras-600 016. 4. The Commanding Officer Coast Guard Station (Madras) C/o Coast Guard Region HQ (East) Fort St. George Chennai-600 016.1 cc to Mr.S. Hajamohideen Gisthi, Advocate, Sr. 463202 ccs to Mr.M. Kamalakannan, advocate, Sr. 463031 cc to Mr.K. Sudalaikannu, Advocate, Sr. 463581 cc to Ms/ Lakshmipriya associates, Sr. 46256 W.A.NOs.1528 to 1530 of `2009RSY (CO)kk 2/8