P.J.Jacob, Vice Admiral (Retd.), Former Director General, Coast Guard Headquarters, National Stadium v. Md.Abbas Mohidden

7.P.J.Jacob, Vice Admiral (Retd.), Former Director General, Coast Guard Headquarters, National Stadium Complex, New Delhi. 8. Commandant A.Athinarayana, Commanding Officer, C.G.S.Vard, C/o.Coast Guard D.H.Q., Visakapatnam... AppellantsVs.Md.Abbas Mohidden... Respondent* * *Writ Appeal preferred under Clause 15 of the Letters Patent asagainst the order passed by the learned single Judge dated 5.3.2008, madein W.P.No.36674 of 2003 against the writ petition presented to this Courtunder Article 226 of the Constitution of India to issue of writ of Certiorari calling for the records of the Coast Guard Court constituted bythe second respondent in connection with the proceedings of the CoastGuard Court dated 29.10.2003 and quash the same. * * *For appellants: Mr.B.ShanthakumarFor respondent: Mr.G.Rajagopalan, Senior Counsel for M/s.G.R.Associates* * *JUDGMENTELIPE DHARMA RAO, J.The respondent herein is a B.Tech (Mechanical) and joined theservices of Coast Guard as Assistant Commandant (Technical) in Class IGroup on 6.8.1989 and on completion of training and probation, he servedon various coast guard ships in Western command and thereafter joinedEastern Command on board C.G.S.Jijabai at Paradeep, Orissa on 12.8.1993.It is the case of the respondent herein that when he was the TechnicalOfficer in the said ship, on 18.10.1994, the Commanding OfficerS.E.D.Anand Kumar/the 5th appellant herein seized two Taiwan Trawlers, https://hcservices.ecourts.gov.in/hcservices/ which are in international water, and looted them and decided to apprehendthe trawlers and bring them to Indian waters and boarded the trawlers; that the Commanding Officer/the 5th appellant herein sent two boardingparties, one led by Assistant Commandant Bhatacharya and the other led by Assistant Commandant Praveen Gaur; that the boarding party led by Assistant Commandant Praveen Gaur looted the Thai trawler, which theyboarded at the instruction of the Commanding Officer and the boardingparty led by the Assistant Commandant Bhattacharya brought the trawlerintact to Paradeep Port and Praveen Gaur carried out the instructions ofthe Commanding Officer and looted the Thai Trawler and thereafter it wastaken to Paradeep Port on 19.10.1994, which was stiffly objected to by therespondent and he also opposed when the incomplete seizure list was givento the Paradeep Police Station on 19.10.1994.

This strong objection ofthe respondent for the illegal acts committed by the 5th appellant hasirked the 5th appellant and therefore, he plotted to send the respondentout of Paradeep and on 2.10.1994, the respondent was sent to Madras forparticipating in the Eastern Region games and while the respondent wasstill in Madras, a telex message was sent to the respondent by the Commanding Officer/the 5th appellant, granting leave for the respondent, even though the respondent has never applied for the same and during theabsence of the respondent, a new firm Rajan Engineers was introduced bythe 5th appellant to do the maintenance work of the ship even though thesaid firm has no workshop or background to do this kind of work.

It is seen from the records that while things stood thus, the 5thappellant has forwarded the annual confidential report of the respondentfor the period November, 1993 to October, 1994, with adverse remarks on10.11.1994. It is the case of the respondent/workman that since hismarriage was fixed on 4.4.1995, he applied for leave for 26 days on27.3.1995, but even before completion of the leave, a telegram was sent tohis residence to join immediately and therefore, he reported to duty on17.4.1995. It is his strong case that in the farewell party to oneDr.Mishra of C.I.S.F. In the Paradeep Port on 10.4.1995, the 5th appellanthad made a statement that 'Abbas will be court martialled'.

It is submitted by the respondent that on 15.4.1995, the PortDiesel alternator top overhaul was said to have been done by oneMr.Govindarajan and the work completion was signed by the 5th appellant, without any trial and that the 5th respondent is not a technicallycompetent person to decide whether the work has been completed properlyand whether the work has been attended to properly and without trial, nowork completion certificate could be signed. But, the 5th appellant did soand if normally even a superior officer signs a work order, he will takethe signature of technically competent person before the person who istechnically competent. It is further submitted that on 17.4.1995, hereported for duty, since the 5th appellant had directed him over phone on15.4.1995 to report back immediately and during the period from 15.4.1995to 25.4.1995, the ship was in the Assisted Maintenance Period; that on19.4.1995, in the evening when the ship was in harbour, the sea water https://hcservices.ecourts.gov.in/hcservices/ problem in the star board D.A. has occurred and thereupon the 5th appellanthas lodged a complaint against the respondent.

This motivated and malicious complaint of the 5th appellant lodgedagainst the respondent, has paved way for the impugned proceedings againsthim, ultimately leading to his dismissal from service. It is also to benoted that on 31.10.1995, the Departmental Promotion Committee (DPC) wasconvened to consider the issue of promotions to the post of DeputyCommandant and on 6.12.1995, the promotion list was displayed but his namewas not included, though he was the first in his batch and though he hasgiven a representation to the 5th appellant on 29.12.1995 as required underthe Rules against his non-promotion and within one month, he wastransferred to the Regional Headquarters of the Eastern Command viz. Madras for duties of O.I.C.IPV.Stores. On 15.2.1996, a charge sheet wasissued with the following charges: "a. Failure to discharge duties properly and was fullyresponsible for non-preservation of star board D.A. afteringress of sea water leading to deterioration of material stateof star board D.A., thereby committed an offence under Section16 of the Coast Guard Act, 1978.b. Knowingly concealed the vital information of sea wateringress in star board D.A. from his Commanding Officer, administrative authority and repair agency thereby committed anoffence under Section 16 of the Coast Guard Act, 1978.c. Grossly derelicted his duty by allowing the damage to getcompounded on port D.A. In overheated condition over a longperiod without proper fault diagnosis thereby committed anoffence under Section 16 of Coast Guard Act, 1978.d. Showed total irresponsible and careless attitude in faultdiagnosis and repair of defects affecting the ship's operationalefficiency and delay in repair process thereby committed anoffence under Section 16 of the Coast Guard Act, 1978."It is submitted by the respondent in the above charges, Record of Evidencewas completed at the end of February, 1996 and the then Commanding OfficerMr.S.K.Singh/the 6th appellant herein has held that there was no caseagainst the respondent and recommended dropping of the charges.

However, thereafter, once again, another charge sheet was issuedto the respondent on 30.7.1996, with the following charges: First charge Failed to perform the duty imposed on himSection 16(c) of In that he while on board Coast Guard Ship Jijabai as Coast Guard Act Engineer Officer, during the month of April and May19781995, was negligent in ensuring maintenance and timely defect rectification of the ship's machinery, which adversely effected the ship's operationalavailability. https://hcservices.ecourts.gov.in/hcservices/ Second chargeViolation of ordersSection 42 of In that he during place, months and while performingCoast Guard Act duty mentioned in first charge, failed to immediately1978 report the defects occuring in the said ship's machinery to his Commanding Officer, thus contravening para 306(a)(iii) of Coast Guard Ship Jijabai Captain Standing Order.6. As the above said charges were liable to be straight away tried bythe Coast Guard Court, the respondent herein filed Writ PetitionO.J.C.No.10043 of 1996 before the Orissa High Court and he had also filedWrit Petition O.J.C.No.6959 of 1997 regarding his promotion.

For better appreciation, we extract hereunder Section 66 of the Coast Guard Act, 1978:"66.(1) If a Coast Guard Court after the commencement of a trialis reduced below the minimum number of officers required by this Act, it shall be dissolved. (2) If on account of the illness of the Law Officer or of theaccused before the finding, it is impossible to continue thetrial, a Coast Guard Court shall be dissolved. (3) The convening authority of a Coast Guard Court may dissolvethe same if it considers that the exigencies of the service ornecessities of discipline render it impossible or inexpedient tocontinue the said Coast Guard Court. (4)Where a Coast Guard Court is dissolved under this section, the accused may be tried again. " (Emphasis supplied)From the reading of this Section it is clear that the Coast Guard Courtcan be dissolved if the minimum number of officers required by the Act wasreduced, after the trial is commenced; if it is impossible to continue thetrial on account of the illness of the Law Officer of other accused beforethe finding and if the Convening Authority considers that there areexigencies of the service or necessities of discipline, which render itimpossible or inexpedient to continue the same and only if the Coast GuardCourt is dissolved for the above specified three reasons, the accused maybe tried again.

In the case on hand, the Coast Guard Court for which a ConveningOrder was issued on 26.8.1996, was dissolved, without assigning any reasonon 27.4.1998, by a wire order. It has not at all been proved by theappellants/authorities that the Coast Guard Court was dissolved only asper sub sections (1) to (3) of Section 66 of the Coast Guard Act, 1978 andtherefore, they are entitled to try the respondent, as contemplated undersub section (4) of Section 66. The dissolving order is available at PageNo.8 of the typed set of papers filed on behalf of the respondents, which, as has been observed supra, is only a wire message with no reasons fordissolving the Coast Guard Court, much less the ones specified andmandated under sub-sections (1) to (3) of Section 66. In the absence ofany such conditions or contingencies as specified under sub-sections (1)to (3) of Section 66, the appellants cannot make use of the power under Section 66(4) of the Coast Guard Act so as to try the respondent again.

In the case on hand, after dissolving the Coast Guard Court on27.4.1998, another charge-sheet dated 10.8.1999 was issued to therespondent, which is nothing but a cyclostyled one of the earlier chargesheet dated 30.7.1996. Therefore, aggrieved, the respondent filed https://hcservices.ecourts.gov.in/hcservices/ O.J.C.No.12975 of 1999 before the Orissa High Court and by the interimorder dated 13.10.1999, it has been ordered that no final order in respectof the charge will be passed without leave of the Court and ultimately, bythe order dated 5.3.2003, the said O.J.C. was disposed of on 5.3.2003 witha direction to the respondent to raise such objections before the CoastGuard Court. Thereafter, on 7.4.2003, an order of re-assembly of CoastGuard Court was issued ordering re-assembly of the Coast Guard Court at Chennai on 2.5.2003 and the respondent filed W.P.No.14388 of 2003 beforethis Court to quash the said proceedings and also filed WPMP.No.18006 of2003 praying to stay the proceedings of Coast Guard Court and by the orderdated 30.4.2003 interim stay for a period of ten weeks on conducting CoastGuard Court proceedings was granted and this Court by the order dated18.8.2003, has dismissed the said writ petition with a liberty to therespondent to raise or restate his plea of jurisdiction or otherobjections before the Coast Guard Court and in case Coast Guard Courtoverrules the plea, the respondent shall be granted atleast four weekstime to work out his remedy, if any, under the Act or as open to him inlaw.

Thereafter, the respondent filed Contempt Petition No.918 of 2003before this Court alleging disobedience of the said order by theappellants. The above said order of the learned single Judge waschallenged by the appellants in W.A.No.1401 of 2004 and the 1st Bench ofthis Court, by the judgment dated 28.9.2005, has allowed the same, therebysetting aside the order passed by the learned single Judge dated18.8.2003. In this judgment, the 1st Bench of this Court has observed thatsince for the same relief, the respondent/Officer has already initiatedproceedings before the Orissa High Court in OJC.No.12775 of 1999 and itwas dismissed, the same will operate as resjudicata and therefore, thelearned single Judge ought not to have entertained the writ petition andought to have dismissed the writ petition on this sole ground of resjudicata. While, thus allowing the writ appeal filed by the authorities, the 1st Bench of this Court has imposed a cost of Rs.10,000/= on therespondent. In view of the said judgment of the 1st Bench of this Court, the Contempt Petition No.918 of 2003 was dismissed on 8.12.2005.

At this juncture, the learned counsel for the appellants wouldsubmit that the learned single Judge has failed to consider this aspect, which would establish the attitude of the respondent. On the other hand, the learned senior counsel for the respondent would submit that it isunfortunate that such an order has visited the respondent, since even fromthe reading of the order of the learned single Judge, dated 18.8.2003, itis crystal clear that the fact of filing of the earlier writ petitionbefore the Orissa High Court was clearly brought to the notice of the Court further bringing to the notice of this Court about the necessity tofile the writ petition before this Court and after considering all thefacts and circumstances of the case and even the filing of the earlierwrit petition before the Orissa High Court, the learned single Judge haspassed the said order and there was no hiding of any information or fact https://hcservices.ecourts.gov.in/hcservices/ before this Court and owing to his poverty-stricken conditions, therespondent could not file any appeal against this order passed by the 1stBench of this Court before the upper forums of law. But, we are not in aposition to re-appreciate this issue, since the respondent has notchallenged the same before the upper forums of law and we do not proposeto offer any opinion on this point. But, it must be made clear that thecase on hand is entirely on a different footing and no adverse approach tothe claim of the respondent can be made, simply based on the judgmentearlier passed by the 1st Bench of this Court and the case on hand has tobe decided on its own merits and demerits.

In this backdrop, the learned counsel for the appellants wouldsubmit that since the dissolving order was passed because of the stayorder obtained by the respondent in O.J.C.No.10043 of 1996, the appellantsare very well within their powers to issue another charge sheet on10.8.1999 and the reconvening order on 20.9.1999. In support of hiscontentions, the learned counsel for the appellants would rely on ajudgment of the Honourable Apex Court in O.P.DAHIYA vs. UNION OF INDIA ANDOTHERS [(2003) 1 SCC 122]. In the said case, the General Security ForceCourt was initiated to enquire into the misconduct of a Border SecurityForce staff and it was dissolved since he alleged denial of fair trial anda fresh Court for retrial was ordered. When in such circumstances, theretrial was challenged by the accused, the Honourable Apex Court has heldthat since the fresh court was constituted in the interest of theemployee, no prejudice has been caused to him and thus the authorities arewell within their authority under Section 71(4) of the Border SecurityForce Act, 1968.

The same is not the situation in the case on hand. In the caseon hand, as has been discussed supra, the three reasons enunciated in Section 66(1) to (3) of Coast Guard Act, 1978 will only pave way for theaccused to be tried again. But, no such reasons are offered whiledissolving the earlier Coast Guard Court. The second charge-sheet and theconsequential reconvening order for the Coast Guard Court were issued onlyto the detriment of the accused officer. The facts in the case before the Supreme Court are just opposite the one in hand. Therefore, the abovesaid judgment of the Honourable Apex Court, relied upon by the learnedcounsel for the appellant will not, in any way, augment their case.

The respondent has attacked the impugned order of dismissal onthe ground of limitation also. The learned senior counsel appearing forthe respondent would submit that Section 51(1) of the Coast Guard Actimposes a period of limitation to prosecute the accused persons and sincethe said limitation period is expired long back in the case on hand, theappellants are bereft of power in issuing the second charge memo.

For better appreciation, we extract hereunder Section 51(1) ofthe Coast Guard Act: https://hcservices.ecourts.gov.in/hcservices/ "51(1) No person unless he is an offender who has avoidedapprehension or escaped arrest or committed the offence ofdesertion or of giving false entry on enrolment or the offenceof mutiny shall be tried or punished in pursuance of this Actfor any offence committed by him unless such trial commenceswithin three years from the commission of such offence. "

This Section was amended by Central Act 44 of 2002, whichreceived the assent of the President of India on 12.8.2002 and waspublished in the Gazzette on the same day. It reads as follows: "51. Period of limitation for trial of offences under the Act -(1) No person unless he is an offender who has avoidedapprehension or escaped arrest or committed the offence ofdesertion or of giving false entry on enrolment or the offenceof mutiny shall be tried or punished in pursuance of this Actfor any offence committed by him unless such trial commenceswithin a period of three years from the commission of suchoffence and such period shall commence -(a) on the date of the offence; or(b) where the commission of offence was not known to the personaggrieved by the offence or to the authority competent toinitiate action, the first day on which such offence comes tothe knowledge of such person or authority; or(c) where it is not known by whom the offence was committed, onthe first day on which the identity of the offender becomesknown to the person aggrieved by the offence or to the authoritycompetent to initiate action, the first day on which suchoffence comes to the knowledge of such person or authority; or(c) where it is not known by whom the offence was committed, onthe first day on which the identity of the offender becomesknown to the person aggrieved by the offence or to theauthority, competent to initiate action, whichever is earlier. Explanation: For the purposes of sub-section, in thecomputation of the period of time mentioned in this sub-section, any time spent by such person as a prisoner of war in the enemyterriroty, or in evading arrest, after the commission of theoffence, shall be excluded. (1A) Where a proceeding in respect of an offence has been stayedby an injunction or an order of a court, then, in computing theperiod of limitation under this section, the period of thecontinuance of the injunction order, the day on which it wasissued or made, and the day on which it was withdrawn shall beexcluded. "

From the reading of the above section, it is clear that for anyoffence, the trial shall commence within three years from the commissionof such offence, unless such an offender has avoided apprehension or https://hcservices.ecourts.gov.in/hcservices/ escaped arrest or committed the offence of desertion or of giving falseentry on enrolment or the offence of mutiny. In the amended provision, clarification has been given as to when the period shall commence. Thecase will not fall under clauses (b) and (c) of Section 51(1), since thealleged commission of offence is claimed to have been known to thesuperior officer of the respondent and he also lodged the complaint. Therefore, the trial should commence within three years from thecommission of such offence. For the alleged commission of offence, acomplaint was lodged by the 5th appellant on 19.4.1995.

At this juncture, it is also relevant to point out that thoughthe complaint was lodged on 19.4.1995, in the first charge, it has beenmentioned that the respondent/Officer was negligent during April and May,1995 in ensuring maintenance and timely defect rectification of the ship'smachinery, which adversely affected the ship's operational availability. Charges must be specific. Here, in the complaint of 19.4.1995 itself, howcan there be complaint regarding the future period of May also? Thoughthe first charge-sheet was issued on 30.7.1996 since it has been issuedonly based on the complaint dated 19.4.1995, there cannot be accusationfor the future period also. Therefore, it must be concluded that there isambiguity in the very framing of the charges also and no specific details, as to in what way the defects occurred and how the charged official isresponsible for the same etc. have been mentioned. Thus, it must beconcluded that the very base of the charges is very vague, as has beenrightly claimed on the part of the respondent.

Again reverting back to our discussion on the point oflimitation, since the alleged occurrence took place during the month of April, 1995 and the complaint was lodged on 19.4.1995, the trial shouldhave commenced within three years i.e. by 18.4.1998. But, in the case onhand, the second charge-sheet was issued on 10.8.1999 i.e. well after theperiod of limitation. In this connection, the learned counsel for theappellants would submit that due to filing of several writ petitions andobtaining different orders of stay/directions by the High Court of Orissaand this Court, the Coast Guard Court had to be adjourned sine die and re-assemble on different dates and at one stage, the conveningAuthority/Director General of Coast Guard had to necessarily dissolve the Coast Guard Court in view of the fact that the members of the Coast GuardCourt were transferred to different places during the period September1996 to 11.10.1999 when the Coast Guard Court assembled to continue thetrial and completed the same in respect of the same charges framed againstthe respondent. It is further submitted that as the charges were neitherdismissed nor the respondent was absolved of the commission of theoffences, the Competent Authority and the Convening Authority werejustified in their respective actions taken in the case of the respondentunder Section 51(1), 66(3) and (4) of the Coast Guard Act, 1978. He wouldfurther submit that as per the amended Section 51(1A) of the Coast GuardAct, the period of injunction/stay should be excluded and therefore, thetrial has been commenced very well within the limitation. https://hcservices.ecourts.gov.in/hcservices/

We are not in a position to accept this plea raised on the partof the appellants. True, an interim direction was issued by the OrissaHigh Court on 23.9.1996 in O.J.C.No.10043 of 1996, directing that thetrial fixed to 24.9.1996 shall not be taken up until further orders. Subsequently, by the order dated 6.4.1998, the Orissa High Court hasdisposed of the said Writ Petition O.J.C.No.10043 of 1996, considering therequest of the respondent/employee an opportunity to make representationto the Coast Guard Court and/or to the Director General, Coast Guard tocontend that further proceeding in the matter would not be desirable, ithas been directed that till the disposal of the representation by theauthority to whom representation is made, the trial shall not proceed. Nowhere, there was any direction to dissolve the Court and there was nobar for conducting the trial, after complying with the order of the Court. Instead of following the orders of the Court, without assigning anyreason, the Coast Guard Court was dissolved on 27.4.1998. The defence nowraised by the appellants, that interim injunction period or the stayperiod should be excluded, would have been available to them had they notdissolved the Coast Guard Court. Having dissolved the Coast Guard Courtnot for any reason mentioned in Section 66 of the Act and having issuedwith a fresh charge, which is nothing but a old wine in the new bottle, on10.8.1999, and passed fresh convening order for the Coast Guard Court, theappellants cannot be permitted to plead that their action is within thelimitation period and that it is only continuation of the earlier Courtand not a new one.

Further more, in compliance of the directions of the Orissa HighCourt, the respondent has submitted his representation on 23.4.1999, whichwas also not considered by the appellants. When the respondent has made adetailed representation regarding the jurisdiction and limitation on23.4.1999, the other argument advanced on the part of the appellant thatsuch an issue should have been raised before the Coast Guard Court or theauthorities concerned, has no legs to stand before us. Even otherwise, being a legal questions, they can be raised at any stage of theproceedings, as has been repeatedly held by the Honourable Apex Court. Therefore, this submission made on the part of the appellants is rejected.

From the above discussion, we have no hesitation to hold thathaving dissolved the Coast Guard Court constituted earlier, on 27.4.1998,without assigning any reason, much less the ones in Section 66 of the Act, the appellants cannot order reconvening of the Coast Guard Court and sincefresh charge sheet has been issued belatedly i.e. more than the period ofthree years, as has been mandated under Section 51 of the Act, the actionof the appellants is also barred by limitation, as has been rightlypointed out on behalf of the respondent/officer and elaborately discussedby the learned single Judge. On this score itself, the appeal preferredby the officials is liable to be dismissed. However, since furtherarguments were also advanced, to give a quietus to the entire aspect, weshall now proceed to discuss the other aspects of the case also. https://hcservices.ecourts.gov.in/hcservices/

The learned counsel appearing for the appellants would argue thatthe High Court's power of judicial review under Article 226 is not in thenature of power of appellate authority enabling reappreciation of evidenceand on the ground of insufficiency of evidence, to alter the conclusionreached by competent authorities. He further argued that court-martialproceedings are subject to judicial review under Article 226, but court-martial is not subject to superintendence under Article 227. In supportof his arguments, the learned counsel for the appellants would rely on thefollowing judgments:1.UNION OF INDIA AND OTHERS vs. HIMMAT SINGH CHAHAR [(1999) 4SCC 521];2.UNION OF INDIA AND OTHERS vs. MAJOR A.HUSSAIN (IC-14827)[(1998) 1 SCC 537] and3.MAJOR G.S.SODHI vs. UNION OF INDIA [(1991) 2 SCC 382]

In the first judgment cited above, reported in [(1999) 4 SCC521], the Honourable Apex Court has held that 'the High Court's power ofjudicial review under Article 226 is not in the nature of power ofappellate authority enabling reappreciation of evidence and, on the groundof insufficiency of evidence, to alter the conclusion reached by competentauthorities in court-marital proceedings and hence in reappreciating theevidence and reaching the contrary conclusion that the complaint'sevidence was not credible enough to hold the respondent guilty under S.354IPC, the High Court overstepped its jurisdiction.'

In the second judgment cited above, reported in [(1998) 1 SCC537], the Honourable Apex Court has held that 'the proceedings of aproperly constituted and properly convened court-martial, if conducted inaccordance with the rules, are beyond the scope of judicial review andwhere evidence was sufficient, subject-matter was within its jurisdiction, prescribed procedure was followed, and the punishment awarded was withinits powers, the conviction and sentence passed by court-martial should nothave been interfered with by High Court.'

In the third judgment cited above, reported in [(1991) 2 SCC382], the Honourable Apex Copurt has held that 'procedural defects in thecourt marial, unless vital and substantial, will not affect the trial. When accused duly participated in the proceedings and there is no flagrantviolation of any procedural provision causing prejudice to the accused, the Supreme Court will not interefere.'

But, in MATHURA PRASAD vs. UNION OF INDIA [(2007) 1 SCC 437],considering the entire case law on the subject of judicial review, the Apex Court has categorically and in no uncertain terms has ruled: "When an employee, by reason of an alleged act of misconduct, issought to be deprived of his livelihood, the procedures laiddown under the sub-rules are required to be strictly followed. https://hcservices.ecourts.gov.in/hcservices/ A judicial review would lie even if there is an error of lawapparent on the face of the record. If statutory authority usesits power in a manner not provided for in the statute or passesan order without application of mind, judicial review would bemaintainable. Even an error of fact for sufficient reasons mayattract the principles of judicial review. "

By virtue of this latest pronouncement of the Honourable ApexCourt, even an error of fact, for sufficient reasons, would attract theprinciples of judicial review. Therefore, the submission of the learnedcounsel for the appellant that there cannot be any judicial review overthe findings rendered by the Coast Guard Court cannot be appreciated, since by virtue of the said finding rendered in the proceeding, which isin the nature of domestic enquiry, the livelihood of the respondent isplucked-away.

Further, it is seen from the records that even though therespondent has raised objections before the Coast Guard Court regardingthe jurisdiction and limitation, in its hearing on 30.9.2003, they weresimply over-ruled and no order was passed and even no copy of any orderregarding the above said over-ruling was given to him, in spite of hisdemand, dated 21.10.2003. In the same manner, even the impugned order ofdismissal is bereft of any reasons, even though lengthy proceedings wereconducted before the Coast Guard Court. In this situation, we feel it aptto quote a judgment of the Honourable Apex Court in UNION OF INDIA vs. JAIPRAKASH SINGH [(2007) 10 SCC 712], wherein the Honourable Apex Court hasheld: "Reasons introduce clarity in an order. On plainestconsideration of justice, the High Court ought to have set forthits reasons, howsoever brief, in its order indicative of anapplication of its mind, all the more when its order is amenableto further avenue of challenge. The absence of reasons hasrendered the High Court's judgment not sustainable. Reasons arelive links between the mind of the decision-taker to thecontroversy in question and the decision or conclusion arrivedat. Reasons substitute subjectively by objectivity. Theemphasis on recording reasons is that if the decision revealsthe 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform theirappellate function or exercise the power of judicial review inadjudging the validity of the decision. Right to reason is anindispensable part of a sound judicial system, reasons at leastsufficient to indicate an application of mind to the matterbefore court. Another rationale is that the affected party canknow why the decision has gone against him. One of the salutaryrequirements of natural justice is spelling out reasons for theorder made, in other words, a speaking out. The 'inscrutableface of a sphinx' is ordinarily incongruous with a judicial orquasi-judicial performance. " https://hcservices.ecourts.gov.in/hcservices/

When the judicial forums have directed the respondent to raisehis plea regarding the jurisdiction and limitation and when he, accordingly, raised such legal questions before the Coast Guard Court, the Coast Guard Court, should have decided the said questions as preliminaryquestions, before proceeding further. Instead, a mere over-ruling of suchlegal objections raised by the respondent, was done, which, in our view, is illegal being bereft of reasons. Therefore, in view of the aboveflagrant violations committed by the Coast Guard Court, as against theprinciples of natural justice and in view of the above latest judgments ofthe Honourable Apex Court in Mathura Prasad case and Jai Prakash Singhcase (supra), the judgments cited by the learned counsel for the appellantwill not come to their rescue.

The scrutiny of the entire materials placed on record woulddepict a sorrowful picture as to how an officer was made to run frompillar to post, since being non-cooperative to his higher official in hisillegal thrust. The impugned actions seems to have been initiated solelybased on the complaint lodged by the 5th appellant against the respondentand the entire materials placed on record would show that the 5th appellanthas acted in a biased manner against the interest of the respondent.

Bias negates fairness and reasonableness by reason of whicharbitrariness and malafide move creep in. Bias is included within theattributes and broader purview of the word 'malice'. The test of bias isas to whether there is a mere apprehension of bias or there is a realdanger of bias. There can be two ways by which a case of mala fides canbe made out; one that the action which is impugned has been taken with thespecific object of damaging the interest of the arty and, secondly, suchaction is aimed at helping some party which results in damage to the partyalleging mala fides. The case on hand, falls within the first category, since, throughout, the respondent is alleging that the impugned action hasbeen initiated against him only at the instance of 5th appellant, who ispersonally biased against him, since he stood as a stumbling block for theillegal desire of the 5th appellant. From the materials placed on record, there is cogent and unassailable evidence that the 5th appellant, who isexpected to act in an unbiased and judicious manner, is personally biasedagainst the respondent, since the respondent has refused to heed to theillegal and unbecoming activity of looting by the 5th appellant.

Even dissecting the case factually, we find no evidence ormaterial to find fault with the respondent. On 15.4.1995, the Port Dieselalternator top overhaul was said to have been done by one Mr.Govindarajanand the work completion was signed by the 5th appellant, without any trialand that the 5th respondent, who is not a technically competent person todecide whether the work has been completed properly and whether the workhas been attended to properly has issued a work completion certificatesigned by him, without even taking the ship for trial. When such is thesituation, the respondent reported for duty on 17.4.1995, since the 5thappellant had directed him over phone on 15.4.1995 to report back https://hcservices.ecourts.gov.in/hcservices/ immediately. It is seen that during the period from 15.4.1995 to25.4.1995, the ship was in the Assisted Maintenance Period and on19.4.1995 evening, when the ship was in harbour, the sea water problem inthe star board D.A. has occurred. Had it been properly repaired on15.4.1995 and trial was also conducted, which has even been certified bythe 5th appellant by issuing work completion certificate to the saidGovindarajan, there would have been little or no chances of the recurranceof the same problem. The respondent joined duty on 17.4.1995 and thecomplaint against the respondent was lodged by the 5th appellant on19.4.1995. When the respondent was on leave for his marriage from27.3.1995 and when the repair work was done even on 15.4.1995 andcertified by the 5th respondent of course, without any trial, the blamecannot be put on the respondent on 19.4.1995, who reported for duty onlyon 17.4.1995, as per the directions of his superior/the 5th appellant. Inthis aspect, the plea advanced on the part of the 5th appellant that henever directed the respondent to report for duty cannot be appreciatedsince no prudent man, particularly the personnel belonging to suchservices, who could spend days with their family members once in a bluemoon, will cancel the leave already granted that too for his marriage.

This motivated and malicious complaint of the 5th appellant lodgedagainst the respondent, has paved way for the impugned proceedings againsthim, ultimately leading to his dismissal from service. It is also to benoted that on 31.10.1995, the Departmental Promotion Committee (DPC) wasconvened to consider the issue of promotions to the post of DeputyCommandant and on 6.12.1995, the promotion list was displayed but his namewas not included, though he was the first in his batch and though he hasgiven a representation to the 5th appellant on 29.12.1995 as required underthe Rules against his non-promotion and within one month, he wastransferred to the Regional Headquarters of the Eastern Command viz. Madras for duties of O.I.C.IPV.Stores. Since the tussle started on18.10.1994, when the respondent had objected to the illegal looting of the5th appellant, there cannot be any wonder that the 5th appellant offeredonly adverse remarks against the respondent/workman in the confidentialreport for the period November 1993 to October, 1994.

Our finding that there is no evidence on record to proceedagainst the respondent has been fortified by the fact that in the previouscharges framed on 15.2.1996, Record of Enquiry was conducted and the thenCommanding Officer/the 6th appellant has recommended to drop the charges. Further more, the material on record would show that the defectsattributed to the carelessness of the respondent are of routine nature andcan be rectified and no Technical person has attributed the mistakes tothe respondent. There is plethora of evidence to show that the 5thappellant, who is the superior officer of the respondent, is biasedtowards the respondent and only because of this, all the impugned actionshave been initiated against the respondent for no-fault of him and sincehe questioned the illegal attitude of the 5th appellant. It is also to bepointed out that in spite of such specific allegations, no individual https://hcservices.ecourts.gov.in/hcservices/ counter has been filed by the 5th appellant before the learned singleJudge.

The learned single Judge has considered all the facts andcircumstances of the case in their proper perspective and has arrived atan unerring conclusion of granting the relief in favour of the writpetitioner therein, who is the respondent herein, wherein we find noillegality or irregularity to cause our interference. Therefore, thiswrit appeal is liable only to be rejected.

From the above discussions, the following conclusions will arriveat:1. The 5th appellant is biased towards the respondent, since hehas not cooperated rather questioned the illegal attitude of the5th appellant, which resulted in initiation of these proceedingsagainst the respondent.2. When the earlier Coast Guard Court was dissolved withoutassigning any reasons, much less the ones specified and mandatedin Section 66 of the Coast Guard Act, the reconvening of thesame is barred under law. 3. The entire proceedings are barred by limitation, since havebeen initiated beyond the period of three years mentioned in Section 51 of the Coast Guard Act.4. The Coast Guard Court has not assigned any reason for over-ruling the legal objections raised by the respondent regardingthe jurisdiction and limitation and has also not assigned anyreason for finding the respondent guilty of the charges, whichis illegal.