SK.Singh v. The Director General, Coast Guard Headquarters

Kanwal Behari Lal Bhatnagar, Commandant Then Member-Coast Guard Court Coast Guard Headquarters National Stadium Complex, New Delhi-110 001.

T.Kumaran Satish Chandran, Commandant Then Member-Coast Guard Court Coast Guard Headquarters National Stadium Complex, New Delhi-110 001.

Gurusharan Singh, Commandant Then Law Officer-Coast Guard Court Coast Guard Headquarters National Stadium Complex, New Delhi-110 001.

KR Nautiyal, Commandant Then Prosecutor-Coast Guard Court Coast Guard Headquarters National Stadium Complex, New Delhi-110 001.

Navin Chandra Pandey-Dy.Commandant Then Asst. Prosecutor-Coast Guard Court Coast Guard Headquarters National Stadium Complex, New Delhi-110 001.

SED Ananda Kumar, Commandant Then Commanding Officer Coast Guard Station, Tuticorin, Harbour Estate, Tuticorin, ..Respondents(R-4 to R-13 impleaded as per Orderof Court dt.30.04.2009 in WPMP.No.290 of 2008)Writ petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, to call for the recordsof the file of the 3rd respondent Coast Guard Court Proceedings dated05.06.2002 confirmed by the 1st respondent in its communicationbearing No.LW/0551/6 dated 30.09.2002 and to quash the same. For Petitioner : Mr.G.Rajagopalan, Senior Counsel for M/s.G.R.Associates https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.M.L.Ramesh for R1 to R3 No appearance for R-4 R-5 to R-13-given upORDERChallenging the order of dismissal from service passed by the3rd respondent dated 05.06.2002, which has been confirmed by the 1strespondent by his communication dated 30.09.2002, the petitioner hascome forward with the present writ petition.2.

8. By way of reply to the submissions made by the learned seniorcounsel for the petitioner, the learned counsel for respondents 1 to3 further submitted that as per Rule 45 of the Coast Guard(Discipline) Rules,1983, a charge sheet may contain more than onecharge. Therefore, the contention of the petitioner that the clubbingof the charges has caused prejudice to the petitioner does notdeserve any consideration. Moreover, the petitioner has not explainedas to how he was prejudiced in respect of the charges framed againsthim. P.W.3, R.K.Nathan was punished with reduction to the rank of Navik, Deprivation of Good Conduct Badges (Three) and Reprimand. Similarly, P.W.12 Nandagopal was dismissed from service. P.W.11,Dayanidhi was punished with Deprivation of Good conduct Badges(Three) and Reprimand. Under such circumstances, these witnesscannot be termed as accomplices and it cannot be said that theirevidence is inadmissible.

Apart from the evidence of P.Ws.3, 11 and12, who had accepted their culpability, the other documentary andoral evidence available in this case would speak about the offencecommitted by the petitioner. The evidence of P.Ws.3, 7, 8, 11, 12 wascorroborated by the evidence of other witnesses, which proved theguilt as against the petitioner. Moreover, an accomplice shall be acompetent witness against an accused person and the question ofcorroboration is a question of fact and hence, this Court has nojurisdictional power over the same. P.W.14 is the Officer, who seizedthe fake bills and lodged the complaint to the petitioner against thesubordinates. But, no action was taken by the petitioner as againstthe subordinates. Therefore, it is clear that the verdict of the Coast Guard Court is not based only on the evidence and P.Ws.3, 7, 8,11 and 12, who, according to the petitioner, had committed theoffence.

Further, it is incorrect to state that the summing up of thecase by the Law Officer to the Coast Guard Court is vague. Theverdict has been passed by the court by considering all the evidenceplaced before it along with summing up. Under Rule 117, the duty ofthe Law Officer is to sum up the evidence and give his opinion on anyquestion of law, before the court proceeds to deliberate upon itsfindings. But, in the instant case, the Law Officer has acted wellwithin his powers and has lawfully discharged his duties impartially. Therefore, it is incorrect to state that the verdict of the CoastGuard Court is based on a vague summing up made by the Law Officer. Similarly, as per section 117(2) of the said Act, a personalhearing was made with the petitioner and his defending officer by the Chief Law Officer, holding the rank of Deputy Inspector General andhe had transmitted the report of such review together with suchrecommendations to the Director General for his consideration and byconsidering the entire materials, the 1st respondent has maintainedthe verdict passed by the Coast Guard court.

Hence, no error could befound in the order passed by the 4th respondent.9. Further, the learned counsel submitted that the petitionerwas dismissed from service on 05.06.2002 by the Coast Guard Court. But the present writ petition has been filed in the year 2006 with a https://hcservices.ecourts.gov.in/hcservices/ delay of 4 years and the reasons assigned by the petitioner in theaffidavit are very vague, namely, on account of the dismissal, he hasdeveloped psychological problem of depression and a domestic problemwithin his family and he has to personally look after one of hisdaughter's health condition and as such, he could not approach the Court immediately. The learned counsel submitted that the avermentsare very vague and hence, it cannot be said to be reasonable and, assuch, the writ petition cannot be entertained. In support of hiscontentions, the learned counsel relied on the decisions reported inthe case of KARNATAKA POWER CORPORATION LTD., ..vs.. K.THANGAPPAN(2006(4) SCC 322), UNION OF INDIA AND OTHERS ..vs.. MAJOR A.HUSSAIN(1998) 1 SCC 537), BHOOP SINGH ..vs.. UNION OF INDIA AND OTHERS((1992) 3 SCC 136), UNION OF INDIA ..vs.. J.S.BRAR (AIR 1993 SC 773)and UNION OF INDIA ..vs.. HIMMAT SINGH CHAHAR ((1999) 4 SCC 521) andsubmitted that the writ petition has to be dismissed.10.

Heard the learned counsel for the parties.11. In view of the submissions made by the learned counsel oneither side, the questions that have to be decided in this petitionare as follows: (1) Whether the interference could be made with theimpugned order passed by the Coast Guard Court, by itsproceedings dated 05.06.2002, which was confirmed by the 1strespondent on 30.09.2002 and was communicated to thepetitioner on 30.09.2002 ?(2) Whether any justifiable reason has been assigned bythe petitioner for condoning the delay in filing the writpetition ?12. It is the bone of contention of the learned senior counselfor the petitioner that as per Rules 91 to 93 of the Coast GuardRules, only based on the closing address of the Law Officer bysumming up the evidence, the Members of the Coast Guard Courts canrender their verdict. As per Coast Guard Rules, the Members of the Coast Guard Court need not pass any detailed order, but a findingshall be given by the Members only by word of mouth on each chargeseparately.

Therefore, under Article 226, this Court has ample powerto go into the entire materials to find out, whether the verdictgiven by the Coast Guard is correct or not. In support of hiscontention, the learned senior counsel for the petitioner relied uponMUKHERJEE's case(AIR 1990 SC 1984). It could be seen from the saiddecision that it relates to Arms Act, which contains similarprovisions to that of the Coast Guard Act. In the said judgment, ithas been held as follows: "44. As regards confirmation of the findings and sentenceof the court martial it may be mentioned that Section 153 of https://hcservices.ecourts.gov.in/hcservices/ the Act lays down that no finding or sentence of a general, district or summary general, court martial shall be validexcept so far as it may be confirmed as provided by the Act. Section 158 lays down that the confirming authority may whileconfirming the sentence of a court martial mitigate or remitthe punishment thereby awarded, or commute that punishment toany punishment lower in the scale laid down in Section 71.

Section 160 empowers the confirming authority to revise thefinding or sentence of the court martial and in sub-section(1) of Section 160 it is provided that on such revision, thecourt, if so directed by the confirming authority, may takeadditional evidence. The confirmation of the finding andsentence is not required in respect of summary court martialand in Section 162 it is provided that the proceedings ofevery summary court martial shall without delay be forwardedto the officer commanding the division or brigade within whichthe trial was held or to the prescribed officer; and suchofficer or the Chief of the Army Staff or any officerempowered in this behalf may, for reasons based on the meritsof the case, but not any merely technical grounds, set asidethe proceedings or reduce the sentence to any other sentencewhich the court might have passed. In Rule 69 it is providedthat the proceedings of a general court martial shall besubmitted by the judge-advocate at the trial for review to thedeputy or assistant judge-advocate general of the command whoshall then forward it to the confirming officer and in case ofdistrict court martial it is provided that the proceedingsshould be sent by the presiding officer, who must, in allcases, where the sentence is dismissal or above, seek adviceof the deputy or assistant judge-advocate general of thecommand before confirmation.

Rule 70 lays down that uponreceiving the proceedings of a general or district courtmartial, the confirming authority may confirm or refuseconfirmation or reserve confirmation for superior authority, and the confirmation, non-confirmation, or reservation shallbe entered in and form part of the proceedings. Rule 71 laysdown that the charge, finding and sentence, and anyrecommendation to mercy shall, together with the confirmationor non-confirmation of the proceedings, be promulgated in suchmanner as the confirming authority may direct, and if nodirection is given, according to custom of the service anduntil promulgation has been effected, confirmation is notcomplete and the finding and sentence shall not be held tohave been confirmed until they have been promulgated..............47. For the reasons aforesaid it must be held thatreasons are not required to be recorded for an order passed bythe confirming authority confirming the findings and sentencerecorded by the court martial as well as for the order passed https://hcservices.ecourts.gov.in/hcservices/ by the Central Government dismissing the post-confirmationpetition.

Since we have arrived at the same conclusion as in Som Datt Datta case(AIR 1969 SC 414) the submission of ShriGanguli that the said decision needs reconsideration cannot beaccepted and is, therefore, rejected.48. But that is not the end of the matter because eventhough there is no requirement to record reasons by theconfirming authority while passing the order confirming thefindings and sentence of the court martial or by the CentralGovernment while passing its order on the post-confirmationpetition, it is open to the person aggrieved by such an orderto challenge the validity of the same before this Court under Article 32 of the Constitution or before the High Court under Article 226 of the Constitution and he can obtain appropriaterelief in those proceedings".13. From the said paragraphs, it is clear that this Court hasample power to go into the entire materials under Article 226 of the Constitution of India.

But, at the same time, it has to be seen as towhether this Court can interfere with the impugned order by re-appreciating the evidence as in the case of regular appeals. At thisstage, it would be appropriate to rely on the decision cited by therespondents reported in CDJ 1995 DHC 211 (BUDHWAR's case), whichwould give an answer to this querry, wherein the scope of judicialreview has been laid down as follows: "37. In M.A.Rasheed and others ..vs.. The State of Kerala(AIR 1974 SC 2249), the Supreme Court has reiterated thesettled proposition of law that "administrative decisions inexercise of powers even if conferred in subjective terms are tobe made in good faith on relevant consideration. The Courtsinquire whether a reasonable man could have come to the decisionin question without misdirecting himself on the law or the factsin a material respect. The standard of reasonableness to whichthe administrative body is required to conform may range fromthe court's own opinion of what is reasonable to the criterianof what a reasonable body might have decided.

The Courts willfind out whether conditions precedent to the formation of theopinion have a factual basis". The case of Ranjit Thakur ..vs. Union of India and others (AIR 1987 SC 2386) relate to theinterpretation of the provisions of the Army Act and therelevant rules framed thereunder. The relevant portion whichstates the law is contained in paragraph 9 and the same reads asfollows: "re:contention(d): Judicial review generally speaking, isnot directed against a decision, but is directed againstthe "decision making process". The question of the choiceand quantum of punishment is within the jurisdiction and https://hcservices.ecourts.gov.in/hcservices/ discretion of the Court-Martial. But the sentence has tosuit the offence and the offender. It should not bevindictive or unduly harsh. It should not be sodisproportionate to the offence as to shock theconscience and amount in itself to conclusive evidence ofbias.

The doctrine of proportionality, as part of theconcept of judicial review, would ensure that even on anaspect which is, otherwise, within the exclusive provinceof the Court-Martial, if the decision of the court evenas to sentence is an outrageous defiance of logic, thenthe sentence would not be immune from correction. Irrationality and perversity are recognised grounds ofjudicial review....."

On a reading of the above said judgment, it is clear thatthough this Court is entitled to go through the materials, the powerof judicial review of the order passed by the respondents under Article 226 is very limited. Only if there is a denial of thefundamental rights or that the proceedings suffer from thejurisdictional error, it can make an interference with the orderpassed by the respondents. Now, it has to be seen, whether thesubmissions made by the learned senior counsel for the petitionerwould fall under the various categories laid down in the casereported in CDJ 1995 DHC 211 (cited supra).

It is the submission of the learned senior counsel for thepetitioner that as per section 51(1) of the Coast Guard Act, noperson shall be tried or punished for any offence committed by himunless such trial commences within three years from the commission ofoffence. In the instant case, the trial had commenced on 08.05.2002.It is the contention of the petitioner that items 1 to 5 in Enclosure-I to the charge sheet and items 1 to 5 in Enclosure-3 werethe incidents that took place three years prior to the trial, whichcommenced on 08.05.2002. Under such circumstances, those items oughtto have been excluded on the ground of limitation. Though separatecharges were framed, since the consolidated charges have been madeclubbing all the incidents, it has caused prejudice to the petitioner.

Keeping in view the submissions made by the learned seniorcounsel for the petitioner, this court has perused items 1 to 4 in Enclosure-1 as well as the item No.5 in Enclosure 3. All these itemsreferred to in Enclosures 1 and 3 to the charge sheet pertain to thepurchase of diesel to the unit vehicles and for unit bullet onvarious dates during the period from April 1999 to March 2000 and itis a continuous action. It is the specific charge of the respondentsthat the petitioner had signed forged contingent bills on variousdates between 1999 and 2000 with an intention to defraud the amountmentioned in the charges which has not been spent for the Governmentuse. Since it is a continuous action, in my considered opinion, itcannot be said that items 1 to 4 in Enclosure 1 and item No.5 in https://hcservices.ecourts.gov.in/hcservices/ Enclosure 3 have to be excluded on the ground of limitation. Moreover, as per Rule 45, a charge sheet can contain more than onecharge and since the charges are founded on the same facts or theyformed part of series of offences of same or similar character, I donot find any merit on the submission made by the learned seniorcounsel for the petitioner that the clubbing of the charges hascaused prejudice to the petitioner. Moreover, it was not pointed outby the learned senior counsel for the petitioner, as to how thepetitioner was prejudiced by the framing of charges.

A perusal of the materials would show that initially, anobjection was raised by the petitioner in terms of Rule 63, but thesaid objection was overruled by the Coast Guard Court since he hasnot pointed out as to how he is prejudiced by the charges framed. Subsequently, the petitioner has participated in the trial. Furthermore, as contended by the learned counsel for the respondents, theseries of acts covering the period from July 1999 to June 2000 undersection 34(f) of the Coast Guard Act, 1978, were framed as onecharge. Therefore, I do not find any merit in the submission made bythe learned senior counsel for the petitioner that since no separatecharges were framed, it has caused prejudice to the petitioner.

The next submission of the learned senior counsel for thepetitioner is that the summing up of the evidence by the Law Officerto the Members of the Coast Guard Court is very vague and no prudentperson can come to a conclusion whether such a person is guilty ornot. In support of his contention, he has also relied upon thesumming up by the Law Officer with regard to the first four charges, wherein it has been held as follows: "In the light of above direct oral and documentaryevidence, now you have to decide that whether the accused hadno means to check the correctness of these bills put up tohim, whether these bills found mention in the caption approvalregister, why the same have been processed through thesesailors only and why the station technical officer was notinvolved. Was the accused not aware about the actual sailingof the Interceptor Craft, generator and the unit motor cycle. Further, whether the statement by P.W.5, P.W.1 and P.SW.14finds due corroboration in the forms of testimony of otherwitnesses and the documents produced before the Hon'ble Court. The Court has to satisfy themselves that the statement ofthese witnesses have been thoroughly corroborated by thecircumstantial evidence produced in the form of P.W.2, P.W.14,P.W.10 and P.W.11. If in answer to the above questions, youfind that the accused had no means to check these bills andthe sailors have misappropriated the money, the accused signedthe Contingent Bills as genuine and had intentions to defraud, then you may find these issues relating to the first fourcharges not proved, however, if you find otherwise, we may https://hcservices.ecourts.gov.in/hcservices/ consider the next issue, which stand proved automatically, asif the accused has signed the forged Contingent Bills withintent to defraud, and the amount mentioned in the charges hasnot been spent for the government use, then it has certainlycaused loss to the Government. Hence the accused having signedthe forged bil with intent to defraud caused loss to the Government".

It is the contention of the petitioner that the Law Officer, while summing up, had stated that if the Coast Guard Court found theissues relating to the charges 1 to 4 as not proved, they mayconsider the next issue. According to the learned senior counsel forthe petitioner, the Law Officer, who had summed up the entireevidence, himself is not sure about the charges levelled against thepetitioner. But in my considered opinion, I do not find anyvagueness in the summing up of the evidence by the Law Officerbecause as the Law Officer, he cannot take any decision on theverdict and it is for the Coast Guard Court to take a decision basedon the summing up of the evidence by the Law Officer. In the instantcase, by considering the summing up of the evidence by the LawOfficer, the Coast Guard Court has come to the conclusion that thepetitioner is guilty of the first four charges. I find that in thepresent case, the Law Officer has acted well within the powersconferred under Rule 117 of the Coast Guard Rules and has lawfullydischarged his duties impartially.

It is the next fold of submission of the petitioner thatP.Ws.3, 11 and 12 were found in possession of certain allegedfictitious bills during the enquiry conducted by the Board of Enquiry. Under such circumstances, P.Ws.3, 11 and 12 ought to havebeen made as accused in the Coast Guard Court, but they have beencited as witnesses and as such, their evidence is not worthy ofacceptance. But I find that P.Ws.3 and 11 were punished withdeprivation of Good Conduct Badges (Three) and Reprimand, whereasP.W.12 was dismissed from service. Therefore, these witnesses cannotbe termed as vital witnesses. Further, I find that, apart from theevidence of P.Ws.3, 11 and 12, there are plenty of documentary andoral evidence. P.W.1 had produced the blank fuel bills seized byP.W.14. P.W.2, the Executive Officer of Coast Guard Court, Tuticorinhad explained the duties held by the petitioner during hisexamination. Therefore, it cannot be said that the verdict waspassed solely on the basis of the evidence of P.Ws.3, 8, 11 and 12alone, who were involved in the occurrence.

It is yet another submission of the petitioner that he wasnot allowed to cross-examine P.W.12. But, on going through theevidence of P.W.12, I find that immediately after questioning by the Coast Guard Court, no questions were advanced by the prosecutor andthe defending officer to the witness through the court. In fact, thedefending officer had read the written statement of the accused https://hcservices.ecourts.gov.in/hcservices/ marked and signed as "EEEEE". Therefore, it cannot be said that P.W.2was prevented from cross examining P.W.12.

It is the other contention of the petitioner that certaindocuments sought for under question No.118 were not produced. Thoughcertain documents sought by the petitioner were not produced, thecrucial documents, which are necessary to prove the charges, wereproduced before the court proceedings. Therefore, in my consideredview, no prejudice has been caused to the petitioner.

Yet another contention raised by the petitioner is that theprosecutor Kirpa Ram Nautiyal and the Assistant Public ProsecutorNavin Chander Pande have acted as Presiding Officers in the Board of Enquiry. Since they had taken part in the investigation of the case, they are disqualified to serve as officers in the Coast Guard Courtas per Rule 52 of Coast Guard Rules, but contrary to Rule 52, theywere appointed as Prosecutors before the Coast Guard Court. In myconsidered opinion, though the prosecutors had taken part in theinvestigation, they were appointed only as prosecutors before the Coast Guard Court to sum up the evidence to the Members of the CoastCourt Guard. Ultimately it is the Members who have to pass theverdict. Therefore, I do not find any violation of Rule 52 of the Coast Guard Rules in the appointment of the Prosecutors. Moreover, before the Coast Guard Court, no objection was raised by thepetitioner with regard to the appointment of the prosecutors.

It is the other grievance of the petitioner that no findingwas given in the order of judicial review. On a perusal of the same, it is clear that a personal hearing was made with the petitioner andhis defending officer by the Chief Law Officer, holding the rank of Deputy Inspector General and he had transmitted the report of suchreview together with such recommendations. After perusing the entirereport, the 1st respondent has come to the conclusion that the orderof dismissal of the petitioner was maintained. Hence, I do not findany infirmity in the order passed by the 1st respondent.

With regard to the laches, I find that though the order isof the year 2002, the writ petition has been filed with a delay offour years and the only reason assigned by the petitioner was that hewas suffering from mental agony. But, in my considered opinion, sucha reason is not sufficient to condone the delay of four years infiling the writ petition. In this regard, reference could be placedin the various judgments relied on by the respondents. In (1992) 3SCC 136 (supra), it has been held as follows: "8. There is another aspect of the matter. Inordinate andunexplained delay or laches is by itself a ground to refuserelief to the petitioner, irrespective of the merit of hisclaim. If a person entitled to a relief chooses to remainsilent for long, he thereby gives rise to a reasonable belief https://hcservices.ecourts.gov.in/hcservices/ in the mind of others that he is not interested in claimingthat relief. Others are then justified in acting on thatbehalf..."

It has been held in (2006) 4SCC 322 (supra) reads thus: "6. Delay or laches is one of the factors which is to beborne in mind by the High Court when they exercise theirdiscretionary powers under Article 226 of the Constitution. Inan appropriate case the High Court may refuse to invoke itsextraordinary powers if there is such negligence or omissionon the part of the applicant to assert his right as taken inconjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamentalright is involved the matter is still within the discretion ofthe Court as pointed out in Durga Prashad v. Chief Controllerof Imports and Exports (1969) 1 SCC 185). Of course, thediscretion has to be exercised judicially and reasonably.

Following the principle laid down in the said decisions, Iam of the view, that in the instant case, the reason for the delayhas not been satisfactorily explained. Hence, on this ground also, this writ petition is liable to be dismissed. Though the petitioneris entitled to invoke Article 226, the scope of interference with theorder is very limited. In this regard, a reference could be placed in1998(1) SCC 537, wherein it has been held as follows: "23. Though court-martial proceedings are subject tojudicial review by the High Court under Article 226 of the Constitution, the court-martial is not subject to thesuperintendence of the High Court under Article 227 of the Constitution. If a court-martial has been properly convenedand there is no challenge to its composition and theproceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay itshands. Proceedings of a court-martial are not to be comparedwith the proceedings in a criminal court under the Code of Criminal Procedure where adjournments have become a matter ofroutine though that is also against the provisions of law".

From the dictum laid down in the judgment referred to above, it is clear that the scope of interference in the order passed by the3rd respondent, under Article 226 of the Constitution of India is verylimited. In the instant case, I do not find any denial offundamental rights of the petitioner or any jurisdictional error orany error of law apparent on the face of the record. Moreover, in myopinion, during the enquiry conducted by the Coast Guard Court, thepreponderance of probability is sufficient to bring home the guiltagainst the petitioner. In the instant case, the evidence on record https://hcservices.ecourts.gov.in/hcservices/ would strongly point out the guilt as against the petitioner. Moreover, the petitioner has not given any convincing reasons for thedelay. Under the stated circumstances, I am of the view that the writpetition is liable to be dismissed. For the reasons stated above, the writ petition fails and thesame is dismissed. No costs. Consequently, connected M.P.is closed. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarglTo1. The Director General, Coast Guard Headquarters, National Stadium Complex, New Delhi-110 001.2. The Commander, Coast Guard Station (East), Near Napier Bridge, Chennai-9.3. The Chief Law Officer, Coast Guard Headquarters, National Stadium Complex, New Delhi-110 001.4. The Secretary, Ministry of Defence, Central Secretariat, New Delhi.1 cc To M/s.G.R.Associates, Advocate, SR.409281 cc To Mr.M.L.Ramesh, Advocate, SR.40992 W.P.No.13059 of 2006 and WPM.P.No.14645 of 2006tam(co)pmk.14.6.2010