S.K.Dey v. Union of India

W.P.No.36673 of 2003 has been preferred under Article 226 of theConstitution of India praying for the issue of a writ of mandamus,directing the second respondent herein to forward the petitioner'srepresentation, dated 4.5.2002 to the first respondent as also anyadditional representation the petitioner may make and to direct thefirst respondent to consider the posting of the petitioner asRegional Commander (East) in the place of 3rd respondent or to thepost of Commanding Officer (C.G.A.S., Chennai). W.P.No.13428 of 2004 has been preferred under Article 226 of theConstitution of India praying for the issue of a writ ofdeclaration, declaring the constitution of the board of officersfor investigation in reference to CGHQ letter No.1191 of 29.4.2004to be illegal and malafide and ultravires. W.P.No.21552 of 2004 has been preferred under Article 226 of theConstitution of India praying for the issue of a writ of certioraricalling for the records of the first respondent in connection withshow cause memo bearing No.OF/1191 dated 2nd July 2004 and to quashthe same. W.P.No.36735 of 2005 has been preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus, calling for the records of the proceedingsNo.124 CG DTG 281730/October, dated 28.10.2005 of the 2nd respondentherein and to quash the same and further to direct the respondentsto promote the petitioner herein to the post of Inspector Generalas per the Coast Guard (Seniority and Promotion) Rules, 1986 as ofOctober, 2000. W.P.No.19402 of 2006 has been preferred under Article 226 of theConstitution of India praying for the issue of a writ of certioraricalling for the records of the proceedings in relating to theimpugned order bearing reference number CGHQ SIGNAL DTG 161835/JUN06 by way GEN FORM in the mode of Telegram dated 16.06.2006 issuedby the 4th respondent, ceasing the petitioner from flying cadre andto quash the same. For Petitioner : MR.V.Prakash, SCin all WPs for Mr.S.BalathandapaniFor Respondents : Mr.B.Santhakumar, SCGSC in all WPs- - - - COMMON ORDERHeard the arguments of Mr.V.Prakash, the learned SeniorCounsel assisted by Mr.S.Balathandapani, the learned counsel forthe petitioner and Mr.B.Shanthakumar, the learned Senior CentralGovernment Standing Counsel and perused the records. https://hcservices.ecourts.gov.in/hcservices/

2. These seven writ petitions are filed by the samepetitioner, who was working as D.I.G., Coast Guard. In W.P.No.34489of 2003, the writ petition is directed against the constitution ofBoard of Inquiry (BOI) vide order dated 18.7.2003, the order ofattachment, dated 25.09.2003 as well as the tentative Chage memodated 22.10.2003 and for a consequential direction to convene apromotion board to consider the case of the petitioner forpromotion to the post of Inspector of General with effect fromOctober, 2000. The said writ petition was admitted on 25.11.2003.Pending the writ petition, this court, by an order, dated25.11.2003 granted an interim stay, staying the attachment orderdated 25.09.2003. The petitioner also got the stay of the tentativecharge memo, dated 22.10.2003. On behalf of the respondents, acounter affidavit together with a vacate stay petition in WVMPNos.48 and 49 of 2004 were filed. 3. When those matters, came up along with two other writpetitions WP Nos.35875 and 36673 of 2003, this court made the stayabsolute and directed the main matters to be listed for finalhearing. In the meanwhile, the respondents 2, 3, 4 and 5 have filedcounter-affidavits in that writ petition. The petitioner has alsofiled a rejoinder affidavit in these matters.4. Subsequently, the petitioner filed W.P.No.35875 of 2003,seeking to challenge the order, dated 25.11.2003. This courtadmitted the writ petition 08.12.2003 and granted an interim-stayof the said order. Subsequently, a vacate stay petition was filedin WVMP No.171 of 2004. But, however, by a common order, dated15.6.2004, the interim stay was made absolute. 5. The Writ Petition in W.P.No.36673 of 2003 is filed, seekingfor a direction to the second respondent D.G. Coast Guard toforward his representation to the first respondent, Government ofIndia and to direct the first respondent to consider the posting ofthe petitioner as the Regional Commander (East) in the place of thethird respondent in that writ petition or in the alternative topost him as the Commanding Officer CGAS, Chennai. That writpetition was admitted on 16.12.2003. On behalf of the thirdrespondent, a counter affidavit, dated 03.02.2004 was filed. Thepetitioner has filed a common rejoinder. 6. In W.P.No.13428 of 2004, the petitioner sought for adeclaration, declaring the constitution of board of officers forinvestigation in reference to the CGHQ letter No.1191, dated29.04.2004 as illegal and ultravires. That writ petition wasadmitted and an interim injunction was granted on 05.05.2004. Acounter affidavit by respondents 2 and 3 had been filed. 7. In W.P.No.21552 of 2004, the petitioner sought to quash theshow cause memo, bearing OF/1191, dated 2.7.2004. The writ petitionwas admitted on 26.7.2004 and an interim stay was granted. Acounter affidavit was filed on behalf of all the respondents. https://hcservices.ecourts.gov.in/hcservices/

8. In W.P.No.36735 of 2005, the petitioner sought for quashingthe proceedings No.124/ CGDTG, dated 28.10.2005 issued by theD.G.Coast Guard and for a consequential direction to promote thepetitioner as I.G., as per the rules. The said writ petition wasadmitted on 16.11.2005. Pending the writ petition, this courtdirected one post to be kept vacant, if it is available or the nextvacancy that may arise in the immediate future. A counter affidavithas also been filed by the respondents. 9. In W.P.No.19402 of 2006, the prayer of the petitioner is toquash the order sent in the form of telegram dated 16.6.2006 issuedby the fifth respondent, ceasing the petitioner from Flying Cadre.Notice of motion was ordered on 26.6.2006. Pending the notice, aninterim stay of reduction in pay and allowances and recovery ofsalary of the petitioner for four weeks was ordered. Subsequently,the same was not extended. On behalf of the respondents, a counteraffidavit has been filed. 10. Since there was an insistence for an early hearing of thewrit petitions, the matters were grouped together and posted forhearing finally on 03.07.2008. Subsequently, on behalf of thepetitioner, a list of authorities were circulated on 21.7.2008. Thematter was further posted on 19.01.2009 for further clarificationand again reserved for orders. 11. The brief facts leading to the filing of various cases areas follows:The petitioner joined Indian Navy as Sub Lieutenant on01.01.1974. Subsequently, on 23.4.1986, he was absorbed as a DeputyCommander in the Coast Guard constituted under Coast Guard Act,1978, Central Act, 30 of 1978. He was promoted to the rank ofCommandant on 27.05.1988. Subsequently, on 07.10.1996, he waspromoted as D.I.G. The respondent Union of India approved threeposts of Inspector General vacancies as Regional Commander forupgradation from D.I.G. to I.G. On 24.09.2001, the petitioner wasalready a Regional Commander (A&N Region) was promoted as I.G.Officiating. On 01.10.2001, the third respondent (Vice Admiral O.P.Bansal) (Naval Officer on deputation) was made as Director Generalof Coast Guard. On 04.05.2002, the petitioner sent a representationfor convening a departmental promotional committee. Thepetitioner's request was rejected by the D.I.G. (Administration)K.Balasubramaniam. When the petitioner's case was not considered,I.G. Paleri was confirmed as a regular promottee on 14.06.2004. On13.1.2003, Vice Admiral S.Mehta, another Naval Officer became D.G.Coast Guard and O.P.Bansal was transferred to Andaman Command. 12. During July, 2003, the petitioner was absent in hisstation at Andaman. It is at that stage, certain complaints werereceived against the petitioner by fourth respondent S.C.Thyagi,who was the D.I.G. at that time. The complaint was received on16.7.2003 and the said D.I.G. visited the office of R-3 O.P.Bansaland they conspired together. On 18.7.2003, the D.I.G. S.C.Thyagisent complaints, dated 16.7.2003 and 18.7.2003 to the Director https://hcservices.ecourts.gov.in/hcservices/ General of Coast Guard.13. On 18.7.2003 itself, a Board of Inquiry was convened bythe D.G. Coast Guard to investigate into the alleged financialirregularities committed by the petitioner in the Andaman NicobarRegion connected with the improprieties in offloading of jobs tolocal trade and expenditure from public and non public fundsincluding misappropriation and misuse of items purchased from thesefunds. It was the grievance of the petitioner, the convening ofBoard of Inquiry by D.G. Coast Guard without the complaint examinedby the concerned Directorate or Headquarters. The B.O.I. (Board ofInquiry) was convened in haste and the same was alleged to be inviolation of Rule 19 of the Coast Guard (General) Rules. On12.08.2003, the B.O.I. proceedings were forwarded to the D.G. CGHead quarters by its Presiding Officer. On 14.08.2003, theproceedings were received at the Headquarters at New Delhi and wasexamined. In the meanwhile, the petitioner sent a representation,dated 15.09.2003 to the Honourable Defence Minister and complainedabout the procedure adopted by the respondents.14. On 25.09.2003, the second respondent decided to initiate adisciplinary proceedings against the petitioner and he was attachedto the Coast Guard station at Chennai, vide letter dated25.09.2003. On 29.09.2003, the petitioner reported before the 5threspondent D.I.G. Coast Guard at Chennai. Therefore, theattachment order was obeyed by the petitioner. On 20.10.2003, thehearing of charges was made by the 5th respondent in terms of Rule20 of the Coast Guard (Disciplinary) Rules, 1983. On 22.10.2003,tentative charges were framed against the petitioner and therecording of evidence was fixed on 30.10.2003. In the meanwhile, on30.10.2003, the petitioner reported sick and he did not appear inthe enquiry on the day. He was also admitted to the militaryhospital at Chennai on 03.11.2003. Since he could not attend theenquiry, he was informed that fresh dates will be intimated forrecording of evidence. 15. On 13.11.2003, the C.G. Head Quarters sent a letter to the5th respondent to include a 10th charge regarding misappropriation ofboat in the ongoing of recording of evidence. On 15.11.2003, thepetitioner was discharged from the hospital and the recording ofevidence was fixed on 25.11.2003. On that day, the petitioner filedW.P.No.34489 of 2003 and obtained an interim stay of furtherproceedings pursuant to tentative charges and staying of order ofattachment. On the same day, the 5th respondent framed the 10thcharge and issued notice for recording of further evidence on theadditional charge, fixing the date as 27.11.2003. 16. The petitioner filed W.P.No.35875 of 2003 against theinclusion of the 10th charge framed by the respondents and that writpetition was admitted on 08.12.2003 and an interim stay was alsogranted against the 10th charge. The petitioner also filedW.P.No.36673 of 2003 on 11.12.2003 to consider his case for beingposted as Regional Commander Coast Guard (East) and an interiminjunction from filling up post of Regional Commander (East) from https://hcservices.ecourts.gov.in/hcservices/ drawing personnel from the Navy. But however, on 19.12.2003, oneCommando Chitinivis was posted as the Regional Commander CG East. 17. It is at this juncture, the petitioner filed W.P.No.36735of 2005 on 16.11.2005, questioning the order dated 28.10.2005,promoting three officers as Commanders of A&N Region, West Regionand East Region. This court, by an order, dated 13.03.2006 passedthe following order:"Even though the prayer in the petition is for aninjunction restraining the respondents 1 & 2 fromfilling up the post of Inspector General the otherpersons selected were already appointed and grantinginjunction at this stage is not proper. Learned Counselfor the petitioner requested to keep one post vacant ifthe posts are in existence. Learned senior counsel alsopointed out that in WPMP 33146 of 2004 in WP 27248 of2004 by order dated 24.9.2004, this court ordered tokeep one post vacant.Following the said order, there will be a directionto keep one post vacant if the post is available or inthe vacancy that will arise in the immediate future."18. Thereafter, the petitioner filed W.P.No.13428 of 2004,declaring the constitution of board of officers for investigationby the order of CGHQ, dated 29.04.2004, as illegal and had alsoobtained an interim injunction. The petitioner also filedW.P.No.21552 of 2004, challenging the show cause memo, dated2.7.2004, wherein, additional list of charges was given. InW.P.No.19402 of 2006, he is challenging to the telegraphic order,dated 16.6.2006, by which he was removed from Flying Cadre witheffect from 19.11.2002 in view of the fact that he was not holdingvalid Aviation Medical category and therefore, he will cease todraw flying pay with effect from 19.11.2002. 19. The last case, namely W.P.No.19402 of 2006 is taken up asfirst for disposal. By the said order, the petitioner will not onlylose a sum of Rs.5250/- p.m., but also the alleged wrongful sum ofRs.2,31,000/- paid already is likely to be recovered from him. Thepetitioner had stated that he was holding the medical certificateissued by the authorized medical officer on 21.04.2006. In anyevent, he had stated that the recovery has been made without noticeto him and it is opposed to the principles of natural justice. Inthe counter affidavit, dated 28.08.2006, it is stated that thepetitioner had not exhausted the statutory departmental remediesavailable to him under the Chapter VI of the Coast Guard (General)Rules, 1986. However, in paragraph No.14(b) of the counteraffidavit, it has been averred as follows:"... Bur for the improperly drawn flying pay for thepast years Respondent No.5 needs to recover the same.Thus, there is no violation of Article 14 or any otherthe provisions of the Constitution as alleged by the https://hcservices.ecourts.gov.in/hcservices/ petitioner. There is prima facie documentary evidencewhich support the case of Respondents and justify hisremoval from Aviation cadre on medical grounds since notbeing in the flying Medical Category for a prolongedduration."20. But, the Supreme Court in Bhagwan Shukla Vs. Union ofIndia and others reported in 1994 (6) SCC 154, has held that evenin a case of wrong fixation of pay, any recovery made as itinvolved civil consequences, such recoveries must be preceded by anotice. The relevant passage found in para 3 of the said judgmentmay be extracted below:"3.We have heard learned counsel for the parties.That the petitioner’s basic pay had been fixed since 1970at Rs.190 p.m. is not disputed. There is also no disputethat the basic pay of the appellant was reduced to Rs.181p.m. from Rs.190 p.m. in 1991 retrospectively w.e.f. 18-12-1970. The appellant has obviously been visited withcivil consequences but he had been granted no opportunityto show cause against the reduction of his basic pay. Hewas not even put on notice before his pay was reduced bythe department and the order came to be made behind hisback without following any procedure known to law. Therehas, thus, been a flagrant violation of the principles ofnatural justice and the appellant has been made to sufferhuge financial loss without being heard. Fair play inaction warrants that no such order which has the effectof an employee suffering civil consequences should bepassed without putting the (sic employee) concerned tonotice and giving him a hearing in the matter. Since,that was not done, the order (memorandum) dated 25-7-1991, which was impugned before the Tribunal could notcertainly be sustained and the Central AdministrativeTribunal fell in error in dismissing the petition of theappellant. The order of the Tribunal deserves to be setaside. We, accordingly, accept this appeal and set asidethe order of the Central Administrative Tribunal dated17-9-1993 as well as the order (memorandum) impugnedbefore the Tribunal dated 25-7-1991 reducing the basicpay of the appellant from Rs.190 to Rs.181 w.e.f. 18-12-1970." (Emphasis supplied)21. In the present case, admittedly, no such notice was givento the petitioner. Hence the writ petition deserves to be allowed.Accordingly, W.P.No.19402 of 2006 will stand allowed. Themiscellaneous petition in MP No.2 of 2006 will stand closed.However, there will be no order as to costs. This will not preventthe respondents from conducting a proper enquiry before orderingwithdrawal of flying allowance and recovery of alleged excesspayment. https://hcservices.ecourts.gov.in/hcservices/

22. In so far as the promotion of the petitioner, for whichgrievance is made in W.P.No.36673 of 2003 and W.P.No.36735 of 2005is concerned, the petitioner seeks for placing him to be posted asRegional Commander (East) in the place of the third respondentP.S.Balasubramanian. In W.P.No.36735 of 2005, the petitionerquestioned the proceedings of the D.G. Coast Guards, dated28.10.2005 promoting three other persons namely R-3 to R-5 asCommanders of the respective Regions. Though the petitionercontended that the Commander-in-Chief of CG was drawn for the Navyand it has become the practice to fill up all the main posts in theCG with deputationists for the Navy and it was malafide on theirpart not to give promotion to the petitioner, yet such a contentionis not legally valid and this court is not inclined to go into suchwide allegations. In this context, in the counter affidavit, dated11.03.2004 in W.P.No.36673 of 2003, it has been averred as follows:"His detailed representation dated 15.09.2003containing all the main issues being put forward beforethis Hon'ble Court in his affidavits has been recentlydisposed of by the Central Government under a speakingorder dated 25.02.2004 and nothing survives. "23. A copy of the petitioner's representation dated 15.09.2003and the reply sent by the Ministry dated 25.02.2004 has beenenclosed in an additional typed set dated 2.7.2008 by therespondents. Subsequently, the petitioner sent a furtherrepresentation, dated 3.3.2004, which has been replied by theGovernment of India, Ministry of Defence, vide their order dated17.3.2004. The said reply reads as follows:"Whereas, DIG SK Dey (0156-D) has submitted arepresentation dated 3.3.2004 addressed to the DefenceSecretary, Ministry of Defence stating, inter-alia, thatsome of the points raised in his representation dated15.9.2003 have not been considered properly and that hehas not received the final orders dated 25.2.2004disposing of his ROG, directly from the office of DefenceSecretary nor has any official communication annexed tothe orders.And whereas, the points raised by the officer in hisrepresentation dated 3.3.2004 have been considered andhave been found to be devoid of merit because all thepoints raised in his earlier representation dated15.9.2003 were duly examined and were rejected by theCompetent Authority. As regard his another point that hedid not get the MOD's order dated 25.2.2004 disposing ofhis representation dated 15.9.2003 directly from theDefence Secretary's office, it is stated that the finalorders issued by MOD on the representation submitted bythe aggrieved officers' are served on them through thenormal service channel and not directly by the MOD.Now, Therefore, the representation dated 3.3.2004 https://hcservices.ecourts.gov.in/hcservices/ submitted by DIG Dey is rejected."24. Therefore, the W.P.No.36673 of 2003 deserves to bedismissed as the petitioner had not challenged the final orderspassed by the Government of India on the statutory representationmade under Rule 32 of the Coast Guard (General) Rules, 1986 andaccordingly dismissed. Accordingly, WPMP.44545 of 2003 will standdismissed. 25. But, in so far as W.P.No.36735 of 2005 is concerned, inthe counter affidavit, dated 16.2.2006 filed on behalf of therespondent, in paragraph 10(c) and 11, it has been averred asfollows:"10(c) ... the petitioner has been duly considered bythe Promotion Board convened in Aug 2005 without takingcognizance of the pending disciplinary action against him.In the event he had come within the number of vacancieswhich were three in this case, a suitable appointmentwould have been kept unfilled to cater for petitioner'spromotion after his exoneration from the charges underexamination through the disciplinary action. It issubmitted that equal opportunity was accorded to thepetitioner and his right has been honoured in the matterof his consideration for promotion to the rank ofInspector General. 11. ...The fourth post presently held by InspectorGeneral P.Paleri, Deputy Director General at Coast GuardHeadquarters is likely to fall vacant on 01 Sep 2006consequent to his retirement from service on 31 Aug 2006.This appointment cannot be kept unfilled due toadministrative reasons. However, as the initial promotionis made on acting basis to be confirmed after successfulcompletion of one year in the higher rank as per theprovisions of the Coast Guard (Seniority and Promotion)Rules, 1987, the junior most acting Inspector General maynot be confirmed till disposal of the Writ Petition. It issubmitted that the petitioner is eligible forconsideration for promotion to the rank of InspectorGeneral in the second look and will be consideredaccordingly by a Promotion Board to be convened at therelevant time."26. It is also stated in the reply affidavit that the sealedcover procedure is not applicable to Coast Guard service and thatbased on the recommendation of the Promotional Board, the Ministryof Defence being the competent authority had granted its approvalfor promoting three officers holding the rank of D.I.G. to the rankof I.G. and it has also been given effect to from 31.10.2005.Except recording the undertaking given by the respondents, nofurther relief can be granted to the petitioner. Hence,W.P.No.36735 of 2005 stands dismissed. In view of the dismissal ofthe writ petition, WPMP No.39349 of 2005 will stand closed. https://hcservices.ecourts.gov.in/hcservices/

27. The other four writ petitions, viz., W.P.No.34489 of2003, 35875 of 2003, 13428 of 2004 and 21552 of 2004 can bedisposed of together as they all relate to initiation ofdisciplinary action against the petitioner arising out of thereport of the Board of Inquiry (BOI) on 16.7.2003, based upon thereport of S.C.Thyagi, Commandant, Coast Guard Region, A&N vide hisreport dated 16.7.2003 and 18.7.2003. According to the petitioner,the constitution of the Board of Inquiry was motivated and thepetitioner's absence in the station from 01.7.2003 to 22.7.2003 wasmade use of by the said officer for writing such letters. Bywriting such letters, he was rewarded with a regular promotion tothe post of D.I.G. The report sent by the officers was immediatelyacted upon by the Headquarters which had without following the dueprocedure constituted the Board of Inquiry vide the impugnedproceedings dated 18.7.2003. He also submitted that the Board ofInquiry was constituted comprising of three officers who weresubordinates to him. The Presiding Officer Mr.Raj was on deputationto the Navy and was directly under the control of the thirdrespondent. Commandant A.R.Mohile was the Unit Head under him andtherefore the constitution of BOI was illegal. The third respondentVice Admiral O.P.Bandal played a key role in constituting the BOIwho was inimically disposed towards him. Therefore, he wanted thesecond respondent's order dated 18.7.2003 and the consequentialorder dated 25.9.2003 (attaching the petitioner to C.G.S. Chennai)as well as the tentative chargesheet dated 22.10.2003 to be setaside. 28. In the counter affidavit filed in this writ petition,these allegations were denied. It was also stated that there wereno procedural irregularities. In paragraphs 5 and 6 of the counteraffidavit filed by the fifth respondent, dated 'nil' (December2003), it has been averred as follows:-''5. I respectfully submit that all officers concernedwere put on notice and Board of Inquiry commencedproceeding on 21.7.2003. The petitioner on 29.7.2003,appeared and deposed before the Board of Inquiry. Oncompletion of his deposition when he was given theoption to sit throughout the proceedings, he exercisedthe same and participated throughout the proceedings bycross examining the witnesses who deposed before theBoard during the proceedings which were conducted onday to day basis and examination of total 25 witnesseswas completed on 06.8.2003. The petitioner when heappeared before the Board on 29.7.2003, was handed overcopy of the proceedings containing deposition ofwitnesses already recorded and was told that he shouldinform the Board in case he wishes to cross-examine anyof them.6. I respectfully submit that the finalised proceedingsof the Board of Inquiry were forwarded by the BoardPresiding Officer to the 2nd respondent herein vide his https://hcservices.ecourts.gov.in/hcservices/ letter No.242/GPR/BOI/1 dated 12.8.2003. The secondrespondent received the said Board of Inquiryproceedings at Coast Guard Headquarters, New Delhi on14.8.2003 and the same thereafter were examined indetail. After careful examination of the facts anddocuments forming part of the Board of Inquiryproceedings, the 2nd respondent on 12.9.2003 directed toinitiate disciplinary action against the petitionerherein for the specific lapses on his part as thenRegional Commander, A&N Region attributed by theBoard".29. As contended by the respondents, the petitioner fullyparticipated in the BOI and did not raise any objection. In factthe petitioner's statement was recorded as Witness No.11 and forQuestion No. 281 and the answer as well as the minutes recorded byBOI is as follows:-"Q.281. Do you wish to state anything to the Board, Sir?A. I have certain documents to be given to the Boardin form of a written statement.(The board accepted the written statement from thewitness. Same is (Marked – Exhibit-64)The board offered the witness No.11, DIG SK Dey(0156-D) (0156-D) an option to sit through the boardproceedings. The witness exercised the option. A copy ofproceedings till deposition of witness number 10(Question Nos.01 to 261) was handed over to the witness.The witness was informed that he should inform the boardif he wishes to cross-examine any other witness. Therebeing no further questions, he was permitted to withdrawwith instruction to be present throughout furtherproceedings of the board."Even in the concluding portion of the BOI, the petitioner wascautioned under Rule 39(3) of the Coast Guard (General) Rules, 1986about the right regarding self-incrimination. Thereafter, thepetitioner was questioned from Question No.937 to 958 and the BOIin the concluding portion on 06.11.2003 recorded as follows:-''(There being no further question the witness waspermitted to withdraw)(Witness who were given option to sit through had nofurther cross examination of any other witness nor didhave any witnesses for their defence for deposition)"30. In this context, it is necessary to refer to the judgmentof the Supreme Court in Prithi Pal Singh Bedi -vs- Union of Indiareported in (1982) 3 SCC 140. The following passage found inparagraph 37 may be usefully extracted below:-37. ".... But when it comes to an officer, a personbelonging to the upper bracket in the Armed Forces, the https://hcservices.ecourts.gov.in/hcservices/ necessary presumption being that he is a highlyeducated, knowledgeable, intelligent person, compliancewith Rules 22, 23 and 24 is not obligatory but wouldhave to be complied with if the officer so requires it.This is quite rational and understandable. One cannotbe heard to say that he would not insist upon anenquiry in which he can participate which is his right,and then turn round and contend that failure to holdthe enquiry in accordance with the principles ofnatural justice as enacted in Rules 22, 23 and 24though he did not insist upon it, would not merelyinvalidate the enquiry...." 31. It may also be necessary to refer to the decision of theSupreme Court in Major G.S. Sodhi v. Union of India, reported in(1991) 2 SCC 382, for the purpose of showing that once a personparticipates in the enquiry, he cannot turn back and repudiate thevery constitution of the committee. The following passage found inparagraph 16 may be usefully reproduced below:- 16. ''In this context the learned counsel alsosubmitted that the convening order constituting thecourt of inquiry is defective and that Col. B. Bahaduris junior to the petitioner. According to thepetitioner he was only an Acting Colonel. Therefore hecannot be treated as superior officer to him. Relianceis placed on Army Regulation 518 wherein it is statedthat when the character or military reputation of anofficer is likely to be a material issue, the presidingofficer of the court of inquiry, wherever possible,will be senior in rank and other members at leastequivalent in rank to that officer. It is alsosubmitted that Col. Bahadur can at the most be termedas a re-employed officer and as per the re-employmentpolicy laid down in Army Headquarters’ Letter datedSeptember 7, 1988 such re-employed officers are beingposted against the vacancy of Captain and generallybeing employed for carrying out the routineadministrative duties of the station. Therefore,according to the petitioner the court of inquiry ispresided over by a junior officer. We are unable toaccept this submission. The fact remains that Col.Bahadur at the relevant time was a Colonel andtherefore superior to the petitioner and consequentlyit cannot be stated that junior officer presided. Evenotherwise we are mainly concerned with the court-martial, its constitution and proceedings held by thesaid court. A feeble attempt was also made that Lt.Col. S.K. Maini who was inimical towards the petitionerwas influenced by others and he initiated the court ofinquiry. Having considered all the aspects and theaverments in the counter-affidavit sworn in by Lt. Col.S.K. Maini, we find no substance in this submission. https://hcservices.ecourts.gov.in/hcservices/ The petitioner also placed reliance on his submissionsmade during the court of inquiry wherein he stated thathe had to examine the injury reports in respect ofCaptain Shukla and Captain Chadha in order to know thenature of injuries sustained by them and therefore hisstatement is inconclusive for want of their cross-examination. At this distance of time particularlyhaving regard to the fact that the petitioner fullyparticipated in the general court-martial also, wecannot conclude that the entire proceedings werevitiated on this slender ground namely that hisstatement before the court of inquiry was inconclusivejust for the reason that he has not seen the medicalcertificates in respect of the injuries found on thosetwo officers. For the above reasons we are unable tosee any serious legal infirmity in convening the courtof inquiry and recording of summary of evidence or inrespect of other steps contemplated under Rules 22 to25." 32. The above two decisions will show that the petitionerscannot attack either the constitution of the BOI or the attachmentorder or the tentative charges framed against him. It is alsobrought to the notice of this court that the attachment orderitself was cancelled by a proceedings dated 21.11.2008 issued bythe Headquarters, New Delhi.33. The Supreme Court in a subsequent judgment in Ram SunderRam -vs- Union of India and others reported in (2007) 13 SCC 255dealt with the scope of Court of Inquiry under the Army Rules. Thefollowing passages found in paragraphs 18 and 20 may be extractedbelow:- ''18. ......We are, however, satisfied on thematerial placed before us that the court of inquirywas formed under Rule 177 of the Army Rules and thepurpose of court of inquiry was to collect theevidence for the information of superior officers tomake up their mind about the involvement of theappellant and the other army officials in the racketof clandestine sale of petrol. In the court ofinquiry, the appellant was heard and was given properand adequate opportunity to cross-examine thewitnesses, which he did not choose to avail. Therespondents, in Para 20 of the counter-affidavit filedin opposition to the writ petition before the HighCourt, have made categorical statement that in thecourt of inquiry the appellant was given fullopportunity to defend his case and to cross-examinethe witnesses who appeared and deposed before therecording officer, but the appellant was just sitting https://hcservices.ecourts.gov.in/hcservices/ throughout the proceedings and did not avail theopportunity of cross-examining the witnesses. Theappellant has not denied this assertion of therespondents in the rejoinder-affidavit." "20. ....Reliance was placed on para 13 of thejudgment of this Court in Major Suresh Chand Mehra3.In that case, this Court held that the court ofinquiry, as provided under Rule 177 of the Army Rules,is merely held for the purpose of collecting evidenceand if so required, to report in regard to any matterwhich may be referred to the officers and such aninquiry is for the purpose of a preliminaryinvestigation and cannot be equated with a trial orcourt martial. All the above cited decisions are of noassistance to the appellant in the peculiar facts ofthe case on hand. We are satisfied that there is ampleevidence on record in support of the judgment andorder of the Division Bench of the High Court andthere is nothing that would justify this Courtinterfering with it." 34. Further, the Supreme Court had clarified the purpose of anattachment order in the decision relating to Chief of Army Staff v.Major S.P. Chadha reported in (1991) 2 SCC 288. In paragraph 16, itheld as follows:-"16. The only purpose of attachment of any army officerto a different unit is that the disciplinary proceedingsagainst him could be speedily and satisfactorilycompleted without any interference by him." Hence W.P.No.34489 of 2003 deserves to be dismissed.35. In W.P.No.13428 of 2004, the petitioner challenged theconstitution of Board of Inquiry by the Headquarters Letter No.1191dated 29.4.2004 as illegal and malafide. In this context, thepetitioner made the following averments in paragraphs 9 to 11 ofthe affidavit filed in support of the writ petition and it may beusefully reproduced below:-''9. I respectfully submit that immediately thereafterin connection with the same transactions in respect ofthe Board of Inquiry Proceedings under referenceNo.DG/SECTT/0110 of Officers to investigate. Thisdecision was taken on 29.4.2004 obviously because ofthe fact that this Honourable Court decided to hear thematter after vacation. https://hcservices.ecourts.gov.in/hcservices/

10. I respectfully submit that the decision toconstitute Board of Officers was taken on 29.4.2004 andBoard of Officers itself was constituted on 30.4.2004.11. I respectfully submit that the telegram from CoastGuard Headquarters to the Commandant Coast Guard (East)and Commandant Coast guard (Andaman and Nicobar) issuedon 30.4.2004 at 5.28 p.m. has not been served on me andtherefore I am unable to produce the copy of the saidtelegram. I being not a party to the aforesaidtelegram".36. In response to these allegations, a counter affidavit wasfiled by respondents 2 and 3 dated 23.6.2004. In paragraph 6 of thecounter affidavit, it has been controverted as follows:-''6. I denied the allegations those made in paras 9 to17 of the affidavit as false and baseless and I statethat the aforesaid administrative Board of Officersordered by the present Regional Commander, Coast GuardRegion (A&N) is totally different from convening of astatutory Board of Inquiry provided for under Rule 36of Coast Guard (General) Rules, 1986 and the same hasnothing to do with the lis pending before this Hon'bleCourt. The constituting of the said Board of Officersis ultimately aimed for assisting the present RegionalCommander, Coast Guard Region (A&N) in streamlining thecorrective actions needed to prevent futureirregularities while at the same time quantify theexact loss of public money, which has occurredresultant to earlier acts and omissions of variouspersonnel posted at Coast Guard Regional Headquarters(A&N), Port Blair. Further that the constitution ofsaid Board of Officers is purely an administrativemeasure and the petitioner under the guise of abovewrit petition is attempting to interfere inadministration and functioning of the Coast Guardauthorities. The report which the said Board ofOfficers is required to submit will be based onprofessional scrutiny of various documents held in theCoast Guard Regional Headquarters (A&N) Port Blair andthis Board will not be following the detailedinvestigation procedure of examining witnesses as inthe case of a Board of Inquiry provided for in Rules 38and 39 of the Coast Guard (General) Rules, 1986 asamplified in Coast Guard Order 4/92."In the light of the above stand of the respondents, WP.13428 of2004 will stand dismissed.37. In W.P.No.35875 of 2003, the petitioner challenges the https://hcservices.ecourts.gov.in/hcservices/ additional charge memo NO.10 dated 25.11.2003. In paragraphs 1 to 3of the charge memo, the petitioner was charged with the followingmisconduct:-''1. Refer to this office letter of even number dated22 Oct 2003 regarding order for Record of Evidence.2. Based on documentary evidence available with CoastGuard, a prima facie case of misappropriation ofapprehended Indonesian Boat "Sumber Laut-4" between Feb– Oct 2001 exists and the alleged offence has beenincluded in the chargesheet for the Record of Evidence.The details of charge are as follows:-Misappropriating Vessel/Boat taken into custodyIn that he, at Port Blair, during the tenure asRegional Commander (A&N) during Feb-Oct 2001, didmisappropriate the Indonesian Boat namely "Sumbar Laut-4" apprehended by Coast Guard Ship Bhikaji Cama in Feb2001 with an intent for personal gain, therebycommitted an offence under Section 38 of Coast GuardAct 1978.3. The above charge is only tentative and charges maybe added/deleted depending upon the evidence adduced".38. In the counter affidavit dated 03.2.2004 filed by thefourth respondent, the justification for framing the additionalcharge was set out in paragraph 7 which is as follows:-''7. ..... The alleged misappropriation of thisIndonesian Fishing Boat by the petitioner was broughtto the notice of this Coast Guard Chief vigilanceOfficer through a source information. Afterexamination of relevant documents prima facieestablished that there exist an apparent case ofmisappropriation of boat by the petitioner for hispersonal gains. As per the records available atRegional Headquarters (A&N) at Port Blair, this factwas not earlier investigated by DIG AK Mahajan inJan.2002 who had the taken over from to thepetitioner. The allegations of the petitioner thatwith malafide intention this charge has been includedafter 2 1/2 years are imaginary and baseless sincethis misappropriation has come to light now for thefirst time hence necessary action were now beinginitiated against the petitioner. The petitioner willget all opportunities to disprove this and other thetentative charges framed against him during recordingof evidence by the Commanding Officer in accordancewith Rule 23 of the Coast Guard (Discipline) Rules1983. During the said recording of evidence, thepetitioner will have every right to cross examinationall witnesses and to examine his own witnesses, https://hcservices.ecourts.gov.in/hcservices/ including making of statement if he wishes on which hecannot be questioned".39. In this context, it is necessary to refer to Rule 49(2) ofthe Coast Guard (Discipline) Rules 1983, which is as follows;-49. Amendment of the charge by the Coast Guard Court.-(1). At any time during the trial by a Coast GuardCourt if it appears to be court that there is in thechargesheet: (a) .... ... (omitted) (b) ... .... (omitted)(2) If at any time during a trial it appears to theCoast Guard Court before it closes to deliberate onits findings that it is desirable in the interests ofjustice to make any addition to, omission from, oralteration in a charge which cannot be made under sub-rule (1), it may, if such addition, omission, oralteration can be made without unfairness to theaccused, and with the concurrence of the Law Officerso amend the charge."In the light of the above, W.P.No.35875 of 2003 will standdismissed.40. In W.P.NO.21552 of 2004, the petitioner challenged theshowcause notice dated 02.7.2004 wherein the petitioner was askedto showcause as to how he had authorised procurements of variousmaterials at an exorbitant prices leading to the huge loss to thepublic exchequer. A list of 12 items were set out in the Annexureto the showcause memo and the loss was estimated to Rs.1,04,277/=.The petitioner contended that neither he was present during thepurchase of those items nor the expenditures were authorised byhim. But however, he had not given any reply to the showcausenotice but had straightaway filed thewrit petition before thisCourt and obtained an interim order. In response to the notice onthe writ petition, the respondents have filed a counter affidavitdated 12.1.2005. 41. In paragraph 6 of the counter affidavit, the followingjustification has been made for the issuance of the showcausenotice:-''6. ... it is respectfully submitted that theprocurement action having been initiated on 10.4.2003,the petitioner himself has expressly accordedapprovals in some cases and in other cases his verbalapproval was obtained. If the petitioner's contentionthat he had not accorded approval being out of stationwas true then he should not have any apprehensions andwould have clarified the irregularities which thepetitioner has not done so. With regard to issue of https://hcservices.ecourts.gov.in/hcservices/ this Show cause notice dated 02.7.2004 and notincluding the said irregularities in the earliernotices, it is submitted that Coast Guard Ship isconsidered as a separate accounting unit and thefinancial irregularities were not looked into earlier.It is further submitted that issue of Show CauseNotice dated 02.7.2004 is in no way connected to thepending case against the petitioner and it isindependent of other irregularities committed by thepetitioner".In the light of the above, it may not be proper to interfere withthe showcause notice at the threshold. It is for the petitioner tosubmit his explanation and defend himself in the enquiry to be heldfor the said purpose.42. The counsel for the petitioner relied upon the followingdecision of the Supreme Court in Chief of Army Staff v. MajorDharam Pal Kukrety, (1985) 2 SCC 412, to justify that this courtcan interfere even with a showcause notice. However, the parametersset out in the said judgment for interfering with the showcausenotice are not available to the petitioner in the present case.Hence, this WP will also stand dismissed. 43. In the result, W.P.No.19402 of 2006 will stand allowed.The other W.Ps. Viz., W.P.Nos.34489, 35875 and 36673 of 2003, 13428and 21552 of 2004 and 36735 of 2005 will stand dismissed. All theconnected MPs are closed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vvk/jsTo1.The Secretary, Government of India, Ministry of Defence, Raksha Bhawan, New Delhi-110 001.2.The Director General, Coast Guard Head Quarters, National Stadium Complex, New Delhi-110 001.3.Deputy Inspector General & Commanding Officer, Coast Guard Station, Chennai Fort St. George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/

4.The Director (Personnel), Coast Guard Head quarters, National Stadium Complex, New Delhi-110 001. 5 Inspector General Coast Guard, COMCG(E) Care Coast Guard Headquarters National Stadium Complex, New Delhi-110 001.6.The Deputy Commandant, Staff Officer for Commanding Officer, Coast Guard DHQ-5(TN) Fort St. George, Chennai-600 009.7.The Principal Commander of Defence Accounts(Navy) represented by the Accounts Officer, Coast Guard Cell, No.1, Co-operage Road, Mumbai-400 039.+ 2 CC To Mr.B.Shantha Kumar, Advocate SR NO.14882,14486+ 2 CC To Mr.Balathandapani, Advocate SR NO.14048,14049 order in W.P.Nos.34489, 35875 and 36673 of 2003, 13428 and 21552 of 2004, 36735 of 2005 and 19402 of 2006 and connected MPs.MSM {CO}TP/18.4.2009.