Md. Abbas Mohideen:: v. Government of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 05..3..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 36674 of 2003 andW.P.M.P. Nos. 44548 and 44549 of 2003Md. Abbas Mohideen:: Petitionervs.1.Government of IndiaRep. by Secretary to GovernmentMinistry of Defence, New Delhi2.Director General Coast GuardNational Stadium ComplexNew Delhi3.Presiding OfficerCoast Guard CourtNational Stadium ComplexNew Delhi4.Commanding OfficerCoast Guard StationFort St. George, Chennai – 95.S.E.D. Ananda KumarCommanding OfficerC.G.S. TuticorinHarbour Estate, Tuticorin6.S.K. SinghOfficer in ChargePollution Response Team (West)C/o C.G. HeadquartersWestern Region, Mumbai7.P.J. JacobVice Admiral (Retired)Former Director GeneralCoast Guard HeadquartersNational Stadium Complex, New Delhi https://hcservices.ecourts.gov.in/hcservices/

8.Commandant A. AthinarayanCommandingOfficerC.G.S. VaradC/o Coast Guard D.H.Q.Visakapatnam:: RespondentsPetition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorari calling for the recordsof the Coast Guard Court constituted by the second respondent inconnection with the proceedings of the Coast Guard Court dated29.10.2003 and quash the same. For Petitioner: Mr. G. Rajagopalan, SC for Mr. S. ThiruvenkataswamyFor Respondents 1 - 4: Mr. P. Wilson, ASGFor Respondents 5 – 8: Mr. K. Kannan, SC.G.S.CO R D E RI have heard the arguments of Mr. G. Rajagopalan, learnedSenior Counsel leading Mr. S. Thiruvenkataswamy, learned counselappearing for the petitioner, Mr. P. Wilson, learned AssistantSolicitor General of India representing the respondents 1 to 4 andMr. K. Kanna, learned Senior Central Government Standing Counselfor the respondents 5 to 8 and have perused the records.2.The petitioner in this petition challenges the orderdated 29.10.2003 passed by the second respondent whereinand by which he was given the sentence of dismissal from the CoastGuard. 3.The petitioner joined the Coast Guard as an AssistantCommandant (Technical) which is Class I Group A Cadre, on06.8.1989. On completion of his training and probation, he wasposted to work in several Ships in the Western Command.Thereafter, he joined the Eastern Command on Board C.G.S. Jija Baistationed near the Paradeep Port on 12.8.1993. According to thepetitioner, the fifth respondent was the Commanding Officer on24.5.1994 on the said ship. On 18.10.1994, it is stated that twoThailand trawlers were found in the international waters and thefifth respondent, without any authority, apprehended the trawlersand brought them to the Indian waters. He also boarded the saidtrawlers and using the crew of the ship Jija Bai under hisinstructions, the Thai trawlers were looted. Thereafter, it wastaken to Paradeep Port on 19.10.1994. 4.The petitioner objected to such a blatant action on thepart of his superior as it would amount to an act of piracy. https://hcservices.ecourts.gov.in/hcservices/ Because of his objection, his problem started and apprehendingthat he may not sign the incomplete seizure memo, which was to behanded over to the local Police, he was sent to Chennai on22.10.1994 to participate in the Eastern Region games and he wasgranted leave even though he had never applied for the same. 5.During November 1994, the entries in his AnnualConfidential Report were sent to him for the period November 1993to October 1994 by the fifth respondent. During that period, theship also had some technical problems, which was duly attended toby the petitioner. 6.The petitioner's marriage was fixed on 04.4.1995 and hehad applied for leave for 26 days on 27.3.1995. During his leaveperiod, the named respondents court martialled the petitioner andeven cancelled the leave for his marriage. He reported to theship on 17.4.1995 at the instance of the fifth respondent, who washis Commanding Officer. On 18.5.1995, a request was made toconstitute a Board of Enquiry. The fifth respondent made allkinds of accusations against the petitioner and the report given byhim was not furnished to him. The petitioner instituted certainproceedings before the Orissa High Court. During theseproceedings, on 31.10.1995, the Departmental promotion Committee[DPC for short] was convened to consider the issue of promotion tothe post of Deputy Commandant and in the normal course, thepetitioner's name should have been included in the panel. But inthe list that was displayed, his name was omitted and thepetitioner had made representation against the non-inclusion of hisname. 7.The petitioner was given a charge-sheet dated 15.02.1996containing four charges which are as follows:"a.Failure to discharge duties properly and wasfully responsible for non-preservation of starboard D.A after ingress of sea water leading todeterioration of material state of starboardD.A thereby committed an offence under Sec. 16of Coast Guard Act, 1978.b.Knowingly concealed the vital information ofsea water ingress in star board D.A from hisCommanding Officer, administrative authorityand repair agency thereby committed an offenceunder Sec. 16 of Coast Guard Act, 1978.c.Grossly derelicted his duty by allowing thedamage to get compounded on port D.A inoverheated condition over a long period withoutproper fault diagnosis thereby committed anoffence under Sec. 16 of Coast Guard Act, 1978. https://hcservices.ecourts.gov.in/hcservices/ d.Showed total irresponsible and carelessattitude in fault diagnosis and repair ofdefects affecting the ship's operationalefficiency and delay in repair process therebycommitted an offence under Sec. 16 of CoastGuard Act, 1978."8.On 15.02.1996, Record of Evidence [ROE for short] wasstarted and it was completed during the end of February 1996.After the ROE was completed, the procedure to be followed isprovided under Rule 26 of the Coast Guard (Discipline) Rules, 1983[for short, 'C.G. Rules'] and it reads as follows:Rule 26:"Disposal of case by Commanding Officer after Recordor Abstract of evidence.-- (1) Where an officer hasbeen detailed to prepare the record of evidence orto make an abstract thereof he shall forward thesame to the Commanding Officer.(2) The Commanding Officer may, after goingthrough the record or abstract of evidence:(a)dismiss the charge, or(b)rehear the charge and award one of thesummary punishments, or(c)apply to the Convening Authority toconvene a Coast Guard Court for the trialof the accused."Mr. S.K. Singh, the sixth respondent was the Commanding Officer,who forwarded the ROE to the Coast Guard Headquarters and it is thestand of the petitioner that he had held that there was no caseagainst the petitioner and recommended dropping of the charges. 9.Thereafter, once again, another charge sheet was issuedto the petitioner framing two charges and they are as follows:"(i)In that he while on board Coast Guard ship JijaBai as Engineer Officer during the month ofApril and May 1995 was negligent in ensuringmaintenance and timely defect rectification ofthe ship's machinery which adversely affectedthe ship's operational availability.(ii)In that he during place, months and whileperforming duties mentioned in the first chargefailed to immediately report the defectoccurring in the said ship's machinery to hisCommanding Officer, thus contravening para 30(a)(iii) of Coast Guard Ship Jija Bai's CaptainStanding Orders said to attract Sec. 42 ofCoast Guard Act which was issued by ViceAdmiral P.J. Jacob the 7th respondent herein." https://hcservices.ecourts.gov.in/hcservices/

10.Since the petitioner felt that the charges have beenframed at the instance of the fifth respondent by the seventhrespondent, who was is close family friend, he filed another writpetition before the Orissa High Court in O.J.C. No. 10043 of 1996and the First Division Bench of the Orissa High Court stayed theproceedings by an order dated 23.9.1996. Thereafter, he filedO.J.C. No. 6959 of 1997 before the Orissa High Court on the issuerelating to his promotion and the same was disposed on 06.4.1998with a direction to the petitioner to make a representation to theCoast Guard Headquarters and till the disposal of therepresentation, it was directed that the trial should not beproceeded with. On 23.4.1998, he made a representation to theCoast Guard Court [CGC for short] and accordingly, the CGC wasdissolved on 27.4.1998 without assigning any reason by theconvening authority. 11.According to the petitioner, the reconvening of the CGCwas violative of Section 66 of the Coast Guard Act, 1978. Thesaid section reads as follows:"66 (1)If a Coast Guard Court after the commencement of a trial is reduced belowthe minimum number of officers required bythis Act, it shall be dissolved.(2)If on account of the illness of the LawOfficer or of the accused before the finding,it is impossible to continue the trial, a CoastGuard Court shall be dissolved.(3)The convening authority of a Coast GuardCourt may dissolve the same if it considersthat the exigencies of the service ornecessities of discipline render it impossibleor inexpedient to continue the said Coast Guard Court.(4)Where a Coast Guard Court is dissolvedunder this section, the accused may be triedagain."12.Therefore, it was contended by the petitioner that sincethe dissolution was made not according to any one of the threecontingencies provided therein and the matter was also notadjourned by giving any reason, Section 61(4) is not attracted and,therefore, the reconvening of the CGC to go into the very samecharges is improper. 13.However, once again, on 03.11.1998, the very samecharges were revived for ROE with the endorsement that it should betried by the CGC. It was also submitted that even though the https://hcservices.ecourts.gov.in/hcservices/ subsequent charges are taken as new charges, such an endorsementgoes contrary to Rule 26 of the C.G. Rules extracted above. ROEwas done from 03.11.1998 to 22.7.1999. In the meanwhile, thesecond writ petition filed before the Orissa High Court regardinghis promotion came to be disposed of on 19.7.1999 directing thesecond respondent to open the sealed cover containing hispromotion. 14.On 22.7.1999, the CGC was once again reconstituted whichforced him to file another writ petition before the Orissa HighCourt in O.J.C. No. 12775 of 1999. But the Division Bench whichheard the matter, allowed the proceedings to continue but, however,directed the CGC not to pass any final orders without the leave ofthe Court. The proceedings before the CGC started on 11.10.1999,was completed on 23.10.1999 without considering the objectionsraised by the petitioner relating to limitation. The petitionerwas also not allowed to bring any defence witness on his side. 15.The petitioner filed Contempt Petition No. 110 of 2000before the Orissa High Court for not opening the sealed cover.But that petition was disposed of with a direction to the secondrespondent to open the sealed cover with regard to his promotionwithin a period of eight weeks from 19.6.2001, i.e., the date oforder. But despite the direction, no such action was taken bythe respondents. Even the petitioner's writ petition regardingthe second ROE was disposed on 05.3.2003 wherein the Orissa HighCourt directed that the objections of the petitioner should beraised before the CGC. On 07.4.2003, an order was issuedconvening the CGC on 02.5.2003. However, the said order wascommunicated to him only on 24.4.2003. In the meanwhile, thepetitioner filed a Review petition in Rev. P. No. 63 of 2003 beforethe Orissa High Court against the order disposing of his writpetition and the same was still pending. 16.The petitioner had requested the authorities to provide adefending officer and sought for adjournment for two weeks toenable him to prepare his defense and when the same was notforthcoming, the petitioner filed a writ petition before this Courtin W.P. No. 14388 of 2003. On 18.8.2003, the said writ petitionwas disposed of by stating that the petitioner should raise hispreliminary objections before the CGC and that the CGC should passorders on the same. But without considering the request of thepetitioner and without dealing with the objections raised by himand also without furnishing the order passed on his objections, theproceedings went on which necessitated the petitioner to fileContempt Petitions in Cont. P. No. 918 of 2003 on 02.10.2003. 17.In the meanwhile, he was admitted in the Intensive CareUnit of Malar Hospital as he had suffered Chest Pain on 28.10.2003.On 29.10.2003, the personnel belonging to Coast Guard came to theHospital and informed the authorities that he was being shifted to https://hcservices.ecourts.gov.in/hcservices/ the Military Hospital. But instead of doing so, he was taken tothe Coast Guard Headquarters at Fort St. George where the sentencein the ROE was pronounced at 16 hours dismissing him from serviceand at 17.30 hours, his Identity Card was taken away from him.All these were done without serving him a copy of the dismissalorder. It was only during the contempt proceedings on01.12.2003, the order was served on the petitioner. Even thatdid not contain the proceedings dated 30.9.2003. Even though thepetitioner could have filed a representation to the CentralGovernment under Section 119 of the Coast Guard Act, in view of thefacts and circumstances of the case, the petitioner, withoutavailing other remedies, moved this Court with the present writpetition.18.The writ petition was admitted on 16.12.2003 and noticewas ordered to the respondents. In W.P.M.P. No. 44547 of 2003, aninterim injunction was granted restraining the respondents fromevicting the petitioner from the quarters allotted to him and thesame was also made absolute on 20.12.2006. In the other twoMiscellaneous Petitions, viz., W.P.M.P. Nos. 44548 and 44549 of2003 seeking for direction for payment of last drawn salary andalso for a direction to suspend the sentence of dismissal, onlynotice was ordered.19.Though the fourth respondent had filed a counteraffidavit dated 11.02.2004 only for the purpose of vacating theinterim order in respect of the quarters, no other counteraffidavit has been filed to controvert the averments made in theaffidavit. However, the respondents were rest contented withfiling a notes of submission along with a typed set of paperscontaining the minutes of the enquiry proceedings. 20.It is the stand of the respondents that the allegationthat the charges are vague is not correct. Further, in terms ofRule 64 of the C.G. (Discipline) Rules, it is informed that if thecharges are read over during the proceedings, it is for thepetitioner to plea guilty or not. According to the respondentsthat the time to object to the charges is only before the enquiryand not before this Court, the same cannot be raised. It is alsostated that the plea of limitation and jurisdiction should havebeen raised before the authorities and since the statutory rule wasnot followed, this Court cannot go into the issue. It is alsostated that actually, there was no limitation, it was only becauseof the stay order obtained by the petitioner, the matter could notbe proceeded and if that is excluded, then there was no delay atall.21.In this context, it is relevant to refer to Section 51(1)of the Coast Guard Act, which reads as follows:"51.(1) No person unless he is an offender who hasavoided apprehension or escaped arrest or https://hcservices.ecourts.gov.in/hcservices/ committed the offence of desertion or of givingfalse entry on enrolment or the offence ofmutiny shall be tried or punished in pursuanceof this Act for any offence committed by himunless such trial commences within three yearsfrom the commission of such offence."[Emphasis added]22.But this Section was amended by Central Act 44 of 2002and in the place of Section 51(1), the following amendment has beenintroduced:"51. Period of limitation for trial of offencesunder the Act.-- (1) No person unless he isan offender who has avoided apprehension orescaped arrest or committed the offence ofdesertion or of giving false entry on enrolmentor the offence of mutiny shall be tried orpunished in pursuance of this Act for anyoffence committed by him unless such trialcommences [within a period of three years fromthe commission of such offence and such periodshall commence, --(a)on the date of the offence; or(b)where the commission of offence was notknown to the person aggrieved by theoffence or to the authority competent toinitiate action, the first day on whichsuch offence comes to the knowledge ofsuch person or authority; or(c)where it is not known by whom the offencewas committed, on the first day on whichthe identity of the offender becomes knownto the person aggrieved by the offence orto the authority competent to initiateaction, whichever is earlier.Explanation.-- For the purposes of sub-section, in the computation of the period oftime mentioned in this sub-section, any timespent by such person as a prisoner of war inthe enemy territory, or in evading arrest,after the commission of the offence, shall beexcluded.][(1A) Where a proceeding in respect of anoffence has been stayed by an injunction or anorder of a court, then, in computing the periodof limitation under this section, the period ofthe continuance of the injunction or order, theday on which it was issued or made, and the dayon which it was withdrawn shall be excluded.][Emphasis added] https://hcservices.ecourts.gov.in/hcservices/

23.These amendments received the assent of the President ofIndia on 12.8.2002 and were published in the Gazzette on the sameday. It was directed to come into force the day on which the saidamendment was published in the Gazette. Though Section 51(1-A)specifically excludes the period of injunction or stay obtainedbefore the Court for the purpose of calculating the limitationperiod, the said defence is not available to the respondents. Thesecond ROE was convened more than three years after the date ofincident i.e., on 27.4.1998 and the first ROE was dissolvedwithout recording any reasons and only thereafter, on 26.9.1999,the CGC was constituted in respect of the fresh charge sheet dated10.8.1999 and, therefore, the limitation will apply. Thepetitioner is well founded in his argument that the period oflimitation under Section 51(1) as per the unamended provision ofthe C.G. Act alone will apply. 24.It was further contended by the respondents that thepetitioner did not raise any ground for any relief in W.P. No.14388 of 2003 except raising the same issue as was raised beforethe CGC and the petitioner's attempt in getting a direction fromthis Court in W.P. No. 14388 of 2003 on 18.8.2003 was appealed bythe respondents in W.A. No. 1401 of 2004 and the Division Benchallowed the Writ Appeal on the ground that the single Judge oughtnot to have entertained the writ petition with similar relief.Further, the petitioner had already approached the Orissa HighCourt and the direction was set aside imposing cost on him byjudgment dated 28.9.2005. It was submitted that the petitioner'sobjections were suitably replied and that the petitioner had notavailed the alternative remedy provided under Section 119 of theC.G. Act and, therefore, the writ petition should be rejected.25.With reference to the argument of the petitioner thatreconvening of the ROE in respect of the same allegations isprohibited by Section 66 of the Coast Guard Act read with Rule 26of the C.G. Rules, the learned Assistant Solicitor General of Indiacontended by referring to Rules 63 and 65 of the C.G. Rules thatthe objections regarding jurisdiction and limitation should havebeen raised before the authorities and not before this Court.Such a contention cannot be accepted. If there is a statutoryviolation, the question of raising the same before the authoritiesmay not arise. Further, the question of limitation is ajurisdictional question and it is an injunction against theauthorities from dealing with matters barred by limitation and theplea of limitation can be raised at any time. Secondly, thestatutory proceedings initiated by the respondents being in thenature of domestic enquiry, the employees are not expected to be https://hcservices.ecourts.gov.in/hcservices/ aware of all the defence which are available to them. Therefore,it is too late in the day for the respondents to contend that suchissues have to be raised only before the C.G.C. and not before thewrit jurisdiction of this Court exercising power under Article 226of the Constitution of India. 26.The respondents are clearly aware that their action washit by Section 51 and, therefore, they have raised thedefence of their action being interdicted by interim orders givenby the High Court and, therefore, that period should be excludedwhile calculating the limitation. The Parliament, aware ofsuch contingencies, had amended the statute only with effect from12.8.2002. Therefore, the respondents cannot contend that theycan put the interim order obtained by the petitioner against him.On the contrary, they should have taken steps to vacate the interimorder on time and inasmuch as the statutory amendment had not beenmade retrospectively, the respondents cannot rely upon the same.27.It is also significant to note that the plea of mala fidealleged against the named respondents were not countered by anyseparate affidavit of parties. This Court is not going into thedetails of those allegations since the issue could be decided onthe jurisdictional issue raised by the petitioner. In the sameway, the nature of evidence let in and recorded in the ROE also wasnot gone into. The petitioner is entitled to succeed both on thequestion of limitation as well as the statutory bar in convening ofsecond court of enquiry. 28.The jurisdictional issue on the limitation will have tobe viewed seriously because in a court of enquiry held by therespondents in terms of the Coast Guards Act, 1978, they can evenimpose punishment of death and grant Life Imprisonment in terms ofSection 53(1) of the Act. Therefore, this Court is constrainedto construe the question of limitation and jurisdiction to convenea second ROE in a strict manner. 29.If it is normal disciplinary proceedings in terms ofpersons holding civil posts and having protection under Article 311(2) of the Constitution of India, this Court might have takenliberal view both on the grounds of limitation and the necessity tohave a second enquiry . But whereas in view of the peculiarstatutory provision, this Court is bound to uphold the twoobjections raised by the petitioner. https://hcservices.ecourts.gov.in/hcservices/

30.In the light of the above, the writ petition will standallowed and the impugned order dated 29.10.2003 will stand setaside. In view of the same, the petitioner is entitled to getrestored to his service with all consequential benefits as if therewas no order of dismissal. However, there will be no order as tocosts. Consequently, connected Miscellaneous Petitions areclosed.GriSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to GovernmentGovernment of IndiaMinistry of Defence, New Delhi2.The Director General Coast GuardNational Stadium ComplexNew Delhi3.The Presiding OfficerCoast Guard CourtNational Stadium ComplexNew Delhi4.The Commanding OfficerCoast Guard StationFort St. George, Chennai – 9+ 1 cc to Mr. P. Wilson, Advocate, SR No.12079/08+ 1 cc to Mr. G. R. Associates, Advocate, SR No.12331/08W.P. No.36674 of 2003 SA(CO)SR/7.3.2008