[ 1 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL CRIMINAL CRIMINAL WRIT WRIT WRIT PETITION NO.54 OF 2004 PETITION NO.54 OF 2004 PETITION NO.54 OF 2004 Date of Decision : 14th January, 2008. For Approval and Signature : The Ho’ble Mr. Justice R.M.S.Khandeparkar : The Hon’ble Mr. Justice A.A. Sayed : 1. Whether Reporters of Local Papers may be allowed to see the Judgment? 2. To be referred to the Reporters or not? 3. Whether Their Lordships wish to see the fair copy of the Judgment? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any Order made thereunder? 5. Whether it is to be circulated to the Civil Judges ? 6. Whether the case involves an important question of law and whether a copy of the Judgment should be sent to Nagpur, Goa and Aurangabad office? ***** [ 2 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO. 54 OF 2004 WRIT PETITION NO. 54 OF 2004 WRIT PETITION NO. 54 OF 2004 SHRI DEEPAK YADAV S/O. SHIVRAJ SINGH YADAV AGE 25 YRS, RESIDING AT B-21, VIJAYA PARK, HAMJADI NAGAR, VASAI, MUMBAI. ...PETITIONER. VS. 1. THE UNION OF INDIA, REPRSENTED BY THE MINISTRY OF DEFENCE, NEW DELHI. 2. THE CHIEF OF THE NAVAL STAFF AND ORS. ...RESPONDENTS. MR. SURESH KUMAR SR.COUNSEL WITH SHRI AJAY PAL SINGH, ADVOCATE FOR THE PETITIONER. SMT. S.D.SHINDE APP FOR THE RESPONDENT NO.1. SHRI D.N.SALVI, ADVOCATE FOR THE RESPONDENT NO.2. CORAM CORAM CORAM : Sri R.M.S.Khandeparkar : Sri R.M.S.Khandeparkar : Sri R.M.S.Khandeparkar And And And Sri Sri Sri A. A. Sayed, JJ. A. A. Sayed, JJ. A. A. Sayed, JJ. DATE DATE DATE : January 14, 2008. : January 14, 2008. : January 14, 2008. [ 3 ] ORAL ORAL ORAL JUDGMENT [PER R.M.S.KHANDEPARKAR, J.]. JUDGMENT [PER R.M.S.KHANDEPARKAR, J.]. JUDGMENT [PER R.M.S.KHANDEPARKAR, J.]. 1. Heard the learned advocates for the petitioner and the respondents. 2. Rule. By consent, the rule is made returnable forthwith. The advocate for the respondents waive service. 3. By the present petition, the petitioner is seeking to quash the sentence passed on 16th January, 2003 by the Commanding Officer, I.N.S.Circars, the Respondent No.5, whereby the petitioner was ordered to undergo RI for 45 days and his employment in Naval Service has been terminated. 4. Few facts relevant for the decision are that the petitioner joined Indian Navy as Medical Assistant on 28th July, 1997. He had to undergo basic training at INHS Kalyani, Vishakhapattanam from July, 1997 till October, 1998. He was assigned duties at Mumbai as a medical assistant, medical ward III from 2nd February, 2002 on wards. During the period from February, 2002 to August, 2002, the petitioner could not get any leave or [ 4 ] even permission to leave the naval ship. On 17th August, 2002, the petitioner proceeded to visit his parents at Navy Nagar, Colaba at Mumbai and returned to the Unit at about 22.00 hrs. On 19th August, 2002, he was summoned by the Regulating Officer for the investigation regarding his absence. On 23rd August, 2002, he was placed under arrest. On 5th September, 2002, he was charged for the absence without leave for 32 hours and produced before the Executive Officer and subsequently before the Commanding Officer INS Asvini and thereafter, he was remanded in terms of Regulation 29(b) of the Navy Regulations. At the end of September, 2003, he proceeded to Vishakhapattanam, purportedly to meet his uncle and grandmother to seek advise from them. It is the case of the petitioner that his friend owed him Rs. 9,000/- towards the sale of his motorcycle and while attempting to recover the said amount, he entered into altercations with the said friend which alerted the police authorities and consequently he was arrested by the police on 11th October, 2002. On production of his identity card, the police intimated the matter to the Naval Authorities. The petitioner was released on bail on 24th October, 2002, however, on release from the police custody, he was arrested by the Naval Authorities attached to INS Circars, Naval Base, Vishakhapattanam [ 5 ] and he was kept in the naval custody from 24th October, 2002 to 15th December, 2002. He was charged for the desertion to which he pleaded not guilty on 16th December, 2002 and after the inquiry, the punishment was imposed by the impugned Order dated 16th January, 2003. The petitioner was released from Central jail, Vishakhapattanam on completion of the sentence on 31st January, 2003. He applied for review of the sentence under Section 163 of the Navy Act on 31st July, 2003, which came to be rejected on 17th September, 2003. Hence, the present petition. 5. While assailing the impugned Order, the learned advocate appearing for the petitioner submitted that the records disclose that the Commanding Officer had recommended the punishment of detention for 90 days and deduction for 11 days pay and allowances whereas the actual punishment imposed was of RI for 45 days and dismissal from the Naval Services which is in contravention of the provisions of Clause 17 of the Navy regulations, which pertain to the subject of approval of warrants read with the guide-lines issued by the Naval Authorities being guide-line No. 34 in relation to the said Regulation. Clause 17 merely empowers the approving authority to alter the punishment within the [ 6 ] limits of powers of the Commanding Officer in that regard and not to change the punishment to a totally different segment or type of punishment. The contention is seriously disputed on behalf of the respondents while submitting that the provisions regarding power to alter clearly specifies that such power has to be exercised when the punishment proposed is inadequate. The learned advocate for the petitioner has drawn our attention to the meaning of term "alter" as is found in P. Ramanatha Aiyar’s ’The Law Lexicon’. 6. Clause 17 of the regulation provides that an officer having power to approve the warrant, finds the punishment proposed to be inadequate then he may alter the punishment within the limits of the powers of the punishment of a Commanding Officer and the punishment so altered should be punishment awarded. Sub Clause (2) of it provides that the officer having power to approve the warrant may approve the warrant for punishment lower than that proposed by the Commanding Officer. Guide-line No. 33 provides that while approving the warrant the approving authority may increase the proposed punishment within the limits of the powers of the Commanding Officer or, approve the warrant for punishment lower than that proposed by the Commanding [ 7 ] Officer and in both the cases, the punishment so altered by the approving authority shall be the punishment awarded. 7. Clause 17 apparently deals with the power to alter the punishment when the proposed punishment is found to be inadequate. In other words, the said provision empowers the approving authority to decide whether the proposed punishment is adequate or not and in case it finds it to be inadequate, it can alter the proposed punishment so as to make it adequate and commensurate to the offence established in the course of the inquiry. Clause 17 nowhere discloses that the power to alter the punishment is restricted to the same segment or type of punishment which is proposed. The expression "inadequate" in relation to the proposed punishment cannot be construed to mean that the power of the authority to alter the punishment is restricted to alter the punishment in the same segment or type of punishment. No such restriction is disclosed in relation to the power of the approving authority relating to imposition of the punishment. On the contrary, the provision clearly speak of need for alternation in punishment when the concerned authority feels the proposed punishment to be inadequate. Guide [ 8 ] line No. 33 to which our attention is sought to be drawn also nowhere discloses any intention on the part of the Naval Authority to understand the said clause to mean that the power of the approving authority is restricted in the matter of increase in the punishment in the same segment or type or class of punishment and not to change the punishment to different class or type of punishment even though the proposed punishment is found to be inadequate. Punishment for any offence always depends upon the gravity of the offence proved. 9. Though grammatically the term "alter" may not be synonymous to the term "change" or "amendment", the example given in P. Ramnath Aiyar’s Law of Lexicon in relation to the meaning of the word "alter" is in relation to the alteration in the cheque and drawing up of a new cheque in place of old one, would itself clearly disclose that alteration would imply the modification as well as the change and that would depend upon the context in which the term is used in a provision of law. Bearing the same in mind, if one reads clause 17 of the Regulation, it nowhere indicates that the term "alter" is confined to mere increase in the punishment in the same segment or same type or class of punishment. It would definitely include the power to [ 9 ] change the punishment in different class or type of punishments, albeit the adequate and commensurate to the offence proved. 10. The impugned Order is then sought to be to be challenged on the ground that the complainant and the enquiry authority had been one and the same person and that it violated the basic principles of natural justice. In that regard, reliance is sought to be placed in the decision of the Apex Court in the matter of ARJUN CHAUBEY VS. UNION OF INDIA AND ORS. ARJUN CHAUBEY VS. UNION OF INDIA AND ORS. ARJUN CHAUBEY VS. UNION OF INDIA AND ORS. reported in (1984) 2 SCC 578 and of the Single Judge of this Court in case of CAPT. KAILASH NATH HARSH VS. CAPT. KAILASH NATH HARSH VS. CAPT. KAILASH NATH HARSH VS. D.C.PATEL D.C.PATEL D.C.PATEL & ORS. & ORS. & ORS., reported in 1999(2) Bom.C.R. 411. 11. The said submission is essentially based on the contents of the copy of the punishment warrant and forwarding letter by the Commanding Officer to the Senior Officer and not on the fact situation in relation to the inquiry proceedings. The punishment warrant is dated 16th January, 2003 and the said letter is dated 17th December, 2002 and the copies of the same are to be found at Exhibit R-11 to the petition. On the other hand it is the contention on behalf of the respondent that no such ground has been raised in the [ 10 ] petition and even otherwise there is no substance in the contention as factually the complainant and the Enquiry Officer were two separate persons. Referring to the punishment warrant and the said letter, it is sought to be contended on behalf of the respondent, that the complainant is the signatory for those documents, disclosing the name of the same person as the complainant and the Commanding Officer, as at the relevant time of issuance of the warrant and at the time of forwarding the said letter, the Commanding Officer was on leave and therefore the document was signed by the person incharge of the Commanding Officer’s office, who, at the relevant time, happened to be the complainant. 12. It is settled law that the grounds of challenge to an order are to be specifically enumerated in the petition so that the other party gets sufficient knowledge about the same in order to give effective answer and can place on record the necessary material in its defence. It is more so when the adjudication of the ground sought to be argued needs appreciation of factual matrix. The respondent is definitely entitled to get sufficient opportunity to meet the contentions sought to be raised on behalf of the petitioner. Whether the [ 11 ] enquiry was conducted by a particular person or not is not a pure question of law but it is essentially a question of fact and, therefore, it was necessary for the petitioner to raise the said point with necessary clarity in the petition, in order to enable him to canvass the same at the time of arguments. If it was so raised, the respondents could have explained the factual aspects of the matter. Merely because the signature of the complainant is found affixed above the caption "Commanding Officer", it cannot be presumed that enquiry was conducted by the complainant himself. This is also apparent from the fact that the impugned order clearly discloses that the evidence of the complainant and other witnesses was considered before arriving at a finding of the guilt of the petitioner and the punishment warrant specifies who were those witnesses whose testimonies were considered. 13. The Apex Court in Arjun Chaube’s Arjun Chaube’s Arjun Chaube’s case (Supra) had re-reiterated its earlier decision in case of U.P. U.P. U.P. Vs. Vs. Vs. Mohammad Nooh, Mohammad Nooh, Mohammad Nooh, 1958 SCR 595 : AIR 1958 SC 86 wherein it was observed that "the roles of a judge and a witness cannot be played by one and the same person and that it is futile to expect, when those roles are combined, that the judge can hold the scales of justice [ 12 ] even." The learned Single Judge in Captain Kailash Nath Captain Kailash Nath Captain Kailash Nath Harsh’s Harsh’s Harsh’s case (Supra) following the law laid down by the Apex Court observed that "In order to ensure impartiality of the Judges, it is expected that the parson who may be a complainant should not be a Judge in the same proceedings. A person cannot act as a witness as well as a Presiding Officer. It was further observed that "It is only when the disciplinary proceedings are decided by persons who do not have any interest in the proceedings that they can be said to be impartial". 14. Before canvassing any point, it is necessary for the petitioner to lay factual foundation in that regard in the petition. The petition nowhere discloses any such ground having been raised nor any fact in that regard having been pleaded. Merely because the signature of Mr. Vijaykumar Rawal is found affixed above the caption ’complainant’ as well as ‘Commanding Officer’ that such an argument is sought to be canvassed which is totally devoid of substance. 15. It is then sought to be contended that the petitioner was transferred from Mumbai to Vishakhapattanam for the purposes of enquiry which was not permissible in view of the provisions of law [ 13 ] comprised under Clause 132(4) of the Regulations. The Clause 132(4) of the said Regulations provides that "when a Sailor has been absent from his duty without leave for more than three months, the Commanding Officer may authorise his discharge from the ship’s books, but no such authority for discharge from ship’s books shall be given if there is reason to suspect that he may be required to answer charges other than desertion and if it is possible that he may be required to answer other charges the circumstances shall be reported to the Chief of the Naval Staff and the absentee shall remain on the ship’s books until the approval of the Chief of the Naval Staff is obtained for his discharge therefrom". 16. One fails to understand how the provision of Clause 132(4) is attracted in the case of the petitioner. The charge against the petitioner was essentially of desertion. The clause in question clearly refers to the inquiry relating to the charges other than desertion. Being so, the contention is totally devoid of substance. 17. The impugned order is also sought to be challenged on the ground that the authority failed to take into account period when the petitioner was in [ 14 ] detention in the course of inquiry and accordingly to give set off in relation to said detention period while enforcing the order regarding the R.I. In that regard, the learned advocate appearing on behalf of the petitioner has drawn our attention to Section 151 as well as his averment in the petition that subsequent to his release by the police authorities at Vishakhapattanam, he was taken in close custody by INS Circars, Naval Base Vishakhapattanam from 25th October, 2002. It is the contention of the petitioner that since the sentence was imposed on 16th January, 2003 for 45 days RI and as he was in close custody from 25th October, he was entitled for the set off of the detention period so undergone from 25th October onwards and not only for 30 days as has been granted by the respondents. On the other hand, the learned advocate appearing for the respondent has submitted that the petitioner was undoubtedly taken in custody by the naval authority on 25th October, 2002 but he was not in close custody and said custody does not amount to confinement within the meaning of the said expression under Section 151 of the Navy Act. It is pertinent to note that even Section 151 of Navy Act itself nowhere entitles the petitioner to get set off on the lines of Section 428 of the Code of Criminal Procedure as the provisions of [ 15 ] Cr.P.C. are not applicable to such persons. Our attention is also drawn to unreported decision of the division bench of this Court in writ petition No. 1635 of 2006 in case of Himmat Singh Tanwar Vs. the Union of India & Ors. delivered on 5th October, 2007, while contending that the arrest and restraint imposed on the movements of the petitioner for his safe custody does not amount to his confinement within the meaning of the said expression under Section 151 of the Navy Act. 18. As rightly submitted by the learned advocate appearing for the petitioner, there is a categorical averment in the writ petition that the petitioner was taken into close custody after he was released from Central Jail, Vishakhapattanam on 24th October, 2002. Though the affidavit in reply was filed on behalf of the respondent by one Commodore K. Raina (60212-W) Chief Staff Officer (Personal & Administration) dealing with all the averments in the petition para-wise, there is no specific denial of the above fact stated by the petitioner in the writ petition. Paragraph 9 and 19 of the affidavit in reply on behalf of the respondent merely state that the petitioner was placed in safe custody at INS Circars. At the same time, it is also true, as pointed out by the learned advocate for the [ 16 ] respondent, that the respondent had contended in paragraph 20 of the affidavit in reply that the petitioner was detained in safe custody as a service personnel and was never handcuffed. Our attention was also drawn to clause 92 of the Regulation which describes "naval custody". In terms of the said provision, the Commanding Officer shall be responsible for the safe custody of every person offender, or prisoner who is placed in naval custody in the ship or establishment and such custody should be open or close according to the circumstances of each case and at the discretion of the commanding officer. 19. The division bench of this Court in Himmat Singh Tanwar’s case (supra) had an occasion to deal with the point relating to difference between "safe custody" and "naval custody" as well as difference between imposition of restraint on a liberty of a person and his confinement, and referring to the explanation clause to Rule 92 of the Regulation, it was held that the same discloses that open custody would be attracted only if such restraint is not necessary for safe custody, and the close custody would involve deprivation of all liberty and continuous supervision and the close custody then would fall within the purview of the term [ 17 ] "confinement" under Section 151 of the Navy Act; and in that regard the term "restraint" is different from the term "confinement". 20. Be as it may, suffice to observe that any irregularity or illegality in the enforcement of the order in relation to sentence by an authority cannot render order itself to be illegal nor it could vitiate the order itself. Any lapse on the part of the authority in giving set off for the detention already suffered by the aggrieved person will not vitiate the order imposing sentence. Considering the same, the challenge to the impugned order on account of the alleged irregularity in the enforcement of the order would be unsustainable. It is not necessary to deal with the various contentions sought to be raised with reference to the enforcement part and whether the custody of the petitioner was open or close or whether the petitioner was entitled for set off in relation to his detention for 30 days or 45 days etc. The discussion in that regard would be in futility as it would not be of any relevance to consider the challenge to the impugned order. It is not the case of the petitioner that there is failure on the part of the authorities to give proper set off and the same has [ 18 ] resulted in prejudice to the petitioner and therefore the petitioner is entitled for any compensation or any such relief. 21. The impugned order is then sought to be challenged on the ground that considering the provisions of clause 7(a) of Navy Order No. 126/2002, the petitioner could not have been dismissed from the services. Clause 7(a) of the said Navy Order provides for various actions, which can be taken irrespective of various categories of deserters and clause (a) specifies that the offenders who have deserted for period of six months or less, should unless the offence is repeated one, be dealt with summarily and awarded sentence of detention in addition to any other punishment applicable. In fact, no such ground has been raised in the petition. The challenge in the petition is on the ground that the award of sentence to the petitioner is totally arbitrary and against the spirit of regulation 25(9) and (10) of the Navy Regulations. Sub clause (9) of clause 25 of the Regulations deals with inconsiderate punishments. Inconsiderate punishments, as well as needlessly protracted punishments, shall be avoided having regard to (i) the necessity for prevention of crime or offences and for the maintenance of proper [ 19 ] order and discipline; (ii) the gravity of the offence and the previous character of the offender; (iii) any consequences which may arise indirectly as a result of the offence or of the award, particularly in regard to the charges against the offender’s pay for offences of absence or desertion, or for damage to or loss of stores and such other matters. Sub clause (10) of Regulation 25 provides that in cases of repeated offences the effect of gradually increasing the degree of punishment until the maximum is reached shall be tried before awarding the maximum punishment. 22. It is to be noted that clause (7) of the Navy Order is in the form of guide-line for enforcement of the regulations. It cannot be disputed that normally, it is for the management to decide about quantum of the punishment to be imposed depending upon the facts of each case and the courts have very little role to play in deciding the same. Interference in the quantum of punishment could only arise when it is shockingly disproportionate to the offence established or when there is a total arbitrariness on the part of the employer in imposing punishment. In order to seek interference of the court in that regard, it is always necessary for the petitioner to plead and establish the [ 20 ] facts which could reveal either total arbitrariness on the part of the employer or that