IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 WP(C).No. 13533 of 2007(J) ------------------------------------- PETITIONER(S): ------------------------ C.T.MATHEW, ANNA VILLA, WARD NO.VII/65A, KANIYAMPUZHA RAOD, EROOR P.O.,THIRUPUNITHURA, ERNAKULAM DISTRICT,.KERALA. BY ADV. MR.N.RADHAKRISHNAN RESPONDENT(S): ------------------------- 1. UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. THE COMMANDER, BOARD PRESIDENT, HEADQUARTERS, GOA NAVAL ARA, VASCO-DA-GAMA, GOA,PIN-403 802. 3. THE COMMANDER, PRESIDENT, BOARD OF INQUIRY, HEADQUARTERS, GOA NAVAL AREA, VASCO-DA-GAMA, GOA, PIN-403 802. 4. THE COMMANDER, WORKS ENGINEER (N), VASCO-DA-GAMA, GOA, PIN-403 802. BY ADVS. MR.JOHN VARGHESE, ASSISTANT SG FOR R.1 TO R4 MR.P.S.BIJU, ADDL.CGSC FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/04/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.13533/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE TELEGRAM ADDRESSED TO THE PETITIONER. P2:- COPY OF THE REPLY DT. 23.8.06 ADDRESSED TO THE STAFF OFFICER. P3:- COPY OF THE MEDICAL CERTIFICATE ISSUED BY C.G.VIJAYAN , CIVIL SURGEON, GENERAL HOSPITAL, ERNAKULAM. P4:- COPY OF THE COMMUNICATION NO.1120/BOI/02/06 DT. 1.11.06. P5:- COPY OF THE COMMUNICATION NO. 1120/BOI /02/06 DT. 29.1.07. P6:- COPY OF THE SUMMONS DT. 23.3.07. TRUE COPY P.S. TO JUDGE TSS P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No.13533 OF 2007 ......................................................................... Dated this the 2nd April, 2009 J U D G M E N T The petitioner has approached this Court challenging Ext.P6 summons issued by the second respondent invoking the power under Section 134(2) of the Navy Act, 1957, requiring the petitioner to appear before the Board of Inquiry on 19.04.2007 as a witness for giving evidence in the enquiry scheduled to be held on that day, allegedly in connection with some over payments effected to the old building contractor from the Department where the petitioner was working as the Superintendent (Military Engineering Service) under the 4th respondent. 2. The case of the petitioner is that the alleged incident occurred a decade back; that the petitioner does not remember the exact facts and figures and that he is not in a position to move about from his home in view of Cardiac ailments as W.P.(C) No.13533 OF 2007 2 evident from Ext.P3 medical certificate issued by a competent Physician of the General Hospital, Ernakulam. The petitioner submits that the Doctor, as borne by the certificate, has advised him not to undertake any long journey and that he is not in a position to attend the enquiry at Goa. At the same time, the petitioner expresses his willingness to co-operate with the enquiry, provided a Commission is appointed, as provided under Section 135 (1) of the Navy Act, as extracted in paragraph '8' of the Writ Petition. 3. No counter affidavit has been filed by the respondents and the position as on date is not discernible from the proceedings filed before this court. However, it is seen that the reliance placed on Sec.135(1) of the Navy Act is rather misconceived. The said provision begins with the words: “Commission for examination of witnesses: (1) Whenever in the course of a trial by court-martial, it appears ............”. This by itself shows that issuance of Commission for examination of witnesses as contemplated under Section 135(1) of the Navy W.P.(C) No.13533 OF 2007 3 Act is envisaged only in the course of trial by 'court martial'. Admittedly, the proceedings involved herein in connection with the enquiry, for which Ext.P6 summons was issued, are not in the course of trial by court martial, but in connection with the excess payment effected to the building contractor as enquired by the “Board of Enquiry”. As such Section 135(1) of the Navy Act is having no application at all and for the same reason, the interim order dated 20.4.2007 to the extent it permitted the respondents to proceed under Section 135(1) of the Act cannot be pressed into service by the petitioner any more. 4. The factual position with regard to the cardiac problems mentioned by the petitioner, placing reliance on Ext.P3 Medical Certificate, has not been rebutted from the part of the respondents . Learned counsel for the petitioner submits that the position of the petitioner has still gone worse as on date. Whether the enquiry conducted by the Board of Enquiry has already been finalised or not on the basis of other available evidence is also not known. Considering the sequence of events and available materials on record, it is hereby declared that the W.P.(C) No.13533 OF 2007 4 presence of the petitioner shall be caused to be enforced only if the second respondent finds that the concerned enquiry cannot be taken to a logical conclusion without examination of the petitioner as a witness and of course with due regard to the present physical condition of the petitioner, which is to be established by the petitioner on the basis of appropriate Medical Certificate to be obtained from a Medical Board. The Writ Petition is disposed of with the above observations. P.R. RAMACHANDRA MENON, JUDGE. lk