IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.2.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN Writ Appeal No.487 of 2008 and M.P.Nos.1 to 3 of 2008 1.Government of India, rep.by Secretary to Government, Ministry of Defence, New Delhi. 2.The Director General, Coast Guard Headquarters, National Stadium Complex, New Delhi. 3.Presiding Officer, Coast Guard Court, National Stadium Complex, New Delhi. 4.The Commanding Officer, Cost Guard Station, Fort St.George, Chennai-9. 5.S.E.D.Ananda Kumar, Commanding Officer, C.G.S.Tuticorin, Harbour Estate, Tuticorin. 6.S.K.Singh, Officer-in-charge, Pollution Response Team (West), C/o.C.G.Headquarters, Western Region, Mumbai. https://hcservices.ecourts.gov.in/hcservices/ 7.P.J.Jacob, Vice Admiral (Retd.), Former Director General, Coast Guard Headquarters, National Stadium Complex, New Delhi. 8.Commandant A.Athinarayana, Commanding Officer, C.G.S.Vard, C/o.Coast Guard D.H.Q., Visakapatnam ... Appellants Vs. Md.Abbas Mohidden ... Respondent * * * Writ Appeal preferred under Clause 15 of the Letters Patent as against the order passed by the learned single Judge dated 5.3.2008, made in W.P.No.36674 of 2003 against the writ petition presented to this Court under Article 226 of the Constitution of India to issue of writ of Certiorari calling for the records of the Coast Guard Court constituted by the second respondent in connection with the proceedings of the Coast Guard Court dated 29.10.2003 and quash the same. * * * For appellants : Mr.B.Shanthakumar For respondent : Mr.G.Rajagopalan, Senior Counsel for M/s.G.R.Associates * * * JUDGMENT ELIPE DHARMA RAO, J. The respondent herein is a B.Tech (Mechanical) and joined the services of Coast Guard as Assistant Commandant (Technical) in Class I Group on 6.8.1989 and on completion of training and probation, he served on various coast guard ships in Western command and thereafter joined Eastern Command on board C.G.S.Jijabai at Paradeep, Orissa on 12.8.1993. It is the case of the respondent herein that when he was the Technical Officer in the said ship, on 18.10.1994, the Commanding Officer S.E.D.Anand Kumar/the 5th appellant herein seized two Taiwan Trawlers, https://hcservices.ecourts.gov.in/hcservices/ which are in international water, and looted them and decided to apprehend the trawlers and bring them to Indian waters and boarded the trawlers; that the Commanding Officer/the 5th appellant herein sent two boarding parties, one led by Assistant Commandant Bhatacharya and the other led by Assistant Commandant Praveen Gaur; that the boarding party led by Assistant Commandant Praveen Gaur looted the Thai trawler, which they boarded at the instruction of the Commanding Officer and the boarding party led by the Assistant Commandant Bhattacharya brought the trawler intact to Paradeep Port and Praveen Gaur carried out the instructions of the Commanding Officer and looted the Thai Trawler and thereafter it was taken to Paradeep Port on 19.10.1994, which was stiffly objected to by the respondent and he also opposed when the incomplete seizure list was given to the Paradeep Police Station on 19.10.1994. This strong objection of the respondent for the illegal acts committed by the 5th appellant has irked the 5th appellant and therefore, he plotted to send the respondent out of Paradeep and on 2.10.1994, the respondent was sent to Madras for participating in the Eastern Region games and while the respondent was still in Madras, a telex message was sent to the respondent by the Commanding Officer/the 5th appellant, granting leave for the respondent, even though the respondent has never applied for the same and during the absence of the respondent, a new firm Rajan Engineers was introduced by the 5th appellant to do the maintenance work of the ship even though the said firm has no workshop or background to do this kind of work. 2. It is seen from the records that while things stood thus, the 5th appellant has forwarded the annual confidential report of the respondent for the period November, 1993 to October, 1994, with adverse remarks on 10.11.1994. It is the case of the respondent/workman that since his marriage was fixed on 4.4.1995, he applied for leave for 26 days on 27.3.1995, but even before completion of the leave, a telegram was sent to his residence to join immediately and therefore, he reported to duty on 17.4.1995. It is his strong case that in the farewell party to one Dr.Mishra of C.I.S.F. In the Paradeep Port on 10.4.1995, the 5th appellant had made a statement that 'Abbas will be court martialled'. 3. It is submitted by the respondent that on 15.4.1995, the Port Diesel alternator top overhaul was said to have been done by one Mr.Govindarajan and the work completion was signed by the 5th appellant, without any trial and that the 5th respondent is not a technically competent person to decide whether the work has been completed properly and whether the work has been attended to properly and without trial, no work completion certificate could be signed. But, the 5th appellant did so and if normally even a superior officer signs a work order, he will take the signature of technically competent person before the person who is technically competent. It is further submitted that on 17.4.1995, he reported for duty, since the 5th appellant had directed him over phone on 15.4.1995 to report back immediately and during the period from 15.4.1995 to 25.4.1995, the ship was in the Assisted Maintenance Period; that on 19.4.1995, in the evening when the ship was in harbour, the sea water https://hcservices.ecourts.gov.in/hcservices/ problem in the star board D.A. has occurred and thereupon the 5th appellant has lodged a complaint against the respondent. 4. This motivated and malicious complaint of the 5th appellant lodged against the respondent, has paved way for the impugned proceedings against him, ultimately leading to his dismissal from service. It is also to be noted that on 31.10.1995, the Departmental Promotion Committee (DPC) was convened to consider the issue of promotions to the post of Deputy Commandant and on 6.12.1995, the promotion list was displayed but his name was not included, though he was the first in his batch and though he has given a representation to the 5th appellant on 29.12.1995 as required under the Rules against his non-promotion and within one month, he was transferred to the Regional Headquarters of the Eastern Command viz. Madras for duties of O.I.C.IPV.Stores. On 15.2.1996, a charge sheet was issued with the following charges: "a. Failure to discharge duties properly and was fully responsible for non-preservation of star board D.A. after ingress of sea water leading to deterioration of material state of star board D.A., thereby committed an offence under Section 16 of the Coast Guard Act, 1978. b. Knowingly concealed the vital information of sea water ingress in star board D.A. from his Commanding Officer, administrative authority and repair agency thereby committed an offence under Section 16 of the Coast Guard Act, 1978. c. Grossly derelicted his duty by allowing the damage to get compounded on port D.A. In overheated condition over a long period without proper fault diagnosis thereby committed an offence under Section 16 of Coast Guard Act, 1978. d. Showed total irresponsible and careless attitude in fault diagnosis and repair of defects affecting the ship's operational efficiency and delay in repair process thereby committed an offence under Section 16 of the Coast Guard Act, 1978." It is submitted by the respondent in the above charges, Record of Evidence was completed at the end of February, 1996 and the then Commanding Officer Mr.S.K.Singh/the 6th appellant herein has held that there was no case against the respondent and recommended dropping of the charges. 5. However, thereafter, once again, another charge sheet was issued to the respondent on 30.7.1996, with the following charges: First charge Failed to perform the duty imposed on him Section 16(c) of In that he while on board Coast Guard Ship Jijabai as Coast Guard Act Engineer Officer, during the month of April and May 1978 1995, was negligent in ensuring maintenance and timely defect rectification of the ship's machinery, which adversely effected the ship's operational availability. https://hcservices.ecourts.gov.in/hcservices/ Second charge Violation of orders Section 42 of In that he during place,months and while performing Coast Guard Act duty mentioned in first charge, failed to immediately 1978 report the defects occuring in the said ship's machinery to his Commanding Officer, thus contravening para 306(a)(iii) of Coast Guard Ship Jijabai Captain Standing Order. 6. As the above said charges were liable to be straight away tried by the Coast Guard Court, the respondent herein filed Writ Petition O.J.C.No.10043 of 1996 before the Orissa High Court and he had also filed Writ Petition O.J.C.No.6959 of 1997 regarding his promotion. When in the previous charges, Record of Enquiry was conducted and the then Commanding Officer/the 6th appellant has recommended to drop the charges, why a fresh charge sheet with the same allegations was issued on 30.7.1996 has not been explained by the appellants. For the charge sheet dated 30.7.1996, a convening order for the Coast Guard Court was issued on 26.8.1996 to assemble on 24.9.1996, but the same was stayed by the Orissa High Court on 23.9.1996 by its order dated 23.9.1996 passed in OJC.No.10043 of 1996 and the final order was passed therein on 6.4.1998 directing the respondent to make a representation to the authorities and/or to the Director General to contend that further proceeding in the matter would not be desirable. Thereupon, the Coast Guard Court was dissolved on 27.4.1998 and thereafter another charge-sheet was issued on 10.8.1999 with the following charges: First charge Failed to perform the duty imposed on him Section 16(c) of In that he while on board Coast Guard Ship Jijabai as Coast Guard Act Engineer Officer, during the month of April and May 1978 1995, was negligent in ensuring maintenance and timely defect rectification of the ship's machinery, which adversely effected the ship's operational availability. Second charge Violation of orders Section 42 of In that he during place,months and while performing Coast Guard Act duty mentioned in first charge, failed to immediately 1978 report the defects occuring in the said ship's machinery to his Commanding Officer, thus contravening para 306(a)(iii) of Coast Guard Ship Jijabai Captain Standing Order. Thus, it is clear that the very same charge sheet, which was issued earlier on 30.7.1996 was re-issued on 10.8.1999, with just changing the date and it is only a cyclostyled one of the earlier charge-sheet. Therefore, a legal question has been raised on the part of the respondent https://hcservices.ecourts.gov.in/hcservices/ that since the Coast Guard Court once appointed was dissolved earlier for the same charges, the appellants cannot issue fresh convening order of the Coast Guard Court for the same charges. According to him, the reconvening of the Coast Guard Court is violative of Section 66 of the Coast Guard Act, 1978. 7. For better appreciation, we extract hereunder Section 66 of the Coast Guard Act, 1978: "66.(1) If a Coast Guard Court after the commencement of a trial is reduced below the minimum number of officers required by this Act, it shall be dissolved. (2) If on account of the illness of the Law Officer or of the accused before the finding, it is impossible to continue the trial, a Coast Guard Court shall be dissolved. (3) The convening authority of a Coast Guard Court may dissolve the same if it considers that the exigencies of the service or necessities of discipline render it impossible or inexpedient to continue the said Coast Guard Court. (4)Where a Coast Guard Court is dissolved under this section, the accused may be tried again." (Emphasis supplied) From the reading of this Section it is clear that the Coast Guard Court can be dissolved if the minimum number of officers required by the Act was reduced, after the trial is commenced; if it is impossible to continue the trial on account of the illness of the Law Officer of other accused before the finding and if the Convening Authority considers that there are exigencies of the service or necessities of discipline, which render it impossible or inexpedient to continue the same and only if the Coast Guard Court is dissolved for the above specified three reasons, the accused may be tried again. 8. In the case on hand, the Coast Guard Court for which a Convening Order was issued on 26.8.1996, was dissolved, without assigning any reason on 27.4.1998, by a wire order. It has not at all been proved by the appellants/authorities that the Coast Guard Court was dissolved only as per sub sections (1) to (3) of Section 66 of the Coast Guard Act, 1978 and therefore, they are entitled to try the respondent, as contemplated under sub section (4) of Section 66. The dissolving order is available at Page No.8 of the typed set of papers filed on behalf of the respondents, which, as has been observed supra, is only a wire message with no reasons for dissolving the Coast Guard Court, much less the ones specified and mandated under sub-sections (1) to (3) of Section 66. In the absence of any such conditions or contingencies as specified under sub-sections (1) to (3) of Section 66, the appellants cannot make use of the power under Section 66(4) of the Coast Guard Act so as to try the respondent again. 9. In the case on hand, after dissolving the Coast Guard Court on 27.4.1998, another charge-sheet dated 10.8.1999 was issued to the respondent, which is nothing but a cyclostyled one of the earlier charge sheet dated 30.7.1996. Therefore, aggrieved, the respondent filed https://hcservices.ecourts.gov.in/hcservices/ O.J.C.No.12975 of 1999 before the Orissa High Court and by the interim order dated 13.10.1999, it has been ordered that no final order in respect of the charge will be passed without leave of the Court and ultimately, by the order dated 5.3.2003, the said O.J.C. was disposed of on 5.3.2003 with a direction to the respondent to raise such objections before the Coast Guard Court. Thereafter, on 7.4.2003, an order of re-assembly of Coast Guard Court was issued ordering re-assembly of the Coast Guard Court at Chennai on 2.5.2003 and the respondent filed W.P.No.14388 of 2003 before this Court to quash the said proceedings and also filed WPMP.No.18006 of 2003 praying to stay the proceedings of Coast Guard Court and by the order dated 30.4.2003 interim stay for a period of ten weeks on conducting Coast Guard Court proceedings was granted and this Court by the order dated 18.8.2003, has dismissed the said writ petition with a liberty to the respondent to raise or restate his plea of jurisdiction or other objections before the Coast Guard Court and in case Coast Guard Court overrules the plea, the respondent shall be granted atleast four weeks time to work out his remedy, if any, under the Act or as open to him in law. 10. Thereafter, the respondent filed Contempt Petition No.918 of 2003 before this Court alleging disobedience of the said order by the appellants. The above said order of the learned single Judge was challenged by the appellants in W.A.No.1401 of 2004 and the 1st Bench of this Court, by the judgment dated 28.9.2005, has allowed the same, thereby setting aside the order passed by the learned single Judge dated 18.8.2003. In this judgment, the 1st Bench of this Court has observed that since for the same relief, the respondent/Officer has already initiated proceedings before the Orissa High Court in OJC.No.12775 of 1999 and it was dismissed, the same will operate as resjudicata and therefore, the learned single Judge ought not to have entertained the writ petition and ought to have dismissed the writ petition on this sole ground of res judicata. While, thus allowing the writ appeal filed by the authorities, the 1st Bench of this Court has imposed a cost of Rs.10,000/= on the respondent. In view of the said judgment of the 1st Bench of this Court, the Contempt Petition No.918 of 2003 was dismissed on 8.12.2005. 11. At this juncture, the learned counsel for the appellants would submit that the learned single Judge has failed to consider this aspect, which would establish the attitude of the respondent. On the other hand, the learned senior counsel for the respondent would submit that it is unfortunate that such an order has visited the respondent, since even from the reading of the order of the learned single Judge, dated 18.8.2003, it is crystal clear that the fact of filing of the earlier writ petition before the Orissa High Court was clearly brought to the notice of the Court further bringing to the notice of this Court about the necessity to file the writ petition before this Court and after considering all the facts and circumstances of the case and even the filing of the earlier writ petition before the Orissa High Court, the learned single Judge has passed the said order and there was no hiding of any information or fact https://hcservices.ecourts.gov.in/hcservices/ before this Court and owing to his poverty-stricken conditions, the respondent could not file any appeal against this order passed by the 1st Bench of this Court before the upper forums of law. But, we are not in a position to re-appreciate this issue, since the respondent has not challenged the same before the upper forums of law and we do not propose to offer any opinion on this point. But, it must be made clear that the case on hand is entirely on a different footing and no adverse approach to the claim of the respondent can be made, simply based on the judgment earlier passed by the 1st Bench of this Court and the case on hand has to be decided on its own merits and demerits. 12. In this backdrop, the learned counsel for the appellants would submit that since the dissolving order was passed because of the stay order obtained by the respondent in O.J.C.No.10043 of 1996, the appellants are very well within their powers to issue another charge sheet on 10.8.1999 and the reconvening order on 20.9.1999. In support of his contentions, the learned counsel for the appellants would rely on a judgment of the Honourable Apex Court in O.P.DAHIYA vs. UNION OF INDIA AND OTHERS [(2003) 1 SCC 122]. In the said case, the General Security Force Court was initiated to enquire into the misconduct of a Border Security Force staff and it was dissolved since he alleged denial of fair trial and a fresh Court for retrial was ordered. When in such circumstances, the retrial was challenged by the accused, the Honourable Apex Court has held that since the fresh court was constituted in the interest of the employee, no prejudice has been caused to him and thus the authorities are well within their authority under Section 71(4) of the Border Security Force Act, 1968. 13. The same is not the situation in the case on hand. In the case on hand, as has been discussed supra, the three reasons enunciated in Section 66(1) to (3) of Coast Guard Act, 1978 will only pave way for the accused to be tried again. But, no such reasons are offered while dissolving the earlier Coast Guard Court. The second charge-sheet and the consequential reconvening order for the Coast Guard Court were issued only to the detriment of the accused officer. The facts in the case before the Supreme Court are just opposite the one in hand. Therefore, the above said judgment of the Honourable Apex Court, relied upon by the learned counsel for the appellant will not, in any way, augment their case. 14. The respondent has attacked the impugned order of dismissal on the ground of limitation also. The learned senior counsel appearing for the respondent would submit that Section 51(1) of the Coast Guard Act imposes a period of limitation to prosecute the accused persons and since the said limitation period is expired long back in the case on hand, the appellants are bereft of power in issuing the second charge memo. 15. For better appreciation, we extract hereunder Section 51(1) of the Coast Guard Act: https://hcservices.ecourts.gov.in/hcservices/ "51(1) No person unless he is an offender who has avoided apprehension or escaped arrest or committed the offence of desertion or of giving false entry on enrolment or the offence of mutiny shall be tried or punished in pursuance of this Act for any offence committed by him unless such trial commences within three years from the commission of such offence." 16. This Section was amended by Central Act 44 of 2002, which received the assent of the President of India on 12.8.2002 and was published in the Gazzette on the same day. It reads as follows: "51. Period of limitation for trial of offences under the Act - (1) No person unless he is an offender who has avoided apprehension or escaped arrest or committed the offence of desertion or of giving false entry on enrolment or the offence of mutiny shall be tried or punished in pursuance of this Act for any offence committed by him unless such trial commences within a period of three years from the commission of such offence and such period shall commence - (a) on the date of the offence; or (b) where the commission of offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority; or (c) where it is not known by whom the offence was committed, on the first day on which the identity of the offender becomes known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority; or (c) where it is not known by whom the offence was committed, on the first day on which the identity of the offender becomes known to the person aggrieved by the offence or to the authority, competent to initiate action, whichever is earlier. Explanation: For the purposes of sub-section, in the computation of the period of time mentioned in this sub-section, any time spent by such person as a prisoner of war in the enemy terriroty, or in evading arrest, after the commission of the offence, shall be excluded. (1A) Where a proceeding in respect of an offence has been stayed by an injunction or an order of a court, then, in computing the period of limitation under this section, the period of the continuance of the injunction order, the day on which it was issued or made, and the day on which it was withdrawn shall be excluded." 17. From the reading of the above section, it is clear that for any offence, the trial shall commence within three years from the commission of such offence, unless such an offender has avoided apprehension or https://hcservices.ecourts.gov.in/hcservices/ escaped arrest or committed the offence of desertion or of giving false entry on enrolment or the offence of mutiny. In the amended provision, clarification has been given as to when the period shall commence. The case will not fall under clauses (b) and (c) of Section 51(1), since the alleged commission of offence is claimed to have been known to the superior officer of the respondent and he also lodged the complaint. Therefore, the trial should commence within three years from the commission of such offence. For the alleged commission of offence, a complaint was lodged by the 5th appellant on 19.4.1995. 18. At this juncture, it is also relevant to point out that though the complaint was lodged on 19.4.1995, in the first charge, it has been mentioned that the respondent/Officer was negligent during April and May, 1995 in ensuring maintenance and timely defect rectification of the ship's machinery, which adversely affected the ship's operational availability. Charges must be specific. Here, in the complaint of 19.4.1995 itself, how can there be complaint regarding the future period of May also? Though the first charge-sheet was issued on 30.7.1996 since it has been issued only based on the complaint dated 19.4.1995, there cannot be accusation for the future period also. Therefore, it must be concluded that there is