IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.07.2011 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.A.Nos.1528 to 1530 of 2009 1. Union of India rep.by its Secretary to Government Ministry of Defence New Delhi. 2. The Director General Coast Guard Headquarters National Stadium Complex New Delhi-110 001. .. 1st and 2nd Appellants in all W.As. 3. The Commanding Officer Coast Guard Air Station Rudra Road St. Thomas Mount Madras-600 016. .. 3rd appellant in W.A.No.1528/2009 and 4th appellant in W.A.No.1529/2009 4. The Commanding Officer Coast Guard Station (Madras) C/o Coast Guard Region HQ (East) Fort St. George Chennai-600 016. ..4th appellant in W.A.No.1528/2009 and 3rd appellant in W.A.Nos.1529 and 1530/2009. Versus R. Anand ..Respondent in W.A.No.1528/2009 P.S. Shelliraj ..Respondent in W.A.No.1529/2009 Harish Chandra (Deceased) ..Respondent in W.A.No.1530/2009 1. Mrs. Bindu Fulara https://hcservices.ecourts.gov.in/hcservices/ 2. Saurabh Fluara 3. Vishaka Fluara RR2 and 3 rep.by next friend and natural guardian 1st respondent. ..Respondents in W.A.No.1530/2009 Prayer in Writ Appeals: Writ appeals filed under Clause 15 of the Letters Patent against the common order dated 17.7.2009 passed by this court in W.P.Nos.16123/1998, 16924/1998 and 57 of 1999. Prayer in W.P.No.16123 of 1998:- presented to this court under Article 226 of the Constitution of India praying for the writ of Certiorarified mandamus calling for the records of the third respondent in SO/100/C dated 17.07.1998 served on 30.07.1998 and the order of the fourth respondent passed in No.203/1-01113-L dated 01.09.1998 and order of approval of punishment passed by the second respondent in No.203/1-01113-L dated 16.09.1998 and the order of the fourth respondent passed in CG/1785/N dated 16.09.1998 are illegal, void ultra vires and arbitrary and without jurisdiction and against the principles of natural justice and quash the same and for consequential direction for reinstatement with back wages with connected perquisites. Prayer in W.P.No.16924 of 1998:- presented to this Court under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified mandamus calling for the records of the third respondent relating to the punishment approval form bearing No.203/1-02038-M dated 01.09.1998 and of the second respondent relating to his consequent order dated 16.09.1998 approving the punishment of dismissal from service and of the third respondent relating to the subsequent order issued on his behalf bearing GX No.CG/1787/N dated 16.09.1998 and quash the same and direct the respondents to reinstate the petitioner in service with continuity of service, backwages and all attendant benefits including seniority and promotions. Prayer in W.P.No.57 of 1999:- Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified mandamus calling for the records of the third respondent relating to the punishment approval form bearing No.203/1-01815-Z dated 01.09.1998 and of the second respondent relating to his consequent order dated 16.09.1998 approving the punishment of dismissal from service and of the third respondent relating to the subsequent order issued on his behalf bearing GX No.CG 1664/1786/N dated 16.09.1998 and quash the same and direct the respondents to reinstate the petitioner in service with continuity of service, backwages and all attendant benefits including seniority and promotions. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.M.Ravindran Additional Solicitor General of India Assisted by M/s Haja Mohindeen Gisthi. For Respondents : Mr. M. Kamalanathan for R.1 in W.A.No.1528 of 2009 Mr.V. Prakash Senior Counsel for Mr. Sudalai Kannan for R.1 in W.A.No.1529 of 2009 M/s. Lakshmi Priya Associates in W.A.No.1530 of 2009. J U D G M E N T K.K.SASIDHARAN, J These Intra Court appeals at the instance of the Union of India represented by its Secretary, Ministry of Defence and the Director General of Coast Guard challenge the order dated 17 July 2009 in W.P.Nos.16123, 16924 of 1998 and 57 of 1999 setting aside the punishment of dismissal awarded to the respondents by the Commanding Officer, Coast Guard Station, Chennai and the consequential order of re-instatement with backwages. THE BACKGROUND FACTS: 2. The respondents were working as Coast Guards attached to the Coast Guard Station at Chennai. While so, the respondents were arrested on 17 July, 1998 on charges that they conspired together to send anonymous letters to the higher authorities with the object of highlighting their demands with respect to the implementation of the recommendations made by the Fifth Pay Commission, failing which, it was threatened that they would sabotage the ships and air crafts. This was followed by a charge sheet dated 11 August, 1998. The respondents in their explanation to the charge sheet denied the allegations levelled against them. Thereafter, the Commanding Officer authorised the Deputy Commandant to prepare the record of evidence pertaining to the charges levelled against the respondents. Accordingly, the said officer recorded the evidence and submitted a report to the Commanding Officer. The Commanding Officer on the basis of the record of evidence, imposed the following punishment to the respective respondents. https://hcservices.ecourts.gov.in/hcservices/ NAME NATURE OF PUNISHMENT IMPOSED R.Anand (a) Simple Imprisonment for two months (b) Dismissal from service (c) Deprivation of 1st and 2nd Good Conduct Badges P.S. Shelli Raj (a) Dismissal from service (b) Deprivation of 1st and 2nd Good Conduct Badges Harish Chandra (a) Simple Imprisonment for two months (b) Dismissal from service (c) Deprivation of 1st and 2nd Good Conduct Badges 3. The order passed by the Commanding Officer was challenged in W.P.Nos.16123, 16924 of 1998 and 57 of 1999. 4. Before the Learned Single Judge, the respondents contended that the entire proceedings were conducted in violation of the principles of natural justice besides violation of Coast Guard Act and Rules. The respondents pressed into service the following violations. "(i) The petitioners were not informed of the particulars of the charges levelled against them at the time when they were arrested as required under Rule 15(A) of the Rules. (ii) The Commanding Officer, Mr.P.P.S.Sodhi who imposed the punishment and submitted approval forms to the Approving Authority actively participated in the investigation and he actively involved himself in the interrogation of the witnesses during investigation and inquiry. Under Rule 21 of the Rules, the Commanding Officer shall not deal with any case, where he himself is a witness in the case against the accused. Since Mr.P.P.S.Sodhi was fully involved in the investigation, he was incompetent to hold the summary trial under Section 57 of the Act and therefore, the entire proceeding is violative of Rules 21(b) and 21(c). https://hcservices.ecourts.gov.in/hcservices/ (iii) The investigation into the alleged offences were not done properly. (iv) Before recording evidence, charge sheets were not furnished to them and they were not questioned as to whether they pleaded guilty or not guilty by explaining to them the nature of charges. (v) During the course of recording evidence, sufficient opportunity was not given to them for cross examination (vi) Documents were exhibited in evidence without having given copies to them and without even permitting them to look into the documents. (vii) Though under Rule, 23(5), they are entitled to examine the defence witnesses, they were not allowed to do so. (viii) The conclusion that they are guilty of the charges, has been arrived at without any acceptable evidence for the same and thus the punishments imposed on them are highly arbitrary. The evidence of the witnesses were not properly appreciated. 5. The Coast Guard Act and Rules does not contain remedy of appeal against the order passed by the Commanding Officer. Therefore, the learned Single Judge proceeded to consider the matter on merits and particularly, with reference to the relevant file. Since the concerned employees were awarded Simple Imprisonment besides the major penalty of dismissal from service, the learned Single Judge wanted the Coast Guard to produce the original records. However, the Coast Guard pleaded their inability as according to them, they have lost or rather misplaced the file during the time of shifting the Coast Guard Station. 6. The learned Single Judge adjourned the matter on several occasions so as to enable the Coast Guard to produce the file. However, the original file was not produced. This made the learned Single Judge to allow the writ petitions, as according to him even the xerox copies produced by the Coast Guard, appears to be an incomplete record and the issue cannot be decided on the basis of such incomplete records. In short, the learned Single Judge https://hcservices.ecourts.gov.in/hcservices/ allowed the writ petitions principally on the ground of non- production of records. Dis-satisfied with the said common order dated 17 July, 2009 the Coast Guard is before us. SUBMISSIONS: 7. The learned Additional Solicitor General appearing on behalf of the appellants, while admitting the loss of original file, contended that the xerox copies of the relevant records were produced before the learned Single Judge and the same should have been accepted as secondary evidence. According to the learned Additional Solicitor General, reasonable opportunity was given to the respondents to prove their innocence. The respondents were functioning as members of a Disciplined force and as such, they were not expected to come openly against the Coast Guard and therefore, the Commanding Officer was justified in awarding the maximum punishment of dismissal from service. 8. The learned Senior Counsel for the respondent in W.A.No.1529 of 2009 and the learned counsel for the other respondents contended that the Commanding Officer acted like a prosecutor and ultimately awarded the punishment himself and therefore, the order of the learned Single Judge cannot be set aside even on merits. It was contended that the respondents were illegally detained in the Coast Guard Station and other places and it was only pursuant to the action taken by their parents by filing Habeas Corpus Petitions before this Court, they were released subsequently. According to the learned Senior Counsel the report of the Fifth Pay Commission was implemented with respect to almost all Central Government departments. However no attempt was taken by the Coast Guard to give effect to the recommendation made by the Fifth Pay Commission and naturally, there was discontent among the members of the Coast Guard and the alleged anonymous letters were nothing but spontaneous reaction of the employees and the same cannot be construed to be an act of mutiny. In any case, according to the learned Senior counsel, the punishment of dismissal from service was disproportionate to the misconduct alleged against the respondents. The learned Senior Counsel further contended that Rule Nisi was issued in the year 2003 and therefore, the Coast Guard was expected to produce the records before the High Court. The writ petitions were taken up for final hearing only during July, 2009. Even after a period of six years they were not in a position to produce the records. This clearly shows that the records were suppressed with a view to avoid the scrutiny by the Court. Charges: 9. The principal charges framed against the respondents read thus: https://hcservices.ecourts.gov.in/hcservices/ Charges in respect of R. Anand "First charge Violation of Rules Section 42 of Coast Guard Act, 1978 In that he, at chennai on 16 July 98 at 1350 hours, with the object to highlight Coast Guard personnel combined grievance regarding pay and allowances, faxed an anonymous letter to Coast Guard Regional Headquarters (East), Coast Guard Regional Headquarters (West), Coast Guard Regional Headquarters (Andaman and Nicobar Islands), Naval Headquarters, New Delhi and Defence minister. Second Charge An act pre prejudicial to good order and Coast Guard Discipline Section 44 of Coast Guard Act, 1978. In that he, at date and place mentioned in the first charge, in company with Harish Chander, Uttam Navik, No.10815-Z, PS Shelly Raj Uttam Navik, No.02038-M and Manoj Kumar, Uttam Navik No.01774-M conspired to send anonymous letter to superior authorities with the object to highlight their combined grievance regarding pay and allowances." Charges in respect of P.S.Shelly Raj: "First charge An act of Prejudicial to Good order and Coast guard Discipline Section 44 of Coast Guard, 1978. In that he, at Chennai in the first week of July 98, improperly collected Rs.14,600.00 (Rupees fourteen thousand six hundred only) from Coast guard Air Station (Chennai) ship's company, which was later handed over to Harish chander, Uttam Navik No.01815-Z, with the object to highlight their combined grievance through Newspaper and anonymous letter. Second charge An Act Prejudicial to Good order and Coast guard Discipline Section 44 of Coast Guard Act, 1978. https://hcservices.ecourts.gov.in/hcservices/ In that he, at date and place mentioned in the first charge, in company with R.Anand Pradhan navik, no.01113-L, harish Chandra, Uttam Navik, No.01815-Z and Monoj Kumar, Uttam Navik No.01774-M conspired to send anonymous letters with the object to highlight their combined grievance regarding pay and allowances. Third charge Violation of Act. Section 42 of Coast guard Act, 1978 In that he, at Chennai on 13/14 July 1998 with the object to highlight Coast guard personnel combined grievance unauthorisedly communicated to the press, consequence of which, news was published in Indian Express, Chennai Edition on 18 July 1998, thereby violated the provisions of section 13(c) of Coast Guard Act, 1978." Charges against Harish Chandra "First charge An act prejudicial to good order and Coast Guard Discipline under Section 44 of Coast Guard Act 1978. I In that he, at Chennai on first week of July, 98, incited the Ship's Company of Coast Guard Air Station (Chennai), to contribute funds with the object to highlight their combined grievances regarding pay and allowances through press and by sending anonymous letter, consequences of which, he received Rs.14,600.00 (Rupees Fourteen thousand six hundred only) from PS Shelly Raj, Pradhan Navik No.02038-M of Coast Guard Air Station, (Chennai). Second Charge Violation of Act In that he, at Chennai, with the object to highlight Coast Guard Personnel grievances regarding pay and allowances, ulauthorisedly communicated to the press, consequences of which Coast Guard Headquarters letter No.PA/0172 dated 23 January 98 regarding "Redressal of grievances" Harish Chander, Uttam Navik (ME) https://hcservices.ecourts.gov.in/hcservices/ No.01815-Z was puboished in local news papers namely "Thinaboomi" Chennai edition on 03 August 98, thereby contravened the provisions of Section 13(c) of Coast Guard Act, 1978. Third charge:- An act prejudicial to good order and Coast Guard Discipline Section 44 of Coast Guard Act 1978. In that he, at Chennai, on the first week of July 98 guilty in company with R.Anand, Pradhan Navik No.01113-L, PS Shelly Raj, U/Navik No.02038-M and Manoj Kumar, Uttam Navik No.01774-M conspired to send anonymous letters with the object to highlight their combined grievance regarding pay and allowances. " Discussion: 10. The Commanding Officer Sri.P.P.S.Sodhi after initiating the action appears to have conducted the preliminary investigation and it was only on the basis of the said preliminary enquiry, further proceedings were taken against the respondents including their detention in the Coast Guard Station. There is a reference about the preliminary investigation conducted by Sri.P.P.S.Sodhi in the counter affidavit filed by Commandant Sri.V.S.R.Murthi in Writ Petition No.16924 of 1998. The records produced by the Coast Guard also give an indication that it was only the said Sri.Sodhi, who has ordered the arrest of the respondents on the ground of mutiny in Coast Guard. It is true that the evidence was recorded by another officer. However, the punishment was awarded only by the Commanding Officer, who was instrumental in commencing the proceedings. Therefore, the respondents were justified in their contention that Sri. P.P.S.Sodhi, the then Commanding Officer, Coast Guard Station, Chennai acted as the de- facto complainant, prosecutor as well as the Judge. 11. The order passed by the Commanding Officer in the case of P.S.Shelliraj (respondent in W.A.No.1529 of 2009) read thus: "PUNISHMENT APPROVAL FORM CGS Madras Dated 01 Sep, 98 CGS Madras. No.203/1-02038-M For: Proposed following punishments a) To suffer Rigorous Imprisonment for two https://hcservices.ecourts.gov.in/hcservices/ months. b) To dismiss from the service c) Deprivation of first and second Good Conduct Badges. ----------------------------------------------- Whereas PS Shelly Raj Rank Uttam Navik (ACD) No.02038 – M Good Conduct Medal : Nil Good Conduct Badges: Two Date of Birth: 27.03.71 Date of Entry into Coast Guard Service: 05.09.1989 Date of joining CGAS (Chennai) : 22.05.96 Character assessed to date: Very good Was charge for that he did: (a) "Was in the first week of Jul 98 guilty of an act prejudicial to good order and Coast Guard Discipline under Section 44 of Coast Guard Act 1978. In that he, at Chennai on first week of Jul 98, improperly collected Rs.14,600/- (Rupees fourteen thousand six hundred only) from Coast Guard Air Station (Chennai), Ship's Company, which was later handed over to Harish Chandra, Uttam Navik No.01815-Z, with the object to highlight their combined grievance through newspaper and anonymous letters to superior authorities." (b) " Was in the week of Jul 98, guilty of an act prejudicial to good order of and Coast Guard Discipline Section 44 of Coast Guard Act 1978, in that he, at the date and place mentioned in the first charge, in company with R.Anand, Pradhan Navik No.01113-L, Harish Chander Uttam Navik, No.01815-Z and Manoj Kumar Uttam Navik No.01774-M conspired to send anonymous letters to superior authorities with the object to highlight their combined grievance regarding pay and allowances." (c) "Did contravened the provisions of Section 13(c) of Coast Guard Act, 1978 hence committed an offence under Section 42 of Coast Guard Act 1978. In that he, at Chennai, with the object to highlight Coast Guard Personnel combined grievances regarding Pay and allowances, unauthorisedly communicated to the https://hcservices.ecourts.gov.in/hcservices/ press, consequences of which news was published in Indian Express, Chennai edition on 18 Jul 98." AND WHEREAS I did, on the 01 day of September, 1998 personally and publically, in the presence of the complainant and the accused investigated the matter and whereas the accused pleaded not guilty to the charges. Having heard the evidence of Dy. Comdt. K.Dikshit (0237-M) and Comdt RM Sharma (0018-P) in support of the charges as well as what the accused has to offer in his defence and the evidence of Nil whom he called on his behalf, I consider the charges to be substantiated against him and taking into consideration that this is the first offence registered against him on his Conduct Sheet, I adjudge him tobe punished as follows: a) To suffer Rigorous Imprisonment for two months. b) To dismiss from the service c) Deprivation of first and second Good Conduct Badges. Given under my hand on board CGS Chennai on the first day of September 1998. sd/ Signature and Rank of CO (PPS Sodhi) Commander Commanding Officer CGS Madras." 12. Though the learned Single Judge has allowed the writ petitions on the ground of non-production of original file to substantiate the contentions taken by the Coast Guard, we have perused the xerox copies of the documents produced by the Coast guard. 13. The order dated 1 September, 1998 on the file of the Commanding Officer clearly shows that he has not made any attempt to consider the evidence recorded by the Deputy Commandant. The Commanding Officer after extracting the background facts, abruptly concluded that the charges were proved and punishment was imposed. https://hcservices.ecourts.gov.in/hcservices/ 14. The Commanding Officer has passed a brief order without reasons on account of his personal knowledge of the matter as he was the officer who conducted the preliminary enquiry in the matter. The available materials clearly gives an impression that the Commanding Officer Sri.Sodhi actively took part in the proceedings except recording of evidence. Right to reason: 15. The Supreme Court in Goyal Enterprises v. State of Jharkhand, {(2008) 13 SCC 570, at page 571} indicated that even in respect of administrative orders reasons should be furnished. The following paragraph would make the legal position clear. "8. Even in respect of administrative orders, Lord Denning, M.R. in Breen v. Amalgamated Engg. Union5 observed (All ER p. 1154h): ‘The giving of reasons is one of the fundamentals of good administration.’ In Alexander Machinery (Dudley) Ltd. v. Crabtree6 it was observed: ‘Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.’ Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements https://hcservices.ecourts.gov.in/hcservices/ of natural justice is spelling out reasons for the order made; in other words, a speaking-out. The ‘inscrutable face of the sphinx’ is ordinarily incongruous with a judicial or quasi-judicial performance.”* 16. In Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney (2009 (4) SCC 240), the Honourable Supreme Court again underlined the necessity to furnish reasons in support of the order thus:- "The purpose of disclosure of reasons, as held by a Constitutional Bench of this Court in S.N.Mukherjee v. Union of India is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation." 17. The father of P.S.Shelliraj, respondent in Writ Appeal No.1529 of 2009 filed a Habeas Corpus Petition before this Court in H.C.P.No.1054 of 1998 for a direction to produce the body and person of P.S.Shelliraj, who has been detained by the Commanding Coast Guard, Chennai. In the said Habeas Corpus petition, Sri. P.P.S.Sodhi, the Commanding Officer, who ultimately passed the order of dismissal, filed a counter justifying the detention. The counter was filed as early as on 17 August 1998. It is a matter of record that on 11 August, 1998 that the Commanding Officer appointed the Deputy Commandant to record the evidence. Therefore, the counter affidavit justifying the action taken against the respondents was filed even before the recording of evidence by the Deputy Commander. In the counter affidavit, Commander Sri.P.P.S. Sodhi contended that few disgruntled sailors had resorted to unlawful means to highlight their demand in respect of the recommendations made by Fifth Pay Commission regarding pay and allowances of Coast Guard Personnel. They pasted threatening https://hcservices.ecourts.gov.in/hcservices/ posters at Coast Guard Stations/ships at Mumbai, Cochin, Visakhapatnam and Chennai. It was found that fax message was sent from Kavitha Xerox to the Minister for Defence with regard to non- implementation of the recommendation of Fifth Pay Commission. Enquiry conducted in the matter and particularly with regard to fax message sent through Kavitha xerox confirmed the participation of the respondents. The respondents instigated the personnel of Coast Guard Air Station (Chennai) to make a demand before the Defence Minister and for the purpose collected a sum of Rs.14,600/- to fund the unlawful activities against Coast Guard. In short, the Commanding Officer arrived at a finding that the respondents have committed an offence punishable under the Coast Guard Act and Rules. 18. Rule 21 of the Coast Guard Rules (Disciplines), 1983 reads thus: 21. Attachment to another unit:- The Commanding Officer shall not deal with any case:- (a) Where the offence with which the accused is charged is against the Commanding Officer himself; or (b) Where the Commanding Officer is himself a witness in the case against the accused; or (c) Where the Commanding Officer is otherwise (personally interested in the case) the accused shall be attached to another ship or station for the disposal of the case under the orders of the District Commander or the Regional Commander: Provided that a Commanding Officer shall not be disqualified from hearing a charge merely because the offence was committed against the property of a Coast Guard Mess or band or