IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.04.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOS.34489 , 35875 and 36673 OF 2003, 13428 and 21552 of 2004, 36735 OF 2005, 19402 OF 2006 and W.P.M.P.NOS.44545 of 2003, 15722 and 26070 of 2004, 39349 of 2005 and M.P.No.2 of 2006 S.K.Dey .. Petitioner in all the petitions Vs. 1.Union of India rep. By its Secretary, Ministry of Defence, Raksha Bhawan, New Delhi-110 001. 2.The Director General, Coast Guard Head Quarters, National Stadium Complex, New Delhi-110 001. 3.Vice Admiral O.P.Bansal Commandar-in-Chief, Eastern Naval Command Naval Base, Vishakapattanam. 4.S.C.Thyagi, Deputy Inspector General Coast Guard Region, Port Blair, Andaman & Nicobar Islands. 5.Deputy Inspector General & Commanding Officer, Coast Guard Station, Chennai Fort St. George, Chennai-600 009. ..Respondents in W.P.No.34489 of 2003 https://hcservices.ecourts.gov.in/hcservices/ 1.Union of India rep. By its Secretary, Ministry of Defence, Raksha Bhawan, New Delhi-110 001. 2.The Director General, Coast Guard Head Quarters, National Stadium Complex, New Delhi-110 001. 3.Vice Admiral O.P.Bansal Commandar-in-Chief, Eastern Naval Command Naval Base, Vishakapattanam. 4.Deputy Inspector General & Commanding Officer, Coast Guard Station, Chennai Fort St. George, Chennai-600 009. .. Respondents in W.P.No.35875 of 2003 1.Government of India rep. By Secretary to Government, Ministry of Defence, New Delhi-110 001. 2.The Director General, Coast Guard, National Stadium Complex, New Delhi-110 001. 3.T.S.Balasubramanian, D.I.G, Commanding Officer, C.G.S. Chennai (Acting) Fort St. George, Chennai-600 009. .. Respondents in W.P.No.36673 of 2003 1.The Director General, Coast Guard Head Quarters, National Stadium Complex, New Delhi-110 001. 2.The Director (Personnel), Coast Guard Head quarters, National Stadium Complex, New Delhi-110 001. https://hcservices.ecourts.gov.in/hcservices/ 3.K.Balasubramaniam, Deputy Inspector General Coast Guard Headquarters, National Stadium Complex, New Delhi-110 001. .. Respondents in W.P.No.13428 of 2004 1.The Director General, Coast Guard, Head Quarters, National Stadium Complex, New Delhi-110 001. 2.Suresh Mehts, Vice Admiral (Navy) Director General, Coast Guard Head Quarters, National Stadium Complex, New Delhi-110 001. 3.O.P.Bansal, Vice Admiral, Commandar-in-Chief, Eastern Naval Command Naval Base, Vishakapattanam. .. Respondents in W.P.No.21552 of 2004 1.Union of India rep. By its Secretary, Ministry of Defence, New Delhi-110 001. 2.The Director General, Coast Guard Head Quarters, National Stadium Complex, New Delhi-110 001. 3.S.P.S.Basra, Inspector General Coast Guard, COMCG (A&N) Care Coast Guard Headquarters National Stadium Complex, New Delhi 110 001. 4.A.Rajasekhar, Inspector General Coast Guard, COMCG(w) Care Coast Guard Headquarters National Stadium Complex, New Delhi 110 001. https://hcservices.ecourts.gov.in/hcservices/ 5.R.Singh, Inspector General Coast Guard, COMCG(E) Care Coast Guard Headquarters National Stadium Complex, New Delhi 110 001. .. Respondents in W.P.No.36735 of 2005 1.Union of India rep. By its Secretary, Ministry of Defence, New Delhi-110 001. 2.The Director General, Coast Guard Head Quarters, National Stadium Complex, New Delhi-110 001. 3.Inspector General Coast Guard, COMCG(E) Care Coast Guard Headquarters National Stadium Complex, New Delhi-110 001. 4.The Dy. Commandant, Staff Officer for Commanding Officer, Coast Guard DHQ-5(TN) Fort St. George, Chennai-600 009. 5.The Principal Commander of Defence Accounts(Navy) represented by the Accounts Officer, Coast Guard Cell, No.1, Co-operage Road, Mumbai-400 039. .. Respondents in W.P.No.19402 of 2006 W.P.No.34489 of 2003 : This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus, calling for the records of the respondents in connection with the proceedings constituting the Board of Enquiry Ref.No.DG/SECTT/0110, dated 18.07.2003 and the consequent order of attachment Ref.No.CGS(D) 236 dated 25.09.2003 and the consequent tentative charge sheet Ref.No.AD/203/0156-D/1, dated 22.10.2003 and to quash the said proceedings and to direct the respondents herein to convene Promotion Board to consider the petitioner for promotion as Inspector General with effect from October, 2000. W.P.No.35875 of 2003 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari, calling for the records of the impugned proceedings of the fourth respondent bearing Ref.No.A.D./203/0156-D/1, dated 25.11.2003 and to quash the same. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.36673 of 2003 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus, directing the second respondent herein to forward the petitioner's representation, dated 4.5.2002 to the first respondent as also any additional representation the petitioner may make and to direct the first respondent to consider the posting of the petitioner as Regional Commander (East) in the place of 3rd respondent or to the post of Commanding Officer (C.G.A.S., Chennai). W.P.No.13428 of 2004 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration, declaring the constitution of the board of officers for investigation in reference to CGHQ letter No.1191 of 29.4.2004 to be illegal and malafide and ultravires. W.P.No.21552 of 2004 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari calling for the records of the first respondent in connection with show cause memo bearing No.OF/1191 dated 2nd July 2004 and to quash the same. W.P.No.36735 of 2005 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus, calling for the records of the proceedings No.124 CG DTG 281730/October, dated 28.10.2005 of the 2nd respondent herein and to quash the same and further to direct the respondents to promote the petitioner herein to the post of Inspector General as per the Coast Guard (Seniority and Promotion) Rules, 1986 as of October, 2000. W.P.No.19402 of 2006 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari calling for the records of the proceedings in relating to the impugned order bearing reference number CGHQ SIGNAL DTG 161835/JUN 06 by way GEN FORM in the mode of Telegram dated 16.06.2006 issued by the 4th respondent, ceasing the petitioner from flying cadre and to quash the same. For Petitioner : MR.V.Prakash, SC in all WPs for Mr.S.Balathandapani For Respondents : Mr.B.Santhakumar, SCGSC in all WPs - - - - COMMON ORDER Heard the arguments of Mr.V.Prakash, the learned Senior Counsel assisted by Mr.S.Balathandapani, the learned counsel for the petitioner and Mr.B.Shanthakumar, the learned Senior Central Government Standing Counsel and perused the records. https://hcservices.ecourts.gov.in/hcservices/ 2. These seven writ petitions are filed by the same petitioner, who was working as D.I.G., Coast Guard. In W.P.No.34489 of 2003, the writ petition is directed against the constitution of Board of Inquiry (BOI) vide order dated 18.7.2003, the order of attachment, dated 25.09.2003 as well as the tentative Chage memo dated 22.10.2003 and for a consequential direction to convene a promotion board to consider the case of the petitioner for promotion to the post of Inspector of General with effect from October, 2000. The said writ petition was admitted on 25.11.2003. Pending the writ petition, this court, by an order, dated 25.11.2003 granted an interim stay, staying the attachment order dated 25.09.2003. The petitioner also got the stay of the tentative charge memo, dated 22.10.2003. On behalf of the respondents, a counter affidavit together with a vacate stay petition in WVMP Nos.48 and 49 of 2004 were filed. 3. When those matters, came up along with two other writ petitions WP Nos.35875 and 36673 of 2003, this court made the stay absolute and directed the main matters to be listed for final hearing. In the meanwhile, the respondents 2, 3, 4 and 5 have filed counter-affidavits in that writ petition. The petitioner has also filed a rejoinder affidavit in these matters. 4. Subsequently, the petitioner filed W.P.No.35875 of 2003, seeking to challenge the order, dated 25.11.2003. This court admitted the writ petition 08.12.2003 and granted an interim-stay of the said order. Subsequently, a vacate stay petition was filed in WVMP No.171 of 2004. But, however, by a common order, dated 15.6.2004, the interim stay was made absolute. 5. The Writ Petition in W.P.No.36673 of 2003 is filed, seeking for a direction to the second respondent D.G. Coast Guard to forward his representation to the first respondent, Government of India and to direct the first respondent to consider the posting of the petitioner as the Regional Commander (East) in the place of the third respondent in that writ petition or in the alternative to post him as the Commanding Officer CGAS, Chennai. That writ petition was admitted on 16.12.2003. On behalf of the third respondent, a counter affidavit, dated 03.02.2004 was filed. The petitioner has filed a common rejoinder. 6. In W.P.No.13428 of 2004, the petitioner sought for a declaration, declaring the constitution of board of officers for investigation in reference to the CGHQ letter No.1191, dated 29.04.2004 as illegal and ultravires. That writ petition was admitted and an interim injunction was granted on 05.05.2004. A counter affidavit by respondents 2 and 3 had been filed. 7. In W.P.No.21552 of 2004, the petitioner sought to quash the show cause memo, bearing OF/1191, dated 2.7.2004. The writ petition was admitted on 26.7.2004 and an interim stay was granted. A counter affidavit was filed on behalf of all the respondents. https://hcservices.ecourts.gov.in/hcservices/ 8. In W.P.No.36735 of 2005, the petitioner sought for quashing the proceedings No.124/ CGDTG, dated 28.10.2005 issued by the D.G.Coast Guard and for a consequential direction to promote the petitioner as I.G., as per the rules. The said writ petition was admitted on 16.11.2005. Pending the writ petition, this court directed one post to be kept vacant, if it is available or the next vacancy that may arise in the immediate future. A counter affidavit has also been filed by the respondents. 9. In W.P.No.19402 of 2006, the prayer of the petitioner is to quash the order sent in the form of telegram dated 16.6.2006 issued by the fifth respondent, ceasing the petitioner from Flying Cadre. Notice of motion was ordered on 26.6.2006. Pending the notice, an interim stay of reduction in pay and allowances and recovery of salary of the petitioner for four weeks was ordered. Subsequently, the same was not extended. On behalf of the respondents, a counter affidavit has been filed. 10. Since there was an insistence for an early hearing of the writ petitions, the matters were grouped together and posted for hearing finally on 03.07.2008. Subsequently, on behalf of the petitioner, a list of authorities were circulated on 21.7.2008. The matter was further posted on 19.01.2009 for further clarification and again reserved for orders. 11. The brief facts leading to the filing of various cases are as follows: The petitioner joined Indian Navy as Sub Lieutenant on 01.01.1974. Subsequently, on 23.4.1986, he was absorbed as a Deputy Commander in the Coast Guard constituted under Coast Guard Act, 1978, Central Act, 30 of 1978. He was promoted to the rank of Commandant on 27.05.1988. Subsequently, on 07.10.1996, he was promoted as D.I.G. The respondent Union of India approved three posts of Inspector General vacancies as Regional Commander for upgradation from D.I.G. to I.G. On 24.09.2001, the petitioner was already a Regional Commander (A&N Region) was promoted as I.G. Officiating. On 01.10.2001, the third respondent (Vice Admiral O.P. Bansal) (Naval Officer on deputation) was made as Director General of Coast Guard. On 04.05.2002, the petitioner sent a representation for convening a departmental promotional committee. The petitioner's request was rejected by the D.I.G. (Administration) K.Balasubramaniam. When the petitioner's case was not considered, I.G. Paleri was confirmed as a regular promottee on 14.06.2004. On 13.1.2003, Vice Admiral S.Mehta, another Naval Officer became D.G. Coast Guard and O.P.Bansal was transferred to Andaman Command. 12. During July, 2003, the petitioner was absent in his station at Andaman. It is at that stage, certain complaints were received against the petitioner by fourth respondent S.C.Thyagi, who was the D.I.G. at that time. The complaint was received on 16.7.2003 and the said D.I.G. visited the office of R-3 O.P.Bansal and they conspired together. On 18.7.2003, the D.I.G. S.C.Thyagi sent complaints, dated 16.7.2003 and 18.7.2003 to the Director https://hcservices.ecourts.gov.in/hcservices/ General of Coast Guard. 13. On 18.7.2003 itself, a Board of Inquiry was convened by the D.G. Coast Guard to investigate into the alleged financial irregularities committed by the petitioner in the Andaman Nicobar Region connected with the improprieties in offloading of jobs to local trade and expenditure from public and non public funds including misappropriation and misuse of items purchased from these funds. It was the grievance of the petitioner, the convening of Board of Inquiry by D.G. Coast Guard without the complaint examined by the concerned Directorate or Headquarters. The B.O.I. (Board of Inquiry) was convened in haste and the same was alleged to be in violation of Rule 19 of the Coast Guard (General) Rules. On 12.08.2003, the B.O.I. proceedings were forwarded to the D.G. CG Head quarters by its Presiding Officer. On 14.08.2003, the proceedings were received at the Headquarters at New Delhi and was examined. In the meanwhile, the petitioner sent a representation, dated 15.09.2003 to the Honourable Defence Minister and complained about the procedure adopted by the respondents. 14. On 25.09.2003, the second respondent decided to initiate a disciplinary proceedings against the petitioner and he was attached to the Coast Guard station at Chennai, vide letter dated 25.09.2003. On 29.09.2003, the petitioner reported before the 5th respondent D.I.G. Coast Guard at Chennai. Therefore, the attachment order was obeyed by the petitioner. On 20.10.2003, the hearing of charges was made by the 5th respondent in terms of Rule 20 of the Coast Guard (Disciplinary) Rules, 1983. On 22.10.2003, tentative charges were framed against the petitioner and the recording of evidence was fixed on 30.10.2003. In the meanwhile, on 30.10.2003, the petitioner reported sick and he did not appear in the enquiry on the day. He was also admitted to the military hospital at Chennai on 03.11.2003. Since he could not attend the enquiry, he was informed that fresh dates will be intimated for recording of evidence. 15. On 13.11.2003, the C.G. Head Quarters sent a letter to the 5th respondent to include a 10th charge regarding misappropriation of boat in the ongoing of recording of evidence. On 15.11.2003, the petitioner was discharged from the hospital and the recording of evidence was fixed on 25.11.2003. On that day, the petitioner filed W.P.No.34489 of 2003 and obtained an interim stay of further proceedings pursuant to tentative charges and staying of order of attachment. On the same day, the 5th respondent framed the 10th charge and issued notice for recording of further evidence on the additional charge, fixing the date as 27.11.2003. 16. The petitioner filed W.P.No.35875 of 2003 against the inclusion of the 10th charge framed by the respondents and that writ petition was admitted on 08.12.2003 and an interim stay was also granted against the 10th charge. The petitioner also filed W.P.No.36673 of 2003 on 11.12.2003 to consider his case for being posted as Regional Commander Coast Guard (East) and an interim injunction from filling up post of Regional Commander (East) from https://hcservices.ecourts.gov.in/hcservices/ drawing personnel from the Navy. But however, on 19.12.2003, one Commando Chitinivis was posted as the Regional Commander CG East. 17. It is at this juncture, the petitioner filed W.P.No.36735 of 2005 on 16.11.2005, questioning the order dated 28.10.2005, promoting three officers as Commanders of A&N Region, West Region and East Region. This court, by an order, dated 13.03.2006 passed the following order: "Even though the prayer in the petition is for an injunction restraining the respondents 1 & 2 from filling up the post of Inspector General the other persons selected were already appointed and granting injunction at this stage is not proper. Learned Counsel for the petitioner requested to keep one post vacant if the posts are in existence. Learned senior counsel also pointed out that in WPMP 33146 of 2004 in WP 27248 of 2004 by order dated 24.9.2004, this court ordered to keep one post vacant. Following the said order, there will be a direction to keep one post vacant if the post is available or in the vacancy that will arise in the immediate future." 18. Thereafter, the petitioner filed W.P.No.13428 of 2004, declaring the constitution of board of officers for investigation by the order of CGHQ, dated 29.04.2004, as illegal and had also obtained an interim injunction. The petitioner also filed W.P.No.21552 of 2004, challenging the show cause memo, dated 2.7.2004, wherein, additional list of charges was given. In W.P.No.19402 of 2006, he is challenging to the telegraphic order, dated 16.6.2006, by which he was removed from Flying Cadre with effect from 19.11.2002 in view of the fact that he was not holding valid Aviation Medical category and therefore, he will cease to draw flying pay with effect from 19.11.2002. 19. The last case, namely W.P.No.19402 of 2006 is taken up as first for disposal. By the said order, the petitioner will not only lose a sum of Rs.5250/- p.m., but also the alleged wrongful sum of Rs.2,31,000/- paid already is likely to be recovered from him. The petitioner had stated that he was holding the medical certificate issued by the authorized medical officer on 21.04.2006. In any event, he had stated that the recovery has been made without notice to him and it is opposed to the principles of natural justice. In the counter affidavit, dated 28.08.2006, it is stated that the petitioner had not exhausted the statutory departmental remedies available to him under the Chapter VI of the Coast Guard (General) Rules, 1986. However, in paragraph No.14(b) of the counter affidavit, it has been averred as follows: "... Bur for the improperly drawn flying pay for the past years Respondent No.5 needs to recover the same. Thus, there is no violation of Article 14 or any other the provisions of the Constitution as alleged by the https://hcservices.ecourts.gov.in/hcservices/ petitioner. There is prima facie documentary evidence which support the case of Respondents and justify his removal from Aviation cadre on medical grounds since not being in the flying Medical Category for a prolonged duration." 20. But, the Supreme Court in Bhagwan Shukla Vs. Union of India and others reported in 1994 (6) SCC 154, has held that even in a case of wrong fixation of pay, any recovery made as it involved civil consequences, such recoveries must be preceded by a notice. The relevant passage found in para 3 of the said judgment may be extracted below: "3.We have heard learned counsel for the parties. That the petitioner’s basic pay had been fixed since 1970 at Rs.190 p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs.181 p.m. from Rs.190 p.m. in 1991 retrospectively w.e.f. 18- 12-1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the (sic employee) concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25-7- 1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17-9-1993 as well as the order (memorandum) impugned before the Tribunal dated 25-7-1991 reducing the basic pay of the appellant from Rs.190 to Rs.181 w.e.f. 18-12- 1970." (Emphasis supplied) 21. In the present case, admittedly, no such notice was given to the petitioner. Hence the writ petition deserves to be allowed. Accordingly, W.P.No.19402 of 2006 will stand allowed. The miscellaneous petition in MP No.2 of 2006 will stand closed. However, there will be no order as to costs. This will not prevent the respondents from conducting a proper enquiry before ordering withdrawal of flying allowance and recovery of alleged excess payment. https://hcservices.ecourts.gov.in/hcservices/ 22. In so far as the promotion of the petitioner, for which grievance is made in W.P.No.36673 of 2003 and W.P.No.36735 of 2005 is concerned, the petitioner seeks for placing him to be posted as Regional Commander (East) in the place of the third respondent P.S.Balasubramanian. In W.P.No.36735 of 2005, the petitioner questioned the proceedings of the D.G. Coast Guards, dated 28.10.2005 promoting three other persons namely R-3 to R-5 as Commanders of the respective Regions. Though the petitioner contended that the Commander-in-Chief of CG was drawn for the Navy and it has become the practice to fill up all the main posts in the CG with deputationists for the Navy and it was malafide on their part not to give promotion to the petitioner, yet such a contention is not legally valid and this court is not inclined to go into such wide allegations. In this context, in the counter affidavit, dated 11.03.2004 in W.P.No.36673 of 2003, it has been averred as follows: "His detailed representation dated 15.09.2003 containing all the main issues being put forward before this Hon'ble Court in his affidavits has been recently disposed of by the Central Government under a speaking order dated 25.02.2004 and nothing survives. " 23. A copy of the petitioner's representation dated 15.09.2003 and the reply sent by the Ministry dated 25.02.2004 has been enclosed in an additional typed set dated 2.7.2008 by the respondents. Subsequently, the petitioner sent a further representation, dated 3.3.2004, which has been replied by the Government of India, Ministry of Defence, vide their order dated 17.3.2004. The said reply reads as follows: "Whereas, DIG SK Dey (0156-D) has submitted a representation dated 3.3.2004 addressed to the Defence Secretary, Ministry of Defence stating, inter-alia, that some of the points raised in his representation dated 15.9.2003 have not been considered properly and that he has not received the final orders dated 25.2.2004 disposing of his ROG, directly from the office of Defence Secretary nor has any official communication annexed to the orders. And whereas, the points raised by the officer in his representation dated 3.3.2004 have been considered and have been found to be devoid of merit because all the points raised in his earlier representation dated 15.9.2003 were duly examined and were rejected by the Competent Authority. As regard his another point that he did not get the MOD's order dated 25.2.2004 disposing of his representation dated 15.9.2003 directly from the Defence Secretary's office, it is stated that the final orders issued by MOD on the representation submitted by the aggrieved officers' are served on them through the normal service channel and not directly by the MOD. Now, Therefore, the representation dated 3.3.2004 https://hcservices.ecourts.gov.in/hcservices/ submitted by DIG Dey is rejected." 24. Therefore, the W.P.No.36673 of 2003 deserves to be dismissed as the petitioner had not challenged the final orders passed by the Government of India on the statutory representation made under Rule 32 of the Coast Guard (General) Rules, 1986 and accordingly dismissed. Accordingly, WPMP.44545 of 2003 will stand dismissed. 25. But, in so far as W.P.No.36735 of 2005 is concerned, in the counter affidavit, dated 16.2.2006 filed on behalf of the respondent, in paragraph 10(c) and 11, it has been averred as follows: "10(c) ... the petitioner has been duly considered by the Promotion Board convened in Aug 2005 without taking cognizance of the pending disciplinary action against him. In the event he had come within the number of vacancies which were three in this case, a suitable appointment would have been kept unfilled to cater for petitioner's promotion after his exoneration from the charges under examination through the disciplinary action. It is submitted that equal opportunity was accorded to the petitioner and his right has been honoured in the matter of his consideration for promotion to the rank of Inspector General. 11. ...The fourth post presently held by Inspector