K.K. Sasidharan, J.@mdashThese 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.
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. ShelliRaj (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 u/s 57 of the Act and therefore, the entire proceeding is
violative of Rules 21(b) and 21(c).
(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 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:
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.
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 u/s 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) 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 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 u/s 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 u/s 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 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 to be 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.
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 Vs. State of Jharkhand and Another, , 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. Union 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 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 Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others, , 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 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 institution of which the Commanding Officer is a member or trustee or because the offence is one of
disobedience of such Commanding Officer''s orders.
19. Rule 21 was introduced with a view to avoid the element of arbitrariness. The misconduct in question was committed during the
commandership of Sri. P.P.S. Sodhi. He was instrumental in taking up this matter. Therefore he should be treated as a witness with respect to the
charges framed against the Respondents. In such circumstances, the said Officer should have recused himself from the disciplinary proceedings.
The proceedings initiated by the said Officer resulted in the punishment of Respondents. The disciplinary proceedings were conducted in total
violation of Rule 21(b) of the Coast Guard Rules (Disciplines), 1983.
20. It is, therefore, a matter of record that the very same officer, who conducted the preliminary enquiry had ultimately passed the order of
dismissal besides imposing jail sentence for two months in the case of R. Anand and Harish Chandra.
21. The Supreme Court in State of U.P. v. Saroj Kumar Sinha 2010 (2) Scale 42 indicated that a Government employee facing departmental
enquiry is entitled to a reasonable opportunity to defend himself and the enquiry proceedings should be conducted unbiased. The Supreme Court
said:
28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings
also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be
observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a
government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the
case of Shaughnessy v. United States, (1953) 345 US 206 (Jackson J), a judge of the United States Supreme Court has said procedural fairness
and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.
22. It is true that the Respondents were members of a disciplined force. They were expected to maintain high degree of discipline in a force like
Coast Guard. However, it cannot be said that they are not entitled for a reasonable opportunity and they should be deprived of a fair enquiry. The
disciplinary authority should not commence the enquriy with an element of bias. The enquiry should have been initiated with an open mind and
depending upon the evidence adduced necessary action could have been taken against the delinquents.
23. However, in the case on hand, the entire proceedings right from conducting the preliminary enquiry, filing Counter in the Habeas Corpus
Petition and ultimately passing the order of dismissal, were all done by the very same officer. Therefore, the Respondents were fully justified in their
contention that they were denied of a fair hearing and the recording of evidence conducted by the Deputy Commander was a make-belief affair.
24. The Coast Guard was well aware that proceedings were pending before the High Court with respect to the order of dismissal passed against
the Respondents. In fact Habeas Corpus Petitions were also filed before this Court on earlier occasion. The writ petitions were admitted in the
year 2003 and Rule Nisi was issued directing the Appellants to produce the records. For the reasons best known to them, the original records
were not produced. Finally when the learned Single Judge directed them to produce the records they have given an explanation that during the
course of shifting their office, they lost the file. There was nothing on record to indicate as to when the file was lost and what prevented them from
producing the file immediately after receiving Rule Nisi by them. Non production of the file has to be considered in the light of the challenge made
to the disciplinary proceedings at the instance of the Respondents.
25. Therefore on a careful consideration of the entire factual matrix, we are of the view that the Commanding Officer, Coast Guard Station failed
to conduct the enquriy as contemplated under the Coast Guard Rules (Disciplines), 1983 and as such, the learned Single Judge was justified in
quashing the order of dismissal, though on the ground of non-production of file. Even otherwise, on a careful perusal of the available records, we
are convinced that the alleged attempt was only to redress their grievances with respect to the non-implementation of the recommendations made
by the Fifth Pay Commission and it was not a mutiny.
26. The documents relied on by the Coast Guard themselves contains statements with regard to the implementation of pay scales by the other
departments. There was No. finding with regard to mutiny and the principal charge relates to despatch of anonymous letters and the evidence also
proceeds on the basis that the Respondents were instrumental in sending fax message to the Defence Minister.
27. We are, therefore, of the considered view that the available materials clearly give an indication that the Commanding Officer was acting as the
complainant, prosecutor as well as the Judge and as such, a fair enquiry was denied to the Respondents. The Commanding Officer appears to
have entertained a clear bias against the Respondents and the same is evident from the records (xerox copies) produced before us.
28. The secondary issue is as to whether we should remit the matter to the Coast Guard for fresh consideration.
29. The misconduct in question relates to the year 1998. According to the Coast Guard, none of the original records are available with them. In the
said circumstances, there is No. point in remitting the matter to the Coast Guard for considering the issue afresh. We are, therefore, of the opinion
that relief should be moulded in this case.
DISPOSITION:
30. Accordingly, we confirm the order passed by the learned Single Judge with respect to setting aside the order of dismissal from service.
31. It is a matter of record that the Respondents have not worked for the period in question. Therefore they are not entitled to the salary for the
period up to 17 July, 2009, the date of order passed by the learned Single Judge directing re-instatement. In short, the Respondents are entitled to
backwages with effect from 18 July, 2009. They should be given all the other benefits including continuity of service and seniority, consequent to
the order setting aside the punishment.
32. The original respodent in W.A. No. 1530 of 2009 died during the pendency of the proceedings and as such, his legal representatives are
shown as Respondents 1 to 3. Therefore, the third Appellant (The Commanding Officer, Coast Guard Station, Madras) is directed to calculate the
benefits due to the deceased, consequent to the order setting aside the punishment of dismissal from service and the consequential order of re-
instatement and pay the amount to the legal representatives as expeditiously as possible and in any case within a period of three months from the
date of receipt or production of a copy of this judgment.
33. The writ appeals are allowed in part. No. costs.
