Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 1.06.2012
+ W.P.(C) No.1681/1996
Sh.Raj Kumar M.E.-I …Petitioner
Versus
Union of India & Anr. …Respondents
Advocates who appeared in this case:
For the Petitioner : Mr.D.J.Singh & Ms.Gyan Mitra, Advocates
For Respondent : Mr.Himanshu Bajaj, Advocate
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
ANIL KUMAR, J.
1. The petitioner has sought in the present writ petition records of
the Summary Court Proceedings conducted by the Commanding Officer
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on 16 September, 1995. He has also sought that the punishment
imposed on the petitioner of demotion to the first rank be quashed and
he be restored to his original rank with all consequential benefits such
as payment of entire difference of salary, emoluments, etc. and to
restore his rank to the other time scale promotion which the petitioner
would have earned in the absence of the Court of Inquiry being initiated
against him. The petitioner has also claimed all the salaries of his
W.P(C) No.1681/1996 Page 1 of 34
eligible rank and emolument be paid to him in the facts and
circumstances.
2. Brief relevant facts to comprehend the controversies are that the
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petitioner joined the Navy on 10 July, 1981 as a Metric Entry Recruit
(MER). He was posted on various ships on various dates. For an
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incident that occurred on 29 October, 1994, a signal dated 2 August,
1995 was received from INS Vikrant at Calcutta for sending the
petitioner for Court Martial or trial by the Commanding Officer at
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Bombay for the trial commencing on 6 August, 1995.
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3. The petitioner disclosed that on 2 August, 1995 another signal
was received from FOC-in-C (West) to FOC-in-C (East) for providing the
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petitioner for summary trial. Another signal was received on 4 August,
1995 from FOC-in-C (East) for requiring the presence of the petitioner
at Bombay at INS Vikrant.
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4. The petitioner stated that he reached Bombay on 5 August,
1995 and was sent to INS Vikrant for appearing in the Court Martial.
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On 7 August, 1995, the petitioner was present for the court martial
proceeding in the evening and he was, thereafter, produced before the
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Commanding Officer, Commander Lalit Kapoor on 8 August, 1995.
According to him, the charge sheet was already typed and ready and he
was asked by the Officiating Commander, Sh. Lalit Kapoor, whether the
W.P(C) No.1681/1996 Page 2 of 34
petitioner accepted the charges or denied the same, though the copy of
the charge sheet was not given to him.
5. The petitioner asserted that he was orally explained the charges
against him imputing allegations of negligence on duty and thereafter
he was asked to make a written statement. The petitioner averred that
the written statement was recorded in English whereby the petitioner
had categorically stated that he had performed the duty under the
supervision and guidance of his senior officer, Duty Chief Mr. S. Raju
POME for the wash through of the A-I boiler along with Mr. B.A.
Kumar- LME, Mr. P.K. Dey-LME and Mr. M. Baig-ME-II. He stated that
Lieutenant Panicker was also present and that the petitioner had
checked the steam pressure in the boiler by pressure gauge and found
that the pressure was nil. He found that the air locks were open and he
had told Mr. B.A. Kumar, LME, to open the run down valves of both the
water drums. Then the petitioner personally checked the left side water
drum‟s run down valve, which was fully open and the right hand side
valve rod gearing was disconnected. The petitioner revealed that he told
Mr. B.A. Kumar, LME to bring the spanner while he opened the run
down valve and when the spanner was brought, he opened the valve
after which he came in front of the steam drum and found that there
was no water in it. At 0130 hours in the presence of Lt. Panickar and
Mr. N. Singh, MCME-II, the petitioner and Mr. P.K. Dey, LME, opened
the steam drum and brought another hose. The petitioner disclosed
W.P(C) No.1681/1996 Page 3 of 34
that he had sent Mr. P.K. Dey, LME, to wake SR Gole ME-I because he
was in charge and he did not come with the petitioner and others. It
was further revealed by the petitioner that at about 0200 hours he
along with Mr. Baig ME-II went down to open the left side water drum
door of the boiler in the presence of Lt. Panickar and he found that
there was no water coming from the run down valve, and therefore, he
along with Mr. M. Baig ME-II started opening the water drum door. Mr.
M. Baig, ME-II was holding the spanner while the petitioner was
hammering the spanner for loosening the bolts of the water drum door.
Mr. M. Baig, ME-II, gave the petitioner the dog shoe of water drum door
to keep outside of casing and the petitioner kept the second dog shoe
outside and he asked Mr. M. Baig to hold the stud of the drum tightly.
6. The petitioner contended that he suddenly heard the sound of
crying and the sound of someone falling behind the door inside the
water drum and he tried to take Mr. Baig out from the air casing, but
he could not do so because the hot water had fallen on the hands of the
petitioner as well and he had sustained burn injuries. He, therefore,
asked Mr. Baig to come out from the other door, and when he came out,
then the petitioner, Lt. Panickar, Mr. P.K. Dey poured cold water on his
body till medical assistance was provided. Thereafter, Mr. Baig was
taken to the hospital.
W.P(C) No.1681/1996 Page 4 of 34
7. The petitioner asserted that he was not informed by the
Commanding Officer of any inquiry after the incident till he came to
know about the charge sheet which was orally communicated to him
when he was called by the Officiating Commanding Officer, Commander
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Sh.Lalit Kapoor, on 8 August, 1995. The petitioner contended that his
statement was not recorded in the summary trial, nor was he asked to
opt to be tried either by summary trial or court martial and thereafter
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the summary trial was conducted on 9 August, 1995.
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8. After conducting the summary trial on 9 August, 1995, the
petitioner was awarded the punishment of reduction in rank to
Engineering Mechanic First Class (No.4), deprivation of third, second
and first good conduct badges (No. 9) and stoppage of leave for a period
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of sixty days (No. 12) by punishment warrant form No.6/95 dated 16
September, 1995. The petitioner has asserted that thereafter he was
transferred to INS Netaji Subhash/MTU (Cal) and on the completion of
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his Ty. duties, he was awarded sixty days No.12 punishment w.e.f. 16
September, 1995. The petitioner contended that the punishment
awarded to him not only caused monetary loss but demotion by two
ranks and he was relegated back to his service of August, 1982,
because of which he was deprived of 13 years of credited service.
9. The petitioner challenged the punishment imposed on him on the
ground that no Court of Inquiry was instituted in his case, which is the
W.P(C) No.1681/1996 Page 5 of 34
first stage of investigation. On the date of the incident, the statements
of the other witnesses were not recorded in the presence of the
petitioner, nor was he allowed to cross-examine the witness at any time
subsequently. The petitioner contended that he had carried out the
lawful order of the superior officer present there, namely Lt. Panickar,
who was the officer-in-charge along with two senior sailors POME- S.
Raju who was the Duty Chief M.E. and Mr. N. Singh MCME-II (Master
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Chief Engineering Mechanic-II Class). He contended that Mr. M. Baig
got burnt on account of a lawful command obeyed by him which was
given by the superior officer. The petitioner also contended that all the
superior officers who were actually responsible for the incident were let
off with warning alone, whereas the petitioner had been given the
strongest punishment which destroyed his entire creditable service of
over 13 years.
10. The petitioner also contended that after the Court of Inquiry,
summary of evidence was to be recorded before deciding whether the
petitioner is to be tried by the court martial or summary trial by the
Commanding Officer.
11. According to the petitioner, the procedure as contemplated under
the Army Act or the Navy Act was not followed and he was instead
directly sent for trial by the Commanding Officer. The petitioner has
challenged the punishment imposed upon him also on the ground that
W.P(C) No.1681/1996 Page 6 of 34
it was for the Commanding Officer to explain the case to the petitioner
and after satisfying himself that the petitioner has understood the
implications, the Commanding Officer then had to decide as to whether
the petitioner was to be tried by the court martial or summary trial by
the Commanding Officer.
12. Relying on AIR 1982 SC 35 , the petitioner contended that the
Commanding Officer is not to take the case in a informal way and has
to decide in accordance with the provisions of the Act regarding the
mode of the trial. The petitioner alleged that he was the junior most
officer and no legal trial worth its name had taken place before
punishing him.
13. The petitioner also divulged that he had made a statutory
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representation on 8 November, 1995 to the Chief of Naval Staff and
requested the concerned authorities to forward the same. However, the
authorities refused to do so, on the ground that the representation
made by the petitioner cannot be forwarded unless approval is obtained
from the legal department. The petitioner, therefore, sent the
representation by registered post. The petitioner contended that he did
not receive any reply to his representation, and therefore, he even sent
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a reminder dated 15 December, 1995. The petitioner disclosed that
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thereafter on 4 January, 1996, he received a letter from the Chief of
Naval Staff informing him that his statutory representation has been
W.P(C) No.1681/1996 Page 7 of 34
forwarded to the Flag Officer and Commander in Chief, Eastern Naval
Company, Vishakapatnam and he was also advised to correspond
directly with him.
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14. The petitioner averred that on 22 January, 1996 he was again
advised by respondent No.2 to send his reminder to the Flag Officer
Commanding in Chief, Eastern Naval Company, Vishakpatnam seeking
the quashing of the punishment order and the restoration of his
emoluments and consequential monetary benefits. According to the
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petitioner, his reminder dated 22 January, 1996 had not been acted
upon, nor replied to by the respondents. The petitioner, therefore, filed
the present writ petition contending that his tenure on the demoted
rank is finishing in the year 1997, and in the circumstances, he does
not have any efficacious remedy available to him and thus he had no
other option but to file the above noted writ petition on the grounds
enumerated hereinabove.
15. The writ petition filed by the petitioner came up for hearing on
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30 April, 1996, and thereafter the matter was adjourned from time to
time at the instance of the learned counsel for the respondents who
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wanted to take instructions. This Court on 13 January, 1997 imposed
a cost of Rs.2,000/- on the respondents and granted them one more
opportunity to file the reply to the show cause notice. It was also held
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that the copy of the order dated 13 January, 1997 be sent to the Chief
W.P(C) No.1681/1996 Page 8 of 34
of Naval Staff who was expected to give appropriate instructions to the
legal department in order to avoid the delay. Subsequently, the counter
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affidavit was filed on behalf of the respondents dated 17 February,
1997. Though the petitioner has contended that the cost of Rs.2,000/-
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awarded by order dated 13 January, 1997 had not been paid,
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however, the order dated 10 March, 1997 reveals that the cost had
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been paid. This Court, thereafter, issued “Rule” on 5 March, 1999.
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16. On 2 September, 2009, in view of the Armed Forces Tribunal
Act which came into force, the writ petition was transferred under
Section 34 of the Armed Forces Tribunal Act, 2007 to its Principal
Bench and it was registered in the Armed Force Tribunal as
T.A.No.252/2009, titled as „Raj Kumar v. Union of India & Ors‟.
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17. The Armed Forces Tribunal by order dated 16 November, 2009,
held that since the punishment awarded to the petitioner was reduction
in rank, therefore, under Section 3 (o)(iii), the Armed Forces Tribunal
does not have the statutory jurisdiction to hear the matter where the
punishment awarded is other than dismissal and therefore, it directed
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the parties to appear before the Registrar General on 30 November,
2009.
18. On the transfer of the case, the writ petition was sent back to this
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Court, by order dated 3 February, 2010 whereby the respondents were
W.P(C) No.1681/1996 Page 9 of 34
directed to place the record pertaining to the petitioner‟s representation
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dated 15 December, 1995. The writ petition was, thereafter, dismissed
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in default on 29 March, 2011, however, the order of dismissal in
default of appearance of the petitioner and his counsel was recalled by
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order dated 10 August, 2011. Adjournments were sought on behalf of
the petitioner thereafter, and the petitioner was granted the last
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opportunity to argue the matter on 9 February, 2012. Thereafter, the
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matter was argued by the parties on 23 February, 2012, 7 March,
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2012, 20 March, 2012 and on 21 March, 2012.
19. The respondents in their counter affidavit had contested the writ
petition contending, inter-alia, that the petition is premature and that
the petitioner did not avail the remedy in terms of Section 162 and 163
of the Navy Act by filing an appeal to the Chief of Naval Staff. The
respondents contended that the petitioner has tried to mislead the
Court by alleging that he has been made a scapegoat. According to the
respondents, the petitioner was a Petty Officer Mechanical Engineering
in charge, and therefore, directly responsible for the evolution and was
found to be negligent in performing his duty which led to the death of
Mr. M. Baig, Mechanical Engineer-II, who was working directly under
him. Regarding Lt. Panickar, it was alleged that he was an under
trainee officer, detailed to see and understand the evolution for the first
time.
W.P(C) No.1681/1996 Page 10 of 34
20. Regarding the infraction of the provisions of the Navy Act in
conducting the summary trial and punishing the petitioner, it has been
alleged that the decision for the summary trial by court martial was
taken after preliminary investigation was over and the other two sailors
had also been tried summarily by the Commanding Officer. It has been
contended that the petitioner opted for summary trial by the
Commanding Officer, and therefore, he was tried accordingly. The
respondents further disclosed that the petitioner was defended by his
divisional officer.
21. Regarding not supplying the copies of the charge sheet, the
respondents contended that the petitioner was aware of the charges
against him, and therefore, the copy was not supplied to him as neither
the petitioner, nor the defending officer had asked for the copy of the
charge sheet. The respondents contended that in any case the
petitioner‟s divisional officer had access to the charge sheet as the
documents were available with the regulating officer of the ships. As a
precaution, the charges were allegedly read to the petitioner in front of
his defending officer again and thus it is urged that the plea raised by
the petitioner of not replying to the charge sheet is an afterthought.
22. The respondents also contended that the trial of S.Raju, POME
No.147442 Y and Mr.N.Singh, MCME-II No.094464 T had already been
completed by the earlier Commanding Officer, Capt. Mohanan, and that
W.P(C) No.1681/1996 Page 11 of 34
the trial of the petitioner could not be completed as the petitioner had
reported after Capt. Mohanan formally had handed over command to
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Commander Mr.Lalit Kapoor on 8 August, 1995.
23. Regarding two other sailors, it was contended that their trial was
already over and that they were tried under Section 93 (2) of the Navy
Act, 1957 and the case against them was also established.
24. The respondents further contended that the petitioner was given
opportunity for trial by court martial under the Regulation 30 of the
Navy Act Part-II (Statutory), however, he himself opted for summary
trial by the Commanding Officer.
25. During the summary trial, the charge sheet was read over to the
petitioner and he was asked whether he pleaded guilty and whether he
wanted to make a written statement. Regarding the written statement
given by the petitioner, it was stated that the written statement given by
the petitioner was correct except for the averments made that “I found
there is no water coming from run down valve, then I and Mr.M.Baig
started opening the water drum door” which according to the
respondents is incorrect. The respondents contended that in fact water
was flowing from the run down valve and Lt.Panickar, under trainee
officer on the ship who was seeing this evolution for the first time,
pointed out the same to the petitioner to which the petitioner replied
W.P(C) No.1681/1996 Page 12 of 34
that it was safe to open the water drum door as the pressure was less
and that he had done it frequently before as well.
26. The respondents further submitted that after the completion of
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the trial the petitioner was remanded on 8 August, 1995 and was
publicly awarded the punishment in front of the full ship‟s company on
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16 September, 1995 as per the statutory regulations. It is also urged
that the trial had been conducted in terms of Chapter II of the
Regulations for the Navy Part II (Statutory). It is also pointed out that at
no stage he or his defending officer had made an issue about not being
given the copies of the charge-sheet, statements of witnesses etc.
According to the respondents, the petitioner can‟t even take the plea
that they did not have access to these documents in question, since all
these documents are readily available on board the ship with the
regulating officer and both the prosecutor and the defending officer
have access to the same. Thus, as per the respondents the plea that the
charge-sheet was not given to the petitioner and that the statements of
the witnesses were not provided to him is an after-thought. In any case,
the learned counsel for the respondents assures that the charges were
read over to the petitioner as per Chapter II of the Regulations for the
Navy Part II (Statutory) and he was asked not to make any statement or
give any evidence until after all the evidence against him had been
heard by him.
W.P(C) No.1681/1996 Page 13 of 34
27. The learned counsel for the respondents has further contended
that the Board of Inquiry was instituted by the Flag Officer
Commanding-in-Chief, West under Chapter VII of the Regulations for
the Navy Part II (Statutory) and that all the provisions of this regulation
were complied with. Therefore, the respondents submit that there was
no requirement to record the statement of the petitioner on the day of
the incident. In any case, as per the respondents, the petitioner was
allowed to sit through the Board of Inquiry proceedings in terms of
Regulation 205, Regulation for the Navy Part II (Statutory), where he
had all the opportunity to cross-examine the witnesses amongst other
rights, however, he himself had declined to avail the same.
28. With regard to the plea that the petitioner alone has been made
responsible for the unfortunate incident, while the superior officers
involved in the matter have escaped any consequences, the learned
counsel for the respondents has contended that the petitioner was the
only Petty Officer Engineering Mechanic who was nominated to the
POME in-charge for the task assigned, and therefore, he was required to
carry out the job by following the laid down procedure and thereby
ensuring the safety of his own self as well as of his subordinates
working directly under him. The learned counsel for the respondents
further contended that the other personnel senior to the petitioner had
directed him to lead the party conducting the evolution and that they
were not present to personally supervise the said evolution. Lt. Panicker
W.P(C) No.1681/1996 Page 14 of 34
too was an under-trainee officer, who was present solely to observe the
evolution for the first time and thus, he was not the officer in charge of
the evolution. Therefore, it is submitted that in the facts and
circumstances the responsibility of the evolution had squarely rested on
the petitioner and it was due to his negligence in performing his duties
which had led to the death of M. Baig ME II, who was directly working
under him in the same evolution. The Board of Inquiry was careful to fix
the blame on the various officers and the sailors involved in the said
incident including the petitioner and each one of them was dealt with in
accordance with law.
29. It is also urged that the petitioner was given due opportunity to
exercise his option as per Regulation 30 of the Regulations for the Navy
Part II to be tried either by the summary trial or by the Court Martial. It
is also submitted that at the relevant time, the petitioner was properly
explained the charges and the consequences of facing a summary trial
by the Commanding Officer viz-a-viz the consequences of a Court
martial. The petitioner was given ample time of 24 hours to make his
decision, and he was also allowed the assistance of a defending officer.
It was also explained to the petitioner that if the rank is taken away by
the Court Martial, then it cannot be regained without the approval of
the Chief of the Naval Staff, whereas, if the punishment of reduction in
rank is rendered by the Commanding Officer, it can be restored either
by the CABS or the Commanding Officer himself and thus the petitioner
W.P(C) No.1681/1996 Page 15 of 34
had made the voluntary and informed decision of opting to be tried by
the Commanding Officer by way of Summary proceedings. Since the
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petitioner had opted for summary proceedings in writing on 9 August,
1995, the same was initiated after the Board of Inquiry.
30. The learned counsel for the respondent has further contended
that the petitioner‟s representation against the order of penalty, under
Section 23 of the Navy Act was also duly dealt with by the Naval
Authorities in the manner prescribed in the Regulations 235-241 of the
Regulations for the navy Part II (Statutory). The relevant record was
called for and the petitioner‟s case was reconsidered on merits,
however, it was found to be devoid of any merits and thus,
consequently, the same was disposed of by the Headquarters Western
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Naval Command by letter dated 8 May, 1996. Thereafter, the
petitioner was transferred to INS Netaji Subhash under the Eastern
Naval Command and thus the representation was forwarded to the
Headquarters, Eastern Naval Command at Vishakapatnam, which is at
the moment under active consideration.
31. Therefore, the learned counsel for the respondent has contended
that the writ petition of the petitioner is premature, as he has not
exhausted the remedy available to him in terms of Section 162 and 163
of the Navy Act, 1957, by making an appeal to the Chief of the Naval
Staff or Government.
W.P(C) No.1681/1996 Page 16 of 34
32. The pleas of the respondents are refuted by the petitioner in his
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rejoinder dated 3 March, 1997, inter alia, on the grounds that as per
the record itself it is clear that the charges were not read to the
petitioner as per Chapter II of the Regulations for the Navy Part II
(Statutory). It is also denied that warning was given to the petitioner
that he should make a statement or evidence until all the evidence
against him had been heard. It is further denied that time was given to
the petitioner to elect the option of being tried by either the Summary
trial or by the Court Martial and that the petitioner had opted to be
tried summarily.
33. This Court has heard the learned counsel for the parties in detail
and has also perused the relevant records and the relevant documents
filed with the pleadings. The learned counsel on behalf of the petitioner
has vehemently argued that the petitioner had not been given a
reasonable opportunity to defend himself and that the principles of
natural justice had not been complied with during the summary
proceedings. The petitioner has stated that the charge sheet was not
issued, and that the statements of the witnesses recorded during the
Board of Inquiry was not given to him nor was he given the opportunity
to cross-examine the witnesses during the summary proceedings. It is
also alleged that the petitioner was not given the option to choose
between the proceedings of Court Martial and the summary court
proceedings, nor were the consequences of exercising such an option
W.P(C) No.1681/1996 Page 17 of 34
explained to him and, consequently, he has contended that he had been
gravely prejudiced at the hands of the respondents.
34. Per contra the learned counsel for the respondents has contended
that the petitioner has not been singled out in the present matter and
that the other officers involved in the alleged incident have also been
tried summarily by the competent authority. It is also urged that there
was reasonable compliance of the provisions of the Navy Act and the
Regulations for the Navy Part II while initiating the summary
proceedings against the petitioner and that after affording due
opportunity to the petitioner to defend himself, on the basis of the
evidence on record it was found that the charges against the petitioner
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were made out and, consequently, the punishment by order dated 16
September, 1995 was imposed on the petitioner.
35. A perusal of the record reveals the following facts which are
pertinent in inferring whether there was compliance of the Regulations
and principles of natural justice in the present case. The alleged
incident whereby Mohammed Baig ME II had lost his life while washing
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the A-1 Boiler had taken place on 29 October, 1994. The Board of
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Inquiry was initiated to enquire into the alleged incident on 8
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November, 1994 and thereafter the report was prepared on 7 July,
1995. The Board of Inquiry report stipulated the lapses on the part of
three sailors, namely Rajkumar, POME, the petitioner, S. Raju, POME
W.P(C) No.1681/1996 Page 18 of 34
and N. Singh, MCME II and it was ordered that the said sailors be tried
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summarily for their alleged lapses. The report dated 7 July, 1995 is
reproduced as under:
BOARD OF INQUIRY-DEATH OF M BAIG
ME II, NO.118012-T
A perusal of the above subject Board of Inquiry has brought
out the fact of the following sailors were culpable of the lapses as
follows:-
(a) Rajkumar, POME, No.110871-F. For prematurely opening the
water drum door before ensuring the drum was dry and empty. In
addition, he adopted incorrect engineering practices in not
securing the door by rope and additionally place late M.Baig, ME
II, in a vulnerable position within the air casing.
(b) S.Raju, POME, No.147442-V, Duty Chief ME. He was culpable of
remaining in the mess decks instead of supervising the operation.
Subsequently, when the emptied the stdb side water drum, he
repeated the error of not securing the door by rope despite the
occurrence of a serious accident just hours before.
(c) N.Singh, MCME II, No.094464-T, OOD Engine Room. He is guilty
in that during the hosing down operations, he was not present
when the port water drum door was being opened incorrectly and
was not aware of the correct engineering practice despite having
served for over 10 years on board.
He is also culpable of not instructing S Raju, POME, to use the
rope on the stbd water drum door despite the occurrence of the
accident, earlier in the night.
2. It is, therefore, requested that the above mentioned sailors
be summarily tried for their above mentioned lapses and a
completion report made to this Headquarters.
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36. Thereafter, on 2 August, 1995 a signal was received by the
petitioner, ordering him to appear for the Court Martial or Trial by the
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Commanding Officer at Bombay on 6 August, 1995. As per the
W.P(C) No.1681/1996 Page 19 of 34
General Information recording the arrival of the petitioner, he had
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arrived in Bombay and reported on board of the ship on 7 August,
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1995. Thereafter, on 8 August, 1995 the charges were explained to the
petitioner and he was asked to make any statement he wished in his
defense.
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37. On 8 August, 1995 the petitioner was also allegedly asked to
exercise his option to be tried by either the Court Martial or the
Summary Proceedings. According to the petitioner, the said option was
not given and in any case the consequences of exercising the option of
Court Martial was not explained to him as is required under Regulation
30 of the Regulations for the Navy Part II. This plea seems to have some
merit in the facts and circumstances since as per the record it is
evident that though there is a document stipulating that the
consequences of exercising the option of being tried by the Court
Martial was explained to the petitioner, however, the same is not
endorsed by the petitioner and it only bears the signatures of the
Commanding Officer, Lalit Kapur. Thus, there is no way of knowing if
the said aspect was explained to the petitioner before exercising his
option for Court Martial or Summary proceedings by the Commanding
Officer.
38. In any case, the petitioner had given his alleged consent to be
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tried summarily by the Commanding Officer only on 9 August, 1995.
W.P(C) No.1681/1996 Page 20 of 34
However, it is pertinent to note that as per the record the statements of
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all the witnesses were recorded during the period of 7 to 9 August,
1995, even before the petitioner had exercised his option of being tried
summarily. Thus the statements of the witnesses were already
recorded. It is also evident that while the statements of the witnesses
were recorded there is no mention that the petitioner was given the
opportunity to cross-examine the said witnesses. The learned counsel
for the respondents has not been able to give any satisfactory
explanation as to how evidence could be recorded even before
commencement of Summary Security Court. No regulation or rules have
been pointed out under which evidence could be recorded even before
the accused had opted for trial summarily though the
accused/petitioner has denied that the option was taken from him. In
fact, the only clarification given is that the statements of the witnesses
have been confirmed to be correct and signed in the presence of the
Commander. It also does not bear any signatures of the petitioner.
Therefore, the plea that the witnesses were not cross-examined by the
petitioner, nor was he provided a copy of the statements of the
witnesses, is apparent on the face of the record, and therefore, the
petitioner has been able to establish the violation of regulations and
denial of principles of natural justice.
39. The petitioner also contended that even during the Board of
Inquiry the statements of the witnesses was recorded in his absence,
W.P(C) No.1681/1996 Page 21 of 34
and that he was not allowed to be present at the time nor was he given
copies of the same. The respondents have merely denied this plea and
stated that reasonable opportunity was given, however, the learned
counsel on behalf of the respondents has been unsuccessful in showing
anything on the record that would establish that such an opportunity
was given to the petitioner to cross examine the witnesses or that the
opportunity was given, however, the petitioner had declined it.
40. Other violations of the mandatory regulations are also evident in
the manner the trial was conducted and the investigation was carried
out against the petitioner. On the one hand, the investigating officer has
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stated on 8 August, 1995 that he had thoroughly investigated the case
and recorded the evidence of the witnesses, but since he did not have
the power to punish the petitioner, the case was forwarded to the
Commanding Officer for his decision, on the other hand, the perusal of
the record reveals that the statements of the witnesses PK Dey, LME
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and B.A. Kumar, LME were recorded on 9 August, 1995 by the
investigating officer. There is no explanation given as to why the said
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witnesses were examined on 9 August, 1995 by the investigating
officer, Karnail Singh, if as per his own admission he had forwarded the
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matter to the Commanding Officer for his decision on 8 August, 1995.
These glaring violations in the trial of the petitioner casts a huge doubt
on the veracity of the said proceedings and it is also clear that the
petitioner was not afforded the proper opportunity to defend himself
W.P(C) No.1681/1996 Page 22 of 34
and in the process the entire trial and proceedings by the respondents
are vitiated.
41. The decision of the Apex Court in The State of Punjab v. Dewan
Chuni Lal [1970] 3 SCR 694, is pertinent to the facts of the present
case. It was a case of dismissal of a Police Sub-Inspector on charges of
inefficiency and dishonesty based on adverse reports of superior
officers. Such officers, though available, were not examined to enable
the Police Sub-Inspector to cross-examine them. The Supreme Court
held that the refusal of the right to examine such witnesses amounted
to denial of reasonable opportunity of showing cause against the action
of dismissal. The Supreme Court had held that the dismissal was not
legal.
42. Union of India v. T. R. Varma (1958) IILLJ 259 SC related to the
dismissal of a public servant. The question was whether the enquiry
held under Art. 311 of the Constitution of India was in accordance with
the principles of natural justice. The Court, speaking through
Venkatarama Aiyar J. had observed as follows at p. 507:-
" Stating it broadly and without intending it to be
exhaustive, it may be observed that rules of natural justice
require that a party should have the opportunity of
adducing all relevant evidence on which he relies, that the
evidence of the opponent should be taken in his presence,
and that he should be given the opportunity of cross-
examining the witnesses examined by that party, and that
no materials should be relied on against him without his
W.P(C) No.1681/1996 Page 23 of 34
being given an opportunity of explaining them".
43. In the matter of Sri Narayan Rajput v. Union of India & Ors.
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Cr.W.P 277 of 2005 decided on 12 December, 2008 relied on by the
petitioners, the Division Bench of the High Court of Bombay had held
that from the record it was not evident that the accused was given the
right to cross examine the witnesses, and that as per Regulation 27 of
the Navy Regulations, the leading of evidence must also include the
opportunity to cross examine the witnesses, who are examined in
support of the charge. The relevant portion of the judgment is as under:
“9. As regards the right to cross examine in a trial conducted
by the Commanding Officer, reference may be made to regulation
27 which provides for the procedure to be followed at
investigation in general. The said Regulation is in the following
terms.
27-Procedure at investigations in general-
(1) At all investigations the evidence in support of the charge shall
be heard first.
(2) Immediately after the charge has been read out, the
Investigating officer shall warn the accused that he should not
make any statement or give any evidence on his own behalf until
all the evidence against him has been heard.
(3) On conclusion of the evidence in support of the charge, the
investigating officer shall decide whether a case has been made
out against the accused.
(4) If there is no case, the investigating officer shall either dismiss
the case or, it further evidence is likely to become available, stand
it over and if there is a prima facie case, and it is a simple one
W.P(C) No.1681/1996 Page 24 of 34
with which the investigating officer thinks he scandal with
himself, he shall ask the accused if he admits the charge.
(5) If the accused does not admit the charge and the matter is one
within the investigating offer's powers of punishment, he shall
inform the accused that he will proceed to try the, giving him an
opportunity of making a statement and calling witnesses.
10. From the aforesaid procedure it becomes quite clear that what
is contemplated by Section 27(1) relates to evidence in support of
the charge. It cannot be lost sight that these proceedings can
result in imprisonment up to 90- days and also result in other
serious consequence such as loss of service and service benefits.
In our view leading of evidence must include an opportunity to
cross examine the witness who are examined in support of the
charge. In this regard, it is also relevant to note that Regulation
27(5) also gives opportunity to the accused also of making a
statement and calling witnesses. It goes without saying that these
defense witnesses can also be cross examined by the prosecution.
11. At this stage useful reference may be made to a judgment of
this court in the case of Rajesh Singh Tanwar Vs. Admiral
R.L.Pereira and others delivered on 31.8.1985 in Writ Petition
No.1369 of 1981. One of the contention raised before this court in
that case was that the trial by the Commanding Officer was
vitiated because it has been held in violation of rules of natural
justice as copies of such statements were not given to the
petitioner in advance and therefore, he was not given a proper
opportunity to cross examine this witness. The stand of the Navy
in that case was that the statements of the witnesses were read
out very slowly to the petitioner and he was also asked to cross
examine the witnesses in question but he declined to cross
examine the witnesses. In the circumstances, the Single Judge of
this court concluded from the facts that it was not possible to
hold that the petitioner was not given any opportunity to cross
examine the witnesses. We note that, in the aforesaid case, it was
not the contention of the Navy that the right to cross examine was
not available at all to the petitioner. In fact, in the present case
W.P(C) No.1681/1996 Page 25 of 34
also, it was fairly conceded that the petitioner had a right to cross
examine the witnesses. In fact the onus to prove that the right of
cross examination was given would be upon the prosecution and
they should therefore take care to see that the fact that such a
right was offered should be made clear through an entry in the
trial record.
12. In our view, therefore, the petition deserves to succeed on two
grounds firstly that the petitioner was not given opportunity to
cross examine the witnesses and secondly the additional material
in the form of questions raised by the petitioner and answered by
the witnesses as referred to in Para-29 of the affidavit in reply
were not made as part and parcel of the summary of evidence
required to be forwarded to the approving officer who approved
the punishment. On these two grounds alone, petition deserves to
be allowed.”
44. The principles of natural justice, therefore, contemplate that
reasonable opportunity is to be given to the accused to make him aware
of the facts and evidence that is against him, so that he can properly
defend himself. In the investigation conducted by the respondents, the
statements of the witnesses were recorded in the absence of the
petitioner. Such evidence which was not recorded in his presence was
also relied upon by the Commanding officer while inculpating the guilt
of the petitioner and punishing him for the same. Thus, the denial of
the opportunity to cross-examine the said witnesses and the non
communication of the said statements of the witnesses to the petitioner,
has denied the petitioner of the opportunity to properly defend himself,
thereby violating the principles of natural justice and relevant
W.P(C) No.1681/1996 Page 26 of 34
regulations. No cogent reason has been given as to why the charge
sheet could not be given to the petitioner. There is no rational of merely
reading the charges to the accused. The charges should not have been
merely read to him but in the language which the accused understands,
and thereafter, a copy of the charge should have been given to him. The
learned counsel for the respondents is unable to show any regulations
or rules which approves of such a procedure which had been adopted
by the respondents. Therefore, the summary proceedings in the facts
and circumstances are vitiated.
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45. In the Summary of Evidence Report dated 14 August, 1995, on
the basis of which the punishment was imposed on the petitioner by
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order dated 16 September, 1995, it is clear that reliance was mostly
placed on the statement of Lt Panicker to inculpate the guilt of the
petitioner. The relevant portion of the report is as follows:
“5. It has been established by the evidence of Lt GP
Panicker (41586-N) that water was still flowing down from the
run down drain when the door of the boiler was opened, that in
fact Lt Panicker questioned the accused on whether it was safe
to open the door and the accused replied that it was perfectly
safe to do so. It has also been established by the evidence of Lt
GP Panicker (41586-N) that water continued to pour out of the
water drum through the door for some time after the door was
opened.
6. There is no past recorded instance of the run down drain
being completely chocked by sludge/slurry/other objects after
boiling out. While the drain may have been partially choked, this
accident would not have happened if the accused had waited till
flow of water from the run down valve came to a stop.
W.P(C) No.1681/1996 Page 27 of 34
7. There is no evidence of malafide intentions or conflict
between Raj Kumar POME No.110871-F and M Baig ME II
No.178012-T. Thus premature opening of the water drum can be
attributed to an error of judgment on the part of Raj Kumar
POME No.110871-F, caused by overconfidence, hurry and an
improper appreciation of the situation which directly lead to
severe burn injuries followed by death of M Baig ME II
No.178012-T.
8. The accused was warned in accordance with Regulation
28(i) of the Regs Navy Part II before he made a statement. The
accused pleaded not guilty to the charges. The assistance of the
Divisional Officer was provided to the accused through out the
investigation and he was afforded all opportunity to defend
himself.”
46. However, a perusal of the statement of Lt Panicker reveals that Lt
Panicker had not questioned the petitioner on whether it was safe to
open the door or not. In fact, when a specific question was asked as
Question No. 14 asking him if he had mentioned anything to the
petitioner, he had stated “no”. It is also evident that though the report
stipulates that all opportunity was given to the petitioner to defend
himself, however, it does not specify if the petitioner was given the
opportunity to cross examine the witnesses or that he was given the
opportunity to cross examine the witnesses, however, he had declined
the same.
47. An examination of the statements of the other witnesses, namely
N. Singh, POME, S. Raju, POME, B.A. Kumar LME, P. K Dey, LME also
do not reveal anything substantial regarding the allegations imputed
against the petitioner. These witnesses have all been asked the same
W.P(C) No.1681/1996 Page 28 of 34
questions pertaining to the procedure to be followed while opening the
water drum, however, they have not deposed about the role played by
the petitioner or the lapse on the part of the petitioner for the mishap
that had occurred on the alleged day of the incident. Thus there is even
no evidence regarding the allegations of negligence as imputed against
the petitioner.
48. The petitioner has further contended that the other officers who
were also responsible for the alleged incident have been let off with a
mere warning, while the petitioner who is the junior-most officer has
been made solely responsible for the unfortunate incident and punished
for the same. The respondents in their counter affidavit have only
negated this plea by stating that the said plea of the petitioner is false
and that the other two sailors named in the report of Board of Inquiry
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Report dated 7 July, 1995 were also summarily tried for their lapses.
However, the respondents have not given any other details regarding
the trial of the said sailors, or the outcome of the same. In this light, the
only inference that can be drawn in the facts and circumstances is that
the petitioner alone has been made responsible for the death of
Mohammed Baig ME II, even though the party that was detailed for the
washing of A1 boiler also included other officers. How the petitioner can
be held solely responsible has not been explained by the respondents.
The evidence led before the summary trial either cannot be read as it
was not recorded during the trial or even before the trial commenced or
W.P(C) No.1681/1996 Page 29 of 34
there is no evidence at all to inculpate the petitioner solely for the
mishap.
49. The learned counsel for the respondents has also contended that
the petitioner has got an effective alternative remedy under Section 162
and 163 of the Navy Act. However, considering the fact that the
petitioner had sent his statutory representation against the order of
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penalty on 8 November, 1995 and that on 4 January, 1996 the
petitioner was informed that his statutory representation had been
forwarded to the Flag Officer Commanding in Chief, Eastern Naval
Command, Vishakapatanam and that still till today no decision has
been given by the respondents, this Court is not inclined to accept the
submission of the learned counsel for the respondents that the
petitioner should be asked to exhaust his alternative remedy. The writ
petition is pending for the last sixteen years and at this stage to send
the petitioner back to make a statutory representation will be unjust
and denial of another reasonable opportunity to the petitioner.
50. There cannot be any doubt whatsoever that the question as to
when a discretionary jurisdiction is to be exercised or refused to be
exercised by the High Court has to be determined having regard to the
facts and circumstances of each case for which no hard-and-fast rule
can be laid down. But normally, the High Court should not entertain
W.P(C) No.1681/1996 Page 30 of 34
writ petitions unless it is shown that there is something more in a case,
something going to the root of the jurisdiction, something which would
show that it would be a case of palpable injustice to the writ petitioner
to force him to adopt the remedies provided by the statute. To the
doctrine of exhaustion of alternative remedy, there are two exceptions.
One is when the proceedings are under a provision of law which is ultra
vires which will entail quashing of the same on the ground that the
proceedings are incompetent without a party being obliged to wait until
those proceedings run their full course. The other exception is when an
order is made in violation of the principles of natural justice and the
proceedings itself are an abuse of process of law. The Supreme Court in
ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd.
( (2004) 3 SCC 553 : JT (2003) 10 SC 300 [12]) observed that the High
Court, having regard to the facts of the case, has a discretion to
entertain or not to entertain a writ petition and it is the Court that has
imposed upon itself certain restrictions in the exercise of this power.
The Supreme Court had held on page 572 in para 28 as under:
“ 28 . However, while entertaining an objection as to the
maintainability of a writ petition under Article 226 of the
Constitution of India, the court should bear in mind the
fact that the power to issue prerogative writs under Article
226 of the Constitution is plenary in nature and is not
limited by any other provisions of the Constitution. The
High Court having regard to the facts of the case, has
a discretion to entertain or not to entertain a writ
petition. The Court has imposed upon itself certain
restrictions in the exercise of this power. (See Whirlpool
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Corpn. v. Registrar of Trade Marks .) And this plenary
right of the High Court to issue a prerogative writ will not
W.P(C) No.1681/1996 Page 31 of 34
normally be exercised by the Court to the exclusion of other
available remedies unless such action of the State or its
instrumentality is arbitrary and unreasonable so as to
violate the constitutional mandate of Article 14 or for other
valid and legitimate reasons, for which the Court thinks it
necessary to exercise the said jurisdiction.”
51. The copy of the charge sheet was not given to the petitioner,
whether the petitioner was given an appropriate option between the
Court Martial and Summary Trial has not be established satisfactorily.
Statements of witnesses in summary of evidence were not recorded in
the presence of the petitioner nor he was given an opportunity to cross
examine them. No rule or regulation has been shown which permits or
allows the respondents not to give the copy of the charge sheet on the
premise that the accused is aware of the charges and the defending
officer had not asked for the same. The respondents cannot take shelter
under the plea that the petitioner‟s Divisional officer had access to the
charge sheet and therefore, there was no necessity to supply the copy of
the charge sheet. The learned counsel for the respondents failed to
show any regulation or rule which allow the respondents to record the
statement of witnesses even prior to commencement of summary trial.
Such evidence could not be used by the respondents to hold that the
petitioner was guilty of charges made against him. The learned counsel
for the respondents has utterly failed in these circumstances to show as
to how the relevant regulations had been complied with. The witnesses
who were examined in absence of the petitioner were not produced for
W.P(C) No.1681/1996 Page 32 of 34
the cross examination by the petitioner and in the circumstances it
could not be even contended that the petitioner declined to cross
examine the witnesses. From the record it also does not appear that the
petitioner was given 24 hours to decide the alleged option given to him
whether to be tried by Court Martial or by Summary Trial. In the
circumstances, the evidence which had not been led before the
Summary Court could not be considered and evidence which was
recorded before the trial started in which also the petitioner was not
given the right to cross examine the witnesses, also cannot be
considered. Thus there is no evidence against the petitioner in the facts
and circumstances. For these reasons as detailed hereinbefore the
entire trial and punishment awarded to the petitioner is vitiated.
52. In the facts and circumstances and the forgoing reasons the writ
petition is, accordingly, allowed. The finding and the sentence of
reduction in Rank to MEI (No.4), deprivation of third, second and first
good conduct badges (No.9) and stoppage of leave for a period of sixty
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days (No.12) imposed by the Summary Court on 16 September, 1995
is set aside. The petitioner shall be entitled to restoration of his rank
and badges and all the consequential benefits including promotions and
pay. The petitioner shall also be entitled to costs of Rs.20,000/- in the
facts and circumstances, payable by the respondents. Costs be paid
W.P(C) No.1681/1996 Page 33 of 34
within four weeks. With these observations and directions the Writ
petition is allowed.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
JUNE 1, 2012
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