Gujarat High Court
Rajesh Satyapal Tyagi Through Shalini ... vs Union Of India on 10 August, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/6253/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6253 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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RAJESH SATYAPAL TYAGI THROUGH SHALINI RAJESH TYAGI
Versus
UNION OF INDIA
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Appearance:
MR VIRAT G POPAT(3710) for the PETITIONER(s) No. 1
MR DEVANG VYAS(2794) for the RESPONDENT(s) No. 3
MS TRUSHA K PATEL(2434) for the RESPONDENT(s) No. 1
MR DHARMESH DEVNANI, APP (2) for the RESPONDENT(s) No. 5
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 2
UNSERVED REFUSED (R)(70) for the RESPONDENT(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 10/08/2018
CAV JUDGMENT
By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a dismissed Pradhan Sahayak Engineer of the Coast Guard, has prayed for the following reliefs :
Page 1 of 51 R/SCR.A/6253/2017 CAV JUDGMENT"(a) To allow this petition.
(b) To issue appropriate writ, order or direction quashing and setting aside the imprisonment imposed upon the petitioner by the concerned respondents and further be pleased to direct that the petitioner be released forthwith and be pleased to quash and set aside the order of imprisonment along with all other consequential proceedings;
(c) Pending admission, hearing and final disposal of the present petition, to direct that the petitioner be released on bail and/or sentence imposed upon the petitioner be suspended till hearing of the present petition;
(d) To pass any other and further orders as may be deemed fit and proper to this Hon'ble Court."
The case put up by the writ-applicant in his own words as pleaded in his writ-application is as under :
"3.1 That the petitioner joined service in Indian Coast Guard on 13.05.1993 as Yantrik with Diploma in Engineering. The petitioner was time and again promoted and has served by now for 24 years and the last service of the petitioner was Pradhan Sahayak Engineer. it is submitted that the petitioner was called on 21.02.2017 for attending Table Tennis Tournament where the petitioner was ill-treated by certain high ranking officer. That on account of certain incidents with the high ranking officer the petitioner was being ill-treated Page 2 of 51 R/SCR.A/6253/2017 CAV JUDGMENT continuously in the service. The petitioner had to make several representations on the aforesaid issue.
3.2 That instead of taking any action against those high ranking officer, the petitioner was held responsible and proceedings were initiated against the petitioner by serving charge-sheet upon the petitioner under the provisions of The Coast Guard Act, 1978 as well as Coast Guard (Disciplinary) Rules, 1983.
3.3 That, after service of charge-sheet, it appears that the Commanding Officer has recommended for convening the Coast Guard Court as contemplated under the provisions of The Coast Guard Act. The petitioner submits that under the provisions of The Coast Guard Act, it is desirable and provided that before imposition of any penalty to convene the Coast Guard Court. That the powers to impose penalty summarily are given under the provisions of Coast Guard (Disciplinary) Rules, 1993. It is submitted that however once the recommendation for establishing Coast Guard Court was conveyed, it was not open for the authorities to proceed summarily and detain the present petitioner without any trial.
3.4 That since the petitioner was not supplied any copy of the order of imprisonment the petitioner has under Section 107 made an application for suspension of sentence.
3.5 That. the petitioner has been clearly discriminated as despite several requests made by the petitioner, no Court Page 3 of 51 R/SCR.A/6253/2017 CAV JUDGMENT was convened and summary proceedings were undertaken de hors the provisions of The Coast Guard Act. The petitioner submits that The Coast Guard Act was enacted with a view to regulate Armed Forces of the Union in maritime zones. That The Coast Guard Act provides offences in Chapter IV. The petitioner was charged With several offences which are not only petty in nature but would not be covered as an offence under The Coast Guard Act.
3.6 That, after the petitioner is charge-sheeted. the options available with the authority are either to convene the Court or to try the case summarily. it is submitted that the summary trial are based on the provisions of The Coast Guard (Disciplinary) Rules, 1983. It is submitted that The Coast Guard (Disciplinary) Rules, 1983 provides that Commanding Officer may after going through the record or abstract of evidence either dismiss charge or apply to the authority for convening Coast Guard Court. That section 51 provides that on receiving such application from the Commanding Officer, the charges may be dismissed or Court may be convened or further evidence may be taken it is submitted that thus the procedure which has been followed in the present case after recommendation does not have sanction of law.
3.7 The petitioner submits that dismissal / termination from service has a serious repercussion. Section 58 of The Coast Guard Act provides that in case of any sentence of imprisonment, dismissal is necessary consequence. it is, therefore, submitted that when the petitioner was being prosecuted under the provision, it was necessary for the Page 4 of 51 R/SCR.A/6253/2017 CAV JUDGMENT authority to follow principle of natural justice and convene the Court. In that view of the matter the decision and detention of the petitioner is illegal.
3.8 The petitioner was not given assistance of any legal officer. The petitioner was not given adequate opportunity of hearing. That the record of evidence is not sufficient to convict / find petitioner guilty under the provisions of section 57 of The Coast Guard Act. It is submitted that in that view of the matter the conviction/imprisonment of the petitioner requires to be quashed and set aside."
Thus, it appears that the writ-applicant was summarily tried for the alleged misconduct under the provisions of the Coast Guard Act, 1978, and the rules framed thereunder. At the end of the summary trial, the Commanding Officer, CGS, Porbandar, recommended the punishment of rigorous imprisonment for three months and dismissal from the Coast Guard service. The confirming authority, i.e. the Director General, modified the punishment to the extent of reducing the sentence from three months to one month. However, the punishment of dismissal from the Coast Guard service came to be affirmed.
Let me look into the charges which came to be levelled against the writ-applicant.
"(i) Did at about 1700 hrs on 20 Feb 17 at ICGS Gandhinagar behaved in disorderly manner with superior officers namely Comdt Ashish Srivastava and Comdt (JG) Tanuj Gautam Page 5 of 51 R/SCR.A/6253/2017 CAV JUDGMENT wherein he was shouting arrogantly and waving his hands holding sunglasses in inappropriate manners against service traditions, thereby committed an offence punishable under section 22(c) of CG Act 1978
(ii) Did at about 1700 hrs on 20 Feb 17 at ICGS Gandhinagar used provoking gestures making a quarrel against senior officer namely Comdt Ashish Srivastava and creating disturbance in the office premises of ICGS Gandhinagar thereby committed an offence punishable under sections 22(b) of CG Act 1978.
(iii) Did at about 1100 hrs on 22 Feb 17 at ICGS Gandhinagar on being enquired by C0, ICGS Gandhinagar regarding discrepancy between his ID card photograph and actual appearance of mustache shape remarked "No such requirement for such a small change", thus used unservice like language and violated the provisions of CGO 01/2007 regarding change of facial appearance thereby committed an offence under section 42 of CG Act 1978.
(iv) Did at about 1100 hrs on 22 Feb 17 at ICGS Gandhinagar on being enquired by CO, ICGS Gandhinagar regarding discrepancy between his ID card photograph and actual appearance of mustache shape remarked "No such requirement for such a small change", thus used unservice like and arrogant language and behaved in disorderly manner with superior officer namely Comdt RK Kadam (0411-J) thereby committed an offence punishable under section 22(c) of CG Act 1978.Page 6 of 51 R/SCR.A/6253/2017 CAV JUDGMENT
(v) Did at about 1130 hrs on 25 Feb 17 at ICGAE (PBD), 850 SQN hangar gained unauthorised access to his departmental officers cabin against his verbal orders to duty staff and against written orders promulgated by squadron senior pilot thus exhibited disobedience to superior officer by wrongly denying the authority and disobeyed lawful command given by his superior officer thereby committed an offence punishable under section 20 of CG Act 1978.
(vi) Did at about 1500 hrs on 27 Feb 17 at ICGAE (PBD) used his smart phone to propagate and used mobile based social media applications to publish service matters hence failed to comply with condition of service specified in section 13 of CG Act 1978 thus behaved with disorder and neglect, prejudice to good order and Coast Guard discipline, thereby committed an offence punishable under section 44 of CG Act, 1978.
(vii) Did at about 1515 hrs on 27 Feb 17 and on later dates used his smart phone in office premises during working hours to publish & propagate service matters using social media against RHQ(NW) policy regarding ban of smart phones in working hours thus committed and act of disorder and neglect, prejudicial to good order and discipline of Coast Guard, thereby committed an offence punishable under section 44 of CG Act 1978.
(viii) Did at about 1700 hrs on 27 Feb 17 at ICGAE (PBD), 850 SQN hangar used threatening language to his superior officers namely Comdt (JG) Abhinav Sharma, Comdt (JG) Page 7 of 51 R/SCR.A/6253/2017 CAV JUDGMENT Atul Agarwal and Dy Comdt Vikas Tripathi by verbally threatening the oflicers and used in-subordinate language with the officers thereby committed offences punishable under section 19(b) and 19(c) of CG Act 1978.
(ix) Did at about 1745 hrs on 27 Feb 17 at ICGAE (PBD), 850 SQN showed a willful defiance of authority wherein he left Commanding Officers office despite being ordered to stay for official investigation there by disobeyed lawful command given by his superior officer namely Comdt Satish Bisht (0546-P), thereby committed an offence punishable under section 20(1) of CG Act 1978.
(x) Did at about 1750 hrs on 27 Feb 17 at ICGAE (PBD) 850 SQN (CG) incite fellow EPs and SOs by asking them to lake written orders from Commanding Officer while they were being ordered to produce the SO in CO's cabin thus seduced CG personnel from allegiance to duty and obstructing orders from superior officer thereby committed an offence punishable under section 18 of CG Act 1978.
(xi) Did at about 1600 hrs on 27 Feb 17 at ICGAE (PBD), threatened Commanding Officer namely DIG A Bose(0399-E), and further used threatening language against Coast Guard service and unit (ICGAE,PBD) thereby committed an offence punishable under section 19(b) of Coast Guard 1978.
(xii) Did at about 1755 hrs on 27 Feb 17 at ICGAE (PBD) 850 SQN (CG) behave in disorderly manner with DIG A Bose(0399-E) CO, ICGAE(PBD) and neglected his presence Page 8 of 51 R/SCR.A/6253/2017 CAV JUDGMENT wherein he continued shouting, laughing and talking arrogantly and casually thereby committed an offence punishable under section 44 of CG Act 1978.
(xiii) Did at about 1215 hrs on 15 Mar 17 at ICGS(PBD), the accused willfully denied the drill (Off Cap) as prescribed in CGO 02/93 during the defaulter conducted by Regulating Officer ICGS(PBD) thus act of disorder, prejudicial to good order and discipline of Coast Guard, thereby committed an offence punishable under section 44 of CG Act 1978."
It appears that the writ-applicant was tried summarily under the provisions of Section 57 of the Coast Guard Act, 1978 (for short, 'the Act, 1978') in accordance with Rule 20 of the Coast Guard (Discipline) Rules, 1983 (for short, 'the Rules, 1983'). The charge was framed, to which the writ-applicant pleaded not guilty. The Commanding Officer, after hearing the writ-applicant, ordered for recording of evidence under Rule 20(3)(b) of the Rules, 1983. It appears from the materials on record that statements of 22 prosecution witnesses and 4 defense witnesses were recorded in the course of the preparation of the 'record of evidence' (ROE). The materials on record would further indicate that the competent authority directed to dismiss five charges in accordance with Rule 51 of the Rules, 1983, and dispose of the case summarily on the remaining charges.
The Commanding Officer, CGS, Porbandar, accordingly under Rule 26(b) of the Rules, 1983, re-heard the charges against the writ-applicant and dismissed five charges as approved by the competent authority, i.e. the Director General, Page 9 of 51 R/SCR.A/6253/2017 CAV JUDGMENT Indian Coast Guard. Thereafter, the Commanding Officer, in terms of Section 57 of the Act, 1978, conducted a summary trial of the writ-applicant and held the writ-applicant guilty of the charges and proposed the punishment of rigorous imprisonment for three months and dismissal from the Coast Guard service. As per Rule 28(a) of the Rules, 1983, the punishment proposed by the Commanding Officer was sent to the Director General, Indian Coast Guard for approval. The Director General, having regard to the facts of the case and the evidence on record, reduced the sentence to rigorous imprisonment for one month from three months. The punishment of dismissal from the Coast Guard service was maintained.
Being dissatisfied with the manner in which the writ- applicant was summarily tried and punished and also the impugned orders passed by the authorities under the Act, 1978, as well as the Rules, 1983, the writ-applicant has come up with this writ-application.
On 23rd August 2017, this Court passed the following order :
"Heard learned advocate appearing for the petitioner.
Rule returnable on 22.9.2017. Learned APP waives service of notice of Rule on behalf of respondent - State.
As far as interim relief is concerned, I have considered the the aspect in the matter that the petitioner has been sentenced for a period of 30 days, whereas, he has undergone sentenced of 13 days. Hence, till the next date of Page 10 of 51 R/SCR.A/6253/2017 CAV JUDGMENT hearing, the sentence imposed by the authority below is hereby suspended. He shall be released on bail on conditions, which may be imposed by the authority.
Direct service is permitted."
Thereafter, on 24th November 2017, the following order came to be passed :
"1. It appears from the materials on record that the Commanding Officer CGS, Porbandar convicted the applicant herein under the Provisions of The Coast Guard Act, 1978 as well as the Coast Guard (Disciplinary) Rules, 1983 and imposed a sentence of three months of rigorous imprisonment. It further appears that in accordance with the Provisions of the Act, the order passed by the Commanding Officer has to be approved by the higher authority. The decision of the approving authority i.e. the Director General of Indian Coast Guard reads as under:-
DECISION OF THE APPROVING AUTHORITY I, in exercise of power under Rule 28(d) of the Coast Guard (Discipline) Rules, 1983 hereby vary the punishment, as proposed, and approve the under mentioned punishment to be awarded to Rajesh Tyagi, No.07328-L of 850 SQN(CG) attached to CGS Probandar:-
(a) Rigorous Imprisonment for one month.
(b) Dismissal from the Coast Guard Service.Page 11 of 51 R/SCR.A/6253/2017 CAV JUDGMENT
Sd/-
(Rajendra Singh) Director General Director General Indian Coast Guard 09 Aug 2017 The Commanding Officer CGS Porbandar.
_________________________________________________ Read to the accused this 11th day of August, 2017.
Signature ______________ Rank & Name Appointment DIG IS Chauhan ICGS Porbandar.
Commanding Officer.
2. It appears from the above that the approving authority has varied the punishment. The sentence of three months rigorous imprisonment has been reduced to one month rigorous imprisonment. This Court would like to peruse the order passed by the Commanding Officer, CGS, Porbandar, holding the applicant herein guilty of the offence and imposing sentence.
On the next date of hearing, the entire text of the order of the Commanding Officer holding the applicant guilty shall be placed on record. Notify the matter on next date of hearing on top of the board. Post the matter on 01/12/2017."
Pursuant to the order passed by this Court dated 24th November 2017 referred to above, the respondents filed a Page 12 of 51 R/SCR.A/6253/2017 CAV JUDGMENT detailed reply explaining how the proceedings were conducted and why no prejudice could be said to have been caused to the writ-applicant by conducting the trial in a summary manner. The contents of the reply are as under :
"I DIG Narendra Singh, CGRHQ (NW), CSO (P&A), do here by solemnly affirm on oath and state as under :
1. In due deference to the query raised by the Hon'ble Court on earlier occasion of hearing, the answering respondent files the present affidavit. The Hon'ble Court had posed a query in respect of existence of judgment/order by which the Commanding Officer had ordered to imposed imprisonment for a term of three months and dismissal of the petitioner from service. In response to the same, it is submitted that as such, the Commanding officer had not rendered any final verdict imposing any punishment on petitioner. As such, he had only proposed to inflict the sentence as per the Coast Guard Act, 1978 and the Rules framed there under.
2. The answering respondent would like to draw the attention of this Honourable court to the relevant provisions of the Coast Guard (Discipline) Rules, 1983 pertaining to the disciplinary procedure to be followed by the Commanding Officer.
Rule 18. Offence report.--Where it is alleged that a person subject to the Act, has committed an offence punishable thereunder the allegation shall be reduced to writing in the form set out in Appendix IIIA.
Page 13 of 51 R/SCR.A/6253/2017 CAV JUDGMENTThus, in the instant case, Commanding Officer, CGS Porbandar had reduced in writing the offence committed by the petitioner as per Appendix IIIA (Offence Report) of the Coast Guard (Discipline) Rules, 1983. A copy of the Offence Report dated 16 Mar 17 consisting of 13 charges is annexed herewith as Annexure R-1.
Next relevant provision is Rule 20 of Coast Guard (Discipline) Rules, 1983 which is as under :-
"Rule 20. Hearing of charge. - (1) Every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused, who shall have full liberty to cross examine any witness against him, and to call such Witness and make such statement as may be necessary for his defence:
Provided that where the charge against the accused arises as a result of investigation by a Board of Inquiry convened under rule 36 of the Coast Guard (General) Rules, 1986 and where the provisions of sub-rule (4) of rule 39 of the principal rules have been complied with, the Commanding Officer may dispense with the above procedure.
(2) The Commanding Officer shall dismiss a charge brought before him, if, in his opinion, the evidence does not show that an offence under the Act has been committed, or if he is satisfied that the charge ought not to be proceeded with:Page 14 of 51 R/SCR.A/6253/2017 CAV JUDGMENT
Provided that the Commanding Officer shall not dismiss a charge under any of the circumstances under rule 21 or for any offence under rule 22.
(3) after compliance of sub-rule (1), if the Commanding Officer is of opinion that the charge ought to be proceeded with, he shall, within a reasonable time-
(a) award any of the punishment which he is empowered to award; or
(b) remand the accused for preparing a record of evidence or an abstract of evidence against him:
Provided that where the Commanding Officer proposes to award any of the punishments under section 57 of the Act, which requires approval, he shall prepare a Record of Evidence or an Abstract of Evidence and forward it alongwith the Punishment Approval Form set out in Appendix III B."
Thus, in the instant case, Commanding Officer, CGS Porbandar in compliance with Rule 20(1) of Coast Guard (Discipline) Rules, 1983 had heard the charge in the presence of the accused/petitioner affording full liberty to the accused / petitioner to cross examine the witnesses etc. The Commanding Officer, CGS Porbandar thereafter remanded the accused for preparing a record of evidence.Page 15 of 51 R/SCR.A/6253/2017 CAV JUDGMENT
3. It is submitted that during the ongoing disciplinary action, the accused/petitioner committed 5 more offences for which the Commanding Officer, CGS Porbandar had again followed the procedure enumerated in Rule 18 and 20 of Coast Guard (Discipline) Rules, 1983 mentioned herein above. A copy of the Offence Report dated 24 May 2017 consisting of 5 additional charges is annexed herewith as Annexure R-2.
4. Thereafter, the provision of Rule 26 of Coast Guard (Discipline) Rules, 1983 is to be complied with by the Commanding Officer which is as under :-
"26. Disposal of case by Commanding Officer after Record or Abstract of evidence. - (1) Where an officer has been detailed to prepare the record of evidence or to make an abstract thereof he shall forward the same to the Commanding Officer.
(2) The Commanding Officer may, after going through the record or abstract of evidence:
(a) dismiss the charge, or
(b) rehear the charge and award one of the summary punishments, or
(c) apply to the Convening Authority to convene a Coast Guard Court for the trial of the accused.Page 16 of 51 R/SCR.A/6253/2017 CAV JUDGMENT
Thus, in the instant, Commanding Officer, CGS Porbandar after considering the evidence in the Record of Evidence had dismissed 4 out of 13 charges preferred in the Annexure R-1 and applied to the Convening Authority to convene a Coast Guard Court for the trial of the accused/petitioner in compliance with Rule 26(2)(c) of Coast Guard (Discipline) Rules, 1983. A copy of the Offence Report dated 29 Mar 17 is annexed as Annexure R-3.
Further, the Commanding Officer, CGS Porbandar after considering the evidence in the Additional Record of Evidence had dismissed 1 out of 5 charges preferred in the Annexure R-2 and applied to the Convening Authority to convene a Coast Guard Court for the trial of the accused/petitioner in compliance with Rule 26(2)(c) of Coast Guard (Discipline) Rules, 1983. A copy of the Offence Report dated 26 May 17 is annexed as Annexure R-4.
Thus it can be seen from Annexure R-1 to R-4, that the Commanding Officer, CGS Porbandar had applied his mind on the evidence in RoE (Record of Evidence) and Addl RoE; and had dismissed few charges. Further, the Commanding Officer vide his letters dated 29 Mar 17 and 26 May 17 have forwarded his analysis of evidence in the form of Circumstantial letter to his superior authority. A copy each of the Circumstantial letters dated 29 Mar 17 and 26 May 17 are annexed as Annexure R-5 and R-6 respectively.
The Respondents take leave of this Hon'ble Court to produce and rely on the evidence brought out in the Record of Page 17 of 51 R/SCR.A/6253/2017 CAV JUDGMENT Evidence and Additional Record of Evidence as and when directed by this Hon'ble Court. Since it is bulky, the same is at this stage not produced.
5. On receipt of the Application for Coast Guard Court from the Commanding Officer, CGS Porbandar, the Convening Authority followed the provisions of Section 51 of the Coast Guard (Discipline) Rules, 1983 which is as under :
"51. Action by the Convening Authority on receiving an application for convening a Coast Guard Court. - As soon as the Convening Authority receives an application for convening a Coast Guard Court it shall scrutinise the charge and the evidence against the accused where necessary in consultation with the Chief Law Officer or a Law Officer and
(i) shall direct the Commanding Officer to dismiss the charge where the evidence against the accused is insufficient and further evidence is not likely to be available and may direct him to do so if considered inadvisable to proceed with the trial ; or
(ii) may return the case to the Commanding Officer for being dealt with summarily if it is considered that the same can be adequately dealt with ; or
(iii) may return the case for recording further evidence if it is considered that the evidence already recorded is insufficient and further evidence may be available."Page 18 of 51 R/SCR.A/6253/2017 CAV JUDGMENT
The Respondents further submit that the charges vis-a-vis the evidence in RoE and Addl RoE along with the Application for Coast Guard Court received from the Commanding Officer, CGS Porbandar was analysed by the Convening Authority at Coast Guard Headquarters.
The Convening Authority, thereafter, as per provisions of Rule 51 of Coast Guard (Discipline) Rules, 1983 returned the case to the Commanding Officer, CGS Porbandar with directions to dismiss few charges for lack of evidence and to try the accused/petitioner summarily on remaining charges.
Thus, it may be seen that the Commanding Officer, CGS Porbandar as well as Convening Authority had independently analysed the evidence on record. The Respondents take leave of this Hon'ble Court to produce and rely on the analysis of evidence carried out by the Convening Authority as and when directed by this Hon'ble Court.
6. On receipt of the directions of the Convening Authority, the CO, CGS Porbandar followed the provisions of Rule 20(3)(a) read with 26(2)(b) of Coast Guard (Discipline) Rules, 1983 reproduced herein above.
Thus, Commanding Officer, CGS, Porbandar reheard the charges and dismissed few of them and decided to award punishment on the remaining charges. The Offence Report dated 27 Jul 17 is annexed as Annexure R-7.
Page 19 of 51 R/SCR.A/6253/2017 CAV JUDGMENT7. In order to award punishment summarily the Commanding Officer, CGS Porbandar followed the following provisions :-
Coast Guard Act, 1978 - Sec 57. Minor punishment - Subject to the provisions of section 58, a Commanding Punishments. Officer or such other officer as is, with the consent of the Central Government, specified by the Director-General may, in the prescribed manner, proceed against a person subject to this Act, otherwise than as an officer, who is charged with an offence under this Act and award such person, to the extent prescribed, one or more of the following punishments, that is to say,--
(a) imprisonment for a period not exceeding three months;
(b) dismissal from the Coast Guard;
(c) detention in Coast Guard custody for a period not exceeding three months;
(d) reduction to the ranks or to a lower rank in the case of sailors;
(e) to (k) xxx xxx xxxx Provided that no punishment specified in clause (a) to
(d) (both inclusive) shall be inflicted,--
(a) in the case of a subordinate officer, unless it is Page 20 of 51 R/SCR.A/6253/2017 CAV JUDGMENT approved by an officer not below the rank of an Inspector-General,"
Proviso of Rule 20(3)(b) of the Coast Guard (Discipline) Rules, 1983 -
"Provided that where the Commanding Officer proposes to award any of the punishments under section 57 of the Act, which requires approval, he shall prepare a Record of Evidence or an Abstract of Evidence and forward it alongwith the Punishment Approval Form set out in Appendix III B."
Rule 28 of Coast Guard (Discipline) Rules, 1983 -
Punishments enumerated in section 57 may be awarded summarily as follows:--
(a) An order for the dismissal of a person from Coast Guard Service whether accompanied by other punishments or not shall be made only with the approval of the Director General;
(b) Punishments {specified in clauses (c) and (d)}10 of section 57 shall not have effect unless the punishment approval form is approval by the Inspector General or Deputy Inspector General as the case may be, under whom the offender is serving;
Thus, the Commanding Officer, CGS Porbandar had Page 21 of 51 R/SCR.A/6253/2017 CAV JUDGMENT proposed the punishment of "Rigorous Imprisonment for 3 months and Dismissal from Coast Guard" on a Punishment Approval Form and forwarded to DGICG. The detailed justification for the proposed punishment was also forwarded by CO CGS Probandar vide letter 27 July 17. A copy of the PAF alongwith letter is annexed herewith as Annexure R-8 and 9 respectively."
8. Thereafter, the DGICG had followed the provision of Rule 28(d) of the Coast Guard (Discipline) Rules, 1983 as follows :
28. Summary Punishments "(d) If an officer having power to approve a punishment may consider for any reason that the punishment proposed is illegal, unjust, or excessive he may cancel, vary or remit the punishment within the limits of the powers of punishment of a Commanding Officer and the punishment so altered shall be the punishment awarded;"
Thus, DGICG i.e., Respondent No.2 after considering and analyzing the facts of the case has varied the punishment of "Rigorous Imprisonment for three months and Dismissal from Coast Guard Service" to "Rigorous Imprisonment for one months and Dismissal from the Coast Guard Service". A copy of the approved punishment is annexed as Annexure R-10.
The Respondents take leave of this Hon'ble Court to produce Page 22 of 51 R/SCR.A/6253/2017 CAV JUDGMENT and rely on the analysis carried out by Respondent No.2 as and when directed by this Hon'ble Court.
9. In addition to the above, it is reiterated that the subject petition is not maintainable on following grounds :
I. The petitioner without resorting to provisions contained in Section 120 of the Coast Guard Act, 1978 has approached this Hon'ble Court under Articles 21, 226 and 227 of the Constitution read with Code of Criminal Procedure, 1973 under the nomenclature of "Special Criminal Application"
whereas, the impugned award of sentence passed by the Commanding Officer is not an order under the Code of Criminal Procedure, 1973 but is a service matter.
II. At this juncture, it would be profitable to bring it on record that the Indian Coast Guard is armed force of the Union raised under the Ministry of Defence. The term service matter is clearly defined under "The Armed Forces Tribunal Act, 2007" as -
Section 3(o) - service matters, in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950), mean all matters relating to the conditions of their service and shall include :-
(i) xxxxx Page 23 of 51 R/SCR.A/6253/2017 CAV JUDGMENT
(ii) xxxxx
(iii) summary disposal and trials where the punishment of dismissal is awarded;
(iv) xxxxx
(v) xxxxx III. That the above provision is analogous to the Coast Guard Act, 1978 which is a Special Law prescribing the mode of investigation, trial, sentence, execution etc. therefore, the matters arising out of the said provisions are required to be conducted in the manner and method prescribed under the said Act.
IV The Apex court in plethora of judgments has held that the Court Martial proceedings (named as Coast Guard Court proceedings in Coast Guard) are only subject to judicial review by the Hon'ble High Court under Article 226 and not subject to the superintendent of the High Court under Article 227 of the Constitution or code of Criminal Procedure Code. Therefore, the present petition deserves to be dismissed on this preliminary ground alone. Regard may be had to the law laid down in this regard by the Hon'ble Supreme Court in following cases :
- UOI vs. Himmatsingh Chahar; reported in (1999)4 SCC
521. Page 24 of 51 R/SCR.A/6253/2017 CAV JUDGMENT
- UOI vs. Major A.Hussain, reported in (1998)1 SCC 537.
V That the UOI has filed an LPA challenging the maintainability of the writ petition in a similar Special Criminal Application No.6652 of 2017 filed by Ex-Coast Guard personnel and decided under the subject nomenclature and the same is pending before this Hon'ble High Court.
VI That the petitioner, without resorting to a departmental remedy available under the Coast Guard Act has approached this Honorable Court whereas on 23 Aug 17, the Honorable High Court without going into merits of the case granted bail to the applicant. The efficacious remedy under Section 120 of the Coast Guard Act, 1978, is available to a person who is tried under the provision of this Act, other than by a Coast Guard Court, to present a petition to the Central Government or to the Director General, as the case may be, against a conviction. Therefore, the petitioner has not made out any exceptional case for the purpose of exercising the (Civil) Writ Jurisdiction when there is an efficacious alternative remedy available to him under the Act.
10. In view of what has been stated herein above, the captioned petition is required to be dismissed."
SUBMISSIONS ON BEHALF OF THE WRIT-APPLICANT :
Mr.Virat Popat, the learned counsel appearing for the writ- applicant, submitted that the manner in which the respondents Page 25 of 51 R/SCR.A/6253/2017 CAV JUDGMENT dealt with the entire matter smacks of bias and malice towards the writ-applicant. According to Mr.Popat, the fundamental as well as the legal rights guaranteed to the writ-applicant as enshrined under Article 21 of the Constitution of India could be said to have been infringed. Mr.Popat would submit that although the law empowers the authorities concerned to try the offence summarily, yet the same would be justified only for the purpose of imposing minor penalties. In the present case, the writ-applicant has not only been sentenced to imprisonment but has also been ordered to be dismissed from service. The punishment of dismissal is a major punishment. Mr.Popat would submit that the power of summary trial is required to be exercised rarely and that too only when it is absolutely necessary to do so. To put it in other words, according to Mr.Popat, it is only if an immediate action is necessary or warranted in the facts and circumstances of the case that summary trial could be resorted to. The principal argument of Mr.Popat is that even while taking the decision of summary trial, the satisfaction in that regard must either be articulated in writing or should be available on record. In the absence of the same, the decision of the authority cannot be justified in law.
Mr.Popat would submit that the authority concerned ought to have convened the Coast Guard Court rather than trying the writ-applicant summarily.
In such circumstances referred to above, Mr.Popat would submit that the impugned orders be quashed and the matter be remitted to the authority concerned for taking a fresh decision by assigning reasons as to why it is necessary to try the writ-Page 26 of 51 R/SCR.A/6253/2017 CAV JUDGMENT
applicant summarily.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS :
On the other hand, this writ-application has been vehemently opposed by Mr.Devang Vyas, the learned Assistant Solicitor General of India appearing for the respondents. Mr.Vyas has raised a preliminary objection with regard to the maintainability of this writ-application on the ground that the writ-applicant has an alternative remedy by way of an appeal before the Central Government in accordance with Section 120 of the Act, 1978. In such circumstances, Mr.Vyas submitted that this writ-application may not be decided on merits and the writ- applicant should be asked to exhaust the alternative remedy available in law. Mr.Vyas submitted that even otherwise on merits the writ-applicant has no case. He would submit that the charges which came to be framed and stood proved are quite serious in nature. In such circumstances, the authority was justified in imposing punishment of rigorous imprisonment for a period of one month and also dismissal from the Coast Guard service.
According to Mr.Vyas, Section 57 of the Act, 1978, stipulates minor punishments. Imprisonment for a period not exceeding three months and dismissal from the Coast Guard service fall within minor punishments as provided under Section 57 of the Act, 1978. He further pointed out that as soon as the convening authority receives an application for convening a Coast Guard Court, the authority concerned is obliged to scrutinize the charge and the evidence against the accused and has three options; (i) it may direct the Commanding Officer to Page 27 of 51 R/SCR.A/6253/2017 CAV JUDGMENT dismiss the charge if the evidence against the accused is insufficient, (ii) may return the case to the Commanding Officer for being dealt with summarily if it is considered that the same can be adequately dealt with, or (iii) may return the case for recording further evidence if it is considered that the evidence already recorded is insufficient and further evidence is necessary or available. This, according to Mr.Vyas, is in tune with Rule 51 of the Rules, 1983. According to Mr.Vyas, the discretion is with the Commanding Officer, whether to convene a Coast Guard Court or try the accused summarily.
Mr.Vyas would submit that having regard to the materials on record and the nature of the charges, the Commanding Officer thought fit to ask the convening authority to try the writ- applicant summarily, and having done so, it cannot be said that the authority committed any illegality or such action or decision caused serious prejudice to the writ-applicant or the writ- applicant was not in a position to defend himself. Mr.Vyas submitted that the Act, 1978, also provides that in an appropriate case even an FIR can be registered for the alleged offence at the concerned police station.
In such circumstances referred to above, Mr.Vyas prays that there being no merit in this writ-application, the same may be rejected.
ANALYSIS :
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question Page 28 of 51 R/SCR.A/6253/2017 CAV JUDGMENT that falls for my consideration is, whether the authorities committed any error in imposing the punishment of rigorous imprisonment and dismissal for the Coast Guard service.
Let me first deal with the preliminary objection raised by Mr.Vyas, the learned counsel appearing for the respondents, as regards the maintainability of this writ-application on the ground of alternative remedy. The alternative remedy which Mr.Vyas, the learned counsel, is talking about is in the form of a revision or a representation to the Central Government under Section 120 of the Act, 1978. Section 120 of the Act, 1978, is extracted hereunder :
"120. Powers of Central Government and Director General in respect of findings and sentences. (1) Where any person is tried under the provisions of this Act, the Central Government or the Director-General may, in the case of a conviction, --
(a) set aside the finding and sentence and acquit or discharge the accused or order him to be re-tried; or
(b) alter the finding without modifying the sentence if such sentence may be legally passed on the altered finding ; or
(c) with or without altering the finding, reduce the sentence or commute the punishment awarded for any punishment inferior in scale; or
(d) either with or without conditions, pardon the person or Page 29 of 51 R/SCR.A/6253/2017 CAV JUDGMENT remit the whole or any part of the punishment awarded; or
(e) with or without conditions release the person on parole:
Provided that a sentence of imprisonment shall not be commuted for a sentence of detention for a term exceeding the term of imprisonment awarded:
Provided further that nothing in this sub-section shall authorise the Central Government or the Director-General to enhance the sentence.
(2) Any sentence modified under the provisions of sub-
section (1) shall be carried into execution as if it had been originally passed.
(3) If any condition on which a person has been pardoned or has been released on parole or a punishment has been remitted is in the opinion of the authority which granted the pardon, release or remission not fulfilled, such authority may cancel the pardon or release or remission and thereupon the sentence awarded shall be carried into effect as if such pardon, release or remission had not been granted: Provided that in the case of a person sentenced to imprisonment or detention, such person shall undergo only the unexpired portion of the sentence."
It would be rather in the form of a petition as evident on plain reading of Section 119 of the Act, 1978.
Page 30 of 51 R/SCR.A/6253/2017 CAV JUDGMENTIn my view, although Section 120 provides for some remedy in the form of filing a petition or a representation addressed to the Central Government, yet the same by itself cannot be said to be an alternative efficacious remedy. In any case, Section 120 of the Act, 1978, is not in the form of an appeal. At best, under Section 120 of the Act, 1978, the Central Government may review or revise the decision. In such circumstances, I am not much impressed with the preliminary objection raised on behalf of the respondents as regards the alternative remedy. It will not be appropriate for this Court at this point of time to relegate the writ-applicant to prefer a petition or a representation addressed to the Central Government. In such circumstances, I overrule the preliminary objection and proceed to consider the matter on other grounds.
The writ-applicant was one of the members of a disciplined force. He was expected to maintain high degree of discipline in a force like the Coast Guard. However, it would be too much to say that being a member of a disciplined force he was not entitled for a reasonable opportunity and should be deprived of a fair inquiry. It is a settled law that the disciplinary authority should not commence the inquiry or summary trial with an element of bias. I propose to concentrate and address myself only on one ground and that is, whether the decision taken to try the writ- applicant summarily could be said to be in accordance with law, or to put in other words, in accordance with the principles of natural justice. At this stage, let me look into Rule 51 of the Rules, 1983. Rule 51 is extracted hereunder :
"51. Action by the Convening Authority on receiving an Page 31 of 51 R/SCR.A/6253/2017 CAV JUDGMENT application for convening a Coast Guard Court. - As soon as the Convening Authority receives an application for convening a Coast Guard Court it shall scrutinise the charge and the evidence against the accused where necessary in consultation with the Chief Law Officer or a Law Officer and
(i) shall direct the Commanding Officer to dismiss the charge where the evidence against the accused is insufficient and further evidence is not likely to be available and may direct him to do so if considered inadvisable to proceed with the trial; or
(ii) may return the case to the Commanding Officer for being dealt with summarily if it is considered that the same can be adequately dealt with; or
(iii) may return the case for recording further evidence if it is considered that the evidence already recorded is insufficient and further evidence may be available."
In the case on hand, the convening authority did receive an application for convening a Coast Guard Court, and on scrutiny of the charge and the evidence, thought fit to direct the Commanding Officer to deal with the case summarily. Having regard to the fact that the convening authority thought fit to deal with the matter summarily, I requested Mr.Vyas, the learned counsel, to call for the original file so as to look into the decision of the convening authority in that regard. To put it in other words, this Court wanted to know as to in what manner such decision was taken and whether any reasons have been assigned while taking such decision. The file was made available. The Page 32 of 51 R/SCR.A/6253/2017 CAV JUDGMENT perusal of the file revealed that no reasons were assigned or anything relevant was noted or observed so as to reflect the mind of the convening authority when it took the decision to try the writ-applicant summarily. It makes a lot of difference when a Coast Guard Court is constituted for the purpose of trial and when the accused is tried summarily. When a Coast Guard Court is constituted, the same would consist of not less than five officers, each of whom has held the post of Assistant Commandant for not less than three years. The senior member would be the Presiding Officer. Chapter VIII of the Act, 1978, provides for a detailed procedure of the Coast Guard Courts. Chapter XI of the Act, 1978, provides for judicial review of the proceedings of the Coast Guard Courts. Thus, it would make a lot of difference that the accused is tried accordingly by the Coast Guard Court or the criminal court in accordance with the provisions of the Code of Criminal Procedure. Rule 25 of the Rules, 1983, also provides for investigation of cases by police. At this stage, let me look into Rule 26 of the Rules, 1983, which reads thus :
"26. Disposal of case by Commanding Officer after Record or Abstract of evidence. - (1) Where an officer has been detailed to prepare the record of evidence or to make an abstract thereof he shall forward the same to the Commanding Officer.
(2) The Commanding Officer may, after going through the record or abstract of evidence:
(a) dismiss the charge, or Page 33 of 51 R/SCR.A/6253/2017 CAV JUDGMENT
(b) rehear the charge and award one of the summary punishments, or
(c) apply to the Convening Authority to convene a Coast Guard Court for the trial of the accused."
The Commanding Officer did apply to the convening authority to convene a Coast Guard Court for the trial of the accused. He could have even reheard the charge and awarded one of the summary punishments.
Having regard to the above, the importance to take the decision to try the accused summarily with all seriousness should not be undermined. From the record available or from any other source, something should be borne out to the satisfaction of the court that the Commanding Officer did apply his mind on all the relevant aspects and ultimately took the decision for dealing with the matter summarily. It is in this regard that reasons even in brief may be helpful to the court in arriving at the satisfaction that the decision was taken after due consideration of all the relevant aspects.
In the aforesaid context, let me go straight to the decision of the Supreme Court in the case of Union of India and others v. Vishav Priya Singh, (2016)8 SCC 641. The Supreme Court had the occasion to consider the provisions of the Army Act, 1950. The Supreme Court, after an exhaustive review of the various provisions as noted in paragraphs 13 to 18, ultimately observed as under :
Page 34 of 51 R/SCR.A/6253/2017 CAV JUDGMENT"19. Chapter X of the Act after setting out four kinds of Courts Martial, deals with issues like who is empowered to convene such Courts-Martial, composition of such Courts Martial and the powers of such Courts-Martial. According to Section 118, a GCM has power to try any person subject to the Act for any offence punishable therein and to pass any sentence authorized by the Act. Reading of Section 112 shows that while on active service an SGCM can be convened if having due regard to discipline and exigencies of the service, satisfaction is arrived at that it would not be practicable to try the offence by a GCM. According to Section 118, such SGCM is again empowered to try any person subject to the act for any offence punishable therein and to pass any sentence authorized thereby. Section 119 of the Act states that in respect of any person other than an officer, Junior Officer, a DCM can also be convened but Section 119 limits the power of punishment, in that a DCM cannot pass a sentence of death, transportation or imprisonment for a term exceeding two years. Further, a DCM cannot sentence a Warrant Officer to imprisonment. Sections 109, 112 and 119 confer power to convene such GCM, SGCM and DCM respectively upon the Authorities mentioned in the respective sections. The composition of GCM, SGCM and DCM are again set out in Sections 113, 115 and 114 respectively.
20. As regards SCM, Section 120 stipulates that an SCM may try any offence punishable under the Act but sub- Sections (4) and (5) limit the award of sentence. According to sub-Section (4), an SCM can pass any sentence which may be prescribed under the Act, except a sentence of death or Page 35 of 51 R/SCR.A/6253/2017 CAV JUDGMENT transportation or of imprisonment of a term exceeding the limit specified in sub-Section (5). Sub-Section (5) of Section 120, then prescribes the limit to the level of one year, if the officer holding the SCM is of the rank of Lieutenant Colonel and upwards and at the level of three months if the officer holding the SCM is below the rank of Lieutenant Colonel.
21. Section 116 of the Act empowers the CO of any Corps, Department and Detachment of the regular Army to hold an SCM and specifically states that he alone shall constitute the Court. Sub-Section (2) then prescribes that the proceedings shall, however, be attended through-out by two other persons specified therein. However, such persons are not to be sworn or affirmed. Unlike Sections 113, 115 and 114, where composition of the concerned Court-Martial is prescribed to consist of atleast three officers, it is the CO alone who constitutes the Court under Section 116 in respect of SCM. Further, under Rules 39 and 40 of the Rules, CO of the accused, or of the Corps to which the accused belongs is specifically disqualified for serving on a GCM or DCM and composition of a GCM ought to compose of officers of different corps or departments. However no such restriction applies to SCMs and in fact the CO himself must constitute the Court. The Act has thus given drastic power to one single individual, namely, the CO who alone is to constitute the Court. No doubt, this power comes with restrictions insofar as the power to award sentence is concerned in terms of sub-Sections (4) & (5) of Section 120. However even with such restrictions the power is quite drastic. The reason for conferment of such power is obvious that in order to maintain Page 36 of 51 R/SCR.A/6253/2017 CAV JUDGMENT discipline among the soldiers and units, the CO must have certain special powers, for it is the discipline which to a great extent binds the unit and makes it a cohesive force.
22. The High Court of Delhi was therefore completely correct in observing that such power must be exercised rarely and when it is absolutely imperative that immediate action is called for. The satisfaction in that behalf must either be articulated in writing or be available on record, specially when the matter can be considered on merits by a tribunal, with the coming into force of the Armed Forces Tribunals Act, 2007."
In S.N.Mukherjee v. Union of India (1990)4 SCC 594, the Supreme Court observed as under :
"....The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision-making. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the stand point of policy and expediency."
In Sheel Kr. Roy v. Secretary, Ministry of Defence and Page 37 of 51 R/SCR.A/6253/2017 CAV JUDGMENT others, (2007)12 SCC 462, the Supreme Court observed in connection with a matter relating to Court Martial and Armed Forces as under :
"17. Fairness and reasonableness in the action of the State whether in a criminal proceeding or otherwise is the hallmark of Article 14 of the Constitution of India. The doctrine of proportionality is one of the grounds on the basis whereof the power of judicial review could be exercised. It was so held in Ex.Naik Sardar Singh vs. Union of India and Ors., 1991(3) SCC 213.
18. We may also notice that in Ranjit Thakur vs. Union of India and Ors. reported in 1987(4) SCC 611, this Court held :
"The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court- Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."Page 38 of 51 R/SCR.A/6253/2017 CAV JUDGMENT
.....It is now a well settled legal principle which has firmly been accepted throughout the world that a person merely by joining Armed Forces does not cease to be a citizen or be deprived of his human or constitutional right. This aspect of the matter has been considered by a Division Bench of the Delhi High Court in Nirmal Lakra vs. Union of India and Ors. reported in 2003(1) SLJ 151."
Thus, in view of the above, I have reached to the conclusion that the decision taken by the convening authority to try the accused summarily could not be said to be in accordance with law. The same could be said to have caused a serious prejudice to the writ-applicant herein in the absence of any material on record to indicate, whether there was any proper application of mind on behalf of the convening authority while taking the decision to try the writ-applicant summarily.
The counsel appearing for the respondents made extensive arguments on the provenance, origin, nature and need for holding the trial summarily. Although India is a Republic, yet the rights of the Army personnels remain emasculated to a substantial and significant extent. The personnels of the Armed Forces or Border Security Forces are entitled as much as any other citizen to the protection of the Constitution of India. The Supreme Court had observed over 30 years ago and reiterated regularly thereafter that service in the Armed Forces can no longer be viewed as a support or adjunct of the Rulers.
In Lt. Col. Prithi Pal Singh Bedi v. Union of India and Ors., the Supreme Court hoped and stressed that changes all over the Page 39 of 51 R/SCR.A/6253/2017 CAV JUDGMENT English-speaking democracies would awaken the Parliament to the changed system as regards the Armed Forces. It was pointed out that merely by joining the Armed Forces a person does not cease to be a citizen so as to be wholly deprived of his rights under the Constitution of India. The Supreme Court expressed its anguish and concern in the following terms:-
"44. Reluctance of the Apex Court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering Armed Forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Batra v. Delhi Administration, that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to crate a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilized community governed by the liberty-oriented constitution. Personal liberty makes for the worth of human being and is a cherished and prized right.
Deprivation thereof must be preceded by an enquiry Page 40 of 51 R/SCR.A/6253/2017 CAV JUDGMENT ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the criminal curt and the court martial is apt to generate dissatisfaction arising out of this differential treatment. Even though it is pointed out that the procedure of trial by court martial is almost analogous to the procedure of trial in the ordinary criminal courts, we must recall what Justice William O'Douglas observed :
"[T]hat civil trial is held in an atmosphere conducive to the protection of individual rights while a military trial is marked by the age-old manifest destiny of retributive justice. Very expression 'court martial' generally strikes terror in the heart of the person to be tried by it. And somehow or the other the trial is looked upon with disfavor."
In Reid v. Covert 1 L Ed 2D 1148 : 354 US 1 (1957), Justice Black observed at page 1174 as under:
"Courts martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of "command influence". In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court martial must look to the appointing officer for promotions, advantageous assignments and Page 41 of 51 R/SCR.A/6253/2017 CAV JUDGMENT efficiency ratings-in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges."
Absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment is a glaring lacuna in a country where a counterpart civilian convict can prefer appeal after appeal to hierarchy of courts. Submission that full review of finding and/or sentence in confirmation proceeding under Section 153 is provided for is poor solace. A hierarchy of courts with appellate powers each having its own power of judicial review has of course been found to be counter-productive but the converse is equally distressing in that there is not even a single judicial review. With the expanding horizons of fair play in action even in administrative decision, the universal declaration of human rights and retributive justice being relegated to the uncivilized days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil personnel. Any is always on alert for repelling external aggression and suppressing internal disorder so that the peace-loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of this order. And it must be realized that an appeal from Ceaser to Ceaser's wife Page 42 of 51 R/SCR.A/6253/2017 CAV JUDGMENT confirmation proceeding under Section 153 has been condemned as injudicious and merely a lip sympathy to form. The core question is whether at lest there should be one appeal to a body composed of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishment being commensurate with the gravity of the offence charged. Judicial approach by people well-versed in objective analysis of evidence trained by experience to look at facts and law objectively, fair play and justice cannot always be sacrificed at the altar of military discipline. Unjust decision would be subversive of discipline. There must be a judicious admixture of body. And nothing revolutionary is being suggested. Our Army Act was more or less modeled on the U.K. Act. Three decades of its working with winds of change blowing over the world necessitates a second look so as to bring it in conformity with liberty-oriented constitution and rule of law which is the uniting and integrating force in our political society. Even U.K. has taken a step of far-reaching importance for rehabilitating the confidence of the Royal Forces in respect of judicial review of decisions of court martial. U.K. had enacted a Court Martial (Appeals) Act of 1951 and it has been extensively amended in Court Martial (Appeals) Act, 1968. Merely providing an appeal by itself may not be very reassuring but the personnel of the appellate court must inspire confidence. The court martial appellate court consists of the ex officio and ordinary judges of the Court of Appeal, such of the judges of the Queen's Bench Division as the Lord Chief Justice may nominate after consultation with the Master of the Rolls, such of the Lords, Page 43 of 51 R/SCR.A/6253/2017 CAV JUDGMENT Commissioners of Justiciary in Scotland as the Lord Chief Justice generally may nominate such Judges of the Supreme Court of the Northern Ireland as the Lord Chief Justice of Northern Ireland may nominate and such of the persons of legal experience as the Lord Chancellor may appoint. The court martial appellate court has power to determine any question necessary to be determined in order to do justice in the case before the court and may authorize a new trial where the conviction is quashed in the light of fresh evidence. The court also has power inter alia, to order production off documents or exhibits connected with the proceedings, order the attendance of witnesses, receive evidence, obtain reports and the like from the members of the court martial or the person who acted as Judge- Advocate, order a reference of any question to a Special Commissioner for Enquiry and appoint a person with special expert knowledge to act as an assessor. Frankly the appellate court has power to full judicial review unhampered by any procedural claptrap."
"45. Turning towards the U.S.A., a reference to Uniform Code of Military Justice Act, 1950, would be instructive. A provision has been made for setting up of a court of military appeals. The Act contained many procedural reforms and due process safeguards not then guaranteed in civil courts. To cite one example, the right to legally qualified counsel was made mandatory in general court martial cases 13 years before the decision of the Supreme Court in Gideon v. Wainwright 372 US 335 (1963). Between 1950 and 1968 when the Administration of Justice Act, 1968 was Page 44 of 51 R/SCR.A/6253/2017 CAV JUDGMENT introduced, many advances were made in the administration of justice by civil courts but they were not reflected in military court proceedings. To correct these deficiencies the Congress enacted Military Justice Act, 1968, the salient features of which are : (1) a right to legally qualified counsel guaranteed to an accused before any special court martial ; (2) a military judge can in certain circumstances conduct the trial alone and the accused in such a situation is given the option after learning the identity of the military judge of requesting for the trial by the judge alone. A ban has been imposed on command interference with military justice, etc. Ours is still an antiquated system. The wind of change blowing over the country has not permeated the close and sacrosanct precincts of the Army. If in civil courts the universally accepted dictum is that justice must not only be done but it must seem to be done, the same holds good with all the greater vigour in case of court martial where the judge and the accused don the same dress, have the same mental discipline, have a strong hierarchical subjugation and a feeling of bias in such circumstances is irremovable. We, therefore, hope and believe that the changes all over the English-speaking democracies will awaken our Parliament to the changed value system. In this behalf, we would like to draw pointed attention of the Government to the glaring anomaly that courts martial do no even write a brief reasoned order in support of their conclusion, even in cases in which they impose the death sentence. This must be remedied in order to ensure that a disciplined and dedicated Indian Army may not nurse a grievance that the substance of justice and fair lay is denied to it."Page 45 of 51 R/SCR.A/6253/2017 CAV JUDGMENT
The Supreme Court in Union of India and Anr. v. Charanjit S.Gill and Ors., (2000)5 SCC 742, lamented saying that the Parliament had failed to take any action despite the observation made in Prithi Pal Singh's case (supra) that time has come to allay the apprehension of all concerned that the system of trial by Court Martial was not the archetype of summary and arbitrary proceedings. It was observed:-
"11. In the absence of effective steps taken by Parliament and the Central Government, it is the constitutional obligation of the courts in the country to protect and safeguard the constitutional rights of all citizens including the persons enrolled in the Armed Forces to the extent permissible under law by not forgetting the paramount need of maintaining the discipline in the Armed Forces of the country."
The Supreme Court noticed the submissions that upon general survey of the provisions of the Army Act and the Army Rules, a Judge-Advocate for all intent and purport is the Court and the Court Martial is the Jury so far as trial of the accused is concerned, although did not agree with it wholly, but observed that the same is not totally without substance. Again upon noticing that the justice dispensation system in the Army is based upon the system prevailing in Great Britain in great detail, it was held that unless a fit person is appointed a Judge- Advocate, the entire proceedings would be vitiated in law.
Page 46 of 51 R/SCR.A/6253/2017 CAV JUDGMENTThe question arises is as to whether the benefits of the liberal spirits of the Constitution would be totally deprived to a class of citizens, namely, those who are engaged in defending the country against external aggression and those who serve the country in peace as much as in war. A person may not have a Fundamental Right, yet he is entitled to the benefits of the Charter of Human Rights. Despite denial of some of the provisions contained in Part III of the Constitution, he is entitled to compliance of the principles of natural justice.
The citizens as also the aliens are entitled to a trial governed by rule of law in a Court of Law presided over by experienced Judge having a hierarchy therefore. Furthermore, a person's Right to Life and Liberty as guaranteed under Article 21 of the Constitution of India cannot be allowed to be torpedoed in a casual manner. The Army personnel like others having regard to the expanded definition of Article 21 of the Constitution of India are entitled to preservation of his reputation as also his livelihood and protection from oppression. B.S.F. Officer may not have the right of protection granted to the Civil Servants under the Constitution of India, but are entitled to compliance of the procedures laid down under the said Act and Rules framed there under. History of procedure is the history of liberty. Thus, denial to the officer from the established procedure, particularly those, which are mandatory in nature, would vitiate a proceeding. Even, the directory provisions are required to be substantially complied with.
A person in 'khakhi' indisputably is entitled to the Page 47 of 51 R/SCR.A/6253/2017 CAV JUDGMENT protection of human rights. Thus, even if the protection as envisaged in Part III of the Constitution of India are not fully available, the fair procedure doctrine must be read into the provisions of the said Act and the Rules. I must notice that the procedures contemplated under the said Act are not judicial proceedings; they are more akin to the administrative proceedings.
The principles of natural justice have three basic pillars; assigning of reason(s) is one of them. It is a trite law that whenever civil or evil consequences are ensued by reason of an administrative order, the principles of natural justice are required to be complied with.
A Division Bench of the Delhi High Court, in the case of Ex.L.N.Vishav Priya Singh and others v. Union of India, 2008(147) DLT 202, which has been approved by the Supreme Court in Union of India vs. Vishav Priya Singh (supra), observed as under :
"20. An SCM can legitimately be convened where there is grave and compelling cause for taking immediate action which would be defeated if reference to a District Court Martial or Summary General Court Martial is made. In other words, holding of an SCM is the exception and not the rule. From the multitude of possible offences it is only those envisaged in Sections 34, 37 and 69, that can be tried by an SCM, further fortifying the exceptional and extraordinary character of an SCM. We think it necessary to underscore Page 48 of 51 R/SCR.A/6253/2017 CAV JUDGMENT that it is not proper to convene an SCM merely because the offence(s) with which a sepoy of the force is charged finds mention in the enumeration contained in these three Sections. What is of preeminence in convening an SCM is that it should be found imperative that immediate action is manifestly necessary. Therefore, it is essential that this factor, viz. need to hold a trial immediately, is articulated and reasoned out in writing in the order convening the SCM. Failure to do so would create good reason to quash the SCM itself. Routinely, and certainly far too frequently, the sentence passed by SCMs violates the spirit of Regulation 448(c) (supra) thereby taking away the sepoys' livelihood without affording them the normal procedural protections of law.
21. In the United States of America the position is similar to that obtaining in the United Kingdom. The function of the SCM is to promptly adjudicate minor offences under a simple procedure expecting the SCM to impartially inquire into the merits of the case on both sides. The maximum punishment awarded by an SCM does not include death, dismissal, dishonourable or bad conduct discharge, hard labour without confinement for more than 45 days, restriction to specified limits for more than 2 months or forfeiture of more than 2/3rd of one month pay. If the accused is above the 4th enlisted pay grade, the SCM can only reduce him to the 4th enlisted pay grade. Rule 1303 gives the right to the accused to object to the trial by an SCM. This comparison between the SCM regime prevailing in India, and that presently existing in the United States and/or United Kingdom presents a sad Page 49 of 51 R/SCR.A/6253/2017 CAV JUDGMENT picture, which portrays that the law in India remains a vestige of the colonial era. Mindful of the fact that Article 33 of the Constitution of India confers unbridled powers on Parliament to bring into place a situation which severely abridges the Fundamental Rights of a citizen it becomes the bounden duty of the Courts to ensure that the equality doctrine is not needlessly nullified. It also becomes essential that the Courts should interpret the law in a manner which will reduce to the minimum the inroads into the infrangible rights contained in Chapter III of the Constitution."
In view of the aforesaid discussion, I have reached to the conclusion that the matter needs to be remitted to the competent authority, i.e. the Director General, Indian Coast Guard, to take a fresh decision with proper application of mind and reasons, whether the writ-applicant should be tried summarily as regards the charges at Serial Nos.(i), (iii), (v), (vi), (viii) and (x) or it would be in the interest of justice to constitute a Coast Guard Court and conduct the trial.
In the result, this writ-application is partly allowed. The impugned order of punishment of imprisonment as well as dismissal from service is hereby quashed and set-aside. The competent authority, i.e. the Director General, Indian Coast Guard, shall take a fresh decision with proper application of mind and reasons, whether the writ-applicant should be tried summarily as regards the charges at Serial Nos.(i), (iii), (v), (vi),
(viii) and (x) or it would be in the interest of justice to constitute a Coast Guard Court and conduct the trial.
Page 50 of 51 R/SCR.A/6253/2017 CAV JUDGMENTThe competent authority, i.e. the Director General, Indian Coast Guard, while taking an appropriate decision, shall keep in mind the observations of this Court including the various judgments of the Supreme Court discussed in the judgment.
Let this exercise be undertaken at the earliest and an appropriate decision shall be taken within a period of two weeks from the date of receipt of this order.
A copy of this judgment and order be furnished to Mr.Virat Popat, the learned counsel appearing on behalf of the writ- applicant as well as to Ms.Trusha Patel, the learned counsel appearing on behalf of the Border Security Force.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 51 of 51