Madras High Court
S.K.Singh vs The Director-General on 20 September, 2011
Author: D.Murugesan
Bench: D.Murugesan, K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.09.2011
CORAM
THE HONOURABLE MR.JUSTICE D.MURUGESAN
and
THE HONOURABLE MR.K.K.SASIDHARAN
W.A.No.1918 of 2010
S.K.Singh .. Appellant
Vs
1. The Director-General
Coast Guard Headquarters,
National Stadium Complex,
New Delhi.
2. The Commander
Coast Guard Station (East),
Near Napier Bridge,
Chennai.
3. The Chief Law Officer,
Coast Guard Head Quarters,
National Stadium Complex,
New Delhi.
4. Ministry of Defence
Rep. by Secretary,
Central Secretariat,
New Delhi.
5. V.J.S.Chawla
6. Randeep Wadhwa
7. Rajan Bargotra
8. Kanwal Bhari Lal
9. T.Kumaran Sathish Chandran
10.Gurusharan Singh
11.K.R.Nautiyal
12.Navin Chandra Pandey
13.SED Ananda Kumar
(R4-R13 impleaded as per
Order of Court dt.30.04.2009
in WPMP.290/2008) .. Respondents
Writ Appeal against the order of this Court dated 09.06.2010 made in W.P.No.13059 of 2006.
For Appellant : Mr.G.Rajagopalan, S.C.
For Mr.G.M.Syed Nurullah
For Respondents : Mr.M.L.Ramesh, S.P.C.
* * * * *
J U D G M E N T
D.MURUGESAN, J.
The writ appeal is directed against the order dated 09.06.2010 dismissing the writ petition filed by the appellant and it arises under the following circumstances.
2.(a) The appellant joined the Indian Coast Guard service on 04.02.1980 as Assistant Commandant. Thereafter, he was promoted as Deputy Commandant and then, as Commandant. He was posted as Commanding Officer of Coast Guard Office at Tuticorin and has served in that capacity between May 1996 and June 2000. Thereafter, he was transferred to Coast Guard Station at Chennai.
(b) While he was serving as Commanding Officer of Coast Guard station at Tuticorin, two Deputy Commandants reported duty and the appellant did not assign duties of the station to both the officers and kept the duties of the Supply Officer along with certain other duties with himself throughout his tenure as Commanding Officer of Coast Guard station at Tuticorin. Later, when the Assistant Commandant, by name D.K.Chauhan reported duty on permanent transfer at Tuticorin, the appellant assigned him the duties of Station Technical Officer and Officer Incharge of Interceptor Crafts. The said Assistant Commandant made a representation through his Executive Officer for the Commandant alleging mental harassment and certain financial irregularities, which he had noticed. The said representation was not forwarded to the Regional Headquarters (East). Thereafter, the appellant was transferred to the Coast Guard Station at Chennai.
(c) The said Assistant Commandant D.K.Chauhan, once again sent another representation to the new Commanding Officer bringing out the facts about harassment and irregularities during the appellant's tenure by enclosing the copy of the earlier representation submitted by him during July, 2000. Those representations were investigated by the Commanding Officer at the instructions of Regional Headquarters (E) and a report was also submitted to the higher authorities.
(d) Based on the report, the Commanding Officer convened two Boards of Enquiry for investigating the circumstances leading to the irregularities and the enquiry revealed serious financial and other irregularities, which were attributable to the appellant and other enrolled persons of the Station. After perusing the proceedings of the Board of Enquiry, the Director General, Coast Guard Headquarters, directed to take disciplinary action against the appellant and other persons, who were responsible for the specific lapses on their part in accordance with Rule 21 of the Coast Guard (Discipline) Rules, 1983. Accordingly, thirteen (13) charges were framed against the appellant.
(e)The Director General, Coast Guard Headquarters, on being satisfied with the prima facie evidence relating to those charges, convened a Coast Guard Court for trial of the appellant. Accordingly, Coast Guard Court conducted the trial and found the appellant guilty of ten charges out of thirteen and finally, awarded the sentence of dismissal from service in terms of Section 53 of Coast Guard Act in its order dated 05.06.2002. The said order was taken on appeal to the Director General, Coast Guard Headquarters, who confirmed the same vide communication dated 30.09.2002. Being aggrieved by the above orders, the appellant unsuccessfully challenged them in the writ petition.
3.We have heard Mr.G.Rajagopalan, learned senior counsel appearing for the appellant and Mr.M.L.Ramesh, learned counsel appearing for the respondents.
4.Mr.G.Rajagopalan, learned senior counsel, would submit that though the orders were questioned on the ground that no reasons were adduced in the order for imposing sentence, in view of the judgment of the Apex Court in S.N.Mukherjee v. Union of India, A.I.R. 1990 SC 1984, the said submission is not pressed into service. However, he made the following submissions assailing the impugned orders in the writ petition:-
a) In the event, the summing up of the Law Officer, which is the basis for the order of sentence, does not suggest any definite proved guilty on the part of the appellant and in the event, the summing up suggested for consideration of the Coast Guard Court to take a decision on the summing up one way or other, the benefit of doubt must be given to the appellant. In this context, he would rely upon paragraph 47 (ii) (e) of the summing up proceedings.
b) In view of the observation made in paragraph 48 of the judgment of the Supreme Court in S.N.Mukherjee's case, referred to above, it is open to the person aggrieved by such an order, which does not give any reason for sentence, to challenge the validity of the same before the Apex Court under Article 32 of the Constitution of India or before the High Court under Article 226 of the Constitution of India and he can obtain appropriate relief in those proceedings. In view of the same, the power of judicial review is available to this Court to find out as to whether on the face of the summing up of the Law Officer, the sentence of dismissal could be sustained or not.
c) In terms of Section 51(1) of the Coast Guard Act, 1978, no person shall be tried or punished for any offence committed by him unless such trial commences within three years from the commission of such offence. However, from the records, it transpires that the trial commenced on 08.05.2002 and the clubbing of charges for the offence committed three years prior to the said date, vitiates the entire proceedings.
(d) The Prosecutor and the Assistant Prosecutor were the Presiding Officers of the Board of Enquiry and in view of Rule 52 of the Coast Guard (Discipline) Rules, 1983, they are disqualified to assist the trial.
(e) The appellant requested for copies of certain documents and the non-production of those vital documents vitiates the entire proceedings.
(f) The other three accused who were also responsible for the irregularities and who were also charged with similar offences, were not punished and they were let off.
(g) Finally, the learned Judge ought not to have dismissed the writ petition on the ground of laches as well.
5.In response to the above submissions of Mr.G.Rajagopalan, learned senior counsel, we have heard Mr.M.L.Ramesh, learned counsel for the respondents.
6.As far as the question as to whether the Coast Guard Court should give reasons while imposing conviction in terms of Rule 93 is concerned, in the absence of any specific stipulation under the rule for recording reasons, as has been held by the Apex Court in S.N.Mukherjee's case, cited supra, it must be held that the reasons are not required to be recorded for an order passed by the original authority as well as the authority confirming such an order. Nevertheless, as has been held by the Apex Court in paragraph 48 of the said judgment, even though there is no requirement to record reasons by the authority, it is open to the person aggrieved by such an order to challenge the validity of the same before the Apex Court or before the High Court.
7.Keeping the above law in mind, the issues must be considered. As far as the first contention, viz., that there is no definite finding in the summing up of the Law Officer in paragraph 47 (ii) (e) is concerned, we may extract the said paragraph, which reads as hereunder:-
47 (ii)(e). In the light of above direct oral and documentary evidence, now you have to decide that whether the accused had no means to check the correctness of these bills put up to him, whether these bills found mention in the caption approval register, why the same have been processed through these sailors only and why the station technical officer was not involved. Was the accused not aware about the actual sailing of the Interceptor Craft, generator and the unit motor cycle. Further, whether the statement by the PW.5, PW.11 and PW.14 finds due corroboration in the forms of testimony of other witnesses and the documents produced before the Honourable Court. The Court has to satisfy themselves that the statement of these witnesses have been thoroughly corroborated by the circumstantial evidence produced in the form of PW.2, PW.14, PW.10 and PW.11. If in answer to the above questions, you find that the accused had no means to check these bills and the sailors have misappropriated the money, the accused signed the Contingent Bills as genuine and had intentions to defraud, then you may find these issues relating to the first four charges not proved, however if you find otherwise, we may consider the next issue, which stand proved automatically, as if the accused has signed the forged Contingent Bills with intent to defraud, and the amount mentioned in the charges has not been spent for the Govt. use, then it has certainly caused loss to the Govt. Hence the accused having signed the forged bill with intent to defraud caused loss to the Govt."
8.The contention of Mr.G.Rajagopalan is that the Law Officer has suggested to the Coast Guard Court that the Court has to satisfy as to the statement of witnesses, PW-5, PW-11 and PW-14 and find out as to whether there is corroboration in the form of testimony of other witnesses and if it finds so, the sentence may be awarded and if the finding is otherwise, the sentence cannot be awarded. In our opinion, the said submission cannot be accepted. The Law Officer's summing up should be read in toto. In the context, we may refer to paragraph 47(ii)(b) and (c) of the summing up, which are as follows:-
"47.(ii)(b). Prosecution has also examined RK.Nathan, P/Nvk (PW3) Dayanidhi, Adhikari (PW 11) and R.Sekhar (P-10) who have prepared these contingent bills. They have also identified the signatures of the accused on the Contingent bill, CRV and the sanction rpepared along with the bills. It has come in the evidence that on the direction of the accused, the unit used to take diesel on transfer from CG ships for running of ICs and Generator, the IC's prior to revamping never sailed as they were non ops and later after revamping used to sail only once or twice in a month, for a duration of 45 minutes to one hour, Similarly, the generator was also used rarely however running log book of IC's and generator used to be filled by these witnesses to adjust the monthly entitled consumption of fuel, the diesel used to be utilized for running unit run vehicle. Against the entitled consumption of ICs and generator, these witnesses used to bring blank bills from M/s Ilavarasan and St Anthony petrol pump after paying Rs.100/-. They used to process the bills using the blank bill and forged document were used to be prepared. As per their statement, this was done on the direction of the accused. The accused used to sign the contingent bill, sanction and CRV. Thereafter the money used to be charged off from imprest. The money towards any genuine transaction used to be returned to the Revolving Fund through PW 5 and PW 11, the rest of the money used to be kept by the accused. These witnesses have also explained to the Court, how these forged entries could be identified. As per them, this procurement do not find mention in the captain approval register and Revolving Fund Register. As per the procedure, every procurement was first approved by the Commanding Officer in the Captain's approval register and thereafter money used to be drawn from the Revolving Fund. In the case of forged bills, these have not been found mentioned in the above two exhibits. In most of the cases, the bills have been settled after one to two months of the procurements. The above contingent bills are placed before the Court and may be verified for its veracity.
(c) Accordingly, the running of log book of unit motor cycle, which was non ops, used to be inflated showing fake entries and bills used to be processed using blank bills. Dy Comdt DK.Chauhan (PW 14) Dy Comdt MK.Bhat (PW 12) have also stated that PW 5 and PW 11 were processing false bills using blank bills. They PW 14 and (PW 12) have stated that on number of occasions, they refused to sign the inflated entries in the various log books put up to them but they were forced to do so as the accused used to threaten them for dire consequences. PW 14 even seized blank cash memos from the person of PW 5 and initiated disciplinary proceedings against him. However, the accused abused him and did not take any action against PW 5."
9.A reading of the above paragraph would show that there is a definite finding as to the signature of the appellant on the Contingent Bill, CRV and the sanction prepared along with the bills. There is also a definite finding that the evidence discloses that on the direction of the accused (appellant), the unit used to take diesel on transfer from Coast Guard ships for running of ICs and Generator, and the IC's were used to sail only once or twice in a month, for a duration of 45 minutes to one hour and the generator was also used rarely. It further discloses that however running log books of IC's and generator were used to be filled by these witnesses to adjust the monthly entitled consumption of fuel and the diesel used to be utilized for running unit run vehicle. It is also found that as against the entitled consumption of ICs and generator, the witnesses used to bring blank bills from M/s.Ilavarasan and St.Anthony petrol pump after paying Rs.100/- and used to process the bills using the blank bill and forged documents were used to be prepared. There is a definite finding that the appellant used to sign the contingent bill, sanction and CRV and thereafter, the money used to be charged off from imprest. The money towards any genuine transaction used to be returned to the Revolving Fund through PW-5 and PW-11, the rest of the money used to be kept by the appellant herein. Likewise, there is a definite finding that PW-12 and PW-14 have stated that on number of occasions, they refused to sign the inflated entries in the various log books put to them but they were forced to do so as the accused used to threaten them with dire consequences. If paragraph 47(ii)(e) is read along with 47(ii)(b) and (c), it cannot be said that the Law Officer, while submitting his summing up, did not give any definite finding of evidence as to the guilt of the appellant. Hence, the contention of Mr.G.Rajagopalan that in the absence of definite finding, the benefit of doubt should be given cannot be accepted. Accordingly, the same is rejected.
10.Insofar as the argument on the basis of Section 51(1) of the Coast Guard Act, 1978 is concerned, it is true that the said provision provides that no person shall be tried and punished for any offence, unless such trial commences within three years from the date of commission of such offence. It is to be noted that in case of series of act constituting an offence, the provision of Section 45 would come into operation. By that provision, a charge sheet shall contain the whole of issue or issues to be tried at one time and may contain more than one charge. The charges against the appellant are for the period from July 1999 to June 2000 and if the period of June, 2000 is taken into consideration, the charges framed on 22.04.2002 is within the period of three years. Hence, the contention of Mr.G.Rajagopalan, on the basis of Section 51(1) of the Coast Guard Act is liable to be rejected. Accordingly, the same is rejected.
11.As far as the submission relating to disqualification of Prosecutor and the Assistant Prosecutor, who were the Presiding Officers in the Board of Enquiry in terms of Rule 52, is concerned, our attention was drawn to the proceedings of the Coast Guard Court wherein the appellant was asked to answer whether he has any objection for participation of the Presiding Officer, Members and the Law Officers and he replied 'No'. Having accepted their participation in the entire proceedings, he cannot now turn around and question their participation. Accordingly, the said contention also must be rejected and accordingly, rejected.
12.As far as the contention that certain documents found in question No.118 of the enquiry, which were asked by the appellant, were not furnished and the reply stating that they are not available is concerned, it is to be noted that the findings are not only on the basis of those documents, but also on the basis of the evidence of PW-4, PW-11, PW-12 and PW-14, as could be seen from the Law Officer's summing up. Nothing is shown as to how the appellant is prejudiced in view of the non-supply of those documents and on this core, the said contention is liable to be rejected and is rejected accordingly.
13.The submission of the learned senior counsel that the other three accused were not punished and they were let off is also liable to be rejected. It is seen that one of the accused was punished with Reduction to the rank of Navik, Deprivation of Good Conduct Badges (Three) and Reprimand, another accused was dismissed from service and the third accused was punished with Deprivation of Good Conduct Badges (Three) and Reprimand. The proportionality of the punishment cannot be a ground to challenge that the appellant should also be dealt with the similar punishment. Imposition of punishment depends upon the nature of proved charges and hence, this contention is also rejected.
14.As far as the last submission of Mr.G.Rajagopalan, learned senior counsel, as to the dismissal of the writ petition on the ground of laches as well, having regard to our finding on merits, the question of laches need not be gone into.
15.For all the above reasons, we find no merit in the appeal. Accordingly, the writ appeal is dismissed. No costs.
(D.M.,J.) (K.K.S.,J.) 20.09.2011 Index : Yes Internet : Yes sra D.MURUGESAN,J.
And K.K.SASIDHARAN, J.
(sra) Judgment in W.A.No.1918 of 2010 20.09.2011