Sh.Raj Kumar M.E.-I vs Union Of India & Anr.
2012 Latest Caselaw 3669 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Date of Decision: 1.06.2012


+                     W.P.(C) No.1681/1996


Sh.Raj Kumar M.E.-I                                   ...Petitioner

                                   Versus


Union of India & Anr.                                  ...Respondents


Advocates who appeared in this case:

For the Petitioner         : Mr.D.J.Singh & Ms.Gyan Mitra, Advocates
For Respondent             : Mr.Himanshu Bajaj, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

1. The petitioner has sought in the present writ petition records of

the Summary Court Proceedings conducted by the Commanding Officer

on 16th September, 1995. He has also sought that the punishment

imposed on the petitioner of demotion to the first rank be quashed and

he be restored to his original rank with all consequential benefits such

as payment of entire difference of salary, emoluments, etc. and to

restore his rank to the other time scale promotion which the petitioner

would have earned in the absence of the Court of Inquiry being initiated

against him. The petitioner has also claimed all the salaries of his

eligible rank and emolument be paid to him in the facts and

circumstances.

2. Brief relevant facts to comprehend the controversies are that the

petitioner joined the Navy on 10th July, 1981 as a Metric Entry Recruit

(MER). He was posted on various ships on various dates. For an

incident that occurred on 29th October, 1994, a signal dated 2nd August,

1995 was received from INS Vikrant at Calcutta for sending the

petitioner for Court Martial or trial by the Commanding Officer at

Bombay for the trial commencing on 6th August, 1995.

3. The petitioner disclosed that on 2nd August, 1995 another signal

was received from FOC-in-C (West) to FOC-in-C (East) for providing the

petitioner for summary trial. Another signal was received on 4th August,

1995 from FOC-in-C (East) for requiring the presence of the petitioner

at Bombay at INS Vikrant.

4. The petitioner stated that he reached Bombay on 5th August,

1995 and was sent to INS Vikrant for appearing in the Court Martial.

On 7th August, 1995, the petitioner was present for the court martial

proceeding in the evening and he was, thereafter, produced before the

Commanding Officer, Commander Lalit Kapoor on 8th August, 1995.

According to him, the charge sheet was already typed and ready and he

was asked by the Officiating Commander, Sh. Lalit Kapoor, whether the

petitioner accepted the charges or denied the same, though the copy of

the charge sheet was not given to him.

5. The petitioner asserted that he was orally explained the charges

against him imputing allegations of negligence on duty and thereafter

he was asked to make a written statement. The petitioner averred that

the written statement was recorded in English whereby the petitioner

had categorically stated that he had performed the duty under the

supervision and guidance of his senior officer, Duty Chief Mr. S. Raju

POME for the wash through of the A-I boiler along with Mr. B.A.

Kumar- LME, Mr. P.K. Dey-LME and Mr. M. Baig-ME-II. He stated that

Lieutenant Panicker was also present and that the petitioner had

checked the steam pressure in the boiler by pressure gauge and found

that the pressure was nil. He found that the air locks were open and he

had told Mr. B.A. Kumar, LME, to open the run down valves of both the

water drums. Then the petitioner personally checked the left side water

drum‟s run down valve, which was fully open and the right hand side

valve rod gearing was disconnected. The petitioner revealed that he told

Mr. B.A. Kumar, LME to bring the spanner while he opened the run

down valve and when the spanner was brought, he opened the valve

after which he came in front of the steam drum and found that there

was no water in it. At 0130 hours in the presence of Lt. Panickar and

Mr. N. Singh, MCME-II, the petitioner and Mr. P.K. Dey, LME, opened

the steam drum and brought another hose. The petitioner disclosed

that he had sent Mr. P.K. Dey, LME, to wake SR Gole ME-I because he

was in charge and he did not come with the petitioner and others. It

was further revealed by the petitioner that at about 0200 hours he

along with Mr. Baig ME-II went down to open the left side water drum

door of the boiler in the presence of Lt. Panickar and he found that

there was no water coming from the run down valve, and therefore, he

along with Mr. M. Baig ME-II started opening the water drum door. Mr.

M. Baig, ME-II was holding the spanner while the petitioner was

hammering the spanner for loosening the bolts of the water drum door.

Mr. M. Baig, ME-II, gave the petitioner the dog shoe of water drum door

to keep outside of casing and the petitioner kept the second dog shoe

outside and he asked Mr. M. Baig to hold the stud of the drum tightly.

6. The petitioner contended that he suddenly heard the sound of

crying and the sound of someone falling behind the door inside the

water drum and he tried to take Mr. Baig out from the air casing, but

he could not do so because the hot water had fallen on the hands of the

petitioner as well and he had sustained burn injuries. He, therefore,

asked Mr. Baig to come out from the other door, and when he came out,

then the petitioner, Lt. Panickar, Mr. P.K. Dey poured cold water on his

body till medical assistance was provided. Thereafter, Mr. Baig was

taken to the hospital.

7. The petitioner asserted that he was not informed by the

Commanding Officer of any inquiry after the incident till he came to

know about the charge sheet which was orally communicated to him

when he was called by the Officiating Commanding Officer, Commander

Sh.Lalit Kapoor, on 8th August, 1995. The petitioner contended that his

statement was not recorded in the summary trial, nor was he asked to

opt to be tried either by summary trial or court martial and thereafter

the summary trial was conducted on 9th August, 1995.

8. After conducting the summary trial on 9th August, 1995, the

petitioner was awarded the punishment of reduction in rank to

Engineering Mechanic First Class (No.4), deprivation of third, second

and first good conduct badges (No. 9) and stoppage of leave for a period

of sixty days (No. 12) by punishment warrant form No.6/95 dated 16th

September, 1995. The petitioner has asserted that thereafter he was

transferred to INS Netaji Subhash/MTU (Cal) and on the completion of

his Ty. duties, he was awarded sixty days No.12 punishment w.e.f. 16th

September, 1995. The petitioner contended that the punishment

awarded to him not only caused monetary loss but demotion by two

ranks and he was relegated back to his service of August, 1982,

because of which he was deprived of 13 years of credited service.

9. The petitioner challenged the punishment imposed on him on the

ground that no Court of Inquiry was instituted in his case, which is the

first stage of investigation. On the date of the incident, the statements

of the other witnesses were not recorded in the presence of the

petitioner, nor was he allowed to cross-examine the witness at any time

subsequently. The petitioner contended that he had carried out the

lawful order of the superior officer present there, namely Lt. Panickar,

who was the officer-in-charge along with two senior sailors POME- S.

Raju who was the Duty Chief M.E. and Mr. N. Singh MCME-II (Master

Chief Engineering Mechanic-IInd Class). He contended that Mr. M. Baig

got burnt on account of a lawful command obeyed by him which was

given by the superior officer. The petitioner also contended that all the

superior officers who were actually responsible for the incident were let

off with warning alone, whereas the petitioner had been given the

strongest punishment which destroyed his entire creditable service of

over 13 years.

10. The petitioner also contended that after the Court of Inquiry,

summary of evidence was to be recorded before deciding whether the

petitioner is to be tried by the court martial or summary trial by the

Commanding Officer.

11. According to the petitioner, the procedure as contemplated under

the Army Act or the Navy Act was not followed and he was instead

directly sent for trial by the Commanding Officer. The petitioner has

challenged the punishment imposed upon him also on the ground that

it was for the Commanding Officer to explain the case to the petitioner

and after satisfying himself that the petitioner has understood the

implications, the Commanding Officer then had to decide as to whether

the petitioner was to be tried by the court martial or summary trial by

the Commanding Officer.

12. Relying on AIR 1982 SC 35, the petitioner contended that the

Commanding Officer is not to take the case in a informal way and has

to decide in accordance with the provisions of the Act regarding the

mode of the trial. The petitioner alleged that he was the junior most

officer and no legal trial worth its name had taken place before

punishing him.

13. The petitioner also divulged that he had made a statutory

representation on 8th November, 1995 to the Chief of Naval Staff and

requested the concerned authorities to forward the same. However, the

authorities refused to do so, on the ground that the representation

made by the petitioner cannot be forwarded unless approval is obtained

from the legal department. The petitioner, therefore, sent the

representation by registered post. The petitioner contended that he did

not receive any reply to his representation, and therefore, he even sent

a reminder dated 15th December, 1995. The petitioner disclosed that

thereafter on 4th January, 1996, he received a letter from the Chief of

Naval Staff informing him that his statutory representation has been

forwarded to the Flag Officer and Commander in Chief, Eastern Naval

Company, Vishakapatnam and he was also advised to correspond

directly with him.

14. The petitioner averred that on 22nd January, 1996 he was again

advised by respondent No.2 to send his reminder to the Flag Officer

Commanding in Chief, Eastern Naval Company, Vishakpatnam seeking

the quashing of the punishment order and the restoration of his

emoluments and consequential monetary benefits. According to the

petitioner, his reminder dated 22nd January, 1996 had not been acted

upon, nor replied to by the respondents. The petitioner, therefore, filed

the present writ petition contending that his tenure on the demoted

rank is finishing in the year 1997, and in the circumstances, he does

not have any efficacious remedy available to him and thus he had no

other option but to file the above noted writ petition on the grounds

enumerated hereinabove.

15. The writ petition filed by the petitioner came up for hearing on

30th April, 1996, and thereafter the matter was adjourned from time to

time at the instance of the learned counsel for the respondents who

wanted to take instructions. This Court on 13th January, 1997 imposed

a cost of Rs.2,000/- on the respondents and granted them one more

opportunity to file the reply to the show cause notice. It was also held

that the copy of the order dated 13th January, 1997 be sent to the Chief

of Naval Staff who was expected to give appropriate instructions to the

legal department in order to avoid the delay. Subsequently, the counter

affidavit was filed on behalf of the respondents dated 17th February,

1997. Though the petitioner has contended that the cost of Rs.2,000/-

awarded by order dated 13th January, 1997 had not been paid,

however, the order dated 10th March, 1997 reveals that the cost had

been paid. This Court, thereafter, issued "Rule" on 5th March, 1999.

16. On 2nd September, 2009, in view of the Armed Forces Tribunal

Act which came into force, the writ petition was transferred under

Section 34 of the Armed Forces Tribunal Act, 2007 to its Principal

Bench and it was registered in the Armed Force Tribunal as

T.A.No.252/2009, titled as „Raj Kumar v. Union of India & Ors‟.

17. The Armed Forces Tribunal by order dated 16th November, 2009,

held that since the punishment awarded to the petitioner was reduction

in rank, therefore, under Section 3 (o)(iii), the Armed Forces Tribunal

does not have the statutory jurisdiction to hear the matter where the

punishment awarded is other than dismissal and therefore, it directed

the parties to appear before the Registrar General on 30th November,

2009.

18. On the transfer of the case, the writ petition was sent back to this

Court, by order dated 3rd February, 2010 whereby the respondents were

directed to place the record pertaining to the petitioner‟s representation

dated 15th December, 1995. The writ petition was, thereafter, dismissed

in default on 29th March, 2011, however, the order of dismissal in

default of appearance of the petitioner and his counsel was recalled by

order dated 10th August, 2011. Adjournments were sought on behalf of

the petitioner thereafter, and the petitioner was granted the last

opportunity to argue the matter on 9th February, 2012. Thereafter, the

matter was argued by the parties on 23rd February, 2012, 7th March,

2012, 20th March, 2012 and on 21st March, 2012.

19. The respondents in their counter affidavit had contested the writ

petition contending, inter-alia, that the petition is premature and that

the petitioner did not avail the remedy in terms of Section 162 and 163

of the Navy Act by filing an appeal to the Chief of Naval Staff. The

respondents contended that the petitioner has tried to mislead the

Court by alleging that he has been made a scapegoat. According to the

respondents, the petitioner was a Petty Officer Mechanical Engineering

in charge, and therefore, directly responsible for the evolution and was

found to be negligent in performing his duty which led to the death of

Mr. M. Baig, Mechanical Engineer-II, who was working directly under

him. Regarding Lt. Panickar, it was alleged that he was an under

trainee officer, detailed to see and understand the evolution for the first

time.

20. Regarding the infraction of the provisions of the Navy Act in

conducting the summary trial and punishing the petitioner, it has been

alleged that the decision for the summary trial by court martial was

taken after preliminary investigation was over and the other two sailors

had also been tried summarily by the Commanding Officer. It has been

contended that the petitioner opted for summary trial by the

Commanding Officer, and therefore, he was tried accordingly. The

respondents further disclosed that the petitioner was defended by his

divisional officer.

21. Regarding not supplying the copies of the charge sheet, the

respondents contended that the petitioner was aware of the charges

against him, and therefore, the copy was not supplied to him as neither

the petitioner, nor the defending officer had asked for the copy of the

charge sheet. The respondents contended that in any case the

petitioner‟s divisional officer had access to the charge sheet as the

documents were available with the regulating officer of the ships. As a

precaution, the charges were allegedly read to the petitioner in front of

his defending officer again and thus it is urged that the plea raised by

the petitioner of not replying to the charge sheet is an afterthought.

22. The respondents also contended that the trial of S.Raju, POME

No.147442 Y and Mr.N.Singh, MCME-II No.094464 T had already been

completed by the earlier Commanding Officer, Capt. Mohanan, and that

the trial of the petitioner could not be completed as the petitioner had

reported after Capt. Mohanan formally had handed over command to

Commander Mr.Lalit Kapoor on 8th August, 1995.

23. Regarding two other sailors, it was contended that their trial was

already over and that they were tried under Section 93 (2) of the Navy

Act, 1957 and the case against them was also established.

24. The respondents further contended that the petitioner was given

opportunity for trial by court martial under the Regulation 30 of the

Navy Act Part-II (Statutory), however, he himself opted for summary

trial by the Commanding Officer.

25. During the summary trial, the charge sheet was read over to the

petitioner and he was asked whether he pleaded guilty and whether he

wanted to make a written statement. Regarding the written statement

given by the petitioner, it was stated that the written statement given by

the petitioner was correct except for the averments made that "I found

there is no water coming from run down valve, then I and Mr.M.Baig

started opening the water drum door" which according to the

respondents is incorrect. The respondents contended that in fact water

was flowing from the run down valve and Lt.Panickar, under trainee

officer on the ship who was seeing this evolution for the first time,

pointed out the same to the petitioner to which the petitioner replied

that it was safe to open the water drum door as the pressure was less

and that he had done it frequently before as well.

26. The respondents further submitted that after the completion of

the trial the petitioner was remanded on 8th August, 1995 and was

publicly awarded the punishment in front of the full ship‟s company on

16th September, 1995 as per the statutory regulations. It is also urged

that the trial had been conducted in terms of Chapter II of the

Regulations for the Navy Part II (Statutory). It is also pointed out that at

no stage he or his defending officer had made an issue about not being

given the copies of the charge-sheet, statements of witnesses etc.

According to the respondents, the petitioner can‟t even take the plea

that they did not have access to these documents in question, since all

these documents are readily available on board the ship with the

regulating officer and both the prosecutor and the defending officer

have access to the same. Thus, as per the respondents the plea that the

charge-sheet was not given to the petitioner and that the statements of

the witnesses were not provided to him is an after-thought. In any case,

the learned counsel for the respondents assures that the charges were

read over to the petitioner as per Chapter II of the Regulations for the

Navy Part II (Statutory) and he was asked not to make any statement or

give any evidence until after all the evidence against him had been

heard by him.

27. The learned counsel for the respondents has further contended

that the Board of Inquiry was instituted by the Flag Officer

Commanding-in-Chief, West under Chapter VII of the Regulations for

the Navy Part II (Statutory) and that all the provisions of this regulation

were complied with. Therefore, the respondents submit that there was

no requirement to record the statement of the petitioner on the day of

the incident. In any case, as per the respondents, the petitioner was

allowed to sit through the Board of Inquiry proceedings in terms of

Regulation 205, Regulation for the Navy Part II (Statutory), where he

had all the opportunity to cross-examine the witnesses amongst other

rights, however, he himself had declined to avail the same.

28. With regard to the plea that the petitioner alone has been made

responsible for the unfortunate incident, while the superior officers

involved in the matter have escaped any consequences, the learned

counsel for the respondents has contended that the petitioner was the

only Petty Officer Engineering Mechanic who was nominated to the

POME in-charge for the task assigned, and therefore, he was required to

carry out the job by following the laid down procedure and thereby

ensuring the safety of his own self as well as of his subordinates

working directly under him. The learned counsel for the respondents

further contended that the other personnel senior to the petitioner had

directed him to lead the party conducting the evolution and that they

were not present to personally supervise the said evolution. Lt. Panicker

too was an under-trainee officer, who was present solely to observe the

evolution for the first time and thus, he was not the officer in charge of

the evolution. Therefore, it is submitted that in the facts and

circumstances the responsibility of the evolution had squarely rested on

the petitioner and it was due to his negligence in performing his duties

which had led to the death of M. Baig ME II, who was directly working

under him in the same evolution. The Board of Inquiry was careful to fix

the blame on the various officers and the sailors involved in the said

incident including the petitioner and each one of them was dealt with in

accordance with law.

29. It is also urged that the petitioner was given due opportunity to

exercise his option as per Regulation 30 of the Regulations for the Navy

Part II to be tried either by the summary trial or by the Court Martial. It

is also submitted that at the relevant time, the petitioner was properly

explained the charges and the consequences of facing a summary trial

by the Commanding Officer viz-a-viz the consequences of a Court

martial. The petitioner was given ample time of 24 hours to make his

decision, and he was also allowed the assistance of a defending officer.

It was also explained to the petitioner that if the rank is taken away by

the Court Martial, then it cannot be regained without the approval of

the Chief of the Naval Staff, whereas, if the punishment of reduction in

rank is rendered by the Commanding Officer, it can be restored either

by the CABS or the Commanding Officer himself and thus the petitioner

had made the voluntary and informed decision of opting to be tried by

the Commanding Officer by way of Summary proceedings. Since the

petitioner had opted for summary proceedings in writing on 9th August,

1995, the same was initiated after the Board of Inquiry.

30. The learned counsel for the respondent has further contended

that the petitioner‟s representation against the order of penalty, under

Section 23 of the Navy Act was also duly dealt with by the Naval

Authorities in the manner prescribed in the Regulations 235-241 of the

Regulations for the navy Part II (Statutory). The relevant record was

called for and the petitioner‟s case was reconsidered on merits,

however, it was found to be devoid of any merits and thus,

consequently, the same was disposed of by the Headquarters Western

Naval Command by letter dated 8th May, 1996. Thereafter, the

petitioner was transferred to INS Netaji Subhash under the Eastern

Naval Command and thus the representation was forwarded to the

Headquarters, Eastern Naval Command at Vishakapatnam, which is at

the moment under active consideration.

31. Therefore, the learned counsel for the respondent has contended

that the writ petition of the petitioner is premature, as he has not

exhausted the remedy available to him in terms of Section 162 and 163

of the Navy Act, 1957, by making an appeal to the Chief of the Naval

Staff or Government.

32. The pleas of the respondents are refuted by the petitioner in his

rejoinder dated 3rd March, 1997, inter alia, on the grounds that as per

the record itself it is clear that the charges were not read to the

petitioner as per Chapter II of the Regulations for the Navy Part II

(Statutory). It is also denied that warning was given to the petitioner

that he should make a statement or evidence until all the evidence

against him had been heard. It is further denied that time was given to

the petitioner to elect the option of being tried by either the Summary

trial or by the Court Martial and that the petitioner had opted to be

tried summarily.

33. This Court has heard the learned counsel for the parties in detail

and has also perused the relevant records and the relevant documents

filed with the pleadings. The learned counsel on behalf of the petitioner

has vehemently argued that the petitioner had not been given a

reasonable opportunity to defend himself and that the principles of

natural justice had not been complied with during the summary

proceedings. The petitioner has stated that the charge sheet was not

issued, and that the statements of the witnesses recorded during the

Board of Inquiry was not given to him nor was he given the opportunity

to cross-examine the witnesses during the summary proceedings. It is

also alleged that the petitioner was not given the option to choose

between the proceedings of Court Martial and the summary court

proceedings, nor were the consequences of exercising such an option

explained to him and, consequently, he has contended that he had been

gravely prejudiced at the hands of the respondents.

34. Per contra the learned counsel for the respondents has contended

that the petitioner has not been singled out in the present matter and

that the other officers involved in the alleged incident have also been

tried summarily by the competent authority. It is also urged that there

was reasonable compliance of the provisions of the Navy Act and the

Regulations for the Navy Part II while initiating the summary

proceedings against the petitioner and that after affording due

opportunity to the petitioner to defend himself, on the basis of the

evidence on record it was found that the charges against the petitioner

were made out and, consequently, the punishment by order dated 16th

September, 1995 was imposed on the petitioner.

35. A perusal of the record reveals the following facts which are

pertinent in inferring whether there was compliance of the Regulations

and principles of natural justice in the present case. The alleged

incident whereby Mohammed Baig ME II had lost his life while washing

the A-1 Boiler had taken place on 29th October, 1994. The Board of

Inquiry was initiated to enquire into the alleged incident on 8th

November, 1994 and thereafter the report was prepared on 7th July,

1995. The Board of Inquiry report stipulated the lapses on the part of

three sailors, namely Rajkumar, POME, the petitioner, S. Raju, POME

and N. Singh, MCME II and it was ordered that the said sailors be tried

summarily for their alleged lapses. The report dated 7th July, 1995 is

reproduced as under:

BOARD OF INQUIRY-DEATH OF M BAIG ME II, NO.118012-T

A perusal of the above subject Board of Inquiry has brought out the fact of the following sailors were culpable of the lapses as follows:-

(a) Rajkumar, POME, No.110871-F. For prematurely opening the water drum door before ensuring the drum was dry and empty. In addition, he adopted incorrect engineering practices in not securing the door by rope and additionally place late M.Baig, ME II, in a vulnerable position within the air casing.

(b) S.Raju, POME, No.147442-V, Duty Chief ME. He was culpable of remaining in the mess decks instead of supervising the operation. Subsequently, when the emptied the stdb side water drum, he repeated the error of not securing the door by rope despite the occurrence of a serious accident just hours before.

(c) N.Singh, MCME II, No.094464-T, OOD Engine Room. He is guilty in that during the hosing down operations, he was not present when the port water drum door was being opened incorrectly and was not aware of the correct engineering practice despite having served for over 10 years on board.

He is also culpable of not instructing S Raju, POME, to use the rope on the stbd water drum door despite the occurrence of the accident, earlier in the night.

2. It is, therefore, requested that the above mentioned sailors be summarily tried for their above mentioned lapses and a completion report made to this Headquarters.

36. Thereafter, on 2nd August, 1995 a signal was received by the

petitioner, ordering him to appear for the Court Martial or Trial by the

Commanding Officer at Bombay on 6th August, 1995. As per the

General Information recording the arrival of the petitioner, he had

arrived in Bombay and reported on board of the ship on 7th August,

1995. Thereafter, on 8th August, 1995 the charges were explained to the

petitioner and he was asked to make any statement he wished in his

defense.

37. On 8th August, 1995 the petitioner was also allegedly asked to

exercise his option to be tried by either the Court Martial or the

Summary Proceedings. According to the petitioner, the said option was

not given and in any case the consequences of exercising the option of

Court Martial was not explained to him as is required under Regulation

30 of the Regulations for the Navy Part II. This plea seems to have some

merit in the facts and circumstances since as per the record it is

evident that though there is a document stipulating that the

consequences of exercising the option of being tried by the Court

Martial was explained to the petitioner, however, the same is not

endorsed by the petitioner and it only bears the signatures of the

Commanding Officer, Lalit Kapur. Thus, there is no way of knowing if

the said aspect was explained to the petitioner before exercising his

option for Court Martial or Summary proceedings by the Commanding

Officer.

38. In any case, the petitioner had given his alleged consent to be

tried summarily by the Commanding Officer only on 9th August, 1995.

However, it is pertinent to note that as per the record the statements of

all the witnesses were recorded during the period of 7th to 9th August,

1995, even before the petitioner had exercised his option of being tried

summarily. Thus the statements of the witnesses were already

recorded. It is also evident that while the statements of the witnesses

were recorded there is no mention that the petitioner was given the

opportunity to cross-examine the said witnesses. The learned counsel

for the respondents has not been able to give any satisfactory

explanation as to how evidence could be recorded even before

commencement of Summary Security Court. No regulation or rules have

been pointed out under which evidence could be recorded even before

the accused had opted for trial summarily though the

accused/petitioner has denied that the option was taken from him. In

fact, the only clarification given is that the statements of the witnesses

have been confirmed to be correct and signed in the presence of the

Commander. It also does not bear any signatures of the petitioner.

Therefore, the plea that the witnesses were not cross-examined by the

petitioner, nor was he provided a copy of the statements of the

witnesses, is apparent on the face of the record, and therefore, the

petitioner has been able to establish the violation of regulations and

denial of principles of natural justice.

39. The petitioner also contended that even during the Board of

Inquiry the statements of the witnesses was recorded in his absence,

and that he was not allowed to be present at the time nor was he given

copies of the same. The respondents have merely denied this plea and

stated that reasonable opportunity was given, however, the learned

counsel on behalf of the respondents has been unsuccessful in showing

anything on the record that would establish that such an opportunity

was given to the petitioner to cross examine the witnesses or that the

opportunity was given, however, the petitioner had declined it.

40. Other violations of the mandatory regulations are also evident in

the manner the trial was conducted and the investigation was carried

out against the petitioner. On the one hand, the investigating officer has

stated on 8th August, 1995 that he had thoroughly investigated the case

and recorded the evidence of the witnesses, but since he did not have

the power to punish the petitioner, the case was forwarded to the

Commanding Officer for his decision, on the other hand, the perusal of

the record reveals that the statements of the witnesses PK Dey, LME

and B.A. Kumar, LME were recorded on 9th August, 1995 by the

investigating officer. There is no explanation given as to why the said

witnesses were examined on 9th August, 1995 by the investigating

officer, Karnail Singh, if as per his own admission he had forwarded the

matter to the Commanding Officer for his decision on 8th August, 1995.

These glaring violations in the trial of the petitioner casts a huge doubt

on the veracity of the said proceedings and it is also clear that the

petitioner was not afforded the proper opportunity to defend himself

and in the process the entire trial and proceedings by the respondents

are vitiated.

41. The decision of the Apex Court in The State of Punjab v. Dewan

Chuni Lal [1970] 3 SCR 694, is pertinent to the facts of the present

case. It was a case of dismissal of a Police Sub-Inspector on charges of

inefficiency and dishonesty based on adverse reports of superior

officers. Such officers, though available, were not examined to enable

the Police Sub-Inspector to cross-examine them. The Supreme Court

held that the refusal of the right to examine such witnesses amounted

to denial of reasonable opportunity of showing cause against the action

of dismissal. The Supreme Court had held that the dismissal was not

legal.

42. Union of India v. T. R. Varma (1958) IILLJ 259 SC related to the

dismissal of a public servant. The question was whether the enquiry

held under Art. 311 of the Constitution of India was in accordance with

the principles of natural justice. The Court, speaking through

Venkatarama Aiyar J. had observed as follows at p. 507:-

" Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross- examining the witnesses examined by that party, and that no materials should be relied on against him without his

being given an opportunity of explaining them".

43. In the matter of Sri Narayan Rajput v. Union of India & Ors.

Cr.W.P 277 of 2005 decided on 12th December, 2008 relied on by the

petitioners, the Division Bench of the High Court of Bombay had held

that from the record it was not evident that the accused was given the

right to cross examine the witnesses, and that as per Regulation 27 of

the Navy Regulations, the leading of evidence must also include the

opportunity to cross examine the witnesses, who are examined in

support of the charge. The relevant portion of the judgment is as under:

"9. As regards the right to cross examine in a trial conducted by the Commanding Officer, reference may be made to regulation 27 which provides for the procedure to be followed at investigation in general. The said Regulation is in the following terms.

27-Procedure at investigations in general-

(1) At all investigations the evidence in support of the charge shall be heard first.

(2) Immediately after the charge has been read out, the Investigating officer shall warn the accused that he should not make any statement or give any evidence on his own behalf until all the evidence against him has been heard.

(3) On conclusion of the evidence in support of the charge, the investigating officer shall decide whether a case has been made out against the accused.

(4) If there is no case, the investigating officer shall either dismiss the case or, it further evidence is likely to become available, stand it over and if there is a prima facie case, and it is a simple one

with which the investigating officer thinks he scandal with himself, he shall ask the accused if he admits the charge.

(5) If the accused does not admit the charge and the matter is one within the investigating offer's powers of punishment, he shall inform the accused that he will proceed to try the, giving him an opportunity of making a statement and calling witnesses.

10. From the aforesaid procedure it becomes quite clear that what is contemplated by Section 27(1) relates to evidence in support of the charge. It cannot be lost sight that these proceedings can result in imprisonment up to 90- days and also result in other serious consequence such as loss of service and service benefits. In our view leading of evidence must include an opportunity to cross examine the witness who are examined in support of the charge. In this regard, it is also relevant to note that Regulation 27(5) also gives opportunity to the accused also of making a statement and calling witnesses. It goes without saying that these defense witnesses can also be cross examined by the prosecution.

11. At this stage useful reference may be made to a judgment of this court in the case of Rajesh Singh Tanwar Vs. Admiral R.L.Pereira and others delivered on 31.8.1985 in Writ Petition No.1369 of 1981. One of the contention raised before this court in that case was that the trial by the Commanding Officer was vitiated because it has been held in violation of rules of natural justice as copies of such statements were not given to the petitioner in advance and therefore, he was not given a proper opportunity to cross examine this witness. The stand of the Navy in that case was that the statements of the witnesses were read out very slowly to the petitioner and he was also asked to cross examine the witnesses in question but he declined to cross examine the witnesses. In the circumstances, the Single Judge of this court concluded from the facts that it was not possible to hold that the petitioner was not given any opportunity to cross examine the witnesses. We note that, in the aforesaid case, it was not the contention of the Navy that the right to cross examine was not available at all to the petitioner. In fact, in the present case

also, it was fairly conceded that the petitioner had a right to cross examine the witnesses. In fact the onus to prove that the right of cross examination was given would be upon the prosecution and they should therefore take care to see that the fact that such a right was offered should be made clear through an entry in the trial record.

12. In our view, therefore, the petition deserves to succeed on two grounds firstly that the petitioner was not given opportunity to cross examine the witnesses and secondly the additional material in the form of questions raised by the petitioner and answered by the witnesses as referred to in Para-29 of the affidavit in reply were not made as part and parcel of the summary of evidence required to be forwarded to the approving officer who approved the punishment. On these two grounds alone, petition deserves to be allowed."

44. The principles of natural justice, therefore, contemplate that

reasonable opportunity is to be given to the accused to make him aware

of the facts and evidence that is against him, so that he can properly

defend himself. In the investigation conducted by the respondents, the

statements of the witnesses were recorded in the absence of the

petitioner. Such evidence which was not recorded in his presence was

also relied upon by the Commanding officer while inculpating the guilt

of the petitioner and punishing him for the same. Thus, the denial of

the opportunity to cross-examine the said witnesses and the non

communication of the said statements of the witnesses to the petitioner,

has denied the petitioner of the opportunity to properly defend himself,

thereby violating the principles of natural justice and relevant

regulations. No cogent reason has been given as to why the charge

sheet could not be given to the petitioner. There is no rational of merely

reading the charges to the accused. The charges should not have been

merely read to him but in the language which the accused understands,

and thereafter, a copy of the charge should have been given to him. The

learned counsel for the respondents is unable to show any regulations

or rules which approves of such a procedure which had been adopted

by the respondents. Therefore, the summary proceedings in the facts

and circumstances are vitiated.

45. In the Summary of Evidence Report dated 14th August, 1995, on

the basis of which the punishment was imposed on the petitioner by

order dated 16th September, 1995, it is clear that reliance was mostly

placed on the statement of Lt Panicker to inculpate the guilt of the

petitioner. The relevant portion of the report is as follows:

"5. It has been established by the evidence of Lt GP Panicker (41586-N) that water was still flowing down from the run down drain when the door of the boiler was opened, that in fact Lt Panicker questioned the accused on whether it was safe to open the door and the accused replied that it was perfectly safe to do so. It has also been established by the evidence of Lt GP Panicker (41586-N) that water continued to pour out of the water drum through the door for some time after the door was opened.

6. There is no past recorded instance of the run down drain being completely chocked by sludge/slurry/other objects after boiling out. While the drain may have been partially choked, this accident would not have happened if the accused had waited till flow of water from the run down valve came to a stop.

7. There is no evidence of malafide intentions or conflict between Raj Kumar POME No.110871-F and M Baig ME II No.178012-T. Thus premature opening of the water drum can be attributed to an error of judgment on the part of Raj Kumar POME No.110871-F, caused by overconfidence, hurry and an improper appreciation of the situation which directly lead to severe burn injuries followed by death of M Baig ME II No.178012-T.

8. The accused was warned in accordance with Regulation 28(i) of the Regs Navy Part II before he made a statement. The accused pleaded not guilty to the charges. The assistance of the Divisional Officer was provided to the accused through out the investigation and he was afforded all opportunity to defend himself."

46. However, a perusal of the statement of Lt Panicker reveals that Lt

Panicker had not questioned the petitioner on whether it was safe to

open the door or not. In fact, when a specific question was asked as

Question No. 14 asking him if he had mentioned anything to the

petitioner, he had stated "no". It is also evident that though the report

stipulates that all opportunity was given to the petitioner to defend

himself, however, it does not specify if the petitioner was given the

opportunity to cross examine the witnesses or that he was given the

opportunity to cross examine the witnesses, however, he had declined

the same.

47. An examination of the statements of the other witnesses, namely

N. Singh, POME, S. Raju, POME, B.A. Kumar LME, P. K Dey, LME also

do not reveal anything substantial regarding the allegations imputed

against the petitioner. These witnesses have all been asked the same

questions pertaining to the procedure to be followed while opening the

water drum, however, they have not deposed about the role played by

the petitioner or the lapse on the part of the petitioner for the mishap

that had occurred on the alleged day of the incident. Thus there is even

no evidence regarding the allegations of negligence as imputed against

the petitioner.

48. The petitioner has further contended that the other officers who

were also responsible for the alleged incident have been let off with a

mere warning, while the petitioner who is the junior-most officer has

been made solely responsible for the unfortunate incident and punished

for the same. The respondents in their counter affidavit have only

negated this plea by stating that the said plea of the petitioner is false

and that the other two sailors named in the report of Board of Inquiry

Report dated 7th July, 1995 were also summarily tried for their lapses.

However, the respondents have not given any other details regarding

the trial of the said sailors, or the outcome of the same. In this light, the

only inference that can be drawn in the facts and circumstances is that

the petitioner alone has been made responsible for the death of

Mohammed Baig ME II, even though the party that was detailed for the

washing of A1 boiler also included other officers. How the petitioner can

be held solely responsible has not been explained by the respondents.

The evidence led before the summary trial either cannot be read as it

was not recorded during the trial or even before the trial commenced or

there is no evidence at all to inculpate the petitioner solely for the

mishap.

49. The learned counsel for the respondents has also contended that

the petitioner has got an effective alternative remedy under Section 162

and 163 of the Navy Act. However, considering the fact that the

petitioner had sent his statutory representation against the order of

penalty on 8th November, 1995 and that on 4th January, 1996 the

petitioner was informed that his statutory representation had been

forwarded to the Flag Officer Commanding in Chief, Eastern Naval

Command, Vishakapatanam and that still till today no decision has

been given by the respondents, this Court is not inclined to accept the

submission of the learned counsel for the respondents that the

petitioner should be asked to exhaust his alternative remedy. The writ

petition is pending for the last sixteen years and at this stage to send

the petitioner back to make a statutory representation will be unjust

and denial of another reasonable opportunity to the petitioner.

50. There cannot be any doubt whatsoever that the question as to

when a discretionary jurisdiction is to be exercised or refused to be

exercised by the High Court has to be determined having regard to the

facts and circumstances of each case for which no hard-and-fast rule

can be laid down. But normally, the High Court should not entertain

writ petitions unless it is shown that there is something more in a case,

something going to the root of the jurisdiction, something which would

show that it would be a case of palpable injustice to the writ petitioner

to force him to adopt the remedies provided by the statute. To the

doctrine of exhaustion of alternative remedy, there are two exceptions.

One is when the proceedings are under a provision of law which is ultra

vires which will entail quashing of the same on the ground that the

proceedings are incompetent without a party being obliged to wait until

those proceedings run their full course. The other exception is when an

order is made in violation of the principles of natural justice and the

proceedings itself are an abuse of process of law. The Supreme Court in

ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd.

((2004) 3 SCC 553 : JT (2003) 10 SC 300 [12]) observed that the High

Court, having regard to the facts of the case, has a discretion to

entertain or not to entertain a writ petition and it is the Court that has

imposed upon itself certain restrictions in the exercise of this power.

The Supreme Court had held on page 572 in para 28 as under:

"28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks13.) And this plenary right of the High Court to issue a prerogative writ will not

normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction."

51. The copy of the charge sheet was not given to the petitioner,

whether the petitioner was given an appropriate option between the

Court Martial and Summary Trial has not be established satisfactorily.

Statements of witnesses in summary of evidence were not recorded in

the presence of the petitioner nor he was given an opportunity to cross

examine them. No rule or regulation has been shown which permits or

allows the respondents not to give the copy of the charge sheet on the

premise that the accused is aware of the charges and the defending

officer had not asked for the same. The respondents cannot take shelter

under the plea that the petitioner‟s Divisional officer had access to the

charge sheet and therefore, there was no necessity to supply the copy of

the charge sheet. The learned counsel for the respondents failed to

show any regulation or rule which allow the respondents to record the

statement of witnesses even prior to commencement of summary trial.

Such evidence could not be used by the respondents to hold that the

petitioner was guilty of charges made against him. The learned counsel

for the respondents has utterly failed in these circumstances to show as

to how the relevant regulations had been complied with. The witnesses

who were examined in absence of the petitioner were not produced for

the cross examination by the petitioner and in the circumstances it

could not be even contended that the petitioner declined to cross

examine the witnesses. From the record it also does not appear that the

petitioner was given 24 hours to decide the alleged option given to him

whether to be tried by Court Martial or by Summary Trial. In the

circumstances, the evidence which had not been led before the

Summary Court could not be considered and evidence which was

recorded before the trial started in which also the petitioner was not

given the right to cross examine the witnesses, also cannot be

considered. Thus there is no evidence against the petitioner in the facts

and circumstances. For these reasons as detailed hereinbefore the

entire trial and punishment awarded to the petitioner is vitiated.

52. In the facts and circumstances and the forgoing reasons the writ

petition is, accordingly, allowed. The finding and the sentence of

reduction in Rank to MEI (No.4), deprivation of third, second and first

good conduct badges (No.9) and stoppage of leave for a period of sixty

days (No.12) imposed by the Summary Court on 16th September, 1995

is set aside. The petitioner shall be entitled to restoration of his rank

and badges and all the consequential benefits including promotions and

pay. The petitioner shall also be entitled to costs of Rs.20,000/- in the

facts and circumstances, payable by the respondents. Costs be paid

within four weeks. With these observations and directions the Writ

petition is allowed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

JUNE 1, 2012 vk