Kerala High Court
Dig K.Janardhanan vs Union Of India on 13 January, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
MONDAY, THE 13TH DAY OF JANUARY 2025 / 23RD POUSHA, 1946
WP(C) NO.30634 OF 2017
PETITIONER:
DIG K.JANARDHANAN, AGED 52 YEARS,
TM (0172-P), C/O.SRI.MPG NAMBIAR,
HOUSE NO.3/257, CHAITHRA, MAJOR SANTHOSH ROAD,
NADAKAVU POST, CALICUT, KERALA-673011.
BY ADVS.
SRI.C.UNNIKRISHNAN (KOLLAM)
SMT.A.V.INDIRA
SRI.JOHNSON GOMEZ
SMT.UTHARA A.S
RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY THE SECRETARY
TO THE GOVERNMENT OF INDIA, MINISTRY OF DEFENCE,
SOUTH BLOCK, NEW DELHI-110011.
2 THE DIRECTOR GENERAL OF COAST GUARD
COAST GUARD HEADQUARTERS, NATIONAL STADIUM COMPLEX,
NEW DELHI -110001.
BY SRI.N.S.DAYA SINDHU SHREE HARI, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.12.2024, THE COURT ON 13.01.2025 DELIVERED THE FOLLOWING:
2
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"C.R."
JUDGMENT
The petitioner, who was working as the Deputy Inspector
General of the Coast Guard, has filed the captioned writ petition
challenging:
i. Ext.P18, by which the Coast Guard Court imposed the
punishment of dismissal from service and six months
simple imprisonment on the petitioner.
ii. Ext.P20, by which the petitioner's name has been struck
off from the Coast Guard rolls.
iii. Ext.P22, by which the sentence imposed as above is
reduced to one of dismissal from service alone; and
iv. Ext.P25, by which the statutory petition filed by the
petitioner seeking to quash the sentence passed by the
Coast Guard Court stood rejected by the Government of
India.
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2. The short facts necessary for the disposal of this writ
petition are as under.
The petitioner states that he entered the service of the
Coast Guard as an Assistant Commandant in 1987, having been
awarded the Tatrakshak Medal by the President of India for his
meritorious service in the Coast Guard. The Coast Guard built a
new vessel named "Vaibhav"(hereinafter referred to as the
"vessel") from Goa Shipyard Ltd., and the petitioner was posted
as the Commanding Officer (Designate) of the afore new vessel.
In the line of commissioning the afore vessel, two familiarization
sorties (one day-time and one night-time) were scheduled.
During the course of the night-time sortie on 24.04.2013, the
vessel was provided with an additional mission of sailing up to
Malpe. The petitioner contends that when the vessel was coming
back in the early hours of 25.04.2013, it brushed upon a fishing
boat; however, no injury/damage was noticed to the fishing boat.
Therefore, the petitioner says that the Coast Guard vessel
proceeded back to Goa as scheduled without stopping, and the
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incident was reported to the higher-ups once the vessel reached
Goa port. By Ext.P2 communication, the Boat Owners
Association informed the Goa Coast Guard about the afore
incident, leading to a few of the fishermen on board the fishing
boat going missing. On the afore basis, the Board of Inquiry was
constituted. Ext.P5 is the FIR filed in the local police station in
Goa and later transferred to Yellow Gate Police Station, Mumbai
on account of the territorial limits. The Board of Inquiry
submitted Ext.P6 report containing 13 charges. Though Ext.P7
charge sheet is filed by the Mumbai Police before the Criminal
Court, Mumbai, on an application filed by the Coast Guard, the
Magistrate, through Ext.P8, transferred the crime to Cost Guard
Court. On the basis of the afore, Ext.P10 charge sheet was
served on the petitioner containing as many as 12 charges. The
Coast Guard Court was later constituted pursuant to Ext.P16
order and Ext.P17 charge sheet was filed. By Ext.P18, the Coast
Guard Court found the petitioner guilty of 7 charges and
imposed the punishment noticed as above. By Ext.P20, the
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petitioner's name is struck off from the rolls and by Ext.P22, the
sentence passed by the Coast Guard Court is modified as one of
dismissal from service alone. The statuary petition filed is also
rejected as noticed above, through Ext.P25.
3. It is in the afore circumstances that the petitioner has
filed the captioned writ petition.
4. I have heard Sri.C.Unnikrishnan, the learned counsel for
the petitioner and Sri.Dhayasindhu Sreehari, the learned
Central Government Counsel for the respondents.
5. Sri.Unnikrishnan, after making extensive reference to
the documents forming part of the paper book and various
statutes, contends that:
i. The withdrawal of the criminal case pursuant to Ext.P8 to
the Cost Guard Court was without jurisdiction.
ii. The deputation of an officer of the same rank and two years
junior to the petitioner for preparing the Record of Evidence
was illegal and arbitrary.
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iii. None of the authorities could conclude that the Coast Guard
vessel "Vaibhav" collided with the fishing boat in question.
iv. In Ext.P15 Inquiry Report of the Mercantile Marine
Department (MMD) there is not even a single finding
against the petitioner, whereas the findings were against
the Officer of Watch (OOW) of the Coast Guard vessel and
against the Tindel of the boat.
v. The trial conducted by the Coast Guard Court was illegal
since,
a. it had no jurisdiction to consider the charge of causing
the death of civilians.
b. instead of a joint trial, the petitioner and the OOW were
sought to be tried separately.
c. the composition of the Coast Guard Court including a
senior DIG who was due for promotion as IG was
against the statute.
vi. Prior to issuing Ext.P22, the petitioner was not heard by
the Director General.
vii. The retention of the dismissal, pursuant to Ext. P22 order
is in violation of Section 114 of the Coast Guard Act,
1978 (for short, the 'Act').
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viii. Without prejudice, the punishment awarded to the
petitioner is excessive, harsh and disproportionate, and
the petitioner has been made a scapegoat.
6. Per contra, the learned Central Government Counsel
contends that,
i. The petitioner is not entitled to maintain the writ petition
in this Court, since no part of the cause of action has
arisen in the State of Kerala.
ii. The constitution of the Board of Inquiry/Coast Guard Court
was in tune with the statute.
iii. The withdrawal of the case from the Coast Guard Court
was a prerogative of the Coast Guard, with reference to
Section 71 of the Act.
7. I have considered the rival contentions and the
connected records.
8. The first issue arising for consideration in this writ
petition is as to the maintainability of this writ petition before
this Court. The respondents contend that no part of the cause
of action has arisen within the jurisdiction of this Court - the
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incident happening in the sea off Malpe in the State of Goa, FIR
initially being lodged there, trial happening in Goa, etc.
9. The learned Central Government Counsel relies on the
judgments of this Court in Nakul Deo Singh v. Deputy
Commandant [1999 (3) KLT 629], Registrar, Indian
Maritime University, Chennai v. Dr. K.G Viswanthan and
Another [2014 (4) KLT 798] and Dental Council of India
(DCI) v. Dr. V. Viswanthan and Others [2018 (3) KLT 255]
in support of the afore contention.
10. I notice that in the case at hand, the petitioner has
challenged the proceeding at Exts.P18, P22 and P25. Ext.P18
has been issued by the Coast Guard Court admittedly not
constituted in Kerala. On the basis of the afore, the petitioner
is dismissed from service and removed also from the rolls with
effect from 16.01.2015. The petitioner, thereafter, submitted
Ext.P21 application seeking judicial review under Section 117 of
the Act before the Chief Law Officer. The afore application is
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filed by the petitioner on 24.01.2015 from his address in Kerala.
The reply received is the communication at Ext.P22 dated
22.06.2015 again in the address in Kerala. The petitioner,
thereafter, submitted Ext.P23 to the Government of India under
Section 119 of the Act which stood rejected by Ext.P25. Both
the afore communications are with reference to the petitioner,
stationed at his residence in Kozhikode, Kerala.
11. Article 226 of the Constitution of India confers power
on the High Court when the cause of action arises "wholly or in
part" within Kerala. From the afore, it is clear that a part of the
cause of action has arisen within the jurisdiction of this Court
and hence, the petitioner is entitled to maintain this writ petition.
In this connection, I notice the judgment of the Apex Court in
Nawal Kishore Sharma v. Union of India and Others
[(2014) 9 SCC 329], wherein the Apex Court considered an
almost similar situation. There, the Shipping Corporation in
Mumbai cancelled the registration of a seaman after finding him
permanently unfit due to medical reasons. The employee sent a
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letter seeking various benefits from his native place in Bihar and
later filed the writ petition in the Patna High Court which stood
rejected on the ground of lack of jurisdiction. In the afore
situation, the Apex Court found as under:
"17. We have perused the facts pleaded in the writ petition
and the documents relied upon by the Appellant. Indisputably,
the Appellant reported sickness on account of various
ailments including difficulty in breathing. He was referred to
hospital. Consequently, he was signed off for further medical
treatment. Finally, the Respondent permanently declared the
Appellant unfit for sea service due to dilated cardiomyopathy
(heart muscles disease). As a result, the Shipping
Department of the Government of India issued an order on
12.4.2011 cancelling the registration of the Appellant as a
seaman. A copy of the letter was sent to the Appellant at his
native place in Bihar where he was staying after he was found
medically unfit. It further appears that the Appellant sent a
representation from his home in the State of Bihar to the
Respondent claiming disability compensation. The said
representation was replied by the Respondent, which was
addressed to him on his home address in Gaya, Bihar
rejecting his claim for disability compensation. It is further
evident that when the Appellant was signed off and declared
medically unfit, he returned back to his home in the District
of Gaya, Bihar and, thereafter, he made all claims and filed
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representation from his home address at Gaya and those
letters and representations were entertained by the
Respondents and replied and a decision on those
representations were communicated to him on his home
address in Bihar. Admittedly, Appellant was suffering from
serious heart muscles disease (Dilated Cardiomyopathy) and
breathing problem which forced him to stay in native place,
wherefrom he had been making all correspondence with
regard to his disability compensation. Prima facie, therefore,
considering all the facts together, a part or fraction of cause
of action arose within the jurisdiction of the Patna High Court
where he received a letter of refusal disentitling him from
disability compensation."
The principles laid down above, apply to the case at hand also.
The judgments cited on behalf of the respondents are not
applicable in the light of the afore judgment of the Supreme
Court. True, the Full Bench of this Court in Registrar, Indian
Maritime University (supra) referred to the judgment of the
Apex Court in Nawal Kishor Sharma (supra) and concluded
that the Apex Court granted relief in Nawal Kishor Sharma
(supra) considering the peculiar facts and circumstances of that
case, in exercise of the power under Article 142 of Constitution
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of India. However, I notice that in paragraph 20 of the judgment
in Nawal Kishor Sharma (supra), part of the cause of action
was found to have arisen, with reference to the factual situation
noticed earlier and not with reference to the peculiar facts
noticed in paragraph 22 by the Apex Court. In the light of the
afore, I hold that the petitioner is entitled to maintain this writ
petition under Article 226 of the Constitution of India insofar as
part of the cause of action has arisen within the State of Kerala.
12. Therefore, I proceed to decide on the issues raised in
this writ petition on its merits. The case at hand is one where
the petitioner while serving the Coast Guard, was dismissed
from service pursuant to the punishment imposed by the Coast
Guard Court.
13. Before venturing to consider the issues on merits, the
following aspects are to be noticed:
i) Scope of Judicial review under Art. 226 against the findings
of the Coast Guard Court
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In Union of India and Others v. Major A. Hussain [(1998)
1 SCC 537], the Apex Court considered the punishments being
imposed through the Court-martial proceedings and the scope
of judicial review in such cases holding as under:
"23. Though court-martial proceedings are subject to judicial
review by the High Court under Article 226 of the Constitution,
the court-martial is not subject to the superintendence of the
High Court under Article 227 of the Constitution. If a court-
martial has been properly convened and there is no challenge
to its composition and the proceedings are in accordance with
the procedure prescribed, the High Court or for that matter any
court must stay its hands. Proceedings of a court-martial are
not to be compared with the proceedings in a criminal court
under the CrPC where adjournments have become a matter of
routine though that is also against the provisions of law. It has
been rightly said that court-martial remains to a significant
degree, a specialised part of overall mechanism by which the
military discipline is preserved. It is for the special need for the
armed forces that a person subject to Army Act is tried by
court-martial for an act which is an offence under the Act.
Court-martial discharges judicial function and to a great extent
is a court where provisions of Evidence Act are applicable. A
court-martial has also the same responsibility as any court to
protect the rights of the accused charged before it and to follow
the procedural safeguards. If one looks at the provisions of law
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relating to court-martial in the Army Act, the Army Rules,
Defence Service Regulations and other Administrative
Instructions of the Army, it is manifestly clear that the
procedure prescribed is perhaps equally fair if not more than a
criminal trial provides to the accused. When there is sufficient
evidence to sustain conviction, it is unnecessary to examine if
pre-trial investigation was adequate or not. Requirement of
proper and adequate investigation is not jurisdictional and any
violation thereof does not invalidate the court-martial unless it
is shown that the accused has been prejudiced or a mandatory
provision has been violated. One may usefully refer to Rule 149
quoted above. The High Court should not allow the challenge
to the validity of conviction and sentence of the accused when
evidence is sufficient, court-martial has jurisdiction over the
subject-matter and has followed the prescribed procedure and
is within its powers to award punishment."
In Union of India and Others v. R.K Sharma [(2001) 9 SCC
592], the Apex Court reiterated the position as under:
"13. ......The above observations are not to be taken to mean that a
court can, while exercising powers under Article 226 or 227 and/or
under Article 32, interfere with the punishment because it considers the
punishment to be disproportionate. It is only in extreme cases, which on
their face show perversity or irrationality that there can be judicial review.
Merely on compassionate grounds a court should not interfere. "
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ii) Scope of applicability of the Doctrine of Command
Responsibility
The petitioner admittedly was a member of the Coast Guard
service. The Coast Guard is akin to the Armed Forces, a
uniformed force controlled by discipline among its ranks. The
discipline among the rank is to be maintained by the
Commanding Officers and in services like the Coast Guard, an
officer acts as the leader of those who are placed under him,
and he is required to command them. The orders issued by the
Commander are to be carried out in letter and spirit, meaning
thereby, consequences are to follow when there is disobedience
to the orders issued. The Officer/ Commander commanding the
men under him in such circumstances has "Command
Responsibility." The Commander cannot disown the actions of
those under him by stating that he was not aware about the
actions of his subordinates. In the article "Command
Responsibility and Accountability" by Lieutenant Colonel Joe
Doty, Ph.D., U.S. Army, Retired, and Captain Chuk Doty, U.S.
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Navy, Retired published in Military Review January-February-
2012, (https://www.armyupress.army.mil/Journals/Military-
Review/English-Edition-Archives/MR-90th-Anniversary/90th-
Doty/) the authors have opined as under:-
"In the Army, there is an old saying that the commander is
responsible for everything the unit does or fails to do. But are
they accountable? Historically, the Army does not relieve
commanders at the O-5/0-6 level at the same rate as the Navy,
and maybe it shouldn't. Maybe the Navy is too quick to relieve
ship commanders. However, for our Army to maintain a healthy
professional ethic, commanders need to embrace the spirit of this
saying as their command responsibility, and Army leadership
should consider how they hold commanders accountable for what
their units and soldiers do and fail to do.
A few common themes permeate the two adages mentioned
above:
• A commander can delegate authority but not responsibility.
Authority refers to who is in charge, while responsibility refers to
who is accountable.
• A commander is responsible but very often not in control.
• Commanders have a responsibility to ensure their subordinates
are trained and can operate independently based on the
commander's intent.
• Commanders have a responsibility to set a command climate
wherein subordinates will act ethically in the absence of leaders.
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..................
The key learning point behind the statement that the commander
is responsible for everything the unit does and fails to do is really
philosophical because in reality commanders cannot lead,
supervise, or micromanage their subordinates 24 hours a day, 7
days a week, nor should they. Commanders and leaders cannot
prevent every possible bad thing from happening in a unit, but
commanders who understand, internalize, and command their
unit by being responsible but not in control will be thinking,
planning, and acting in a way that sets up the unit and its soldiers
for success.
In practical terms, accountability means consequences, both
positive (awards, promotions, superb ratings, etc.) and negative
(letters of reprimand, Article 15s, relief for cause, poor ratings,
etc.).
(Underlining supplied)
Thus, applying the doctrine of Command Responsibility, a
Commander cannot shy away from the aftermath of the actions
of his subordinates.
iii) Relevant provisions of the Coast Guard Act, 1978
The Coast Guard Act is enacted by the parliament for the
constitution and regulation of the Armed Forces of the Union for
ensuring the security of the Maritime zones. Chapter III of the
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Act provides for the duties and functions of the Coast Guard
under Section 14 as under:-
"Section 14 (1) It shall be the duty of the Coast Guard to
protect by such measures, as it thinks fit, the maritime and
other national interests of India in the maritime zones of India.
(2) Without prejudice to the generality of the provisions of sub-
section (1), the measures referred to therein may provide for
-
(a) ....
(b) providing protection to fishermen including assistance
to them at sea while in distress;"
(Underlining supplied)
iv) Factual position of the mishap that occurred in the early
hours of 25-04-2013 involving the vessel and the fishing boat
and its aftermath
In the early hours of 25.04.2013, the vessel under the
command of the petitioner collided with the fishing boat. This
incident occurred on or around 05:00 hours. There were 29 crew
members (fishermen) in the fishing boat. The fishing boat, on
account of the collision, broke into two parts. The fishing boat
started to sink, and the members of the crew were thrown into
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the sea. Admittedly, the vessel did not stop and ventured into
the search and rescue operation. Instead, it proceeded to its
base even as admitted by the petitioner. The fishermen were
rescued almost 5 hours later by another fishing boat. By that
time, six fishermen were lost in the sea and dead bodies of five
of them were recovered. The body of the sixth missing crew
member was not recovered. The fact that the fishermen could
have been saved had the vessel stopped and ventured into
search and rescue, is not a matter of dispute. It is true that the
petitioner had some explanations for the ship not stopping after
the incident, which, however, did not find favour with the Coast
Guard Court.
14. The various contentions raised in this writ petition are
to be considered with reference to the touchstone of the
principles laid down in the afore judgments/doctrine/factual
position. In the light of the principles laid down by the Apex
Court in the decisions referred to above, I am of the opinion that
the majority of the contentions raised by the petitioner on the
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technicality of the constitution of the Board of Inquiry, the Coast
Guard Court, the sufficiency of evidence implicating the
petitioner, etc. do not arise for consideration herein. Even on
the face of the afore, taking note of the persuasive submissions
of the learned counsel Sri. Unnikrishnan, I proceed to consider
the various contentions raised by him.
15. The first contention raised against the impugned
proceedings is as to the legality or otherwise of the withdrawal
of the case from the criminal court to the Coast Guard Court.
The petitioner relies on the Coast Guard Order 3 of 2012 in
support of his contention. Sri. Unnikrishnan, the learned counsel,
would rely on paragraph 6(a)(iv) and paragraph 6(c)(iii) to
contend that when the offence is related to the properties of the
civilian, the case is not to be taken over by the Coast Guard
Court. But here as already noticed, the entire proceedings
against the petitioner are not with reference to the loss of
properties/life of civilian/s alone. A reading of the charges
leveled against the petitioner would show that the petitioner
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was proceeded against primarily on the basis of the decision/s
made by him, after the accident in the sea. Therefore, I am of
the opinion that the withdrawal of the case from the criminal
court cannot be found fault, especially in light of Section 71 of
the Act, as per which it is the discretion of the Director General
of the Coast Guard to choose between the criminal court and
the Coast Guard Court. Further, the provisions of Rule 16 to the
Coast Guard (Discipline) Rules, 1983, provide as under:
"16. Trial of Cases either by Coast Guard Court or Criminal
Court - (1) Where an offence is triable by a criminal court and the
Coast Guard Court, an officer referred to in Section 71, may
(a) (i)Where the offence is committed by the accused in the
course of the performance of his duty as a member of the Coast
Guard; or
(ii) Where the offence is committed in relation to property
belonging to the Government or Coast Guard or a person subject
to the Act; or
(iii) Where the offence is committed against a person subject to
the Act,
direct that any person subject to the Act, who is alleged to have
committed such an offence, be tried by a Court; and"
Thus, it has been categorically provided that it is the choice of
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the Coast Guard between the Criminal Court and the Coast
Guard Court, when the alleged offence committed by the
petitioner was in his capacity as the Commander of the vessel
in question. The provisions of Rule 2(d) of the afore Rules define
the term "Court" as a "Coast Guard Court" and conclude the
position.
16. The second issue raised by the petitioner is with
reference to the deputation of an officer of the same rank for
the preparation of a Record of Evidence. Here, I notice that the
petitioner did not raise any such objection initially at the time of
issuance of Ext.P11 deputing the officer concerned to record the
evidence. Furthermore, there is no prejudice caused to the
petitioner on account of the deputation of the officer of the same
rank for the preparation of the record of evidence. This Court
also notices that the evidence was recorded with reference to
the incident that occurred in the sea and its aftermath and that
by itself has not concluded the issue for or against the petitioner.
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17. Thirdly, it is contended that even at the time Ext. P2
communication was issued by the Boat Owners Association, the
complainants were not sure about the vessel involved. However,
I notice that Ext.P2 communication was specifically addressed
to the Coast Guard, Goa, and therefore, the mere reference to
the vessel concerned as a Navy vessel, cannot be of any help to
the petitioner. This can be only taken as an inadvertent mistake
while drafting the letter on the morning after the incident. The
petitioner further relies on Ext.P16 Inquiry Report of the MMD
and contends that there were no observations against him and
the findings were against the OOW and the Tindel of the boat.
However, in Ext.P15 the following specific observations have
been made:
"13. Six crew-members of the fishing boat had slept in the
forward area of the fishing boat. The collision appears to have
occurred near the forward area of the fishing boat where the
6 crew-members were sleeping. Bodies of 5 of these crew-
members were recovered. Body of the 6th crew-member was
not recovered.
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14.Post mortem report of all the 5 deceased crew-members
of the fishing boat whose bodies were recovered indicates
cause of death to be head injury. This indicates that they
could have suffered the injury during the collision."
(Underlining supplied)
Thus, the report finds that the post-mortem report of the
unfortunate fishermen (5 in number) showed that they died due
to the head injury suffered in the collision. This points to the
gravity of the accident/collision of the vessel with the fishing
boat. The fact that the vessel did not stop after the incident
and ventured into search and rescue is also the admitted
position. The Coast Guard Court also found that there were no
other vessels stationed near the place where the accident
occurred. This finding strikes at the root of the contention raised
that the vessel has not been involved at all in the incident and
also shows that the failure of the vessel to stop has solely
caused the death of the fishermen. Again, it was the duty of
the petitioner to have ordered the vessel to stop, return and
carry out search and rescue as provided under the Coast Guard
Act, noticed earlier. Admittedly this was also not done.
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18. The next contention raised is with reference to the
illegality of the trial. According to the petitioner, the main charge
is the death of five civilians and the Coast Guard Court has no
jurisdiction over that matter. However, as already noticed, the
gravamen of the allegations against the petitioner are with
reference to the aftermath of the accident. For example, the
third charge against the petitioner was with reference to the
non-reporting of the collision at the first available opportunity,
the fourth charge of not investigating the result of the collision,
etc. The afore can only be tried by the Coast Guard Court, and
the contention to the contrary is only to be rejected. Similarly,
the petitioner's challenge against the constitution of the court
also cannot be accepted in view of the mandate under Section
65(4) of the Act as per which the presiding officer and at least
two members of the court are to be of the same rank as of the
accused or of a higher rank. The constitution of the court as per
Ext.P16 is in tune with the mandate under Section 65(4) of the
Act and hence, the above contention is also to be rejected.
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19. The next contention raised is with reference to the
hearing conducted prior to the issue of Ext.P22, which is seen
signed by a Commandant. However, Ext.P22 is only a
communication for and on behalf of the Director General of the
Coast Guard informing the petitioner of the decision taken by
the Director General. Therefore, the petitioner cannot raise any
complaint in that regard.
20. The next point raised by the learned counsel for the
petitioner is with reference to the modification of the sentence,
read with the provisions of Section 114 of the Act. According to
him the original punishment imposed by the Court is modified
by Ext.P22 order by remitting the sentence of imprisonment.
Therefore, he relies on Section 114 of the Act which reads as
under:
"Section 114 (1) Where in addition to any other sentence,
the punishment of dismissal has been awarded under this
Act and such other sentence is suspended under section 107,
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then, such dismissal shall not take effect until so ordered by
the authority or officer specified in section 107.
(2) If such other sentence is remitted under section 110, the
punishment of dismissal shall also be remitted."
and contends that since the sentence of imprisonment was
remitted under section 114, the punishment of dismissal was
also to be remitted.
21. Here, reference is to be made to the provisions of
Chapter V of the Act dealing with punishments. Section 53 of
the Act, provides as under:
"Section 53 (1) Punishments may be inflicted in respect of
offences committed by person subject to this Act and convicted by
Coast Guard Courts according to the scale following, that is to say,
(a) death;
(b) imprisonment which may be for the term of life or any
other lesser term;
(c) dismissal from the Coast Guard;
(d) detention in Coast Guard custody for a period not
exceeding two years;
(e) reduction to the ranks or to a lower rank in the case of
sailors;
W.P(C) No.30634 of 2017 2025:KER:1909
(f) forfeiture of seniority of rank, forfeiture of all or any part
of the service for the purpose of promotion;
(g) forfeiture of service for the purpose of increased pay,
pension or any other prescribed purpose;
(h) fine, in respect of civil offences;
(i) mulcts of pay and allowances;
(j) severe reprimand or reprimand except in the case of
persons below the rank of an Uttam Navik or Uttam Yantrik
(2) Each of the punishments specified in sub-section (1) shall be
deemed to be inferior in degree to every punishment preceding it
in the above scale."
The provisions of Sections 55 and 58 of the Act are also to be
referred to, which reads as under,
"Section 55. Subject to the provisions of section 58, a sentence
of a Coast Guard Court may award in addition to, or without any
one other punishment, the punishment specified in clause (c) of
sub- section (1) of section 53 and any one or more of the
punishments specified in clauses (e) to (j) (both inclusive) of that
sub-section."
"Section 58 (1) The punishments that may be inflicted under this
Act shall be awarded in accordance with the provisions of this
section.
(2) A sentence of imprisonment under this Act shall, in all cases,
be accompanied by a sentence of dismissal.
W.P(C) No.30634 of 2017 2025:KER:1909
(3) A sentence of imprisonment may be rigorous or simple or
partly rigorous and partly simple.
(4) No officer shall be subject to detention for any offence
under this Act.
(5) No subordinate officer shall be sentenced to detention
except for desertion.
(6) A sentence of detention shall not be accompanied by a
sentence of dismissal from the Coast Guard.
(7) A sentence of detention for a period exceeding fourteen
days shall in all cases be accompanied by stoppage of pay and
allowances during the period of detention.
(8) Where mulcts of pay and allowances are awarded for
absence without leave, the absence shall be treated as
regularised for all purposes."
Section 53, extracted above, provides for the punishments that
may be inflicted upon conviction by the Coast Guard Court.
Clause (b) of Section 53(1) provides for imprisonment and
clause (c) provides for the dismissal from service. By virtue of
sub-section (2), the punishments under sub-section (1) are
deemed to be "inferior in degree" to every punishment
preceding it. Therefore, imprisonment is a superior punishment
to dismissal. Section 55 provides that the punishment under
clause (c) - dismissal - can be inflicted independently. It is only
W.P(C) No.30634 of 2017 2025:KER:1909
that under section 58(2) whenever a sentence of imprisonment
is ordered, the same is to be accompanied by a sentence of
dismissal. But the statute does not provide the other way round,
i.e., whenever a sentence of dismissal is ordered, the same is
to be accompanied by an order of imprisonment.
22. Here, the petitioner is admittedly sentenced to
imprisonment as also dismissal from service pursuant to
Ext.P18. Against the above, the petitioner has admittedly filed
an application under Section 117 as seen from Ext.P21. Section
117 of the Act reads as under,
"117. (1) All proceedings of trials by Coast Guard Courts shall
be reviewed by the Chief Law Officer either on his own
motion or on application made to him within the prescribed
time by any person aggrieved by any sentence or finding,
and the Chief Law Officer shall transmit the report of such
review together with such recommendations as may appear
to him just and proper to the Director - General for his
consideration and for such action as the Director-General
may think fit.
(2) Where any person aggrieved has made an application
under sub-section (1), the Chief Law Officer may, if the
W.P(C) No.30634 of 2017 2025:KER:1909
circumstances of the case so require, give him an
opportunity of being heard either in person or through a
legal practitioner or an officer of the Coast Guard.
Thus, on the basis of Ext.P21 application, the Chief Law Officer
reviewed Ext.P18 and transmitted his recommendations to the
Director General. It is on that basis Ext.P22 is issued, which can
only be an order of judicial review under Chapter XI. The
suspension of sentence under Section 107 and remission under
Section 110 cannot be read along with the judicial review under
Section 117 referred to above. Therefore, I am of the opinion
that the petitioner is not entitled to seek shelter under Section
114(2) of the Act.
23. The last contention raised is with reference to the
punishment awarded being excessive, harsh and
disproportionate. This contention has to be considered with
reference to the doctrine of Command Responsibility and the
scope of judicial review in cases of the present nature, as
noticed earlier. It is found that the petitioner cannot shy away
W.P(C) No.30634 of 2017 2025:KER:1909
from his responsibilities on account of being the Commander of
the vessel concerned. The nature of the loss on account of the
accident - the death of six fishermen - cannot be lost sight of.
The petitioner has been shown the required leniency pursuant
to Ext.P22 order and in my opinion, the punishment of dismissal
from service retained by Ext.P22 cannot be found fault with.
Further, the nature of the punishment, etc. cannot be the
subject matter of judicial review as held by the Apex Court in
the afore judgments.
24. On the whole, I am of the considered opinion that the
petitioner is not entitled to any of the reliefs prayed for in this
writ petition.
Resultantly, the captioned writ petition would stand
dismissed.
Sd/-
HARISANKAR V. MENON, JUDGE
ln
W.P(C) No.30634 of 2017 2025:KER:1909
APPENDIX OF WP(C) NO.30634/2017
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CGHQ LETTER DATED 21.1.2013
APPOINTING THE PETITIONER AS THE COMMANDING
OFFICER (DESIGNATE) OF THE NEW CONSTRUCTION
SHIP, YEAR-1205(VAIBHAV).
EXHIBIT P2 TRUE COPY OF THE FAX MESSAGE DATED 25.4.2013.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 25.4.2013
CONSTITUTING THE BOARD OF INQUIRY.
EXHIBIT P4 TRUE COPY OF CGHQ FAX DATED 29.4.2013
DIRECTING THE PETITIONER TO HANDOVER CHARGE OF
THE SHIP.
EXHIBIT P5 TRUE COPY OF THE FIRST INFORMATION REPORT
NO.63/13 DATED 26.4.2013 REGISTERED BY THE GOA
POLICE.
EXHIBIT P6 TRUE COPY OF THE FINDINGS OF THE BOI.
EXHIBIT P7 TRUE COPY OF THE TRANSLATION OF CHARGE SHEET
DATED 30.4.2013 FILED BY YELLOW GATE POLICE.
EXHIBIT P8 TRUE COPY OF THE ORDER OF THE 16TH
METROPOLITAN COURT, BALLARD PIER, MUMBAI DATED
5.9.2013.
EXHIBIT P9 TRUE COPY OF THE FAX DATED 5.9.2013 ISSUED BY
THE REGIONAL HEADQUARTERS (WEST) DIRECTING FOR
COMMENCEMENT OF THE RECORD OF EVIDENCE AT
COAST GUARD STATION, GOA.
EXHIBIT P10 TRUE COPY OF THE CHARGE SHEET DATED 18.9.2013
SERVED ON THE PETITIONER PRIOR TO THE
COMMENCEMENT OF THE RECORD OF EVIDENCE.
EXHIBIT P11 TRUE COPY OF THE ORDER DATED 23.9.2013
NOMINATING DIG KAILASH NEGI RECORDING OFFICER.
W.P(C) No.30634 of 2017 2025:KER:1909
EXHIBIT P12 TRUE COPY OF THE LETTER DATED 7.2.2014 FROM
DIG M.V BAADKAR, THE COMMANDING OFFICER, COAST
GUARD STATION GOA AGAINST THE MANNER IN WHICH
THE RECORD OF EVIDENCE WAS CONDUCTED BY THE
RECORDING OFFICER.
EXHIBIT P13 TRUE COPY LETTER DATED 21.4.2014 FROM DIG M.V
BAADKAR, THE COMMANDING OFFICER, COAST GUARD
STATION, GOA AFTER RECORDING OF EVIDENCE
RECOMMENDING TO DROP 8 OUT OF THE 12 CHARGES.
EXHIBIT P14 TRUE COPY OF THE AFFIDAVIT FILED BY DIG M.V
BAADKAR THE COMMANDING OFFICER COAST GUARD
STATION GOA BEFORE THE DISTRICT COURT IN SOUTH
IN GOA ON 19.11.2014.
EXHIBIT P15 TRUE COPY OF THE INQUIRY REPORT DATED
16.12.2013 OF THE MERCANTILE MARINE
DEPARTMENT.
EXHIBIT P16 TRUE COPY OF THE ORDER DATED 24.10.2014
CONSTITUTING THE COAST GUARD COURT FOR TRAIL
OF PETITIONER.
EXHIBIT P17 TRUE COPY OF CHARGE SHEET DATED 24.10.2014
SERVED TO THE PETITIONER IN TRIAL.
EXHIBIT P18 TRUE COPY OF THE EXTRACT OF FINDINGS AND
SENTENCE DATED 16.1.2015 TAKEN FROM THE COAST
GUARD COURT PROCEEDINGS.
EXHIBIT P19 TRUE COPY OF ORDER DATED 16.1.2015 OF THE 2ND
RESPONDENT DATED 16.1.2015 GRANTING SUSPENSION
OF IMPRISONMENT.
EXHIBIT 2O TRUE COPY OF THE GENFORM DATED 16.1.2015
NOTIFYING DISMISSAL OF PETITIONER FROM
SERVICE.
EXHIBIT P21 TRUE COPY OF THE APPLICATION FOR JUDICIAL
REVIEW DATED 24.1.2015(EXCLUDING THE
ENCLOSURES/ANNEXURES)
EXHIBIT P22 TRUE COPY OF LETTER DATED 22.6.2015 SIGNED BY
COMMANDANT, S.S AZAD, INFORMING DIRECTIONS OF
W.P(C) No.30634 of 2017 2025:KER:1909
THE 2ND RESPONDENT ON THE REVIEW PETITION.
EXHIBIT P23 TRUE COPY OF STATUTORY PETITION DATED 9.9.2015
(EXCLUDING THE ENCLOSURES/ANNEXURES.
EXHIBIT P24 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH
COURT OF KERALA DATED 15.7.2016.
EXHIBIT P25 TRUE COPY OF ORDER DATED 24.5.2017 OF 1ST
RESPONDENT RECEIVED ON 29.5.2017.
RESPONDENTS' EXHIBITS:
EXHIBIT R2(A) TRUE COPY OF THE SAILING ORDER AND OPS
INSTRUCTION DATED 23.04.2013.
EXHIBIT R2(B) TRUE COPY OF THE ACQUAINTANCE SORTIE DATED 24
& 25 APRIL 2013.
EXHIBIT R2(C) TRUE COPY OF THE CAPTAIN'S NIGHT ORDER DATED
24.04.2013.
EXHIBIT R2(D) TRUE COPY OF THE SITREP AS APPROVED BY THE
PETITIONER.
EXHIBIT R2(E) TRUE COPY OF THE INCIDENT REPORT TO COMDIS 11
DATED 25.04.2013.
EXHIBIT R2(F) TRUE COPY OF THE DETAILED REPORT TO COMCG (W)
LETTER DATED 25.04.2013.
EXHIBIT R2(G) TRUE COPY OF THE SUSPENSION OF SENTENCE DATED
16.01.2015.
EXHIBIT R2(H) TRUE COPY OF THE COMMUNICATION DATED
20.01.2015.
EXHIBIT R2(I) TRUE COPY OF THE LETTER DATED 21.01.2015.
EXHIBIT R2(J) TRUE COPY OF THE EXTRACT OF RELEVANT PAGES OF
BOI IE PAGE 412-413.
EXHIBIT R2(K) TRUE COPY OF THE PRE INQUIRY DELIBERATION.
EXHIBIT R2(L) TRUE COPY OF THE CGO 3/2012.
W.P(C) No.30634 of 2017 2025:KER:1909
EXHIBIT R2(M) TRUE COPY OF THE LETTER NO. LW/YARD-1205/2
DATED 21.09.2013
EXHIBIT R1(A) TRUE COPY OF THE REQUEST LETTER 242/KJ/01/15
DATED 16 JAN 2015 SUBMITTED BY PETITIONER FOR
SUSPENSION OF THE SENTENCE.
EXHIBIT R1(B) TRUE COPY OF THE COMMUNICATION OF SUSPENSION
OF SENTENCE VIDE SIGNAL DATED 20 JAN 2015.
