Shri Avijit Saha vs The Union of India and others

Ashoke Kumar Dasadhikari, J.—The present writ application was filed against the impugned punishment warrant issued by Commodore (01254-Z) Commanding Officer & Commander (02689-K) Executive Officer in Warrant No. 02/2006 dated 28th March, 2006 wherein the petitioner has been awarded with punishment for reduction from Acting Leading Patrolman Rank to Radio Operator First Class (Tactical).

It was contended by the writ petitioner that the respondent authorities have inflicted punishment upon the petitioner without conducting any proper enquiry, without issuing charge sheet or show-cause or even without giving any opportunity of hearing to the writ petitioner which, according to him, is contrary to the principles of natural justice and fair play in action.

It was submitted that the punishment was awarded on the basis of a preliminary enquiry wherein the petitioner was not even granted any opportunity to appear or to submit his case and the entire action of the respondent authorities are one sided.

It was further submitted that, although there was no complainant, nor the affected person appeared before any authority at the time of enquiry nor filed any complaint, the respondent authorities have only on the basis of surmises conjuncture prepared alleged preliminary report and on that basis the punishment was given.

It was submitted that the respondent authorities in their affidavit-in-opposition stated that only a preliminary enquiry was carried out and sufficient evidence were available against the petitioner. It was also stated that under the summary trial procedure and Regulation Navy Part-II (Statutory) and Navy Act, the Commanding Officer based on OOD report can initiate disciplinary action against a sailor through IO/RO/EXO and no written complaint is necessary. But in the instant case, no charge was framed, nor any proceeding was initiated against the petitioner and accordingly, the entire exercise is contrary to Act and the Rules applicable in the instant case of the petitioner.

The learned counsel, Mr. George, appearing in support of the writ petitioner submits that the entire action of the respondent authorities are contrary to the principles of natural justice and fair play in action and further he submitted that the respondent authorities did not act in compliance of the regulation and/or statutory provisions applicable in that regard. It was further submitted that since there is violation of principle of natural justice alternative remedy is not bar and there are judgments of the Hon''ble Apex Court in that regard. He submits that the entire action is illegal and arbitrary and the entire process is vitiated specially when the respondent authorities did not give any opportunity to the writ petitioner to cross examine the persons who have given evidence.

Mr. Das, learned counsel appearing for the respondents submits that on the basis of preliminary enquiry the punishment was awarded. He submits that u/s 22 of the Navy Act, the investigation was conducted. He submits that the order of punishment is an appealable order under the Act itself. Therefore, the writ petition is not maintainable. He also submits that the action taken by the respondent authorities are lawful and valid.

Mr. George, in reply, submitted that only preliminary enquiry was made by the respondent authorities which is disclosed in the affidavit-in-opposition but it was made behind the back of the petitioner. No formal investigation of the alleged offence was ever made. Nor any opportunity was given to writ petitioner.

Heard the submissions made by the counsel appearing for the respective parties and considered the materials available on record. It would appear that on the basis of the preliminary enquiry, the punishment was imposed and/or awarded upon the petitioner. The petitioner was not granted any opportunity to represent his case nor any opportunity was given to cross-examine the witnesses. No formal investigation was conducted. There was no complaint even on the records. The submissions made by the injured persons disclose that they consumed little bit excess liquor and at the time of fall and the writ petitioner have nothing to do. The statement made by Mr. B.B. Sarangi, RPO No. 17650F reads as follows:

Statement of BB Sarangi RPO No. 176508F

I BB Sarangi RPO have to state that on 28th Jan 2006, provost get together was there consume little bit excess liquor on that day when felt excess, I cam from party room. When I reached ladder, I put my step on that ladder and slept away. I fell down. Their LPM Pokhrial was there. He help for getting up. By the time D. George LPM came. He also help me. Then I straight away came to my cabin and slept. After that I don''t know what happened. In that cabin one site MAA Yadav and myself was staying. Other side RPO Madan Singh and RPO L.S. Chauhan was staying that cabin. I have not done any wrong thing in that party that I am sure.

Signed by

(BB Sarangi)

In my opinion, no opportunity was given to the petitioner and there is a violation of principles of natural justice. Further punishment was awarded only on the basis of preliminary enquiry. The writ petitioner was never issued with any show-cause notice nor charge sheet nor he was allowed to cross examine the witnesses. Thus the entire process is vitiated.

In my view, the order impugned passed by the respondent authorities is not sustainable in law. The order passed by the respondent authorities is set aside.

The respondent authorities are directed to release all service benefits in favour of the petitioner.

The writ petition is, thus, disposed of. There will be no order as to costs.

Urgent Xerox certified copy of this order be supplied to the respective parties upon compliance of all formalities.

Mr. Bimal Kumar Das, learned counsel appearing for the respondents prays for stay of the operation of the order. Considered the prayer for stay and refused.