DIG K. JANARDHANAN v Union of India and Director General of Coast Guard

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 3RD DAY OF APRIL 2018 / 13TH CHAITHRA, 1940 WA.No. 664 of 2018 IN WPC. 30634/2017 -------------------------------------------AGAINST THE ORDER IN WP(C) 30634/2017 DATED 5.1.2018 APPELLANT(S) ---------------- DIG K. JANARDHANAN, TM (0172-P), C/O.SRI.MPG NAMBIAR, HOUSE NO.3/257, CHAITHRA, MAJOR SANTHOSH ROAD, NADAKAVU POST, CALICUT, KERALA- 673 011. BY ADV.SRI.T.KRISHNANUNNI (SR.) SRI.T.R.RAVI RESPONDENT(S): ------------------- ## 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI- 110 011. ## 2. THE DIRECTOR GENERAL OF COAST GUARD, COAST GUARD HEADQUARTERS, NATIONAL STADIUM COMPLEX, NEW DELHI- 110 001. R1,R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** ## **========================== W.A. No.664 OF 2018** **==========================** Dated this the 3[rd ] day of April, 2018 ## **JUDGMENT** _Ravikumar, J._ This intra court appeal under section 5 of the Kerala High Court Act is filed against order dated 5.01.2018 passed by a learned Single Judge in W.P.(C).No.30634 of 2017. The petitioner is the appellant. He moved the said writ petition mainly seeking quashment of Exts.P18, P20, P22 and P25 by issuance of a writ of certiorari. Ext.P18 is the true copy of the extract of findings and sentence in the judgment of Coast Guard Court dated 16.1.2015. Ext.P20 is the order whereby he was dismissed from service. Ext.P22 is the copy of letter dated 22.6.2015, informing directions of the second respondent on the review petition whereby the sentence of imprisonment was remitted and sentence of dismissal was retained. Inter alia, he also sought for issuance of writ of mandamus commanding the respondents to **W.A.664/2018** 2 reinstate him in service with all attendant benefits treating the order of dismissal as having been remitted effectively from the date of Ext.P19 order. 2. When the writ petition came up for consideration, the learned counsel for the petitioner raised a preliminary issue regarding the applicability of section 114 of the Coast Guard Act, 1978 (for brevity, 'the Act' only) contending that the order of punishment is one whereby the petitioner was imposed with sentence of imprisonment following an order of dismissal from service. The further contention was that Ext.P22 order would reveal that the order of imprisonment was remitted and the sentence of dismissal was retained. According to the petitioner, in such circumstances, the provisions under section 114 (2) of the Act ought to have been applied and dismissal from service also ought to have been remitted. In fact, it was in a bid to get an order of reinstatement by way of an interlocutory order that the such an issue was raised. The learned Single Judge heard both sides on the question of applicability of section 114 of the Act and passed the impugned order. **W.A.664/2018** 3 3. We have heard the learned counsel for the appellant and also the Assistant Solicitor General appearing for the respondents. 4. While considering the maintainability of an intra court appeal filed under section 5 of the High Court Act against an interlocutory order, the decision of a Full Bench of this Court in **K.S.Das v. State of Kerala [1992 (2) KLT 358 (FB)]** has to be looked into. The Full Bench was considering the question as to under what circumstances an appeal will lie against an interlocutory order passed in a writ petition while the main writ petition is pending. The essence of the decision is that if an interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it dealt with. Therefore, if in respect of any subordinate matters, the interlocutory order is conclusive, an appeal would lie under section 5 of the High Court Act against an interlocutory order passed pending the writ petition in the light of the decision in **Das** 's case (supra). 5. Bearing in mind the said position of law settled by the Full Bench, we will proceed to consider whether this appeal is **W.A.664/2018** 4 maintainable. A scanning of the interlocutory order would reveal that there is a clear finding at least of two issues, by the learned Single Judge. A scanning of paragraph 11 of the impugned order would reveal that virtually, the learned Single Judge held that there is violation of the provisions under section 114(1) of the Act. In the contextual situation, it is relevant to refer to section 114(1) of the Act. It reads thus:- 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, then, such dismissal shall not take effect until so ordered by the authority or officer specified in section 107. 6. Going by the provision under section 114(1), when the order was passed under section 53 of the Act and if that order contains any sentence in addition to punishment of dismissal from service and when that additional sentence is suspended under section 107, then, such dismissal imposed as penalty shall not take its effect until so ordered by the authority or officer specified in section 107 of the Act. In such circumstances, when it is found that there is clear violation of **W.A.664/2018** 5 section 114(1) of the Act, it should be taken that after suspending the other sentence without passing a specific order on the issue of dismissal by an authority or officer specified under section 107 and unmindful of the fact that the sentence was suspended invoking the power under section 107, the matter was proceeded with and the order of penalty of dismissal was given effect to. When that part of the penalty passed under section 53 imposing the penalty of dismissal from service was given effect to pending the order suspending the order of sentence of imprisonment, there would not be any final order available for exercising the power under section 117, it is contended. In the contextual situation, it is worthwhile to extract section 117 of the Act. It reads thus:- 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. **W.A.664/2018** 6 7. A bare perusal of section 117 of the Act would reveal that the power of judicial review can be exercised only either suo motu or on application by any person aggrieved against, an order of sentence or a clear finding. In other words, if there is no such original order imposing a sentence, there is no question of exercising judicial review as existence of such an order is a pre-condition for exercising judicial review. 8. As regards the applicability of section 114(2) of the Act, according to the learned senior counsel for the appellant, a conclusive decision was taken by the learned Single Judge. The learned senior counsel appearing for the appellant drew our attention to paragraph 25 of the impugned order. It is submitted by the learned senior counsel that the essence of the findings and conclusions in paragraph 25 is to the effect that the provisions under section 114(2) is not applicable in the case on hand. Paragraph 25 reads thus:- “....................Therefore as reduction of punishment or remission of sentence of imprisonment under Section 117 of the Act does not insist that the sentence of dismissal **W.A.664/2018** 7 also shall be remitted, I do not find any infirmity in that procedure, especially when there is no provision insisting that an order of dismissal shall not be awarded or imposed except along with sentence of imprisonment, as evident from Section 58 read with Section 55.” 9. A perusal of section 53 of the Act itself would reveal that it enumerates various punishments under sub section (1). Section 53(1) (c) would reveal that dismissal from Coast Guard can be imposed as a punishment. A perusal of Ext.P18 would reveal that in the case on hand, the appellant was imposed with the following punishments:- (a) Simple imprisonment for six months. (b) Dismissal from the Coast Guard service. Imprisonment for six months falls under section 53(1)(b) of the Act. Section 53(1)(b) reads thus:- “53 (1)(b) imprisonment which may be for the term of life or any other lesser term.” Thus, it is obvious that in the case on hand, after culmination of the proceedings, the authority competent to impose the penalty decided to impose a sentence of imprisonment for a period of six months which **W.A.664/2018** 8 is a penalty under section 53(1)(b) in addition to dismissal from Coast Guard service which is a penalty under section 53(1)(c). Thus, it is obvious that it is a case where penalty of dismissal from Coast Guard was imposed in addition to imprisonment for six months. The contention of the learned counsel for the appellant is that subsequently, the authority specified under section 107 passed an order suspending the sentence of imprisonment. At the same time, the dismissal from service was given effect to. Evidently, it is in such circumstances that the appellant contended that there is violation of the provisions under section 114(1) of the Act inasmuch as ignoring the order suspending the sentence passed under section 107, the order of dismissal was given effect to, though in terms of the provisions under section 114 pending such an order, the order of dismissal could not have been given effect to until so ordered by the authority. In the light of the rival contentions, the question whether Ext.P20 should be considered as an order passed remitting the sentence of simple imprisonment for six months is also to be considered. Whether it is only a simple order interfering with the order passed by the original **W.A.664/2018** 9 authority in exercise of the power of judicial review or whether it could also be construed as an order whereby an order of remission was passed, whether Ext.P22 was passed as an order exclusively exercising the power under section 117 are also matters for consideration. Evidently, it is an order whereby the sentence of imprisonment was remitted. The question is whether it could also be construed as an order passed under section 110 as regards the question of remission of the sentence. This is because section 114(2) would apply only in a case where such other sentence which is imposed over and above the punishment of dismissal, if remitted invoking the power under section 110, then only punishment of dismissal requires remittance. The contention of the appellant is to the effect that it should be construed as an order passed under section 110 remitting the other sentence over and above the dismissal of sentence. Therefore, the provisions under section 114(2) is applicable. Whether it could be construed as such or whether it should be construed as an order passed independent of that power and solely in exercise of the power under section 117 modifying the penalty imposed are certainly **W.A.664/2018** 10 matters to be considered. We are of the view that in such circumstances, giving a clear finding of conclusive nature on the question of applicability of section 114(2) as also section 114(1) pending the writ petition, it would prejudice the prospects of both sides. At the same time, it is a fact that those aspects were gone into by the learned Single Judge solely to decide the preliminary issue, at the instance of the appellant-petitioner himself. In view of the above discussions, this appeal is disposed of making it clear that the writ petition has to be considered leaving liberty to both sides to raise contentions untrammelled by the conclusions and findings in the impugned order and without attaching conclusiveness to the conclusions and findings in the interim order. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/MARY JOSEPH (JUDGE)** **spc/** **W.A.664/2018** 11 **W.A.664/2018** 12