SMT. ANURADHA ASHOK PALDHE Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner is mother of Sri Amar Ashok Paldhe who was recruited as Seaman-I in the Indian Navy. While he was serving on Eastern Naval Command Clearance Diving Scheme, on the fateful day i.e. 21-09-1993, as part of operational exercise called Helo Jumping at Kakinada coast, which requires the divers to dive from the Helicopter into the Sea and then swim across to the coast, the son of the petitioner being one of the four divers, jumped from the Helicopter into the Sea and supposed to reach the shore by swimming, did not reach the shore, but his dead body could be found in the Sea water after two days. Post-mortem report indicates that there were ante-mortem injuries over the dead body of the deceased, but opinion as to the cause of the death was reserved since report of diatom test was awaited. The Board of Enquiry examined into the incident and a finding was given stating that the cause of death was "due to accident". Feeling aggrieved by the action of the respondents in not furnishing the information relating to the exact cause of death of her son Amar Ashok Paldhe, the petitioner and her husband (since deceased) filed writ petition being WP No.316 of 1995 on the file of Bombay High Court seeking to issue appropriate directions to the respondents to disclose the exact cause of death of the deceased, to conduct diatom test on the preserved parts of the deceased, to collect water samples from the site of the accident, findings of the Board of Inquiry be disclosed, suitable monetary compensation be awarded and the relevant Regulation 209 of Navy Regulations Part II which restricts to furnish copies of Board of Inquiry proceedings be declared as unconstitutional. The respondents in that writ petition filed counter affidavit, among other grounds, pleaded that the Bombay High Court does not have jurisdiction to adjudication upon the lis as the incident happened in Kakinada, Andhra Pradesh, and that monetary compensation cannot be awarded under Writ jurisdiction. After filing counter affidavit, the petitioner has withdrawn the said writ petition on the ground of lack of jurisdiction to maintain the writ petition in that High Court.

(2.) As no information was forthcoming from the Naval authorities, as to the exact cause of death of the deceased and the diatom test report, given after a period of eight months by the Doctor who conducted autopsy on the dead body of the deceased, opining that the deceased died due to combined effect of shock and haemorrhage and due to multiple injuries and drowning, the bereaved parents of the deceased filed suit OS No.90 of 1997 seeking compensation for the death of their son while in employment of the Indian Navy. In the suit it was pleaded that the death of the deceased occurred on account of negligence and collusion on the part of the authorities and under mysterious circumstances. Whereas, it was contended by the authorities of the Navy that the deceased was put on regular exercise of diving and though he surfaced soon after jumping from the Helicopter, he did not appear thereafter. It was further stated that the death might have occurred due to failure of the deceased to release the weights fixed to the belt. Other grounds of limitation and jurisdiction were also pleaded by the authorities. The trial Court, considering the evidence adduced by the parties, decreed the suit holding the deceased died because of the negligence of the authorities in conducting the diving exercise. The respondents unsuccessfully assailed the judgment rendered in the suit in this Court in AS No.3504 of 2004 and, thereafter, matter attained finality, as no further appeal was filed. Both the trial Court in the suit and also this Court in first appeal have recorded a finding that death of Amar Ashok Phalde was in suspicious and mysterious circumstances. In the light of this finding, the petitioner, in this writ petition contends that it was the bounden duty of the Naval authorities to look into the matter afresh by constituting an independent Board of Enquiry to know the exact cause of death of her son and also to ensure to the members of the general public, who offer their valuable lives to serve in Indian Navy with a benevolent object to serve the Country, feel safe and confident as to the bona-fides of the Navy. The petitioner also seeks to cause investigation into Cr.No.72 of 1993 registered by the PS Port Police Station, Kakinada. Hence, this writ petition.

(3.) Counter and additional counter affidavits are filed by 3rd respondent-Flag Officer Commander-In-Chief, Eastern Naval Command, Visakhapatnam, inter alia, stating that Board of Inquiry (BOI) was convened to investigate into the death of deceased Sailor and the BOI concluded that the death of Amar Ashok Paldhe was "accidental" and took place while he was performing his duty. The allegation that the Naval authorities were illusive and avoiding to give any direct reasons as to the cause of death of Sailor is denied. That the findings of the Board of Inquiry have been filed into the Court and a copy thereof has also been given to the petitioner under instructions from the competent authority. That the BOI is only a fact finding body and not a statutory body with powers to punish and take disciplinary action unlike the powers of Court of Inquiry under Army and Air Force Acts. That the petitioner with an illintention to misuse the cannons of judicial equity has been in the habit of filing frivolous litigation. That there are no major directives rendered in the judgment of this Court in first appeal being AS No.3504 of 2004, except stating that the Sailor died under suspicious circumstances, nothing material remains for the Navy to implement in the said order. That the incident had occurred at open Sea off the coast to which there are no independent witnesses so as to reach a conclusion as to the actual cause of death of the Sailor. The injuries sustained by the Sailor are apparently "accidental" and sufficient in ordinary course of nature to result in death. There has been no anomaly observed by the Courts as to the finding of the BOI and therefore re-convening Board of Inquiry after more than two decades of the incident seems impracticable and it amounts to re-opening the Pandora box. That the BOI is only a fact finding body which arrives at a conclusion based on available records and it does not have the expertise to investigate into the matter of death and related issues since the same requires specialised training and knowledge. That the Police of PS Port Police Station, Kakinada, are solely responsible to investigate into the matter to reach a conclusion as to the actual cause of death since the incident had occurred within the local jurisdiction of Kakinada Port Police Station. Disputed questions of fact cannot be adjudicated by this Court in exercise of jurisdiction under Art. 226 of the Constitution. Issues raised in this writ petition have already been contested at length and majority of them have been adjudicated upon by this Court and the present writ petition is barred by res-judicata. That there are absolutely no merits in the writ petition and the same is liable to be dismissed.