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1989 DIGILAW 419 (PAT)

Abhimanyu Upadhyaya v. Union of India

1989-11-28

S.B.SANYAL

body1989
JUDGMENT S. B. Sanyal, J. - This writ application is for quashing the order dated 5.3.1974 (Annexure 1), by which the petitioner's dismissal from service was remitted to that of discharge by the Ministry of Defence, Government of India, New Delhi, in exercise of the powers conferred under section 179 of the Army Act. 2. The petitioner joined the Indian Army on 27.4.1963 as a non-commissioned Officer under the Army Services Corps as Havildar Clerk (Store). On 26.2.1973, the petitioner was asked to explain as to why disciplinary action be not taken against him for dereliction of duty (vide Annexure 2). On rendering of his explanation, the charges against the petitioner were dropped. Thereafter the petitioner was again charge-sheeted on 2.5.1973 for dishonestly appropriating Government property under section 52 F of the Army Act and for being tried by the Court Martial. The petitioner objected to the appointment of one Mr. Lobo as the Judge-Advocate, but without consideration of his objection, the Court Martial proceedings were held and the petitioner was found guilty under section 52 F of the Army Act and awarded three punishments, (i) imprisonment for ninety days, (ii) reduction in rank, and (iii) dismissal from service. As against that, the petitioner preferred an appeal en 15.5.1973 before GOC-in-C, Eastern Command, Calcutta, under Section 164 of the Army Act (vide Annexure 6) from Jail. The matter was considered by the Defence Ministry, Government of India, and the petitioner was communicated that the order of dismissal from service was remitted to that of discharge by order dated 5.3.1974 (vide Annexure I), which is the bone of contention in this writ application. The petitioner filed a representation before the President of India which, it is said, is still pending. The petitioner thereafter filed Title Suit No. 54 of 1979 in the Court of the Munsif, Buxar, for a declaration that his dismissal and discharge from service was bad in law. An objection was taken by the respondents as to the territorial jurisdiction of the Court, and on 22.11.1979, the trial court held the suit not maintainable and for return of the plaint, as against which an appeal was preferred by the petitioner and the appeal was allowed and a Civil Revision (Civil Revision No. 1897 of 1980) filed by the respondents was dismissed, The suit ultimately was dismissed. The petitioner filed an appeal in the Court of the Second Additional Subordinate Judge, Buxar, but the appeal was dismissed holding that the suit was not maintainable in the Civil Court. The petitioner's Second Appeal No. 439 of 1985 to this Court as also Special Leave Petition (Civil) No. 1263 of 1986 before the Supreme Court of India were summarily dismissed. The order of dismissal by this Court is dated 26.9.1986 and that by the Supreme Court is dated 6.4.1987. Thereafter the petitioner filed the instant writ petition before this Court on 15.9.1987. 3. Learned counsel for the petitioner submitted that the impugned order dated 5.3.1974 passed by the Defence Ministry, Government of India (Annexure 1) is in breach of the protection envisaged under section 130 of the Army Act as well as violative of the principles of natural justice. According to the learned counsel, Major Lobo framed the charge against the petitioner on 2nd of May, 1973 (Annexure 5). The petitioner objected to the constitution of the Court Martial and prayed for transfer of the case to some other authority by filing an objection on 3.5.1973 (Annexure 4), but without disposing of the said objection, Mr. Lobo constituting the Court as President of the Summary Court Martial, tried the case and convicted the petitioner under section 52 F of the Army Act on 4th May, 1973. It is said that Mr. Lobo acted as a Judge in his own cause, which is a procedure unknown in law and can never be held to be a fair procedure. As such, Annexure I should be quashed. In support of his submission, learned counsel strongly relied upon the observation of the Supreme Court in the case of Capt. Virendra Kumar Vs. Union of India. (A.I.R. 1981 Supreme Court 947) to the following effect: "The consequence is that the order of termination of service is invalid for failure to adhere to basic procedure. Even the top brass must act according to law as lawlessness in the Defence Force is a grave risk, four-star general or foot infantry Jawan." Learned counsel further contended that the provision of section 130 of the Army Act read with Rule 44 of the Army Rules, 1954, is mandatory because the officer objected to cannot participate in the decision disposing of the objection. Further, whenever an objection is taken, it has to be recorded in order to ensure that anyone objected to does, not participate in disposing of the objection. This provision is mandatory requirement, and in support of this proposition, reference has been made to the case of Lt.col.Prithi Pal Singh Bedi Vs. Union of India (A.I.R. 1982 Supreme Court 1413). As far as the question of jurisdiction to try the case by the civil court is concerned, learned counsel for the petitioner submitted that this Court having decided the question of jurisdiction in Civil Revision No. 1897 of 1980 disposed of on 10th of September, 1981, the court of appeal erred in law to hold the suit to be not maintainable. Mr. Katariar appearing on behalf of the respondents submitted that this Court has no territorial jurisdiction to entertain this writ petition for the reason that neither any part of the cause of action arose in the State of Bihar and the appellate order sought to be quashed has also been rendered by the Army Head-quarters at New Delhi. Further, none of the respondents reside in the State of Bihar, as would be evident from the description of the respondents as against whom the relief has been sought, namely, the Ministry of Defence, Government of India, New Delhi, and the Officer In-charge, Army Supply Core Central, South Bangalore, Karnataka. The other point urged by the learned counsel is that the impugned order having been passed sometime on 3.5.1973, and the appellate order (Annexure I) having been rendered on 5.3.1974, no relief can be given on the basis of the writ petition filed after about thirteen years on 15.9.1987, as the claim made in this writ petition has become stale. Learned counsel produced the Army records, from where it appears that the original records of the case have been destroyed on 25.11.1978, this appears from a communication of the Record Officer of the Bihar Regimental Centre dated 20.11.1980. He has further contended that in Civil Revision No. 1897 of 1980 dated 10th September, 1981, this Court did not decide the question of jurisdiction by observing "I do not consider it necessary to decide the correctness of the view of the lower appellate court at this stage. 4. He has further contended that in Civil Revision No. 1897 of 1980 dated 10th September, 1981, this Court did not decide the question of jurisdiction by observing "I do not consider it necessary to decide the correctness of the view of the lower appellate court at this stage. 4. For maintaining a writ petition in this court, the High Court is conferred with the jurisdiction to issue writs, as envisaged under Article 226 (1) of the Constitution of India, provided the required conditions under Article 226 (2) are fulfilled, which reads as follows: "The power conferred by Cl. (1) to issue directions, orders or writs to any Government, authority, or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories." It would be evident from the said provision that the High Court will have the jurisdiction if the cause of action, wholly or in part, arises within the territorial jurisdiction of the Court or if the authority as against whom the relief is sought for resides within the territory of the said High Court. Somewhat, similar is the provision under section 20 of the Code of Civil Procedure indicating the place where a person can be sued in a civil court. 5. In the instant case, no cause of action, has arisen within the state of Bihar, inasmuch as the petitioner was deployed outside the State of Bihar and all orders were rendered against him cither in Bangalore or at Delhi by the Army Headquarters, whose seat is at Delhi. Further, none of the respondents, who have been impleaded as party respondents, reside within the State of Bihar nor there is any establishment of the Ministry of Defence, Government of India, in the State of Bihar. Merely because Armies have been deployed with their local offices within the State of Bihar, namely, Ramgarh, and Danapur cantonment, will not serve the requirements of Article 226(2) of the Constitution of India. The order sought to be quashed (Annexure 1) has been passed by the Secretary, Ministry of Defence, Government of India, and the original order was passed by the Army Supply Core Central, South Bangalore. The order sought to be quashed (Annexure 1) has been passed by the Secretary, Ministry of Defence, Government of India, and the original order was passed by the Army Supply Core Central, South Bangalore. The submission of the learned counsel for the petitioner that this question is no more res integra because of the earlier decision of this Court in Civil Revision No. 1897 of 1980 dated 10th September, 1981, is not correct. The said Civil Revision arose out of the order dated 29th August, 1980, passed in Miscellaneous Appeal No.2/8 of 1980/80 of the Second Additional Subordinate Judge, Buxar, who held as follows:- "In view of my above discussions, I am of the opinion that the learned lower court has jurisdiction to try the instant suit and I hold accordingly". In Civil Revision No.1897 of 1980 brought before this court, L.M. Sharma (as he then was) observed as follows: "In these circumstances, I do not consider it necessary to decide the correctness of the view of the lower appellate court at this stage." It will, therefore, be noticed that earlier the question of jurisdiction was left undecided by the High Court. Further, the lower appellate court dismissed Title Appeal No.4 of 1984 / 10 of 1984 preferred by the petitioner on the question of jurisdiction as it was left open by the High Court. The Second Appeal brought before this Court had been dismissed in limine by L.M. Sharma (as he then was), on 26.9.1986. The Special Leave petition (Civil) No. 1263 of 1986 was dismissed in limine by the Supreme Court on 6.4.1987. The view taken by the lower appellate court on the question of jurisdiction thus was affirmed and/or approved by all superior Courts. I have, therefore, no hesitation to hold that the writ petition is not maintainable in this Court and the petitioner cannot obtain any remedy from the Courts in the State of Bihar. 6. I further find substance in the argument of the learned counsel for the respondents that the claim of the petitioner has become stale. The petitioner moved this Court after a lapse of thirteen or fourteen years from the appellate order of the Union of and is contained in Annexure 1. 6. I further find substance in the argument of the learned counsel for the respondents that the claim of the petitioner has become stale. The petitioner moved this Court after a lapse of thirteen or fourteen years from the appellate order of the Union of and is contained in Annexure 1. He cannot be heard to say that he was pursuing wrong remedies bona fide and diligently and, therefore, the delay should be condoned, since the writ petition has been filed within a few months of the dismissal of the Special Leave petition by the Supreme Court on 6.4.1987. For moving a writ petition before the High Court, the law of limitation does not apply. It is a matter of prudence for the exercise of discretion in appropriate cases, even by ignoring the delay, which depends on the facts and circumstances of each case. In service jurisprudence, however, the delay in seeking relief under the writ jurisdiction stands on much stricter footing as the grant of relief may give rise to various administrative complications and it may result in confusion and uncertainty by upsetting the situation existing for a number years. In the present case, after rendering of the impugned order (Annexure 1), the parties must have altered their positions and conditions might have substantially changed and persons junior to the petitioner must have been promoted to much higher post. If the petitioner is given relief of reinstatement, the question of his fitment will arise and he must be placed above his juniors, without acquiring any Army experience for the higher responsibilities. Besides, the persons who are likely to be affected by the order of re-instatement of the petitioner are also not parties in this writ petition. As this aspect or the matter is not governed by the Indian Limitation Act, the principles of pursuing wrong forum bona fide and therefore, the delay be condoned is not acceptable. In view of the inordinate delay, to be precise, of about sixteen years, I do not feel inclined to exercise my discretion in invoking the writ jurisdiction and the relief sought for by the petitioner cannot be entertained by this Court in its writ jurisdiction. 7. In view of the inordinate delay, to be precise, of about sixteen years, I do not feel inclined to exercise my discretion in invoking the writ jurisdiction and the relief sought for by the petitioner cannot be entertained by this Court in its writ jurisdiction. 7. So far as the merit of the case is concerned, I refrain from expressing any opinion because the learned counsel for the respondents is not in a position to produce any record as the same is destroyed under the Army Rules every five years. 8. In the result, this writ petition is dismissed, but there will be no order as to costs.