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1997 DIGILAW 511 (PAT)

Brig. Ashok Malhotra v. Union of India

1997-07-23

J.N.DUBEY, R.M.PRASAD

body1997
Judgment Radha Mohan Prasad, J. This appeal is directed against the order dated 17.10.1996, passed by the learned Single Judge in C.W.J.C. no. 11185 of 1996 recalling the order dated 9.4.1996 and dismissing the writ petition for want of jurisdiction. 2. In the writ application the grievence of the appellant was as against his super-session in the rank of Major General after rejection of his statutory complaint by the Central Government. The learned Single Judge, vide order dated 9.4.1996 found the grievance of the appellant to be legitimate, as there was nothing on record to indicate that the Central Government had considered his grievence as regards the A.C.R. for the period 1.9.91 to 20.3.92 and delayed A.C.R. for the period 21.3.92 to 15.7.92 and directed the Central Government in the Ministry of Defence to consider the statutory complaint as regards the relief claimed in its paragraph no. 13 (a) and communicate the decision in accordance with rules to the appellant within four weeks from the date of receipt of a copy of the said orders. The Central Government communicated its decision vide order dated 10.5.1996 (Annexure-13 to the writ petition) rejecting the petitioner appellant's statutory complaint. The validity of the said order was also challenged by filing an amendment petition, which was allowed vide order dated 21.5.96. However finally the writ was dismissed by the impugned order as not maintainable for want of jurisdiction. 3. This appeal was heard for admission on several dates and vide order dated 26.2.97 was admitted and fixed for its listing for hearing on 26th March, 1997 as first case subject to part-heard. On 9.4.97 this matter was heard and on the request of the learned Counsel for the respondents this Court directed for its listing for further hearing on 21st April, 1997. Meanwhile it was directed that the case of the appellant for promotion on the post of Maj. General will be considered by no. 1 Selection Board in its next meeting scheduled on 14th to 20th April, 1977 ignoring the DVBan and contemplated censure pursuant to impugned notice to show cause and the A.C.R. for 1988-89 and Receiving Officer Assessment ICR covering the period 1.9.91 to 20.3.92, which are under consideration in this case. This Court further directed that the retirement, if any, of the appellant shall be subject to result of this appeal. 4. This Court further directed that the retirement, if any, of the appellant shall be subject to result of this appeal. 4. In order to appreciate the question considered by the learned Single Judge in the impugned order, I consider it pertinent to mention here the relevant facts. In the writ petition the prayer of the appellant was to quash the order dated 30.1.95 (Annexure-5), which is annexure-1 to this L.P.A., whereby the appellant has been informed that his acting promotion to the rank of Maj. General was considered by no. 1 Selection Board held on 21-22nd October. 1994 as a fresh case and he has not been selected for promotion as also the order dated 28.9.95 (Annexure-10) a true copy whereof has been annexed as annexure-2 to this appeal and the order dated 11.5.96 (Annexure-13) whereby his statutory complaint has been rejected. 5. It is not disputed that the appellant has been posted as Commander of Bihar and Orissa Sub-Area at Danapur Cantt since 19th May, 1994 and that the aforementioned orders impugned in the writ petition were communicated to him during his posting at Danapur. 6. It appears that learned Counsel for the respondents raised a preliminary objection regarding jurisdiction of this Court to hear the writ petition and submitted that mere communication of the orders impugned in the writ case cannot give jurisdiction to this Court, inasmuch as, according to the learned Counsel everything was done at Delhi. The impugned orders were issued at New Delhi and became effective the moment they were issued. The Selection Board was also convened at New Delhi, which is beyond the territorial jurisdiction of this Court at Patna. The learned Counsel also contended that the impugned annual confidential reports were recorded at Lucknow and all the officers who participated in the recording of the same are beyond the territorial jurisdiction of this court. Thus, according to him, no cause of action had accrued at Patna either whole or in part and as such the writ petition is not maintainable in this Court at Patna. In support of this several decisions were relied upon which are mentioned in the impugned order of the learned Single Judge. 7. Thus, according to him, no cause of action had accrued at Patna either whole or in part and as such the writ petition is not maintainable in this Court at Patna. In support of this several decisions were relied upon which are mentioned in the impugned order of the learned Single Judge. 7. On the other hand, learned Counsel for the appellant submitted that part of cause of action arose within the territorial jurisdiction of this Court at Danapur, inasmuch as, the orders contained in annexures- 5 and 10 were served upon the appellant at Danapur Cantt while he was posted there and the effect of super-session and rejection of statutory complaints was felt at Danapur Cantt. Thus, according to him the writ petition was maintainable in this Court at Patna. It was also submitted that the orders impugned in the writ petition became effective on being served upon the appellant as it was incumbent upon the respondents to communicate their decision regarding promotion or super-session and rejection of statutory complaints to the appellant. He also cited verious decisions which are referred to in the impugned order. 8. The learned Single Judge, on consideration of the entire materials held as follows: “..... The admitted position is that the Selection Board was convened at New Delhi and the recommendation of the Selection Board not to promote the petitioner was accepted by the Central Government at New Delhi. The super-session of the petitioner, therefore, becomes complete the moment the decision was taken and when the orders in that behalf were communicated. Likewise the statutory complaint was rejected at New Delhi by the Central Government and the rejection became effective the moment the order was issued The service of the impugned orders gave a right of action to enforce the cause of action which had accrued at New Delhi and the cause of action either wholly or in part did not arise within the territorial jurisdiction of this Court and therefore the writ petition is not maintainable and the order dated 9.4.1996 is therefore recalled....” 9. Mr. Mr. Prasad appearing for the appellant submitted that even from the orders contained in annexure-2 it would be evident that the same was sent to the Chief of the Army Staff in quadruplicate for communication to the Officer (appellant) through the Staff Channel with the necessary administrative instructions and for further action in accordance with the existing procedure. Thus, unless the order was communicated to the appellant it had not become effective. According to him, the communication of the order means its receipt by the person concerned only whereafter it becomes effective. I am unable to accept this broad proposition as submitted by Mr. Prasad. The Supreme Court in the case of State of Punjab vs. Khemi Ram, reported in A.I.R. 1970 S.C. 214 explained the earlier decision in the case of State of Punjab vs. Amar Singh, reported in A.I.R. 1966 S.C. 1313, relevant paragraph of which has been quoted in the impugned judgment by the learned Single Judge. While considering the question as to whether the order of super-session admittedly made before the date of respondent's retirement as required by 3.26(d) of Punjab Civil Service (Punishment and Appeals) Rule, 1952 did not take effect by reason only that it was received by the respondent after the date of retirement and whether he must, therefore be held to have retired before that rendering the enquiry and ultimate the dismissal invalid, held that the order of super-session takes effect from the date of communication and not from date of actual receipt. The ordinary meaning of the word 'communicate' is to import, confer or transmit information. The word 'communicate' cannot be interpreted to mean that the order would become effective only by its receipt by the concerned servant unless the provision in question expressly so provides. Actual knowledge by him of an order where it is one of dismissal, may, perhaps, become necessary because of certain consequences. But such consequences would not occur in the case of an officer, who has proceeded on leave and against whom an order of suspension is passed, because in his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid. But such consequences would not occur in the case of an officer, who has proceeded on leave and against whom an order of suspension is passed, because in his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid. Thus, to say that in every case the communication of the order means its receipt by the person concerned only whereafter it becomes effective would be contrary to the law laid down by the Apex Court in the case of State of Punjab vs. Khemiram (supra). 10. However, in the present case it was not the case of the respondent that there was no requirement of the communication of the order impugned in the writ case. In fact, from annexure-2 itself it is evident that the order passed against the appellant was to be communicated to him through staff channel with necessary administrative instructions and for further action in accordance with the existing procedure. The Supreme Court in the aforementioned case held that actual knowledge by him of an order, where it is of dismissal, may, perhaps, become necessary because of certain consequences, which was not available in the case of an order of suspension, because in such a case there is no question of his doing any act or passing any order and such act or order being challenged as invalid. The appellant being aggrieved was/is entitled to challenge the validity of the orders impugned in the writ case, which he should have done only after they came to his knowledge. The said occasion arose only on their communication while he was posted at Danapur. In such circumstances, in my opinion, the learned Single Judge is not correct in holding that the super-session of the appellant became complete the moment decision was taken and the orders in that behalf were issued and that they gave a right of action to enforce the cause of action which had accrued at New Delhi and thereby committed, error in holding that the cause of action either wholly or in part did not arise within the territorial jurisdiction of this Court. 11. 11. I do not find any substance in the submission of the learned Counsel for the respondents that since the Selection Board was convened at New Delhi and the impugned annual confidential report was recorded at Lucknow and all the officers, who participated in the recording of the same are beyond the territorial jurisdiction of this Court, the writ petition is not maintainable in this Court at Patna. Clause (2) of Article 226, which has been inserted by the Constitution (15th Amendment) Act, 1963 and has been renumbered by the Constitution 42nd Amendment Act, 1976 provides that the power conferred by clause (1) to issue direction, orders or writs to any government authority, or person can 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 are not within those territories. Thus, merely because the Selection Board was convened at New Delhi and that the annual confidential reports were recorded at Lucknow and all the officers, who participated in recording of the same are beyond the territorial jurisdiction of the Court, cannot preclude this Court from exrcising jurisdiction wider clause (1) of Article 226 of the Constitution in case the cause of action, wholly or in part, arise for the exercise of such power within its jurisdiction. 12. The expression 'Cause of action' means that bundle of facts which the petitioner must prove if traversed to entitle him to a judgment in his favour by the Court. Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to correctness or otherwise of the said fact. In case of O.N.G.C. vs. Utpal, reported in 1994 (4) S.C.C. 411 the apex Court held that the question of territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial. In case of O.N.G.C. vs. Utpal, reported in 1994 (4) S.C.C. 411 the apex Court held that the question of territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial. If however, on the averments in the petition, as they are, no part of cause of action arose within the jurisdiction of a High Court, that High Court cannot assume territorial jurisdiction on the ground of residence of the petitioner or the like. 13. Similarly, in the case of Deoraj Vs. Union of India, reported in 1966 H.P.13 it was held that if a Central Government employee serving in Himachal Pradesh is removed from the service the Judicial Commissioner of Himachal Pradesh would have jurisdiction to entertain a petition under Article 226 besides the Punjab High Court. Similarly, an assessee in the Uttar Pradesh has been held to be entitled to a suit in the Allahabad High Court in a proceeding under Article 226 against any taxing authority outside State by whose order the petitioner may have been affected. 14. I have already pointed out earlier that as per the impugned order contained in annexure-2 itself the same was to be communicated to the appellant through staff counsel with necessary administrative instructions and for further action in accordance with the existing procedure. Thus, it cannot be said that the super-session of the appellant became complete the moment the decision was taken and the orders in that behalf were issued. The reliance placed by the learned Single Judge on' the decision of the apex Court is misplaced. The decision of the apex Court referred to in the impugned order is of no avail to the respondents in the facts and circumstances of the present case, particularly in view of the fact that it is not one of those cases where there was no question of doing any further act by the respondent authorities and/or challenge being made to the same by the appellant. 15. Moreover, the admitted fact of this case is that the impugned orders were communicated to the appellant while he had been working at Danapur on his posting as Commander of Bihar and Orissa Sub-Area, Danapur Cantt. By the said impugned orders the appellant has been superseded and thus, the super-session of the appellant in fact, took place during his posting at Danapur. By the said impugned orders the appellant has been superseded and thus, the super-session of the appellant in fact, took place during his posting at Danapur. As such, in my opinion, the cause of action for the appellant to agitate against his super-session arose at Danapur, which falls within the jurisdiction of this Court. Accordingly, I am of the view that the cause of action for the writ petition arose with in the jurisdiction of this Court and this Court under Article 226 has jurisdiction to issue an appropriate writ against Union of India and others respondent authorities notwithstanding the fact that its seat was not located in the territory in relation to which some actions were taken against the appellant. The preliminary objection raised by the respondents that this Court has no jurisdiction to entertain this writ petition for issuing writ against the Union of India as it is not located in the territory in relation to which this Court exercises jurisdiction is over-ruled. 16. In the result, the appeal is allowed and the impugned order passed by the learned Single Judge is set aside. The matter is remitted back to the learned Single Judge for hearing of the writ petition on merit and for its disposal expeditiously as the appellant is to superannuate on 31st July, 1997. The office in directed to take action accordingly forthwith. 17. In the facts and circumstances of the case, there shall be no order as to costs.