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2003 DIGILAW 511 (GAU)

Md. Abdul Sattar v. Union of India (UOI)

2003-11-14

TINLIANTHANG VAIPHEI

body2003
JUDGMENT T. Vaiphei, J. 1. By this application under Article 226 of the Constitution of India the petitioner assails the order dated 11.11.2000 issued by the respondent No. 5 dismissing him from service and the proceeding of the connected Summary Security Force Court at Headquarter 192 Bn. Border Security Force, Radhabari, P.O. Bhuikidangapara, Dist.- Jalpaiguri, West Bengal. 2. The facts of the case may be briefly stated as follows :- The petitioner joined the Border Security Force (for short 'BSF') as Cook in the year 1990 and while serving as Cook No. 90-192128 under 192 Bn. BSF he was suddenly served with Charge Sheet dated 9.11.2000 Under Section 26of the BSF Act, 1968. The charge against him was framed as follows :- "INTOXICATION In that he at Bn. HQ. Radhabari on 07.11.2000 at abort 2100 hrs. was found in a state of intoxication." By the order at Annexure-2, dated 9.11.2000, Sri R. Sminz, DC was detailed to conduct record of evidence against the petitioner who was in 'A' Coy. After making recording of evidence the report was submitted which is at Annexure-3. Thereupon the petitioner was placed under open arrest on 10.11.2000 vide order dated 10.11.2000 for trial by Summary Security Force Court (hereinafter called SSFC for short) and was ordered not to leave force campus. Thereafter by the order dated 10.11.2000 it was directed to hold a SSFC on 11.11.2000 for trying the petitioner on the aforesaid charge. By the order dated 10.11.2000, the petitioner was asked to intimate the name of a person whose service he may be able to procure, called the friend of the accused, including legal practitioner for the SSFC scheduled to be held on 11.11.2000 at 0'900 hours. The petitioner alleges that he was served with such order only is the night of 10.11.2000 and as such he was not given reasonable time to choose friends of the accused, thereby violating principles of natural justice. The petitioner also added that he was not allowed to take consent of his Lawyer before furnishing the name of legal practitioner in terms of the said order due to want of time. His oral request to consult with a legal practitioner was not allowed since he was not allowed to leave force campus. The petitioner was tried by the SSFC on 11.11.2000 and by the impugned order, he was awarded sentence of dismissal from service. His oral request to consult with a legal practitioner was not allowed since he was not allowed to leave force campus. The petitioner was tried by the SSFC on 11.11.2000 and by the impugned order, he was awarded sentence of dismissal from service. The sentence was promulgated with effect from 11.11.2000. It is contended by the petitioner that the findings and sentence of the SSFC are not only wrong, illegal but the same is violative of Article 14 of the Constitution of India. The petitioner preferred an appeal before the respondent No. 2 on 17.01.2001 challenging the order of dismissal, but the respondent did not dispose of his appeal. Consequently, the petitioner moved this Court by way of writ petition. By the order dated 6.4.2001 passed by this Court in W.P.(C) No. 164/2001, the appellate authority was directed to dispose of the appeal in accordance with law within a period of six weeks and to communicate the order of disposal of the appeal by registered post without delay. The petitioner was however, given liberty by this Court to approach this court again if aggrieved by the decision of the appellate authority. By the order dated 14.5.2001, the DIG, Principal Staff Officer, Ftr. HQ BSF, North Bengal the petitioner was informed that after carefully considering his petition in the light of relevant legal provisions and SSFC trial proceeding he had been found to be habitual offender and was punished on four occasions and that his petition had been rejected by the Inspector General, BSF. 3. The respondent resisted that writ petition by filing a counter affidavit in which it was pointed out that the petitioner was serving under 192 Bn. BSF at Radhabari within the State of West Bengal and that the incident for which Court Martial proceeding was held took place within the Bn. Headquarter at Radhabari and the further that he was tried by SSFC in that Bn. which situates within the State of West Bengal. As such, this Court has no territorial jurisdiction to entertain this writ petition. 4. I have heard Mr. R. Dutta, learned Counsel for the petitioner and also Mr. B. Choudhury learned senior Central Government Standing Counsel for the respondents at length. 5. which situates within the State of West Bengal. As such, this Court has no territorial jurisdiction to entertain this writ petition. 4. I have heard Mr. R. Dutta, learned Counsel for the petitioner and also Mr. B. Choudhury learned senior Central Government Standing Counsel for the respondents at length. 5. On examination of the pleadings of both the parties and the submissions of the learned Counsel appearing on both sides, I am of the view that the short question of law involves in this writ petition is whether this court has territorial jurisdiction to entertain this writ petition. It is an admitted position that the incident for which the SSFC proceeding was held took place at the Bn. Headquarter of BSF at Radhabari on 11.11.2000; the SSFC was held at the said Bn. Headquarter which false within the State of West Bengal. The appeal was also disposed of by the Inspector General, BSF at Kadamtala, Darjeeling, West Bengla. It appears that the petitioner filed this writ petition in the Gauhati High Court as he is a resident of Srimantapur, Rabindranagar, Sonamura, Distt.- West Tripura. 6. In order to appreciate the points in controversy it may be useful to refer and reproduce hereunder the relevant provision of Article 226 of the Constitution of India :- "226. (1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, (for the enforcement of any of the rights conferred by Part III and for any other purpose). (2) The power conferred by Clause (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." 7. It may be noted that Clause (2) of Article 226 of the Constitution was inserted by Clause (1A), by the Constitution (15th Amendment) Act, 1963, which has been renumbered as Clause (2) by the Constitution (42nd Amendment) Act, 1976. Prior to the insertion of Clause (1A), it was held that the writs do not run beyond the territories in relation to which each High Court exercises jurisdiction. Hence, a High Court could not issue a writ or order under Article 226 unless the person, authority or Government against whom the writ is sought was (physically) resident or located within the territorial jurisdiction of the High Court. By this Clause (2) if the cause of action arises, wholly or in part, within the territorial jurisdiction of that High Court it may issue a writ against a person or authority resident within the jurisdiction of another High Court. 8. In Vavindhandar N. Majithia v. State of Maharashtra, the Apex Court has held that "cause of action" is a phenomenon well understood in legal parlance and that the collocation of the words "cause of action, wholly or in part, arises" seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also seals with the jurisdiction aspect of the courts. It is further held that the expression "cause of action" means "the bundle of facts which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court". Even in the context of Article 226(2) of the Constitution the Supreme Court adopted the same interpretation to the expression "cause of action wholly or in part, arises". In Musaliar v. Potti, the Apex Court also held that where, though the Authority is located outside the jurisdiction of the High Court, the impugned illegal act or order is done or made by an agent or subordinate officer of that Authority who is resident within the jurisdiction of the High Court, the Court can proceed against such agent or officer who cannot be heard to say that he is simply obeying the unlawful directions of his superior Authority which is located outside the jurisdiction of the High Court. Under Clause (1) of Article 226 of the Constitution, this Court has the power to issue writ against any person or authority who resides or is located within the jurisdiction of this court. 9. In the instant case, it is obvious that the respondents do not reside nor are their offices located within the jurisdiction of this Court. Therefore, the question arises whether the cause of action wholly or in part arises within the territorial jurisdiction of this Court. As observed early, the ground stated by the petitioner for filing this writ petition in this court is that he is a resident of Tripura and as such this court has the jurisdiction to entertain this writ petition. 10. I have carefully considered the charge framed by the SSFC which are annexed to the writ petition as Annexure-1. It is not disputed that the petitioner was serving as a Cook in the 192 Bn. BSF and that he was also found in a state of intoxication as per the charge framed against him at the Bn. Headquarter at Radhabari and that Radhabari is situated within the State of West Bengal. It is also an admitted position that the proceeding of the SSFC was held at Radhabari and that the impugned order as well as the appellate order were also issued within the State of West Bengal. On this admitted position it is obvious that the bundle of facts which it would be necessary for the plaintiff to prove for his entitlement to the relief claimed by him in this writ petition are referable to the incident and the proceeding which took place only at Radhabari within the State of West Bengal. The mere fact that the petitioner is a resident of Sonamura, West Tripura cannot confer jurisdiction on this Court. What is essential to be shown by the petitioner is that the cause of action wholly or in partly arose within the territorial jurisdiction of this Court even though the respondents or their offices located at Radhabari within the territory of West Bengal State. 11. On the facts and circumstances of this case there can be no doubt that the cause of action of this writ petition wholly or in part arose within the State of West Bengal and no part of the cause of action can be said to arise within the State of Tripura. 11. On the facts and circumstances of this case there can be no doubt that the cause of action of this writ petition wholly or in part arose within the State of West Bengal and no part of the cause of action can be said to arise within the State of Tripura. Accordingly, I hold that this writ petition is not maintainable for want of territorial jurisdiction. In the view that I have taken, I do not find it necessary to enter into the merits of this case or the other contentions advanced by the learned counsel for the petitioner. 12. In the result, this writ petition is not maintainable and is hereby dismissed. Liberty is however, given to the petitioner to approach the competent court of jurisdiction to redress his grievance. No order as to costs. Petition dismissed