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2003 DIGILAW 608 (PAT)

Ram Chandra Singh v. Union Of India

2003-06-23

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. Petitioner was a constable in the Border Security Force. A Summary Security Force Court was held on the purported allegation that he had committed the offence of theft of 29 rounds of ammunition. The Summary Security Force Court, hereinafter referred to as the Court, held the petitioner guilty and sentenced him to suffer rigorous imprisonment for six months in a civil prison and to be dismissed from service. The petitioner was communicated the order by the Commandant on 20-2-2001. The Court was held at the Headquarter of the Border Security Force (for short Force) at Kupwara in the State of Jammu & Kashmir. The Deputy Inspector General of the Force in exercise of his power under Rule 161 of the B.S.F. Rules, 1969, remitted the sentence of rigorous imprisonment for six months in civil prison but maintained the order of dismissal from service. Said order of the Deputy Inspector General of the Force was promulgated to the petitioner on 14th of May, 2001. It seems that against the aforesaid order, the petitioner preferred statutory petition and by order dated 22nd of January, 2002 (Annexure-16), petitioner was informed that his statutory petition has been rejected by the Director General of the Force. 2. Mr. Rakesh Kumar, appearing on behalf of the respondents raises a preliminary objection in regard to the maintainability of this writ petition before this Court. He points out that the Court was held at Kupwara in the State of Jammu & Kashmir, where the punishment was imposed and, in fact, same was promulgated to the petitioner there. In this connection, Shri Kumar has drawn my attention to the Promulgation Certificate dated 20th of February, 2001 in which the Commandant has stated that the finding and sentence of the Court were promulgated to the petitioner at Kupwara. Mr. Kumar further draws my attention to the next Promulgation Certificate dated 14th of May, 2001 showing that the order passed by the Deputy Inspector General of the Force remitting the sentence of rigorous imprisonment of six months in civil prison was also promulgated at Kupwara. Mr. Kumar submits that the sentence awarded to the petitioner having been promulgated at the place beyond the territorial jurisdiction of this Court, the writ petition filed by the petitioner is not maintainable. Mr. Kumar submits that the sentence awarded to the petitioner having been promulgated at the place beyond the territorial jurisdiction of this Court, the writ petition filed by the petitioner is not maintainable. In support of his submission, learned Counsel has placed reliance on a judgment of a Division Bench of this Court in the case of Nawal Kishore Singh V/s. Union of India and Ors., reported in 1983 BBCJ 23 and my attention has been drawn to the following passage from para 11 of the judgment which reads as follows: "11. Examining the facts of the present case however, it is clear the consequence of the order of dismissal of the petitioner and his removal from the service took place at Naya Nangal itself and the petitioner when returned to his village home, came as dismissed employee, having no claim whatsoever in the service except a right to prefer an appeal. Simply, therefore, the filing of an appeal from his village home where the petitioner might have chosen to proceed after his dismissal in our opinion did not or should not furnish any part of the cause of action to clothe the High Court of that place the territorial jurisdiction to exercise any of the powers under Clause (1) of Art. 226. Such a view in our considered opinion appears quite reasonable and proper. As otherwise it would expose the authority or a Government to the vagaries of a disgruntled employee to compel them to defend the action that he may choose to bring at a place far away from its seat or place of residence. Such an interpretation in our opinion instead of serving the intention and spirit of Clause (2) of Art. 226 may lead to great injustice and hardship to them. Be that as it may we feel our inability to accept the contention that the act of merely filing an appeal against an adverse order, which has been already carried out, should be deemed to be a part of the cause of action for choosing the forum for fifing an application under Art. 226 of the Constitution of India." Mr. Bishnukant Dubey, however, appearing on behalf of the petitioner submits that the punishment imposed by the Court was served on him at a place within the territorial jurisdiction of this Court and as such, this Court will have jurisdiction to entertain the writ application. Bishnukant Dubey, however, appearing on behalf of the petitioner submits that the punishment imposed by the Court was served on him at a place within the territorial jurisdiction of this Court and as such, this Court will have jurisdiction to entertain the writ application. He further points out that against the order of the Court, the petitioner preferred statutory petitioner from the place in the State of Bihar and the statutory petition has been rejected and same was communicated to the petitioner, also within this State and in that view of the matter, this Court has territorial jurisdiction to entertain the writ application. In support of his submission, he has placed reliance on a Division Bench decision of this Court in the case of Rameshwar Prasad V/s. The Union of India and Ors., reported in 2003 (2) PLJR 151 , and my attention has been drawn to Paragraph Nos. 6 and 7 of the judgment which read as follows: "(6) Admittedly the appellant is a resident of the State of Bihar and he has been dismissed from service on the ground that he was on unauthorised leave. The assertion of the appellant writ petitioner is that the order of dismissal and the appellate order might have been passed at Sri Nagar and New Delhi but those orders were made known to him through communications at his village situate in the District of Ara, Bihar and in support of the said facts he has relied upon the two Annexures-9 & 10 respectively. Learned single Judge relied upon the averment made in paragraph 5 of the counter-affidavit wherein it has been stated that adverse orders have been passed, issued and communicated to the petitioner at Sri Nagar in the State of Jammu & Kashmir and as such this Court has no territorial jurisdiction so as to decide the controversy involved in this case." "(7) The law is well settled that so far the order of dismissal is concerned that becomes effective only when it is communicated or made known to the person concerned, that is no averment in the written statement that the order of dismissal was communicated or served personally to the appellant at Sri Nagar or it was made known to him at that place. The fact is that it was sent from that place through his village home. The fact is that it was sent from that place through his village home. It does not mean that the order of dismissal was brought to his knowledge at his place of posting at Sri Nagar. As the order of dismissal was sent to the appellant writ petitioner at his village home and received by him there, the order became known to him at his village home this Court has the territorial jurisdiction to hear and decide the matter. Accordingly, the impugned order passed by the learned single Judge is set aside and the matter is remanded for fresh consideration in accordance with taw." 3. Having appreciated the rival submissions, I do not find any substance in submission of Shri Dubey. The petitioners very assumption that the order of punishment became effective when it was served on him within the place within the territorial jurisdiction of this Court is absolutely misconceived. As stated earlier, the Court passed the order of dismissal from service as also rigorous imprisonment for six months in civil prison. Said order was promulgated and in fact, the petitioner was taken into custody in Kupwara. Thus, the order became effective at Kupwara and mere sending the orders of the Court at a place within the State, will not give the petitioner a cause of action within this State so as to confer jurisdiction to this Court to entertain the writ application. Reference in this connection can be made to a Division Bench judgment of this Court in the case of Sushil Kumar Pandey V/s. Union of India and Ors., 2001 (4) PLJR 678 , wherein it has been held as follows: "In the present case, as stated above, the appellant has already knowledge of the order of dismissal at Battalik itself and as such the order of dismissal has already taken effect and subsequent notice sent to his mother does not from integral part of cause of action and as such no part of cause of action has arisen within the territorial jurisdiction of this Court. The case of Rameshwar Prasad (supra), on which Shri Dubey has placed reliance, is clearly distinguishable. The case of Rameshwar Prasad (supra), on which Shri Dubey has placed reliance, is clearly distinguishable. In the said case, the order of dismissal was served at a place within the jurisdiction of this Court and in the back ground of the said fact, this Court held that the order of dismissal became effective when it was communicated to the petitioner of the said case in the State of Bihar. In the present case, as stated earlier, the order of conviction and sentence was promulgated at Kupwara in the State of Jammu & Kashmir and in fact, the petitioner was taken into custody there and as such, the order became effective at Kupwara itself. 4. In my opinion, filing of statutory petition from a place within the State of Bihar and the decision on the said petition being communicated to him within this State, shall also not confer jurisdiction on this Court This point is not res integra and in fact subject matter of discussion in a large number of cases. In the case of Nand Kishore Singh (supra), this Court held that the act of merely filing an appeal against an adverse order would not be deemed to be a part of cause of action. Further in the case of Sanjay Kumar Yadav V/s. Union of India and Ors., (C.W.J.C. No. 1006 of 2002) disposed of on 12-9-2002, this Court had the occasion to consider this question and on a review of various authorities observed as follows: "Adverting to the present case, the discharge of the petitioner was complete on or about 15-5-2000 when the order was issued and served on him at Bangalore. The fact that he filed representation from Begusarai and received rejection thereof at Begusarai cannot be construed as part of cause of action, for it was open to him to make such representation from any place. The point at issue in my opinion is covered by the above said decisions of the Supreme Court as well as this Court. I have, therefore, no difficulty in holding that this writ petition is not maintainable before this Court on account of lack of territorial jurisdiction." 5. Appeal preferred against the aforesaid judgment has been dismissed by a Division Bench of this Court by order dated 16-1-2003 passed in L.P.A. No. 1276 of 2002 Sanjay Kumar Yadav V/s. Union of India and Ors.. Appeal preferred against the aforesaid judgment has been dismissed by a Division Bench of this Court by order dated 16-1-2003 passed in L.P.A. No. 1276 of 2002 Sanjay Kumar Yadav V/s. Union of India and Ors.. This point also came up for consideration before a Division Bench of this Court in the case of Gita Devi and Anr. V/s. The Deputy General Manager, Allahabad Bank and Ors., 2002 (4) PLJR 36 in which it has been held as follows: "In the above view of the matter, in the instant case, the fact that the petitioner sent application from Samastipur District and the respondent-Bank sent its reply there would not confer territorial jurisdiction on this Court. Sending application and receipt of reply thereto may be integral part of the cause of action but the place from where it is sent cannot be treated as the integral part, in view of the above said decisions of the Apex Court." 6. Hence, I sustain the preliminary objection raised by Shri Rakesh Kumar and dismiss this writ application on this ground alone. However, dismissal of this writ application shall not stand in the way of the petitioner in taking recourse to the remedy before a competent Court of law.