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2012 DIGILAW 309 (JK)

Zahoor Ahmad Baba v. Union of India & Ors.

2012-06-02

HASNAIN MASSODI

body2012
1. Petitioner appointed as Washer Man (enrolled follower) in 56 Bn BSF vide order dated 8.1.2004 was transferred on permanent posting to Frontier Headquarter BSF Jalander (Punjab).However, the petitioner absented himself from duty w.e.f 21.3.2005 and was dismissed from service vide order no. Estt/108/19/ZAB/BSF/2005/8919-9019dated 23.7.2005 w.e.f. 23.7.2005 A.N. The dismissal order was made by Commandant 108th Bn BSF Ajnala (Punjab) where the petitioner was permanently posted at the relevant time. 2. The record discloses that the petitioner though vide notice no. 03/Estt/05/108Bn BSF/7292 dated 20-6-2005 given an opportunity to show cause against his dismissal against his proposed dismissal from service, failed to submit his reply or show the cause. 3. The petitioner questions the order no. Estt/108/19/ZAB/BSF/2005/8919-9019dated 23.7.2005 through the medium of instant writ petition on the grounds set out in the petition. 4. The respondents in opposition to the writ petition have raised a preliminary objection as regards jurisdiction of this court to entertain and deal with the petition. The respondents case is that as the impugned order have been passed at Ajnal, Punjab, the jurisdiction to deal with the petition questioning the impugned order lies with the court at Punjab. It is insisted by the respondents that as the preliminary objection relates to territorial jurisdiction of this court to entertain the petition, the objection needs to be dealt with at the initial stage. The matter, in the said background is on agreement taken up in the first instance, to deal with the objection as regards jurisdiction. 5. Heard and considered. 6. In order to determine whether this court has jurisdiction to entertain and deal with the petition, we have to find out whether the cause of action or any part thereof has arisen within the territorial jurisdiction of this court. The cause of action, as observed by Supreme Court in Kusum Ingots and Alloys limited v. Union of India,(2002) 6 SCC 254 implies a right to sue. In the words of Supreme Court: The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily. The entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts. All necessary facts must form an integral part of the cause of action. 7. It is well settled that the court has jurisdiction to exercise its power under Article 226, Constitution of India, even if only a small fraction of cause of action accrues within the jurisdiction of the court. So viewed, the focus of controversy in the case on hand is to be on the cause of action having accrued to the petitioner within the territorial jurisdiction of this court to maintain the writ petition. The petitioner, as already stated, is aggrieved with the order passed by Commandant 108th Bn BSF Ajnal (Punjab), the cause of action to question the impugned order obviously has arisen within the jurisdiction of court at Punjab. The ground set up and arguments advanced on behalf of the petitioner that as the dismissal order in question was served on or conveyed to the petitioner at Ganderbal, i.e within the territorial jurisdiction of this court, the writ petition is maintainable before this court, Whether service of the dismissal order on or its receipt by or communication to the petitioner would constitute a part of the cause of action, is the question that calls for answer. 8. We have to again go to the observations of the Apex Court in Kusum Ingots and Alloys Limited's case (supra) to find out whether 'communication of the order' is part of the cause of action. 8. We have to again go to the observations of the Apex Court in Kusum Ingots and Alloys Limited's case (supra) to find out whether 'communication of the order' is part of the cause of action. It needs to be reiterated that the communication of the order of dismissal would constitute part of the cause of action only if the petitioner to succeed in the petition is required to prove such communication or service of the order. The petitioner undoubtedly is not required to prove that the order of dismissal was communicated to him or even served on him to maintain the writ petition and successfully seek its quashment. The communication of the dismissal order, therefore, does not constitute even a smaller fraction of cause of action so as to enable the petitioner to invoke writ jurisdiction of this court. 9. The principle is well settled and finds expression in the following reported cases: Navinchandra N Majithai v. State of Maharashtra, AIR 2000 SC 2966 ; Kusum Ingots and Alloys Limited v. Union of India and another, (2004) 6 SCC 254 ; Lt. Col. Mahender Singh Yadav v. Union of India, ILR 2007 4 Kerela 73. Alchemist Limited v. State Bank of India, AIR 2007 SC 182; Atal Bihari v. Union of India and others, 2008 (1) JKJ 53 (HC); Sudesh Kumar Gagotra v. Union of India, 2009(2) JKJ 643 (HC); Tilak Raj v. Union of India and others,2011(2) JKJ 800(HC); 10. In the present case, the dismissal order impugned in the petition, has been passed at Ajnala (Punjab).The court having territorial jurisdiction over the place where dismissal order was made-Ajnala, Punjab, in the present case. Mere fact that the petitioner received copy of the impugned order at Ganderbal, within territorial jurisdiction of this court is not to confer jurisdiction on this court to entertain and deal with the petition. 11. For the reasons discussed, the objection raised by the respondents as regards maintainability of the writ petition on the ground of lack of territorial jurisdiction prevails. The writ petition accordingly dismissed as not maintainable.