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2014 DIGILAW 103 (MAN)

Kshetrimayum Raja Singh v. Union of India

2014-09-01

N.KOTISWAR SINGH

body2014
JUDGMENT N. Kotiswar Singh, J. 1. Heard Mr. K. Rabei, learned counsel for the petitioner as well as Mr. Amarjit Naorem, learned CGSC for the respondents. 2. The petitioner who is presently serving as an Assistant Sub Inspector under the Sashastra Seema Bal (SSB) has approached this Court by filing this writ petition praying for setting aside the Court of Inquiry being held at Frontier/HQs, SSB, Siliguri and summon dated 20.6.2014 issued to the petitioner and subsequent Memorandum dated 25.6.2014 as being contrary to the Office Memorandum dated 18.10.2013 which lays down the guidelines regarding handling of anonymous complaints in Ministries/Departments, issued by the Ministry of Personnel & Public Grievances & Pensions, Government of India. 3. According to the petitioner, while he was on leave at his native town at Moirang, Bishnupur, the Adjutant 52nd Bn. SSB, Yuksam at Yangtey he was served the Memoranda dated 21.5.2014 and 4.6.2014 directing him to report at 52nd Bn. SSB, Yuksam, Yangtey for duties on expiry of his casual leave on 11.5.2014 warning him that strict disciplinary action will be taken against him if not reported in time. The said Adjutant also issued another Memorandum dated 29.5.2014 directing the petitioner to report at 52nd Bn. HQ along with certain documents viz; (i) Passbook of Bank Account, (ii) Documents in support of his transactions and (iii) Documents pertaining to compulsory donation and to attend as witness before the Court of Inquiry to be held on 16.6.2014. The said Memorandum was received by the petitioner while he was staying at his native home town on leave. 4. On receipt of the said Memoranda, the petitioner through his counsel sent a legal notice to the respondents No. 3, 4 & 5 for revocation of summon dated 29.5.2014 and requesting to drop the Court of Inquiry proceeding as the Court of Inquiry was initiated on the basis of certain anonymous letter which was not permissible under the Office Memorandum dated 18.10.2013 issued by the Ministry of Personnel & Public Grievances & Pensions, Government of India according to which no action is required to be taken on an anonymous complaint, irrespective of the nature of allegations and such a complaint needs to be simply filed. The said legal notice was responded to by the authorities by informing the petitioner that no action had been taken against the petitioner based on the anonymous complaint and discreet inquiry or Court of Inquiry is an administrative matter and it is the prerogative of the administrative authority to know and verify the facts, if any, bought to their knowledge albeit through anonymous complaint, to maintain discipline in the force, vide their letter dated 24.6.2014. It was also stated in the said letter that ordering for enquiry and summoning somebody to give witness in the enquiry does not constitute any action against him. 5. Being aggrieved by the said actions of the authorities, the present writ petition has been filed. As stated above, the main grievance of the petitioner is that the Ministry of Personnel & Public Grievances & Pensions, Government of India had issued elaborate guidelines to deal with anonymous complaints as contained in the Memorandum No. 104/76/2011-AVD.I dated 18.10.2013 and it had been specifically provided in the said Memorandum that no action is required to be taken on anonymous complaints, irrespective of the nature of allegations. Accordingly, it had been contended on behalf of the petitioner that since the Court of Inquiry was initiated based on an anonymous complaint, no action was required to be taken and as such, convening the Court of Inquiry is contrary to the said Memorandum and accordingly, liable to be interfered with. 6. Mr. Amarjit Naorem, learned counsel appearing for the respondents though had prayed for some time to enable him to file affidavit-in-opposition, raised the issue of maintainability of this writ petition and submitted that the issue of maintainability can be decided even before filing the affidavit-in-opposition on the basis of the pleadings already available before this Court. It has been contended by Mr. Amarjit Naorem that the said Office Memorandum dated 18.10.2013 which is the foundational basis for filing this writ petition merely sets certain guidelines regarding handling of complaints in the Ministries/Departments and does not create any enforceable legal right to the petitioner. In other words, as the Office Memorandum merely lays down guidelines, the same is not enforceable before the Court of law. In other words, as the Office Memorandum merely lays down guidelines, the same is not enforceable before the Court of law. That apart, it has been also contended that the cause of action arose at Siliguri in West Bengal where the Court of Inquiry is proposed to be held which is within the jurisdiction of the Calcutta High Court, and since no cause of action arose at any place in Manipur, this High Court could not have territorial jurisdiction to entertain this writ petition but the Calcutta High Court or any competent Court within its jurisdiction. It has been also contended that since no action was taken against the petitioner, this petition is not maintainable. 7. Per contra, Mr. K. Rabei, learned counsel for the petitioner has argued that the Office Memorandum though may have provided guidelines for handling of anonymous complaints, nevertheless cannot be ignored by the authority. According to him, executive instructions are enforceable and binding till appropriate statutory provisions are made. In this regard, learned counsel for the petitioner has relied on the decisions of the Supreme Court rendered in P.H. Paul Manoj Pandian -vs-P. Veldurai, : (2011) 5 SCC 214 and Nagpur Improvement Trust-vs-Yadaorao Jagannath Kumbhare and others, AIR 1999 SC 3084 . In these cases it has been held by the Supreme Court that in absence of service rules, executive instructions/directions could operate. Learned counsel for the petitioner has also submitted that this Court has territorial jurisdiction to entertain this petition inasmuch as the cause of action partly arose at Moirang in Manipur where he received the impugned communications from the authorities which are challenged in this writ petition and Moirang is within the territorial jurisdiction of this Court. In this regard, he has relied on the decision of the Supreme Court rendered in Rajendran Chingaravelu -vs-R.K. Mishra, Additional Commissioner of Income Tax and Others, : (2010) 1 SCC 457 , and decisions of the Bombay High Court rendered in W.W. Joshi and others -vs-State of Bombay and others, : AIR 1959 Bombay 363 and Damomal Kausomal Raisinghani - vs-Union of India and others, : AIR 1967 Bombay 355. 8. Mr. 8. Mr. Amarjit Naorem, however, relying on the decision of the C.B.I. Anti-Corruption Branch, Mumbai-vs-Narayan Diwakar, reported in (1999) 4 SCC 656 contended that merely because a communication was sent to the petitioner at Moirang in Manipur, no cause of action could have been said to have arisen in Manipur. In the said case of C.B.I. Anti Corruption Branch (supra), the question arose regarding the decision of the learned Single Judge of the Gauhati High Court that communication of the wireless message to the respondent at Itanagar, Arunachal Pradesh formed part of the cause of action for filing the writ petition at Gauhati High Court. The Supreme Court, however, held that the writ petition filed by the respondents in the Gauhati High Court was not maintainable. 9. We will first deal with the issue of enforceability of the said Office Memorandum dated 18.10.2013 on which basis the present writ petition has been filed. A perusal of the said Memorandum would show that the said Memorandum was issued to deal with anonymous and the pseudonymous complaints and also need to create a mechanism for handling complaints where identity of the complainant is kept secret and the complainant is provided protection. Further, it has been provided in the said Memorandum that in view of the fact that complainants who desire to protect their identity now have the protection of the Public Interest Disclosure & Protection of Informers' Resolution - 2004 (PIDPI), the following procedure has been laid down for handling anonymous and pseudonymous complaints:- "(i) No action is required to be taken on anonymous complaints, irrespective of the nature of allegations and such complaints need to be simply filed. (ii) Complaints containing vague allegations could also be filed without verification of identity of the complainant. (iii)........................................................................ " According to the petitioner, therefore, the authorities while dealing with the anonymous complaint ought to have not taken any action on the basis of the Office Memorandum dated 18.10.2013. However, in the present case, the authorities seem to have initiated certain proceedings i.e., the Court of Inquiry on the basis of an anonymous complaint. The question therefore, that arises is, whether this Court could entertain this writ petition and interfere with the said proceeding initiated on the basis of an anonymous complaint as being contrary to the said Office Memorandum dated 18.10.2013 as claimed by the petitioner. The question therefore, that arises is, whether this Court could entertain this writ petition and interfere with the said proceeding initiated on the basis of an anonymous complaint as being contrary to the said Office Memorandum dated 18.10.2013 as claimed by the petitioner. In that context, the enforceability of the said Office Memorandum dated 18.10.2013 has to be decided. Related to it, it may also be ascertained whether any action was taken at all against the petitioner contrary to the said Office Memorandum. 10. Though the learned counsel for the petitioner has vehemently argued that the authorities cannot ignore the said Office Memorandum dated 18.10.2013 and cannot take any action contrary to the said Office Memorandum, it has to be decided whether the petitioner has any enforceable right based on the said Office Memorandum dated 18.10.2013. In this regard, one may refer to the decision of the Hon'ble Supreme Court rendered in Syndicate Bank -vs-Ramchandra Pillai, (2011) 15 SCC 398, where the Supreme Court held that: "6. If any executive instructions are to have the force of statutory rules, it must be shown that they were issued either under the authority conferred on the Central Government or a State Government or other authority by some statute or the Constitution. Guidelines or executive instructions which are not statutory in character, are not "laws", and compliance therewith cannot be enforced through courts. Even if there has been any violation or breach of such non-statutory guidelines, it will not confer any right on any member of the public, to seek a direction in a court of law, for compliance with such guidelines. An order validly made in accordance with a statute (as in this case the Public Premises Act), cannot be interfered with, even if there has been any transgression of any guidelines, except where it is arbitrary or mala fide or in violation of any statutory provision. These are well-settled principles (see Union of India v. S.L. Abbas : (1993) 4 SCC 357 , South Central Railway v. G. Ratnam : (2007) 8 SCC 212 and State of U.P. v. Gobardhan Lal : (2004) 11 SCC 402 )." Therefore, it has to be shown by the petitioner that the said Office Memorandum was issued pursuant to a statutory provision. However, since the Office Memorandum dated 18.10.2013 has not been shown to be set of statutory instructions/guidelines issued pursuant to any statutory provision, it cannot be enforced by the petitioner. Though, it is true that executive instructions could fill the voids/gaps existing in any statute, in which event, such supplement guidelines/instructions could have enforceability, in the present case, these are not in that nature. The Office Memorandum was not issued as to fill up any gap in any existing statute but merely executive instructions issued not on the basis of any statutory provision, but to deal with anonymous letters or complaints to avoid any undue harassment or inconveniences to public servants. In that view of the matter, the decisions of the Hon'ble Supreme Court in P.H. Paul Manoj Pandian (supra) and Nagpur Improvement Trust (supra) are not applicable in the present facts of the case. In para 45 of the decision in Paul Manoj Pandian (supra), the Supreme Court observed that though the departmental circulars are of great importance to the public, giving guidance about governmental organisation and exercise of discretionary powers, in themselves, they have no legal effect whatever, having no statutory authority. In the case of Nagpur Improvement Trust (supra), the issue related to non framing of rules prescribing the conditions under which the staffs are to be appointed to the Nagpur Improvement Trust, as provided under Section 21 of the Nagpur Improvement Trust Act, 1936. The Supreme Court held that in absence of such statutory rules, the administrative instructions would operate in the field and appointment can be made on the basis of such administrative instructions. In the present case, it is not the case that there are certain statutory laws or enactments to deal with anonymous complaints, on which basis, the Office Memorandum dated 18.10.2013 was issued. Neither it is the case of the petitioner that because of non framing of necessary statutory rules in that regard, the Office Memorandum dated 18.10.2013 has been issued to fill the gap. Neither it is the case of the petitioner that because of non framing of necessary statutory rules in that regard, the Office Memorandum dated 18.10.2013 has been issued to fill the gap. Accordingly, this Court holds in the light of the decision of the Supreme Court in Syndicate Bank (supra) that the Office Memorandum dated 18.10.2013, being not statutory in character, does not confer any legal right to the petitioner to enforce it in a court of law, even if there has been breach of the said guidelines, unless it is shown to be arbitrary or mala fide or leads to violation of any statutory provision or wholly violated as held by the Supreme Court in Moni Shankar -vs-Union of India, : (2008) 3 SCC 484 . The Supreme Court in Moni Shankar (supra) had held that though executive instructions do not create any legal right, it was emphasized that total violation of guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department had been able to prove the charges against the delinquent official. 11. It is also to be noted that from the letter dated 24.6.2014 of the authorities, issued to the petitioner's counsel in response to his legal notice, it has been specifically clarified that no action in the instant case has been taken against the petitioner on the anonymous complaint. It has been stated that discreet inquiry or Court of inquiry are administrative matters and it is the prerogative of the administrative authority to know and verify the facts, if any, are brought to the knowledge of the authorities, even if by anonymous complaint, to maintain discipline in the force and it was also clarified that ordering for enquiry and summoning somebody to give witness in the enquiry does not constitute any action against him. It may be also noted that Rule 176 of the Sashastra Seema Bal Rules, 2009 enables the authority to constitute any Court of Inquiry to inquire into any disciplinary matter or any other matters of importance. In the present case, what is seen is that apparently no action was sought to be taken against the petitioner but the authorities seem to be interested in finding out certain facts which were brought to their notice by an anonymous complaint. In the present case, what is seen is that apparently no action was sought to be taken against the petitioner but the authorities seem to be interested in finding out certain facts which were brought to their notice by an anonymous complaint. As revealed from the materials in the pleadings what is sought to be done by the authorities is to issue summon to the petitioner to attend as a witness in the Court of Inquiry and also produce certain documents like passbook and some other documents for verification for the said inquiry. This Court is of the view that these acts in themselves cannot be considered to be an "action" taken against the petitioner so as to bring within the purview of the prohibition contemplated in the Office Memorandum dated 18.10.2013. By the Court of Inquiry, no disciplinary action is proposed against the petitioner but merely an inquiry to find out certain facts which the authority considers important. It is also to be noted that the petitioner is not claiming that his rights have been prejudiced by the act of the authorities requiring him to be present as a witness and for production of certain documents. Therefore, if no right of the petitioner has been adversely or prejudicially affected, this Court does not understand how the petitioner can be said to be aggrieved by the said action of the authorities. What has been required of him was merely asking him to appear as a witness and also to produce certain documents for necessary verification. 12. As this Court has already examined earlier, since no disciplinary action was initiated against the petitioner, this Court is of the view that it cannot be said that there was total violation of the Office Memoranda. Since the proposed action was merely to ascertain certain facts, such action cannot be said to be wholly against the Office Memoranda to be within the purview of "action" as contemplated in the Office Memoranda as observed in Moni Shankar (supra). What is contemplated in the Office Memoranda is that any action against any specific individual person or persons may not be initiated on the basis of anonymous complaint but not an action intended to find out certain facts or ascertain certain facts as it is not directed against the petitioner. What is contemplated in the Office Memoranda is that any action against any specific individual person or persons may not be initiated on the basis of anonymous complaint but not an action intended to find out certain facts or ascertain certain facts as it is not directed against the petitioner. Therefore, the stand taken by the authorities in their reply dated 24.6.2014 to the legal notice of the petitioner is not contrary to the Office Memorandum. 13. Therefore, this Court is not inclined to accept the contention of the petitioner that the impugned summon/Memoranda issued to the petitioner are in violation of the Office Memorandum dated 18.10.2013 as no action is sought to be taken against him. Even otherwise also, as the Office Memorandum dated 18.10.2013 is not a statutory instruction issued on the basis of any statute, it does not confer any enforceable right to the petitioner, hence cannot be enforced in law. The petitioner, however, would be at liberty to approach the higher authority against the proposed action of the Adjutant of 52nd Bn. SSB for redressal of his grievances, including the claim that the Office Memorandum dated 18.10.2013 was not followed in the present case and the higher authority could in their wisdom could pass appropriate order. 14. Coming to the next issue of lack of jurisdiction of this Court to entertain this writ petition raised by the respondents, Mr. K. Rabei, learned counsel for the petitioner has relied on the decision rendered in Rajendran Chingaravelu (supra) and other decisions rendered by the Bombay High Court. On the other hand, Mr. Amarjit Naorem, learned counsel appearing for the respondents has relied on the decision of the Supreme Court in C.B.I. Anti-Corruption Branch, Mumbai (supra). In Rajendran's case relied upon by the petitioner's counsel, the appellant therein was arrested at Chennai Airport while coming from Hyderabad by air carrying a cash of Rs. 65 lakhs but he filed the writ petition in the High Court of Andhra Pradesh challenging the actions of the authorities and the issue arose as to whether the Andhra Pradesh High Court could entertain the writ petition inasmuch as the seizure took place at Chennai. 65 lakhs but he filed the writ petition in the High Court of Andhra Pradesh challenging the actions of the authorities and the issue arose as to whether the Andhra Pradesh High Court could entertain the writ petition inasmuch as the seizure took place at Chennai. The Supreme Court held that the Andhra Pradesh High Court had jurisdiction to entertain the writ petition as it was found that the genesis for the entire episode of such seizure and the detention at the Chennai Airport was because of the security/intelligent officials at Hyderabad Airport from where he boarded the flight and who had allowed him to carry the cash in the flight but thereafter reported their counterparts of the Chennai Airport. Apart from that, the Income Tax proceeding against the petitioner was initiated at Hyderabad. Accordingly, the Hon'ble Supreme Court held that a part of the cause of action arose in Hyderabad and accordingly, the Andhra Pradesh High Court had jurisdiction to entertain the writ petition. 15. In the said case, a part of the cause of action clearly arose in the State of Andhra Pradesh but in the present case, no such cause of action has arisen in the State of Manipur as will be discussed hereinbelow and as such Rajendran's case is not applicable. The Bombay High Court in the said case of W.W. Joshi (supra) which related to termination of the petitioner from service who was serving at Nagpur where the termination order was issued, held that the cause of action would arise not only at the place where the order of termination was made but also at the place where its consequences fall on the government servant. In the case of Damomal Kausomal Raisinghani (supra), the Bombay High Court reiterated the same principle. In the said case, the petitioner was a resident of Ullasnagar in Thane District of Maharashtra and it was held that even assuming that the order was made by the authority in New Delhi there can hardly be any doubt that the effect of the order fell at Ullasnagar, Nagpur where he resided and as such Bombay High Court had jurisdiction to entertain the petition. In the said cases, the Bombay High Court took that view primarily because of the reason that the effect of the orders clearly was felt at the place where the orders were communicated. In the said cases, the Bombay High Court took that view primarily because of the reason that the effect of the orders clearly was felt at the place where the orders were communicated. In that regard, we may also examine whether any such effect of the communications received by the petitioner at his home town at Moirang could be said to have been felt so as to attract jurisdiction of this Court. The communications/summons received by the petitioner relates to the incident which had admittedly occurred in Siliguri. The communications do not relate to any activity of the petitioner while he is staying at Moirang. It is also not a situation that the petitioner had overstayed his leave which prompted the authorities to take action against the petitioner, because of which one could still argue that some or part of the cause of action arose in Manipur. In the present case, the communications/summons do not relate to any of the activities of the petitioner while at Moirang. It is also not a case that the petitioner had been terminated from service so that he could be informed at his home address or that he could submit his statutory representations or appeals from Moirang so as to form a part of the cause of action. In the present case, he has been merely informed to proceed to his place of posting and also to bring certain documents and to take part in the Court of Inquiry being held at Siliguri. Therefore, this Court is of the view that merely because the summons/communications were sent to his home address while he was on leave would not form any part of the cause of action relating to the holding of Court of Inquiry at Siliguri. In that regard, the decision relied on by Mr. Amarjit Naorem, learned counsel for the respondents of the Supreme Court in C.B.I. Anti-Corruption Branch (supra) would be applicable in the present case. 16. We may also observe that the issue of territorial jurisdiction of the High Court in entertaining any writ petition on the ground that any or even fraction of the cause of action had arisen within the territorial jurisdiction of the High Court had been considered in a number of decisions by the Supreme Court. 16. We may also observe that the issue of territorial jurisdiction of the High Court in entertaining any writ petition on the ground that any or even fraction of the cause of action had arisen within the territorial jurisdiction of the High Court had been considered in a number of decisions by the Supreme Court. It may be suffice to refer to only one such decision rendered by the Supreme Court to avoid burdening this judgment with the numerous decisions. The Supreme Court in Nawal Kishore Sharma -vs-Union of India & Ors. decided on 7.08.2014 arising out of Civil Appeal No. 7414 of 2014, SLP(C) No. 19549 of 2013 reported in 2014 Legal Eagle (SC) 568 discussed elaborately the law in this regard by referring to earlier decisions. It was observed that even a small fraction of the cause of action arising within the territorial jurisdiction of the High Court could confer jurisdiction to the High Court but each and every fact pleaded would not ipso facto lead to the conclusion that these facts give rise to a cause of action unless these facts are such which have a nexus or relates with the lis involved in the case. The Supreme Court also reiterated the cautionary observation made in the earlier decision in Kusum Ingots & Alloys Ltd. - vs-Union of India and Another, : 2004 6 SCC 254 that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit and not appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. In the present case, this Court is of the view that the receipt of the impugned communications/summon at Moirang by the petitioner, has not been shown to have any nexus or relevance to the lis involved i.e., the inquiry being held at Siliguri based on an anonymous complaint in any manner whatever, to attract the jurisdiction of this Court. Accordingly, this Court holds that this Court has no jurisdiction to entertain this petition and the petitioner would be at liberty to approach the competent court having jurisdiction over the matter, if so advised. 17. Accordingly, this Court holds that this Court has no jurisdiction to entertain this petition and the petitioner would be at liberty to approach the competent court having jurisdiction over the matter, if so advised. 17. In the result, for the reasons discussed above, the present petition fails and is accordingly dismissed, however, without any cost.