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2015 DIGILAW 145 (ALL)

EX-MAJOR VIVEKY RAI v. UNION OF INDIA

2015-01-22

ASHOK PAL SINGH, RAJES KUMAR

body2015
JUDGMENT Hon’ble Rajes Kumar, J.—Heard Sri Umesh Narain Sharma, learned Senior Advocate, appearing on behalf of the petitioner and Sri Neerav Chitravanshi, learned counsel appearing on behalf of the respondent. 2. In the present writ petition, the following reliefs have been claimed : “(i) Issue a writ, order or direction in the nature of ‘Certiorari’ quashing the Government of India letter/order No. 16(3)/2012/D (GS-III) dated 27.4.2012, the true copy of which is contained as Annexure 19. (ii) Issue a writ, order or direction in the nature of ‘Mandamus’ directing the respondents to reinstate the petitioner into service with all consequential service and monetary benefits, including full pay and allowances for the entire period w.e.f. 19.11.2003 till the date of reinstatement into service with 18% interest calculated with effect from the said date. (iii) Issue any such other order or direction which this Hon’ble Court may deem fit and just in the facts and circumstances of the case in favour of the petitioner. (iv) Allow the writ petition with cost in favour of the petitioner.” 3. By the impugned order dated 27.4.2012 passed by the Government of India, Ministry of Defence New Delhi, the services of the petitioner have been terminated with effect from 11.9.2009. Copy of the said order had been sent to the petitioner at the address of 2/272-A Vishal Khand-2 Gomtinagar, Lucknow, which is apparent from the letter dated 3.5.2012, which is at page 152 of the writ petition. 4. It appears that while the petitioner was posted at Jammu, he had been tried by the Court of First Additional Sessions Judge, Jammu under Section 302 IPC for the charges of having murdered his wife Smt. Sarita Rai. The Sessions Court vide its order dated 24.11.2008 acquitted him giving benefit of doubt. Against the said order, Appeal No. 14 of 2009 has been filed by the State of Jammu and Kashmir in the State of Jammu, which is pending. On the facts and circumstances and considering the nature and gravity of heinous charges against the petitioner, acquittal order dated 24.11.2008 based on account of benefit of doubt and prolonged detention in jail, further retention of the petitioner in Territorial Army was considered prejudicial to discipline and against the organizational interest and on this ground vide order dated 11.9.2009, the petitioner’s services have been terminated. The petitioner has challenged the said order vide Writ Petition No. 815 of 2010 in Delhi High Court. The Delhi High Court has quashed the impugned order dated 11.9.2009 and directed the respondent to take fresh decision in the matter of his reinstatement. By the impugned order, the case of the petitioner has been re-considered and the petitioner’s services have been terminated with effect from 11.9.2009, against which the present writ petition is being filed. 5. Learned counsel for the respondent raised a preliminary objection about the maintainability of the writ petition on the ground of territorial jurisdiction. It is contended that no cause of action has arisen in the State of U.P., and particularly at Lucknow, therefore, this Court has no territorial jurisdiction to entertain the writ petition and the writ petition is accordingly not maintainable. It is contended that merely because the petitioner resides at Lucknow, would not give the territorial jurisdiction to this Court to adjudicate the matter. The cause of action has arisen at Delhi where the impugned order has been passed. 6. Reliance has been placed on the Full Bench decision of this Court in the case of Rajendra Kumar Mishra v. Union of India and others, (2005) 1 UPLBEC 108 . 7. Sri Umesh Narain Sharma, learned counsel for the petitioner submitted that the impugned order has been served upon the petitioner at the address of 2/272-A Vishal Khand-2 Gomtinagar, Lucknow where the petitioner resides. He submitted that the order of dismissal dated 27.4.2012 became effective only when the said order came to knowledge of the petitioner when it has been served at Lucknow and, therefore, partial cause of action did arise at Lucknow. 8. Reliance has been placed in the case of State of Punjab v. Amar Singh Harika, AIR 1961 SC 1313 and the recent decision of the Apex Court in the case of Nawal Kishore Sharma v. Union of India, AIR 2014 SC 3607 . 9. Learned counsel for the respondent submitted that the decision of the Apex Court in the case of State of Punjab v. Amar Singh Harika (Supra) was not relevant to the present situation inasmuch as the question of territorial jurisdiction was not involved. 9. Learned counsel for the respondent submitted that the decision of the Apex Court in the case of State of Punjab v. Amar Singh Harika (Supra) was not relevant to the present situation inasmuch as the question of territorial jurisdiction was not involved. With regard to the decision of the Apex Court in the case of Nawal Kishore Sharma v. Union of India (Supra), it is submitted that the petitioner had made the claim for grant of various reliefs, including 100% disability, compensation and pecuniary damages. In respect of the said claim, several correspondences had been made from the State of Bihar to the registered office of the Corporation seaman. Communication with regard to rejection of his claim was made at his residential address in the State of Bihar and on these facts the Apex Court has held that the part of cause of action has arisen in the State of Bihar and accordingly held that the Patna High Court had the jurisdiction to adjudicate the matter, but such situation is not available in the present case. In the present case, there was no correspondence from Lucknow to New Delhi. The case has been contested at New Delhi and merely because the petitioner resides at Lucknow and the order has been communicated at the address of Lucknow, it does not give any right to any cause of action and, therefore, the Lucknow Bench of the High Court of Allahabad had no territorial jurisdiction to entertain the petition. 10. We have considered rival submissions and perused the record. 11. In the present case, there is no dispute that all the disciplinary proceedings took place at New Delhi. The termination order was passed at New Delhi. The petitioner is claiming partial cause of action at Lucknow on the ground that he resides at Lucknow and the impugned order has been served at the address of Lucknow. The question for consideration is whether any cause of action, partially or wholly arises at Lucknow and this Court had the jurisdiction to entertain the petition. The petitioner is claiming partial cause of action at Lucknow on the ground that he resides at Lucknow and the impugned order has been served at the address of Lucknow. The question for consideration is whether any cause of action, partially or wholly arises at Lucknow and this Court had the jurisdiction to entertain the petition. The Full Bench of this Court in the case of Rajendra Kumar Mishra v. Union of India and others (Supra), on consideration of several decisions rendered prior to and after the amendment in Article 226 has arrived to the conclusion that merely because the petitioner was residing in Ballia that would not give jurisdiction to Allahabad High Court inasmuch as the petitioner was on duty at Kanchanpura at Calcutta in West Bengal and was given a charge-sheet and the impugned order was passed by the authority of Delhi. The Full Bench decision is squarely applicable to the present case. 12. In Board of Trustee for the Port of Calcutta v. Bombay Flour Mills Pvt. Limited, AIR 1995 SC 577 , the Apex Court has held that whether the cause of action has arisen within the territory of the particular Court will have to be determined in each case on its own facts in the context of the subject-matter of the litigation, and relief claimed. 13. In the case of Oil and Natural Gas Commission v. Utpal Kumar Basu, (1994) 4 SCC 711 , the Apex Court has held that 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 the correctness or otherwise of the said facts. Thus, 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. 14. Lt. Col. Khajoor Singh v. Union of India, AIR 1961 SC 532 , is a decision rendered by Seven Judges of the Supreme Court. Thus, 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. 14. Lt. Col. Khajoor Singh v. Union of India, AIR 1961 SC 532 , is a decision rendered by Seven Judges of the Supreme Court. In paragraph 13 of the aforesaid decision, the Supreme Court observed as under: “13-Now it is clear that the jurisdiction conferred on the High Court by Article 226 does not depend upon the residence or location of the person applying to it for relief; it depends only on the person or authority against whom a writ is sought being within those territories. It seems to us, therefore, that it is not permissible to read in Article 226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court’s jurisdiction. Thus if a person residing or located in Bombay, for example, is aggrieved by an order passed by an authority located, say, in Calcutta, the forum in which he has to seek relief is not the Mumai High Court though the order may affect him in Bombay but the Calcutta High Court where the authority passing the order is located. It would, therefore, in our opinion be wrong to introduce in Article 226 the concept of the place where the order passed has effect in order to determine the jurisdiction of the High Court which can give relief under Article 226.” (Emphasis Provided) 15. In Board of Trustee for the Port of Calcutta v. Bombay Flour Mills Pvt. Limited, AIR 1995 SC 577 , the Supreme Court examined a case which related to a claim for waiver of port charges and release of the goods seized by the Board of Trustees of the Port of Calcutta. The consignment of imported goods by the plaintiff had been unloaded at Calcutta Dock, the respondents’ representations to the Port Trust Authority to waive the port charges and release the goods were refused by the Board of Trustees of the Port at Calcutta. The consignment of imported goods by the plaintiff had been unloaded at Calcutta Dock, the respondents’ representations to the Port Trust Authority to waive the port charges and release the goods were refused by the Board of Trustees of the Port at Calcutta. The suit was filed for waiver of the port charges and release of goods in the District Court, Bharatpur (Rajasthan). Obviously no part of the cause of action relating to the seizure of the goods by the Port Trust of Calcutta which were unloaded at Calcutta for non-payment of port charges had arisen within the territory of Rajasthan. The Court found that the cause of action had arisen at Calcutta. The Supreme Court affirmed the principle that the place where the whole or part of the cause of action arises, gives jurisdiction to the Court within whose territory such place is situate. Whether the cause of action has arisen within the territory of the particular Court will have to be determined in each case on its own facts in the context of the subject-matter of the litigation, and relief claimed. 16. In Aligarh Muslim University v. Vinay Engineering Enterprises (P) Ltd., (1994) 4 SCC 710 , the Apex Court noticed that the contracts in question were executed at Aligarh, the construction work was to be carried out at Aligarh, and even the contracts provided that in the event of dispute the Aligarh Court alone will have jurisdiction. The Arbitration was from Aligarh and was to function there. Merely because the respondent was a Calcutta based firm, the High Court of Calcutta had no jurisdiction in the matter. 17. Both the aforesaid judgments are after the amendment in Article 226 of the Constitution of India in the year 1976. 18. In the case of Nawal Kishore Sharma v. Union of India (Supra), it has been observed that in order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court’s jurisdiction. In the said case, the petitioner was residing at Gaya. From Gaya, he made several correspondences with the registered office of the Corporation situated at Bombay claiming various reliefs, including 100% disability, compensation and pecuniary damages. Rejection of his claim was also communicated by the Corporation at his residential address at Gaya in the State of Bihar. In the said case, the petitioner was residing at Gaya. From Gaya, he made several correspondences with the registered office of the Corporation situated at Bombay claiming various reliefs, including 100% disability, compensation and pecuniary damages. Rejection of his claim was also communicated by the Corporation at his residential address at Gaya in the State of Bihar. On these facts, the Apex Court has held that part of cause of action has arisen in the State of Bihar and accordingly writ petition filed by the petitioner claiming relief has been held maintainable in Patna High Court. 19. In the present case, a criminal case has been proceeded in Jammu and Kashmir, while the petitioner was posted at Jammu and Kashmir. Entire disciplinary proceeding was carried on at Delhi wherein the petitioner participated. The impugned order has been passed at Delhi by the authority situated at Delhi, therefore, the cause of action has only arisen at Delhi. The petitioner, on earlier occasion also, approached the Delhi High Court against the termination order. Merely because the petitioner resides at Lucknow and the order of termination has been communicated to him at Lucknow, no cause of action has arisen at Lucknow and thus, the writ petition filed at Lucknow is not maintainable. 20. We are of the view that the decision of the Apex Court in the case of Nawal Kishore Sharma v. Union of India (Supra) is distinguishable on the facts. 21. We are of the view that the Full Bench decision of this Court in the case of Rajendra Kumar Mishra v. Union of India and others (Supra), which is binding upon us, squarely covers the issue. 22. In the result, the writ petition is dismissed for want of jurisdiction as not maintainable. ——————