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2016 DIGILAW 1475 (ALL)

INDRAGYAN v. UNION OF INDIA

2016-04-21

A.P.SAHI, RAGHVENDRA KUMAR

body2016
JUDGMENT By the Court.—Heard learned Counsel for the appellant Sri V. P. Shukla and learned counsel for the respondents Sri Krishna Deo Rai alongwih Sri S.C. Mishra, who had earlier filed the affidavits in this matter on behalf of the respondents. 2. The appeal questions the view taken by the learned Single Judge on the issue of territorial jurisdiction in this matter. The issue is as to whether the appellant would have the dominus litus to file the petition before the Allahabad High Court. The learned Single Judge has held that in view of the fact that the communication under which the appellant was required to join his services, not only once but on several occasions, was tendered in the State of Rajasthan and therefore, no part of cause of action arose for this Court to assume jurisdiction to decide the dispute. 3. Learned counsel for the appellant Sri Shukla has vehemently urged that the appellant had sought voluntary retirement under the then existing scheme which was granted and after receipt of benefits, he retired and was staying at Mau (Chibo), district Chitrakoot (then district Banda), U.P.. On account of the reversal of the position relating to the rule of voluntary retirement by the Apex Court, the respondents repeatedly sent communications to the appellant to re-join the Forces and to surrender the emoluments that had been received by him as post-retiral benefits. 4. The appellant went to join and according to him, the appellant was not allowed to do so because of the condition put forward by him that he should be given a concession not to deposit the entire amount which was sought to be realized as a consequence of the aforesaid proceedings. The learned counsel submits that the appellant was prepared to refund the amount through his salary, but the same was not accepted nor he was permitted to join the Unit. He therefore submits that this communication and the subsequent direction to join the Forces vide letter dated 7.6.1999 gave a cause of action to the appellant within the State of U.P. inasmuch as the said communication was tendered to the appellant by the respondents at Banda in U.P. when he was not in service. He therefore submits that this communication and the subsequent direction to join the Forces vide letter dated 7.6.1999 gave a cause of action to the appellant within the State of U.P. inasmuch as the said communication was tendered to the appellant by the respondents at Banda in U.P. when he was not in service. In such a situation, this part of the cause of action against the aforesaid order in not allowing the appellant to join therefore arose within the State of U.P. and the writ petition ought to have been entertained. He has relied on the Apex Court decision in the case of Nawal Kishore Sharma v. Union of India and others, 2014 (9) SCC 329 and the decision of a learned Single Judge of this Court in the case of Phool Singh Chauhan v. Chief of the Army Staff, New Delhi and others, 2008(1) ESC 423 (All), to buttress his submissions. 5. Countering the aforesaid contentions, learned counsel for the Union of India and the Border Security Force have urged that as a matter of fact, when the appellant arrived at the Unit as is admitted by the appellant himself and he returned back, the cause of action had already arisen to the appellant in Rajasthan itself when he had visited the Unit for joining the Forces conditionally. It is therefore urged that no part of the cause of action arose so as to allow the matter to proceed before this Court and consequently, the learned Single Judge has rightly refused to exercise discretion and entertain the petition before this Court. 6. We have considered the respective submissions raised and we find from the record of the writ petition that the appellant had been put to notice to join and that according to the respondents, he allegedly did report on 12.11.1998 at the Unit Headquarters at Rajasthan. The respondents however alleged that the appellant without informing his superior officers returned back and therefore, the cause of action had arisen to him if he was aggrieved by any action of the Unit or its orders at Rajasthan itself. It is therefore contended that the appellant having voluntarily gone back to his residence in the State of Uttar Pradesh would not give him the dominus litis to file a writ petition before the Allahabad High Court. 7. It is therefore contended that the appellant having voluntarily gone back to his residence in the State of Uttar Pradesh would not give him the dominus litis to file a writ petition before the Allahabad High Court. 7. The aforesaid contention on behalf of the respondents cannot be accepted for the simple reason that even though the appellant had reported at the Unit and assuming that he wanted to join the Unit conditionally, the letter sent by him on 12.11.1998, which is Annexure 6 to the writ petition was clearly addressed to the respondents by the appellant from his home address. The response given thereto was communicated to the appellant at Mau (Chibo) then district Banda, U.P. (now district Chitrakoot). In such a situation, this part of the transaction of the refusal of the respondents to accept the condition imposed by the appellant was a transaction which arose within the State of Uttar Pradesh. The appellant was thereafter also called upon to join again through letters issued in 1999. 8. Consequently, this part of the cause of action having arisen at Banda, (now Chitrakoot) in U.P., we are clearly of the opinion that the order of the learned Single Judge in construing that no part of the cause of action had arisen within the State of U.P. is erroneous. The judgment relied upon by the learned counsel for the appellant comes to his aid, particularly the judgment of the learned Single Judge in the case of Phool Singh Chauhan (supra) who in paragraph 12 has indicated as follows : “12. .... Thus in so far as the prayer of the petitioner to quash the order dated 20th May, 1986 refusing reinstatement of the petitioner in service, it can be held that this Court has territorial jurisdiction since the representation was sent from Kanpur and the refusal of the same was also communicated at Kanpur. In support of the petitioner’s prayer to quash the order dated 20th May, 1986 same submission is pressed by the petitioner, i.e., the punishment of dismissal as well as imprisonment of six months was not permissible within the meaning of Army Act, 1950 and the said punishment being without jurisdiction, the petitioner was entitled to be reinstated.” 9. In support of the petitioner’s prayer to quash the order dated 20th May, 1986 same submission is pressed by the petitioner, i.e., the punishment of dismissal as well as imprisonment of six months was not permissible within the meaning of Army Act, 1950 and the said punishment being without jurisdiction, the petitioner was entitled to be reinstated.” 9. Apart from this, the judgment in the case of Nawal Kishore Sharma (supra), while interpreting Article 226 (2) has come to the conclusion that even if a small portion of the cause of action falls within the territorial jurisdiction of the concerned High Court, the High Court cannot refuse to entertain the writ petition subject to the refusal to exercise discretion. The aforesaid judgment also therefore comes to the aid of the appellant. 10. For all the reasons given here-in-above, the appeal deserves to be allowed and it is accordingly allowed and the judgment of the learned Single Judge dated 24.9.2003 and the judgment on the Review Petition dated 20.2.2004 are set aside. The writ petition would stand restored to its original number and shall be listed before the learned Single Judge for decision afresh on the merits of the matter.