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2016 DIGILAW 178 (JK)

Mudasir Bashir v. Union of India

2016-04-07

MUZAFFAR HUSSAIN ATTAR

body2016
JUDGMENT : Muzaffar Hussain Attar, J. 1. The petitioners joined the service of respondents in Training Centre Barauni, Bihar on 27th December, 2005 & 29th December, 2005 respectively. 2. The petitioners, while undergoing basic training course, tendered their resignations, which were accepted by the Commandant T.C with effect from 20th March, 2006. The petitioners, thereafter, approached the respondents with the plea that the resignations, tendered by them, were not voluntary. 3. It was the case of the petitioners before the respondents that the resignations were tendered due to the threatening letters received by their parents from the militants. When the respondents did not take any action on the aforesaid claim of the petitioners, they (petitioners) filed writ petition-SWP 631/2009, which was disposed of by the Court vide its order dated 05th August, 2013. The Court, while disposing of the writ petition, observed that the respondents shall reexamine the issue of tendering of resignations of the petitioners in the light of the case set up by them in the writ petition. The Court also observed that the respondents were not expected to, summarily, accept the resignations of the petitioners but to consider the circumstances, in which they were forced to put in their papers. Writ petition was disposed of by directing the respondents to accord fresh consideration to the claim of the petitioners in the light of averments made in the writ petition and annexures appended thereto. 4. In pursuance to the aforesaid Court order, the respondent-Director General, Sashastra Seema Bal, passed an order dated 15th October, 2013. On the basis of reasons recorded in the said order, the claim of the petitioners, for fresh consideration of their cases, was held to be not tenable. 5. The petitioners, besides challenging the aforesaid order in this writ petition, have also challenged order dated 20th March, 2006, whereunder their resignations were accepted. 6. In the writ petition, it is pleaded that the resignations, tendered by the petitioners, were not voluntary acts on their part, but they were forced by the circumstances to do so. It is also pleaded that the parents of the petitioners were send threatening letters by one militant organization, in which, it was stated that in case their sons did not resign from the Army, then they will be killed. It is also pleaded that the parents of the petitioners were send threatening letters by one militant organization, in which, it was stated that in case their sons did not resign from the Army, then they will be killed. The petitioners, along with the Additional Affidavit, filed after obtaining permission from the Court, have placed on record copy of the communication send to their parents by the militant organization. Perusal of the said communication would show that fathers' of the petitioners were informed that their children, viz. petitioners, who stand appointed in the Indian Army, be called back within a week's time. They were threatened that in case the instruction was not complied with, then, besides burning their residential houses, the fathers of these petitioners will be send to hell. 7. The Commandant T.C, SSB, Barauni, at paragraph (7) of his Reply dated 14th November, 2006, send to the learned counsel for the petitioners, has admitted that the resignation was tendered by the petitioners because of the threat from the militants. 8. The respondents, in their Reply Affidavit, have stated that the resignations were voluntary and same were, accordingly, accepted by the Competent Authority. 9. Learned counsel for the parties argued in tune with their respective pleadings. 10. Learned counsel for the petitioners relied upon judgment of Hon'ble the Supreme court in case titled Nawal Kishore Sharma v. Union of India, reported in (2014) 9 SCC 329 : AIR 2014 SC 3607 and while referring to paragraphs 19 & 20 thereof, he submitted that this Court is having jurisdiction to entertain and decide this writ petition. Reliance is placed on this judgment by learned counsel for the petitioners in view of the argument projected by learned counsel for the respondents that this Court is lacking jurisdiction to entertain and decide the writ petition, in as much, the impugned orders have been passed in the State of Bihar. Learned counsel for the petitioners also relied upon judgment of this court dated 17th February 2016, passed in Review (SWP) 21/2015 connected with SWP 1134/2009 and submitted that this case is squarely covered by the aforesaid judgment of this court and prayed for allowing of the writ petition. 11. Mr. Learned counsel for the petitioners also relied upon judgment of this court dated 17th February 2016, passed in Review (SWP) 21/2015 connected with SWP 1134/2009 and submitted that this case is squarely covered by the aforesaid judgment of this court and prayed for allowing of the writ petition. 11. Mr. S.A Makroo, learned ASGI, vehemently argued the case and, besides raising the objection about jurisdiction of this Court, also submitted that in view of the facts of this case, the plea of the petitioners cannot be accepted. Learned counsel also referred and relied upon judgments of this Court reported in 2015 (4) JKJ 65 , 2008 (1) JKJ 53 , 2012 (3) JKJ 119 , 2012 (3) JKJ 33 & 2015 (4) JKJ 65 and submitted that this writ petition be dismissed. 12. The objection of maintainability of writ petition was not raised at the time of admission of the same to hearing. It has been raised, for the first time, at the time of hearing of the writ petition. When the earlier writ petition (SWP 631/2009) filed by the petitioners, was decided by the Court on 05th August, 2013, the respondents did not raise objection about maintainability of that writ petition. In that writ petition, the order dated 20th March, 2006 was called in question, whereunder the petitioners' resignations were accepted by the respondents. 13. The petitioners submitted their representations from the State of J&K, more particularly, from their native Districts, which is part of the State of J&K. At the instruction of petitioners, notice u/s 80 CPC was also send to the respondents by learned counsel for the petitioners, from the State of J&K. This notice was also replied by the respondent-Commandant. Paragraphs 19 & 20 of the judgment passed in Nawal Kishore Sharma's case are taken note of: “19. Regard being had to the discussion made hereinabove, there cannot be any doubt that the question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limit of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. 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. 20. 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. 20. We have perused the facts pleaded in the writ petition and the documents relied upon by the appellant. Indisputably, the appellant reported sickness on account of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment. Finally, the respondent permanently declared the appellant unfit for sea service due to dilated cardiomyopathy (heart muscles disease). As a result, the Shipping Department of the Government of India issued an order on 12.04.2011 cancelling the registration of the appellant as a seaman. A copy of the letter was sent to the appellant at his native place in Bihar where he was staying after he was found medically unfit. It further appears that the appellant sent a representation from his home in the State of Bihar to the respondent claiming disability compensation. The said representation was replied by the respondent, which was addressed to him on his home address in Gaya, Bihar rejecting his claim for disability compensation. It is further evident that when the appellant was signed off and declared medically unfit, he returned back to his home in the district of Gaya, Bihar and, thereafter, he made all claims and filed representation from his home address at Gaya and those letters and representations were entertained by the respondents and replied and a decision on those representations were communicated to him on his home address in Bihar. Admittedly, appellant was suffering from serious heart muscles disease (Dilated Cardiomyopathy) and breathing problem which forced him to stay in native place, wherefrom he had been making all correspondence with regard to his disability compensation. Prima facie, therefore, considering all the facts together, a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation.” 14. The facts, delineated in paragraphs 19 & 20 of the judgment supra, are, more or less, similar to the facts of this case. The facts, delineated in paragraphs 19 & 20 of the judgment supra, are, more or less, similar to the facts of this case. In Nawal Kishore Sharma's case, objection was raised about maintainability of the writ petition in the High Court of Patna on the ground that the cause of action did not arise within the territorial jurisdiction of Patna High court. Writ petition was dismissed by the Patna High court on this ground alone. Hon'ble the Supreme court, however, in the facts and circumstances of the case held that the Patna High court had jurisdiction to entertain the writ petition under article 226 of the Constitution of India as part of the cause of action had arisen in the State of Bihar. In the said case, the copy of the letter, cancelling the registration of the Appellant therein as Seaman was send to him at his native place in Bihar. The Appellant had send representation to the respondents from his home in the State of Bihar claiming disability compensation. The said representation was replied by the respondents, which was addressed to him on his home address in Gaya Bihar, rejecting his claim for disability compensation. All the claims and representations were send by the Appellant-Nawal Kishore Sharma from his home address at Gaya Bihar and same were entertained and replied by the respondents and decisions thereon were communicated to him on his home address in Bihar. 15. Reverting to the facts of this case, the petitioners herein send representations to the respondents, which were entertained by them. The notice, send through their counsel, from the State of J&K, was also entertained and replied by the respondents and reply was also send to the learned counsel for the petitioners, who is also residing in the State of J&K. In view of law laid down by Hon'ble the Supreme court in Nawal Kishore Sharma's case supra, part of the cause of action did arise within the territorial jurisdiction of this Court. This Court has, thus, in the facts of this case, territorial jurisdiction to entertain the writ petition under article 226 of the constitution of India. Reference made to the judgments by learned counsel for the respondents, in view of the aforesaid facts and circumstances of the case, would not oust the jurisdiction of this court to hear and decide this writ petition. Reference made to the judgments by learned counsel for the respondents, in view of the aforesaid facts and circumstances of the case, would not oust the jurisdiction of this court to hear and decide this writ petition. The judgments, otherwise also would not constitute a binding precedent, in as much as, the Nawal Kishore Sharma's judgment has neither been cited nor considered in the cases relied upon by learned counsel for the respondents. The judgment of Hon'ble the Supreme Court, in view of mandate contained in article 141 of the Constitution of India, is binding on this court. Even there are material differences in the facts of the cases relied upon by learned counsel for the respondents with respect to the case on hand. The decision of the Court would not constitute binding precedent when there is difference in the facts of the case. Besides, sending representations and notices from the State of J&K, the earlier writ petition, filed by the petitioners, was decided by the Court, in the proceedings of which, the respondents participated and did not raise the question about maintainability of the same. The respondents are thus also estopped from raising such objection. 16. In view of the aforesaid discussion, this writ petition is held to be maintainable. 17. Coming back to the facts of this case, the case set up by the petitioners, supported by the material on record, it is clear that resignations tendered by them were not voluntary. They were forced by the members of militant organization to submit their resignations as otherwise their residential houses would have been burnt down and their parents killed. This aspect of the matter was also known to the respondents as is reflected at paragraph (7) of the Reply of the Commandant, which has been send to the counsel for the petitioners, who had, at the instructions of the petitioners, send notice to the respondents u/s 80 CPC. 18. In common sense as also in Service Jurisprudence, the act of tendering resignation presupposes that the same is voluntary and is tendered by its author out of his/her free will and volition. The moment it is shown, by credible material, that an employee was forced to tender resignation, same loses its legal effect and also ceases to be a voluntary resignation. The moment it is shown, by credible material, that an employee was forced to tender resignation, same loses its legal effect and also ceases to be a voluntary resignation. In the admitted fact position of this case, the resignations tendered by the petitioners were not voluntary and in law same cannot be said to be resignations. Acceptance of the resignations by the respondents is rendered inconsequential and the order of acceptance of resignations stands vitiated in the eyes of law. The subsequent order dated 15th October, 2013 has also to collapse in view of the aforesaid discussion. 19. For the above stated reasons, this writ petition along with connected IAs is disposed of in the following manner: “By issuance of Writ of Certiorari, order dated 20th March, 2006, passed by respondents, whereunder resignations of the petitioners have been accepted, is quashed. Consequently, order dated 15th October, 2013, passed by the respondent-Director General, Sashastra Seema Bal, is also quashed. The petitioners shall be deemed to be in continuous service of the respondents and shall be paid the consequential benefits.” 20. Disposed of along with CMPs.