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2018 DIGILAW 817 (JK)

Man Singh v. Union of India

2018-10-17

SANJEEV KUMAR

body2018
JUDGMENT : 1. In this petition, the petitioner is essentially aggrieved of a communication No. IG/CB/AAR (137) 2000/321-24 dated 03.08.2000 (Annexure-C) whereby the petitioner was informed by the respondents that his representation against the adverse remarks recorded in the ACR for the year 1999-2000 had been rejected and the remarks endorsed had been found to be based on facts. The petitioner has also assailed a communication No. A-28018/06/2000/CC/Pers/BSF/5281-84 dated 29.08.2002 (Annexure-E), issued by the Deputy Inspector General (Pers) Border Security Force whereby memorial submitted by the petitioner against the adverse remarks was found to be time barred and rejected. The other two communications bearing No. A28018/06/03/CC/Pers/BSF/3539-42 dated 22.10.2003 (Annexure-G) and communication No. A-28018/06/02/CC/Pers/BSF/1370-73 dated 04.07.2005 (Annexure-J) whereby the second memorial and representation filed by the petitioner were rejected is also assailed. 2. Briefly put, the facts are that the petitioner joined the Border Security Force (BSF) as Assistant Commandant in the year 1992 and was subsequently posted as Company Commander in Border Out Post (BOP) Barsora. While the petitioner was posted in 137 Bn BSF in Shillong, he was conveyed the adverse remarks written by the respondent No.3 for the year 1999-2000 with the advice that representation, if any, against the adverse remarks could be submitted within one month with an advance copy to the Headquarter AMM&N Frontier Border Security Force, Shillong, Meghalaya. 3. The petitioner represented against the recording of adverse remarks in his ACR vide representation dated 21.07.2000 to the respondent No.3 and sought expunction of remarks. The representation was rejected vide communication dated 03.08.2000, impugned in this writ petition. Aggrieved, the petitioner submitted memorial dated 07.04.2002 for expunction of remarks to respondent No.2, but the same was rejected solely on the ground that it was time barred. Faced with the rejection of his memorial by respondent No.2, the petitioner submitted another memorial dated 05.06.2003 to the respondent No.1, through proper channel. The petitioner was, however, informed that his memorial was examined at the level of respondent No.2, who had decided not to process it further for submission to the respondent No.1 for the reason that it was time barred. The petitioner submitted yet another memorial dated 07.04.2005 to the respondent No.1 through proper channel but the same was again not forwarded and rejected for the same reason. The petitioner submitted yet another memorial dated 07.04.2005 to the respondent No.1 through proper channel but the same was again not forwarded and rejected for the same reason. It is these communications aforementioned whereby the request of the petitioner for expunction of adverse remarks was turned down by the respondents from time to time which are subject matter of challenge in this writ petition. 4. The respondents have filed the reply, and apart from the meeting averments in the writ petition on merits, the respondents have also raised the question of maintainability of the petition on the ground that in absence of any part of the cause of action having accrued in the State of Jammu & Kashmir, the writ petition before this Court is not maintainable. This Court vide its order dated 28.05.2015 had taken note of the preliminary objections raised by the respondents with regard to the jurisdiction of this Court to entertain the instant writ petition and had permitted the parties to argue on the point as to whether the plea of jurisdiction could be taken by the respondents orally when the same had not been raised by the respondents in the reply affidavit. 5. I have considered the submissions made by learned counsel for the parties and perused the record. 6. It is true that the respondents in their reply affidavit have not taken specific objection with regard to the jurisdiction of this Court to entertain the writ petition but the plea of jurisdiction if available to a party on the basis of admitted pleadings on record, in my opinion, can be taken up and considered at any point of time with the only exception that other party should not be taken by surprise. In the instant case, both the parties were given ample opportunities to supplement their pleadings and to argue the matter at length. 7. The argument of the learned counsel for the petitioner is that the memorial/appeal of the petitioner was rejected by the Directorate General Border Security Force vide communication No.A28018/06/02/CC/Pers/BSF/393-97 dated 20th/21st February, 2006 and was conveyed to the petitioner when he was posted and serving in Jammu and therefore, a part of cause of action to approach this petition has arisen within the territorial jurisdiction of this Court. Learned counsel for the petitioner, however, does not dispute that all other things like recording of adverse ACR and rejection of representations by the respondent No2, happened when he was posted in Shillong. In support of arguments, learned counsel for the petitioner has relied upon the judgment of the Hon’ble Supreme Court rendered in the case of Rajendran Chingaravelu v. R.K.Mishra reported in 2010(1) SCC 457 and Nawal Kishore Sharma Vs. Union of India and others reported in 2014(5) Supreme 689 . Reliance is also placed on a Single Bench judgment of this Court rendered in the case of Aftaf Ahmad Mir Vs. Union of India and others reported in 2016(II) SLJ 875 and Abdul Rashid Makroo V. Chairman/MD UII and others reported in 2016 (II) SLJ 890. Learned counsel further reiterates her arguments that the plea of jurisdiction once not taken in the reply affidavit cannot be permitted to be taken at the later stage. 8. Per contra, learned counsel appearing for Union of India submits that it is true that in the reply affidavit filed in the matter, the plea of jurisdiction has not been taken by the respondents specifically. However, this was raised at the stage of preliminary hearing and thereafter the parties were permitted to supplement their pleadings. He, therefore, submits that subsequent to order passed by this Court on 28.05.2015, the petitioner filed a supplementary affidavit and in rebuttal thereto, the respondents also filed reply in which the plea of jurisdiction of this Court was specifically raised. He, therefore, further submits that plea of jurisdiction was taken at the first available opportunity and that the plea was based on admitted facts. He further urges that the plea of jurisdiction based on pure question of law can be raised at any time and the Court may not refuse to entertain the same for the reason that a judgment rendered in the matter may suffer for want of jurisdiction. He further urges that the plea of jurisdiction based on pure question of law can be raised at any time and the Court may not refuse to entertain the same for the reason that a judgment rendered in the matter may suffer for want of jurisdiction. In reply to the submissions of learned counsel for the petitioner, learned Central Government Standing Counsel takes this Court to the objections/reply affidavit filed in rebuttal to the supplementary affidavit filed by the petitioner and submits that this Court has no jurisdiction to entertain this petition for the following reasons:- (i) The adverse remarks in the ACR of the petitioner for the year 1999-2000 were awarded to the petitioner when he was serving in Shillong; (ii) The representation of the petitioner for expunction of remarks was rejected by the respondent No.3 and conveyed to the petitioner when he was posted and serving in Shillong; (iii) On 07.04.2002, the petitioner submitted his second representation and first memorial to the respondent No.2 headquartered at New Delhi. The respondent No.2 rejected the same as being time barred and conveyed to the petitioner when he was serving at Shillong; (iv) In the year 2003, the petitioner submitted yet another representation (3rd in number)/memorial (2nd in number) dated 05.06.2003 to the respondent No.1 through proper channel. However, the competent authority, i.e., respondent No.2 after careful consideration decided not to process the memorial being time barred and conveyed its decision to the petitioner while the petitioner was serving in Gujrat; (v) The petitioner did not stop but submitted one more representation (4th in number)/memorial (3rd in number) dated 07.04.2005 to the respondent No.1. This was submitted by the petitioner when he was posted in 82 Bn BSF. The competent authority, respondent No.2 once again bestowed consideration to the case of the petitioner and took a decision not to forward the same to the respondent No.1 and decision taken was conveyed to the petitioner when he was posted in North Bengal. (vi) Fifth representation and 4th memorial dated 31.12.2005, was submitted by the petitioner to the respondent No.1. The same was third time considered by the respondent No.2, who yet again did not find any justification to submit the case to the respondent No.1. The outcome of this 4th memorial was conveyed to the petitioner when he was still serving in 82 Bn BSF in North Bengal. 9. The same was third time considered by the respondent No.2, who yet again did not find any justification to submit the case to the respondent No.1. The outcome of this 4th memorial was conveyed to the petitioner when he was still serving in 82 Bn BSF in North Bengal. 9. In the aforesaid factual context, learned counsel for the respondents states that not even a fraction of cause of action has arisen to the petitioner anywhere within the territorial jurisdiction of this Court and therefore, this Court lacks the jurisdiction to entertain this writ petition and grant the relief prayed for. Reliance in this regard has been placed by the petitioner on the judgment of the Hon’ble Supreme Court in the case of Oil and Natural Gas Commission v. Utpal Kumar Basu reported in 1994 (4) SCC 711 . The respondents have also placed strong reliance upon the judgment of Nawal Kishore Sharma (supra), which has been relied by the learned counsel for the petitioner as well. 10. In the backdrop of aforementioned legal submissions made by learned counsel appearing for the parties, the only question that arises for determination in this writ petition is as to whether in the given factual matrix, any part of cause of action or a fraction of cause of action has arisen within the territorial jurisdiction of this Court. If the answer to this question is in affirmative then this petition would proceed, but if the answer is in the negative, the petitioner has to be dismissed being filed in a Court having no territorial jurisdiction. 11. From the sequence of events, narrated by the parties and on careful perusal of the impugned communications issued by the respondents from time to time, there is found nothing on record which would suggest that a part of or a fraction of cause of action has accrued to the petitioner within the territorial jurisdiction of this Court. The impugned communications have been conveyed to the petitioner either in Shillong, North Bengal or Gujarat. The petitioner has not placed on record anything to show that any of the impugned communication was served upon him while he was performing his duties in Jammu. The bald assertion without being supported by any documentary evidence is only a gospel truth and deserves to be noticed only for rejection. The petitioner has not placed on record anything to show that any of the impugned communication was served upon him while he was performing his duties in Jammu. The bald assertion without being supported by any documentary evidence is only a gospel truth and deserves to be noticed only for rejection. On the other hand, the respondents are very clear and categoric that none of the impugned communications appended with the writ petition as Annexure-C,E,G and J was ever served or conveyed to the petitioner while he was posted in the State of Jammu and Kashmir. 137 Bn of the BSF at the relevant point of time as is apparent from the record was in Shillong whereas 82 Bn BSF was at the relevant point of time in North Bengal and Gujarat. I have no reason to disbelieve the averments made in this regard on affidavit by the respondents. 12. While there is no dispute with regard to the proposition of law propounded by learned Senior counsel on behalf of the petitioner that in order to maintain a writ petition in this Court it is sufficient for the petitioner to demonstrate that a fraction of cause of action has arisen within the territorial jurisdiction of this Court. Hon’ble Supreme Court in the case of Nawal Kishore Sharma (supra) while considering the plea of jurisdiction to entertain the writ petition under Article 226 of the Constitution of India, in paragraph No.11 held thus:- “11. On a plain reading of the amended provisions in Clause (2), it is clear that now High Court can issue a writ when the person or the authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the court’s territorial jurisdiction. Cause of action for the purpose of Article 226 (2) of the Constitution, for all intent and purpose must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. The expression cause of action has not been defined either in the Code of Civil Procedure or the Constitution. Cause of action is bundle of facts which is necessary for the plaintiff to prove in the suit before he can succeed. 13. The expression cause of action has not been defined either in the Code of Civil Procedure or the Constitution. Cause of action is bundle of facts which is necessary for the plaintiff to prove in the suit before he can succeed. 13. While explaining the term “cause of action” as it appears in clause (2) of the Article 226 of the Constitution, the Hon’ble Supreme Court in paragraph No.19 of the same judgment concluded as under:- “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.” 14. To the similar effect is the earlier judgment of the Hon’ble Supreme Court rendered in the case of Rajendran Chingaravelu (supra). What was held by the Supreme Court in paragraph No.5 may be noticed hereunder :- “5. The first question that arises for consideration is whether the Andhra Pradesh High Court was justified in holding that as the seizure took place at Chennai (Tamil Nadu), the appellant could not maintain the writ petition before it. The High Court did not examine whether any part of cause of action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear that the High Court exercising jurisdiction in relation to the territories within which the cause of action arises wholly or in part, will have jurisdiction. This would mean that even if a small fraction of the cause of action (that bundle of facts which gives a petitioner, a right to sue) accrued within the territories of Andhra Pradesh, the High Court of that State will have jurisdiction. In this case, the genesis for the entire episode of search, seizure and detention was the action of the security/intelligence officials at Hyderabad Airport (in Andhra Pradesh) who having inspected the cash carried by him, alerted their counterparts at the Chennai Airport that appellant was carrying a huge sum of money, and required to be intercepted and questioned. In this case, the genesis for the entire episode of search, seizure and detention was the action of the security/intelligence officials at Hyderabad Airport (in Andhra Pradesh) who having inspected the cash carried by him, alerted their counterparts at the Chennai Airport that appellant was carrying a huge sum of money, and required to be intercepted and questioned. A part of the cause of action therefore clearly arose in Hyderabad. It is also to be noticed that the consequential income tax proceedings against him, which he challenged in the writ petition, were also initiated at Hyderabad. Therefore, his writ petition ought not to have been rejected on the ground of want of jurisdiction. 15. There is another judgment of three judge Bench of the Hon’ble Supreme Court relied upon by the respondents rendered in the case of Oil and Natural Gas Commission (supra), the Supreme Court in paragraph No.8 of the judgment held as under:- “8. From the facts pleaded in the writ petition, it is clear that NICCO invoked the jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction. According to NICCO, it became aware of the contract proposed to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta. In response thereto, it submitted its bid or tender from its Calcutta office and revised the rates subsequently. When it learnt that it was considered ineligible it sent representations, including fax messages, to EIL, ONGC, etc., at New Delhi, demanding justice. As stated earlier, the Steering Committee finally rejected the offer of NICCO and awarded the contract to CIMMCO at New Delhi on 27-1-1993. Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the Calcutta High Court because it became aware of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi; that those would be scrutinised at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi; that those would be scrutinised at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. Of course, the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax message of 15-1-1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27-1-1993. We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court.” 16. On the conspectus of judicial opinion discussed above, it is abundantly clear that for maintaining a writ petition under Article 226 of the Constitution of India before particular High Court, the petitioner is required to demonstrate that cause of action wholly or in part or even a fraction of it accrued to him within the territorial jurisdiction of the said Court and the facts averred by the petitioner to confer jurisdiction on a particular High Court, must be such as would form an integral part of cause of action. As noted above and is otherwise discernable from the record, none of the impugned communications were passed by the respondents and conveyed to the petitioners in any part of State of Jammu and Kashmir. That apart, the writ petition is primarily directed against the recording of adverse remarks for the year 1999-2000. Indisputably, these ACRs were recorded and conveyed to the petitioner while he was posted in Shillong. He made a representation against the adverse remarks to the respondent No.3 which was rejected and conveyed in Shillong. Thereafter, he made representation to the respondent No.2, which too was rejected. Indisputably, these ACRs were recorded and conveyed to the petitioner while he was posted in Shillong. He made a representation against the adverse remarks to the respondent No.3 which was rejected and conveyed in Shillong. Thereafter, he made representation to the respondent No.2, which too was rejected. He even approached the respondent No.1 by way of his representation moved through proper channel but the same was not forwarded by the respondent No.2 to the respondent No.1 on the ground that it was time barred. All this was done outside the territorial jurisdiction of this Court. Even if the petitioner is believed that the last communication of rejection of his 5th representation and 4th memorial submitted to the respondent No.1 was rejected by the respondent No.2 and conveyed to the petitioner while he was posted somewhere in the State of Jammu and Kashmir, still same would not confer the jurisdiction on this Court. This is so because once the representation moved by the petitioner to the respondent No.1 through proper channel had been rejected by the respondent No.2 vide his communication dated 21.10.2003, which was conveyed to the petitioner while he was posted in 137 Bn BSF in Gujarat. There was thus no point in making repeated representations and memorials to the same authorities and getting it rejected time and again. The last rejection of his 4th memorial submitted to respondent No.1 even if it is taken to be conveyed to the petitioner at Jammu would not constitute an integral part of cause of action to file the instant writ petition. It is not the sweet will of the petitioner to make the representation after representation, from one part of the country to another, and decide to file the writ petition when he feels that no further representation is required to be filed. This is how the plea of the petitioner needs to be considered. It may be clarified that there is nothing on record to show that last communication impugned in this writ petition was served upon the petitioner while he was posted in Jammu and even if it is so, as already held, it would not constitute an integral part of cause of action. 17. Viewed from any angle, this writ petition is without any jurisdiction as no part of cause of action has accrued to the petitioner anywhere within the territorial jurisdiction of this Court. 17. Viewed from any angle, this writ petition is without any jurisdiction as no part of cause of action has accrued to the petitioner anywhere within the territorial jurisdiction of this Court. The writ petition is, accordingly, dismissed along with connected IA(s), if any. It shall, however, remain open to the petitioner to file the writ petition before an appropriate Court having territorial jurisdiction to adjudicate the grievance projected by the petitioner in this writ petition.