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2019 DIGILAW 445 (JK)

Raj Sharma v. Union of India

2019-10-15

RAJESH BINDAL, SANJEEV KUMAR

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JUDGMENT : Sanjeev Kumar, J. 1. This appeal arises out of judgment dated 28.02.2019 passed by the learned Single Bench of this Court in SWP No. 1149/2015, whereby the writ petition of the appellant herein has been dismissed for want of territorial jurisdiction. The writ court, as is apparent from the impugned judgment, has not gone into the merits of the case. 2. Before we proceed to appreciate the grounds of challenge urged by the appellant to assail the judgment of the writ court, a brief advertence to the factual antecedents, as is relevant to the disposal of this appeal, would be desirable. 3. The appellant came to be appointed as Constable/GD in Central Industrial Security Force (CISF) on 20.01.2011 in terms of order issued by Coram : Commandant, CISF Unit SHEP Salal. He was sent on training to Bhilai in Chhattisgarh. As appellant claims, he was medically fit at the time of his appointment and was, thus, placed on probation for two years. Going by his age, the appellant was entitled to serve the CISF till 31.01.2048. The basic training of the appellant commenced on 21.02.2011. On 03.09.2011, the appellant reported some uneasiness to the Company Commander and accordingly, he was referred to the Chief Medical Officer, C. H. Bhilai, where he was diagnosed as a case of “depression” He was, thus, referred to a Psychiatrist for specialized treatment. On 15.09.2011 after the appellant had undergone necessary medical checkup, he was advised home rest for one month. The appellant was supposed to take home rest upto 15.10.2011, but he overstayed his leave from 16.10.2011 and reported back to RTC, Bhilai only on 24.12.2011 i.e. after remaining on unauthorized absence for 68 days. The appellant, however, submitted medical documents issued by the District Hospital Akhnoor, Jammu pertaining to his treatment for Psychiatry. On joining back, the appellant was again subjected to treatment by a Psychiatrist at JLN Hospital, Bhilai, who diagnosed him as a case of “Depression with Mild Psychosis” and opined that the appellant be not allowed to handle weapons and that he would require regular treatment etc. The appellant having been examined by different medical experts, including HOD, Department of Psychiatry, Dr. Ambedkar, Medical College, Raipur and the CMO, CRPF, Jharoda Kalan, New Delhi, was diagnosed as a case of “Depression with Psychosis” and placed under Low Medical Category (LMC). The appellant having been examined by different medical experts, including HOD, Department of Psychiatry, Dr. Ambedkar, Medical College, Raipur and the CMO, CRPF, Jharoda Kalan, New Delhi, was diagnosed as a case of “Depression with Psychosis” and placed under Low Medical Category (LMC). The appellant was advised for light duties without arms and ammunition in the Unit under supervision with continued medication. 4. In view of his continued ailment, the appellant could not complete his basic training, which was to be mandatorily completed during probation and was sine quo non for confirmation. The appellant was also produced before the Standing Medical Board held on 22.05.2012. The Board opined that the appellant was not fit for service and may be boarded out. 5. The appellant, however, was not boarded out but was produced before the Standing Welfare and Rehabilitation Board (SWRB) constituted at Fire Service Training Institute, Hyderabad on 04.10.2013. The SWRB recommended the appellant for “Sedentary duties” but kept him under LMC SHAPE-V. 6. Pursuant to the opinion of the SWRB, the appellant was again deployed for Gate duties for attending telephone calls but was found incapable even to perform the gate duties. He was, then, deployed in Canteen to assist the salesman. Lastly, the appellant was produced before the Standing Medical Board to review his status of LMC on 10.05.2014 at CISF, Combined Hospital, Bhilai, where he was declared “Not fit for Basic Training”. 7. The matter was, accordingly, taken up with the CISF HQRS, New Delhi, and as per the instructions received, the appellant was served the Termination Notice on 10.10.2014 with one month’s salary in lieu of notice in terms of Rule 25 of CISF Rules, 2001. The appellant preferred an appeal before the Inspector General, Training Sector Hyderabad on 26.10.2014, which was dismissed with the remarks that “the ailment being suffered by the petitioner will be a big hindrance towards his performance of job in the Central Armed Police Force like CISF”. 8. Feeling aggrieved of the termination notice dated 10.10.2014, the appellant filed SWP No. 1149/2015. The respondents contested the maintainability of the petition on the ground that no part of cause of action had accrued to the appellant within the territorial jurisdiction of this Court and, therefore, the writ petition was not maintainable for want of jurisdiction. The impugned termination notice was also contested on merits by the respondents. 9. The respondents contested the maintainability of the petition on the ground that no part of cause of action had accrued to the appellant within the territorial jurisdiction of this Court and, therefore, the writ petition was not maintainable for want of jurisdiction. The impugned termination notice was also contested on merits by the respondents. 9. The writ Court only considered the preliminary objection with regard to the maintainability of the petition for want of jurisdiction and , agreeing with the stand of the respondents, dismissed the petition. This is how the appellant is before us in this appeal. 10. Mr. R. Koul, learned counsel appearing for the appellant submits that the Writ Court did not appreciate the fact that the appointment of the appellant was made by the Commandant, CISF Unit SHEP, SALAL, in the State of Jammu and Kashmir. He was treated for ailment in various hospitals, including at Composite hospital in Jammu, and , therefore, part of cause of action shall be deemed to have arisen within the territorial jurisdiction of this Court. It is also contended that termination notice issued by the respondents in Bhilai was never served upon the appellant when he was with the respondents and the appeal which the appellant preferred before respondent No. 3 was also filed from Jammu. In nutshell, learned counsel for the appellant submits that part of cause of action had accrued within the territorial jurisdiction of this Court and, therefore, the writ petition of the appellant could not have been thrown out for want of jurisdiction, particularly when the respondents had not contested the issue of jurisdiction at the time of admission of the writ petition. Learned counsel for the appellant urges that the petition was filed in the year 2015 and if, after four years, the appellant is asked to file a petition in the High Court of Chhattisgarh, it would be complete travesty of justice. Learned counsel for the appellant also argued on the merits of controversy and submitted that before issuing the termination notice respondents did not follow the procedure laid down in CISF Circular No. 03 of 2008 and, therefore, the impugned order of termination was vitiated. 11. Per contra, Mr. Learned counsel for the appellant also argued on the merits of controversy and submitted that before issuing the termination notice respondents did not follow the procedure laid down in CISF Circular No. 03 of 2008 and, therefore, the impugned order of termination was vitiated. 11. Per contra, Mr. Vishal Sharma, ASGI, appearing for the respondents submitted that having regard to the fact that appellant was diagnosed as a case of “Depression with Psychosis” while he was on training in Bhilai and he was treated and subjected to examination by the medical Board outside the State of Jammu and Kashmir and ultimately a termination notice to the appellant was also issued from Bhilai, it cannot be said that a part of cause of action ever accrued to the appellant within the territorial jurisdiction of this Court. With regard to the merits of the termination notice, learned counsel for the respondents contends that the appellant suffered the ailment while he was on probation and undergoing the basic training and because of this he could not successfully complete the basic training though his period of probation was extended twice. He, therefore, urges that under these circumstances the respondents had no option but to act in terms of Rule 25 and 26 of the Rules and terminate his services for having failed to complete the basic training course and also for having been declared unfit to serve in CISF. 12. We have heard learned counsel for the parties and perused the record. 13. From the narration of facts and events enumerated herein above, we are of the considered view that no part of the cause of action accrued to the appellant within the territorial jurisdiction of this Court. The legal position on the issue is now well settled. For maintaining a writ petition under Article 226 of the Constitution of India before a particular High Court, the petitioner is required to demonstrate that cause of action, wholly or in part or even a fraction of it, has accrued to him, within the territorial jurisdiction of said Court and the facts narrated by the petitioner to confer jurisdiction on a particular High Court must be such as would form an integral part of cause of action. Reference in this regard can be made to the judgments of Hon’ble the Supreme Court reported as 1994 (4) SCC 711 , Oil and Natural Gas Commission v. Utpal Kumar Basu and 2014 (5) Supreme 689 , Nawal Kishore Sharma v. Union of India and others. That being the legal position, no fault can be found with the view taken by the learned Single Judge. 14. Otherwise also, we find that the termination notice in terms of Rule 25 and 26 of the CISF Rules, 2001 has been issued during the probation period of the appellant. The probation and termination during probation of a member of service is governed by Rule 25 and 26 of the Rules and not by Section 91B or the Circular No. 03 of 2008 relied upon by the appellant. 15. In light of provisions of Rule 25 and 26, we find that not only the appellant was found unfit to serve in CISF but he also failed to pass the basic training during the period of his probation. As rightly contended by the learned counsel for the respondents, the appellant could not pass the basic training or come out of his ailment even after his period of probation was extended twice. In such circumstances, no illegality or fault can be found with the termination notice. 16. Accordingly, the writ petition is found to be not maintainable, both for want of jurisdiction and on merits. 17. In the result, this appeal fails and the same is, accordingly, dismissed. Rajesh Bindal, J.—The judgment is pronounced in terms of Rule 138(4) of the Jammu and Kashmir High Court Rules, 1999.