Orissa High Court
Tapan Kumar Dalai vs Union Of India (Uoi) And Ors. on 2 September, 2002
Author: Pradip Mohanty
Bench: Pradip Mohanty
JUDGMENT R.K. Patra, J.
1. By this writ petition the petitioner seeks quashing of the office order dated 11.4.1998 declaring him as "deserter" under Sub-rule 31 (c) of C.R.P.F. Rules, 1977 (Annexure-7) as well as the disciplinary inquiry started on the basis of the memorandum dated 23.4.1998 (Annexure-8). He has also prayed for a direction to the opposite parties to accept the resignation submitted by him on 23.1.1998.
2. The case of the petitioner is that he came to be appointed as a Pharmacist in the rank of A.S.I, and was posted as such at 37 Battalion, C.R.P.F. Howly, Barpeta (Assam), After serving for five years in the Force, he decided to resign from service and accordingly submitted resignation on 14.10.1997 (Annexure-1) stating therein that it may be taken as a three months' notice for resignation and on completion of three months, the same may be accepted. On receipt of the resignation, the opposite party No. 2-Commandant asked the petitioner in letter dated 29.10.1997 (Annexure-2) to submit an undertaking to the effect that he would not claim in future for service in the Force. On his application, he was granted casual leave from 15.12.1997 to 31.12.1997 by office order dated 12.12.1997 with permission to avail leave on certain dates mentioned therein. He, thereafter, proceeded to his village at Khuntakata, Athagarh in the district of Cuttack. On account of his illness, in letter dated 31.12.1997 he requested for extension of leave. While on leave he submitted representation dated 23.1.1998 (Annexure-4) praying to accept the resignation submitted earlier as the three months' period had already expired. While the matter stood thus, the opposite party No. 2-Commandant in his letter dated 5.2.1998 (Annexure-5) informed the petitioner that the resignation from service could be accepted on two conditions i.e. he had to be physically present at Battalion headquarters and he had to deposit three months' salary with the department before acceptance of resignation. The petitioner made a representation on 16.2.1998 (Annexure-6) praying to the Commandant to accept his resignation without any pre-condition as there is no provision for deposit of three months' salary. The Commandant, however, without passing any order on his prayer for accepting resignation, made office order dated 11.4.1998 (Annexure-7) declaring him as 'deserter' from service with effect from 1.1.1998. Besides declaring the petitioner as 'deserter', the Commandant in the Memorandum dated 23.4.1998 (Annexure-8) issued article of charges to him to submit his memorandum of written statement of defence. The petitioner contends that the order declaring him as 'deserter' and the disciplinary inquiry proposed to be held at arbitrary and illegal.
3. The opposite parties have filed counter affidavit. Their case is that the petitioner has committed misconduct as a member of the C.R.P.F. in remaining absent with effect from 1.1.1998 i.e. after expiry of 12 days C.I. sanctioned to him from 15.12.1998 to 31.12.1998. He applied for thirty days extension of leave on the ground of illness while he was undergoing treatment as an O.P.D. patient. As his service was required in the Battalion in the public interest in absence of the doctor, his request for extension of leave was not considered and he was directed to report for duty. The petitioner did not join his duty as his intention was not to continue in service. Thereafter, he submitted application for resignation from service. The request for accepting resignation was rejected because he did not deposit three months' pay and allowances in lieu of three months' notice for its acceptance. As he remained absent for more than 60 days, warrant of arrest was issued as he committed an offence under Section 10(M) of C.R.P.F. Act, 1949. On the basis of the finding of the Court of Inquiry, he was declared as 'deserter' from the Force. Since he committed an act of misconduct as a member of the Force, disciplinary inquiry was conducted and he was dismissed from service by office order dated 14.8.1998 (Annexure-A/1).
4. Shri Samal, learned Addl. Standing Counsel relying on the decision of the Supreme Court in Union of India v. Adani Exports Ltd., (2002) 1 SCC 567 submitted that since no cause of action has arisen within the territorial jurisdiction of this Court, the petitioner could not have filed this writ petition. He also submitted that the resignation of the petitioner could not have been accepted because of noncompliance of the pre-conditions required as per departmental order No. F-ll-28/90-Adm. 3 dated 23.11.1996 which requires deposit of three months' salary in lieu of notice. Shri Mallik, learned counsel for the petitioner per contra contended that substantial part of the cause of action has arisen within the territorial jurisdiction of this Court. He also submitted that the petitioner is now willing to deposit the salary for three months in lieu of three months' notice.
5. As held by the Supreme Court in Oil and Natural Gas Commission v. Utpal Kumar Basu, (1994) 4 SCC 711, the expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Therefore, 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.
6. There is no dispute that the petitioner was posted in 7th Battalion, C.R.P.F. in the State of Assam as Pharmacist. While serving as such, he was declared as 'deserter' by office order dated 11.4.1998 (Annexure-7). Disciplinary proceeding was initiated by memorandum dated 23.4.1998 which proceeded ex parte and ultimately by office order dated 14.8.1998, he was dismissed from service. It may be seen that the Commandant in his letter dated 5.2.1998 (Annexure-5) intimated him that the resignation could be accepted on the two conditions mentioned therein. The said letter was sent to him in his home address in the district of Cuttack, Orissa. A copy of the office order dated 11.4.1998 (Annexure-7) declaring him as 'deserter' was sent to him at his home address. This is evident from the endorsement made at the bottom of the office order at Annexure-7. The memorandum dated 23.4.1998 (Annexure-8) framing a set of charges was also sent to the petitioner by registered post at his home address. Copy of the order of dismissal dated 14.8.1998 (Annexure-A/1) was also forwarded to him at his home address. The above set of correspondence has a nexus with the lis involved in the case. Considering these aspects, we are inclined to hold that a part of cause of action did arise within the territorial jurisdiction of this Court, and therefore, the petitioner has not committed any wrong in filing the present writ petition in this Court.
7. Learned counsel for the petitioner submitted that the petitioner is no more interested to join the service and accordingly he does not want to question the validity of the office orders declaring him 'deserter' and dismissing him from service. His submission is that the petitioner is now willing to pay three months' salary and he would be satisfied if the resignation submitted by him is accepted.
8. In view of the aforesaid submissions, we need not examine the validity o'f the office orders declaring the petitioner as 'deserter1 and dismissing him from service. Having regard to the facts and circumstances, we are of the opinion that the ends of justice would be met if the opposite parties would accept his resignation in view of his readiness to pay the three months' salary. As noticed above, his resignation was not accepted because he failed to deposit three months' salary which was required to be done in the letter dated 5.2.1998 (Annexure-5). Had he complied with it, his resignation would have been accepted and there would not have been any occasion for the opposite party No. 2 to declare him as 'deserter' and dismissing him from service. Good sense now seems to have dawn on him.
9. For the reasons aforesaid, we direct the opposite party No. 2 to accept his resignation on receipt of three months' salary from him. Petitioner is directed to remit the amount by 3rd of October, 2002 to the opposite party No. 2, who on receipt of the said amount would accept the resignation. On acceptance of the resignation, the opposite party No. 2 will recall the order dated 11.4.1998 declaring him as 'deserter' and the order dated 14.8.1998 dismissing him from service, as with the acceptance of the resignation his service would come to an end. We also declare that the petitioner would not be entitled to any service benefit for the service rendered by him under the C.R.P.F. With the aforesaid observation and direction, the writ petition is disposed of.
Pradip Mohanty, J.
10. I agree.