Madhya Pradesh High Court
Jai Prakash Sharma vs Union Of India, on 3 January, 2018
THE HIGH COURT OF MADHYA PRADESH
WP-7285-2011
(JAI PRAKASH SHARMA Vs UNION OF INDIA,)
Gwalior, Dated : 03-01-2018
Shri Jitendra Sharma, learned counsel for the petitioner.
Shri Shashank Indapurkar, learned counsel for the respondents.
The petitioner has filed this petition being aggrieved by the action of the respondents in not making the payment of salary to the petitioner w.e.f. September 2010 to May 2011 when the petitioner was under treatment for some mental ailment at Medical College Jhansi.
It is petitioner's contention that the petitioner is a mentally ill person and he was unable to join services during the aforesaid period and has sent his representation before the authorities but illegally respondent No.5 awarded punishment of quarter guard of 28 days to the petitioner and he has been declined sanction of medical leave. It is further submitted that the petitioner was earlier posted at Karera District Shivpuri but without due application of mind he was transferred from Karera to Matili (Uttarakhand) and his application for voluntary retirement and posting at Karera has yet not been finalized and therefore the action of the respondents is totally illegal, arbitrary, discriminatory and contrary to the provisions contained in Section 47 of The Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter shall be referred to as 'Act of 1995'). In this backdrop, the petitioner, who is the employee of Indo-Titbbatan Boarder Police Force (ITBP) has filed this petition seeking following reliefs :-
(i) That the action of the respondents discriminating the petitioner on account of disability denying various genuine relief may kindly be declared to be illegal, null and void.
(ii) Consequentially the respondents may kindly be directed to consider the case of the petitioner for voluntary retirement and posting him in Support Battalion Karera prior to his retirement.
(iii) That, the respondents be further directed to sanction medical leave to the petitioner for the period in which the petitioner was remained on leave for his mental ailment and pay entire due salary and medical bills to the petitioner and regulate the said period with all consequentially benefits.
(iv) Cost of the petition be awarded or any other order or direction deemed fit in the circumstances of the case be issued in the favour of the petitioner."
Learned counsel for the respondents Shri Shashank Indapurkar on the other hand submits that the petitioner has no locus to file this petition at Gwalior Bench of this court, inasmuch as admittedly when the petitioner had filed the petition at that time he was posted at 12th Battalion Matili, District Uttar Kashi, Uttarakhand. Admittedly, he was recruited as Constable GD on 02.04.1990 and thereafter the petitioner was posted at Punjab when he had a quarrel with some Udayveer Singh and has become a patient of hypothyroidism suvelenkal with pneumatic depression relapse. Since 2001, petitioner continuously had remained under treatment for mental treatment and on 10.1.2008, he was treated at Military Hospital, Jhansi. Under such circumstances, the petitioner had submitted representation dt.22.12.2005 before the authorities for transferring him to Telecom Battalion, Shivpuri. In reference to such representation, vide order dt.18.12.2006, the petitioner was posted at Karera and he joined at Karera and worked there for three years when he was transferred from Karera to 10th Battalion ITBP Kimin, District Papampare on 18.05.2010 and was relieved vide order dt.22.06.2010 and he had joined at Gouhati and thereafter proceeded on leave from 26.7.2010 to 25.09.2010 and thereafter he had submitted his joining on 25.09.2010 in the afternoon and thereafter he had proceeded on leave till May 2011. Thus, learned counsel for the respondents submits that since the petitioner had joined at Guwahati (Assam) and thereafter when he filed petition, he was transferred from Guwahati to Uttarakhand, this court has no jurisdiction to hear and decide this writ petition. It is submitted that in fact the petitioner was declared as a deserter on 25.09.2010 forenoon vide 10th Battalion ITBP order No.6637-52 dt.02.05.2011 and copy of this order was sent to the petitioner and his wife through registered post. Further a notice was published in the local news paper on 22.05.2011 with direction to join his duties within thirty days from the date of publication of notice and it is mentioned in the notice that in case he failed to join, it would be presumed that he is not interested to serve in the ITBP and will be removed from service as per the terms of the ITBP Act and Rules. A copy of such publication is enclosed as Annexure R/20. Thereafter petitioner had reported at 10th Battalion Kimin (Arunachal Pradesh) and order of declaring him to be deserter was cancelled. Thus, he submits that during the period between September 2010 to May 2011 the petitioner was posted at 10th Btn. Kimin (Arunachal Pradesh) and if any action has been taken by the authorities for regularization of his leave as EOL, as is reflected from Annexure R-23, then that order can not be put to challenge before this court or at Gwalior Bench of the High Court of M.P. and therefore the petition is liable to be dismissed.
Learned counsel for the petitioner has placed reliance on the judgment of this court in the case of Ram Narain Singh Vs. Chhief of the Army Staff and others as reported in 2002 (2) MPLJ 623, wherein the facts were that Ram Narain Singh, who was an Army Sepoy was court martialled for overstaying leave at Bangalore. Order of his dismissal was given at Bangalore and appeal to the Chief of Army Staff at New Delhi was rejected and communication about same was sent to delinquent to his village in Rewa in the State of Madhya Pradesh. Therefore, relying on the judgment of the Hon'ble Supreme Court in the case of Dinesh Chandra Gahtori Vs. Chief of Army Staff and another as reported in (2001) 9 SCC 525, it was held that since the order of rejection of appeal is communicated to the petitioner at Rewa in Madhya Pradesh, therefore, court at M.P. will have jurisdiction to hear and decide the writ petition. He has also placed reliance on the judgment of Division Bench of this court in the case of Shrikishan Yadav Vs. Commandant, Central Reserve Police Force and others as reported in 2004 (1) MPLJ 205 holding there in that the suit against Director General of CRPF is maintainable anywhere in the Country. He has also placed reliance on the judgment of this court in W.P.No.1859/2016 (Dr.Virendra Kumar Gaur Vs. State of M.P. and others) decided on 17.07.2017, wherein the ratio is that since the petitioner was posted at Dabra when he filed writ petition and therefore in the light of law laid down by the Hon'ble Supreme Court in the case of Navinchandra N. Mahithia Vs. State of Maharashtra as reported in (2000) 7 SCC 640, wherein it has been held that territorial jurisdiction of High Court lies in territories within which cause of action wholly or partially arises and petition was allowed as denial of legitimate medical reimbursement bill was treated to be a continuation cause of action and the petitioner was posted at Dabra. Petitioner has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Rajendran Chingaravelu Vs. R.K.Mishra, Addl. Commissioner of I.T. & Ors. as reported in (2010) 1 SCC 457, wherein it has been held that in terms of Clause (2) of Article 226, even if a small faction of cause of action accrued within territories of Andhra Pradesh, High Court of that State will have jurisdiction. Since in that case entire episode of search, seizure and detention was the action of the Security/Intelligence Officials at Hyderabad Air Port (Andhra Pradesh), High Court held that part of cause of action clearly arose in Hyderabad and the petition ought not to have been dismissed for want of jurisdiction.
On the other hand learned counsel for the respondents has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Alchemist Ltd. and another Vs. State Bank of Sikkim and others as reported in (2007) 11 SCC 335, wherein it has been held that it is to be determined as to whether facts averred by writ petitioner constitute a part of cause of action on the basis of question whether such facts constitute a material, essential or integral part of the cause of action. In determining the said question, the substance of the matter and not the form thereof has to be considered. It was further held that the facts pleaded by the appellant were not essential, integral or material facts so as to constitute a part of "cause of action" within the meaning of Article 226 (2) of the Constitution of India, inasmuch as services of the employee were terminated at a place at Jharkhand by the appointing authority located at Jharkhand and termination order was not subject to sanction of the head office. In such circumstances, it was held that no part of the cause of action had arisen in West Bengal. In view of such judgments, learned counsel for the respondents submits that when relief sought by the petitioner is scrutinized and decided on the anvil of the provisions contained in Article 226 (2) of the Constitution of India, then it will be apparent that the petitoner is assailing the order refusing to sanction medical leave to the petitioner for which period he was absent from his duties i.e. between September 2010 to May 2011.
As far as this period is concerned, as has been discussed above, the petitioner was relieved from Karera on 22.06.2010 and had joined at Transit Camp Guwahati on 26.07.2010. Therefore, no cause of action had arisen in regard to the order passed refusing to regularize the period of unauthorized absence as the period having been spent on duty and to be treated as medical leave. In fact, the petitioner has not taken pains even to challenge the order dt.13.06.2011 (Annexure R/23) in the present petition by way of amendment in the writ petition. Since the order dt.13.06.2011 has been passed within the territorial jurisdiction of the High Court for north eastern state same could not have been assailed at Gwalior. The documents which have been filed by the petitioner do not reveal that any application was filed seeking voluntary retirement by the petitioner while he was posted at Karera. Communication dt.12.09.2011 has been made when the petitioner was posted at Matili Uttar Kashi (Uttarakhand). In view of such facts merely because the petitioner had taken some treatment at Jhansi will not give rise to any cause of action at Gwalior Bench and therefore there is substance in the submission made by the learned counsel for the respondents that when question of territorial jurisdiction is examined on the touchstone of the facts, then it will be apparent that at the time of petitioner proceeding on unauthorized leave, he was not posted within the territorial jurisdiction of this court. After publication of notice, he had submitted his joining at Arunachal Pradesh. At the time of filing of the writ petition, he was posted at Uttarakhand. Even when he had made an application for voluntary retirement, he was not posted within the territorial jurisdiction of this court. On 18.12.2006, he was posted at Karera. He was permitted to work at Karera for more than three years when he was transferred out of Karera vide order dt.22.6.2010. There is no application made from Karera seeking voluntary retirement. Annexure R/4 is an application seeking transfer to Shivpuri, that was made at Jalandhar (Punjab) and thereafter the petitioner was transferred to Shivpuri. Thus, petitioner's contention that he had sought voluntary retirement while he was posted at Karera is factually incorrect. Neither any request was made by the petitioner seeking voluntary retirement while he was posted at Karera nor cause of action had arisen for sanction of medical leave when he was posted at Karera and in fact the duration of medical leave is after petitioner submitting his joining in July 2010 at Gauhati. Therefore, none of the facts reflect accrual for cause of action of any of the relief within territorial jurisdiction of this court and therefore the judgments cited by the petitioner are of no avail and on the contrary law laid down in the case of Alchemist Ltd. (supra) and Eastern Coalfields Ltd. (supra) reveal that the petitioner has failed to make out a case of accrual of any cause of action to constitute "cause of action" in terms of the provisions contained in Article 226 (2) of the Constitution of India to confer territorial jurisdiction of this High Court. Thus, the petition fails on the ground of territorial jurisdiction, however, a liberty is reserved to the petitioner to approach the court of appropriate jurisdiction where cause of action had accrued for either seeking voluntary retirement or for regularization of period of absence which has been declared as EOL by the authority vide Annexure R/23. Accordingly, petition is disposed of.
(VIVEK AGARWAL) JUDGE SP