Orissa High Court
Rama Krushna Sahu vs Deputy Inspector General Of Police Cum ... on 31 August, 2017
Author: S.N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
O.J.C. No.1406 of 2002
In the matter of application under Articles 226 and 227 of the Constitution
of India.
---------
Rama Krushna Sahu ...... Petitioner
- Versus-
Deputy Inspector General of Police-cum-Appellate
Authority, Central Reserve Police Force, Gujarat and others
...... Opposite Parties
For Petitioner : M/s Sarbeswar Prusty, J.K.Lenka,
P.K.Behera, S.K.Pradhan
For Opp.Parties : Mr. S. Das, S.C.Samantray,Mr.Saktidhar
Das, Mr. Bimbisar Dash
(for O.Ps. 1 to 3)
---------
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
------------------------------------------------------------------------------------------
Date of hearing and judgment : 31.08.2017
------------------------------------------------------------------------------------------
S. N. Prasad, J.This writ petition is against the order dated 31.12.2001 as contained in Annexure-9 whereby and whereunder the order passed by the revisional authority dated 14.1.2000 has been recalled on the ground that the petitioner was in Berhampur Circle Jail w.e.f. 21.1.2000 on the charge of murder and looting.
2. Brief facts of the case of the petitioner is that he has been appointed as Constable(SD) in Central Reserve Police Force on the basis of the recruitment test held at Berhampur, Orissa during 16.08.1994 to 20.08.1994 and was enlisted in the Force on 30.8.1994, while in service, in the year 1998, he applied for leave to 2 attend his sister's marriage which was scheduled to be held on 1.2.1998. After considering his application the authorities have sanctioned 7 days leave in his favour w.e.f. 17.1.1998 to 27.1.1998. While the petitioner was preparing to come back to join in the headquarters, he, all of a sudden, fell ill and accordingly sent application for extension of leave and joined in the headquarters 14.6.1998. The petitioner, after joining in the headquarters, has found that his application for extension of leave has not been considered for which reason he submitted medical certificates to overcome his absence but the authorities has initiated a disciplinary proceeding on the head of two charges, namely (1) absence of the petitioner for 138 days without sufficient cause or reasons and valid permission from the competent authority is an offence of misconduct, disobedience of order and neglect of duty u/s 11(1) of the CRPC Act,1949, (2) the petitioner has tampered with the dates in the medical certificate/prescriptions before producing the same along with the application with malafide intention and misled his superiors, as such he has committed an offence of misconduct punishable under section11(1) of the CRPC Act,1949.
The enquiry officer has submitted report holding the petitioner guilty of the charges. The disciplinary authority has accepted the enquiry report and passed final order dated 15.1.1999 dismissing the petitioner from service, against the final order dated 15.1.1999 the petitioner preferred an appeal but the appeal has also been rejected, thereafter he has filed revision before the revisional authority which was considered by him and vide order dated 14.1.2000 directed the petitioner to join duties in 24th Bn., CRPC within 30 days from the date of receipt of the said order. The revisional authority has passed order of penalty of stoppage of increment for two years with cumulative effect for the charges leveled 3 and proved against him in the departmental enquiry. The revisional authority has communicated the said order through the Superintendent of Police, Berhampur, Orissa for its onward communication to the petitioner so that he may resume his duty in the light of the order passed by the revisional authority but it is unfortunate on the part of the petitioner that at that time he was languishing in the judicial custody for the offence punishable under section 396 of the Indian Penal Code, however, he has subsequently been acquitted of the charges by the competent court of criminal jurisdiction vide judgment delivered dated 28.7.2001 in S.C.No.3 of 2001 of the court of 1st Additional Sessions Judge, Berhampur. The S.P.,Berhampur after getting information at the time of communication of the order passed by the revisional authority that the petitioner was in judicial custody, accordingly he has informed the same to the revisional authority stating therein that the petitioner is languishing in judicial custody on the ground of his implication of commission of offence under section 396 I.P.C. since 21.1.2000 and as such the revisional authority, after receiving the communication from the S.P., Berhampur, has passed order on 31.12.2001, whereby the decision taken by him under the revisional jurisdiction on 14.1.2000 by which he has been reinstated into service with stoppage of increment for two years, has been restored by reviewing his earlier order dated 14.1.2000.
The order dated 31.12.2001 has been communicated to the petitioner in his residential address in the district of Ganjam, the petitioner having came to know about the same, has approached this Court for quashing the order dated 31.12.2001 on the ground of lack of jurisdiction by the revisional authority.
43. Learned counsel for the petitioner has submitted that the revisional authority passed the order reversing the order of dismissal to that of reinstatement in service with penalty of withdrawal of increment for two years, has got no jurisdiction to recall the said order by exercising power of review. He further submits that power of review can only be exercised if provided under the statute. He placed reliance upon the CRPF Act,1949 and CRPF Rules,1955 wherein there is no provision of review of the decision taken either by the disciplinary authority or by the appellate authority or by the revisional authority and as such the order dated 31.12.2001 is without jurisdiction.
He further submits that the revisioanl authority, after taking into consideration entire aspects of the matter on merit, has reversed the order of dismissal to that of order of reinstatement but merely on account of the fact that he, at that time, was in judicial custody due to wrong implication in the criminal case has recalled the order of reinstatement in which he, however, subsequently been acquitted by the criminal court.
4. Learned counsel representing the opposite parties has vehemently opposed the submission of the petitioner mainly on the ground of jurisdiction of this Court to entertain the writ petition. However, he has fairly submitted that there is no power of review conferred in the statute either upon the disciplinary authority or the appellate authority or the revisional authority.
He has relied upon the judgment rendered by the Hon'ble Apex Court in the case of Alchemist Limited And Another -vs- State Bank Of Sikkim and Others (Appeal (Civil) No.1426 of 2007 disposed of on 16.3.2007).
5Learned counsel for the petitioner in response to the maintainability of the writ petition has submitted that the writ petition is maintainable within the territorial jurisdiction of this Court for the reason that part of the cause of action has arisen here since the order of revisional authority dated 14.1.2000 has been supplied to the S.P., Berhampur for its onward communication to the petitioner, the S.P.,Berhampur, in course of taking recourse to communicate the said order, has found that the petitioner was languishing in judicial custody and as such gave information to the revisional authority with respect to his judicial custody and thereafter the order under Annexure-9 dated 31.12.2001 has been passed, hence the part of cause of action has occurred within the territorial jurisdiction of this Court, as such the writ petition is maintainable.
He has relied upon the judgment rendered by the Hon'ble Apex Court in the case of Nawal Kishore Sharma -vs- Union of India, 2014(9) SCALE 244 : AIR 2014 SC 3607 and an unreported judgment dated 19.1.2016 rendered by coordinate Bench of this Court in the case of Purna Chandra Kanungo -vs- Bank of India and others(W.P.(C) Nos.8943 of 2014 & 20270 of 2012).
5. This Court has heard the learned counsel for the parties and perused the documents available on record.
6. This Court has thought it proper, before going to the merit of the claim of the petitioner, to decide the issue of maintainability of the writ petition.
It is not in dispute that the writ petition is amenable under Article 226 of the Constitution of India if part of cause of action arises within the territorial jurisdiction of the High Court.
6Article 226 of the Constitution of India confers power upon the High Court to issue certain writs-
"(1) notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, qua warranto and certiorari, or any of them or the enforcement of any of the rights conferred by Part-III and for any other purpose.
(2) The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause(2) of Article 32."
The Constitution Bench of the apex Court in Election Commission, India -vs- Saka Venkata Rao, AIR 1953 SC 210 held that the writ court would not run beyond the territories subject to its jurisdiction and that the petitioner or the authority affected by the writ must be amenable to court's jurisdiction either by residence or location within those territories. The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issued under Article 226 of the Constitution which makes no reference to any cause of action or where it arises but insist on the presence of the person or authority within the territories in relation to which High Court exercises jurisdiction.
In K.S.Rashid and son -vs- Income Tax Investigation Commission and others, AIR 1954 SC 207 the Hon'ble Apex Court took similar view and held that the writ court cannot exercise its power under Article 226 beyond its territorial jurisdiction. It is also held that the exercise of power conferred by Article 226 was subject to two-fold limitations, firstly, the power is to be exercised in relation to which it exercises jurisdiction and secondly, the person or authority on whom the High Court is empowered to issue writ must be within those territories. Both the judgments rendered by the Apex Court in the case 7 of Election Commission, India -vs- Saka Venkata Rao(supra) and K.S.Rashid and son -vs- Income Tax Investigation Commission and others(supra) fell for consideration before the Larger Bench of Hon'ble Apex Court in Lt. Col.Khajoor Singh -vs- Union of India and another, AIR 1961 SC 532 and the view taken by the Hon'ble Apex Court in the earlier two judgments has been confirmed by the larger Bench of the Apex Court which stated that unless there are clear and compelling reasons, which cannot be denied, writ court cannot exercise jurisdiction under Article 226 of the Constitution beyond its territorial jurisdiction.
7. Prior to the insertion of clause 1(A), it was held that the writ should not run beyond territories to which High Court exercise jurisdiction, but due to the aforesaid ratio which resulted undue hardship and inconvenience to litigants in respect of jurisdiction, clause (1)(a) was inserted and that clause is numbered as Clause(2) of the 42nd amendment Act, if the cause of action arises wholly or in part, within the jurisdiction of that High Court, it may issue a writ against a person or authority resides within the jurisdiction of another High Court, as a result of insertion of the clause, a petition can be presented in the High Court within whose jurisdiction cause of action in respect of which relief is sought under Article 226 of the Constitution of India has arisen wholly or in part, reference in this regard may be made to the judgment rendered by the Apex Court in the case of Oil and Natural Gas Commission -vs- Utpal Kumar Basu and others, (1994) 4 SCC 711 wherein it has been held that High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part-III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation 8 to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. 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.
Same view has been taken by the Hon'ble Apex Court while dealing with the matter in the case of Union of India and others -vs- Adani Exports Ltd. and another, (2002)1 SCC 567, it has been held that in order to confer jurisdiction on a High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the court to decide the dispute and the entire or a part of it arose within its jurisdiction.
In the judgment rendered by the Hon'ble Apex Court in the case of Kusum Ingots and Alloys Ltd. -vs- Union of India and another, (2004) 6 SCC 254, it has been held that keeping in view the expression used in Clause(2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action occurs within the jurisdiction of the Court, the Court will have jurisdiction in the matter. However, even if a small part of cause of action arises within territorial jurisdiction of the High Court, the same by itself 9 may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum convenient, that a part of cause of action arise of one or the other forums, it will be for the petitioner to choose its forum.
8. It is evident from the ratio laid down in all the judgments of the Hon'ble High Court that if part of cause of action arises within the territorial jurisdiction of this High Court, writ will be held to be maintainable and it is open to the litigant to chose as to in which High Court he wants to pursue his litigation.
In the light of the settled proposition, the recent judgment rendered by the Hon'ble Apex Court in the case of Nawal Kishore Sharma -vs- Union of India(supra) , the Hon'ble Apex Court, after taking into consideration the judgments rendered previously and taking intent of the provision of Article 226(2) of the Constitution of India, has held that the writ petition is maintainable within the territorial jurisdiction of the Patna High Court by considering the fact that letters have been communicated to him by the authorities concerned in his residence situated within the territorial jurisdiction of Patna High Court and taking into consideration every aspects of the matter that notice has been issued, and interim order has been passed, but the opposite parties have not raised any objection, hence the writ petition has been held to be maintainable.
9. It is settled that each judgment is to be assessed on the basis of the facts and circumstances prevailing in the case. So far as the case of Alchemist Limited And Another -vs- State Bank Of Sikkim 10 and Others(supra) is concerned, the fact was that the writ petition has been filed before the Calcutta High Court on the ground that the company has its branch there, while interfering with the order, the Calcutta High Court has entertained the writ petition, the Hon'ble High Court has held that merely because having its office within the territorial jurisdiction of the High Court, it does not confer power upon the said High Court unless a part of cause of action will arise within the territorial jurisdiction of the said High Court.
10. The material which is available on record is that the petitioner who was working outside jurisdiction of this Court while departmental proceeding was initiated, he was inflicted with the punishment of dismissal from service while he was working at 24th Battalion, CRPF, Delhi. He has preferred appeal before the appellate authority while he was posted at Gujarat and the opposite parties have confirmed the order passed by the disciplinary authority. He has preferred revision before the revisional authority while he was posted in the Western Sector, CRPF, Navi Mumbai.
The revisional authority passed the order of reinstatement of the petitioner in service on the condition to join duties in 24 Bn., CRPF, within 30 days. The order dated 14.1.2000 has been directed to be served upon the petitioner through the S.P., Berhampur. The S.P., Berhampur vide his letter No.338/VR/IB dated 15.6.2000 has returned the copy of the order in question as the petitioner was arrested by Nuagaon P.S. on 21.1.2000 in connection with murder of two persons, taking away gold ornaments at his village and a case no.87 dated 10.10.1999 has been filed against him under section 396 I.P.C. which was forwarded to the Court in which he was taken into custody on 21.1.2000 and he is in jail custody at 11 Berhampur Circle Jail. This letter is available in Annexure-B to the counter affidavit, based upon which the revisional authority has issued order dated 31.12.2001 recalling the order passed by him in course of revisional jurisdiction dated 14.1.2000.
It is evident from the material available on record that the order of the revisional authority has been sought to be communicated to the petitioner by making a communication towards S.P., Berhampur which has not been communicated due to the fact that the petitioner was languishing in judicial custody at that time and thereafter the order on the basis of which the petitioner is claiming relief of reinstatement, has been recalled which is under challenge, hence according to the conscious view of this Court, communication of the order passed by the revisional authority and its non-communication to him is a part of cause of action which arises within the territorial jurisdiction of this Court since district of Ganjam is situated within the territorial jurisdiction of this High Court.
It is further evident from the pleading of the parties that at paragraph 2 of the writ petition specific stand has been taken by the petitioner that he is residing within the territorial jurisdiction of this Court and the cause of action is accrued within its territory, which has not been denied as per the statement made by them in the counter affidavit, hence since part of cause of action has arisen within the territorial jurisdiction of this Court, and as such on the basis of the provision of clause (1)(a) of Article 226 of the Constitution of India which has subsequently been converted to clause(2) and on the basis of the settled proposition as discussed above the writ petition is held to be maintainable within the territorial jurisdiction of this Court.
1211. So far as merit of the case of the petitioner is concerned, the petitioner is aggrieved with the order dated 31.12.2001 whereby and where under the revisional authority has recalled its order which he has passed on 14.1.2000. The order dated 14.1.2000 has been passed by reversing the order of dismissal to that of the order of reinstatement in service wherein the following order has been passed:
"(i) No.941443699 Ex-CT(GD) Ram Krishna Sahu of 24 Bn,CRPF is hereby re-instated in service with immediate effect in the same capacity and in his previous unit i.e. 24 Bn, CRPF presently located at vill & P.O. Gouripur, Dist. Dhubri, Assam-783331. He will join duties in 24 Bn., CRPF within 30 days from the date of receipt of this order by him.
(ii) The period from the date of removal from service till the date of rejoining duty by No.941443699 Ex-CT(GD) Ram Krishna Sahu of 24 Bn, CRPF on his re-instatement shall be treated as period NOT SPENT ON DUTY 9DIES NON0 for all purposes except for pension in terms of Sub-Rule 5 of FR-54. The past service rendered by him prior to date of removal from service shall also not be forfeited.
(iii) I also propose to regularize his pay and other allowances for the intervening period between the date of his removal from service and the date of his re-instatement into service in terms of FR-54(4) equal to 50% of pay and allowances admissible as subsistence allowance under FR-53, for which I allow him 30 days time from the date of receipt of this order to submit representation, if any. If no representation is received within the stipulated time, his pay and allowances shall be regularized as above.
(iv) The period of overstayal of leave in r/o the individual for 138 days from 28.1.98 to 14.6.98 is treated/regularized as extra-
ordinary leave.
(v) Regularization of his 7 days CL period from 17.1.98 to 27.1.98 with permission to avail 18.1.98, 25.1.98, 23.1.98 and 26.1.98 being Sunday, RH and GH respectively as 11 days EL ordered by Commandant, 24 Bn., CRPF vide order No.P/VIII-10/98- 24-Estt-II dated 15.1.99 will however remain unchanged.
(vi) Penalty of stoppage of increment for 2 years with cumulative effect is imposed on No.941443699 Ex-CT(GD) Ram Krishna Sahu of 24 Bn, CRPF for the charges leveled and proved against him in the Departmental Enquiry."
13The order dated 14.1.2000 has been communicated to the petitioner in his residential address with direction to rejoin his duties in 24 Bn, CRPF within 30 days and also submit representation, if any, regarding regularization of his pay and allowances.
The said order has been communicated to the appellate authority as well as the disciplinary authority. The order which was sought to be communicated to the petitioner has not been communicated, hence the Inspector General of Police, Western Sector, CRPF, Navi Mumbai passed order dated 17.7.2000 on the basis of the communication of the S.P., Berhampur who has communicated vide letter No.338/VR/IB dated 15.6.2000 by which copy of the order dated 14.1.2000 has been returned with the report stating that the order could not be served as the individual was by Nuagaon P.S. on 20.1.2000 in connection with murder of 2 persons and taking away gold ornaments at his village and a case No.87 dated 10.10.1999 has been filed against him under section 396 of I.P.C. and forwarded to Court in custody on 21.1.2000 and now he is in jail custody at Berhampur Circle Jail.
The revisional authority, taking into consideration the fact that the petitioner was in jail custody on the charge of murder, has passed order that he cannot be reinstated in to service as ordered vide order dated 14.1.2000 accordingly the same has been cancelled, the order of imposing punishment of removal from service on the petitioner has been restored. In compliance to the order dated 12.7.2000 the disciplinary authority has communicated the same to the petitioner vide order dated 31.12.2001 stating the reason of restoration of the order of punishment of removal from service.
1412. The order dated 31.12.2001 is under challenge on the ground that the revisional authority has got no jurisdiction to review its own order since power of review is to be exercised only if provided to the authority under the Statute but in the CRPF Act,1949 and its Rules,1955, there is no provision to review the decision taken by the authority in exercise of revisional power, hence the order dated 31.12.2001 under Annexure-9 which has been communicated to the petitioner on the strength of the decision taken by the revisional authority dated 12.7.2000 is without jurisdiction.
The legal proposition in this regard is not in dispute. The authority cannot exercise its power of review or revision if not provided in the statute, Reference in this regard may be made to the judgment rendered in the case of Surendra Mohan Arora -vs- HDFC Bank Ltd. and others, AIR 1914 S.C. 2871 wherein the Hon'ble Apex Court held:
"It is trite law that unless the power of review is specifically conferred by the statute, there cannot be any inherent power of review."
13. In the light of the said proposition this Court has examined the statutory provision of the Central Reserve Police Force Act and Rules wherein power of revision has been conferred to the revisional authority under Rule 29 of the CRPF Rules,1955, the provision is:
"Revision.--
(a) A member of the Force whose appeal has been rejected by a competent authority may prefer petition for revision to the next Superior Authority. The power of revision may be exercised only when in consequence of some material irregularity, there has been injustice or miscarriage of justice or fresh evidence is disclosed.
(b) The procedure prescribed for appeals under sub-rules (c) to (g) of rule 28 shall apply mutatis mutandis to petitions for revision.
(c) The next superior authority while passing orders on a revision petition may at its discretion enhance punishment:15
Provided that before enhancing the punishment the accused shall be given an opportunity to show cause why his punishment should not be enhanced:
Provided further that an order enhancing the
punishment shall, for the purpose of appeal, be treated as an
original order except when the same has been passed by the Government in which case no further appeal shall lie, and an appeal against such an order shall lie--
(i) to the Inspector General, if the same has been passed by the Deputy Inspector General; and
(ii) to the Director General if the same has been passed by the Inspector General; and
(iii) to the Central Government, if the same has been passed by the Director General.]
(d) [The Director General or Additional Director General or the Inspector-General or the Deputy Inspector General may call for the records of award of any punishment and confirm, enhance, modify or annual the same, or make or direct further investigation to be made before passing such orders:
Provided that in a case in which it is proposed to enhance punishment, the accused shall be given an opportunity to show cause either orally or in writing as to why his punishment should not be enhanced."
It is evident from the provision as contained in Rule 29 of the CRPF Rules,1955 the revisional authority has got power to take decision upon the order passed by the appellate authority only when in consequence of some material irregularity, there has been injustice or miscarriage of justice or fresh evidence is disclosed.
Learned counsel for the opposite parties, Union of India has failed to point out any provision under the statute the power of review conferred upon the disciplinary authority or the appellate authority or the revisional authority.
In view thereof and in view of the settled proposition of law as stated above, the decision which has been communicated to the petitioner dated 31.12.2001 as per the order dated 12.7.2001 is held to be not sustainable in the eye of law being without jurisdiction, hence quashed.16
14. The question now is that what relief the petitioner is entitled to get.
There is no dispute about the fact that the petitioner was in custody at the relevant time in connection with criminal case in which judgment was delivered on 20.7.2001 wherein the petitioner has been acquitted of the charge as would be evident from para-15 of the judgment (S.C.No.3/2001 of the court of 1st Addl.Sessions Judge, Berhampur) wherein the trial court held as quoted herein below:
"In the result, for the reasons aforesaid, I am inclined to hold that the prosecution has miserably failed to prove the charge against the accused persons. Accordingly, the accused persons are held not guilty of the office under Sec.396 I.P.C. and are acquitted of the said charge under section235(1) Cr.P.C. They be set at liberty forthwith if not wanted in any other case. xxx "
This Court has not gone into the legality and propriety of the order passed by the revisional authority since the same is not the issue raised in the writ petition.
15. In that view of the matter, since the decision of the revisional authority which has been communicated to the petitioner vide order dated 31.12.2001 under Annexure-9 has been quashed by this Court, hence the petitioner is entitled to get the benefit of order passed by the revisional authority dated 14.1.2000, accordingly the disciplinary authority is directed to take consequential steps in pursuance to the order passed by the revisional authority within four weeks from the date of receipt of copy of this order.
With the aforesaid observation and direction, the writ petition stands disposed of.
.......................
S.N. Prasad, J.
Orissa High Court, Cuttack, Dated the 31st August,2017/Palai