Punjab-Haryana High Court
M.M. Thapar vs Union Of India And Others on 13 October, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Civil Writ Petition No. 14393 of 2000 1
In the High Court of Punjab and Haryana, at Chandigarh.
Civil Writ Petition No. 14393 of 2000
Date of Decision: October 13, 2010
M.M. Thapar
...Petitioner
Versus
Union of India and Others
...Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Parveen Gupta, Advocate
for the petitioner.
Mr. Swaran Sandhir, Advocate
for Mr. Ajay Kaushik, Advocate
for respondents No.1 and 2.
None for respondents No.3 and 4.
Kanwaljit Singh Ahluwalia, J.
The petitioner, a Commissioned Officer, who was employed as a Commandant in the Central Industrial Security Force (hereinafter referred to as "CISF"). He was terminated from service, therefore, in the present writ petition, he has sought quashing of the order of dismissal from service dated 29.1.1999 (Annexure P1) and the order dated 26.10.1999 (Annexure P3), whereby the Appellate Authority had dismissed the appeal-cum-revision petition and had upheld the order (Annexure P1). The order of dismissal was passed in consultation with the Union Public Service Commission.
Briefly stated, the petitioner, on 10.9.1994, was posted as the Civil Writ Petition No. 14393 of 2000 2 Commandant, CISF Unit-BSL, Bokaro. He was served with a Charge Sheet dated 4.4.1995. Article No.I of the charge stated that on 10.9.1994 between 1515 hours to 1530 hours, pressurized and influenced the other CISF personnel of the Unit to commit pilferage of 20 pieces of steel plates and two numbers of iron rollers of Bokaro Steel Plant through Mansa Singh and the same amounted to gross misconduct and indiscipline. Article No.II stated that the petitioner, while functioning as Commandant, on 14.9.1994, was called for by Kishore Kunal, IPS, Deputy Inspector General (NEZ)/CISF, Patna, to give his version of the incident involving unauthorizedly taking out 20 pieces of steel plates and two numbers of iron rollers from the Steel Plant and when confronted with the evidence, the petitioner had not only shouted at him but had also made threatening gesture and showed intemperate conduct, just short of physical assault which amounted to indiscipline and gross misconduct undesirable on the part of the officer of the petitioner's status in a disciplined force like CISF.
Before this Court could consider the contentions raised in the writ petition, a preliminary issue has arisen for consideration of this Court, as to whether this Court has the jurisdiction to entertain and decide the present writ petition.
Admittedly, the incident had taken place at Bokaro Steel Plant, Patna. The order of dismissal was passed when the petitioner was posted in Andhra Pradesh. The jurisdiction of this Court is invoked only on the ground that after dismissal, the petitioner had settled at Ludhiana. It is further stated that this Court has got the territorial jurisdiction because the order of dismissal was received by the petitioner at Civil Writ Petition No. 14393 of 2000 3 Ludhiana. Learned Single Judge of this Court, in CT Sanjay Singh v. Union of India and Others (Civil Writ Petition No. 13728 of 2010, decided on 20.8.2010, came to the conclusion that in the facts and circumstances, which are similar to the case of the petitioner, this Court has no territorial jurisdiction to entertain and decide the writ petition. It will be apposite here to quote extensively below, from the above said judgment:
"...The Constitutional Bench of the Hon'ble Supreme Court in the case of Lt. Col. Khajoor Singh, Appellant v. Union of India and another, Respondents, AIR 1961 Supreme Court 532 has laid down, that it is not permissible to read in Article 226, the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court's jurisdiction.
In the case of Ex. Sepoy Surinder Singh Vs. Union of India and others (supra) this Court laid down, that even if the expanded meaning is given to the concept of "cause of action", still it would be the Hon'ble High Court within whose territorial jurisdiction the authority decided the Civil Writ Petition No. 14393 of 2000 4 representation, will have the jurisdiction to entertain the writ petition, and not the High Court where it is communicated.
Finally, reliance was placed on the Division Bench judgment of this Court in the case of Harvinder Singh Vs. Food Corporation of India 2003(2) SCT 706, wherein it was laid down, that mere communication of order is not a cause of action, to clothe the Court with jurisdiction to entertain and try the writ petition.
On consideration of the contentions and law laid down by the Hon'ble Supreme Court, and this Court the only conclusion, which can be arrived at, is :-
1. The High Court can exercise the writ jurisdiction with relation to the matter, the cause of action of which, wholly or in part arises within its territorial jurisdiction.
2. For the purpose of deciding whether facts averred by the petitioner would or would not constitute a part of cause of action, one has to consider whether such facts constitute a material, essential or integral Civil Writ Petition No. 14393 of 2000 5 part of cause of action. In determining the said question the substance of the matter and not form thereof is to be considered. Even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court would have territorial jurisdiction to entertain the suit / petition, but it must be an integral part of cause of action, nothing less than that.
The facts pleaded in the petition must form the part of integral cause of action.
3. The mere communication of the order would not give territorial jurisdiction to the Court to entertain and try the writ petition.
4. In case of claim of pensionary benefits, the Court where the petitioner is residing would have the territorial jurisdiction to entertain and try the writ, on the principle that the debtor has to Civil Writ Petition No. 14393 of 2000 6 find the creditor, and also for the reason that the pension would be payable at the place of residence of the claimant. This would itself constitute cause of action.
In view of the conclusion drawn above, all the writ petitions deserve to be dismissed for want of territorial jurisdiction. In the case of C.T. Sanjay Singh Vs. Union of India & others (CWP No. 13728 of 2010), the facts pleaded to constitute the territorial jurisdiction of this Court, referred to above, can not be said to be the integral part of cause of action or part thereof to clothe this Court with the territorial jurisdiction, as the facts pleaded can only be taken to be a defence of the petitioner, to action taken.
In other two writ petitions, the jurisdiction of this Court has been invoked merely on the plea, that the impugned orders were received by the petitioners within the territorial jurisdiction of this Court. This can not be said to be a cause of action giving territorial jurisdiction to this Court to deal with the matter.
For the reasons stated above, these writ petitions are dismissed for want of territorial Civil Writ Petition No. 14393 of 2000 7 jurisdiction, with liberty to the petitioners to file the writ petition in the competent Court having territorial jurisdiction to entertain and decide the lis raised..." I am in agreement with the ratio of law laid down in the judgment CT Sanjay Singh's case (supra) and hold that this Court has got no jurisdiction to try the present writ petition.
Another question which arises for consideration of this Court is that as to whether the present writ petition which was filed in October 2000 and was admitted on 19.10.2000 can be dismissed, after ten years for the reason that this Court has got no territorial jurisdiction. No objection regarding the territorial jurisdiction was taken in the written statement. To oust the petitioner after ten years on the technical ground that this Court has no jurisdiction to entertain the writ petition will be highly unjust. Therefore, this Court shall make an endeavour to examine the contention raised by learned counsel for the petitioner on merits also.
Learned counsel for the petitioner has submitted that in the present case, the departmental enquiry was conducted in the biased manner. Learned counsel for the petitioner has submitted that only security personnel of CISF were examined and no independent witness was examined. He has further submitted that the enquiry has been conducted by the officer of the rank of Deputy Inspector General, whereas the charge against the petitioner was that he had misbehaved with Kishore Kunal, IPS, who at the time of enquiry had become Inspector General. Therefore, the Enquiry Officer, who had become subordinate to the Inspector General, could not conduct the enquiry in a Civil Writ Petition No. 14393 of 2000 8 free and fair manner. It is further submitted that no valuable opportunity was provided to the petitioner to present his defence as the relevant documents were not supplied, therefore, the departmental enquiry was a farce. Furthermore, it is stated that the order whereby the review petition was dismissed is liable to be quashed as no speaking order was passed and the authorities have not considered the fact that the petitioner had rendered 29 years of service and the punishment of dismissal was highly unjust and uncalled for in the facts and circumstances of the case.
Now, it is well settled that this Court, while exercising the writ jurisdiction under Article 226 of the Constitution of India, is not to act as a Court of appeal but has only to examine whether a fair procedure has been followed and as to whether the principles of natural justice have been adhered to or not. In B.C. Chaturvedi v. Union of India and Others 1995(6) Supreme Court Cases 749, it was observed by the Hon'ble Apex Court as under:
"...(12) Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the Civil Writ Petition No. 14393 of 2000 9 inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the Civil Writ Petition No. 14393 of 2000 10 mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. (13) The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to re- appreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel, (1964)4 SCR 718 : (AIR 1964 SC
364), this Court held that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no Civil Writ Petition No. 14393 of 2000 11 evidence at all, a writ of certiorari could be issued.
(14) In Union of India v. S.L. Abbas, 1995(4) SCT 455 : (1993)4 SCC 357, when the order of transfer was interfered with by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not in such circumstances, interfere with orders of transfer of a Government servant. In Administrator of Dadra and Nagar Haveli v. H.P. Vora, 1993(1) SCT 124 : (1993) Supp 1 SCC 551, it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant.
Recently, in State Bank of India v.
Samarendra Kishore Endow, 1994(2) SCT 250 : JT (1994)1 (SC) 217 : (1994 AIR SCW 1465), a Bench of this Court of which two of us (B. P. Jeevan Reddy and B.L. Hansaria, JJ.) were members, considered the order of the Tribunal, which quashed the charges as based on Civil Writ Petition No. 14393 of 2000 12 no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would therefore, be clear that the Tribunal cannot embark upon appreciation of evidence by substitute its own findings of fact to that of a disciplinary/appellate authority..."
It was further held in Government of A.P. And Others v. Mohd. Narsullah Khan 2006(1) Service Cases Today 588 that the High Court, while exercising judicial review under Article 226 of the Constitution, does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct the errors, if any, resulting in manifest miscarriage of justice or violation of the principles of natural justice. Judicial review is not akin to adjudication on merits by re- appreciating the evidence as an Appellate Authority.
On the above said principles, this Court has to examine the order dated 29.1.1999 (Annexure P1), passed by the Deputy Inspector General (Personnel). The prosecution had examined 17 witnesses in this case. A truck bearing registration No. BHR-6744 loaded with the material was taken out of the Bokaro Steel Plant, unauthorizedly. The Union Public Service Commission, according to the order of dismissal, Civil Writ Petition No. 14393 of 2000 13 had observed as under:-
"...3.1.4 A departmental inquiry was, therefore, held. Based on the depositions of 17 prosecution witnesses and documents on record the Inquiry Officer has held that both the Articles of Charge levelled against the C.O., Shri M.M. Thapar, Comdt./CISF vide memo dated 4.4.1995 conclusively proved beyond doubt..."
It has also come on the record that the Enquiry Officer had rightly considered the evidence of the witnesses duly supported by the documentary evidence. The Union Public Service Commission, had observed as under:-
"...3.1.8. As regards the linkage of this incident with the C.O. and the charge that he pressurized/influenced junior officials under his command, does not rest solely on the statements made by all the CISF personnel concerned but also on the undisputed fact that Constable Kashmir Singh, together with a Civilian, one Sh.B.N. Singh visited the C.O. On 9.9.1994. There are witnesses who have testified to Sh. B.N. Singh and Constable Kashmir Singh visiting the C.O. in his office, the day before. Shri B.N. Singh was also in the truck when it was stopped at the Mansa Singh Gate on 10.9.1994. Constable Kashmir Singh also appears to have been a confidant of the C.O. inasmuch as Civil Writ Petition No. 14393 of 2000 14 he was trusted enough by the C.O. to carry a letter and a Bank Draft/cheque to the C.O's father in Jalandhar when the Constable went there on leave. The nexus between Kashmir Singh, B.N. Singh, the truck No. BHR-6744 and the C.O. appears to be quite clear in the welter of accusations and counter- accusations made in the process of the enquiry. The fact that subsequent to the incident, after the enquiry was started, Constable Kashmir Singh contacted the C.O. for help and that this is corroborated by another Constable, is also relevant...."
From the arguments advanced by learned counsel for the petitioner, it cannot be said that a fair procedure was not adopted or that any prejudice has been caused to the petitioner. A perusal of the order of termination and consideration given by the Union Public Service Commission, makes it evident that not only evidence led was sufficient to arrive at the conclusion, but due procedure, as required by law was also followed.
Hence, there is no merit in the present writ petition and the same is hereby dismissed, with no order as to costs.
(Kanwaljit Singh Ahluwalia) Judge October 13, 2010 "DK"