Himachal Pradesh High Court
Sh. Khiali Ram vs Union Of India And Others on 27 May, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 3080 of 2009
Date of Decision: 27.05.2016
______________________________________________________________________
.
Sh. Khiali Ram ......Petitioner.
Vs.
Union of India and others
.....Respondents.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
of
Whether approved for reporting?1 Yes.
For the petitioner: Mr. M.A. Sofee, Advocate, vice Mr.
Onkar Jairath, Advocate.
For the respondents:
rt Mr. Ashok Sharma, ASGI, with Mr.
Angrez Kapoor, Advocate.
Ajay Mohan Goel, J. (Oral) :
The present petition has been filed praying for the following reliefs:
"(i) To quash and set-aside the impugned order at Annexure "P-5' dated 15th June, 2008 passed by Commandant, Central Industrial Security Force, Unit ECL, Sheetalpur-Respondent No. 4 while not confirming the findings of the Enquiry Officer as contained in his Enquiry Report at Annexure 'P-2' by issuing writ of Certiorari.
(ii) To further quash & set-aside the impugned order dated 08.10.2008 at Annexure P-7 passed by the Respondent No. 3-Deputy Inspector General of Central Industrial Security Force, NEZ (Ministry of Home), Kolkata by issuing writ of certiorari.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 20:28:52 :::HCHP 2(iii) To command the respondents to reinstate the petitioner wihth all consequential benefits including back salary for the period of his forced unemployment w.e.f. 16.06.2008 with interest @ 12% per annum on the arrears of pay & allowances till final payment by .
issuing writ of mandamus.
(iv) That the entire relevant record of the case may kindly be ordered to be summoned from the respondents for kind perusal of this Hon'ble Court.
(v) That the cost of the petition may kindly be of awarded in favour of the petitioner and against the respondents.
(vi) That any other order, which the Hon'ble Court may deem fit, just and proper in facts & circumstances rt of the case may also, be passed in favour of the petitioner and against the respondents."
2. When the case was taken up for hearing, two preliminary objections were taken with regard to the maintainability of the writ petition on behalf of the respondents. According to the respondents, this Court has no jurisdiction to adjudicate upon the present petition on merits as no cause of action has accrued within the territorial jurisdiction of this Court. The second objection taken by the respondents is that there is an alternative remedy available with the petitioner to challenge the order passed by the appellate authority under Section 9(3) of the Central Industrial Security Force Act, 1968 and the petitioner has filed the present writ petition without availing the alternative remedy available to him.
::: Downloaded on - 15/04/2017 20:28:52 :::HCHP 33. Learned counsel for the petitioner has argued that the present petition is maintainable before this Court as some part of cause of action has accrued within the territorial jurisdiction of this Court.
According to him, feeling aggrieved by the order passed by the .
disciplinary authority, the petitioner had preferred an appeal to the respondents/competent authority which was addressed from Sarkaghat where he resides, i.e. within the territorial jurisdiction of this Court and the factum of rejection of his appeal has been communicated by the of respondents to him at Sarkaghat. This is apparent from the perusal of Annexure P-6 which is copy of appeal filed by the petitioner dated rt 09.07.2008 and the order passed by the appellate authority on the said appeal dated 08.10.2008 (Annexure P-7). Learned counsel for the petitioner has further argued that there was no efficacious and alternative remedy available to the petitioner against the order passed by the disciplinary authority and accordingly, he had rightly invoked the writ jurisdiction of this Court.
4. I have heard the learned counsel for the parties and also perused the records available on the writ file.
5. In my considered view, there is no merit in the contention of the learned counsel for the respondent that this Court has no jurisdiction to entertain the present writ petition on the ground that no cause of action has accrued within the territorial limit of this Court. The appeal which was filed by the petitioner against the order passed by the disciplinary authority dated 15th June, 2008 is on record as Annexure P-
6. A perusal of the said document demonstrates that it has been ::: Downloaded on - 15/04/2017 20:28:52 :::HCHP 4 addressed by the petitioner Khiali Ram from his native village, i.e. Village Giun, Tehsil Sarkaghat, District Mandi, H.P. to the appellate authority.
Not only this, Annexure P-7 dated 8th October, 2008 passed by the appellate authority has been communicated to the petitioner at his .
address in Himachal Pradesh, i.e. Village and Post Office Giun, Tehsil Sarkaghat, District Mandi, H.P.
6. The expression 'cause of action' is defined in Mulla's Code of Civil Procedure as under:
of "The 'cause of action' means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the rt Court."
7. Therefore, 'cause of action' is nothing but a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant.
8. In the present case, in order to demonstrate the chain of events, it was also necessary for the petitioner to have demonstrated from where he has filed the appeal and where said order has been communicated to him. Admittedly, the appeal has been filed by the petitioner from his Village which is situated within the territorial jurisdiction of this Court and the order of rejection of his appeal has also been communicated to him at his village which is situated within the territorial jurisdiction of this Court. Therefore, some part of cause of action has taken place in Himachal Pradesh.
::: Downloaded on - 15/04/2017 20:28:52 :::HCHP 59. The Hon'ble Supreme Court in Nawal Kishore Sharma Vs. Union of India and others (2014) 9 Supreme Court Cases 329 has held as under:
"16. Regard being had to the discussion made .
hereinabove, there cannot be any doubt that the question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limit of any High Court has to be decided in the light of the nature and character of the proceedings under of Article 226 of the Constitution. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court's rt jurisdiction.
17. We have perused the facts pleaded in the writ petition and the documents relied upon by the appellant. Indisputably, the appellant reported sickness on account of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment. Finally, the respondent permanently declared the appellant unfit for sea service due to dilated cardiomyopathy (heart muscles disease). As a result, the Shipping Department of the Government of India issued an order on 12.4.2011 cancelling the registration of the appellant as a seaman. A copy of the letter was sent to the appellant at his native place in Bihar where he was staying after he was found medically unfit. It further appears that the appellant sent a representation from his home in the State of Bihar to the respondent claiming disability compensation. The said representation was replied by the respondent, which ::: Downloaded on - 15/04/2017 20:28:52 :::HCHP 6 was addressed to him on his home address in Gaya, Bihar rejecting his claim for disability compensation. It is further evident that when the appellant was signed off and declared medically unfit, he returned back to his home in the District of Gaya, Bihar and, thereafter, he .
made all claims and filed representation from his home address at Gaya and those letters and representations were entertained by the respondents and replied and a decision on those representations were communicated to him on his home address in Bihar. Admittedly, of appellant was suffering from serious heart muscles disease (Dilated Cardiomyopathy) and breathing problem which forced him to stay in native place, wherefrom he had been making all correspondence with rt regard to his disability compensation. Prima facie, therefore, considering all the facts together, a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation.
18. Apart from that, from the counter affidavit of the respondents and the documents annexed therewith, it reveals that after the writ petition was filed in the Patna High Court, the same was entertained and notices were issued. Pursuant to the said notice, the respondents appeared and participated in the proceedings in the High Court. It further reveals that after hearing the counsel appearing for both the parties, the High Court passed an interim order on 18.9.2012 directing the authorities of Shipping Corporation of India to pay at least a sum of Rs.2.75 lakhs, which shall be subject to the result of the writ petition. Pursuant to the interim order, the respondent Shipping Corporation of India remitted Rs.2,67,270/- (after deduction of income ::: Downloaded on - 15/04/2017 20:28:52 :::HCHP 7 tax) to the bank account of the appellant. However, when the writ petition was taken up for hearing, the High Court took the view that no cause of action, not even a fraction of cause of action, has arisen within its territorial jurisdiction.
.
19. Considering the entire facts of the case narrated hereinbefore including the interim order passed by the High Court, in our considered opinion, the writ petition ought not to have been dismissed for want of territorial jurisdiction. As noticed above, at the of time when the writ petition was heard for the purpose of grant of interim relief, the respondents instead of raising any objection with regard to territorial jurisdiction opposed the prayer on the ground that the rt writ petitioner- appellant was offered an amount of Rs.2.75 lakhs, but he refused to accept the same and challenged the order granting severance compensation by filing the writ petition. The impugned order, therefore, cannot be sustained in the peculiar facts and circumstances of this case.
20. In the aforesaid, the appeal is allowed and the impugned order passed by the High Court is set aside and the matter is remitted to the High Court for deciding the writ petition on merits."
10. In view of the above discussion and the judgment of the Hon'ble Supreme Court (supra), the preliminary objection taken by the petitioner with regard to the maintainability of the case on the ground that no cause of action has accrued within the territorial jurisdiction of this Court is rejected.
11. Now coming to the second objection taken by the petitioner with regard to the maintainability of the petition on account of the ::: Downloaded on - 15/04/2017 20:28:52 :::HCHP 8 petitioner having not availed the alternative remedy available to him, this Court finds considerable force in the said objection.
12. Section 9(3) of the Central Industrial Security Force Act, 1968 reads as under:
.
"9. Appeal and revision-..(3) The Central Government may call for and examine the record of any proceeding under section 8, sub-section (2), sub-section (2A) or sub-section(2B) of this section and may make such inquiry or cause such inquiry to be made and of subject to the provisions of this Act, may pass such order thereon as it thinks fit:
Provided that no order imposing an
rt
enhanced penalty under sub-section (2) or sub-section (3) shall be made unless a reasonable opportunity of being heard has been given to the person affected by such order."
13. Admittedly, in the present case, the petitioner has filed the present petition without availing the alternative remedy available to him.
In fact, a perusal of paragraph-10 of the petition will demonstrate that it is simply stated in the same that the petitioner has no other efficacious remedy except to approach this Court by way of filing the present writ petition. In rejoinder, the reply which has been filed by the petitioner to the said preliminary objection taken by the respondent is also evasive.
Learned counsel for the petitioner otherwise could not satisfy this Court as to why this Court should invoke its extraordinary jurisdiction and adjudicate upon the present petition on merits when admittedly there is an alternative and efficacious remedy available to the petitioner.
::: Downloaded on - 15/04/2017 20:28:52 :::HCHP 914. Faced with this situation, learned counsel for petitioner submitted that the petitioner may be permitted to withdraw the present writ petition with liberty to avail whatever alternative remedy is available to him. He further prays that this Court may also grant protection to the .
petitioner with regard to limitation, keeping in view the fact that he was bonafidely pursuing the matter in this Court.
15. This Court is of the considered view that in order to impart substantive justice between the parties, no prejudice shall be caused to of the respondents in case the petitioner is permitted to withdraw the present writ petition with liberty to avail alternative remedy available to
16. rt him in accordance with law.
Accordingly, the present petition is permitted to be withdrawn with liberty granted to the petitioner to avail alternative remedy available to him under the provisions of the Central Industrial Security Force Act, 1968. It is further directed that in case any such revision etc. is filed by the petitioner within a period of eight weeks from today, then the concerned authority shall adjudicate the same on merits without entering into the question of limitation etc.
17. With the said observations, the present petition is disposed of. No order as to costs.
(Ajay Mohan Goel) Judge May 27, 2016 (bhupender) ::: Downloaded on - 15/04/2017 20:28:52 :::HCHP