Jammu & Kashmir High Court
Union Of India (Uoi) And Anr. vs Narinder Singh Mehta (Brigadier) on 25 June, 1996
Equivalent citations: 1997CRILJ719
Author: R.C. Gandhi
Bench: R.C. Gandhi
JUDGMENT M. Ramakrishna, C.J.
1. This letters patent appeal is directed against the order made by a learned single Judge in OWP No. 745/1995, by which the learned single Judge by an order made on 24-4-1996 held.
The writ petition would accordingly survive and proceed and it would be for the parties to seek its disposal on merits on the motion hearing Stage or alternatively to argue for its formal admission to hearing. Additional Registrar to post the writ petition immediately after vacations for appropriate orders. This goes to show that the appellant, Union of India and its (Legal Cell) having raised certain preliminary objections regarding maintainability of the writ petition, as on the date the writ petition was presented before this Court, the learned single Judge having heard learned counsel on both the sides held as above, providing detailed reasons for doing so.
2. It is seen by a perusal of the interlocutory order made by the learned single Judge in the writ petition, that when the writ petition came up for admission before the writ court, a preliminary objection had ' been raised on behalf of the Union of India regarding the maintainability of the writ petition and the ; jurisdiction of this court to entertain such writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir on the following facts:
Writ petitioner was Commandant of 20 Infantry . Brigade at Itrana (Alwar) Rajasthan and posted there on July 16,1990, but on 24-1-1993, he was transferred and posted as D.I.G. Assam Rifles, Mizoram. It-would appear that there was a complaint received against him by the Competent Authority which led to the setting up of a Staff Court of Inquiry. Petitioner having appeared before the Staff Court of Inquiry (SCOI), thereafter he was ordered to be attached on . 10-9-1993. He was served with a charge sheet on 3-10-1993 and was allegedly made to sign on a pro forma under Rule 22 of the Army Rules, hereinafter referred to as 'the Rules', at which time the petitioner has asked for investigation to be conducted in accordance with Rule 22. Later, the summary of evidence was ordered to be recorded against him which led to the convening of General Court Martial (GCM) by an order made on 17-1-1994. A charge sheet was served on him on 9-1-1994 for allegedly having committed offences Bunder Section 63 of the Army Act, 1950, hereinafter .referred to as 'the Act' and he was eventually convicted and sentenced by the GCM to (a) forfeiture of three years service for promotion -(b) forfeiture of three years post service for pension and (c) severe reprimand.
3. The petitioner having been aggrieved by the said punishment, presented a petition (pre-confirmation petition) against the conviction and sentence which was dismissed by the Competent Authority on 19-2-1994 and the sentence against him was promulgated on 3-10-1994. In the meanwhile the petitioner had been transferred and posted as Dy. G.O.C., 10-Infantry Division, Akhnoor in Jammu and Kashmir State on 10-10-1994 from where, he filed a post-confirmation appeal under Section 164 of the Army Act on 23-10-1994. That petition came to be rejected and a communication was sent to him on 31-8-1995 which the petitioner received admittedly within the territorial jurisdiction of this Court.
4. Being aggrieved by the said communication, the writ petitioner presented OWP No. 745/1995 challenging the correctness and legality of that communication sent by the Competent authority (Central Government) dealing with the post-confirmation appeal on the grounds taken in the writ petition.
5. Since a preliminary objection was raised before the writ court on behalf of the Union of India, the learned single Judge had to deal with the said preliminary objection, the nature of the objection raised on behalf of the Union of India (appellant) was that the G.C.M. had been constituted and it was convened on 17-1-1994 and the charge was served on the petitioner (respondent) on 9-1-1994 and that a finding was recorded that the petitioner committed offence under Section 63 of the Army Act and eventually he was convicted passing an order of : sentence as heretofore stated, while the writ petitioner was serving in the State of Rajasthan, therefore, the jurisdiction lies with the Rajasthan High Court and not in the High Court of Jammu and Kashmir. This j was opposed by the writ petitioner.
6. Dealing with the question of jurisdiction, the learned single Judge passed a detailed order of 13 pages holding that this Court had the jurisdiction to maintain the writ petition on the ground that as on the date of receipt of communication sent by Post-confirmation authority and received by the petitioner while he (petitioner) had been serving in Akhnoor within the State of Jammu and Kashmir, therefore, in the nutshell the learned single Judge held that this court had jurisdiction to maintain the writ petition as against that order of post-confirmation authority under Section 164(2) of the Army Act. It is this order that is called in question in this LPA.
7. We have heard Mr. Sunil Sethi learned counsel for the appellant and Mr, Goni, learned counsel for the respondent-writ petitioner.
8. The thrust of the argument advanced by Mr. Sethi learned counsel for the appellants is that Section 164 deals only with the remedy against the findings and sentence of Court Martial, but the real order of conviction recorded by the G.C.M. was while the writ petitioner had been serving in Rajasthan and that the G.C.M. having been convened in Rajasthan and after recording the finding, holding the writ petitioner guilty of the offence under Section 63, he had been sentenced within the jurisdiction of the Rajasthan High Court, therefore the mere communication sent by the, post-confirmation authority will not give rise to the cause of action enabling the writ petitioner to maintain the writ petition, before this Court. He placed reliance upon the judgment of the Supreme Court in AIR 1985 SC 1289. Indeed this was the argument advanced before the learned single Judge, who having considered the same rejected this contention. It has been reiterated before us in the appeal as well.
9. Let us first see, to begin with, whether the communication sent by the post-confirmation authority which was received by the writ petitioner (respondent) on 31-8-1995 while he was serving as Dy. G.O.C. 10-Infantry Division Akhnoor within the State of Jammu and Kashmir, would give rise for a cause of action.
10. Section 20 of the Civil Procedure Code lays down as follows:
20. Other suits to be instituted where defendants reside or cause of action arises. - Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction.-
(a) the defendant, or each of the defendants where ' there are more than one, I at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or 1
(b)...;or
(c) the cause of action, wholly or in part, arises.
11. Dealing with a similar question the Karnataka High Court had occasion to record a finding in D. Munirangappa v. Amidayala AIR 1965 Mysore 316. Wherein the Karnataka High Court said, Even an infinitesimal fraction of a cause of action is 'part' of it.
That means accruing of a part of cause of action is sufficient to maintain a suit. I
12. Similar view was taken by the Madras High Court in Karur Vysia Bank v. Ramchandra AIR 1974 Mad 209.
13. Let us presume for purposes of argument that regard being had to the GCM having beep convened and finding had been recorded convicting the writ petitioner in the State of Rajasthan, in regard to that part of the cause of action, the writ petition is maintained in the Rajasthan High Court. But regard being had to the subsequent communication made in 'post-confirmation proceedings, the communication having been sent to the petitioner at the time while he was serving in the State of Jammu and Kashmir, in regard to that part of cause of action the writ petition is maintained in this court. Therefore where the cause of action gives rise to a litigant to file a suit in two courts having jurisdiction, in that event the choice of the forum is with the plaintiff. (Velupillai v. Gopala AIR 1974 Ker 27).
14. English Courts had occasion to deal, with the question referring to Common Law Procedure Act made applicable to English Courts, it is held that the cause of action in the Section (Order 11, Rule 1) did not mean the whole cause of action, but meant "the act on the part of the defendant which gave the plaintiff his cause of complaint" (please see Vaughan v. Weldon, LR 10 CP 47) or, in other words, the act or omission constituting the violation of Duty complained of (as per Fitzgerald J.) in Macken v. Ellis, Ir Rep 8 CL 151.
15. Therefore in the light of the foregoing, it is undoubtedly made clear that even a part of a cause of action giving rise for a complaint by the aggrieved person, he can maintain the suit in the court within ; whose jurisdiction that part of the cause arose. In other words since the communication of the post-confirmation authority (Central Govt.) which was sent and received by the petitioner on 31-8-1995 while he was working a Dy. GCO within the State of Jammu and Kashmir, that communication certainly gives rise to cause of action, if not whole, but part of case of action by virtue of which he can maintain in the writ petition before this Court.
16. Another aspect of the matter which we have got to consider is that Section 164 of the Army Act lays down as follows: ;
164. Remedy against order, finding or sentence of court-martial. - Any person subject to this Act who considers himself aggrieved by any order passed by any court-martial may present a petition to the office or authority empowered to confirm any finding or sentence of such court -martial and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.
Sub-section 2 of Section 164 lays down:
Any person subject to this Act who considers himself "aggrieved by a finding or sentence of any .court -martial which has been confirmed, may present i. e petition to the Central Government, (the Chief of the Army Staff) or other officer, as the case may be may pass such orders thereon as it or he thinks fit.
17. It is not in dispute that the writ petitioner respondent) having approached the Central Government with a petition under Section 164(2) as against the confirmation of the sentence passed against him by the Competent authority, the Central Government which is Post affirming authority having held against him, sent a communication to him on 31-8-1995, which means the Central Government Having exercised jurisdiction under sub-section 2 of Section 164 as post affirmation authority rejected; the representation (petition) of the writ petitioner and thereby the order of the original authority namely the convicting authority has been merged with the order of post affirming authority (Central Government). Regard being had to the doctrine of Merger, the former order having merged with the latter, it is that order (latter) that is called in question in the writ petition. | '
18. One more aspect is required to be noticed in this behalf. Regard being had to the scheme of Section 164 of the Army Act, 1950, Sub-section (1) deals with the right of a person said to have been aggrieved who could (avail the benefit of that section and subsection (2) provides a right of any person said to have been aggrieved to enable him to present . to the Central Government against such sentence that is sought to be confirmed by post affirming authority. Secondly there is no provision to enable such person to file an appeal against such an order to the Central Government in exercise of the powers under Section 64; which means the right that is conferred upon an aggrieved person, in the absence of any appeal provision under: the scheme of the Act, must be construed to be a power Conferred upon the Central Government, as though that authority is exercising the power of appellate authority to pass an order affirming such sentence or finding by; virtue of the powers; conferred on that authority as post .confirmation'? authority. Therefore the Court will have to construe that in the absence of a special provision having been provided under the scheme to enable an aggrieved person to present an appeal against ,the order of Central Govt. in exercise of powers under .Section 164, the legislation intended that the Central Govt. had been acting as though it is an appellate authority as against the finding or sentence by the original authority.
19. In this connection the Court will have to see that by virtue of the law laid down by the Supreme Court in Somnath Sahu v. State of Orissa 1969 (3) SCC 384 wherein the principle laid down by the Supreme Court is that, As a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate! decision alone which is subsisting and is operative and capable of enforcement.
20. Therefore in the light of the foregoing there is no difficulty to hold that the order of the original authority passing! a sentience or recording a finding against the aggrieved person has merged with the order of confirming authority (Central Government) in the instant case. Therefore the writ petitioner was right in moving .this Court, since he received the communication, order of post confirmation made by the Central Government, while he had been serving in the State of Jammu and Kashmir. Therefore the cause of action arises within the jurisdiction of this Court,
21. Secondly in view of the Doctrine of Merger, in the absence of any appeal provision under the scheme of the Act, there is no alternative for the petitioner but to approach this court under Article 226 of the Constitution. In that view of the matter the (submission of Mr. Sethi is of no assistance. Reliance placed by him on AIR 1985 SC 1289 is of no assistance to the appellants. '
22. In this view of the matter the learned single Judge 'recorded a finding referring to Doctrine of Merger. There is no difficulty for us to endorse his opinion on the Doctrine of Merger as attracted. this is another ground for recording a finding against the appellants-Union of India.
23. In view of the foregoing we do not see any good ground to interfere; with the order of the learned single Judge in appeal. The appeal stands dismissed. Parties to bear their own costs.