Jammu & Kashmir High Court
Dharam Pal vs Secy.Home Deptt.And Ors. on 21 October, 2016
Author: B. S. Walia
Bench: B. S. Walia
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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SWP No.2002/2012
Date of order : 21st October, 2016
Dharam Pal Vs. Secretary Home Department &
ors.
Coram:
Hon'ble Mr. Justice B. S. Walia, Judge
Appearing counsel:
For petitioner (s) : Mr. K. S. Chib, Advocate.
For respondent(s) : Mrs. Sindhu Sharma, ASGI.
i/ Whether to be approved for reporting : Yes.
in Digest/Journal ii/ Whether to be approved for reporting : Yes.
in Press/Media.
Judgment.,
1. Respondents in exercise of the power under Rule 26 of the Border Security Force Rules, 1969 (hereinafter referred to as 'the Rules') compulsorily retired the petitioner, a Constable in the Border Security Force from service vide order Annexure-C dated 12.09.2009 w.e.f. 30.09.2009 with pensionary benefits as admissible under Rule 40 of the CCS Pension Rules, 1972.
2. That vide Annexure-H-1 dated 06.05.2010, Commandant 20th BN BSF Jodhpur (Rajasthan), informed the petitioner of his having been granted compensation as admissible under Rule 40 of the CCS Pension Rules, 1972 but of his not being entitled to gratuity on account of imposition of punishment of compulsorily retirement w.e.f. 30.09.2009 on account of plural marriage.
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3. That in response to legal notice ( Annexure-D) dated 03.08.2010, respondent No.3, vide Annexure-E, informed the petitioner of non disbursal of post retiral benefits amounting to Rs.1,00,970/- on account of CGEGIS and Leave Encashment by the 20th BN Border Security Force pending decision regarding maintenance allowance payable to his wife in terms of the orders of the Judicial Magistrate 1st Class, Jammu and that the said amount would be paid on receipt of suitable Court orders.
4. That DIG SHQ BSF Bikaner Rajasthan also vide Annexure - H dated 14.05.2012 replied to legal notice dated 16th April, 2012 reiterating disentitlement of the petitioner to the benefit of retirement gratuity on account of imposition of penalty of compulsory retirement already intimated vide Annexure-H-1.
5. That prayers in the instant writ petition are for settlement of the retiral benefits, quashing of order Annexure-C dated 12.09.2009 compulsorily retiring the petitioner from service w.e.f. 30.09.2009 as also for the issuance of directions for release of gratuity and FA, besides for reinstating the petitioner.
6. Learned ASGI has raised preliminary objection regarding non maintainability of the writ petition on account of lack of territorial jurisdiction by contending that no part of the cause of action arose within the 3 territorial jurisdiction of the High Court of Jammu and Kashmir and in the alternative by way of abundant caution, of the writ petition not being maintainable in the absence of the petitioner having availed and exhausted the alternative statutory remedy of appeal against order of compulsory retirement, thirdly, of the writ petition qua challenge to the order of compulsory retirement being hit by delay and lachess, therefore, the writ petition deserving outright dismissal or in the alternative of the petitioner being liable to be relegated to approach the High Court having jurisdiction to entertain the petitioners writ petition or in the alternative, to relegate the petitioner to avail remedy of appeal.
7. Preliminary objection with regard to non maintainability of the writ petition before the High Court of Jammu and Kashmir merits acceptance for perusal of the order of compulsory retirement Annexure-C dated 12.09.2009 reveals that the same was passed by the Commandant 20th Bn. BSF at Jodhpur Rajasthan and was served on the petitioner who at that time was working in the 20th Bn. BSF, at Rajasthan. Thereafter communication Annexure-R-5 dated 06.05.2010 was issued by the Commandant 20 Bn. BSF Jodhpur (Rajasthan) intimating the petitioner of his disentitlement to the benefit of retirement gratuity due to penalty of 4 compulsory retirement having been imposed vide order Annexure-C dated 12.09.2009. No doubt the same was sent by registered post to the petitioner at his residential address in the State of Jammu and Kashmir. However, the Court of Enquiry ordered and conducted was by the 20 Bn. BSF at Punjab. Show cause notice, Annexure-A under No. Estt / 1018 / DP / 20Bn / 2009 / 13728 - 30 dated August 2009 was issued by the Commandant 20 Bn. BSF, Rampura, Fazilka, Punjab. Reply in response thereto was submitted by the petitioner to the Commandant 20 Bn. BSF which was considered by the competent authority and on not being satisfied with the explanation given by the petitioner, the petitioner was compulsorily retired from service with effect from 30.09.2009 under Rule 26 of the BSF Rules, 1969 with pensionary benefits as admissible under Rule 40 of the CCS Pension Rules, 1972 vide order Annexure-C dated 12.09.2009 by the Commandant 20 Bn. BSF at Jodhpur Rajasthan. Thus no part of the cause of action accrued within the State of Jammu & Kashmir.
8. Learned ASGI has relied on various decision's of the Hon'ble Supreme Court in support of the plea that since no part of the cause of action had occurred within the territorial jurisdiction of the High Court of Jammu and Kashmir, the writ petition filed by the petitioner was not 5 maintainable before the High Court of Jammu and Kashmir. Decisions relied upon are Oil and Natural Gas Commission (ONGC) vs. Utpal Kumar Basu & ors- (1994) 4 SCC 711, State of Rajasthan & ors. vs. Swaika Properties & ors-(1985) 3 SCC 217, Tilak Raj vs. Union of India & ors. Reliance has also been placed on 2011 (2) JKJ 800 wherein it was held that merely because order of dismissal issued from outside the State of J&K was communicated to the petitioner at his residence within the State of J&K, would not furnish cause of action to the petitioner to invoke the jurisdiction of the Courts in Jammu. Appeal against the aforementioned decision was also dismissed by the Hon'ble Division Bench. Similarly reliance has been placed on decision of this Court in Atal Bihari Vs. Union of India reported as 2008 (1) JKJ 53 as also the decision of Hon'ble Supreme Court in Aligarh Muslim University vs. Vinay Engineering Enterprises (P) Ltd- (1994) 4 SCC 710.
9. That relevant extract of the decision of the Division Bench of the High Court of Jammu and Kashmir in LPA(SW) No.194/2013 in case titled as Tilak Raj vs. Union of India & ors. is reproduced hereunder :-
'2. The learned Writ Court has concluded that no part of the cause of action has arisen within the territorial jurisdiction of this Court and has placed reliance on a judgment of this Court rendered in the case of Atal Behari Vs. Union of India & ors, 2008 (1) JKJ 53 (HC), which in 6 turn has followed the law laid down by various judgments of Hon'ble the Supreme Court including that of State of Rajasthan v. Swaika Properties, (1985) 3 SCC 217 holding that a mere communication of a notice would not give rise to any cause of action unless service of notice was integral part of cause of action. Likewise in Aligarh Muslim University v. Vinay Engineering Enterprises (P) Limited, (1994) 4 SCC 710 and National Textile Corporation Ltd. V. Haribox Sawalram and ors, JT 2004 (4) SC 508, it has been observed that mere fact that the writ petitioner received reply to the correspondence made by it at Calcutta would not constitute the integral part of cause of action, therefore, Calcutta High Court did not have the jurisdiction to maintain the writ petition. In the case of Union of India v. Adani Exports Ltd. And anr, AIR 2002 SC 126, similar question arose which was answered in the same manner as has been opined by the learned Writ Court.
3. In the present case the order dated 22.03.2003 passed by the Commandant 80 Battalion BSF Ramtirath, Amritsar (Punjab) has been communicated to the appellant- writ petitioner at his village R.S. Pura District Jammu Tawi. Even subsequent order dated 04.11.2003 has also been communicated to him at the same address which was passed by Head Quarters Punjab Frontier Border Security Force, Jalandhar Cantt. Accordingly the appeal does not merit admission and is thus liable to be dismissed.
4. For entertaining the appeal an application seeking condonation of 1072 days delay has also been filed.
Mrs. Surinder Kour, learned counsel for the appellant- writ petitioner has insisted that no hearing has been given to the appellant- writ petitioner, therefore, this Court would be competent to entertain the writ petition and the learned Writ Court has taken erroneous view. She has placed reliance on a Division Bench Judgment of this Court rendered in the case of Union of India v. Narinder Singh Mehta, 1996 KLJ 470. A perusal of the aforesaid judgment of the Division Bench would show that it was not a case of mere receipt of communication in the State of Jammu and Kashmir. The officer himself was posted in the State of Jammu and Kashmir. Moreover, Brig. Mehta was convicted by Court Martial at Alwar in Rajasthan. He filed post confirmation appeal under Section 164 of the Army Act. That appeal came to be rejected. He had already been promoted and posted as Dy. GOC, 10 Infantry Division Akhnoor and the order rejecting his appeal was communicated to him the State of Jammu and Kashmir where he was posted. It was in the aforesaid facts and circumstances that a part of cause of action had arisen to him in the State of Jammu and Kashmir and his writ petition was held to be maintainable in this Court. We are unable to persuade ourselves to accept the submission made by Mrs. Surinder Kour.' 7
10. That in Atal Bihari versus Union of India-2008 (1) JKJ 53 the question before the Hon'ble Supreme Court was as to whether communication of an order would amount to an integral or material fact necessary to constitute cause of action. Relevant extract of the aforesaid decision is reproduced hereunder :-
25. The question as to whether the communication of an order would amount to integral or material fact necessary to constitute cause of action, had fallen for consideration of Hon'ble Supreme Court of India in its various judgments. Reference to some of these judgments thus becomes necessary.
26. In State of Rajasthan v. Swaika Properties reported as , it was opined that mere service of notice would not give rise to any cause of action unless service of notice was integral part of action.
27. The Aligarh Muslim University v. Vinaxj Engineering Enterprises (P) Etd. reported as Hon'ble Supreme Court of India observed as follows:
'We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction. The contracts in question were executed at Aligarh, the construction work was to be carried out at Aligarh, even the contracts provided that in the event of dispute the Aligarh Court alone will have jurisdiction. The arbitrator was from Aligarh and was to function there. Merely because the respondent was a Calcutta-based firm, the High Court of Calcutta seems to have exercised jurisdiction where it had none by adopting a queer line of reasoning. We are constrained to say that this is a case of abuse of jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable.'
28. In National Textile Corporation Ltd. v. Haribox Swalram and ors. reported as , it was held as follows:
'As discussed earlier the mere fact that the writ petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta, is not an integral part of Action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained. In view of the above finding the writ 8 petition is liable to be dismissed.'
30. Similar view was taken by Hon'ble Supreme Court of India in Oil and Natural Gas Commission (ONGC) v. Utpal Kumar Basu and Ors. reported as (1994)4 ICC 711, where it was held as under:
11. Strong reliance was placed on the decision of this Court in the State of Rajasthan case by the learned Counsel for ONGC. The facts of that case reveal that the respondent-company having its registered office at Calcutta owned a large chunk of land on the outskirts of Jaipur. The Special Officer, Town Planning Department, Jaipur, at the instance of the Improvement Trust, Jaipur issued a notice intimating that the State Government proposed to acquire a large part of the said parcel of land for a public purpose, namely, implementation of a development scheme. The said notice was duly served on the respondents at their Calcutta office. The respondents thereafter participated in the inquiry and contended that they proposed to use the land for constructing a three star hotel. The Special Officer, however, felt that the alleged need of the respondents was just a pretence and the land was not needed bona fide by them, but the real object was to get the land released from acquisition. Consequently, the requisite final notification for the acquisition of the land was issued. Thereafter an attempt was made to seek exemption in regard to the notified land under Section 20 of the Urban lands (Ceiling and Regulation) Act, 1976, but in vain. Having failed to get the land released from acquisition, the respondents filed a writ petition under Article 226 of the Constitution n the High Court of Calcutta challenging the acquisition wherein rule nisi was issued and an ad interim ex parte prohibitory order was granted restraining taking of possession of the acquired land, etc. The question which arose for consideration in the backdrop of the said facts was whether the High Court of Calcutta had jurisdiction to entertain the petition and grant ex parte ad interim relief. This Court observed that upon the said facts, the cause of action neither wholly nor in part arose within the territorial limits of the Calcutta High Court and therefore the learned Judge had no jurisdiction to issue rule nisi or to grant the ad interim ex parte prohibitory order. After extracting the definition of the expression "cause of action" from Mulla's Code of Civil Procedure, this Court observed as under:
The mere service of notice under Section 52(2) of the Act on the respondents at their registered office at 18- B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating 9 in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench.
12. Pointing out that after the issuance of the notification by the State Government under Section 52(1) of the Act, the notified land became vested in the State Government free from all encumbrances and hence it was not necessary for the respondents to plead the service of notice under Section 52(2) for the grant of an appropriate direction or order under Article 226 for quashing the notification acquisition the land. This Court, therefore, held that no part of the cause of action arose within the jurisdiction of the Calcutta High Court. This Court deeply regretted and deprecated the practice prevalent in the High Court of exercising jurisdiction and passing interlocutory orders in matters where it lacked territorial jurisdiction. Notwithstanding the strong observations made by this Court in the aforesaid decision and in the earlier decisions referred to therein, we are distressed that the High Court of Calcutta persists in exercising jurisdiction even in cases where no part of the cause of action arose within its territorial jurisdiction. It is indeed a great pity that one of the premier High Courts of the country should appear to have developed a tendency to assume jurisdiction on the sole ground that the petitioner before it resides in or carries on business from a registered office in the State of West Bengal. We feel all the more pained that notwithstanding the observations of this Court made time and again, some of the learned Judges continue to betray that tendency. Only recently while disposing of appeals arising out of SLP Nos. 10065-66 of 1993, Aligrah Muslim University v. Vinay Engineering Enterprises (P) Ltd., this Court observed:
We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction.
In that case, the contract in question was executed at Aligarh, the construction work was to be carried out at Aligarh, the contracts provided that in the event of dispute the Aligarh court alone will have jurisdiction, the arbitrator was appointed at Aligarh and was to function at Aligarh and yet merely because the respondent was a Calcutta-based firm, it instituted proceedings in the Calcutta High Court and the High Court exercised jurisdiction where it had none whatsoever. It must be remembered that the image and prestige of a court depends on how the members of that institution conduct themselves. If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the court, certain members of the court would be wiling to exercise 10 jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation.
13. The submission of the learned Counsel for NICCO based on Section 21 of the Code of Civil Procedure that even if this Court comes to the conclusion that the High Court of Calcutta had no jurisdiction, this Court should, in the absence of proof of prejudice, refuse to interfere with the decision of the High Court unless it is otherwise found to be erroneous. While the spirit of Section 21 of the Code of Civil Procedure may support such a submission, we are afraid, the discretion cannot be used in favour of a party which deliberately invokes the jurisdiction of a court which has no jurisdiction whatsoever for ulterior motives. That would only encourage such type of litigation; The objection underlying the provision in Section 21 is not to encourage such litigants but to avoid harassment to litigants who had bona fide and in good faith commenced proceedings in a court which is later found to be wanting in jurisdiction. In the instant case, we are convinced, beyond doubt, that NICCO did not act bona fide in moving the Calcutta High Court and, therefore, the submission based on Section 21 must fail.
11. That in view of the factual position as noted above, I am of the view that no part of the cause of action arose within the territorial jurisdiction of this Court merely on account of receipt of communication Annexure-R-5 dated 06.05.2010 in continuation of order Annexure-C dated 12.09.2009, as also reply Annexure H dated 14.05.2012 by DIG SHQ BSF Bikaner, Rajasthan to legal notice dated 16th April, 2012, denying entitlement of the petitioner to the benefit of retirement gratuity on account of 11 imposition of penalty of compulsory retirement already imposed on the petitioner vide Annexure-H1 / Annexure-R-5 dated 06.05.2010 as the order / communication of the same, both originated from the Commandant 20th Bn. BSF at Jodhpur Rajasthan.
In view of the factual background of the case as also legal position as noted above, preliminary objection qua non maintainability of the writ petition before the High Court of Jammu and Kashmir is accepted. It is held that the petitioner does not have the right to invoke the jurisdiction of the Jammu & Kashmir High Court as no part of the cause of action accrued within the territorial jurisdiction of the State of Jammu & Kashmir. In view thereof, no finding is given qua the other objections raised. However, the petitioner would be at liberty to approach the appropriate High Court having jurisdiction for redress in accordance with law.
(B. S. Walia) Judge Jammu 21st October, 2016 Ram Murti