Ashok Kumar vs Union Of India & Ors.
2011 Latest Caselaw 5685 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.6120/1999

%                       Date of Decision: 24.11.2011


Ashok Kumar                                                 .... Petitioner

                     Through Mr.H.S.Dahiya, Advocate

                                 Versus


Union of India & Ors.                                    .... Respondents

                     Through Mr.Jatan Singh, Central Govt. Standing
                             Counsel



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

*

1. The petitioner has challenged the order of his removal from the

service dated 3rd January, 1998 and has sought direction to the

respondents to reinstate the petitioner in the service w.e.f. 3rd January,

1998 with full back wages and consequential monetary and other

service benefits.

2. The petitioner was serving as a Constable in the Central

Industrial Security Force (hereinafter referred as "CISF") in its Unit

IISCO, Burnpur. The petitioner was issued a charge sheet dated 30th

April, 1996 imputing that the petitioner tried to get one of the water

pipe stolen with the help of a civilian from Bungalow No.2 of the old

colony of DTPS, thereby showing gross misconduct and indiscipline.

3. The petitioner replied to the memorandum of charge on 20th May,

1996, wherein he submitted that while being on a weekly rest on 2nd

March, 1996, the order was given by the Company Havildar Major

(CHM), S.C. Mohiddin that he would have to come, since somebody was

sick and so he was required to do his duty. The petitioner, therefore, in

compliance of the order had gone to the control room at 2110 hours

and after enquiring about his weekly rest he was returning to his

quarter on a cycle when the chain of his cycle broke down and so he

could only reach the quarter at about 2130 hours. The pleas and

contentions raised by the petitioner in his reply were found to be not

satisfactory and, therefore, a departmental enquiry was held against the

petitioner.

4. The petitioner was found guilty of the charge made against him

and consequently, the Disciplinary Authority by order dated 14th

January, 1997 imposed the punishment of reduction of pay by five

stages from Rs.940/- to Rs.855/- in the time scale of pay for a period of

five years w.e.f. 1st September, 1997. It was further held that the

petitioner would earn increment of pay during the period of reduction

and that on expiry of that period, the reduction would not have the

effect of postponing his future increment of pay.

5. According to the petitioner, he was given a show cause notice

dated 25th October, 1997 under Rule 49(1) of the CISF Rules, 1969 for

exercising the revisionary power in order to enhance the penalty of

reduction of pay imposed on the petitioner to that of removal from

service.

6. The Revisional Authority DIG/NEZ under Rule 49(1) of the CISF

Rules, 1969, on considering the facts and circumstances, imposed the

penalty of removal from service. The petitioner contended that he was

assured by the Inquiry Officer that no harm would come to him and on

this, an application was got written from him, wherein he had admitted

his guilt to the charge framed against him. The petitioner was,

therefore, removed from the service by order dated 3rd January, 1998.

7. Aggrieved by the order of dismissal from the service, the petitioner

submitted an appeal to the Inspector General/Eastern Sector on 6th

February, 1998. Thereafter, the appeal submitted by the petitioner was

considered and rejected as being devoid of any merit by order dated 2nd

November, 1999. During the pendency of the appeal the petitioner

submitted a representation dated 1st June, 1999 to the Deputy

Inspector General requesting that the order of enhanced punishment of

removal from service be recalled since as per the petitioner no CISF

Authority has revisional powers in pursuance of the instructions issued

by the CISF Directorate vide letter dated 1st September, 1998. However,

no reply to the said representation was given by the respondents.

8. In the circumstances, the petitioner challenged his removal from

the service by approaching this Court under its writ jurisdiction on the

ground that the punishment imposed upon him was extremely harsh

and that before the Inquiry Officer there was no evidence to prove the

allegation imputed against the petitioner, as none of the witnesses had

proved his presence at the alleged place of incident, nor had any of the

witnesses directly seen him steal the water pipe and also since the

statement of PW Naik L.K.Singh was ignored who had stated that there

was no civilian with the petitioner at the time of the alleged occurrence.

The petitioner has also challenged the enhancement of punishment on

the ground that the DIG had no power of revision as per instructions

issued by the CISF Directorate vide letter dated 1st September, 1998.

9. In the circumstances, the petitioner has sought that his order of

removal dated 3rd January, 1998 be set aside and he should be

reinstated in the service w.e.f. 3rd January, 1998 with full back wages

and all other consequential monetary benefits.

10. The petition is contested by the respondents contending, inter-

alia, that the petitioner though was not deputed to go to the

Commandant‟s Bungalow, since it was his weekly off, however, on 2nd

March, 1996 he went in uniform at 2130 hours and thereafter, he went

to the Bungalow of the Chief Engineer between 2230 hours to 2245

hours. He entered inside the vacant Bungalow No.2 through the main

gate accompanied by a civilian who had started breaking the water pipe

which was laid between the Bungalow and the outside of the house. The

entire matter was witnessed by Col Arjun Banerjee DGM/Adm. of Qrt.

No. A-1 who immediately intimated the same to the night checking

officer and a written complaint about the incident was made on 12th

March, 1996 leading to the departmental inquiry against the petitioner

under rule 34 of the CISF Rules, 1969, which culminated into awarding

the punishment of reduction of pay for a period of five years by order

dated 14th January, 1997. The said punishment was subsequently

enhanced to removal from service by the Revisional Authority by order

dated 3rd January, 1998. The petitioner had thereafter filed an appeal

against the order of removal, however, his appeal was dismissed by

order dated 2nd November, 1999.

11. The learned counsel for the respondents at the very outset has

contended that the High Court at Delhi does not have the jurisdiction to

adjudicate the matter in the facts and circumstances, as no cause of

action has arisen in Delhi. Learned Central Govt. Standing Counsel,

Mr.Jatan Singh contended that the charges were framed and the

departmental proceedings were conducted at Durgapur and the

Disciplinary Authority had also awarded the punishment of reduction of

pay at Durgapur. Thereafter, the power of revision was exercised by the

Deputy Inspector General/NEZ at Kolkata after giving a show cause

notice dated 25th October, 1997 issued from Kolkata as well and it

ultimately lead to the punishment of the petitioner being enhanced from

reduction of pay for five years to that of removal from service. Aggrieved

by the order of the Revisional Authority, the petitioner had sought an

appeal before the Inspector General, CISF, at Calcutta, which was

thereafter dismissed by order dated 2nd November, 1999. In the

circumstances, the learned Central Govt. Standing Counsel has

contended that there is no cause of action, either partly or wholly within

the territory of Delhi and, therefore, this Court does not have the

jurisdiction to hear the matter under Article 226 of the Constitution of

India.

12. Reliance has also been placed on a judgment of the Larger Bench

of this Court titled as „M/s. Sterling Agro Industries Ltd vs Union of

India & Ors.‟ bearing W.P.(C) No.6570/2010, dated 1st August, 2011. In

the said judgment the Larger Bench considered the issue regarding the

jurisdiction of the High Court of Delhi in writ petitions in reference to

the decision taken by the Full Bench in the matter of New India

Assurance Company Limited v. Union of India, AIR 2010 Delhi 43 (FB).

The judgment carefully considered and relied on the catena of

judgments expounding on the aspect of jurisdiction of the High Court

under its writ jurisdiction in view of the principles of cause of action

and forum conveniens. Reliance was heavily placed on the judgment of

Alchemist Ltd. and Anr. v. State Bank of Sikkim and ors., (2007) 11

SCC 335 wherein the Apex Court had observed as follows:

"34. In Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254 : JT (2004) Supp 1 SC 475, the appellant was a Company registered under the Companies Act having its head office at Mumbai. It obtained a loan from the Bhopal Branch of the State Bank of India. The Bank issued a notice for repayment of loan from Bhopal under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The appellant Company filed a writ petition in the High Court of Delhi which was dismissed on the ground of lack of territorial jurisdiction. The Company approached this Court and contended that as the constitutionality of a parliamentary legislation was questioned, the High Court of Delhi had the requisite jurisdiction to entertain the writ petition.

35. Negativing the contention and upholding the order passed by the High Court, this Court ruled that passing of a legislation by itself does not confer any such right to file a writ petition in any Court unless a cause of action arises therefor. The Court stated: (Kusum Ingots case, SCC p. 261, para 20) "20. A distinction between a legislation and executive action should be borne in mind while determining the said question".

Referring to ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711 : JT (1994) 6 SC 1, it was held that all necessary facts must form an "integral part" of the cause of action. The fact which is neither material nor essential nor integral part of the cause of action would not constitute a part of cause of action within the meaning of Clause (2) of Article 226 of the Constitution.

36. In National Textile Corporation Ltd. v. Haribox Swalram, (2004) 9 SCC 786 : JT (2004) 4 SC 508, referring to earlier cases, this Court stated that: (SCC p. 797, para 12.1) "12.1 ...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 the cause 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."

37. From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the appellant- petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that 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. Nevertheless it must be a "part of cause of action", nothing less than that.

38. In the present case, the facts which have been pleaded by the Appellant Company, in our judgment, cannot be said to be essential, integral or material facts so as to constitute a part of "cause of action" within the meaning of Article 226(2) of the Constitution. The High Court, in our opinion, therefore, was not wrong in dismissing the petition."

13. The principle of forum conveniens was also considered at length

and in the light of the ratios propounded in the Mosaraf Hossain Khan

v. Bhagheeratha Engg. Ltd. & Ors., (2006) 3 SCC 658; Ambica

Industries v. Commissioner of Central Excise, 2007 (213) ELT 323(SC)

and Kusum Ingots & Alloys Ltd. v. Union of India (2004) 6 SCC 254 it

was held that the principle of forum conveniens in its ambit and sweep

encapsulates the concept that a cause of action arising within the

jurisdiction of the Court would not itself constitute the determining

factor compelling the Court to entertain the matter. It was further held

that while exercising the jurisdiction under Articles 226 and 227 of the

Constitution of India, the Court cannot be totally oblivious of the

concept of forum conveniens. Therefore, it was concluded that the Full

Bench in the matter of New India Assurance Co. Ltd. (supra) had erred

in not considering the concept of forum conveniens and only expressing

its view on the aspect of cause of action on the basis of the authority

who had passed the order in question being situated within the territory

of the High Court exercising its writ jurisdiction. Therefore, it was held

that while entertaining a writ petition, the doctrine of forum conveniens

and the nature of cause of action are required to be scrutinized by the

High Court depending upon the factual matrix of each case.

14. In the present matter as contended by the respondents, the entire

proceedings, as well as, the enquiry and the punishment awarded to the

petitioner had all taken place in the State of West Bengal within the

jurisdiction of High Court of Calcutta. The learned counsel for the

petitioner has been unable to contend any fact that shows any cause of

action within the territory of Delhi, either wholly or in part, except for

the contention that the representation dated 3rd January, 1998 which

was sent to the DIG in Calcutta, requesting that the enhanced

punishment of dismissal be recalled, a copy of the same was also sent

to the DG, CISF in Delhi. However, as accepted by the learned counsel

for the petitioner himself, this in itself would not constitute a cause of

action in Delhi as the communication sent to the DIG, Calcutta was

neither the proper remedy available to the petitioner in the facts and

circumstances, nor was the same replied to by the respondents.

Therefore, this Court does not have the jurisdiction to adjudicate upon

the present matter under its writ jurisdiction.

15. In the facts and circumstances, counsel for the petitioner on

instructions states that the writ petition may be dismissed without any

adjudication and it be observed that the petitioner may avail his

remedies before a competent court or authority having territorial

jurisdiction.

16. The writ petition is accordingly dismissed as not pressed and

withdrawn leaving it open to the petitioner to avail his remedies before

the Court of competent jurisdiction or before the appropriate authority

as may be advised to the petitioner. It is observed that if the remedy

before a court or authority of competent jurisdiction is availed; the

Court or the authority would take into consideration the fact that the

present petition was filed in the year 1999 and has been dismissed as

withdrawn with right reserved in favor of the petitioner to approach the

Court or the appropriate authority having territorial jurisdiction. With

these observation writ petition is dismissed as not pressed and

withdrawn. Parties are also left to bear their own costs.

Dasti.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

November 24, 2011.

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