Naib Subedar R.M.Bandyopadhyay vs Union Of India & Ors.
2012 Latest Caselaw 2340 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Date of Decision: 11.04.2012

+                     W.P.(C) No.6898/2011

Naib Subedar R.M.Bandyopadhyay                       ...   Petitioner

                                         Versus

Union of India & Ors.                                ...   Respondents

Advocates who appeared in this case:

For the Petitioner         :     Mr.J.S.Manhas
For Respondent             :     Mr.Ankur Chhibber

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

ANIL KUMAR, J.

1. The petitioner has sought the quashing of CO 2 Assam Riffles‟

award of punishment of severe reprimand dated 26th April, 2008 and

another punishment of severe reprimand dated 21st August, 2008, also

by CO 2 Assam Riffles.

2. Relevant facts to comprehend the disputes raised by the

petitioner are that he was enrolled in the Army on 19th December, 1984

as a Graduate direct recruit Havaldar Instructor in Education Corps,

AEC Education Instructors. He was deputed to various training

institutes and units to impart education instructions to ORs in the

Army and given them an opportunity to improve their educational

qualifications.

3. The petitioner was promoted to the rank of Naib/Subedar on 1st

February, 2008. According to the petitioner, under the medical

regulations, he and his wife are entitled to free medical treatment in the

military hospitals. In the year 1999, it was diagnosed that the petitioner

and his wife are suffering from infertility, and are, therefore, required to

undergo treatment by the Army Hospital (R&R) at Delhi.

4. According to the petitioner this required posting at or in proximity

of Delhi. The petitioner at the material time in the year 2007 was,

therefore, posted as Education JCO in Headquarter 9 Artillery Brigade,

Meerut.

5. A transfer order dated 9th August, 2007 was issued transferring

the petitioner to 2 Assam Riffles in Manipur. As per the transfer order,

the petitioner‟s move had to be completed by 15th October, 2007.

6. The petitioner alleged that meanwhile he was admitted in the

Military Hospital, Meerut on 19th September, 2007 for medical

treatment and a surgery was performed for testicular biopsy on him on

20th September, 2007. Awaiting the report of the biopsy, the petitioner

was given interim discharge on 9th October, 2007 with directions for

readmission on 24th October, 2007 for further medical treatment.

According to the petitioner, instead of awaiting the final discharge of the

petitioner from the Military Hospital, the movement order dated 13th

October, 2007 was issued for immediate transfer of the petitioner to 2

Assam Riffles and he was struck off the strength with effect from 15th

October, 2007. The petitioner was only given 6 days preparatory time

and 5 days traveling time excluding Sunday to join the 2 Assam Riffles

by 27th October, 2007. Since the petitioner had to get himself re-

admitted to the Military Hospital, Meerut on 24th October, 2007,

therefore, he informed the Assam Riffles about the same by letter dated

15th October, 2007. Along with the letter, the petitioner also produced a

copy of the discharge slip of the Military Hospital, Meerut. The

petitioner contended that he continued at HQ 9 Artillery Brigade

between 15th to 22nd October, 2007 and it was not possible for him to

comply with the movement order as he could not abandon the medical

treatment contrary to the Military hospital instructions. The petitioner

prayed for the postponement of the movement to 2 Assam Riffles till

after the completion of the medical treatment at HQ 9 Artillery Brigade.

7. The petitioner also relied on a communication dated 22nd October,

2007 of the officiating Education Officer to 2 Assam Riffles pointing out

that the petitioner is required to be re-admitted in the Military hospital,

Meerut on 24th October, 2007 which was duly informed to the 2 Assam

Riffles.

8. The petitioner was re-admitted to the Military Hospital, Meerut on

24th October, 2007 and was transferred to the Army Hospital (R&R),

Delhi on 29th October, 2007, and after treatment he was transferred

back to the Military Hospital, Meerut on 12th December, 2007.

Thereafter, discharge order dated 12th December, 2007 was issued to

the petitioner directing him to join the 2 Assam Riffles. The petitioner,

therefore, immediately commenced the journey and reported for duty on

16th December, 2007 at Dimapur Transit Camp and reached 2 Assam

Riffles on 19th December, 2007.

9. According to the petitioner, a DPC was later on held which

approved the promotion of the petitioner to the rank of Subedar and in

this regard reliance was placed on the order dated 27th December, 2007

directing the promotion based on inter-se seniority within the AEC

cadre with effect from 1st January, 2008. This information was,

however, not revealed to the petitioner who came to know about it only

after one year, since he had filed an application under the Right to

Information Act, 2005.

10. The petitioner had not joined the Assam Riffles strictly in

accordance with the movement order and at the time he had been

wrongly advised that the two days of unaccounted period could

regularized after trial for absence without leave under Section 39 of the

Army Act. In this regard, reliance was placed on the AEC Records

Panchmarhi dated 28th March, 2008 wherein the said advice had been

tendered. According to the petitioner, the said advice was absurd and

perverted and a consequence of misreading the rules and regulations as

there is no absence without leave.

11. However, the CO 2 Assam Riffles on 16th April, 2008 ordered the

recording of the summary of evidence, and in the summary trial under

Section 85 of the Army Act CO 2, Assam Riffles awarded punishment of

severe reprimand to the petitioner by order dated 26th April, 2008.

12. There was also another case of absence on evening roll call, in

which case the petitioner was again awarded punishment of severe

reprimand after summary trial under Section 85 of the Army Act by

order dated 21st August, 2008. On account of severe reprimand

awarded by CO 2, Assam Riffles on 26th April, 2008 and 21st August,

2008, the petitioner was not promoted entailing the filing of a statutory

complaint dated 8th April, 2009 against the award of the two

punishments of severe reprimand. The petitioner, in the meantime, was

issued an order for retirement on his superannuation on 31st December,

2010.

13. Since the petitioner was not promoted, he challenged the action of

not promoting him by filing an O.A No.20/2010 before the Armed

Forces Tribunal, Calcutta Bench seeking the grant of the promotion to

the rank of Subedar with effect from 1st January, 2008. In the

meantime, the statutory complaint filed by the petitioner was dismissed

by the Chief of Army Staff by his order dated 25th January, 2011. The

petitioner also challenged the orders of severe reprimand dated 26th

April, 2008 and 21st August, 2008 by filing a writ petition being CWP

No.17345W/2010 before the High Court of Calcutta. In the original

application filed by the petitioner seeking the quashing of the

cancellation of his promotion by order dated 7th January, 2009 it was

held that the Tribunal is not in a position to comment or adjudicate on

the disciplinary aspect resulting in summary punishment (severe

reprimand) awarded to the petitioner on 26th April, 2008 more so

because another writ petition was also pending in respect of the same

matter before the High Court of Calcutta. The Tribunal, therefore, held

that the petitioner‟s promotion order dated 27th December, 2007 could

not have been brought to effect as the promotion order was received by

the 2 Assam Riffles on 10th January, 2008 while the petitioner was not

present in the unit being away on earned leave from 7th January, 2008

to 10th March, 2008 and the disciplinary case under investigation was

pending on 24th October, 2007 for an offence under the Army Act under

Section 39 (absence without leave from 22nd to 24th October, 2007) and

since severe reprimand was awarded to the petitioner through the

summary trial by the CO 2, Assam Riffles thus debarring him for

promotion in accordance with the policy on the subject as contained in

the Army Headquarter letter dated 10th October, 1997.

14. Considering the facts and circumstances, the Armed Forces

Tribunal, Calcutta held that normal superannuation of the petitioner in

the rank of Naib Subedar be carried out as per discharge orders vide

AEC Records letter dated 25th September, 2009 and in case the writ

petition with Hon‟ble Calcutta High Court (W.P No.17354W/10) filed by

the petitioner is disposed of in the petitioner‟s favor then the petitioner

shall be deemed to be promoted to the rank of Subedar with effect from

1st January, 2008 (the date when he was originally ordered to be

promoted but denied on account of disciplinary proceedings for being

absent without leave for 2 days) without any claim of arrears of pay and

allowances on the principle of no work, no pay. It was further held that

in case the writ petition by the Calcutta High Court is decided after 31st

December, 2010 (petitioner‟s present date of retirement) he shall have

no claim to any arrears of pay and allowances and his last pay will be

fixed notionally in the rank of Subedar for the purpose of refixing his

pensionary benefits and in that eventuality the petitioner shall be

eligible only to arrears of pension and any other connected pensionary

benefits.

15. The writ petition filed by the petitioner against the orders dated

26th April, 2008 and 21st August, 2008 of severe reprimand by CO 2,

Assam Riffles before the Calcutta High Court was dismissed by order

dated 20th April, 2011 wherein it was held that considering the place of

occurrence and the incident as also the address of Commandant, 2

Assam Riffles, Pin Code 932002, C/C 99 APO, the Court at Calcutta

does not have any territorial jurisdiction.

16. After the dismissal of the writ petition seeking the quashing of the

severe reprimand orders dated 26th April, 2008 and 21st August, 2008

by the Calcutta High Court by order dated 20th April, 2011 on the

ground that it did not have any territorial jurisdiction the present writ

petition has been filed by the petitioner contending, inter-alia, that the

petitioner was faced with the impossibility of performing two conflicting

directions of the military hospital directing him to get admitted on 24th

October, 2007 and the order of HQ 9 Artillery Brigade affecting the

immediate transfer to 2 Assam Riffles. The petitioner contended that the

offence of severe reprimand was not made out against the petitioner.

The petitioner further contended that the severe reprimand orders are

arbitrary, illegal and based on no evidence and had been passed by

ignoring the directions of the Military Hospital to re-admit the petitioner

on 24th October, 2007. The petitioner also placed reliance on the

Medical Service Regulation 489 holding that the Commanding Officer of

the Military Hospital is the Commanding Officer of all the patients and

that the petitioner was a patient in the military hospital at the material

time, therefore, the direction of the Military Hospital Commanding

officer could not have been ignored. The petitioner contended that he

had informed both HQ 9 Artillery Brigade and new unit 2 Assam Riffles

about his readmission to the Military Hospital, Meerut on 24th October,

2007 and so no lapse on his part was made out and consequently, the

petitioner could not be tried for the offence of remaining absent without

leave under Section 39 of the Army Act. Regarding the severe reprimand

dated 21st August, 2008, the petitioner contended that the petitioner

was an Education JCO on deputation at the material time, and that he

has no command and control responsibility at evening roll call, nor was

he required to attend evening roll call unless specifically notified. The

petitioner averred that he was posted at Battalion Headquarter situated

at Mullachin whereas the alleged occurrence had taken place at Kholen

about 25 kms at "A" company location where he had gone temporarily

for map reading classes for the men of his company. According to the

petitioner, there was no PT parade on 9th August, 2008 which was

Saturday and therefore, the punishment of severe reprimand could not

have been inflicted on the petitioner. The petitioner also relied on the

record of 2 Assam Riffles to contend that the punishment of severe

reprimand dated 21st August, 2008 could not be awarded to him in view

of the facts and circumstances. The petitioner, however, did not aver in

the writ petition as to how the High Court at New Delhi would have

jurisdiction in respect of quashing of the severe reprimand dated 26th

April, 2008 and 21st August, 2008 awarded by, admittedly by Assam

Rifles.

17. The writ petition is contested by the respondents who have filed a

counter affidavit dated 6th February, 2012 contending, inter-alia, that

the petitioner was posted at Headquarter 9 Artillery Brigade, Meerut

from 14th November, 2004 to 14th October, 2007, and on completion of

the normal peace tenure of three years he was posted to 2 Assam Riffles

located in Eastern Command (field) by letter dated 9th August, 2007

with instructions to carry out the move by 15th October, 2007. On the

physical arrival of his reliever JC-802437N Subedar Krishan Kumar,

the petitioner was admitted to the Military Hospital on 19th September,

2010 and he was discharged on 9th October, 2010. Since the reliever of

the petitioner had already reported on 11th September, 2007, further

retention of the petitioner in HQ 9 Artillery Brigade, Meerut was

irregular in terms of Army order AO 25/2001/MP and consequently, the

petitioner was struck off the strength from HQ 9, Artillery Brigade with

effect from 15th October, 2007 and placed at permanent posting to 2

Assam Riffles vide HQ 9 and movement order No.CFN:307603/

XX/A/Camp dated 13th October, 2007 with 6 days of preparatory leave

excluding Sunday and journey period.

18. The petitioner, however, knowingly absented himself without

leave with effect from 22nd October, 2007 upto 24th October, 2007 and

consequently, the summary of evidence was recorded. In the summary

of evidence, the petitioner took the stand that he felt severe pain on 23rd

October, 2007 at 0100 hours so he discontinued his journey at

Gorakhpur and stayed at Gorakhpur Railway Station throughout the

night on 23rd/24th October, 2007 and boarded Katihar-Amritsar

Express on next day afternoon for Delhi. The respondents contended

that the petitioner being an experienced JCO with 23 years of service

should have got himself admitted in the service hospital at Gorakhpur,

however, he waited at the platform at Gorakhpur Railway Station till

next day afternoon and returned to Delhi on his own. The respondents

also contended that the petitioner had not produced any proof of his

undertaking the journey from Meerut to Gorakhpur and back during

the period of 21st October, 2007 to 24th October, 2007 and

consequently, the plea of the petitioner was found to be concocted by

him to avoid the disciplinary action for his unauthorized absence from

duty. After getting admitted at the Army Hospital, Meerut on 24th

October, 2007 he was transferred to the Army Hospital (R&R) at New

Delhi and was discharged, and later on, he reported to his new unit 2

Assam Riffles on 19th December, 2007. It is on the findings of the

summary of evidence that the petitioner was tried summarily and

awarded severe reprimand by Col.K.Bhushan, SC, SM, Commandant, 2

Assam Riffles on 26th April, 2008 under Section 39(a) of the Army Act

for being absent without leave from 22nd October, 2007 to 24th October,

2007.

19. The respondents contended that the petitioner was tried

summarily again and awarded severe reprimand by Col.K.Bhushan, SC,

SM, Commandant, 2 Assam Riffles on 21st August, 2008 under Section

39(d) of the Army Act for being absent at the time fixed at the place

appointed for duty. Regarding the severe reprimand dated 21st August,

2008, the respondents disclosed that the petitioner on 8th August, 2008

had failed to appear without sufficient cause at 1800 hrs in the Roll

Call Parade Ground, the place appointed for roll call parade and again

on 9th August, 2008 he failed without sufficient cause to appear at 0600

hrs for the physical training parade ground, the place appointed for

physical training parade and in the circumstances, the punishment

awarded to the petitioner is just and appropriate.

20. The learned counsel for the respondents, Mr.Chhibber contended

that though the plea of jurisdiction has not been taken by the

respondents in the counter affidavit, however, from the facts and

circumstances as alleged by the petitioner, the Courts at Delhi do not

have jurisdiction as the petitioner is challenging the severe reprimand

orders dated 26th April, 2008 and 21st August, 2008 passed by the CO

2, Assam Riffles. The respondents further contended that the statutory

petition of the petitioner was dismissed by the Chief of Army Staff by

order dated 5th January, 2011 which has not been impugned in the

present writ petition. The learned counsel for the respondents also

relied on a decision of the Division Bench of this Court in 135 (2006)

DLT 414 titled as „Ex.Rect/GD Vinod Kumar Vs. Union of India & Ors.‟

holding that Article 226(2) of the Constitution of India restricts

principles of territorial jurisdiction only to cause of action. It was held

that if the cause of action or any part thereof in its minutest form is

absent, Court may not have territorial jurisdiction only on the basis of

the residence/location of the parties concerned as the provisions of CPC

are not applicable to writ jurisdiction in the strict sense.

21. The petitioner had filed a rejoinder dated 19th March, 2012

reiterating the pleas and contentions raised by the petitioner in the writ

petition. The petitioner, however, did not disclose as to how the Courts

at Delhi will have jurisdiction on the present matter, as the petitioner

has been seeking the quashing of orders passed by CO 2, Assam Riffles

dated 26th April, 2008 and 21st August, 2008. The Calcutta High Court

had already dismissed the writ petition of the petitioner on the ground

that the Courts at Calcutta do not have jurisdiction as the petitioner

had been seeking quashing of severe reprimand orders passed by

Assam Rifles at Guwahati, Assam.

22. This Court has heard the learned counsel for the parties and has

also perused the writ petition and other documents annexed with the

petition and the counter affidavit and rejoinder affidavit. This is not

disputed and cannot be disputed by the learned counsel for the

petitioner that he has challenged the severe reprimand orders dated

26th April, 2008 and 21st August, 2008 passed by the CO 2, Assam

Riffles. The learned counsel for the petitioner is also unable to dispute

that the orders passed by the CO 2, Assam Riffles were not passed in

Delhi and were passed by the Commandant, of Assam Riffles in Assam.

23. This is not disputed that the petitioner had filed a previous writ

petition, being CWP No.17354(W)/2010, titled as „Naib Subedar Radha

Madhab Bandyopadhyay Vs. Union of India & Ors.‟ in Calcutta High

Court which was dismissed on account of the Court at Calcutta not

having jurisdiction by order dated 20th April, 2011. In the said writ

petition, the petitioner had impleaded General Assam Riffles, General

Officer Commanding in Chief Eastern Command and Commandant 2,

Assam Riffles besides respondent Nos.1 to 3, Union of India, The Chief

of Army Staff and Officer in Charge, Army Educational Corps Records.

The learned counsel is unable to explain as to how the General Assam

Riffles, General Officer Commanding in Chief Eastern Command and

Commandant, 2 Assam Riffles who were impleaded in the earlier writ

petition challenging the severe reprimand orders will not be necessary

parties in the present writ petition as well which also seeks the similar

relief of quashing the orders of severe reprimand passed by the

Commandant, 2 Assam Riffles. Admittedly, for challenging the orders

dated 26th April, 2008 and 21st August, 2008 passed by the CO 2,

Assam Riffles, no cause of action in any manner has arisen at New

Delhi.

24. The petitioner after retirement is not a resident of Delhi. As held

by a Division Bench of this Court in Ex.Rect/GD Vinod Kumar (Supra)

the Court will not have territorial jurisdiction only on the basis of

residence/location of the party if any cause of action or any part thereof

in its minutest form is not present.

25. The petitioner has not challenged the order passed on his

statutory complaint by Chief of Army Staff by order dated 5th January,

2011, however, that will also not give the jurisdiction to this Court on

the basis of the principles enunciated by a full bench of this Court in

the case of Sterling Agro Industries Ltd v. Union of India & Ors, W.P(C)

No.6570/2010 decided on 1st August, 2011. In the said decision, in

para 33 a Full Bench of 5 Judges of this Court had held as under:-

"33. In view of the aforesaid analysis, we are inclined to modify the findings and conclusions of the Full Bench in New India Assurance Company Limited (supra) and proceed to state our conclusions in seriatim as follows:

(a) The finding recorded by the Full Bench that the sole cause of action emerges at the place or location where the tribunal/appellate authority/revisional authority is situate and the said High Court (i.e., Delhi High Court) cannot decline to entertain the writ petition as that would amount to failure of the duty of the Court cannot be accepted inasmuch as such a finding is totally based on the situs of the tribunal/appellate authority/revisional authority totally ignoring the concept of forum conveniens.

(b) Even if a miniscule part of cause of action arises within the jurisdiction of this Court, a writ petition would be maintainable before this Court, however, the

cause of action has to be understood as per the ratio laid down in the case of Alchemist Ltd. (supra).

(c) An order of the appellate authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is situated. Yet, the same may not be the singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.

(d) The conclusion that where the appellate or revisional authority is located constitutes the place of forum conveniens as stated in absolute terms by the Full Bench is not correct as it will vary from case to case and depend upon the lis in question.

(e) The finding that the court may refuse to exercise jurisdiction under Article 226 if only the jurisdiction is invoked in a malafide manner is too restricted / constricted as the exercise of power under Article 226 being discretionary cannot be limited or restricted to the ground of malafide alone.

(f) 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 in view of what has been stated in Ambica Industries (supra) and Adani Exports Ltd. (supra).

(g) The conclusion of the earlier decision of the Full Bench in New India Assurance Company Limited (supra) that since the original order merges into the appellate order, the place where the appellate authority is located is also forum conveniens is not correct.

(h) Any decision of this Court contrary to the conclusions enumerated hereinabove stands overruled."

26. It was categorically held that where the appellate authority or

Revisional authority is located will not constitute the place of forum

conveniens and it will vary from case to case and would depend upon

the lis in question. The petitioner has not challenged the order passed

on his statutory complaint by the Chief of Army Staff dated 5th January,

2011 and has only challenged the orders passed by the Commandant, 2

Assam Riffles and admittedly the orders were not passed at Delhi. In

the circumstances, no cause of action or any part thereof has arisen

within the territorial jurisdiction of this Court in respect of two orders of

severe reprimand passed by the Assam Rifles.

27. In the totality of facts and circumstances and for the foregoing

reasons, the writ petition is, therefore, dismissed as not maintainable,

as this Court does not have jurisdiction in the facts and circumstances

as alleged by the petitioner. The petitioner shall, however, be entitled to

challenge the orders of severe reprimands if he is so advised in

accordance with law before the appropriate Court having jurisdiction in

the matter. With these directions the writ petition is disposed of.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

APRIL      11, 2012
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