Rohit Arya, J.@mdashBy this petition under Article 226 of the Constitution of India, challenge is made to the order dated 22/09/2010 by the respondent No. 1, stationed at New Delhi on the statutory petition filed by the petitioner No. 8600002101 maintaining the punishment of reduction of rank to the post of Constable and to suffer rigorous imprisonment for 45 days in Force Custody.
2. Facts necessary for disposal of this petition are to the effect that twofold charges were levelled against the petitioner that while he was on duty on 31/12/2008 at Naka point No. 16 of BOP Amudia, he had allowed safe passage of 15 cattle on the Indo Bangladesh border by the smugglers and during surprise check at BHOP Amudia on 01/01/2009, the petitioner found in possession of Rs.3,575/ in contravention of order vide order SOP L/No.511416 dated 08/07/2007. The aforesaid charges were found to be an act prejudicial to good order and discipline of the Force and neglecting to obey general orders as per section 40 and 22(3) of B.S.F Act respectively. Upon enquiry, petitioner was visited with the penalty of reduction in rank to the post of Constable and to suffer rigorous imprisonment for 89 days in Force Custody which was reduced to 45 days by the reviewing officer, DIG SHQ,BSF. The punishment imposed by the disciplinary authority stationed at Amudia, West Bengal and the reviewing authority, DIG SHQ BSF was also stationed at Kolkata, West Bengal, and the petitioner was also posted in the State of West Bengal while the statutory petition was decided by Director General, BSF stationed at New Delhi. All the aforesaid orders were served on the petitioner while he was working in the State of West Bengal. There is nothing on record that the impugned order was served upon the petitioner anywhere within the territorial limits of the High Court of Madhya Pradesh Bench at Gwalior. On perusal of the impugned order passed by the respondent No. 1 on statutory petition goes to show that copy of the order was distributed to the petitioner is also shown as No. 860002101 Constable, Ramesh Singh Tomar, 126m Bn BSF and not at village Sihoniya, Tahsil Amba, District Morena where the petitioner has been residing at the time of filing of the instant petition.
3. On notice, the respondents'' have filed counter affidavit and have taken a preliminary objection as regards territorial jurisdiction of this Court to entertain the instant writ petition on the premise that no cause of action or part of cause of action has arisen within the territorial jurisdiction of High Court of Madhya Pradeh, Bench at Gwalior to challenge the order impugned in this petition relying upon the order rendered by the coordinate Bench of this Court reported in
4. Per contra, counsel for the petitioner has relied upon the judgment of the Hon''ble Apex Court reported in 2001 (9) SCC 525, Dinesh Chandra Gahtori Vs. Chief of Army Staff and a Division Bench of this Court reported in
Having perused the judgment passed by the Hon''ble Apex in Dinesh Chandra Gahtori (supra), two distinguishable facts are apparent, viz., the impugned order of dismissal passed after Summary Court Martial for using criminal force against his superior officer was served upon the wife of the appellant, writ petition was filed in the year 1992 in the High Court of Judicature, Allahabad and the impugned order was passed in the year 1999. Therefore, during pendency of the writ petition, the impugned order was passed in the State of Punjab. Hon''ble Apex Court observed that this is a fact that the High Court should have taken into consideration....... The Hon''ble Apex Court further observed that the chief of Army Staff may be sued anywhere in the country.
(Emphasis supplied)
5. In the opinion of this Court, the aforesaid observation has to be read in conjunction with facts referred to above.
6. The order impugned therein was served on the wife of the appellant at Allahabad where the writ petition was filed prior to passing of the impugned order in the year 1999 and hence, part of cause of action was found to have arisen at Allahabad even though punishment order was passed in the State of Punjab.
7. In the second case, the Division Bench in Ram Narain Singh (supra) while addressing on the territorial jurisdiction in the context of a Seopy, Trade of Tin Smith of Army Supply Cops. for overstaying leave has held that the petitioner was charge sheeted, Court Martial proceedings were conducted at Bangalore and the order of dismissal from service was passed at Bangalore. Against such action, appeal was filed before the Chief of Army Staff, Army Headquarters, DHQ Post, New Delhi but the appeal was dismissed. The communication of dismissal of appeal was communicated to the delinquent/petitioner at Rewa, State of Madhya Pradesh. Therefore, following the judgment of the Apex Court in the case of Dinesh Chandra Gahtori (supra), it was held that the High Court of Madhya Pradesh Principal Seat at Jabalpur has jurisdiction to entertain the writ petition against order of dismissal from service.
In the case of R.P. Tiwari (supra), the petitioner was served with order of punishment in the State of Maharashtra and after passing of the order had settled down in his ancestral village in District Rewa. Under such circumstances, learned single Judge relying upon the judgment of the Hon''ble Supreme Court reported in
(Emphasis supplied)
8. Law is well settled that the High Court will have jurisdiction if the cause of action whole or any part thereof arises within the territorial jurisdiction of the limits of the High Court.
9. In the aforesaid two cases of the Hon''ble Apex Court, Dinesh Chandra Gahtori (supra) and a Division Bench of this Court reported in Ram Narain Singh (supra) as the impugned orders therein were served within the territorial jurisdictional limits of the respective High Courts. Hence, writ petition challenging the orders of punishment served were found to be maintainable in their respective writ jurisdiction as part of cause of action had arisen thereunder. Admittedly, in the case of Ram Narain Singh (supra), the impugned order was served on the petitioner stationed at Rewa and, hence part of cause of action had arisen within the territorial jurisdiction of the High Court of Madhya Pradesh, Principal Seat at Jabalpur. However, in the case of R.P. Tiwari (supra), the impugned order of punishment was served in the State of Maharashtra and thereafter petitioner shifted to his ancestral village in District Rewa. Therefore, this Court found that no cause of action or part of cause of action had arisen within the territorial limits of the High Court, Principal Seat at Jabalpur. Therefore, the writ petition was dismissed.
10. In view of the aforesaid legal position, now this Court adverts to facts of the case in hand.
11. Admittedly; petitioner while serving at BHOP Amudia, West Bengal was visited with the punishment as stated above, the reviewing authority, DIG SHQ BSF was also stationed at Kolkata, West Bengal. The appellate authority stationed at New Delhi after decision in the appeal has communicated the decision dated 22/09/2010 (Annexure P/1) to the petitioner while he was stationed in the State of West Bengal. Hence, no cause of action or part of cause of action has arisen within the territorial jurisdiction of the High Court of Madhya Pradesh, Bench at Gwalior. It is not the case of the petitioner that the impugned order has been served upon him within the territorial jurisdiction of the High Court of Madhya Pradesh, Bench at Gwalior or in any part within the State of Madhya Pradesh. This Court is of the view that as no cause of action or part of the cause of action arises within the territorial jurisdiction of the High Court of Madhya Pradesh and even Bench at Gwalior.
12. The writ petition is hereby dismissed as not maintainable. No order as to costs.
