1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER
: S.B.CIVIL WRIT PETITION NO.14091/2013 Sarwajeet Singh versus Union of India & ORS.Date of Order :: 17.12.2015 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.J.K.Kaushik, for the petitioner.
Mr.D.P.Dhaka for Mr.A.K.Rajvanshy, for the respondents.
---- BY THE COURT: This writ petition has been filed by the petitioner aggrieved against the orders dated 18.08.2010 (Annex.-4).whereby penalty of removal from service has been imposed on the petitioner and appellate order dated 18.05.2011 (Annex.-6).whereby appeal filed by the petitioner against the order dated 18.08.2010 has been rejected.
Notices of the writ petition were ordered to be issued on 06.12.2013 by a coordinate Bench of this Court.
The respondents have filed their reply to the writ petition.
A preliminary objection has been raised that as no part cause of action has arisen in favour of the petitioner within the territorial jurisdiction of this Court, the writ petition filed by the petitioner is not maintainable.
A response to the said preliminary objection raised in the reply, has been given by the petitioner in the rejoinder, wherein it is contended that as the appellate order was served on the 2 petitioner at his home town i.e.Village – 1/STR, PO: New Mandi Gharsana, District – Sriganganagar (Rajasthan) – 335711, thus a part cause of action has arisen at Sriganganagar in Rajasthan, which falls under the territorial jurisdiction of this Court.
When the matter came up before this Court for orders on application filed by the petitioner for summoning of record, learned counsel for the respondents submitted that before deciding the application for summoning the record, the objection of the respondents regarding territorial jurisdiction be determined first.
On the said submission, the parties were heard on the maintainability of the present writ petition before this Court.
It is not in dispute that the memorandum of charges dated 04.05.2009 (Annex.-1) was served on the petitioner when he was serving at 22nd BN, SSB, Ranidanga, Darjeeling (West Bengal).The inquiry was also held at Darjeeling (West Bengal) and penalty order dated 18.08.2010 (Annex.-4) was also served on the petitioner when he was working at Ranidanga, Darjeeling (West Bengal) and the appellate order was passed by the Dy.
Inspector General, Sector Headquarter, SSB, Ranidanga, Darjeeling (West Bengal) on 18.05.2011 and was served on the petitioner at his home address as noticed hereinbefore at Sriganganagar (Rajasthan).Learned counsel for the petitioner submitted that the objection raised by the respondents regarding territorial jurisdiction of this Court has no substance.
It was submitted that admittedly the order of the Appellate Authority dismissing the appeal filed by the petitioner was served on him at 3 Sriganganagar, which gives a part cause of action to the petitioner and in terms of Article 226(2) of the Constitution of India based on such part cause of action, the writ petition is maintainable.
It was submitted that issue raised is squarely covered by judgment of this Court in Manohar Singh v.
Union of India & Anr.: D.B.Civil Special Appeal (Writ) No.167/2010, decided on 14.09.2011, wherein relying on a decision of the Supreme Court in Dinesh Chandra Gahtori v.
Chief of Army Staff & Anr.: (2001) 9 SCC525 it was held that part cause of action had accrued at Jodhpur.
Opposing the submissions, learned counsel for the respondents submitted that merely service of appellate order on the petitioner at Sriganganagar, does not give rise to any cause of action and, therefore, the writ petition is not maintainable before this Court and the same deserves to be dismissed.
Reliance was placed on another Division Bench judgment of this Court in Rajesh Jangu v.
Union of India & Ors.: D.B.Civil Writ Petition No.4853/2004, decided on 08.05.2015 and judgment of Allahabad High Court in B.K.S.Yadav v.
Chief of the Army Staff : Writ Petition No.37116/1998, decided on 09.09.2004.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
It is not in dispute that the petitioner was serving at West Bengal when he was served with a memorandum of charges, the inquiry was conducted at West Bengal, the order of removal was passed and served while the petitioner was serving at West 4 Bengal and he preferred his appeal from West Bengal itself.
However, the order passed by the appellate authority was addressed to and served on the petitioner at his address at Sriganganagar (Rajasthan).Division Bench of this Court in the case of Manohar Singh (supra) noticed the facts and held as under:- “4.
Facts of the case lie in a narrow compass.
5.
The appellant was a member of armed forces.
He was posted at Jammu & Kasmir.
While he was working at J&K, he was prosecuted and eventually convicted for an offence punishable under Section 376 of the Act and was accordingly awarded 5 years rigorous imprisonment by the competent court at J&K on 10.3.1993.
This sentence was confirmed by another competent authority at New Delhi on 20.5.1993 as per Rules applicable.
The writ petitioner was to begin with kept at Central Jail at J&K but after some time, he was shifted to Central Jail at Jodhpur (Rajasthan) to undergo remaining jail sentence.
The appellant then filed appeal against the order of conviction from Central Jail Jodhpur before appellate authority i.e.(D.G.) at New Delhi.
The appellate authority by its order dated 27.7.1995 dismissed the appeal and upheld the order of conviction.
As a consequence, the appellant was dismissed from service on 10.3.1998.
All these orders were then communicated to appellant at Central Jail, Jodhpur because at that point of time, the appellant was undergoing jail sentence at Jodhpur.
6.
The appellant felt aggrieved of his conviction order so also the appellate order and his dismissal order filed a writ petition out of which this appeal arises and questioned their legality and propriety.
According to him, since the impugned ordeRs.i.e.orders of conviction so also the dismissal were served on the appellant at Central Jail at Jodhpur while he was undergoing his jail sentence and hence part of the cause of action accrued at Jodhpur for filing a writ petition in High Court at Jodhpur to question these orders.”
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From the above judgment, it is apparent that the Division Bench held that service of orders at Jodhpur would be constituting a part cause of action at Jodhpur for filing a writ petition.
The Supreme Court in State of Punjab v.
Amar Singh 5 Harika : AIR1966SC1313 held as under:- “The fiRs.question which has been raised before us by Sr.Bishan Narain is that though the respondent came to know about the order of his dismissal for the fiRs.time on 28th May 1951, the said order must be deemed to have taken effect as from the 3rd June 1949 when it was actually passed.
The High Court has rejected this contention; but Mr.Bishan Narain contends that the view taken by the High Court is erroneous in law.
We are not impressed by Mr.Bishan Narain's argument.
It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned.
If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order.
It may be that in some cases, the authority may feel that the ends of justice would be met by demoting the officer concerned rather than dismissing him.
An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned.
If it is held that the mere passing of the order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise.
If before receiving the order of dismissal, the officer has exercised his power and jurisdiction to take decisions or do acts within his authority and power, would those acts and decisions be rendered invalid after it is known that an order of dismissal had already been passed against him?.
Would the officer concerned be entitled to his salary for the period between the date when the order was passed and the date when it was communicated to him?.
These and other complications would inevitable arise if it is held that the order of dismissal takes effect as soon as it is passed, though it may be communicated to the officer concerned several days thereafter.
It is true that in the present case, the respondent had been suspended during the material period; but that does not change the position that if the officer concerned is not suspended during the period of enquiry, complications of the kind already indicated would definitely arise.
We are, therefore, reluctant to hold that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it will take effect as form the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published.
When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working and holding charge of his office, 6 can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority.
In our opinion, therefore, the High Court was plainly right in holding that the order of dismissal passed against the respondent on the 3rd June 1949, could not be said to have taken effect until the respondent came to know about it on the 28th May 1951.”
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(Emphasis Supplied) In the above judgment, the Supreme Court held that a order of dismissal becomes effective only on it being communicated to the concerned employee.
Further in Bikas Bhushan Ghosh & Ors.v.Novartis India Limited & Anr.: (2007) 5 SCC591 the Supreme Court opined as under:- “14.
Yet again appellants being workmen, their services were protected in terms of the Industrial Disputes Act, 1947.
If their services were protected, an order of termination was required to be communicated.
Communication of an order of termination itself may give rise to a cause of action.”
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(Emphasis Supplied) In Balu Singh v.
Union of India & Ors.:1996(1) RLW(Raj.) 413, a Division Bench of this Court after considering judgments in State of Rajasthan & Ors.v.M/S.Swaika Properties & Anr.: (1985) 3 SCC217and Oil & Natural Gas Commission v.
Utpal Kumar Basu & Ors.: (1994) 4 SCC711 held as under:- “(9).The two decisions of the Hon’ble Supreme Court, discussed above, do not overrule the decision of this Court in Prem Cables Private LTD.(supra).Whether any part of cause of action has accrued within the jurisdiction of a Court would depend upon the facts and circumstances of the given case.
In this case, where the appellant was recruited in Rajasthan, pension, if payable, was to be paid in Rajasthan and the refusal to pay the pension was also communicated within the jurisdiction of this Court.
Then, irrespective of the fact that the respondents do not reside within the Jurisdiction of this Court, the writ petition can be entertained by this Court as a part of cause of action has accrued here.”
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(Emphasis Supplied) In view of the above, it is apparent that communication of the order of punishment to the officer concerned is sine qua non 7 for making the same effective and communication of the order may give rise to a cause of action and as has been held in the case of Manohar Singh (surpa).it does give a part cause of action.
It may also be observed that no distinction can be made between the service of order of dismissal/removal passed by the Disciplinary Authority and the order of Appellate Authority rejecting an appeal filed against the order of dismissal/removal.
When an appeal is filed against the order of removal and the Appellate Authority passed an order thereon, the order of the Disciplinary Authority would merge into the Appellate Authority’s order and, therefore, the principles governing case of action with respect to the order issued by the Disciplinary Authority have to be applied to orders issued by the Appellate Authority.
So far as the judgment in the case of Rajesh Jangu (supra) is concerned, the Division Bench in the said order ruled as under:- “The petitioner was serving at Hazaribagh in the State of Jharkhand when the order of termination was passed against him.
The cause of action for challenging the order of termination and any other consequential order including the challenge to the Rules, had arisen to the petitioner in the State of Jharkhand.
We do not find that the cause of action or any part of cause of action has arisen to the petitioner in the State of Rajasthan, nor the permanent residence of the petitioner and the address on which the order is communicated, will give jurisdiction to decide this case in the State of Rajasthan.
The writ petition is dismissed for the lack of territorial jurisdiction with liberty to the petitioner to approach the appropriate court in accordance with law.”
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From the perusal of the order, it is apparent that neither the aspect regarding accrual of cause of action was considered nor the earlier judgments of this Court in Balu Singh (supra) and 8 Manohar Singh (supra).which are binding precedents were brought to the notice of the Division Bench and as the order has been passed in ignorance of the binding precedents, the judgment in the case of Rajesh Jangu (supra) apparently cannot be followed and it is the law laid down in the case of Balu Singh (supra) and Manohar Singh (supra).which would be binding.
So far as the judgment in the case of B.K.S.Yadav (supra) is concerned, in view of what has been discussed hereinbefore, the judgment is apparently not applicable to the facts of the present case.
In view of the above discussion, it is apparent that as the appellate order was served on the petitioner at Sriganganagar (Rajasthan).a part cause of action has arisen within the territorial jurisdiction of this Court and, therefore, the writ petition filed by the petitioner is maintainable before this Court.
The preliminary objection raised by the respondents is, therefore, overruled and rejected.
List the writ petition for orders on application after four weeks.
(ARUN BHANSALI).J.
PKS