Baldev Singh vs Union of India (UOI) and Others

G.S. Singhvi, J.—By this order, we are deciding the preliminary objection raised by the respondents to the maintainability of the petition before this Court. The petitioner has prayed for quashing of the proceedings of Summary Court Martial, finding and sentence imposed upon him. He has also prayed for award of damages to the tune of Rs. two lacs for his alleged illegal detention and confinement and also for restoration of all service benefits like pay, allowances, seniority and rank etc.

In order to decide whether the preliminary objection raised by the respondents to the jurisdiction of this Court is sustainable or not, we may refer to some of the facts. The petitioner was enrolled in the Engineering Branch of Army on 1.8.1979. He was promoted as L. Naik on 26.1.1988 and then as Paid-Acting Naik w.e.f. 24.6.1989. On 20.2.1991, the petitioner was ordered to move to 702 Engineering Plan Unit on posting. He filed a representation against it but the same was turned down vide Annexure P-1 dated 16.5.1991 written by the Offg. OIC Records, Bombay, Engineer Group, Khadki, Pune. On 24.4.1992 the petitioner was ordered to move to 116 Engineering Regiment which was then located in North Sikkim. It appears that the petitioner did not join and, therefore, he was served with a charge sheet for three offences. He was also put under arrest on 30.11.1993. Summary Court Martial proceedings were held against him. At the conclusion of the proceedings of Summary Court Martial, the petitioner was sentenced to suffer rigorous imprisonment for two months vide Annexure P-3 dated 1.3.1994. Thereafter the petitioner was posted with 116 Engineering Regiment c/o 56 APO. The petitioner has challenged the impugned proceedings on the ground of violation of Army Act and the principles of natural justice. He has also levelled allegations of mala fides against the respondents and has pleaded that entire action was taken against him for alleged violation of a patently illegal order of transfer and, therefore, entire proceedings are liable to be quashed.

The respondents have contested the writ petition on merits. At the same time, they have raised the objection to the maintainability of the writ petition before this court by stating that the petitioner had absented from duty between 5.7.1993 and 30.11.1993 on which date he surrendered himself at R.C. Centre, Kirkee, Pune. There he was subjected to trial and was awarded sentence. The respondents have pleaded that cause of action has not accrued to the petitioner within the territorial jurisdiction of this Court and, therefore, the writ petition cannot be maintained by the petitioner before this High Court.

To meet the preliminary objection raised by the respondents, the petitioner has stated in his replication that 116 Engineering Regiment in which the petitioner has now been posted is located at Zirakpur which falls within the territorial jurisdiction of the Punjab and Haryana High Court and, therefore, the writ petition is maintainable.

Article 226(1) empowers the High Court to issue to any person or authority including any Government, directions orders or writs throughout the territory in relation to which it exercises jurisdiction. Clause (2) of Article 226 gives further power to the High Court to exercise power to issue writs in relation to the territory within which cause of action wholly or in part arises notwithstanding the fact that the seat of such Governmental authority or residence of such person is not within this territory. Therefore what we have to sec is whether in respect of the prayer made by the petitioner for quashing of Summary Court Martial Proceedings, this Court has jurisdiction to issue a writ. It is an admitted position that the petitioner was charged with the allegation of having absented from duty between 5.7.1993 to 30.11.1993 when he was directed to report at Sikkim. The concerned unit was at the relevant time stationed at Kirkee, Pune. The petitioner surrendered at Pune on 30.11.1.993. The Court Martial proceedings were held at Pune and final sentence and punishment were awarded to the petitioner at Pune. Only thereafter the unit moved to Zirakpur. It is, thus, clear that neither the impugned order has been passed within the territorial jurisdiction of this Court nor a part of cause of action accrued within the territorial jurisdiction of this Court. The mere fact that at a subsequent point of time the unit moved to Zirakpur cannot confer jurisdiction upon this court to decide the locality or otherwise of the Summary Court Martial proceedings. We therefore, hold that in respect of the prayer made by the petitioner for quashing of the proceedings of Summary Court Martial and for grant of consequent relief, this Court does not have territorial jurisdiction. In this connection, we may refer to a decision of the learned Single Judge of this Court in Gurnam Singh Vs. Union of India (UOI), . That was a case in which General Court Martial proceedings held against the petitioner during his attachment to Jat Regiment Centre, Bareilly were challenged before this Court. The proceedings were held within the territory of the State of Uttar Pradesh and the sentence was also awarded to the petitioner during his posting in Uttar Pradesh. The Chief of Army Staff rejected the pre-confirmation petition filed by the petitioner to commute the sentence to that of dismissal from service. Thereafter the petitioner filed a post-confirmation petition which was also dismissed by the Central Government. After this had happened, the petitioner settled at Patiala. He challenged the General Court Martial Proceedings and the sentence awarded to him. On a preliminary objection raised by the respondents to the maintainability of the writ petition before this Court, N.K. Sodhi, J. held :-

"mere service of notice at Patiala where the petitioner chose to, settle in life does not constitute any part of the cause of action which could be said to have arisen within the territorial jurisdiction of this Court so as to entitle the petitioner to file the present petition and, therefore, the petition is barred under Article 226(2) of the Constitution."

In this view, Sodhi, J. relied on the decision of the Supreme Court in State of Rajasthan and Others Vs. Swaika Properties and Another, ; a decision of the Allahabad High Court in Daya Shanker Bhardwaj Vs. Chief of the Air Staff, New Delhi and Others, and a decision of this Court in M/s. Eider Telecom Ltd. v. Union of India and Ors. 1993(1) CLJ 762. We respectfully agree with the view expressed by Sodhi, J. and hold that this Court does not have jurisdiction to entertain the petition under Article 226 of the Constitution of India in respect of Summary Court Martial proceedings held at Pune and the sentence imposed upon the petitioner by the respondents when the unit of the petitioner was stationed at Pune.

It would also be useful to refer to the decision of the Supreme Court in Oil and Natural Gas Commission Vs. Utpal Kumar Basu and Others, . That was a case in which Oil and Natural Gas Commission issued advertisement dated 27.6.1991 inviting tenders for setting up of a kerosene processing unit at Hazira Complex, Gujarat. The decision regarding award of contract was taken at New Delhi. A writ petition was filed by M/s. Nicco in Calcutta High Court challenging the award of contract to M/s. Cimmce Ltd. The Calcutta High Court entertained the writ petition and directed the respondents to consider the offer made by the petitioner. The Oil and Natural Gas Commission challenged the order of the High Court by way of Special Leave Petition. Their Lordships reversed the order of the High Court and held that merely because the advertisement was circulated through newspaper in Calcutta and offer was made from Calcutta cannot constitute facts forming integral part of cause of action. The Apex Court also held that sending a message by fax from Calcutta and receipt of reply would also not constitute integral part of cause of action.

The aforementioned decision of the Supreme Court clearly supports the preliminary objection raised by the respondents to the maintainability of the writ petition in this Court.

For the reasons stated above, we uphold the preliminary objection and hold that this Court does not have territorial jurisdiction to entertain a writ petition involving challenge to the Summary Court Martial Proceedings held at Kirkee (Pune) and the sentence imposed upon the petitioner at that place. Consequently, the writ petition is dismissed.