DEVENDRA SINGH NEGI vs UNION OF INDIA AND OTHERS

K.M. Joseph, C.J

Appellant is the writ petitioner. Appellant had filed the writ petition in the year 2004, challenging the order passed by the Disciplinary Authority, by

which he was dismissed from service. (Be it noted that the appellant was employed as “Lance Naik†in the Boarder Security Force (BSF). The

revision carried by him was also rejected. It is these two orders, which the appellant challenge in the writ petition.Â

The learned Single Judge has proceeded on the basis that the impugned orders have been passed by the persons, who are located outside the

jurisdiction of the High Court and mere communication of the order will not confer the jurisdiction upon it and the writ petition was dismissed.Â

We heard Mr. Amar Shukla, learned counsel on behalf of the appellant and Mr. Lalit Sharma, learned Standing Counsel on behalf of Union of India

/ respondents.

Mr. Amar Shukla, learned counsel for the appellant would submit that the learned Single Judge should have placed reliance on the judgment of the

Hon’ble Apex Court in the case of Nawal Kishore Sharma Vs. Union of India & Ors. reported in (2014) 9 SCC 329 . He drew our attention to

paragraphs 20, 21 and 22, which read as follows:Â

“20. We have perused the facts pleaded in the writ petition and the documents relied upon by the Appellant. Indisputably, the Appellant reported

sickness on account of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further

medical treatment. Finally, the Respondent permanently declared the Appellant unfit for sea service due to dilated cardiomyopathy (heart muscles

disease). As a result, the Shipping Department of the Government of India issued an order on 12.4.2011 cancelling the registration of the Appellant as

a seaman. A copy of the letter was sent to the Appellant at his native place in Bihar where he was staying after he was found medically unfit. It

further appears that the Appellant sent a representation from his home in the State of Bihar to the Respondent claiming disability compensation. The

said representation was replied by the Respondent, which was addressed to him on his home address in Gaya, Bihar rejecting his claim for disability

compensation. It is further evident that when the Appellant was signed off and declared medically unfit, he returned back to his home in the District of

Gaya, Bihar and, thereafter, he made all claims and filed representation from his home address at Gaya and those letters and representations were

entertained by the Respondents and replied and a decision on those representations were communicated to him on his home address in Bihar.

Admittedly, Appellant was suffering from serious heart muscles disease (Dilated Cardiomyopathy) and breathing problem which forced him to stay in

native place, wherefrom he had been making all correspondence with regard to his disability compensation. Prima facie, therefore, considering all the

facts together, a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal

disentitling him from disability compensation.

Apart from that, from the counter affidavit of the Respondents and the documents annexed therewith, it reveals that after the writ petition was

filed in the Patna High Court, the same was entertained and notices were issued. Pursuant to the said notice, the Respondents appeared and

participated in the proceedings in the High Court. It further reveals that after hearing the counsel appearing for both the parties, the High Court passed

an interim order on 18.9.2012 directing the authorities of

Shipping Corporation of India to pay at least a sum of Rs. 2.75 lakhs, which shall be subject to the result of the writ petition. Pursuant to the interim

order, the Respondent Shipping Corporation of India remitted Rs. 2,67,270/- (after deduction of income tax) to the bank account of the Appellant.

However, when the writ petition was taken up for hearing, the High Court took the view that no cause of action, not even a fraction of cause of

action, has arisen within its territorial jurisdiction.

Considering the entire facts of the case narrated hereinbefore including the interim order passed by the High Court, in our considered opinion, the

writ petition ought not to have been dismissed for want of territorial jurisdiction. As noticed above, at the time when the writ petition was heard for the

purpose of grant of interim relief, the Respondents instead of raising any objection with regard to territorial jurisdiction opposed the prayer on the

ground that the writ Petitioner-Appellant was offered an amount of Rs. 2.75 lakhs, but he refused to accept the same and challenged the order

granting severance compensation by filing the writ petition. The impugned order, therefore, cannot be sustained in the peculiar facts and

circumstances of this case.â€​

5. Though, Mr. Amar Shukla, learned counsel for the appellant would also draw our attention to two Full Bench judgments of the Kerala High Court

in the cases of Naik Nakul Deo Singh Vs. Deputy Commandant, C.I.S.F. and Ors. reported in (1999) 3 KLT 629 (FB) and The Registrar, Indian

Maritime University East Coast Road Vs. Dr. K.G.

Viswanathan and another reported in (2004) 4 KLJ 640, wherein what is laid down is that, in fact, in disciplinary actions, the original order will merge

with the order of the Appellate Authority and mere communication of the Appellate Authority’s order will only give rise to right of action, but it

will not form as to be cause of action, therefore, mere communication within the State of Uttarakhand, as it is in this case, from the order passed by

the authority, which is sought to be impugned will not constitute part of the cause of action.

He would submit that the case should be governed by the decision of the Hon’ble Apex Court, which he had relied on, and which we have

referred to.

This is a case, where the writ petition was pending since 2004; the writ petition was admitted; a counter affidavit was filed. In the counter affidavit,

there is no reference, whatsoever, to any plea seeking to oust the jurisdiction of this Court on the basis that it does not have territorial jurisdiction.

After hearing the learned counsel for the parties, we are of the view that the facts of this case in particularly, the fact that the writ petition has been

pending since 2004 and pleadings were exchanged, even to the extent of rejoinder affidavit being filed, it may not be just to relegate the petitioner back

to approach another court. In fact, the case was admitted on 14.09.2014, after hearing the respondent’s counsel, who did not raise any issue

relating to the territorial jurisdiction at that stage.

In such circumstances, the appeal is allowed. The judgment of learned Single Judge dated 5th January, 2018 is set aside. Since there has been no

determination on merits, the matter will stand remitted back to the learned Single Judge for determination of the case on merits. We request the

learned Single Judge to dispose of the matter at the earliest.Â