Tilak Raj vs Union of India (UOI) and Others

Sunil Hali, J.—The Petitioner has questioned Order No. Estt/Disc-Trg/80Bn/03/3258-414 dated 22.03.2003 issued by Commandant 80

Battalion BSF by which punishment of dismissal from service w.e.f. 23.03.2003 has been imposed upon him. It is contended that order of

dismissal from service was issued by invoking Section 11 of the BSF Act. The contention of the Petitioner is that while invoking power of dismissal

u/s 11 of the BSF Act, 1968, a show cause notice as contemplated under said Section has not been issued to him. It is also contended that copy

of the proceedings has not been furnished to the Petitioner as required under law.

On the other hand, the stand of the Respondents is that the present petition is not maintainable as this Court lacks territorial jurisdiction to

entertain this petition.

I have heard learned Counsel for the parties and perused the record.

What is contended by the Petitioner is that order of his dismissal from service came to be issued by the Commandant 80 Bn BSF Ramtirath,

Amritsar (Punjab). An appeal is stated to have been preferred against this order which too stand dismissed by the Headquarter, Punjab Frontier,

Border Security Force, Jalandhar Cantt (Punjab) vide communication dated 04.11.2003.

The Respondents have contended that no cause of action has accrued to the Petitioner at Jammu and all that has been done is the

communication of dismissal order at Jammu. It is further stated that this Court has no jurisdiction to entertain this petition.

Learned Counsel for the Petitioner has relied upon the judgment of the Division Bench of this Court entitled Union of India and Anr. v. Narindcr

Singh Mehta reported in 1996 KLJ 470. The facts of that case are that the Petitioner was convicted by Court Martial outside the jurisdiction of

J&K High Court, at Alwar in Rajasthan and the sentence was confirmed and promulgated also there. After confirmation of sentence, post

confirmation appeal filed from Jammu and the decision thereof was also communicated to the Petitioner in Jammu. On the principle of merger of

the order of conviction in the order passed in post confirmation petition which has admittedly been communicated within territorial jurisdiction of

J&K High Court has given cause to the Petitioner in the said petition to file the petition before this Court. The Division Bench upheld the contention

of the Petitioner by holding that the post confirmation appeal of the Petitioner was communicated to him within territorial jurisdiction of Jammu and

Kashmir High Court.

The principle underlining this decision was that the order of the original authority passing a sentence or recording a finding against the aggrieved

person has merged with the order of confirming authority (Central Government). The Petitioner was right in moving this Court, since he received

the communication order on post confirmation petition made by the Central Government while he had been serving in the State of Jammu and

Kashmir. Therefore, the cause of action has arisen within the jurisdiction of this Court.

Mr. Sharma, learned Counsel for the Respondents contends that in the present case order passed u/s 11 of the BSF Act did not require any

post confirmation. The Petitioner should have filed statutory appeal against this order. It has been held that the statutory appeal has been filed

within territorial jurisdiction of this Court. The principle of merger of order would not apply in the present case as was held in the earlier case.

Learned Counsel for the Respondents has placed reliance on a decision of a co-ordinate Bench of this Court passed in SWP No. 57/2007

titled Atal Bihari v. Union of India and Ors., wherein it is held as under:

Be that as it may, the decision of Director General Border Security Force, in exercise of the power vested in him u/s 118 of the Act, having been

taken beyond the jurisdiction of this Court, may not provide any cause of action to the Petitioner to file the Petitioner in this Court merely because

the decision of the Director General had been conveyed to the Petitioner in the State of Jammu and Kashmir. This is so because communication of

the decision of the Director General of Border Security Force, regarding rejection of Petitioner's statutory petition, would not constitute an integral

part of the cause of action. Communication of the decision of Directorate General of Border Security Force to the Petitioner within the jurisdiction

of this Court is not a material fact which would entitle the Petitioner to a judgment in his favour. All those things which are required to be proved by

the Petitioner to get a judgment in his favour having happened beyond the territorial jurisdiction of this Court, the additional factor of

communication of decision of Director General of BSF, cannot be said to have provided the cause of action or part thereof to the Petitioner within

the territorial jurisdiction of the Court.

The present case is squarely covered by the aforementioned judgment passed by the co-ordinate Bench of this Court.

In view of above, I find no force in this petition which is, accordingly, dismissed along with connected CMP(s).