Union of India (UOI) and Others vs Sudesh Kumar

K.S. Radhakrishnan, C.J.—This appeal has been preferred by the Union of India and two others, aggrieved by the judgment of the Learned

Single Judge dated October 11, 2002, whereby the Learned Single Judge allowed the petitioner's (respondent's) writ petition holding the

departmental enquiry proceedings conducted by the respondents was actuated by bias and directed reinstatement of the petitioner with all

consequential benefits, including promotion. Due to non-implementation of the judgment, a contempt case was also filed the fate of which would

depend on the outcome of this appeal.

Respondent (writ petitioner) is employed as SI (Electrician) in the Indo-Tibetian Border Police (ITBP). While he was working in ITBP

Academy Mussoorie, he was transferred to SPT Battalion Karera, Madhya Pradesh on July 12, 1989 with a direction to join duty on July 21,

1989. Petitioner did not join the duty and remained absent for 146 days, unauthorisedly. Petitioner reported for duty at SPT Battalion Karera on

December 15, 1989 (FN), but was found guilty of disobedience of the order, neglect of duty and misconduct in his capacity as a member of Force

u/s 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955. On joining duty, he again applied for 10 days' casual leave which was

granted from July 30, 1990 to August 12, 1990 (AN), but he again absented from duty for 95 days which also amounted to disobedience of

orders, neglect of duty and misconduct in his capacity as member of the Force u/s 11(1) of CRPF Act, 1949. Again, he left the Unit Lines without

sanction of leave by competent authority unauthorisedly making an entry in GD Register on November 17, 1990 and absented himself, and was

again found guilty of disobedience of order, neglect of duty and misconduct. Petitioner had proceeded on 10 days' casual leave with effect from

January 1, 1991 to January 13, 1991, but inspite of repeated instructions did not report for duty, committing gross misconduct.

A memo of charges dated September 5, 1991 alongwith the statements of articles of charges I to IV, statement of imputation in support of each

article of charges 1 to IV, a list of witnesses, list of documents relied on, were delivered to the petitioner by the competent officer. Petitioner

pleaded not guilty and contention was raised that he had absented himself for the conduct of his personal cases and for reasons beyond his control.

Further, it was contended that the charges leveled against him were motivated, since he had exposed the illegality committed in payment of training

allowance to the officers and, therefore, attracted their wrath.

We heard Mr. M.K. Bhardwaj, Learned Counsel for the Union of India, and the petitioner, who appeared in person. The memo of charges

dated September 5, 1991 alongwith the statement of allegations, list of witnesses, list of documents also were made available to the petitioner, to

which the petition pleaded not guilty. We find initially one Mr. Pratap Singh, then Assistant Commandant was appointed as Enquiry Officer and on

a representation made by the delinquent, the Enquiry Officer was changed and one Jai Singh, then Second-in-Command was appointed as Enquiry

Officer and later Shri R.T. Kotwal, then Commandant was appointed as Enquiry Officer, who completed the enquiry.

During the enquiry, 7 prosecution witnesses were examined and 78 exhibits were produced in support of the charges and the Enquiry Officer

submitted his report on December, 5, 1992, rendering his findings on all the charges. Petitioner in his statement while defending his case had stated

that he had applied for leave for conducting certain cases, no orders were passed on those leave applications. The petitioner did not produce oral

or documentary evidence in support of his petition and did not avail of the opportunity of cross-examining some of witnesses examined on behalf of

the prosecution. Enquiry Officer found all the charges proved. The delinquent was given a copy of the enquiry report on January 13, 1993, giving

him an opportunity to file his objections to the report. The delinquent submitted his representation to the enquiry report on January 25, 1993.

Based on the enquiry report he was dismissed from service on March 20, 1993 by the competent authority.

The delinquent officer challenged the order of dismissal before the Madhya Pradesh High Court by filing writ petition No. 557/1993 which was

disposed of by a Learned Single Judge of that Court, directing the petitioner to avail of the remedy of departmental appeal. Petitioner then filed a

Letters Patent Appeal No. 31/1994 before the Division Bench of the Madhya Pradesh High Court. The Division Bench vide judgment dated

October 6, 1994 remanded the matter back to the Single Bench for fresh consideration on merits. The Learned Single Judge, however, allowed

the writ petition and set aside the dismissal after noticing that there was total non-application of mind by the disciplinary authority. Learned Single

Judge observed as follows:

It may be true that the petitioner might be avoiding the enquiry but nonetheless the disciplinary authority cannot be absolved of its responsibility to

pass proper speaking order showing the due application of mind without being prejudice of extraneous considerations. Nothing of this kind

appears in the impugned order. There is nothing for this Court except to hold that the impugned order of the disciplinary authority is totally non-

speaking order and it cannot be sustained in law. The disciplinary authority under the garb of the disciplined force, cannot be permitted to give a

goby to the rule of law. Therefore, they are under obligation to properly apply their mind and consider the matter and then pass a proper order.

Holding so, the Learned Single Judge quashed the order of dismissal and remanded the matter back to the disciplinary authority for passing a

speaking order.

The Department in due deference to the judgment of the Learned Single Judge, passed an order on October 12, 1995, reinstating the delinquent

officer in service with effect from March 22, 1993. The period from March 22, 1993, i.e., the date of dismissal to September 20, 1995 was

treated on duty for all purposes. The disciplinary authority, however, passed a detailed order on the same day, dismissing the delinquent officer

from service in exercise of powers conferred under Rule 27 of the CRPF Rules, 1955. It was ordered that the period of absence mentioned in the

articles of charge wherever these periods had not been regularized, would be treated as dies non and it would not be counted for any purpose.

The order of dismissal was again challenged before the Madhya Pradesh High Court by the petitioner by filing writ petition No. 928/1996. The

Learned Single Judge allowed the writ petition holding that disciplinary authority had acted with a closed mind, therefore, it would not be proper to

remand the case back to the disciplinary authority. The Learned Judge, therefore, directed that the entire case of the petitioner be placed before

the Appellate authority, i.e., Director General, for consideration. Further, it was ordered that the Director General would afford an opportunity to

the delinquent officer and consider whether punishment awarded was harsh and excessive. Later in a review petition filed by the department, it was

ordered by the Madhya Pradesh High Court that the matter be disposed of by the Inspector General, who is the Appellate Authority under Rule

28 of CRPF Rules, 1955.

The Inspector General (HQ) Office of the Directorate General, ITB Police (MHA) then passed the impugned order on January 1, 1998 after

perusing the evidence on record, report of the Enquiry Officer, the representation submitted by the delinquent officer and submissions made by him

at the time of personal hearing. Even though the charges leveled against the delinquent officer stood established, latter the Appellate Authority

ordered that the order of dismissal from service would be too harsh and hence imposed the punishment of compulsory retirement from service.

Petitioner has challenged that order before this Court in SWP No. 850/2000 and a Learned Single Judge of this Court allowed the writ

petition, holding that the enquiry proceedings were actuated by bias and ordered the finding recorded by the Madhya Pradesh High Court would

stand. Learned Judge ordered the re-instatement of the delinquent officer with all consequential benefits, including promotion. However, it was

ordered that the authorities would be free to hold fresh enquiry and proceed in the matter in accordance with law. Aggrieved by this judgment, the

Union of India and the officer have come up in appeal.

Mr. M.K. Bhardwaj, Learned Senior Advocate appearing for Union of India, submitted that the Learned Single Judge has committed grave

error in interfering with the departmental proceedings. Learned Counsel submitted that the Learned Single Judge has completely misunderstood the

directions given by the Madhya Pradesh High Court in writ petition No. 928/1996. Learned Counsel submitted that the Division Bench of the

Madhya Pradesh High Court did not interfere with the enquiry report but only directed the Appellate Authority to consider the entire matter and

not the disciplinary authority. As directed, the Appellate Authority has passed a reasoned order, Counsel submitted, Learned Single Judge was not

justified in re-appreciating the facts as if sitting in appeal. Counsel submitted that judicial review cannot be extended to re-examination of the

correctness of the charges as if it was an appeal. Learned Senior Counsel submitted that even the writ petition itself is not maintainable before this

Court since no cause of action arose within the jurisdiction of this Court. Quest

Respondent, appearing in person, submitted that there is no illegality in the judgment passed by the Learned Single Judge. He submitted that he

had approached the Madhya Pradesh High Court on various occasions and favourable orders were passed by the Madhya Pradesh High Court

and there is no justification in upsetting those orders passed by the Learned Single Judge or else it would cause considerable prejudice and mental

agony to him. Respondent submitted that he has been dragged to the Court on several occasions burdening him with considerable financial

commitments. Respondent also submitted that in the interest of justice this Court should entertain the writ petition. Reference was also made to a

judgment of the Supreme Court in Lt. Col. Khajoor Singh Vs. The Union of India and Another, and few other judgments of this High Court.

We may first examine whether this Court has jurisdiction to entertain the present writ petition. Cause of action, in our view, arose within the

jurisdiction of Madhya Pradesh High Court, since the memo of charges was served on the delinquent while he was working in Madhya Pradesh.

Petitioner was first transferred while he was working at Mussoorie and later the delinquent had, therefore, rightly invoked the jurisdiction of

Madhya Pradesh High Court on various occasions. Later the impugned order was passed. Appellate Authority was located at New Delhi. Cause

of action, therefore, had arisen wholly or partly in those places. No cause of action wholly or partly arose within the jurisdiction of this Court. The

petitioner claims that he is now staying within the jurisdiction of the within the jurisdiction of this Court and here the Court has got the jurisdiction.

We may point out that mere fact that petitioner is residing within the territorial jurisdiction of this Court would not confer any jurisdiction to this

Court to entertain this case. Identical issue came up for consideration before the Apex Court in several decisions. Reference may be made to the

decision of the Apex Court in Alchemist Limited and Another Vs. State Bank of Sikkim and Others, ; Navinchandra N. Majithia Vs. State of

Maharashtra and Others, and Kusum Ingots and Alloys Ltd. Vs. Union of India (UOI) and Another, . Kerala High Court (where one of us, K.S.

Radhakrishan, was a member constituting the Division Bench) had also occasion to consider a similar issue in Capt. B.S. Prakash v. Food

Corporation of India ILR (2007) Ker 73. The question for consideration in the aforesaid decision was whether the facts averred by the petitioner

would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential of integral part of the

cause of action. Even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court would have the territorial

jurisdiction to entertain the petition. But, as held in Kusum Ingot's case, even if a small part of cause of action arises within the territorial jurisdiction

of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit.

In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniences.

We are of the view that no part of the cause of action arose within the jurisdiction of this Court. The mere fact that the petitioner is residing

within the jurisdiction of this Court and the mere fact that it is convenient for him to approach this Court would not confer jurisdiction on this Court

to entertain this writ petition. Therefore, we are in agreement with the Learned Counsel for the appellants that the writ petition cannot be

entertainable by this Court under Article 226 of the Constitution.

We could have straightaway dismissed the writ petition due to lack of jurisdiction, but since the party in person has appeared, we have

examined the merits of the case as well. We have gone through the records fully and also various orders passed and the reasons stated in the

impugned order. Cogent reasons have been stated by the competent authority in upholding the report of the Enquiry Officer. Detailed enquiry was

conducted, witnesses were examined, documents were produced, opportunity was given to the delinquent to participate in the enquiry

proceedings, copy of the report was given to the delinquent officer, he was allowed to file representation to the report and he was also heard.

Principles of natural justice have been fully complied with. As a member of a disciplinary force, the petitioner should first obey the ditections of the

competent authority but instead he had availed unauthorized leave for his personal benefit not once, at several occasions which would undermine

the discipline of the force and would set a bad precedent for others to follow. Statements made by the prosecution witnesses. The statements

made by the prosecution witnesses, namely, HC Surender Nath Singh read with Exhibit Nos. 2 to 14 would clearly establish that the delinquent

had willfully absented himself from duty and avoided to produce himself for check up in Government Hospital or in the Unit hospital located at

Jammu. The delinquent had neither cross-examined the witness Surender Nath Singh nor produced any defence witness in support of his defence.

Leaving the armed force without sanctioned leave, amounts to an act of indiscipline. In our view the appellate authority has rightly come to the

conclusion that the delinquent intentionally disobeyed the orders of the Commandant and willfully remained absent from duty without proper leave

and permission for such a long period. We find it unable to subscribe the view expressed the Learned Single Judge. Reason stated by the Madhya

Pradesh High Court which was reiterated by the Learned Judge also, therefore, cannot be sustained.

Law is well settled by the decision of the Apex Court in Principal Secy. Govt. of A.P. and Another Vs. M. Adinarayana, that a Writ Court

cannot sit as a court of appeal over a decision based on the finding of the enquiry authority in disciplinary proceedings. Where there is some

relevant material which the disciplinary authority has accepted and which material reasonably supported the conclusions reached by the disciplinary

authority, it is not the function of the Court to review the same and reach a different conclusion. The truth or otherwise of the charge is a matter for

the disciplinary authority to go into. Judicial review cannot extend to the examination of the correctness of the charges as it is not an appeal but only

a review of the manner in which the decision was made. We are of the view that the principle laid down by the Apex Court squarely covers the

facts of the present case.

The Learned Single Judge has, therefore, committed an error on law and on facts in allowing the writ petition. We are, therefore, inclined to

allow this appeal and set aside the judgment of the Learned Single Judge on the question of jurisdiction as well as on merits.

We do so.

In view of this judgment, contempt petition will not lie. The same also is dismissed.