Devendra Singh Negi V. Union of India

SPA/42/2018

AI Insights

The case involves Devendra Singh Negi, the appellant, who was dismissed from service as a 'Lance Naik' in the Border Security Force (BSF) and challenged this dismissal through a writ petition filed in 2004. The initial writ petition was dismissed by the learned Single Judge on the grounds of lack of territorial jurisdiction, as the orders challenged were passed by authorities outside the jurisdiction of the High Court. The appellant argued that the High Court should have considered the precedent set by the Supreme Court in Nawal Kishore Sharma Vs. Union of India & Ors., which supported his claim that a part of the cause of action arose within the jurisdiction of the Patna High Court. The High Court of Uttarakhand, after reviewing the submissions and the history of the case, decided to set aside the dismissal of the writ petition and remand the case back for a decision on the merits, noting that the issue of territorial jurisdiction was not raised at earlier stages of the proceedings.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 800494 (HC-UTTARAKHAND)
• Appeal Type: Others
• Pronouncement Date: 08-05-2018
• Assessment Year: misc
• Other Referred Cases: Naik Nakul Deo Singh Vs. Deputy Commandant, C.I.S.F. and Ors. (1999) 3 KLT 629 (FB), The Registrar, Indian Maritime University East Coast Road Vs. Dr. K.G. Viswanathan and another (2004) 4 KLJ 640
• Laws Referred To: Nawal Kishore Sharma Vs. Union of India & Ors. (2014) 9 SCC 329
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: LALIT SHARMA
• Assessee Lawyers: AMAR SHUKLA
• Keywords: Disciplinary action; Dismissal from Service; Territorial jurisdiction; Writ petition

Judgement Text

" IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 42 of 2018 Devendra Singh Negi ...Appellant Vs. Union of India and others ..Respondents Mr. Amar Shukla, Advocate for the appellant Mr. Lalit Sharma, Standing Counsel for the respondents Coram: Hon’ble K.M. Joseph, C.J. Hon’ble Sharad Kumar Sharma, J. K.M. Joseph, C.J. (Oral) 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. 2. 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 2 jurisdiction upon it and the writ petition was dismissed. 3. 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. 4. 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: “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 3 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. 21. 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 4 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. 22. 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.” 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. 5 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. 7. 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. 8. 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, 6 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. 9. 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. (Sharad Kumar Sharma, J.) (K.M. Joseph, C.J.) 08.05.2018 08.05.2018 Mahinder/ "