Rajesh Kumar Tomar V. Union of India and ors

WP(C)/40/2021

AI Insights

The case involves Rajesh Kumar Tomar, a serving officer of the Indo-Tibetan Border Police (ITBP), who challenged the findings of a Court of Inquiry and subsequent orders related to his service. The inquiry and orders were issued by authorities based in Lucknow, Uttar Pradesh, concerning events that occurred when Tomar was posted in Gangtok, Sikkim. The legal contention centered on whether the High Court of Jammu and Kashmir had the territorial jurisdiction to hear the case, given that Tomar was transferred to Srinagar, J&K, before the impugned orders were issued. The court concluded that it did not have jurisdiction as the actions and decisions leading to the dispute were outside its territorial scope.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 800302 (HC-JAMMU_AND_KASHMIR)
• Appeal Type: Others
• Pronouncement Date: 08-03-2021
• Assessment Year: misc
• Other Referred Cases: Election Commission of India vs. Saka Venkata Subba Rao, State of Rajasthan vs. Swaika Properties and another, Oil & Natural Gas Commission vs Utpal Kumar Basu, Nawal Kishore Sharma v. Union of India
• Laws Referred To: Article 226 of the Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: VISHAL SHARMA
• Assessee Lawyers: ABHINAV SHARMA; ABIMANYU SHARMA
• Keywords: Extraordinary jurisdiction; Territorial jurisdiction; Court of Inquiry; General Force Court; Quashment of findings

Judgement Text

" IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU WP(C ) 40/2021 CM Nos. 195/2021 & 1084/2021 Reserved on: 01.03.2021 Pronounced on: 08 .03.2021 Rajesh Kumar Tomar ... petitioner Through: -Mr.Abhinav Sharma, Sr. Advocate Mr. Abimanyu Sharma Advocate. Vs. Union of India and ors respondent(s) Through: - Mr. Vishal Sharma, ASGI CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE JUDGMENT 1 The petitioner is a serving officer of Indo-Tibetan Border Police („ITBP‟ for short), presently posted as Commandant (Staff) at Sector Headquarters Srinagar, J&K. He has invoked the extraordinary jurisdiction of this Court vested by virtue of Article 226 of the Constitution to seek quashment of findings of the Court of Inquiry dated 11.05.2020 conducted in pursuance of order dated 27.03.2019 issued by respondent No.3. The petitioner also challenges order dated 19.06.2020 whereby and whereunder „Record of Evidence‟ (ROE) has been ordered against the petitioner for holding his trial by the General Force Court. The consequent orders, including the chargesheet dated 02.11.2020 served upon the petitioner, are also subject matter of challenge in this petition. As a matter of fact, the petitioner has sought multiple reliefs against the respondents. 2 WPC 40/2021 2 Mr. Vishal Sharma, learned ASGI, representing the respondents, has raised a preliminary objection with regard to the maintainability of this petition on the ground that this Court lacks territorial jurisdiction to entertain the instant petition. It is claimed that since no cause of action or part thereof has arisen within the territorial jurisdiction of this Court, as such, this Court lacks territorial jurisdiction to entertain this writ petition. He submits that the Court of Inquiry was ordered by the Inspector General of ITBP, Eastern Frontier, Lucknow (U.P) with regard to the allegations pertaining to the period when he was posted in the Eastern Frontier Headquarter. The subsequent orders for „Recording of Evidence, framing of chargesheet against the petitioner and the order for assembly of a General Force Court etc., have been issued by the authorities located outside the territorial jurisdiction of this Court. He submits that mere passing of the impugned orders when the petitioner was posted in J&K, does not mean that a part of action has accrued in the Union Territory of J&K which is subject to the jurisdiction of this Court. 3 Per contra, Mr Abhinav Sharma, learned senior counsel representing the petitioner, submits that the petitioner was posted as Commandant 11th Bn ITBP, under Sector HQ Gangtok of Eastern Frontier up to 26.02.2019 and on 27.02.2019, he was transferred and posted as Commandant (Staff) at Sector Head Quarters, Srinagar, J&K of North West Frontier. And all the subsequent orders, which are impugned in this petition, have been passed by the respondents 3 WPC 40/2021 while the petitioner was serving in J&K and, therefore, it cannot be said that no part of cause of action has accrued within the territorial jurisdiction of this Court. 4 Having heard learned counsel for the parties on the point of territorial jurisdiction of this Court to entertain this petition, I am of the considered view that the objection raised by the learned ASGI has merit and must sustain. 5 The Court of Inquiry was ordered by respondent No.3 on 27.03.2019 with regard to the allegations pertaining to the period when the petitioner was posted as Commandant 11th Bn, ITBP under Sector Headquarter, Gangtok. The Court of Inquiry was held in the Sector Headquarter of Eastern Frontier. The impugned orders i.e the orders of „Recording of Evidence‟, framing of chargesheet, order for convening of General Force Court, were passed by the authorities located outside the territorial jurisdiction of this Court. The Court of Inquiry was conducted at the Eastern Frontier Headquarters at Aliganj, Lucknow (UP). Simply because, when the orders impugned were passed and the action was initiated, the petitioner was posted in Jammu and Kashmir would not clothe this Court with the territorial jurisdiction to entertain this petition. As a matter of fact, Mr. Abhinav Sharma, learned senior counsel was fair enough to concede that not even a single order pertaining to the enquiry into the allegations against the petitioner has been passed by any authority in Jammu and Kashmir and that the allegations which are being enquired into by the respondents also pertain to the period when the 4 WPC 40/2021 petitioner was posted as Commandant, at Sector Headquarter, Gangtok of the Eastern Frontier. 6 In that view of the matter, the issue which begs determination in this case is, as to whether the service of notice for holding an enquiry or informing the petitioner of the convening of the General Force Court can be tantamount to accrual of cause of action or part thereof within the territorial jurisdiction of this Court. 7 The issue of territorial jurisdiction of High Courts under Article 226 of the Constitution of India has been subject matter of debate in several cases that have come before various High Courts including this Court. In some cases, the matter has landed before the Hon‟ble Supreme Court as well. Prior to the Constitutional (Fifteenth Amendment) Act, 1963, the concept of cause of action was alien for adjudication of disputes by the High Court under Article 226 of the Constitution and the jurisdiction of the High Court under Article 226 of the Constitution was exercisable throughout the territories in relation to which the High Court exercised jurisdiction, meaning thereby that Writs issued by the Court could not run beyond the territories subject to its jurisdiction. 8 The question, whether the concept of cause of action could be imported from the Code of Civil Procedure in Article 226 of the Constitution as it stood prior to the amendment was considered by the Hon‟ble Supreme Court in the case of Election Commission, 5 WPC 40/2021 India vs. Saka Venkata Subba Rao, AIR 1953 SC 210 and this is what was held by the Supreme Court in that case as under: “The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under Article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority within the territories in relation to which the High Court exercises jurisdiction”. 9 When this matter was brought to the notice of the Parliament, looking to the inconvenience felt by the citizens, an amendment was introduced in Article 226 of the Constitution. Clause (2) of Article 226 of the Constitution as was added to Article 226 of the Constitution whereby the concept of cause of action was inserted, reads thus: “226(2). The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories” 10 The issue exercising jurisdiction under Article 226 of the Constitution in the context of cause of action fell for consideration before the Hon‟ble Supreme Court in the case of State of Rajasthan vs. Swaika Properties and another,(1985) 3 SCC 217. In the said case, the precise question that came up for consideration was as to whether the service of notice under Section 52(2) of the Rajasthan 6 WPC 40/2021 Urban Improvement Act, 1959 served upon the Swaika Properties at its Calcutta office was an integral part of cause of action and was sufficient to invest the Calcutta High Court with the jurisdiction to entertain a petition under Section 226 of the Constitution. It may be noted that Swaika Properties owned some land in the outskirts of Jaipur City. The Special Officer of Town Planning Department, Jaipur issued notice under Section 52 of the Act for acquiring the land for public purpose under the Development Scheme. The notice was served upon Swaika Properties at its Calcutta office and in compliance thereto, they appeared before the Special Officer, Town Planning Department, Jaipur and denied the existence of public purpose for acquisition of the land. In the writ petition filed before the Calcutta High Court, an objection was raised with regard to the territorial jurisdiction of the Court to entertain the writ petition. The Calcutta High Court ruled in favour of the writ petitioner and the matter reached the Apex Court. It would be relevant to quote relevant paragraph of the judgment rendered by the Apex Court in the aforesaid case, which reads thus: “………..The mere service of notice under s. 52(2) of the Act on the respondents at their registered of ice at 18-B, Brabourne Road , Calcutta i.e. within the territorial limits of the State of West Bengal , could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to 7 WPC 40/2021 the question whether service of notice is an integral part of the cause of action within the meaning of Art. 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. The notification dated February 8 , 1984 issued by the State Government under Section 52(1) of the Act became effective the moment it was published in the official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer, Town Planning Department Jaipur under Section 52(2) for the grant of an appropriate writ , direction or order under Art. 226 of the Constitution for quashing the notification issued by the State Government under Section. 52(1) of the Act….” 11 To the similar effect is the judgment of the Supreme Court in 1994 SCC (4) 711, Oil & Natural Gas Commission vs Utpal Kumar Basu wherein the Supreme Court considered the meaning of “cause of action” and held that “cause of action” would mean bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Para 6 of the judgment is relevant and is reproduced hereunder: “6. It is well settled that the expression \"cause of action\" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kour v. Partab Singh' Lord Watson said: \"... the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does 8 WPC 40/2021 it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.\" Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of cause of action had arisen within the jurisdiction of the Calcutta High Court.” 12 There is series of judgments by the Supreme Court on the issue and notable amongst them is the judgment in Alchemist Limited and another vs State Bank of Sikkim and others, (2007) 11 SCC 335. In the said case, the Supreme Court considered the parameters and essential elements of cause of action. It was held that the test would be whether a particular fact or facts is/are of substance and can be said to be material, integral or essential part of the lis between the 9 WPC 40/2021 parties. If it is, it forms a cause of action or a part thereof and if it is not, it does not form a part of cause of action. While deciding the issue, the substance of the matter, not the form thereof, has to be considered 13 The observations of the Supreme Court contained in paragraphs 20, 21, 25, 35, 36, 37 and 38 are relevant and are reproduced hereunder. “20.It may be stated that the expression 'cause of action' has neither been defined in the Constitution nor in the Code of Civil Procedure, 1908. It may, however, be described as a bundle of essential facts necessary for the plaintiff to prove before he can succeed. Failure to prove such facts would give the defendant a right to judgment in his favour. Cause of action thus gives occasion for and forms the foundation of the suit”. 21. The classic definition of the expression 'cause of action' is found in Cooke v. Gill, wherein Lord Brett observed: “'Cause of action' means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court\". 25. The learned counsel for the respondents referred to several decisions of this Court and submitted that whether a particular fact constitutes a cause of action or not must be decided on the basis of the facts and circumstances of each case. In our judgment, the test is whether a particular fact(s) is (are) of substance and can be said to be material, integral or essential part of the lis between the parties. If it is, it forms a part of cause of action. If it is not, it does not 10 WPC 40/2021 form a part of cause of action. It is also well settled that in determining the question, the substance of the matter and not the form thereof has to be considered”. 35. Negativing the contention and upholding the order passed by the High Court, this Court ruled that passing of a legislation by itself does not confer any such right to file a writ petition in any Court unless a cause of action arises therefor. The Court stated; (Kusum Ingots case, SCC p.261 para 20) “20. A distinction between a legislation and executive action should be borne in mind while determining the said question\". Referring to ONGC, it was held that all necessary facts must form an 'integral part' of the cause of action. The fact which is neither material nor essential nor integral part of the cause of action would not constitute a part of cause of action within the meaning of Clause (2) of Article 226 of the Constitution”. 36. In National Textile Corporation. Ltd. & Ors. v. Haribox Swalram & Ors, referring to earlier cases, this Court stated that (SCC p.797, para 12.1) “12.1…the mere fact that the writ petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta is not an integral part of the cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained.\" 37. From the aforesaid discussion and keeping in view the ratio laid down in catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the petitioner-appellant, would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or 11 WPC 40/2021 integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a 'part of cause of action', nothing less than that. (Emphasis supplied) 38. In the present case, the facts which have been pleaded by the Appellant Company, in our judgment, cannot be said to be essential, integral or material facts so as to constitute a part of 'cause of action' within the meaning of Article 226(2) of the Constitution. The High Court, in our opinion, therefore, was not wrong in dismissing the petition”. 14 The other equally notable case which has become locus classicus on the point of jurisdiction of the High Court under Article 226 of the Constitution is Nawal Kishore Sharma v. Union of India, (2014) 9 SCC 329. The question fell for consideration of the Supreme Court in the context of facts that Nawal Kishore Sharma, appellant had joined the off-shore Department of Shipping Corporation of India and was transferred to main fleet in the Foreign Going Department. In the year 2009, he was found to be medically fit by Marine Medical Services, but he reported to be sick in the year 2010. He was sent for medical treatment at Adani, Mundra Port where he was advised Hospitalization by the Medical Officer concerned. Thereafter, he was declared medically unfit for „Seaman‟ due to dilated cardiomyopathy. The Government of India, vide its order dated 12.04.2011, cancelled the registration of the appellant as 12 WPC 40/2021 a Seaman. After being relieved from the service, he shifted to his native place Gaya from where he sent several letters/representations to his employer for financial claim. In the disability claim, the Corporation, vide its letter dated 07.10.2011, informed the appellant that since he was declared unfit for the Sea-service due to heart problem, he would be entitled to Rs.2,75,000/-. However, the said amount was not accepted by the appellant and he approached the Patna High Court by way of a writ petition where the issue of maintainability of writ petition with regard to territorial jurisdiction of the Court arose. 15 The Patna High Court ruled that no cause of action or part thereof had accrued within the territorial jurisdiction of the Court and, therefore, the writ petition was not maintainable. The matter reached the Hon‟ble Supreme Court. The Hon‟ble Supreme Court in the aforesaid case held that, answer a question whether the service of notice was an integral part of cause of action within the meaning of Article 226(2) of Constitution of India must depend the nature of the order giving rise to cause of action. The Court further held that every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Court‟s territorial jurisdiction, unless those facts are such which have a bearing with the lis or the dispute involved in the case. The Court also held that even fraction of cause of action would give territorial jurisdiction to the High Court. The observations of the 13 WPC 40/2021 Supreme Court in paragraph 20 and 21 are noteworthy and are reproduced hereunder. “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 14 WPC 40/2021 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 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”. 16 From the aforesaid judgments of the Hon‟ble Supreme Court, the following prepositions can be culled out on the issue of territorial jurisdiction of the High Court under Article 226 of the Constitution: (i) That there is two fold limitations on the power of the High Court to issue writs under Article 226 of the Constitution; (a) The power is to be exercised throughout the territories in relation to which the High Court exercises 15 WPC 40/2021 jurisdiction i.e the writs issued by the Courts cannot run beyond the territories subject to its jurisdiction (b) A person or authority to whom the High Court is empowered to issue such writs must be within those territories which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories. (This was the position of law till the Constitutional (Fifteenth Amendment) Act, 1963 whereby the concept of cause of action was introduced by adding clause (2) to Article 226 of the Constitution). (ii) that the High Court was also conferred the jurisdiction in relation to the territories within which; (a) cause of action, wholly or in part arises; and (b) even a fraction of cause of action is a part of cause of action and is sufficient enough to vest the jurisdiction in the High Court, provided it arises within the territories in relation to which the High Court exercises its jurisdiction; (iii) cause of action or part thereof or fraction of cause of action must be one which is material, integral or essential part of the lis. 17 In the light of the aforesaid propositions of law when the instant case is examined, it becomes evident that the facts pleaded in the writ petition do not indicate or demonstrate that the cause of action or part thereof or even a fraction of cause of action which is integral or material to the lis between the parties has arisen within the territorial jurisdiction of this Court. The allegations which are being enquired into by the respondents pertain to the period when the petitioner was posted as Commandant 11th Bn under Sector HQ 16 WPC 40/2021 Gangtok of Eastern Frontier. The acts or omissions alleged against the petitioners have been committed outside the territorial jurisdiction of this Court. The Court of Inquiry, Record of Evidence and the order convening the General Force Court etc., have been passed by the authorities not located anywhere in Jammu and Kashmir. Simply because the petitioner is posted in Jammu and Kashmir and has been informed of the action envisaged against him in the UT of Jammu and Kashmir is not sufficient to vest the jurisdiction in this Court to entertain the petition. The communications issued to the petitioners informing him about the action initiated against him sent to his address in Jammu and Kashmir do not, by any stretch of reasoning, constitute integral part of cause of action sufficient enough to clothe this Court with the territorial jurisdiction to entertain this petition. 18 For the foregoing reasons, this Court is of the considered view that this Court has no territorial jurisdiction to entertain the present writ petition. The same is, accordingly, dismissed. The petitioner, however, would be at liberty to approach the appropriate High Court for Redressal of his grievance. (SANJEEV KUMAR) JUDGE Jammu 08 .03.2021 Sanjeev Whether the order is speaking: Yes Whether the order is reportable: Yes "