Sri Alok Das V. The Union of India and The Central Industrial Security Force and The Senior Commandant, Central Industrial Security Force, Bhakokoli and The Appellate Authority, Central Industrial Security Force, Bhakokoli

WP(C)/658/2016

AI Insights

The case involves Sri Alok Das, a former Rifleman (GD) with the Central Industrial Security Force (CISF), who was removed from service following disciplinary proceedings. The removal was based on allegations that he was using his mobile phone and was not alert on duty during a night shift, which led to his involvement with criminal elements and an attempted theft. The disciplinary authority and the appellate authority upheld his removal, leading him to challenge the decision in the High Court of Tripura. The primary legal issue was whether the Tripura High Court had territorial jurisdiction to hear the case, given that all events related to the disciplinary action occurred in Dhanbad, Jharkhand.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 811198 (HC-TRIPURA)
• Appeal Type: Others
• Pronouncement Date: 05-08-2020
• Assessment Year: misc
• Other Referred Cases: Nawal Kishore Sharma versus Union of India and others, Bharat Kumar Ghosh versus Union of India and others
• Laws Referred To: Article 226 of the Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: H DEB
• Assessee Lawyers: A BHOWMIK
• Keywords: Disciplinary Authority; Removal from service; Territorial jurisdiction; Mobile phone use on duty; Criminal elements involvement

Judgement Text

" Page - 1 of 13 HIGH COURT OF TRIPURA _A_G_A_R_T_A_L_A_ W.P(C) No.658 of 2016 Sri Alok Das, S/o. Sri Agniswar Das, R/o + Vill- Subhashnagar, P.O. East Pratapgarh, P.S. West Agartala, District- West Tripura. …………… Petitioner(s). Versus 1. The Union of India, represented by its Secretary to the Ministry of Home Affairs, Government of India, North Block Central Secretariat, New Delhi, 110001. 2. The Central Industrial Security Force, represented by its Director General, Block No.13, CGO Complex, Lodhi Road, New Delhi, 110003. 3. The Senior Commandant, Central Industrial Security Force, Bhakokoli, P.O. Koilanagar, District- Dhanbad, Jharkand. 4. The Appellate Authority, Central Industrial Security Force, Bhakokoli, P.O. Koilanagar, District- Dhanbad, Jharkand. …………… Respondent(s). _B_E_F_O_R_E_ HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI For Petitioner(s) : Mr. A. Bhowmik, Advocate. For Respondent(s) : Mr. H. Deb, Asst. S.G. Date of hearing : 18th May, 2020. Date of Judgment : 5th August, 2020 Whether fit for reporting : NO. J U D G M E N T & O R D E R The petitioner has challenged an order dated 12.01.2016 passed by the Sr. Commandant, Central Industrial Security Force (CISF, for short) by which he was removed the petitioner from service. Page - 2 of 13 [2] Brief facts are as under : The petitioner joined the service of CISF as a Rifleman (GD) on 16.06.2007. In the year 2015, the petitioner was posted at Katapahari area which fell within the Dhanbad District of State of Jharkhand. According to the department, on 09.09.2015 while the Executive Inspector Shri Yadav was inspecting the site where the petitioner was posted, it was found that the petitioner was using his mobile phone and was not alert on duty. The mobile phone of the petitioner was seized by the Inspector and, thereafter, it was revealed that the petitioner was involved with criminal elements and an incident of attempt of theft was exposed. A charge-sheet dated 23.10.2015 was, therefore, issued against the petitioner by the disciplinary authority. The allegations in the charge sheet, in brief, were that the petitioner was assigned the night duties between the night of 9th and 10th September 2015 at Katapahari in Dhanbad Unit of CISF. While the petitioner was on duty, at about 2230 hours, Inspector Shri Yadav carried out his routine check and found that the petitioner was operating his mobile phone and was, therefore, not alert. His mobile phone was seized. When the phone was in the custody of the Inspector, a call was received from the said mobile and from the conversation of the caller it was found that an attempted theft was being made. As per the Inspector, the caller informed that he was coming down and asked whether it was Page - 3 of 13 safe for doing so. The Inspector told him to come down and kept a vigil. Again the caller phoned and asked if that was the delinquent Mr. Das. The Inspector replied in the affirmative. He sent a team to arrest the thieves who, however, slipped away taking advantage of the darkness of the night. Search of the surrounding area revealed that one empty can of 34 gallons was found. [3] The petitioner denied the charges upon which a departmental inquiry was conducted. Several witnesses were examined. The Inquiry Officer held that the charges were proved. The disciplinary authority reassessed the evidence and held that the charges were proved upon which the impugned order came to be passed. The petitioner challenged the order of the disciplinary authority before the appellate authority. His appeal was dismissed by an order dated 04.03.2016. Hence, this petition. [4] Learned Advocates for both sides have made detailed submissions on the question of jurisdiction as well as merits. However, before entering into the merits, I must decide the question of jurisdiction. This question has been raised by the respondents contending that this Court has no territorial jurisdiction in view of the fact that no part of the cause of action has arisen within the jurisdiction of this Court. The petitioner in the petition with respect to territorial jurisdiction has merely stated as under : Page - 4 of 13 “3. That, the cause of action for filing this instant petition arose within the territorial limits of this Honourable High Court and as such this Honourable High Court has the territorial jurisdiction to entertain this instant petition under Article 226 of the Constitution of India.” [5] In an affidavit-in-reply dated 15.09.2016 filed by one Nemhas Tirkey, Sr. Commandant, CISF Unit, Dhanbad has raised the question of territorial jurisdiction as under : “6. That, the respondent raises the preliminary objection regarding maintainability of instant writ petition due to lack of territorial jurisdiction. The petitioner has filed the instant writ petition in the Hon’ble High Court of Agartala in Tripura where the cause of action has not arisen. The petitioner was on the posted strength of CISF Unit BCCL Dhanbad and awarded the penalty of Removal from service by the Commandant CISF Unit BCCL Dhanbad and the appeal preferred by him was also disposed off by the DIG CISF Unit BCCL Dhanbad. Hence, the entire cause of action of this case lies with CISF Unit BCCL Dhanbad under territorial jurisdiction of Hon’ble High Court of Jharkhand at Ranchi. As such most respectfully submitted before the Hon’ble Court that the instant writ petition is liable to be dismissed on ground of territorial jurisdiction.” [6] In response to the said affidavit, the petitioner has filed a rejoinder in which his contention with respect to jurisdiction is as under : “ That, the Petitioner denies the issue of this Honourable High Court not having the territorial jurisdiction in this case as the Petitioner had filed the appeal from Tripura before the Appellate authority by way of Registered post and thereafter the appellate authority also communicated the order of rejection of appeal to the Petitioner at Tripura. Therefore, part of cause of action arose within the territorial jurisdiction of this Honourable High Page - 5 of 13 Court and as such this Honourable High Court has the territorial jurisdiction to entertain this instant petition under Article 226 of the Constitution of India. Copy of the postal receipt showing that the petitioner had filed the appeal from Agartala, Tripura is annexed herewith and marked as Annexure-1” [7] I have perused the previous orders passed in the present petition. In none of these previous orders the question of territorial jurisdiction was dealt with. The respondents having raised such a specific question of territoriality, that too at the first available opportunity in the reply filed. Such question is required to be decided before the petition can be entertained on merits. It may be noted that the reply was filed on or around 15.09.2016 whereas the order admitting the petitioner was filed on 13.04.2017. Thus, clearly the respondents have raised the question of territorial jurisdiction at the earliest stage and pressed it in service with all seriousness. [8] According to the respondents no part of cause of action having arisen within the limits of this Court, this Court has no territorial jurisdiction to entertain the petition. As against this, the contention of the petitioner as raised in the rejoinder is that the petitioner had filed an appeal against the disciplinary authorities’ order from Tripura and the appellate authority had communicated its order of rejection of the appeal to the Page - 6 of 13 petitioner at Tripura. According to the petitioner, this is sufficient to vest jurisdiction in this Court to entertain the petition. [9] Indisputable facts necessary to decide the question of jurisdiction are that at the relevant time when the alleged misconduct took place, the petitioner was posted at Dhanbad Unit of CISF in the State of Jharkhand. The disciplinary authority was the Sr. Commandant, CISF, Dhanbad. He issued the charge-sheet and had the inquiry conducted which also took place at Dhanbad. He passed his order of removal from service when the petitioner was at the said station. Merely the fact that the petitioner thereafter moved to Tripura from where he preferred appeal to the appellate authority would be of no consequence. The petitioner’s own movement and his action of filing appeal from the place where he was residing, are events not in any manner connected with the cause of action. The cause of action for the petitioner to file the present petition was the order passed by the disciplinary authority as confirmed by the appellate authority. The appellate authority was the DIG, CISF Unit, Dhanbad who had dismissed the appeal of the petitioner. Only question is merely by virtue of communication of such appellate order to the petitioner in Tripura, does this Court get territorial jurisdiction? In this context, learned counsel for the petitioner has relied on a decision of the Supreme Court in case of Nawal Kishore Sharma versus Union of India and others, Page - 7 of 13 reported in (2014) 9 SCC 329. As against this, counsel for the respondents relied on a decision of the Division Bench of this Court in case of Bharat Kumar Ghosh versus Union of India and others, reported in (2018) 1 TLR 305. [10] The decision of the Division Bench of this Court in case of Bharat Kumar Ghosh (supra) is exhaustive and is applicable to the facts of the present case on all fours. In the said case, the petitioner was serving in Border Security Force (BSF). He was posted at a unit in Punjab at the relevant time when a theft was reported from the office of the Commandant where he was serving. In relation to the incident, Security Force Court was constituted to inquire into the charge of dereliction of duty and consequential loss to the department against the petitioner. As a culmination of the inquiry, an order dated 9/10th March, 2015 was passed by the Commandant, BSF, Rampura, Punjab directing that a sum of Rs.1,59,854/- would be recovered from the petitioner. According to the petitioner, when the theft was committed on 13.11.2012, he was under the movement order to attend the Basic Recruitment Training at Jodhpur, Rajasthan. [11] The said order was challenged by the petitioner before the High Court of Tripura. The department appeared and raised the Page - 8 of 13 preliminary contention of territorial jurisdiction of the High Court contending that no part of cause of action had arisen within the jurisdiction of the Court. The learned Single Judge upheld the objection and dismissed the petition. This judgment of the Single Judge was challenged before the Division Bench. In appeal it was argued by the counsel for the petitioner that the impugned order dated 9/10th March, 2015 was served on the petitioner within the jurisdiction of the Court and, therefore, this Court had the jurisdiction to entertain the petition. The Division Bench while dismissing the appeal discussed the entire law on the question and referred to various significant judgments of the Supreme Court including in case of Alchemist Limited and another versus State Bank of Sikkim and others, reported in (AIR) 2007 SC 1812, Kusum ingots and alloys limited versus Union of India and another, reported in (2004) 6 SCC 254, Union of India and others versus Adani exports limited and another, reported in (2002) 1 SCC 567 and Oil and Natural Gas Commission versus Utpal Kumar Basu and others, reported in (1994) 4 SCC 711. The Court came to the conclusion that merely because the impugned order of penalty was communicated to the petitioner at Tripura, would not vest the High Court with the jurisdiction to entertain the petition. The decision in case of Nawal Kishore Sharma (supra) heavily relied upon by the counsel for the petitioner was also noticed. The Division Bench of this Court in case of Bharat Kumar Ghosh (supra) held and observed as under : Page - 9 of 13 “34. We have extensively dwelt on the propositions made in Navin chandra N. Majithia (supra) where a Queen's Bench Division decision has been relied by the apex court. In Read versus Brown : (1888) 22 QBD 128, Lord Esher, M.R., adopted the definition for the phrase \"cause of action\" consolidating that it meant: \"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. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.\"[Emphasis supplied] This part has been extensively used by Sir Mulla while proposing a workable definition of \"cause of action\" in his treaty as stated. \"Even in the context of Article 226(2) of the constitution the apex court has adopted the same interpretation to the expression \"cause of action\", wholly or in part, arises.\" 35. In Swaika Properties (supra) and in Utpal Kumar Basu (supra) by enunciating that it is well settled that the expression \"cause of action\" means that bundle of facts which the petitioner must prove, to entitle him to a judgment. 36. It has been observed in Utpal Kumar Basu (supra) very significantly that : \"If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the court, certain members of the court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule.\" 37. In Adani Exports Ltd. (supra) it has been succinctly held that each and every fact 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 pleaded are such „which have a nexus or relevance with the lis that is involved in the case‟. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. 38. In Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. & Ors., reported in (2006) 3 SCC 658 the apex court has observed as under : \"26. ...... with a view to determine the jurisdiction of one High Court vis-a- vis the other the facts pleaded in the writ petition must have a nexus on the Page - 10 of 13 basis whereof a prayer can be made and the facts which have nothing to do therewith cannot give rise to a cause of action to invoke the jurisdiction of a court.\" 39. According to us, for sifting the relevant facts giving rise to the cause of action or part thereof, even a fraction, this principle is the essential tool to segregate the relevant fact from the irrelevant fact or from the insignificant or frivolous facts. Thus the touchstone would be that the fact having nexus or relevance with the lis, inasmuch as those facts are the media upon which the plaintiff asked the court to arrive at a conclusion in his favour. Thus, the delivery of the impugned order within the territorial jurisdiction is the only fact that has been pressed by the appellant-petitioner to assert that a fraction of cause of action arose within the territorial limit of this court but whether that facts has anything to do with the lis or the dispute involved in the case. The dispute in the case hinges on the manner in which the petitioner has been saddled with the liability to pay a sum of Rs.1,59,845/- in 24 (twenty four) equal instalments for loss caused by his dereliction of duty by the order dated 09/10.03.2015 [Annexure-P/4 to the writ petition]. Thus the communication or delivery of the said order dated 09/10.03.2015 is not a relevant fact for determining the cause of action. 40. Viewed in that perspective, this court is unable to accept the contention of Mr. Deb, learned senior counsel that for delivery or communication of the said order dated 09/10.03.2015 a fraction of cause of action arose within the territorial limit of a court. The said communication cannot be treated as an integral fact giving rise to the cause of action (see National Textile Corporation Ltd. Vs Haribox Swalram: (2004) 9 SCC 786, Para 12.1.) Thus the well entrenched principle of forum conveniens cannot be applied in this case.” [12] In view of the said decision, I have no hesitation in holding that the petition is not maintainable before this Court. To recapitulate the facts of the case on hand, the alleged misconduct took place when the petitioner was posted at a CISF Unit, Dhanbad. His disciplinary authority, Sr. Commandant, Dhanbad passed the order of removal from service. His appeal was entertained by the appellate authority, DIG, Dhanbad. Mere fact that the appellate order was communicated to the petitioner at Tripura Page - 11 of 13 would not be sufficient to vest jurisdiction in this Court to entertain the petition. [13] In case of Nawal Kishore Sharma (supra) the facts are very different. The petitioner therein was an employee of Shipping Corporation of India. He reported sick complaining of abdominal pain and swelling in leg etc. He was sent for medical treatment at Adani Port, Mundra. After physical examination he was found permanently unfit for sea service. The Shipping Department of Government of India, therefore, issued an order dated 12.04.2011 cancelling the registration of the petitioner as a seaman. After this the petitioner settled at his native place at Gaya in Bihar and made several representations for compensation in terms of the service contract. The employer offered several compensations which the petitioner did not accept. The employer was unwilling to pay remaining other claims raised by the petitioner. Thereupon, the petitioner approached the Patna High Court raising several claims. Before the High Court the Corporation raised the question of maintainability on the ground of territorial jurisdiction. It was contended that the petitioner had discharged his duties outside the territory of the State of Bihar. The order passed by the employer declaring him medically unfit was passed at Mumbai. As against this the petitioner contended that he was a permanent resident of Bihar and all communications with respect to the rejection of his claims were made at Page - 12 of 13 his residential address in the State of Bihar. In such a factual background, the Supreme Court in the context of the jurisdiction of the Patna High Court to entertain the petition held and observed as under : “17. 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. 18. 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 Page - 13 of 13 view that no cause of action, not even a fraction of cause of action, has arisen within its territorial jurisdiction. 19. 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.” [14] It can thus be seen that facts involved in the case of Nawal Kishore Sharma (supra) were widely different. The question arising in case on hand is squarely covered by the decision of the Division Bench of this Court in case of Bharat Kumar Ghosh (supra). [15] Hence, the petition is dismissed on this ground without entering into the merits of the challenge to the impugned order. Pending application(s), if any, also stands disposed of. (AKIL KURESHI), CJ Dipesh. "