K.Kunchai v. Deputy Inspector General C.R.P.F. & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:- 26.09.2008CORAM:THE HONOURABLE MR. JUSTICE K.K.SASIDHARANW.P.No.20658 of 1999K.Kunchai..Petitioner-Vs.-1. Deputy Inspector General C.R.P.F., Group Centre Campus Hyderabad.2. D.I.G.P. C.R.P.F., Group Centre Chennai.3. Inspector General C.R.P.F., Southern Sector Banjara Hills Hyderabad.4. Director General C.R.P.F., Lodhi Road New Delhi. ..Respondents Writ Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of Certiorarified Mandamus calling forthe records relating to the order of the third respondent in hisorder No.RXIII-7/99-ADM I dated 9.12.1999, confirming the order ofthe 2nd respondent in his order No.I-X-46/96-EC-3 dated 4.1.1999;quash the same and to direct the respondents to regularise thesuspension period from 18.12.1996 to 9.5.1998 and to pay salary withall benefits.For Petitioners : Mr.Mohammed Ibrahim AliFor Respondents : Mr.R.Priyakumar, CSGSC https://hcservices.ecourts.gov.in/hcservices/ O R D E R This writ petition is directed against the order dated 9.12.1999on the file of the third respondent revising the order of the firstrespondent dated 4.1.1999, whereby the petitioner was reduced to therank of Sub Inspector from the post of Inspector for a period of oneyear.2. The factual details as culled out from the affidavit filed insupport of the writ petition are as under:-The petitioner was employed as Inspector of Police in theCentral Reserve Police Force and while so departmental proceedingswere initiated against him for the following charge:-"That the said No.680420584 Insp. K.Kunchaiof D/113 Bn, CRPF, while functioning asofficiating OC D/113 Bn at Kalyanpur Post,Tripura, committed an act f remissness indischarge of his duty as a member of the forceu/s 11(1) of CRPF Act, 1949, in that, InspectorK.Kunchai OC D/113 Bn, CRPF stationed at adistance of 1 KM, failed to rush to the spot ofincident immediately with reinfrocement forproviding security to village. The conduct ofInspector K.Kunchai is thus becoming of a seniorS.O. who by not promptly reacting to situationbrought a bad name to force."3. The memorandum of charges along with annexures were issued tothe petitioner on 2.8.1997 and he was directed to submit hisexplanation with respect to the charge. Accordingly the petitionersubmitted his objection on 13.12.1997 and on consideration of thememorandum of charges as well as the explanation submitted by thepetitioner, enquiry officer was appointed to conduct the departmentalenquiry. After conducting the enquiry with due opportunity to thepetitioner to take part in the proceedings, the enquiry officersubmitted his report absolving the petitioner of the charges madeagainst him. The said report was considered by the first respondentand he disagreed with the enquiry report. Accordingly the firstrespondent as per proceedings dated 4.1.1999 imposed a punishment ofstoppage of one increment for a period of one year without cumulativeeffect on the petitioner. The said order was taken up in appealbefore the third respondent. While considering the appeal the thirdrespondent found that the punishment imposed on the petitioner wasnot proportionate to the extent of misconduct and as such the third https://hcservices.ecourts.gov.in/hcservices/ respondent was of the opinion that the punishment should be enhancedand accordingly by exercising the power vested in him under Rule 29(d) of CRPF Rules, 1955 a show cause notice was issued to petitionerto show cause as to why the punishment shall not be enhancedcommensurate with the gravity of charge. In response to the saidshow cause notice, the petitioner submitted his explanation. Howeverthe third respondent rejected the said explanation and as per orderdated 9.12.1999 ordered reduction of the rank of the petitioner fromInspector to Sub Inspector for a period of one year. Aggrieved bythe said order, the petitioner has come up with the present writpetition.4. The learned counsel for the petitioner contended that theprocedure adopted by the respondents were quite contrary to CRPFRules inasmuch as if the enquiry report was not acceptable to thefirst respondent, he should have conducted a de novo enquiry with asecond show cause notice to the petitioner. It was further contendedthat the third respondent has not taken into consideration all theobjections filed by the petitioner in respect of his proposal toinvoke Rule 29(d) of CRPF Rules and as such the very order passed bythe third respondent enhancing the punishment deserves to be setaside.5. Even though the petitioner has canvassed arguments on meritswith respect to the charge framed against the petitioner as well asthe ultimate punishment imposed on him by the third respondent, I amof the view that it was not necessary to go into the issue on meritsinasmuch as the very writ petition challenging the order of the thirdrespondent is not maintainable before this court.6. The alleged misconduct was committed by the petitioner duringhis service as Inspector of Police in Tripura. The enquiry wasstated to have been conducted at Hyderabad and the second show causenotice was issued to the petitioner at Hyderabad. The punishment ofstoppage of increment as per order dated 4.1.1999 was awarded by thefirst respondent stationed at Hyderabad. The statutory appeal waspreferred by the petitioner to the Inspector General of Police atHyderabad. The order of reduction in rank was also passed by theInspector General of Police at Hyderabad. The address of thepetitioner as found from the cause title shows that the petitionerwas a resident of Hyderabad. During the time of filing the writpetition, the petitioner was stated to have been working at Kotrangalin Rajouri District of Jammu and Kashmir. Therefore the entire causeof action has arisen outside the jurisdiction of Tamil Nadu. No partof the cause of the action has arisen in the State of Tamil Nadu soas to enable the petitioner to file the writ petition before thiscourt under Article 226 of the Constitution of India. On a perusalof the materials available on record, it is clear that not even a https://hcservices.ecourts.gov.in/hcservices/ part of cause of action has arisen in the State of Tamil Nadu so asto enable the petitioner to file the writ petition before this courtchallenging the order passed by the first respondent, as modified bythe order of the third respondent. 7. The misconduct was committed during the time of the serviceof the petitioner at Tripura and during 1999 when the writ petitionwas filed before this court, the petitioner was admittedly working inthe State of Jammu and Kashmir. So it was nothing but a forum-shopping. Though not even a part of the cause of action has arisenin this State, the petitioner has filed the writ petition before thiscourt for the reasons best known to him.8. The Apex Court in EASTERN COALFIELDS v. KALYAN BANERJEE (2008(3) SCALE 514 held that only that court will have jurisdiction withinwhich the entire cause of action had arisen and after considering theearlier decided cases on the point held thus:-6. The jurisdiction to issue a writ of orin the nature of mandamus is conferred upon theHigh Court under Article 226 of the Constitutionof India. Article 226(2), however, provides thatif cause of action had arisen in more than onecourt, any of the courts where part of cause ofaction arises will have jurisdiction to entertainthe writ petition.7. 'Cause of action', for the purpose ofArticle 226(2) of the Constitution of India, forall intent and purport, must be assigned the samemeaning as envisaged under Section 20(c) of theCode of Civil Procedure. It means a bundle offacts which are required to be proved. Theentire bundle of facts pleaded, however, need notconstitute a cause of action as what is necessaryto be proved is material facts whereupon a writpetition can be allowed. The question to some extent was consideredby a Three-Judge Bench of this Court in KusumIngots & Alloys Ltd. v. Union of India andAnother [(2004) 6 SCC 254] stating:"18. The facts pleaded in thewrit petition must have a nexuson the basis whereof a prayer canbe granted. Those facts whichhave nothing to do with the https://hcservices.ecourts.gov.in/hcservices/ prayer made therein cannot besaid to give rise to a cause ofaction which would conferjurisdiction on the Court." As regards the question as to whether situsof office of the appellant would be relevant,this Court noticed decisions of this Court inNasiruddin v. State Transport Appellate Tribunal[AIR 1976 SC 331] and U.P. Rashtriya Chini MillAdhikari Parishad, Lucknow vs. State of U.P. andothers [(1995) 4 SCC 738] to hold:"26. The view taken by thisCourt in U.P. Rashtriya Chini MillAdhikari Parishad that the situsof issue of an order ornotification by the Governmentwould come within the meaning ofthe expression "cases arising" inclause 14 of the (Amalgamation)Order is not a correct view of lawfor the reason hereafter statedand to that extent the saiddecision is overruled. In fact, alegislation, it is trite, is notconfined to a statute enacted byParliament or the legislature of aState, which would includedelegated legislation andsubordinate legislation or anexecutive order made by the Unionof India, State or any otherstatutory authority. In a casewhere the field is not covered byany statutory rule, executiveinstructions issued in this behalfshall also come within the purviewthereof. Situs of office ofParliament, legislature of a Stateor authorities empowered to makesubordinate legislation would notby itself constitute any cause ofaction or cases arising. In otherwords, framing of a statute,statutory rule or issue of anexecutive order or instructionwould not confer jurisdiction upon https://hcservices.ecourts.gov.in/hcservices/ a court only because of the situsof the office of the makerthereof. 27. When an order, however,is passed by a court or tribunalor an executive authority whetherunder provisions of a statute orotherwise, a part of cause ofaction arises at that place. Evenin a given case, when the originalauthority is constituted at oneplace and the appellate authorityis constituted at another, a writpetition would be maintainable atboth the places. In other words,as order of the appellateauthority constitutes a part ofcause of action, a writ petitionwould be maintainable in the HighCourt within whose jurisdiction itis situate having regard to thefact that the order of theappellate authority is alsorequired to be set aside and asthe order of the originalauthority merges with that of theappellate authority." 8. Kusum Ingots & Alloys Ltd. (supra)has been followed by this Court in MosarafHossain Khan v. Bhagheeratha Engg. Ltd. andOthers [(2006) 3 SCC 658] stating:"26. In Kusum Ingots & AlloysLtd. v. Union of India 14 a three-Judge Bench of this Court clearlyheld that with a view to determinethe jurisdiction of one High Courtvis--vis the other the factspleaded in the writ petition musthave a nexus on the basis whereofa prayer can be made and the factswhich have nothing to do therewithcannot give rise to a cause ofaction to invoke the jurisdictionof a court. In that case it was https://hcservices.ecourts.gov.in/hcservices/ clearly held that only because theHigh Court within whosejurisdiction a legislation ispassed, it would not have the soleterritorial jurisdiction but allthe High Courts where cause ofaction arises, will havejurisdiction." 9. In Om Prakash Srivastava v. Union ofIndia and Another [(2006) 6 SCC 207], this Courtheld:"12. The expression "causeof action" has acquired ajudicially settled meaning. Inthe restricted sense "cause ofaction" means the circumstancesforming the infraction of theright or the immediate occasionfor the reaction. In the widersense, it means the necessaryconditions for the maintenance ofthe suit, including not only theinfraction of the right, but alsothe infraction coupled with theright itself. Compendiously, asnoted above, the expression meansevery fact, which it would benecessary for the plaintiff to prove, if traversed, in order tosupport his right to the judgmentof the court. Every fact, whichis necessary to be proved, asdistinguished from every piece ofevidence, which is necessary toprove each fact, comprises in"cause of action". (See RajasthanHigh Court Advocates' Assn. v.Union of India)" 10. In Uttaranchal Forest Rangers' Assn.(Direct Recuirt) and Others v.State of U.P. andOthers [(2006) 10 SCC 346], this Court held: https://hcservices.ecourts.gov.in/hcservices/ "44. The second impugnedorder dated 12-4-2004 is furthervitiated for the followingreasons: (a) Forum. The seniority listunder challenge in the secondwrit petition was the senioritylist of the Uttaranchal StateGovernment of 2002 and suchchallenge could not have beenmade before the Lucknow Bench ofthe Allahabad High Court. (b)Parties.None of thedirect recruits who would bedirectly affected by the orderwere made parties to the writpetition. Therefore the HighCourt did not have the benefit ofcompeting arguments in thematter. Even though, thePrincipal Secretary of the Stateof Uttaranchal was made a party,the said party was never served.The only respondent which washeard was the State of U.P. whichhad no stake in the matter at allsince all of the writ petitionersbefore the Lucknow Bench of theAllahabad High Court wereemployees of the State ofUttaranchal on the relevant date.It is, therefore, evident thatthe relevant material was notplaced before the Allahabad HighCourt for the purpose of decidingthe writ petition. Accordingly,the permission had to be takenfrom this Court by the present appellants to prefer the SLPs." These directions are authorities for theproposition that only that court will havejurisdiction within which, the entire cause ofaction had arisen. In this case, no part ofcause of action arose within the jurisdiction ofthe Calcutta High Court. https://hcservices.ecourts.gov.in/hcservices/

11. In view of the decision of theDivision Bench of the Calcutta High Court thatthe entire cause of action arose in Mugma Areawithin the State of Jharkhand, we are of theopinion that only because the Head Office of theappellant company was situated in the State ofWest Bengal, the same by itself will not conferany jurisdiction upon the Calcutta High Court,particularly when the Head Office had nothing todo with the order of punishment passed againstthe respondent." 9. The Apex Court in AMBIKA INDUSTRIES v. C.C.E. (2007(8) SCALE488) observed that the decisions operating in the field and whichhave been taken note of in Kusum Ingots & Alloys Ltd. v. Union ofIndia (2004(168) ELT 3) would clearly go to show how the situsdoctrine had been given a go-bye by making constitutional amendments.10. In Kusum Ingots & Alloys case cited supra the Apex Courtalso referred to the fact that at one point of time writ petitionsagainst Union of India were filed only before the Punjab and HaryanaHigh Court as the said Court exercised territorial jurisdiction overDelhi, which was the seat of the Central Government. Experiencingdifficulties, clause 1A of Article 226 was introduced and theconstitution underwent a change by way of insertion of clause 2 ofArticle 226. Even if a small faction of the cause of action accrueswithin the jurisdiction of a particular court, such court would havejurisdiction in the matter though the doctrine of forum convenienshas also to be considered.11. The order impugned in this writ petition clearly shows thatthe entire cause of action has arisen beyond the territorial limitsof this court and not even a part of the cause of action has arisenhere so as to enable this court to exercise jurisdiction.12. For the aforesaid reasons, I am of the view that the writpetition challenging the order of the third respondent dated9.12.1999 revising the order of the first respondent dated 4.1.1999is not maintainable before this court. Accordingly the writ petitionis dismissed. However, dismissal of this writ petition will not https://hcservices.ecourts.gov.in/hcservices/ prevent the petitioner from approaching the appropriate court forredressal of his grievances. No costs.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarTr/To1. Deputy Inspector General C.R.P.F., Group Centre Campus Hyderabad.2. D.I.G.P. C.R.P.F., Group Centre Chennai.3. Inspector General C.R.P.F., Southern Sector Banjara Hills Hyderabad.4. Director General C.R.P.F., Lodhi Road New Delhi.+1 cc To Mr.Mohammed Ibrahim Ali, Advocate, SR.55324+1 cc To Mr.R.Priyakumar, CSGSC, Advocate, SR.55296 W.P.No.20658 of 1999rsm [co]gkg/16.10