Kuldeep Chand v. Union of India through Secretary Ministry

Headquarters, Srinagar, J&K C/o 56 APO 4. Dy. Inspector General BSF, Srinagar, J&K, C/O 56 APO.

5. Commandant 3 Battalion BSF C/o 56 APO. …..Respondents Through: Mr. Sandeep Gupta, CGSC. Coram: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE JUDGMENT

Heard learned counsel for the petitioner. Perused the pleadings and the documents obtaining as annexures therewith.

This is a 2007 instituted writ petition whereby the petitioner, who had come to suffer dismissal from service of the Border Security Force (in short, ‘BSF’) in the year 1996, is seeking to 2 SWP No. 257/2007 upset the said dismissal by seeking a writ of certiorari along with a writ of mandamus under article 226 of the Constitution of India.

The facts and circumstances preceding the filing of the writ petition call for being set out first before sealing the fate of this writ petition.

The petitioner was serving in BSF under enrolment no. 850320011 as Follower (Sweeper). For a misconduct on the part of the petitioner in the course of discharge of his duty, the petitioner came to be subjected to trial as envisaged under the Border Security Force Act, 1968 (in short, ‘Act of 1968’) which resulted in holding the petitioner guilty of misconduct of assaulting his superior officer amounting to an offence under Section 20(a) of the Act of 1968 and thus suffering dismissal from service w.e.f., 14.11.1996 by an order of the Summary Security Force Court issued by the Commandant 3rd Battalion BSF. Said order of dismissal petitioner service is numbered 3/Tac/Estt/SSFC/Disc/96/2621 dated 14.11.1996.

Against this order of dismissal, the petitioner preferred a statutory appeal dated 01.02.1997 as provided under the Act of 1968 before the appellate authority of Inspector General, 3 SWP No. 257/2007 BSF, West Bengal which failed to earn any expected relief in favour of the petitioner.

After almost three years non-action in running, the petitioner came to approach the High Court of Himachal Pradesh with a writ petition-CWP no. 284/2000 assailing his said dismissal from service of BSF.

This writ petition came to be dismissed by the High Court of Himachal Pradesh on 25.10.2004 by holding that the cause of action for the petitioner to approach the High Court of Himachal Pradesh was not there at all as the cause of action resulting in dismissal of the service has taken place at Jalpaiguri in the State of West Bengal and, therefore, approaching of the High Court of Himachal Pradesh by the petitioner was misconceived right from the very inception and, therefore, the petitioner was let to approach the High Court having the jurisdiction in the case.

The aforesaid judgment 25.10.2004 of the High Court of Himachal Pradesh was never ever questioned by the petitioner at any point of time. This judgment made it very clear to the petitioner that the misconduct on the part of the petitioner and his dismissal from the service had taken place by reference to cause of action having arisen at Jalpaiguri in the State of West Bengal and, therefore, for the petitioner to assail dismissal 4 SWP No. 257/2007 from service by medium of a writ petition has to be before a High Court having the jurisdiction, both cause wise as well as territory wise.

The dismissal of the writ petition so filed by the petitioner before the High Court of Himachal Pradesh took place in October, 2004. The petitioner took more than two years to come up with the institution of the present writ petition before this Court meaning thereby the time distance between the dismissal of the petitioner taking place on 14.11.1996 and the institution of the present writ petition before this Court in January, 2007 is more than ten years.

There is no explanation tendered in the writ petition as to why the petitioner wasted the time in particular from the date of passing of the judgment dated 25.10.2004 to the date of institution of the present writ petition involving the time period of more than two years.

In the writ petition, it is also not pleaded that when the High Court of Himachal Pradesh was not having the jurisdiction to deal with the writ cause of the petitioner then how come the then High Court of Jammu and Kashmir (now of Jammu & Kashmir and Ladakh) was reckoned to be having the jurisdiction by the petitioner for purpose of maintaining the present writ petition. 5 SWP No. 257/2007

In the light of the aforesaid serious lacuna and deficiency attending the present writ petition of the petitioner, this court holds that the instant writ petition suffers from serious delay and laches and also being preferred before this Court when this Court does not have the jurisdiction.

The writ petition is, accordingly, dismissed along with connected application(s), if any. (Rahul Bharti) Judge J A M M U 16.08.2023 Naresh, Secy. Whether the order is speaking: Whether the order is reportable: Yes/No Yes/No