PAWAN KUMAR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner worked as Sepoy (Craftsman) in E.M.E. of the Indian Army. He was attached to 115 Engg Regiment which, according to the petitioner, is a mobile unit. The petitioner served in 'Operation Pawan' in Srilanka in the year 1989. While the Regiment was in Poone, a charge-sheet was issued to him on two grounds. One is overstaying on leave granted to him and the other is absenting without leave, which are offences under Sec.39(b) and (a) of the Army Act respectively. The substance of the charge is that he was granted leave of absence from 13-10-1989 to 1-11-1989 to proceed to his home town but without sufficient cause he failed to rejoin the Unit on 2-11-1989, he having rejoined only on 14-12-1989. Thus he overstayed after leave for 43 days. The second charge is that on 7-4-1990 he left the Unit lines without grant of leave and rejoined at Poone on 28-6-1990. Thus he unauthoriscdly stayed away from duly for 83 days. At the relevant point of time when he unauthoriscdly left the regiment, he relumed from Sri Lanka from Operation Pawan and was due to be sent to 'Operation Samaritan". The petitioner belonged to a technical cadre working as vehicle Mechanic. A Summary Court Martial was held by the Commanding Officer (5th respondent) at Poone. The petitioner pleaded for mercy and lenient punishment. By its order dated 7-7-1990 the Summary Court Martial sentenced the petitioner to R.I. for two months and also directed dismissal from service. While awarding punishment, the 5th respondent adverted to the fact that the petitioner unauthoriscdly stayed away from duty at a crucial time when his services were required for Op. Samaritan despite the fact that the case against him for over-stayal on leave was pending by that time. Questioning this order, the present writ petition is filed without availing of the remedies under S. 164 of the Army Act.

(2.) The main contention urged in the writ petition is that the punishment is excessive and grossly disproportionate to the offence or misdemeanour attributed to the petitioner. By way of a second additional affidavit after the writ petition became part- heard, the petitioner has contended, probably taking inspiration from the judgment of the Supreme Court in Ranjit Thakur v. Union of India (I) AIR 1987 SC 2386, that the opportunity as contemplated by Sec. 130 of the Army Act to raise the objection as to the constitution of the Summary Court Martial was not given to him and if such opportunity was given, he would have raised the objection as to bias on the part of the 5th respondent. Though the plea of bias was raised in the affidavit in general terms contending that the Commanding Officer of the Unit should not be associated with the Court Martial, probably in view of the judgment in Vidya Prakash v. Union of India (2) AIR 1988 SC 705, the said plea has not been raised in the course of argument.

(3.) Inter alia, the respondents have raised an objection as to the maintainability of this writ petition in this Court on the ground that this Court has no territorial jurisdiction. It may be seen that none of the respondents excepting the 4th respondent is within the temtorial jurisdiction of this Court. In my view, the 4th respondent has been added merely to invoke the jurisdiction of this court It is contended that the 4th respondent is the custodian of the records pertaining to the proceedings of the Summary Court Martial and the Service records of the petitioner, but, that could hardly be a ground for invoking the jurisdiction of this Court under Article 226 of the Constitution. The custody of the records is not a relevant entenon for determining the territorial jurisdiction nor does it constitute the cause of action for the purpose of this writ petition questioning the order of dismissal from service. It is an admitted fact that the petitioner, at any relevant point of time, did not work in the State of Andhra Pradesh. He was issued a charge-sheet while he was at Poone. An enquiry was conducted by the Summary Court Martial there itself and he was thereupon dismissed from service. The order was communicated to him at Poone and he served the sentence of imprisonment at a place outside the State of Andhra Pradesh. The authority who passed the impugned order (5th respondent) is not within the territorial junsdiction of this Court. No part of the cause of action relevant to impugned action taken by the 5th respondent can be said to have arisen within the territorial Jurisdiction of this Court. In State of Rajasthan v. M/s. Swaika Properties (3) AIR 1985 SC 1289, the Supreme Court held that the service of notice under Sub-section (2) of S.52 of the Rajasthan Urban Improvement Act on the respondents' registered office at Calcutta was not an integral part of the cause of action and it was not sufficient to invest the Calcutta High Court with jurisdiction to entertain a petition under Article 226 of the Constitution challenging the validity of a notification issued by the State of Rajasthan for acquisition of the respondents' lands situate at Jaipur. The order of the Cal- cutta High Court entertaining the writ petition and issuing Rule Nisi and granting exparte prohibitory order was quashed by the Supreme Court. The ratio of that judgment would equally apply to this case. There arc at least two judgments of this. Court in which the view was taken that where the order of removal or suspension from service was passed by an authority outside the jurisdiction of this Court as a result of the disciplinary proceedings conducted elsewhere, this Court has no territorial jurisdiction to entertain the writ petition under Article 226 of the Constitution. Chinnappa Reddi. J. (as he then was) in CCCA No.26/71 dated 10-7-1973 accepting the contention of the appellant that a suit questioning the removal of the plaintiff from service could not be entertained by the Court at Secundcrabad, observed: