RAM GOPAL TIWARI Vs. DIRECTOR

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India the petitioner has called in question the order dated 18-4-2001 (Annexure-P-1) by which he was dismissed from service after summary trial held by Summary Security Force Court. The petitioner who was employed as Constable in the Border Security Force on 15th December 1981, at the relevant time was posted in Jammu and Kashmir in 120 Battalion 'B' company R. S. Pura Jammu. He was issued a charge-sheet on 5-11-2000 making allegations to the effect that the petitioner on 3-11-2000, while was on sentry duty assaulted senior officer Subedar Mehngaram. It was alleged that the petitioner was found under the influence of intoxication on 2-11-2000. Thereafter, the statement of witnesses were recorded in the inquiry in the presence of the petitioner and since such witnesses have deposed categorically against the petitioner, a report was submitted before the competent authority. The competent authority i.e. the Commandant passed an order on 16th April, 2001 directing that the trial be conducted against the petitioner before the Summary Security Force Court and for the said purposes the date was fixed on 18th April, 2001. By letter of the even date the petitioner was informed that he could engaged a defence counsel as per the list or if no such request is made, a friend of the accused will be arranged by the department. On the same date a friend of the accused was appointed. The medical report obtained was produced before the Summary Security Force Court. The proceedings were done and as the petitioner was found guilty of the misconduct, the order was passed on 18-4-2001 itself imposing the punishment of dismissal from service with immediate effect. It is contended that the provisions of Act known as the Border Security Force Act, 1968 (hereinafter referred to as Act) and the Rules known as Border Security Force Rules, 1969 (hereinafter referred to as Rules) were not followed in appropriate manner in as much as proper opportunity of defence was not given to the petitioner and as such the order impugned is bad in law. It is contended that right to cross examine the witnesses was not afforded to the petitioner. The statement of witnesses recorded were not translated in the language understood by the petitioner, the medical report was not proved, the doctor who has medically examined the petitioner was not examined and as such no finding could have been given with respect to the guilt of the petitioner. Since this has not been done the order impugned is bad in law and is liable to be quashed. Refuting such allegation a return in detail has been filed by the respondents raising a preliminary objection with respect to availability of alternative remedy of filing representation before the Central Government. It is contended that under section 117(2) of the Act no such representation was filed nor the petition was presented to the Central Government by the petitioner. It is contended that since statutory remedy was available which was not resorted to by the petitioner, the Writ Petition was not maintainable. On merits also it is contended that the petitioner was also present when the statement of witnesses were recorded. Abusive language used by the petitioner addressing the senior officer was duly proved and thus the allegations with respect to first misconduct was proved. As far as the other misconduct is concerned, since the medical report was positive, it is contended that such allegation was also found proved. It is contended that the petitioner being a member of the disciplinary force was responsible to maintain the high discipline and dignity but since it was not maintained by the petitioner in appropriate manner, ultimately the Summary Security Force Court has found misconduct of the petitioner proved and has proposed to impose the punishment of dismissal from service. The statement of witnesses were translated and explained to petitioner in the enquiry before the enquiry officer, but he did not wish to cross examine the witnesses. His statement was recorded and no objection was raised by him with respect to procedure adopted in enquiry. Apart from the aforesaid, it is contended that the previous service record of the petitioner was also not satisfactory inasmuch as he was awarded punishment on six occasions out of which on three occasions he was found under the influence of intoxication. This being so, it is submitted that the petition is liable to be dismissed.

(2.) An application I. A. No. 500-W/2004 has also been filed by the respondents raising the objection of territorial jurisdiction of this Court. The said application was considered by this Court on 19-2-2004 and it was directed that same will be considered at the time of final hearing of the Writ Petition.

(3.) It would be necessary to decide such a preliminary objection raised by respondents with respect to territorial jurisdiction of this Court. The Apex Court placing reliance in the case of M/s Kusum Ingots and Alloys Ltd vs. Union of India and another, 2004 supp1 JT 475 in paragraph 9 and 20 has held that the territorial jurisdiction of the High Court would depend on availability of cause of action. It is to be seen that if a part of cause of action is available within the territorial jurisdiction of any High Court that High Court would be entitled to invoke its extra ordinary jurisdiction under Article 226 of the Constitution of India. This particular aspect is to be examined in the light of various decisions rendered by the Apex Court as also by this Court in similar circumstances. Learned counsel appearing for the petitioner has vehemently contended that the law is well settled long back by a Full Bench decision of this Court rendered in case of K. P. Govil vs. Jawahar Lal Nehru Krishi Vishwavidyala, 1987 MPLJ 396. It is contended that the cause of action would arise at a place where the order is made and also at the place where its consequences fall on the person concerned. This Court in case of Mahadev vs. Bharat Petroleum Corporation Ltd., 1996 MPLJ 386 has held that since the order of termination was communicated within the territorial jurisdiction of this Court, the part of cause of action was available within the territorial jurisdiction of this Court and therefore the Writ Petition was maintainable before this Court. It is further contended by learned counsel appearing for the petitioner that the Chief of Army staff is the highest authority of the army as the Director General of BSF in the present case and if it is held by the Apex Court that the Chief of Army Staff can be sued at any place. The same analogy would be applicable in case of Director General of BSF as is held by the Apex Court in the case of Dinesh Chandra Gahtori vs. Chief of Army Staff and another, 2001 9 SCC 525. Drawing attention of this Court to the decision rendered in the case of Ram Narayan Singh vs. Chief of Army Staff, 2002 2 MPLJ 623, learned counsel for the petitioner has contended that since the order of termination was communicated to the petitioner at his residence within the State of Madhya Pradesh, as also within the territorial jurisdiction of this Court, the High Court would have jurisdiction to entertain the Writ Petition. Lastly it is contended that in the case of Shrikishan Yadav vs. Commandant Central Reserve Police Force and others, 2004 1 MPLJ 205, the Division Bench of this Court has held that the Writ Petition before this Court would be maintainable. Thus, it is contended that the objection raised by the respondents by making an application aforesaid is liable to be discarded and ignored and IA is liable to be rejected.