TAPAN KUMAR DALAI Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this writ petition the petitioner seeks quashing of the office order dated 11.4.1998 declaring him as "deserter" under Sub -rule 31 (c) of C.R.P.F. Rules, 1977 (Annexure -7) as well as the disciplinary inquiry started on the basis of the memorandum dated 23.4.1998 (Annexure -8). He has also prayed for a direction to the opposite parties to accept the resignation submitted by him on 23.1.1998.

(2.) THE case of the petitioner is that he came to be appointed as a Pharmacist in the rank of A.S.I, and was posted as such at 37 Battalion, C.R.P.F. Howly, Barpeta (Assam), After serving for five years in the Force, he decided to resign from service and accordingly submitted resignation on 14.10.1997 (Annexure -1) stating therein that it may be taken as a three months' notice for resignation and on completion of three months, the same may be accepted. On receipt of the resignation, the opposite party No. 2 -Commandant asked the petitioner in letter dated 29.10.1997 (Annexure -2) to submit an undertaking to the effect that he would not claim in future for service in the Force. On his application, he was granted casual leave from 15.12.1997 to 31.12.1997 by office order dated 12.12.1997 with permission to avail leave on certain dates mentioned therein. He, thereafter, proceeded to his village at Khuntakata, Athagarh in the district of Cuttack. On account of his illness, in letter dated 31.12.1997 he requested for extension of leave. While on leave he submitted representation dated 23.1.1998 (Annexure -4) praying to accept the resignation submitted earlier as the three months' period had already expired. While the matter stood thus, the opposite party No. 2 -Commandant in his letter dated 5.2.1998 (Annexure -5) informed the petitioner that the resignation from service could be accepted on two conditions i.e. he had to be physically present at Battalion headquarters and he had to deposit three months' salary with the department before acceptance of resignation. The petitioner made a representation on 16.2.1998 (Annexure -6) praying to the Commandant to accept his resignation without any pre -condition as there is no provision for deposit of three months' salary. The Commandant, however, without passing any order on his prayer for accepting resignation, made office order dated 11.4.1998 (Annexure -7) declaring him as 'deserter' from service with effect from 1.1.1998. Besides declaring the petitioner as 'deserter', the Commandant in the Memorandum dated 23.4.1998 (Annexure -8) issued article of charges to him to submit his memorandum of written statement of defence. The petitioner contends that the order declaring him as 'deserter' and the disciplinary inquiry proposed to be held at arbitrary and illegal.

(3.) SHRI Samal, learned Addl. Standing Counsel relying on the decision of the Supreme Court in Union of India v. Adani Exports Ltd., submitted that since no cause of action has arisen within the territorial jurisdiction of this Court, the petitioner could not have filed this writ petition. He also submitted that the resignation of the petitioner could not have been accepted because of noncompliance of the pre -conditions required as per departmental order No. F -II -28/90 -Adm. 3 dated 23.11.1996 which requires deposit of three months' salary in lieu of notice. Shri Mallik, learned counsel for the petitioner per contra contended that substantial part of the cause of action has arisen within the territorial jurisdiction of this Court. He also submitted that the petitioner is now willing to deposit the salary for three months in lieu of three months' notice.