The Kerala High Court held it lacked jurisdiction to challenge the CRPF dismissal order as the cause of action arose in Manipur, while having jurisdiction over the rejection of a representation issued by a Kerala-resident official. The challenge to the representation rejection was dismissed on merits.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY ,THE 17TH DAY OF DECEMBER 2018 / 26TH AGRAHAYANA, 1940
WP(C).No. 33943 of 2016
PETITIONER:
SAJEEV G. AGED 34 YEARS EX-BARBER, CRPF NO.25241018 ALUWILA VEEDU, KATTIYADU, KUDAVOOR PO., POTHENCODE VILLAGE, THIRUVANANTHAPURAM DIST, KERALA-695313
BY ADV. SRI.JOHN T.PAUL
RESPONDENTS:
REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI-110001
W.P.(C)No.33943 of 2016 2
6 THE ENQUIRY OFFICER, 143 BN CRPF, LAMPHELPAT, IMPHAL WEST, MANIPUR, PIN795004.
BY ADVS. SMT.O.M.SHALINA, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON 17.12.2018, DELIVERED THE FOLLOWING
W.P.(C)No.33943 of 2016 3
V.G.ARUN, J.
W.P.(C)No.33943 of 2016
Dated this the 17th day of December, 2018
JUDGMENT
The petitioner, while working as Barber in the D/143 Bn. of the Central Reserve Police Force at Manipur, was dismissed from service vide Ext P7 order dated 30.12.2009.
The allegation against the petitioner was that, while the petitioner was undergoing treatment due to his psychiatric problem at R.I.M.S Hospital, Imphal, was referred to the psychiatrist of Composite Hospital, Guwahati for further examination. While so, the petitioner deserted from the Headquarters of 143 Bn. on 4.7.2009 without any permission, intimation or orders of the competent authority. Though, complaint was lodged with the Chief Judicial Magistrate having jurisdiction and a warrant of arrest issued against the petitioner on 16.7.2009, the same could not be executed. In the meanwhile, a Court of Inquiry was ordered and after due procedure the petitioner was declared as 'deserter' from the Force with effect from 4.7.2009.
W.P.(C)No.33943 of 2016 4
informed to the petitioner under registered letter dated 13.8.2009. Thereafter, a Memorandum of Articles of charges, for the purpose of conducting a Departmental Inquiry, was drawn up and a copy sent to the petitioner on 4.9.2009, with a direction to report for duty immediately and submit his representation if any, against the charges. The petitioner did not respond to the memo of charges either by appearing in person or by submitting an explanation. Hence, an Enquiry Officer was appointed, which fact was also informed to the petitioner under registered letter dated 8.10.2009. As there was no response from the petitioner even thereafter, the enquiry was conducted ex parte. Copies of the recorded statements, in respect of each prosecution witness, was sent to the residential address of the petitioner, with direction to produce written statement of defence or documents, if any. There being no reply from the petitioner, the inquiry was completed and report submitted finding that the charges levelled against the petitioner had been proved. A copy of the Inquiry report was also sent to the petitioner on 16.11.2009, with direction to submit representation or reply, if any, within 15 days. Thus, after complying with all requisite formalities, the
W.P.(C)No.33943 of 2016 5
disciplinary authority accepted the findings in the inquiry report and came to the conclusion that the willful absence for the petitioner from duty is gross misconduct and highly prejudicial to the good order and discipline of the Force. Based on the said conclusion, Ext P7 order was issued imposing the penalty of dismissal from service on the petitioner, by exercising the power under Section 11 (1) of the C.R.P.F.Act read with Rule 27 of the C.R.P.F.Rules.
W.P.(C)No.33943 of 2016 6
petitioner had actually been granted leave for 15 days from 2.7.2009 and that thereupon the petitioner had proceeded
to his home town. That, after reaching home, the petitioner had consulted the Superintendent, Government Hospital, Attingal and was diagnosed to be suffering from bipolar mood disorder. That the petitioner was advised absence of duty by the doctor and that it was during this period that departmental inquiry was conducted against the petitioner and Ext P7 order of dismissal issued. Ext P8 medical certificate is relied on to contend that the petitioner became fit to return to duty from 1.2.2010 onwards and that though the petitioner had submitted representation seeking extension of leave period, the same was dismissed by Ext P9 order.
W.P.(C)No.33943 of 2016 7
jurisdiction with liberty to move the court of competent jurisdiction. In the light of the aforementioned statement, I called for and perused the copy of the Writ Petition and the judgment in WP(C)22958 of 2009. On a perusal of that Writ Petition it is seen that the challenge therein was mainly against Ext P6(Ext P4 herein), which is the letter dated 5.7.2009 issued by the Officer Commanding D/143BN.C.R.P.F, informing the petitioner's mother that the petitioner had failed to report for duty and also requiring her to direct the petitioner to report back for duty immediately. The further prayers in the Writ Petition are for a direction to the second respondent to sanction and extend the leave period of the petitioner and to consider the representations
submitted by the petitioner before the first and third respondents. The Writ Petition was dismissed by judgment dated 17.8.2009 with the following observation:
In my opinion, the cause of action for this Writ Petition arose wholly within the State of Manipur, where the petitioner was on duty. The infringement of the petitioner's right, if any, also took place in the State of Manipur, within the local limits of the territorial jurisdiction of the High Court of Manipur. The mere fact that Ext P6 letter was sent by the Commanding Officer at Manipur to the petitioner's mother who is residing in the State of Kerala will not, in my opinion, confer this
W.P.(C)No.33943 of 2016 8
Court with the jurisdiction to entertain this Writ Petition. As matters now stand, the petitioner is on unauthorised leave. The authority competent to sanction the leave is the Commanding Officer, who is stationed in the State of Manipur. In fact the second prayer in the Writ Petition is to direct the second respondent to sanction the leave. The second respondent is also stationed in the State of Manipur.
I therefore hold that this Writ Petition is not maintainable in this Court. It is accordingly dismissed without prejudice to the right of the petitioner to move the court of competent jurisdiction seeking redressal of his grievances.
The power conferred by clause(1) to issue directions, orders or writs to any Government, authority, or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part , arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
W.P.(C)No.33943 of 2016 9
Sharma v Union of India (2014)9 SCC 329 , it is contended by the learned counsel for the petitioner that the petitioner being a resident of Kerala and the notices regarding disciplinary proceedings and the order of dismissal having been served on the petitioner at his residential address in Kerala, part of the cause of action has arisen within the territorial jurisdiction of the High Court of Kerala. In Nawal Kishore Sharma 's case the Apex Court held that on a plain reading of Article 226(2), it is clear that the High Court can issue a writ when the person or authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the courts territorial jurisdiction. It was held that cause of action for the purpose of Article 226(2) of the Constitution, for all intent and purpose must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. In the instant case, the petitioner was dismissed from service while he was working in the 143 Bn. of the C.R.P.F at Manipur. The reason for petitioner's termination is that he had deserted the Force and had refused to rejoin duty, in spite of repeated directions. The
W.P.(C)No.33943 of 2016 10
departmental enquiry, followed by disciplinary proceedings, was conducted at the 143 Bn. at Manipur and the punishment was imposed by the disciplinary authority, viz . the Commandant - 143 Bn.C.R.P.F, stationed at Manipur. Of course, the correspondence with regard to the departmental inquiry, as also the order imposing punishment (Ext P7), were served on the petitioner at his residential address. But, that by itself would not be sufficient to hold that part of the cause of action has arisen within the jurisdiction of
this Court. Especially so, in the light of the judgment in WP(C) No.22958 of 2009 , wherein it was held that the infringement of the petitioner's right, if any, took place in the State of Manipur within the local limits of the territorial jurisdiction of the High Court of Manipur. Therefore, I have no hesitation to hold that this court does not have the jurisdiction to entertain the challenge against Exts P2, P5 & P7.
as laid down by the Apex Court in Nawal Kishore
W.P.(C)No.33943 of 2016 11
Sharma 's case, it has to be held that in so far as Ext P9 is concerned, this Court is having jurisdiction to entertain the challenge. In Sudharshanan K.T. v Union of India and another(ILR 2018 (4) Kerala 773) , a Division Bench of this Court, placing reliance on Nawal Kishore Sharmas 's case held that even though the appellant therein was discharged from Shillong, since he was forced to return to Kerala due to his financial condition and his request for disability pension was made from Kerala, the rejection of which was also communicated to the appellant's address in Kerala, this court is having jurisdiction. The representation which led to the issuance of Ext P9 was sent from the petitioner's residential address and was considered by the third respondent, who is stationed at Thiruvananthapuram. Therefore, this court has jurisdiction to consider the challenge against Ext P9.
W.P.(C)No.33943 of 2016 12
of the allegations raised by the petitioner against his superior officers. For this purpose, third respondent had called for a report from the Commandant of 143 Bn., in which the allegations raised by the petitioner were reported to be without any basis. By the time the third respondent considered the petitioner's request for extension of leave, he had already been dismissed from service. In such circumstances, the third respondent was fully justified in rejecting the representation, finding it to be devoid of merit. Therefore, the challenge against Ext P9 has to fail.
In the result, the Writ Petition is dismissed without
prejudice to the petitioner's right to challenge Ext P7 order before the jurisdictional High Court.
Sd/-
V.G.ARUN, JUDGE
cms
/True copy/
P.S.to Judge
W.P.(C)No.33943 of 2016 13
APPENDIX
PETITIONER'S EXHIBITS:
| EXHIBIT P1: | THE TRUE COPY OF THE DISCHARGE SUMMARY |
|---|---|
| WITH CERTIFICATE OF TREATMENT ISSUED TO THE PETITIONER BY THE CH GUWAHATI DATED 12.5.2007 |
|
| EXHIBIT P2: | THE TRUE COPY THE PUNISHMENT OFFICE ORDER NO.P.VIII.1/2008-EC-II DATED 23-5-2008 |
| EXHIBIT P3: | THE TRUE COPY OF THE MEDICAL CERTIFICATE DATED 14.7.2009 ISSUED BY THE SUPERINTENDENT AT GOVT HOSPITAL, ATTINGAL |
| EXHIBIPT P4: | THE TRUE COPY OF THE LETTER NO.P/VIII.1/2009 D/143 DATED 05.07.2009 |
| EXHIBIT P5; | TRUE COPY OF THE MEMORANDUM NO.P.VIII.5/2009/EC-II DATED 04.09.2009 |
| EXHIBIT P6: | TRUE COPY OF THE LETTER NO.D/II/1/09 RSR DATED 05/10/2009 BY THE ENQUIRY OFFICER |
| EXHIBIT P7: | TRUE COPY OF THE DISMISSAL ORDER NO.P.VIII.5/2009-EC-II DATED 30-12-2009 |
| EXHIBIT P8: | TRUE COPY OF THE CERTIFICATE OF FITNESS DATED 1.2.2010 ISSUED BY THE SUPERINTENDENT AT GOVT HOSPITAL ATTINGAL |
| EXHGIBIT P9: | TRUE COPY OF THE REJECTION ORDER NO.R/XIII,3/2010-EC-III DATED 04.2.2010 |
| EXHIBIT P10: | TRUE COPY OF THE REJECTION LETTER NO.R.XIII/1/10-ADM-7 DATED 13-8-2010 |
| EXHIBIT P11: | MEDICAL CERTIFICATE DATED 18.4.2016 ISSUED BY THE SUPERINTENDENT OF GOVT HOSPITAL, ATTINGAL |
| RESPONDENTS EXTS; cms |
NIL /TRUE COPY/ P.S.TO JUDGE |
3 issues framed by the court
Whether the High Court of Kerala has territorial jurisdiction to entertain the writ petition challenging the dismissal order and the rejection of leave/representation.
Whether the rejection of the petitioner's representation regarding extension of leave and allegations against superiors warrants interference in court's discretionary jurisdiction.
Whether the disposal of the writ petition will prejudice the petitioner's right to challenge the dismissal order before the competent High Court.
Colour shows how this judgement treated each authority
Nawal Kishore Sharma v Union of IndiaRelied on¶48
Nawal Kishore Sharma v Union of India (2014)9 SCC 329 · Who else cites this
Sudharshanan K.T. v Union of India and anotherRelied on¶56
Sudharshanan K.T. v Union of India and another(ILR 2018 (4) Kerala 773) · Who else cites this
3 provisions across 3 enactments
SAJEEV G.
UNION OF INDIA
THE DIRECTOR GENERAL OF CRPF
THE DEPUTY INSPECTOR GENERAL OF POLICE, CRPF
THE ENQUIRY OFFICER
V.G.ARUN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
