HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.33361 of 2010 ORDER: This writ petition has been filed to issue a writ of Mandamus declaring the 3rd respondent’s proceedings No.V-15014/03/0NGC (J)/DISC/TSR/2004-539, dated 23-08-2004 as illegal and arbitrary and consequently direct the respondents to regularize the overstaying leave with all consequential benefits and further direct the respondents to fix the pay duly granting the increments to which the petitioner is entitled to. 2. The case of the petitioner, in brief, is that he is working as Constable at Central Industrial Security Force (for brevity ‘CISF’) Unit, Salarjung Museum, Hyderabad. While he was working in the DHEP, Doyang, Nagaland, he applied for earned leave for 23 days and half pay leave for 37 days, total 60 days i.e. from 24-11-2003 to 22-01-2004 for the purpose of his marriage and the same was sanctioned. However, he extended leave for a further period of 60 days i.e. from 23-01-2004 to 22-03-2004, vide application dated 04-02-2004 since he was suffering from jaundice. However, after he joined into service, he was issued a charge memo framing the following charge: “That No.014510470 Constable T.Sree Ramulu of CISF Unit DHEP Doyang (Nagaland) did not report for duty on expiry of 23 days EL & 37 days HPL total of 60 days w.e.f. 24-11-2003 to 02-01-2004 and overstayed unauthorisedly for 60 days from 23-01-2004 to 22-03-2004. The act of the above constable tantamount to grass misconduct, indiscipline and disobedience of orders.” The petitioner submitted a detailed explanation stating the circumstances which led to the extension of leave and he also enclosed the medical certificate to that effect. However, the respondents, without conducting an enquiry in a proper manner, issued the impugned orders. The relevant portion of the order under impugned is as follows: “The pay of No.014510470 Constable T.Sree Ramulu be reduced by one stage from Rs.3200/- to Rs.3125/- for a period of one year with immediate effect. It is further directed that No.014510470 Constable T.Sree Ramulu will not earn increments of pay during the period of reduction and that on expiry of this period. The reduction will have the effect of postponing his future increments of pay.” The petitioner could not prefer any appeal against the said order since he was working at North Eastern State of Nagaland at that point of time, and even there was no communication for receiving the letter from Hyderabad to Nagaland as it takes months together. After coming to know about the said fact, he approached this Court and filed the present writ petition challenging the impugned order. 3. The 5th respondent filed counter affidavit stating that the petitioner without availing alternative efficacious remedy available to him under the statute, straight away approached this Court and filed this writ petition, hence, the writ petition is not maintainable. It is further stated that the petitioner cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India since the impunged order was passed on 23-08-2004, whereas the writ petition is filed on 28-12-2010 i.e. after a lapse of more than six years. It is further stated that the petitioner was found guilty of the charge after conducting departmental enquiry in accordance with the provisions as contemplated in the CISF Rules. Further, the petitioner, in support of his medical leave, did not produce any material to prove his bona fides since in the medical certificate issued by the doctor concerned, it was mentioned that he was suffering from low back-ache, whereas in the application addressed by the petitioner, it is stated that he was suffering from jaundice. The petitioner failed to respond to the call-up notices issued by the authorities while he was absent from duty, therefore, it shows his dereliction of duty. The petitioner unauthorizedly overstayed for a period of 60 days which leads to misconduct. Hence, the writ petition may be dismissed. 4. In response to the counter affidavit, the petitioner filed reply affidavit stating that he was appointed in the CISF at Nagaland without having any experience, which is said to be most toughest posting. Further though he was posted at the border of China without any experience, he discharged his duties with the utmost satisfaction of his superiors. In fact, he faced mental agony from his superiors for getting sanction of leave for the purpose of his marriage. Because of personal grudge against him only, the authorities imposed such punishment by taking disciplinary action. Therefore, he prays to set aside the impugned order, otherwise, he will be put to severe financial hardship and irreparable loss in his future career because of the punishment. 5. Heard the learned counsel for the petitioner and the learned standing counsel for the Central Government appearing for the respondents. 6. The learned counsel for the petitioner contended that as the petitioner fell sick after expiry of leave, he overstayed for 60 days and the same was intimated to the concerned authorities; that the petitioner has taken treatment in Osmania General Hospital; that presently he is working in the Unit of the 5th respondent; that all these aspects form part of a cause of action so as to entertain the writ petition; that the punishment imposed by the 3rd respondent gives a continuous cause of action, so as to enable the petitioner to challenge that order at any point of time and that the alternative remedy is not a bar for invoking the jurisdiction of this Court under Article 226 of the Constitution of India. He relied upon a decision reported in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai[1]. 7. The learned standing counsel appearing for the respondents contended that no part of cause of action arises within the territorial jurisdiction of this Court and that a statutory appeal is provided for against the impugned order, and that at a belated stage, the writ petition cannot be entertained. 8. For invoking the jurisdiction of this Court under Clause (2) of Article 226 of the Constitution of India, cause of action must wholly or in part arise within the jurisdiction of this Court. No doubt, cause of action is a bundle of facts which give jurisdiction to a Court, but those bundle of facts in this case can be referable to the charges leveled against the petitioner. The charge relates to the overstaying after the expiry of the leave period. At that point of time, he was admittedly under the control of the 3rd respondent. Admittedly, the 3rd respondent initiated the disciplinary proceedings. The petitioner participated in the disciplinary proceedings. In the order passed by the disciplinary authority, all these aspects formed part of a cause of action. It may be a fact that after the expiry of leave overstaying on medical grounds is within the jurisdiction of this Court, but it cannot form part of the subject matter of the misconduct. 9. The misconduct alleged is overstaying while the petitioner was working as a Constable under the control of the 3rd respondent. Therefore, a part of cause of action arises within the jurisdiction of the place where he was working. Similarly, this Court gets jurisdiction if part of cause of action viz., disciplinary authority takes a decision in pursuance of the enquiry report. Similarly, this Court gets jurisdiction if the place where the disciplinary enquiry Conducted lies within the jurisdiction of this Court. The case of the petitioner does not fall within the jurisdiction of this Court as no part of cause of action arose within the territorial jurisdiction of this Court. Therefore, this Court has no territorial jurisdiction to entertain the writ petition. 10. Now the other contention on the part of the learned counsel for the petitioner is that availability of an alternative remedy is not a bar for invoking the jurisdiction of this Court. In support of his contention, the learned counsel for the petitioner placed reliance on the decision reported in Whirlpool Corporation’s case (supra 1), wherein it was held thus: “Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.” 11. No doubt, availability of an alternative remedy is not a bar for invoking the jurisdiction under Article 226 of the Constitution of India, but at least under three contingencies, this Court can interfere, by entertaining the writ petition viz., the infringement of fundamental rights, authorities lack jurisdiction and violation of principles of natural justice. The case of the petitioner does not fall under any one of the three categories as mentioned above. 12. With regard to the limitation aspect is concerned, the learned counsel for the petitioner contended that the punishment gives a continuous cause of action for the petitioner so as to exercise his discretion to challenge the same at any point of time. When a statute prescribes a particular period of limitation for filing an appeal, that has to be exercised. Once the statute prescribes a particular period for filing an appeal and it commences from the date of the impugned order, that cannot be stopped by anybody including the Courts. The question of continuance of cause of action does not arise when the statute prescribes a particular period. The learned counsel for the petitioner places a reliance on the decision reported in V.Rajesham vs. Chairman, Industrial Tribunal-cum-Labour Court[2], wherein in was held thus: “It is however a rule of prudene and not a rule of law and accordingly when shall it be prudent to refuse to entertain a writ petition and when it shall be prudent to entertain it are left to the discretion of the court. Some rules to guide the exercise of jurisdiction by the court in such a situation are found in the judgments of the Supreme Court in the case of Stat of M.P. Vs. Nandlala Jaiswal (1) AIR 1987 SC 251 Narayan Devi Khaitan v. State of Bihar (2) 1964 SC (Notes) 259 and P.B.Roy vs. Union of India (3) AIR 1972 SC 908 A Full Bench of the Patna High Court in Jagannath Mishra v. State (4) AIR 1990 Patna 11 has noticed these rules and laid down that no hard and fast rule can be laid down as to when High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. However, the rule that delay may defeat the rights of a party is relaxed and need not be applied if the case is positively good.” This decision has no application to the present facts of the case because in the said decision, there is no limitation prescribed to challenge the impugned order. 13. He also relied upon a decision reported in M.R.Gupta v. Unionof Idia and others[3], wherein it was held thus: “5………….In other words, the appellant’s claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1-8- 1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.” This decision also has no application to the present facts of the case because the pay of the petitioner therein was not the issue so as to infer that it is a continuous cause of action. 14. When the statute provides for a particular period of limitation for filing an appeal against an order, the aggrieved party has to necessarily file the appeal in pursuance of the statute. No decision by a Court can be read so as to nullify the statute. Hence, the writ petition is devoid of merit and the same is liable to be dismissed. 15. Accordingly, the Writ Petition is dismissed leaving open the remedies available to the petitioner under law. No costs. ___________________ JUSTICE K.C.BHANU 28th July 2011 KVR [1] 1999-AIR (SC)-0-22 [2] 1995 (2) A.L.D.803 [3] A.I.R. 1996 S.C. 669 (1)