HIGH COURT OF ORISSA : CUTTACK W.P.(C) NO.6224 OF 2006 In the matter of an application under Articles 226 and 227 of the Constitution of India. Chandrama Bhusan Sarangi ……. Petitioner. Versus. Union of India and Others ……….. Opp.parties For petitioner : Mr. Bibekananda Nayak, For opp. parties : Mr. S.D. Das Asst. Solicitor General PRESENT THE HON’BLE SHRI JUSTICE PRADIP MOAHNTY A N D THE HON’BLE SHRI JUSTICE B.K.NAYAK -------------------------------------------------------------------------------------------- Date of hearing : 22.11.2010 : Date of judgment: 25.01.2011 B.K.NAYAK, J. In this writ petition the petitioner challenges the order of punishment of removal from service and the confirming appellate and revisional orders under Annexure-8, 10 & 12 respectively. 2. Briefly stated, the case of the petitioner is that initially in the year 1992 he was appointed as a Constable in the C.I.S.F. Unit, IPCL, Baroda in the State of Gujarat. In 1997 he was transferred to the CISF Unit, BPCL, Mumbai. On 15.5.1999 he was transferred from Mumbai to CISF Unit, KhSTPP, Kahalgaon, Bihar and was relieved on that day with direction to join at C.I.S.F. Unit, Kahalgaon on 28.5.1999 after availing joining time. The petitioner having not joined at his new place of posting, the Dy. Commandant, C.I.S.F., KhSTPP, Kahalgaon vide its letters dated 19.7.1999 and 30.08.1999 reported about non-joining of the petitioner. Thereafter three call up notices dated 2.8.1999, 7.9.1999 and 08.09.1999 were sent to the petitioner by registered post to his residential address with direction to report to duty at Kahalgaon failing which disciplinary action would be taken against him. The first two call up notices were returned to the office undelivered by the postal authorities with remarks “long absent”. The petitioner neither reported for duty nor sent any communication regarding his whereabouts nor responded to the call up notice dated 08.09.1999. Therefore, a departmental proceeding was initiated against him under Rule 34 of the C.I.S.F. Rules,1969 (now amended Rule 36 of C.I.S.F. Rules,2001) and Memorandum of charges dated 16.10.1999 as per Annexure-1 was served on him. The petitioner submitted his reply (Annexure-2) to the charge stating that due to his illness and hospitalization he could not report at his new place of posting. The Inquiry Officer enquired into the charge and found the petitioner guilty of the same and submitted his report dated 10.7.2001 (Annexure-4) to the disciplinary authority. Before the disciplinary authority, the petitioner submitted a further show cause stating that due to self illness and for Super Cyclone in which his paternal house was washed away he could not report for duty. On consideration of the enquiry report, the materials on record along with the show cause filed by the petitioner, the disciplinary authority (opposite party no.4) passed order on 3.10.2001 vide Annexure-8 imposing the punishment of removal of the petitioner from service. The petitioner, thereafter filed appeal before opposite party no.3 challenging 2 the order of punishment, but the said appeal was dismissed by order 1.5.2002 vide Annexure-10. Being aggrieved, the petitioner filed a revision before opposite party no.2 which also met with the same fate. The order of dismissal of revision dated 02.06.2003 has been filed as Annexure-12. It is also pleaded and contended that the Inquiry Officer as well as the disciplinary authority acted whimsically without properly considering the evidence on record and without following the procedure and formality. It is also stated that the punishment of removal from service is quite harsh and shockingly disproportionate to the misconduct for which the petitioner was charged. 3. The opposite parties have filed a counter affidavit challenging the territorial jurisdiction of this Court to entertain and dispose of the writ petition. It is also stated that the petitioner instead of joining at his new place of posting, i.e., C.I.S.F Unit KhSTPP, Kahalgaon, Bihar remained unauthorisedly absent for 441 days and thereafter reported at the new place of posting on 10.08.2000 afternoon. It is stated that all procedural formalities were duly followed and adequate and reasonable opportunities were given to the petitioner to defend his case. The plea of the petitioner was that he suffered from illness and was under treatment and that in the Super Cyclone of 1999 his house in his native village was washed away. But the medical certificate filed by him shows that initially he was treated by one Dr. A.A. Mathe at Mumbai, who issued a medical certificate in favour of the petitioner on 15.7.1999 stating that the petitioner was under his treatment from 20.5.1999 to 15.7.1999 for jaundice and was declared 3 fit to resume duty with effect from 16.7.1999, but the petitioner thereafter did not report to duty and instead obtained medical certificate from another doctor, namely, Dr. V.V. Krishnan of Mumbai who advised him rest from 16.7.1999 to 31.7.1999 and from 1.8.1999 to 15.8.1999 in two spells and declared him fit to resume duty with effect from 16.8.1999. But the petitioner did not join after 16.8.1999. It is also surprising that Dr. V.V. Krishnan declared the petitioner fit with effect from 16.8.1999 when he issued the certificate on 2.8.1999. But the petitioner again obtained certificate of his treatment as an outdoor patient at Rourkela Government Hospital and rest for one month from 17.8.1999 to 18.09.1999. He also again purportedly took treatment on 10.01.2000 and was from time to time advised rest, but there is no evidence about any illness or treatment of the petitioner from 17.10.1999 to 9.1.2000 (89 days). It is stated that the plea of illness and medical treatment has been concocted by the petitioner and he managed to obtain the certificates merely for the purpose of his defence. With regard to the washing away of the house of the petitioner at his native village, it is stated that charge memo having been sent to the CISF Unit PPT, Paradeep (Orissa), the same was sought to be served on the petitioner at his native village, but the petitioner was not available there and it was ascertained from his mother and brother that the petitioner never visited the village since March,1998 to 1.7.2000. It is further stated that the certificate of the Tahasildar vide Annexure-6 reveals that it is the house of the petitioner’s elder brother, Subhransu Sarangi which had been damaged, but not washed away fully, for which a 4 compensation of two thousand rupees only was sanctioned in his favour. It is also stated that on two earlier occasions the petitioner had been punished while he was serving at Baroda and Bombay for unauthorized absence from his duty and from duty post respectively. It is also lastly stated that in the facts and circumstances and under the Rules the petitioner is not fit to be retained in a disciplinary force like the CISF and therefore, the penalty of removal from service is quite proportionate and commensurate to the gravity of the charge. The disciplinary authority, the appellate authority and the revisional authority have passed orders keeping in view and having considered all material aspects, which warrant no interference. 4. It is strenuously contended on behalf of the learned Asst. Solicitor General that this Court has no territorial jurisdiction to entertain the writ application inasmuch as no part of the cause of action for the writ application arose within the jurisdiction of this Court. It is further submitted by him that there is no averment in the writ application which would go to show that the cause of action or any part of the cause of action for the writ application arose within the jurisdiction of this Court. He relies upon the decisions reported in Oil and Natural Gas Commission v. Utpal Kumar Basu and others; (1994) 4 SCC 711, National Textile Corporation Ltd and others v. Haribox Swalram and others; (2004) 9 SCC 786, C.B.I., Anti-corruption Branch, Mumbai v. Narayan Diwakar, (1999) 4 SCC 656, Kusum Ingots & Alloys Ltd v. Union of 5 India and another; (2004) 6 SCC 254 and Navinchandra N. Majithia v. State of Maharashtra and others; (2000) 7 SCC 640. 5. It is settled law that the High Court can exercise power to issue writ, direction or order for enforcement of any of the fundamental rights conferred by Part-III of the Constitution or for any other purpose, if the cause of action wholly or in part has arisen within the territorial jurisdiction of the High Court. Referring to the ambit of High Court’s jurisdiction under Article 226 of the Constitution of India, the Apex Court in the case of Oil and Natural Gas Commission v. Utpal Kumar Basu and others; (1994) 4 SCC 711 held as follows : “5. Clause (1) of Article 226 begins with a non obstante clause-notwithstanding anything in Article 32- and provides that every High Court shall have power “throughout the territories in relation to which it exercises jurisdiction”, to issue to any person or authority, including in appropriate cases, any Government, “within those territories” directions, orders or writs, for the enforcement of any of the rights conferred by Part-III or for any other purpose. Under Clause (2) of Article 226 the High Court may exercise its power conferred by clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental 6 rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court.” 6. Explaining the meaning of the expression “cause of action” and the mode of determination whether cause of action arose within the territorial jurisdiction of the particular High Court, the Apex Court in the case of Oil and Natural Gas Commission (supra) further held as follows: “6. It is well settled that the expression “cause of action” means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kour v. Partab Singh Lord Watson said : “… the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.” Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry 7 as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition.” 7. As to what facts give rise to cause of action for the purpose of determining jurisdiction, it has been explained in the case of National Textile Corporation Ltd and others v. Haribox Swalram and others; (2004) 9 SCC 786 as follows : “ 10. Under clause (2) of Article 226 of the Constitution, the High Court is empowered to issue writs, orders or directions to any Government, authority or person 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. Cause of action as understood in the civil proceedings means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. To put it in a different way, it is the bundle of facts which taken with the law applicable to them, gives the plaintiff a right to relief against the defendant. In Union of India v. Adani Exports Ltd. in the context of clause (2) of Article 226 of the Constitution, it has been explained that each and every fact pleaded in the writ petition does not ipso facto lead to the conclusion that those facts give rise to a 8 cause of action within the court’s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. ….” Taking note of the views expressed in Oil and Natural Gas Commission (supra), the Apex Court further held as follows : “11. The question of jurisdiction was considered in considerable detail in Oil and Natural Gas Commission v. Utpal Kumar Basu and it was held that merely because the writ petitioner submitted the tender and made representations from Calcutta in response to an advertisement inviting tenders which were to be considered at New Delhi and the work was to be performed in Hazira (Gujarat) and also received replies to the fax messages at Calcutta, could not constitute facts forming an integral part of cause of action. It was further held that the High Court could not assume jurisdiction on the ground that the writ petitioner resides in or carries on business from a registered office in the State of West Bengal.” 8. In C.B.I., Anti-corruption Branch, Mumbai v. Narayan Diwakar, (1999) 4 SCC 656, where the petitioner, who had been posted in Arunachal Pradesh, received a wireless message through Chief Secretary of the State asking him to appear before the C.B.I. Inspector in Bombay, moved the High Court of Guwahati for quashing the F.I.R. filed against him by the C.B.I., on objection being raised by the department, the Apex 9 Court held that Guwahati High Court had no territorial jurisdiction to entertain the writ petition. 9. The decisions in Oil and Natural Gas Commission and National Textile Corporation Ltd and others (supra) were followed in the case of Kusum Ingots & Alloys Ltd v. Union of India and another; (2004) 6 SCC 254 and it was held as follows : “12. This Court in Oil & Natural Gas Commission v. Utpal Kumar Basu held that the question as to whether the Court has a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial.” 10. In the case of Navinchandra N. Majithia v. State of Maharashtra and others; (2000) 7 SCC 640, it has been held that the place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of action in that particular writ petition. The High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends upon the facts in each case. 11. Coming to the facts of the present case, the averments with regard to territorial jurisdiction of this Court for entertaining the writ petition have been made in paragraphs-2 and 19 of the writ petition, which are quoted hereunder : “2. That the petitioner is a citizen of India and a permanent residence of Orissa within the territorial jurisdiction of this Hon’ble Court. The cause of action 10 arises within this Hon’ble Court and the opposite parties are amenable to this writ application. 19. That the petitioner has received the order of appellate authority as well as the Revisional Authority at rourkela which is fully evident from the said orders. Being a resident of the State of Orissa and as per the decision reported in 2000 (ii) OLR-126 Janardhan v. Union of India the case is maintainable before this Hn’ble Court.” 12. Learned counsel for the petitioner has placed reliance on the decisions reported in 94 (2002) C.L.T. 413; Tapan Kumar Dalai v. Union of India and others and 2000 (II) O.L.R. 216; (Sri) Janardan Mohanty v. Union of India and 3 others. In the first case where the petitioner, who was working in the C.R.P.F. in the State of Assam was visited with punishment in a disciplinary proceeding and the order of punishment was served on him at his home address in the State of Orissa and the Memorandum of charges were also sent to him at his home address in Orissa, this Court held that the part of cause of action for the writ petition arose within the territorial jurisdiction of this court and, therefore, entertained the writ petition. In the second case of (Sri) Janardan Mohanty, which is exactly similar to the case in hand, where the writ petitioner was working as Assistant Sub-Inspector in the C.I.S.F. Unit, Ranchi, where disciplinary proceeding was initiated against him and ultimately punishment of removal from service was imposed and the petitioner challenged the punishment order in appeal and the appellate order confirming the punishment was served on him at his home address in the State of Orissa, 11 this Court held that the High Court of Orissa has jurisdiction to entertain the writ petition. It was observed as follows : “3. xxx xxx xxx xx ……..The service of the appellate order on the petitioner at his permanent residence in the State of Orissa will give rise to a cause of action within the territory of this State if service of the said order was an integral part of the cause of action. The communication of an order affecting the service of an individual is necessary and the order takes effect against the individual employee after it is communicated. In the present case also the cause of action arose only when the appellate order was communicated to and/or served on the petitioner. Admittedly the order was communicated at the petitioner’s permanent residence within the State of Orissa. In our view, in the facts and circumstances of the present case part of the cause of action has arisen within the State of Orissa.” In both the aforesaid decisions, this Court took note of the principle laid down by the Apex Court, in the case of Oil and Natural Gas Commission (supra) cited by the opposite parties. 13. None of the decisions cited on behalf of the opposite parties deal with the question whether in the matter of challenge to orders passed by the disciplinary authority as well as the appellate and revisional authorities, service of such orders at a particular place on the delinquent officer would form part of cause of action or not. Keeping in view the general principle laid down by the Apex Court in the decisions, as seen 12 above, and following the decisions of this Court in the case of Tapan Kumar Dalai and (Sri) Janardan Mohanty (supra) we hold that since admittedly the appellate and revisional orders vide Annexures-10 and 12 were served on the petitioner at his address at Rourkela in the State of Orissa, part of the cause of action for this writ petition arises within the jurisdiction of this Court and, therefore, the writ petition is entertainable. 14. Coming to the merits of the case, it is necessary to see the scope of judicial review in the matter of departmental inquiry. In the case of Chairman-cum-Managing Director, Coal India Limited and another v. Mukul Kumar Choudhuri and others; (2009) 15 SCC 620 while deprecating the practice of assessment of evidence by the High Court recorded in the departmental proceeding in order to come to its own conclusion, the Hon’ble Supreme Court held as follows : “13. It has been time and again said that it is not open to the High Court to examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions and that power of judicial review is not directed against the decision but is confined to the decision-making process. In a case such as the present one where the delinquent admitted the charges, no scope is left to differ with the conclusions arrived at by the inquiry officer about the proof of charges. In the absence of any procedural illegality or irregularity in conduct of the departmental enquiry, it has to be held that the charges against the delinquent stood proved and warranted no interference.” 13 15. In the instant case, it is only pleaded and contended on behalf of the petitioner that the enquiry officer as well as disciplinary authority acted whimsically without properly considering the evidence on record and without following the procedural formality. But nothing has been shown as to what procedural formality has been deviated from by the authorities in the conduct of the inquiry and disciplinary proceeding and in the matter of disposal of the appeal and revision. Similarly, there is no allegation of either non-consideration of any material evidence or reliance by the authorities of any material, which is wholly irrelevant or extraneous. The writ court is not an appellate court and propriety or otherwise of the fact findings cannot be interfered with in exercise of its power of judicial review. We have carefully gone through the impugned orders and the materials on record and find that the petitioner was given adequate opportunity and he filed his show cause to the charges and led evidence in support of his defence. His defence of illness and treatment, and the evidence in support thereof has been considered by the authorities in their proper perspective. The authorities have rightly found the petitioner guilty of the charge. Therefore, there is no scope to interfere with the finding of guilt of the petitioner. 16. It is contended on behalf of the petitioner that the punishment of removal from service of the petitioner is grossly disproportionate to the charge of unauthorised absence and shockingly harsh and excessive which should be quashed. The learned Assistant Solicitor General vehemently urged that the petitioner remained unauthorisedly absent for 441 days 14 and therefore he should not be allowed to continue in a disciplined force like the C.I.S.F., particularly when the petitioner had on two earlier occasions been imposed with punishment of censure for his absence from shift duty at Baroda and petty punishment of four days extra duty of one hour each for his absence from duty post at Mumbai. 17. With regard to proportionality of punishment for misconduct, the Apex Court in the case of Chairman-cum-Managing Director, Coal India Limited (supra) has held as follows : “19. The doctrine of proportionality is, thus, well- recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 20. One of the tests to be applied