IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9612 of 2007 Shyam Kishore, son of Ram Parikshan Rai, resident of Village Bhisa, P.S. Dumra, District Sitamarhi. ------- Petitioner Versus 1. The Union of India through the Defence Secretary, Govt. of India, New Delhi. 2. The Chief of Army Staff, Indian Army, New Delhi. 3. P.K. Malhotra, Colonel Commandant, 69 Armoured Regiment, C/o 56, A.P.O., Gwalior. 4. H.P.S. Klair, Major General, General Officer Commanding, H.Q. 36 Infantry Division, C/o 56 A.P.O., Gwalior. 5. The Chief Record Officer, E.M.E. Record, Secunderabad. --------- Respondents ----------- 5 25.4.2011 Heard Mr. Sunil Kumar Verma, learned counsel for the petitioner and counsel for the Union of India. The prayer of the petitioner in this writ application reads as follows:- “1(i) To quash the order dated 12.12.2006 passed by P.K. Malhotra, Colonel Commanding the 69 Armoured Regiment, Indian Army whereby and whereunder the Petitioner was awarded the sentence of rigorous imprisonment for six (6) months and further was dismissed from the service. (ii) To quash the order dated 28.05.07 passed by H.P.S. Klair, Major General, General Officer Commanding, H.Q. 36 Infantry Division in appeal case no. 14038/3/A1/17 filed in terms of section 164(2) of the Army Act, 1950 dated 19.03.07 by the Petitioner whereby the order of 2 sentence and dismissal from service passed earlier on 12.12.06 in the summary court martial proceedings was upheld and confirmed. (iii) To alter the quantum of punishment keeping in view the nature of allegation and facts and circumstances of the case. (iv) To re-instate the Petitioner in the parent department against the post he was working on the date of said order of sentence and dismissal and further grant of all consequential benefits to which he is found entitled to.” Before Mr. Verma would make his submission on merit, learned counsel for the Union of India had raised a preliminary objection as with regard to the maintainability of the writ application on account of territorial jurisdiction. In this context, he has submitted that the order of punishment both by way of imprisonment for a period of six months as also dismissal from his service was passed at Gwalior on 12.12.2006 and the petitioner was served with the order of sentence, whereafter, he was immediately taken into custody and while the petitioner was continuing in custody, he had 3 filed his appeal on 19.3.2007, which also was dismissed by the Major General stationed at Pune, which was again communicated to the petitioner at his place of confinement i.e. Gwalior. He would accordingly proceed to submit that when admittedly the petitioner had also filed his first writ application in Madhya Pradesh High Court challenging the earlier order of punishment dated 12.12.2006 in WP No. 6614 of 2006, he cannot be heard to say that any part of cause of action had arisen to the petitioner for filing this writ application in this Court. In this context, he would place reliance on the judgment of the Division Bench of this Court in the case of Amar Kumar Choubey Vs. Union of India & Ors. reported in 2009(1)PLJR 553. Interestingly, learned counsel for the petitioner also placed reliance on the same judgment of Amar Kumar Choubey (supra) and in this regard placed heavy reliance on paragraph no.22 of the said judgment. He has also submitted that if the Army authorities had made a separate communication to the wife of the petitioner informing as with regard to 4 the petitioner being taken in confinement as a result of the order of punishment dated 12.12.2006 and further dismissing him from service, the cause of action could have also arisen in the territorial jurisdiction of this Court. The preliminary objection raised by the learned counsel for the Union of India has to be upheld for the simple reason that the trial of the petitioner under Army Act was conducted at Gwalior, the order of conviction and sentence, which also entails resultant consequence of his dismissal from service by a common order dated 12.12.2006, was passed at Gwalior, served on him as a result of which he had taken into custody and also that he had filed an appeal, which was disposed of by the Major General stationed at Pune. Once these aspects become clear, there would be nothing left for this Court to hold that the entire cause of action for the petitioner had arisen at Gwalior where either he was communicated the order of his being sentenced to jail custody in civil prison for a period of six months and dismissal of service from 5 where his resultant appeal on being rejected by the competent Major General was communicated. In fact, the petitioner had rightly selected the forum of Madhya Pradesh High Court in the first instance for assailing the same order dated 12.12.2006 and cannot get away from the fact that the Madhya Pradesh High Court had non-suited not on account of territorial jurisdiction but only on account of alternative remedy of filing an appeal. Thus, when the appeal was filed by the petitioner, while continuing in civil prison at Gwalior and the result arrived was also communicated to the petitioner at Gwalior, nothing remains to be said about the cause of action pertaining to the relief sought in this writ application. It was in fact this aspect of the matter which was decided by the Division Bench of this Court in the case of Amar Kumar Choubey supra) wherein after discussing the law on the subject, it was held that the touchstone for exercising jurisdiction under Article 226 of the Constitution of India squarely taken to the territory in which the cause of action 6 had arisen out of either in whole or in part. In fact, this Court, relying on the judgment of the Apex Court in the case of Kusum Ingots & Alloys Ltd. & Ors. Vs. Union of India & Anr. reported in 2004(6)SCC 254, had also gone to hold that the entire bundle of facts has to be considered for finding out the cause of action and in this context, it was held that the bundle of facts for the purpose of cause of action would be restricted to the facts which will be sufficient to obtain a relief, namely, material fact. In the present case, the material fact is that the petitioner at the relevant point of time was employed in Army and stationed at Gwalior where he had been subjected to a trial under Army Act and was thereafter convicted and sentenced at Gwalior from where he had also filed an appeal while continuing in the jail custody in civil prison. The appellate order also was passed during the period the petitioner was continuing in custody and communicated to him at Gwalior and as such, the relief which has been sought in this writ application pertaining to quashing of either the original order of 7 conviction and removal from service dated 12.12.2006 or its affirmatory appellate order dated 28.5.2007, both having been passed a Gwalior and Pune respectively, and having been communicated to the petitioner at Gwalior, would give no part of cause of action to the petitioner to maintain this writ application in this Court. The information sent to the wife of the petitioner, while the petitioner was in custody as with regard to his being subjected to civil prison in the jail at Gwalior, in no view of the matter, can be said to be a communication of the order, which is sought to be impugned in this writ application. The reliance placed by the learned counsel for the petitioner on paragraph no.22 of the judgment of Amar Kumar Choubey (supra) also in this regard seems to be wholly misconceived. In paragraph no.22, this Court while noticing the facts of the case of Rameshwar Prasad Vs. Union of India & Ors. Reported in 2003(2)PLJR 151 had found that the said Rameshwar Prasad was absent from duty and was in fact on unauthorized leave beyond his back the order of dismissal was passed 8 and was communicated to the aforesaid Rameshwar Prasad who was residing within the territorial jurisdiction of this Court. It was in this context that this Court had gone to hold that since the order of dismissal passed against Rameshwar Prasad came into force on its being served on Mr. Prasad who was already absent from duty and was residing in the territorial jurisdiction of this Court, that the cause of action for him for assailing the order of dismissal arose within the territorial jurisdiction of this Court. This however cannot be said to be the case of the petitioner for whom all part of cause of action had arisen only at Gwalior at Madhya Pradesh. Once this aspect would become clear, this Court will have to hold that in view of the law laid down by the Division Bench in the case of Amar Kumar Choubey and this writ application on account of lack of territorial jurisdiction is not maintainable. This Court has purposely not gone into the other issues, inasmuch as, that may prejudice the petitioner in case he would like to file his writ application before an 9 appropriate Court. Counsel for the petitioner at this stage would seek liberty to withdraw this writ application for filing of an appropriate writ application before an appropriate High Court, having territorial jurisdiction to the cause of action arising out of the impugned orders. In the considered opinion of this Court, there would be no requirement of giving such liberty, inasmuch as, it is the right of the petitioner to seek redressal of his grievance by instituting an appropriate proceeding before the competent court. That being so, this application is wholly misconceived and the same is accordingly dismissed as withdrawn. Rsh (Mihir Kumar Jha, J.)