# Ex Major Viveky Rai (Ta No. 42343) v. Union of India

- **Citation:** (2015) 1 ILRA 204
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-01-22
- **Case number:** Service Bench No. 1654 of 2012
- **Bench:** Rajes Kumar, Ashok Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ex-major-viveky-rai-ta-no-42343-v-union-of-india-43280
- **Pages:** 6

## Headnote

Constitution of India, Art. 226-Service
law-dismissal order passed on ground of
conviction-criminal trail conducted at
Jammu-Kashmir-disciplinary proceeding
conducted with full participation of
petitioner
at
Delhi.
Simply
because
dismissal order served at native place at
Lucknow-held-in view of Full Bench
decision-Allahabad
High
Court-
no
jurisdiction-petition dismissed.
Held: Para-19
In the present case, a criminal case has been
proceeded in Jammu and Kashmir, while the
petitioner was posted at Jammu and
Kashmir. Entire disciplinary proceeding was
carried on at Delhi wherein the petitioner
participated. The impugned order has been
passed at Delhi by the authority situated at
Delhi, therefore, the cause of action has only
arisen at Delhi. The petitioner, on earlier
occasion also, approached the Delhi High
Court against the termination order. Merely
because the petitioner resides at Lucknow
and the order of termination has been
communicated to him at Lucknow, no cause
of action has arisen at Lucknow and thus,
the writ petition filed at Lucknow is not
maintainable.
Case Law discussed:
(2005) 1 UPLBEC 108; AIR 1961 SC 1313; AIR
2014 SC 3607; AIR 1995 SC 577; (1994) 4
SCC 710.

## Text

204
 INDIAN LAW REPORTS ALLAHABAD SERIES
unless the existence of such judgment,
order or decree, is a fact in issue, or is
relevant under some other provisions of
this Act.""
15. After considering several
decisions, the Division Bench of this
Court in Kumar Rinki's case (Supra)
concluded its opinion on the point as
under paragraphs 13 &14:
"13. The inference that is deducible
from discussion of the above decisions
that the judgement of acquittal rendered
in the trial of other co-accused is wholly
irrelevant as the said judgment would not
be admissible under the provisions of
Sections 40 to 44 of the Evidence Act. It
also leaves no manner of doubt that every
case has to be decided on the evidence
adduced therein and therefore, the case of
the petitioner has to be decided on the
basis of evidence which may be adduced
during the course of trial.
14. "The principles that are distilled
from the discussion of the above decisions
are:
"(i) the acquittal of a co-accused in a
separate trial cannot be made basis for
quashing the proceedings against another
co-accused who is being separately tried
on the principle that each case has to be
decided on the evidence adduced in that
case;
(ii) Judgement of acquittal rendered
in one case is not relevant in the case of
co-accused separately tried inasmuch as
Sections 40 to 44 of the evidence Act deal
with relevancy of certain judgments in
probate, matrimonial, admiralty and
insolvency jurisdiction and therefore,
inapplicable to a criminal case.""
16. In this case, a separate chargesheet has been filed against the petitioner,
therefore,
separate
case
has
been
registered against him.
17. It has been contended by learned
counsel for the petitioner that a perusal of
the judgement of acquittal reveals that
main accused Virendra Kumar Dwivedi
married with the prosecutrix later on. The
charges framed against the petitioner is
not only of Section 376, 363 or 366 IPC
but also for other sections. The court
passed acquittal on the ground of
document in the form of marriage
certificate. The case of the present
applicant is not based on the same
defence. Moreover as discussed above, it
could not be said that the case is squarely
covered under Section 300 of Cr.P.C.,
therefore, I am of the view that the
present proceeding does not warrant any
interference on the basis of doctrine of
stare decisis.
18. Hence, petition lacks merit and
is accordingly dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.01.2015
BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE ASHOK PAL SINGH, J.
Service Bench No. 1654 of 2012
Ex Major Viveky Rai (Ta No. 42343)
 ...Petitioner
Versus
Union of India
...Respondent
Counsel for the Petitioner:
Sri Prahlad Nath Chaturvedi, Dr. L.P.
Mishra, Sri Kamal Kumar Singh Bisht, Sri
Vinod Shanker Misra
Counsel
for
the
Respondent:
1 All]
Ex. Major Viveky Rai (Ta No. 42343) Vs. Union of India
205
A.S.G., Sri Neerav Chaturvedi
Constitution of India, Art. 226-Service
law-dismissal order passed on ground of
conviction-criminal trail conducted at
Jammu-Kashmir-disciplinary proceeding
conducted with full participation of
petitioner
at
Delhi.
Simply
because
dismissal order served at native place at
Lucknow-held-in view of Full Bench
decision-Allahabad
High
Court-
no
jurisdiction-petition dismissed.
Held: Para-19
In the present case, a criminal case has been
proceeded in Jammu and Kashmir, while the
petitioner was posted at Jammu and
Kashmir. Entire disciplinary proceeding was
carried on at Delhi wherein the petitioner
participated. The impugned order has been
passed at Delhi by the authority situated at
Delhi, therefore, the cause of action has only
arisen at Delhi. The petitioner, on earlier
occasion also, approached the Delhi High
Court against the termination order. Merely
because the petitioner resides at Lucknow
and the order of termination has been
communicated to him at Lucknow, no cause
of action has arisen at Lucknow and thus,
the writ petition filed at Lucknow is not
maintainable.
Case Law discussed:
(2005) 1 UPLBEC 108; AIR 1961 SC 1313; AIR
2014 SC 3607; AIR 1995 SC 577; (1994) 4
SCC 710.
(Delivered by Hon'ble Rajes Kumar, J.)
1. Heard Sri Umesh Narain Sharma,
learned Senior Advocate, appearing on
behalf of the petitioner and Sri Neerav
Chitravanshi, learned counsel appearing
on behalf of the respondent.
2. In the present writ petition, the
following reliefs have been claimed:-
"(i) Issue a writ, order or direction in
the nature of 'Certiorari' quashing the
Government of India letter/order No.
16(3)/2012/D (GS-III) dated 27.4.2012,
the true copy of which is contained as
Annexure No. 19.
(ii) Issue a writ, order or direction in
the nature of 'Mandamus' directing the
respondents to reinstate the petitioner
into service with all consequential service
and monetary benefits, including full pay
and allowances for the entire period w.e.f.
19.11.2003 till the date of reinstatement
into service with 18% interest calculated
with effect from the said date.
(iii) Issue any such other order or
direction which this Hon'ble Court may
deem fit and just in the facts and
circumstances of the case in favour of the
petitioner.
(iv) Allow the writ petition with cost
in favour of the petitioner."
3. By the impugned order dated
27.4.2012 passed by the Government of
India, Ministry of Defence New Delhi, the
services of the petitioner have been
terminated with effect from 11.9.2009.
Copy of the said order had been sent to
the petitioner at the address of 2/272-A
Vishal Khand-2 Gomtinagar, Lucknow,
which is apparent from the letter dated
3.5.2012, which is at page 152 of the writ
petition.
4. It appears that while the petitioner
was posted at Jammu, he had been tried
by the Court of First Additional Sessions
Judge, Jammu under Section 302 IPC for
the charges of having murdered his wife
Smt. Sarita Rai. The Sessions Court vide
its order dated 24.11.2008 acquitted him
giving benefit of doubt. Against the said
order, Appeal No. 14 of 2009 has been
filed by the State of Jammu and Kashmir
in the State of Jammu, which is pending.
On the facts and circumstances and
206
 INDIAN LAW REPORTS ALLAHABAD SERIES
considering the nature and gravity of
heinous charges against the petitioner,
acquittal order dated 24.11.2008 based on
account of benefit of doubt and prolonged
detention in jail, further retention of the
petitioner
in
Territorial
Army
was
considered prejudicial to discipline and
against the organizational interest and on
this ground vide order dated 11.9.2009,
the
petitioner's
services
have
been
terminated. The petitioner has challenged
the said order vide Writ Petition No. 815
of 2010 in Delhi High Court. The Delhi
High Court has quashed the impugned
order dated 11.9.2009 and directed the
respondent to take fresh decision in the
matter of his reinstatement. By the
impugned order, the case of the petitioner
has been re-considered and the petitioner's
services have been terminated with effect
from 11.9.2009, against which the present
writ petition is being filed.
5.

Learned
counsel
for
the
respondent raised a preliminary objection
about the maintainability of the writ
petition on the ground of territorial
jurisdiction. It is contended that no cause
of action has arisen in the State of U.P.,
and particularly at Lucknow, therefore,
this Court has no territorial jurisdiction to
entertain the writ petition and the writ
petition is accordingly not maintainable. It
is contended that merely because the
petitioner resides at Lucknow, would not
give the territorial jurisdiction to this
Court to adjudicate the matter. The cause
of action has arisen at Delhi where the
impugned order has been passed.
6. Reliance has been placed on the
Full Bench decision of this Court in the
case of Rajendra Kumar Mishra Vs.
Union of India and others, reported in
(2005) 1 UPLBEC 108.
7. Sri Umesh Narain Sharma,
learned
counsel
for
the
petitioner
submitted that the impugned order has
been served upon the petitioner at the
address of 2/272-A Vishal Khand-2
Gomtinagar,
Lucknow
where
the
petitioner resides. He submitted that the
order of dismissal dated 27.4.2012
became effective only when the said order
came to knowledge of the petitioner when
it has been served at Lucknow and,
therefore, partial cause of action did arise
at Lucknow.
8. Reliance has been placed in the
case of State of Punjab Vs. Amar Singh
Harika, reported in AIR 1961 SC 1313
and the recent decision of the Apex Court
in the case of Nawal Kishore Sharma Vs.
Union of India, reported in AIR 2014 SC
3607.
9.

Learned
counsel
for
the
respondent submitted that the decision of
the Apex Court in the case of State of
Punjab Vs. Amar Singh Harika (Supra)
was not relevant to the present situation
inasmuch as the question of territorial
jurisdiction was not involved. With regard
to the decision of the Apex Court in the
case of Nawal Kishore Sharma Vs. Union
of India (Supra), it is submitted that the
petitioner had made the claim for grant of
various reliefs, including 100% disability,
compensation and pecuniary damages. In
respect of the said claim, several
correspondences had been made from the
State of Bihar to the registered office of
the Corporation seaman. Communication
with regard to rejection of his claim was
made at his residential address in the State
of Bihar and on these facts the Apex
Court has held that the part of cause of
action has arisen in the State of Bihar and
accordingly held that the Patna High
1 All]
Ex. Major Viveky Rai (Ta No. 42343) Vs. Union of India
207
Court had the jurisdiction to adjudicate the
matter, but such situation is not available in
the present case. In the present case, there
was no correspondence from Lucknow to
New Delhi. The case has been contested at
New Delhi and merely because the
petitioner resides at Lucknow and the order
has been communicated at the address of
Lucknow, it does not give any right to any
cause of action and, therefore, the Lucknow
Bench of the High Court of Allahabad had
no territorial jurisdiction to entertain the
petition.
10. We have considered rival
submissions and perused the record.
11. In the present case, there is no
dispute
that
all
the
disciplinary
proceedings took place at New Delhi. The
termination order was passed at New
Delhi. The petitioner is claiming partial
cause of action at Lucknow on the ground
that he resides at Lucknow and the
impugned order has been served at the
address of Lucknow. The question for
consideration is whether any cause of
action, partially or wholly arises at
Lucknow
and
this
Court
had
the
jurisdiction to entertain the petition. The
Full Bench of this Court in the case of
Rajendra Kumar Mishra Vs. Union of
India and others (Supra), on consideration
of several decisions rendered prior to and
after the amendment in Article 226 has
arrived to the conclusion that merely
because the petitioner was residing in
Ballia that would not give jurisdiction to
Allahabad High Court inasmuch as the
petitioner was on duty at Kanchanpura at
Calcutta in West Bengal and was given a
charge sheet and the impugned order was
passed by the authority of Delhi. The Full
Bench decision is squarely applicable to
the present case.
12. In Board of Trustee for the Port
of Calcutta Vs. Bombay Flour Mills Pvt.
Limited, reported in 1995 SC 577, the
Apex Court has held that whether the
cause of action has arisen within the
territory of the particular Court will have
to be determined in each case on its own
facts in the context of the subject matter
of the litigation, and relief claimed.
13. In the case of Oil and Natural
Gas Commission V. Utpal Kumar Basu,
reported in (1994) 4 SCC 711, the Apex
Court has held that 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 as to the correctness or
otherwise of the said facts. Thus, the
question of territorial jurisdiction must be
decided on the facts pleaded in the
petition, the truth or otherwise of the
averments made in the petition being
immaterial.
14. Lt. Col. Khajoor Singh Vs.
Union of India, AIR 1961 SC 532 is a
decision rendered by Seven Judges of the
Supreme Court. In paragraph 13 of the
aforesaid decision, the Supreme Court
observed as under:
" 13-Now it is clear that the
jurisdiction conferred on the High Court
by Article 226 does not depend upon the
residence or location of the person
applying to it for relief; it depends only on
the person or authority against whom a
writ is sought being within those
territories. It seems to us, therefore, that it
is not permissible to read in Article 226
the residence or location of the person
affected by the order passed in order to
determine the jurisdiction of the High
208
 INDIAN LAW REPORTS ALLAHABAD SERIES
Court. That jurisdiction depends on the
person or authority passing the order
being within those territories and the
residence or location of the person
affected can have no relevance on the
question of the High Court's jurisdiction.
Thus if a person residing or located in
Bombay, for example, is aggrieved by an
order passed by an authority located, say,
in Calcutta, the forum in which he has to
seek relief is not the Mumai High Court
though the order may affect him in
Bombay but the Calcutta High Court
where the authority passing the order is
located. It would, therefore, in our
opinion be wrong to introduce in Article
226 the concept of the place where the
order passed has effect in order to
determine the jurisdiction of the High
Court which can give relief under Article
226."
(Emphasis Provided)
15. In Board of Trustee for the Port
of Calcutta V. Bombay Flour Mills Pvt.
Limited, AIR 1995 SC 577, the Supreme
Court examined a case which related to a
claim for waiver of port charges and
release of the goods seized by the Board
of Trustees of the Port of Calcutta. The
consignment of imported goods by the
plaintiff had been unloaded at Calcutta
Dock, the respondents' representations to
the Port Trust Authority to waive the port
charges and release the goods were
refused by the Board of Trustees of the
Port at Calcutta. The suit was filed for
waiver of the port charges and release of
goods in the District Court, Bharatpur
(Rajasthan). Obviously no part of the
cause of action relating to the seizure of
the goods by the Port Trust of Calcutta
which were unloaded at Calcutta for nonpayment of port charges had arisen within
the territory of Rajasthan. The Court
found that the cause of action had arisen
at Calcutta. The Supreme Court affirmed
the principle that the place where the
whole or part of the cause of action arises,
gives jurisdiction to the Court within
whose territory such place is situate.
Whether the cause of action has arisen
within the territory of the particular Court
will have to be determined in each case on
its own facts in the context of the subject
matter of the litigation, and relief claimed.
16. In Aligarh Muslim University V.
Vinay Engineering Enterprises (P) Ltd.,
(1994) 4 SCC 710, the Apex Court
noticed that the contracts in question were
executed at Aligarh, the construction
work was to be carried out at Aligarh, and
even the contracts provided that in the
event of dispute the Aligarh Court alone
will have jurisdiction. The Arbitration
was from Aligarh and was to function
there. Merely because the respondent was
a Calcutta based firm, the High Court of
Calcutta had no jurisdiction in the matter.
17. Both the aforesaid judgments are
after the amendment in Article 226 of the
Constitution of India in the year 1976.
18. In the case of Nawal Kishore
Sharma Vs. Union of India (Supra), it has
been observed that in order to maintain a
writ petition, the petitioner has to
establish that a legal right claimed by him
has been infringed by the respondents
within the territorial limit of the Court's
jurisdiction. In the said case, the petitioner
was residing at Gaya. From Gaya, he
made several correspondences with the
registered office of the Corporation
situated at Bombay claiming various
reliefs,
including
100%
disability,
compensation and pecuniary damages.
Rejection
of
his
claim
was
also
1 All]
Satya Narayan Umar Vs. State of U.P. & Ors.
209
communicated by the Corporation at his
residential address at Gaya in the State of
Bihar. On these facts, the Apex Court has
held that part of cause of action has arisen
in the State of Bihar and accordingly writ
petition filed by the petitioner claiming
relief has been held maintainable in Patna
High Court.
19. In the present case, a criminal case
has been proceeded in Jammu and Kashmir,
while the petitioner was posted at Jammu
and Kashmir. Entire disciplinary proceeding
was carried on at Delhi wherein the
petitioner participated. The impugned order
has been passed at Delhi by the authority
situated at Delhi, therefore, the cause of
action has only arisen at Delhi. The
petitioner,
on
earlier
occasion
also,
approached the Delhi High Court against the
termination order. Merely because the
petitioner resides at Lucknow and the order
of termination has been communicated to
him at Lucknow, no cause of action has
arisen at Lucknow and thus, the writ petition
filed at Lucknow is not maintainable.
20. We are of the view that the
decision of the Apex Court in the case of
Nawal Kishore Sharma Vs. Union of
India (Supra) is distinguishable on the
facts.
21. We are of the view that the Full
Bench decision of this Court in the case of
Rajendra Kumar Mishra Vs. Union of
India and others (Supra), which is binding
upon us, squarely covers the issue.
22. In the result, the writ petition is
dismissed for want of jurisdiction as not
maintainable.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.01.2015
BEFORE
THE HON'BLE RAMESH SINHA, J.
Criminal Revision No. 2524 of 2014
Satya Narayan Umar
...Revisionist
Versus
State of U.P. & Ors.
...Opp. Parties.
Counsel for the Revisionist:
Sri Shailesh Kumar Tripathi
Counsel for the Opp. Parties:
A.G.A.
Cr.P.C.-Section
401/397-Criminal
Revision
against
order
rejection
of
discharge application-offence u/s 272
IPC adulteration in muster oil-Public
analyst found adulteration but not found
to be noxious-no offence u/s 272 IPC
made out-apart from that against same
allegation complaint still going on by
opposite party no. 2-parallel proceedings
against revisionist-quashed.
Held: Para-8
The contention of learned counsel for the
revisionist also find substance from the
material on record that the sample in
question was also taken under the
provisions
of
Prevention
of
Food
Adulteration Act, 1954 as is evident from
the Form 7 memo which was prepared by
the Food Inspector of raiding party and
the sample was also sent to the Public
Analyst and all the exercise was done by
the raiding party when the raid was done
under the provisions of Prevention of
Food Adulteration Act, 1954 and the
papers were also prepared according to
the said Act, copies of which has been
annexed
as
S.A.
1
supplementary
affidavit and the present FIR appears to
have been lodged by opposite party no.2
by
misinterpreting
the
Government
Order
dated
11.5.2010
though
the
complaint filed against the revisionist
under
the
Prevention
of
Food