Madanan.K v Union of India and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 23RD DAY OF FEBRUARY 2018 / 4TH PHALGUNA, 1939** **WP(C).No. 19270 of 2014** **-----------------------** ## **PETITIONER** **-----------** **MADANAN.K, S/O.KITTAN A,AGED 48 YEARS,** **LEKSHMI NIVAS, PUTHIYAVILA, PATTOLI MARKET P.O., ALAPPUZHA DISTRICT, KERALA STATE, PIN - 690 531.** **BY ADV.SRI.B.RENJITHKUMAR** ## **RESPONDENT(S):** - **--------------** **1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, NEW DELHI - 110 011.** **2. THE DIRECTOR GENERAL OF ASSAM RIFLES, SHILLONG - 11, C/O.99 APO.** **3. THE RECORD OFFICER, MAHANIDESHALAYA, ASSAM RIFLES.-11** ## **4. DIRECTOR GENERAL,** **ASSAM RIFLES, UPAO BRANCH (NE/111), SHILLONG - 11.** **BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.V.** ## **WP(C).No. 19270 of 2014 (G) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **P1 - TRUE COPY OF THE IDENTITY CARD ISSUED TO THE PETITIONER AS EX-SERVICEMAN DT. 06.2.1997.** - **P2 - THE TRUE COPY OF THE CERTIFICATE ISSUED BY PSYCHIATRIST DT. 09.12.1998.** - **P3 - THE TRUE COPY OF CERTIFICATE DT. 09.4.1999 OF HIS TREATMENT AS INPATIENT SINCE 01.2.1999 TILL 11.3.1999.** - **P4 - THE TRUE COPY OF A CERTIFICATE ISSUED BY THE GRAMA PANCHAYATH PRESIDENT DT. 12.4.1999.** - **P5 - TRUE COPY OF CERTIFICATE OF DISABILITY BY THE MEDICAL BOARD OF T.D. MEDICAL COLLEGE, ALAPPUZHA DT. 04.3.14 SHOWING THAT HIS DISABILITY AT PRESENT IS 50%.** - **P6TRUE COPY OF DISCHARGE CERTIFICATE TO THE APPLICANT ON 14.2.1997.** - **P7 - TRUE COPY OF ORDER NO. 38-136/DISCHARGE-97/1 AR/NE-111/375 DT. 04.3.14 ISSUED BY THE 3RD RESPONDENT.** - **P8- TRUE COPY OF THE UNREPORTED AFORESAID JUDGMENT DATED 4.12.2008.** ## **RESPONDENTS EXHIBITS:** ## **---------------------** - **R1(A) TRUE COPY OF JUDGMENT DATED 7.6.2007 IN WRIT PETITION NO 2476 OF 2002.** - **R1(B) TRUE COPY OF SPEAKING ORDER DATED 13.8.2007 ISSUED BY DIRECTOR GENERAL ASSAM RIFLES.** - **R1(C) TRUE COPY OF JUDGMENT DATED 2.5.2006 OF THE HON'BLE DELHI HIGH COURT IN WPC NO 20533 OF 2005.** - **R1(D) TRUE COPY OF JUDGMENT IN WPC 588 OF 2009 OF THE HIGH COURT OF UTTARAKHAND.** - **R1(E) TRUE COPY OF THE JUDGMENT IN WPC 562 OF 2009 OF THE HIGH COURT OF UTTARAKHAND.** - **R1(F) TRUE COPY OF APPLICATION DATED 27.12.1996 SUBMITTED BY THE PETITIONER.** - **R1(G) TRUE COPY OF MEDICAL CERTIFICATE DATED 31.7.1996 ISSUED FROM REGIONAL CANCER CENTRE, TRIVANDRUM.** - **R1(H) TRUE COPY OF UNDERTAKING CERTIFICATE DATED 6.1.1997 OF THE PETITIONER.** - **R1(I) TRUE COPY OF DOCUMENTS INCLUDING THE APPLICATION DATED 7.1.1997 ISSUED TO THE PETITIONER.** - **R1(J)SERIES: TRUE COPY LETTER NO.31.8.2009 FOR GRANT OF SERVICE PENSION.** - **R1(K)SERIES: TRUE COPY OF LETTER DATED 24.4.1998 ISSUED TO THE PETITIONER.** - **K.V. P.S.TO JUDGE** - **7.03.2018** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.19270 of 2014-G ------------------------------------------- _Dated this the 23[rd] day of February, 2018_ ## _**JUDGMENT**_ This writ petition is filed by a person, who was discharged from Assam Rifles on 15.2.1997, seeking a direction to the respondents to grant him pension. The case of the petitioner is that the petitioner was working in the Assam Rifles during the period from 6.5.1986 to 15.2.1997 and he was discharged from service due to mental illness during the course of employment. It is his case that he underwent prolonged treatment thereafter. In support of which he has produced Ext.P2 certificate from a Psychiatrist issued on 9.12.1998, Ext.P3 certificate dated 9.4.1999 to the effect that he was undergoing inpatient treatment from 1.2.1999 to 11.3.1999 and Ext.P4 certificate dated 12.4.1999 issued by the President of a Grama Panchayat. It is his further case that he is having 55% disability on account of mental illness. However, the petitioner points out that while he was discharged from service as per Ext.P6 discharge certificate on 14.2.1997, his character and conduct were certified as exemplary though the 2 W.P(C) No.19270 of 2014-G reason was stated as “discharge at his own request”. According to the petitioner, the said entry is incorrect. He therefore stated that on 4.3.2004 he submitted a representation when his mental condition prospered. Producing Ext.P7 letter dated 4.3.2014, by which the 3[rd] respondent - the Director General of Assam Rifles, Shillong rejected his request for grant of pension referring to his application dt.11.2.2014, the petitioner stated that the said rejection is illegal and hence he is claiming reinstatement with backwages and to disburse pensionary benefits including monthly pension along with arrears. He also challenges Ext.P7 order. As per Ext.P7 order, the 3[rd] respondent informed the petitioner that he was enrolled on 6.5.1986 as Rect/General Duty and after training he was posted in 16 Assam Rifles on 7.4.1987 and re-mustered as Lnk/Plumber on 1.4.1993. It is stated that based on his application submitted on 27.12.1996 he stated that he was the only male member to look after his aged parents and landed property. Based on his application he was discharged on 15.2.1997 on compassionate grounds. The 3[rd] respondent further informed that a person, who has resigned from service is not entitled to any pensionary benefits as Rule 26 of CCS (Pension) Rules, 1972 entails forfeiture of past service, on resignation. The petitioner challenges Ext.P7 order and claims that he was 3 W.P(C) No.19270 of 2014-G discharged on the basis of his request and therefore the denial of pension is arbitrary. 2. The respondents filed a counter affidavit raising a preliminary issue on the question of jurisdiction pointing out that the orders issued by the respondents, which are under challenge in this writ petition, which are issued by the Assam Rifles, do not come within the jurisdiction of this Court. It is stated that the cause of action in this case is discharge of the petitioner from service by Assam Rifles which is located in the north eastern parts of the country with its Headquarters at Shillong in Meghalaya. The petitioner was serving 1 Assam Rifles, at the time when he applied for discharge from service and the said unit is deployed in North-east. The Director General, Assam Rifles - the authority competent to appoint or discharge the petitioner, is located at Shillong, outside the territorial jurisdiction of this Court. Moreover, the petitioner himself had filed W.P(c).No.2476/2002 before the Gauhati High Court claiming pension which was disposed of by Ext.R1(a) judgment. The Gauhati High Court which declined to interfere with the orders of the respondents however directed that the respondents may consider the case of the petitioner upon compassion, whether he should be provided with pensionary benefits for the 4 W.P(C) No.19270 of 2014-G service rendered by him. The respondents have produced Ext.R1(b) order passed thereafter on 13.08.2007 by which the competent authority had reexamined his case and informed him that it was not possible to extend the pensionary benefits to him. It was therefore alleged that the petitioner had suppressed this order when he filed this writ petition. The respondents also produced various judgments - Ext.R1(c) order of the High Court of Delhi dt.21.7.2005 in W.P(c).No.20533/2005 in Dharamvir v. Union of India, Ext.R1(d) judgment of the High Court of Uttarakhand in W.P(c).No.588/2006, Ext.R1(e) judgment in W.P(c).No.562/2009, in support of their contention that this Court does not have territorial jurisdiction to entertain the writ petition. In view of this objection, this writ petition was heard on the question of maintainability. 3. The contention of the learned counsel for the petitioner is that the petitioner is claiming pension and pensionary benefits. Since pension is a property which is entitled to be paid at the place of his residence which is in Kerala, this Court is perfectly within the jurisdiction to entertain the writ petition. It is also pointed out that the Assam Rifles is having the offices within the jurisdiction of this Court and therefore there is no impediment for this Court to entertain this writ petition. Relying on the judgment of the 5 W.P(C) No.19270 of 2014-G Apex Court in **Deokinandan Prasad v. State of Bihar** [1971 SC 1409], **Goa Sampling Employees' Assocn. v. G.S.Co. Of India Pvt. Ltd.** [AIR 1985 SC 356], the judgment in W.P(C).No.32624/2008 etc., the learned counsel for the petitioner asserted that this Court can entertain the writ petition, since the petitioner is claiming pension which is his right to property. The judgment of the Guahati High Court reported as **Kirpalsingh** **Pratapsingh Ori. v. Balvinder Kaur Hardipsingh Lobana and Anr.** [2004 KHC 2853] was also relied on by the learned counsel for the petitioner. 4. I have considered the contentions raised by the learned counsel for the petitioner and the learned ASGI. As pointed out by the learned ASGI the issue is covered by the Full Bench decision of this Court in **Indian Maritime University v. Viswanathan** [2014 (4) KLT 798 (F.B)], wherein this Court has elaborately considered the issue regarding territorial jurisdiction and held that a writ petition can be entertained only if at least a part of cause of action arose within the jurisdiction of this Court. In the judgment in **Rajesh K.K. v. Union of India & Ors.** [2012(2) KHC 598], this Court considered the case of a person who was discharged from service of the Assam Rifles 6 W.P(C) No.19270 of 2014-G on the ground of Schizophrenia, when he challenged the rejection of his request for disability pension. This Court dismissed the writ petition for want of territorial jurisdiction. Similar is the present case also. The petitioner has never worked within the jurisdiction of this Court and none of the orders which are issued to him or which he relies on are issued by any of the authorities within the jurisdiction of this Court. Merely because the Assam Rifles is having an office in Kerala, it cannot be said that the cause of action arose within this Court. I have already considered a similar issue with respect to territorial jurisdiction in W.P(c).No.37793/2017 and found that a writ petition under Article 226 is not maintainable merely because there is an office maintained by the respondents within the jurisdiction of this Court when not a single part of the cause of action arose within the jurisdiction of this Court. The contention that pension is a property and the petitioner is claiming that property and hence the writ petition can be entertained is also not tenable. First of all the question of pension and eligibility of pension is yet to be decided in order to claim that property. Even otherwise the settled position that pension is a property will not enable this Court to entertain the jurisdiction except as provided under Article 226 (1) and (2). W.P(C) No.19270 of 2014-G 7 In the above circumstances, I am of the considered view that the writ petition is not maintainable. The Registry may return the writ petition to the petitioner. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_