Mahilamaniamma R. v. Union of India and Others

## **PETITIONER(S)** **MAHILAMANIAMMA R., F NO. 940880758 SI/GD, F/213 (M) BN, NEW DELHI, RESIDING AT : SREEVILASAM, KIZHAKKANELA P.O, PARIPPALLY, KOLLAM 691 574.KERALA STATE.** **BY ADV.SRI.T.SANJAY** ## **RESPONDENT(S):** **1. THE DIRECTOR GENERAL, CENTRAL RESERVE POLICE FORCE, BLOCK NO. 1, C.G.O COMPLEX, LODHI ROAD, NEW DELHI- 110 003.** **2. THE INSPECTOR GENERAL 97 RAF BN, CRPF, EAST BLOCK-2, LEVEL - VI, R.K PURAM, SECTOR-1, NEW DELHI- 110 066.** **3. THE DEPUTY INSPECTOR GENERAL, CENTRAL RESERVE POLICE FORCE, NAGPUR RANGE, MAHARASHTRA-440 019.** **4. THE COMMANDANT, 213 (M) BATTALION, GROUND CENTRE, CRPF CAMPUS, DIGDOH HILLS, NAGPUR-440 019.** **5. THE COMPANY COMMANDER, F-213(M) BN, MANDOLI JAIL COMPLEX, NEW DELHI 110 093.** **6. UNION OF INDIA,** **REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI- 110 003.** **7. STATE OF KERALA,** **REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, GROUND FLOOR, MAIN BLOCK,SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **R1-R6 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA R7 BY GOVERNMENT PLEADER SRI. RON BASTIAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 18585 of 2018 (W)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**EXHIBIT P1 THE COPY PETITIONER'S APPLICATION FOR**| |---| |**VOLUNTARY RETIREMENT AS PER RULE 48 A OF THE**| |**CCS (PENSION) RULES SUBMITTED IN JANUARY 2017.**| |**EXHIBIT P2 TRUE COPY OF PETITIONER'S LEAVE APPLICATION**| |**DATED 02-09-2017**| |**EXHIBIT P3 TRUE COPY OF THE LETTER DATED 30-09-2017 OF THE**| |**COMPANY COMMANDER F/213 (M) BATTALION, CRPF,**| |**NEW DELHI**| |**EXHIBIT P3(A) TRUE COPY OF THE ENGLISH TRANSLATION OF THE**| |**LETTER DATED 30-09-2017**| |**EXHIBIT P4 TRUE COPY OF THE LETTER DATED 23-10-2017 OF THE**| |**COMPANY COMMANDER F/213 (M) BATTALION, CRPF,**| |**NEW DELHI REJECTING EXT. P2 LEAVE APPLICATION**| |**EXHIBIT P4(A) THE TRUE COPY OF ENGLISH TRANSLATION OF THE**| |**LETTER DATED 23-10-2017.**| |**EXHIBIT P5 TRUE COPY OF ENGLISH TRANSLATION OF THE LETTER**| |**DATED 14-10-2017**| |**EXHIBIT P6 TRUE COPY OF THE ORDER OF COMMANDANT, CRPF,**| |**NAGPUR DATED 08-12-2017**| |**EXHIBIT P7 TRUE COPY OF THE ORDER DATED NIL (APRIL 2018)**| |**ISSUED BY THE COMMANDANT,CRPF,NAGPUR**| |**DECLARING THE PETITIONER AS A DESERTER.**| |**EXHIBIT P7(A) TRUE COPY OF ENGLISH TRANSLATION OF ORDER**| |**DATED NIL (APRIL 2018) ISSUED BY THE COMMANDANT,**| |**CRPF, NAGPUR DECLARING THE PETITIONER AS A**| |**DESERTER.**| |**RESPONDENT(S)' EXHIBITS**<br>**-**<br>**NIL**| **//TRUE COPY//** **P.A. TO JUDGE** ww ## **P.V.ASHA J.** ## **-------------------------------------** **W.P.(C).No.18585 of 2018 -------------------------------------** Dated this the 27[th] day of July, 2018 ## **JUDGMENT** The petitioner, who was working as Sub Inspector of Police (GD/M) in CRPF, has filed this writ petition for a declaration that she is entitled for voluntary retirement with effect from 31.08.2017. Simultaneously she is challenging Ext.P7 order by which she is declared as a deserter by the Commandant-231, Mahila Battalion, who is the 4[th] respondent in this writ petition. 2. The petitioner submitted Ext.P1 application before the 4th respondent informing that she was compelled to think for voluntary retirement and that she decided to proceed on voluntary retirement on W.P.(C).No.18585 of 2018 2 account of family/domestic problems with effect from 01.08.2017 and requesting for verification of her qualifying service so as to enable her to proceed with voluntary retirement with effect from 01.08.2017. Along with the application she had also submitted an undertaking to the effect that she intended to go on voluntary retirement on her own and will not apply for withdrawal of her notice/request for voluntary retirement at any stage. While this application was pending, petitioner submitted Ext.P2 application before the 4th respondent, requesting for extension of 90 days CCL pointing out that she had been on Child Care Leave from 14.08.2017 onwards and she was unable to report for duty on account of the health issues of her child. The Company Commander at New Delhi issued Ext.P3(a) letter dated 30.09.2017 directing the petitioner to report for duty immediately, failing which disciplinary proceedings would be initiated against her. It was followed by Ext.P4(a) by which the W.P.(C).No.18585 of 2018 3 petitioner was again directed to report for duty immediately, failing which disciplinary proceedings would be initiated. The petitioner thereupon submitted Ext.P5 representation to the 4th respondent stating that she had submitted application for extension of CCL for three more months as she did not have any other option except to rejoin after her child recovers. Ext.P6 order was passed thereafter on 08.12.2017 stating that she had already availed earned leave for the period from 16.01.2017 to 16.03.2017 and Child Care Leave from 10.05.2017 to 12.09.2017. Stating that there were only 59 coy personnel out of the strength of 112 personnel, she was required to be present for duties in accordance with standing order No.03/80 read with para No.1.11 of Operational Hand Book. It was stated that her case was not considered due to less strength /man power in coy. The petitioner was thereupon informed that she was continuing on unauthorised absence with effect from 13.09.2017 and W.P.(C).No.18585 of 2018 4 her request for extension of Child Care Leave was rejected directing her to report for duty. It is also stated that she was transferred to 97 BN RAF by the DIG (Estt), Dte Genl, CRPF as per order dated 13.10.2017 and she was relieved to that battalion without any joining time. It is stated that as per the directions of RAF Sec Hqr, all transfree Mahilas are required to be relieved forthwith without availing joining time and in case the petitioner continued to be on unauthorised absence, disciplinary action would be taken. She was informed that her application dated 03.11.2017 was rejected and the order dated 03.12.2017 was canceled. This writ petition was filed thereafter when Ext.P7/P7(A) order was passed in April, 2018 by which she was declared as deserter with effect from 13.09.2017. The petitioner submitted that arrest warrant was already issued and that the petitioner was in Kerala and at any time Kerala Police will arrest her. W.P.(C).No.18585 of 2018 5 3. The learned ASGI has filed a statement pointing out that petitioner was working under the Commandant-213 Mahila Battalion, Central Reserve Police Force, Nagpur when she submitted Ext.P1 application. She went on CCL with effect from 14.08.2017 till 12.09.2017 and continued on unauthorised absence. It is pointed out that the petitioner is seeking relief from the respondents who are outside the territorial jurisdiction of this Court. 4. The petitioner had submitted Ext.P1 application before the 4[th] respondent. She had submitted application for leave before him and thereafter all the orders against the petitioner directing her to report for duty and thereafter declaring her as a deserter are issued by respondents 4 and 5. It is also pointed out that petitioner was in the meanwhile transferred to 97 Battalion RAF. 5. At any rate, the order which is under 6 W.P.(C).No.18585 of 2018 challenge that is, Ext.P7(A) issued in April, 2018 is issued by the 4[th] respondent. Therefore petitioner has to approach the High Court under the jurisdiction of which the respondents/the authorities who issued the impugned orders are having their offices. It is also pointed out that in the light of the judgments of this Court as well as the Supreme Court in _**Madhavan Nair G v. Union of India**_ **:** _**2016 KHC 234 (SB); The Registrar Indian Maritime University v. Dr.K.G.Viswanathan and Others**_ **:** _**2014 (4) KLT 798 (FB)**_ **;** _**Anand Anop v. Union of India and Others**_ **: 2014 KHC 377 (DB);** _**Capt.B.S.Prakash v. Food Corporation of India and Others**_ **:** _**2007 (4) KHC 17 (DB)**_ **;** _**National Textile Corpn Ltd and Others v. Haribox Swalram and Others**_ **: 2004 KHC 926 (SC);** _**Nakul Deo Singh v. Deputy Commandant**_ **: 1999 KHC 647 (FB);** _**Rakesh Dhar Tripathi v. Union of India and Others**_ **: 1988 KHC 1510 (DB) (Allahabad High Court)** Full Bench decision in _**The Registrar Indian Maritime University v.**_ W.P.(C).No.18585 of 2018 7 _**Dr.K.G.Viswanathan and Others**_ **: 2014 (4) KLT 798** ,and the judgment of this Court in W.P.(C) No.37793/2017 affirmed by the Division Bench judgment in W.A.No.471/2018, judgments in W.P.(C) Nos.10878/2018, 3571/2018 and 9652/2018 etc., this writ petition cannot be entertained by this Court. 6. On the other hand the learned counsel for the petitioner submits that none of these cases are considering a case where a person who is seeking reliefs after her deemed retirement by virtue of Rule 48A of CCS (Pension) Rules and also when an arrest warrant is issued by the Kerala Police on account of the impugned action of the respondents who are having offices outside the jurisdiction of this court. The learned counsel for the petitioner points out that the petitioner has become a pensioner and therefore she cannot be asked to go to other High Courts. The judgments in _**Officer-in-Charge, Army Medical Corps Records and Others v. Rajesh U.**_ **: 2009 (4) KHC 395** W.P.(C).No.18585 of 2018 8 wherein the Division Bench of this Court held that the prayer for mandamus would lie in this Court since Union of India is a party which functions through out the territory of India, the judgments of the apex court in _**Prakash Srivastava v. Union of India and Another**_ **: (2006) 6 SCC 207;** _**Kusum Ingots & Alloys Ltd v. Union of India**_ **: (2004) 6 SCC 254,** etc. were also relied on in support of the contention that the writ petition is liable to be entertained by this Court. The learned counsel pointed out that even in _**Kusum Ingots's**_ case (supra), the Apex Court had observed that even if a small fraction of cause of action occurred within the jurisdiction of the Court, the Court will have jurisdiction in the matter. It is pointed out that the aforesaid view was reiterated in _**Nawal Kishore Sharma v. Union of India**_ **: (2014) 9 SCC 329** . Therefore it was contended that the fundamental rights of petitioner itself were under threat on account of the pending arrest warrant and therefore W.P.(C).No.18585 of 2018 9 it is a fit case where this Court has to entertain the writ petition. The learned counsel also relied on the judgment in _**Francis Coralie Mullin v. Administrator, Union Territory of Delhi : 1981 KHC 516**_ where the Apex Court had held that fundamental right to life under Article 21 of the Constitution of India, which is the most precious human right which enhances the dignity of the individual and worth of the human person and the right to life includes right to live with human dignity. It was pointed out that the petitioner has rendered 22 years of service and she had taken only Child Care Leave on account of unavoidable circumstances and she was not liable to be subjected to such harassment that too at a stage when she was liable to be granted voluntary retirement. According to the learned counsel, she is deemed to have retired from service in August 2017 and all the orders against her have been issued subsequent to August 2017, the intended date of W.P.(C).No.18585 of 2018 10 retirement. It is pointed out that she submitted the application in order to see that she is able to live a life of dignity after rendering 22 years of active service dedicated to the nation. The learned counsel further relies on the judgment of this Court in _**State of Kerala and Others v. Sindhu C.P**_ **:** _**2018 (1) KHC 339**_ where this Court had while dealing with claim for compassionate appointment observed that the life of soldier which is dedicated to the nation is always under threat. It was also argued that in the light of the judgment of this Court in _**Mini K.T. v. Senior Divisional Manager, LIC, Kozhikode and Others**_ **: 2018 (1) KHC 307** that dignity was essential to human life as water, food and Oxygen. It was argued that the petitioner who is a lady, who has acted in obedience and in devotion, all the 22 years, was not liable to be proceeded against in this manner. It was also pointed out that in the light of the judgments of the Apex Court in _**Union of India and Others v. Sayed**_ W.P.(C).No.18585 of 2018 11 _**Muzaffar Mir.**_ **:** _**1995 Supp (1) SCC 76; State of Haryana and Others v. S.K. Singhal**_ **:** _**1999 (4) SCC 293; Venugopal v. State of Kerala and Others**_ **: 2010 (2) KHC 89 (DB);** _**Radhakrishnan K.S.(Dr.) v. Director of Collegiate Education**_ **:** _**2010 (4) KHC 562; Sumangala K. v. State of Kerala and Others**_ **:** _**2010 (3) KHC 475; Haridasan v. Deputy Director of Education**_ **:** _**2014 (3) KLT 263; Philip V.M. v. Kerala State Electricity Board, TVM and Others**_ **:** _**2017 (2) KHC 55,**_ the petitioner is deemed to have retired from service with effect from 01.08.2017. 7. In answer to the contention of the learned ASGI that the petitioner's application for Child Care Leave was for a period subsequent to 01.08.2017 and that petitioner had also submitted further applications for extension of leave even thereafter when she did not have any claim as to the deemed retirement, Sri.Sanjay, the learned counsel for the petitioner points out that the fact that she W.P.(C).No.18585 of 2018 12 submitted applications even after the deemed date, cannot stand in the way of the implementation of the statutory rule as contained in Rule 48A. The learned counsel also relied on the judgments of the Apex Court in _**Dinesh Chandra Sangma v. State of Assam**_ **: 1977 (4) SCC 441;** _**Sumangala's case (supra)**_ in support of his contention that the petitioner is on deemed retirement. It was also pointed out that in the light of _**D.V. Kapoor v. Union of India**_ **: AIR 1990 SC 1923; Karayi Gopalan** _**v. Union of India**_ in W.P.(C) No.20997/2010 of this Court, no action can be taken against the petitioner except in accordance with law. Relying on _**Chand v. Dile Ram**_ **: (2001) 3 SCC 290;** _**Chandra Sangma v. State of Gujarat and Others**_ **: 1978 (2) SCC 202** etc., it was argued that even when the petitioner had submitted application for leave, her application was liable to have been presumed acceptance and retirement should have been effective with effect from the date which was shown in Ext.P1 13 W.P.(C).No.18585 of 2018 application. The learned counsel relied on _**Sumangala's case (supra)**_ , where this Court held that when a person who had submitted an application for voluntary retirement that will come into effect on expiry of the prescribed time limit, even though in that case the said decision was against the petitioner.The learned counsel for the petitioner also submits that on expiry of the prescribed time limit petitioner should have been relieved from service and in that event all the subsequent action are illegal. 8. The learned counsel for the petitioner further argued that neither of the judgments of the Full Bench of this Court has taken notice to such a condition. It was also pointed out that in the judgment of the Division Bench in _**Pillai K.D. v. Chairman cum Managing Director, Oil & Natural Gas Corporation Ltd.**_ **: 2008 (3) KHC 810,** this Court had held that a pensioner cannot be asked to reside in W.P.(C).No.18585 of 2018 14 the place from where he retired from service and also cannot be asked at the old age to go and seek reliefs from the State where he was working at the time of retirement. It is pointed out that the said judgment is not referred to in any of the Full Bench judgments. 9. It is pointed out by the learned ASGI, even though petitioner has submitted Ext.P1 application for voluntary retirement with effect from 01.08.2017 as early as in January 2017, the petitioner herself had submitted Ext.P2 application for leave from 14.08.2017 and thereafter she requested for extension of leave on 12.09.2017 and that all the impugned action are subsequent to the date from which she claimed retirement. But the learned ASGI also points out that Ext.P1 application was only an application for verification of her qualifying service and it was not an application for voluntary retirement. 10. I am of the view that I need go into the W.P.(C).No.18585 of 2018 15 contentions with reference to Rule 48A of CCS (Pension) Rules, only if I find that this writ petition can be entertained before this Court. Article 226 (2) reads as follows: - _“(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court 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.”_ 11. Therefore in order to entertain the writ petition, as settled by two recent Full Bench judgments of this Court in _**The Registrar Indian Maritime University's case (Supra); Dental Council of India (DCI) v. Dr. V.Viswanath and Others** :_ **2018 (3) KHC 143** integral part of cause of action should have arisen within the jurisdiction of this court. 12. In this case as pointed out by the learned W.P.(C).No.18585 of 2018 16 ASGI, petitioner submitted Ext.P1 application before the 4[th] respondent. The further petitions for extension of leave also submitted before the 4[th] respondent. The action impugned in this writ petition is of either respondents 4 or 5, whose offices are situated in Nagpur and New Delhi. According to the petitioner she is residing in Kerala on her deemed voluntary retirement. That is a question to be decided. The cause of action which the learned counsel asserts to have occurred within the jurisdiction of this Court, is that the Police has come to her house at Kollam several times. 13. It is also relevant to note the contention of the learned ASGI that even though the writ petition was filed on 5[th] June, 2018 so far the Police could not find out the petitioner and that therefore the petitioner is not residing even in Kerala. It was also pointed out that she was residing at Bangalore. Petitioner has submitted Ext.P5 application from 17 W.P.(C).No.18585 of 2018 Bangalore. 14. In this case the petitioner herself is seeking a declaration as to the deemed voluntary retirement, based on an application she submitted before the 5[th] respondent while she was working under the 5[th] respondent; she is challenging the action of respondents 4 and 5 and even the arrest warrant by the police force is at the instance of respondents 4 and 5 consequent to their action in declaring the petitioner as deserter; respondents 4 and 5 are having offices at Nagpur and New Delhi respectively, beyond the territorial jurisdiction of this Court. Therefore it cannot be said that integral part or any part of cause of action arose within the jurisdiction of this court. As held in my judgment in W.P.(C) No.37793 of 2017 and series of other judgments, the remedy available to the petitioner is before the High Court under the jurisdiction of which respondents 4 and 5 are seated. Therefore I am not going to the 18 W.P.(C).No.18585 of 2018 merits of the case regarding the petitioner's claim on retirement. Accordingly, this writ petition is dismissed, with liberty to the petitioner to move the appropriate High Court. Sd/- **P.V.ASHA, JUDGE.** Rkc/ww