Excelsior Correspondent
SRINAGAR, Aug 3: The Division Bench of the Jammu and Kashmir High Court today set aside the single bench order of the Court which had set aside the termination order of a senior Army officer on the charges of corruption issued by Trail court.
The Division Bench of High court today allowed the appeal filed by Defence Ministry and Chief of the Army Staff challenging the judgment of writ court holding that the this court was lacking the jurisdiction to hear the writ petition of erring army officer whereby his termination order was set aside.
Union of India through Ministry of Defence, the Chief of the Army Staff and some other Defence authorities were before the Division Bench of Chief Justice Badar Durrez Ahmad and Justice Ali Mohammad
Magrey by way of an appeal against the judgment and order (dated 24.05.2010) passed by the Single Judge of the Court allowing the writ petition filed by Puran Singh Rakwal (erring army official), on the ground that the writ court was lacking jurisdiction to hear the petition of Puran Singh Rakwal.
Counsel for the appellants before the division bench today reiterated his argument on the point of jurisdiction of the Court and submitted that the writ petition was not maintainable before this Court as no part of the cause of action arose to Rakwal within the jurisdiction of the High Court of Jammu and Kashmir.
The Division Bench after hearing both the parties at length said that the issue presently is on the determination of the jurisdictional point in the sense that if this Court comes to the conclusion that the writ petition is not maintainable in the High Court of Jammu and Kashmir, then the court need not to go into the merits of the case.
Court said that it is the admitted case of the petitioner-Rakwal that no part of the cause of action has occurred to him within the territorial jurisdiction of this Court, except that his place of residence falls within the territorial jurisdiction of this Court and that the Chief of the Army Staff has been arrayed as a party respondent in the writ petition.
Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law.
For the reasons given it was opinion of the division bench that the “Chief of Army Staff can only be sued either at Delhi where he is located or at a place where the cause of action, wholly or in part, arises”.
“Therefore, we are convinced that none of the legal rights of the petitioner was alleged to have been infringed within the territorial jurisdiction of this Court”, DB judgment reads.
In view of the above, DB has held that no part of cause of action accrued to the respondent-petitioner within the territorial jurisdiction of the High Court of Jammu and Kashmir, nor any of the legal rights of the respondent-petitioner was infringed by the respondents therefore, the writ petition filed by the petitioner was not maintainable before this Court. “Resultantly, we are of the opinion that the learned Single Judge was not correct in treating the writ petition as maintainable before this Court,” DB said
“We, accordingly, set aside the impugned judgment dated 24.05.2010 rendered by the learned Writ Court in SWP no.967/2009, and dismiss the writ petition as being not maintainable for lack of territorial jurisdiction by this Court”, DB directed.
The writ court while entertaining the petition of the army officer-Rakwal had quashed the Government of India, Ministry of Defence order no.C/06300/CC/30/AG/DV-2/536/09/D(AG) dated 29.04.2009 whereby the Central Government had ordered the termination of service of the respondent in accordance with the provisions of Section 19 of the Army Act, 1950 read with Rule 14 of the Army Rules, 1954. The said Army Officer was of the rank of Lieutenant Colonel in J&K Light Infantry Records and an FIR under no.RC 23(A)/96-JBER dated 07.09.1996 was registered against him and a civilian on the allegation of they had caused wrongful loss to the department to the tune of Rs.18,79,344.50 in the purchase of refined Soyabeen oil which had been adulterated.
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