Baksish Ahmad vs Union of India & Anr.

Held: The doctrine of forum non conveniens was misapplied by the Division Bench in the context of writ jurisdiction referable to Art.226 of the Constitution – Such article permits filing of a writ petition as per situs of office of the respondent(s) – Where the question of pursuing a constitutional remedy is involved and invocation of writ jurisdiction is traceable to clause (1) of Article 226, the doctrine of forum non conveniens may rarely apply – Further, a 3-Judge Bench decision of this Court in Shri Ranjeet Mal laid down the law that the Union of India would be fastened with the liability for enforcement of an order quashing an order of dismissal/removal from service of a railway servant, and not the officer who passed it – This decision, read with ss.4 and 5 of the BSF Act, makes the position clear that the Union of India and the Director General, BSF having their offices in New Delhi were necessary parties to the appellant’s writ petition and, thus, had been duly impleaded as the respondents before the Delhi High Court – Also, in terms of sub-rule (4) of Rule 22, BSF Rules, every order of dismissal/removal passed under sub-rule (3) thereof has to be reported to the Director General – There is a presumption that official acts have been regularly performed – Hence, on a cumulative assessment of these factors, the Delhi Court did have the competence to entertain and try the writ petition of the appellant – Moreover, in case any member of the CAPF, and that includes the BSF, is aggrieved by any administrative order of termination of his service issued by the competent authority, notwithstanding that the cause of action arose outside, i.e., the said order was issued from a place beyond the territorial limits of the Delhi High Court or that the events which triggered such an order occurred outside its limits, etc., still the Delhi High Court would have territorial jurisdiction in light of situs of office of the Union of India and the Director General, BSF/the officer in whom is vested supervision and command of the other CAPF, as per clause (1) of Art.226 – Impugned order set aside – Appellant’s writ petition revived – Central Civil Services (Conduct) Rules, 1964 – Uttar Pradesh Marriage Registration Rules, 2017 – Armed Forces Tribunal Act, 2007 – Armed Forces Tribunal Rules, 2008. [Paras 21, 27, 37, 38, 40]

Doctrine of forum non conveniens – Applicability: Held: Doctrine of forum non conveniens applies only where multiple fora are available to a litigant for seeking the same remedy; and, when such multiple fora are available, the forum which has been approached is entitled in law to examine whether any other forum is more convenient and/or better suited to consider and decide the claim that has been raised by the aggrieved litigant – For informed reasons, the forum seized of the claim may refuse to entertain the claim and leave the said litigant free to approach the other forum – The core idea of forum non conveniens is that although the court which has been approached by the suitor can legally entertain and try his case, the said court may refuse to do so and require the suitor to approach an appropriate court exercising similar jurisdiction and having powers to grant similar relief that is more convenient to the parties – Ordinarily, it would be the respondent who is likely to raise an objection – By invoking the doctrine of forum non conveniens, the respondent while conceding jurisdiction would urge the court to decline its exercise – In a courteous tone, the argument would be: though the court can entertain and try the lis but it may not. [Paras 29, 36]

Constitution of India – Art.226 – BSF Act – Border Security Force Rules, 1969 – Available fora exercising writ jurisdiction u/Art.226, which the appellant could have approached for relief in light of clause (2) thereof:

Held: First and foremost, the High Court at Calcutta since the show cause notice and the order terminating the appellant’s service were issued from Narayanpur, District Malda, West Bengal; secondly, the High Court for the Union Territory of Jammu & Kashmir and Ladakh, since it is within the said high court’s jurisdiction that the appellant’s petition u/r.28A, BSF Rules came to be rejected; and thirdly, the Allahabad High Court’s writ jurisdiction could have also been invoked by the appellant since he married the lady in Kushinagar, District Kushinagar, Uttar Pradesh, without prior permission of the competent authority and despite subsistence of his first marriage, which formed the basic ingredient of the charge of misconduct – All these high courts are empowered to grant adequate relief, if at all satisfied that a strong case on merits has been set up – Notwithstanding that the appellant could have approached any of the three high courts based on accrual of part cause of action, the Delhi High Court is indeed the fourth forum which had the competence to entertain and try the writ petition of the appellant – The Division Bench was also conscious and hence it did not dismiss the appellant’s writ petition on the ground of lack of territorial jurisdiction; it applied the doctrine of “forum non conveniens” and held that the Delhi High Court was not “forum conveniens” for either party having regard to the run of events leading to dismissal of the appellant’s petition u/r.28A of the BSF Rules – The refusal to exercise discretion was not legal and proper having regard to the claim presented before the Division Bench – The doctrine of forum non conveniens was misapplied by the Division Bench in the context of writ jurisdiction referable to Art.226 of the Constitution – Such article permits filing of a writ petition as per situs of office of the respondent(s) [clause (1)] and cause of action [clause (2)] which gives the right of action – Where the question of pursuing a constitutional remedy is involved and invocation of writ jurisdiction is traceable to clause (1) of Art.226, the doctrine of forum non conveniens may rarely apply – When a writ of or in the nature of Certiorari is prayed, Rule Nisi requires the records of the case to be placed before the Court for examining whether the order under challenge, which is part of the records, deserves to be quashed or not by a writ of or in the nature of Certiorari – Such records would invariably be available in the offices of the respondents; if not, it can readily be called for from the custodian thereof – A suitor having himself chosen the forum convenient to the respondents, application of the doctrine of forum non conveniens could be self-defeating and likely to deny access to justice rather than advancing it. [Paras 33, 34, 37]