Jayanta Kumar Biswas, J. - (1.) THE petitioner in this writ Petition dated December 1, 2008 is seeking the following principal reliefs: (a) A writ of or in the nature of Mandamus directing the respondents to forthwith serve on the petitioner the Order Cancelling the Order of Discharge of your petitioner from service and to allow your petitioner to join Army duty as a Sepoy/Driver at any unit of the Army except 9 MECH INF. (b) A writ of or in the nature of Mandamus, directing the respondents to withdraw the alleged order of punishment awarded in absentia against the petitioner for his alleged desertion during the period of illegal discharge. (e) A Writ of or in the nature of Mandamus, directing the respondents to pay to the petitioner all back wages and allowances for the period of his illegal discharge. (d) A writ in the nature of Prohibition, restraining the respondents from compelling the petitioner to perform any duty other than Driver or not befitting to his status as a Driver. (e) A Writ in the nature of Certiorari asking the respondents to certify and cause transmission of all records of this case particularly all papers relating to the purported discharge of the petitioner from service, purported cancellation of the discharge order, alleged charges of desertion against the petitioner and punishment awarded therefore to this Hon'ble Court, so that on perusing the same conscionable justices may be rendered.
(2.) HE was enrolled at Branch Recruiting Office, Kolkata on March 24, 2001. After completion of the military training, he was posted to 9 MECH INF with effect from August 2, 2002. A discharge order dated February 4, 2008, Annexure P3 at p.36, was issued stating that the Officer in -Charge Records of the MECH INF REGT, Ahmednagar in Maharashtra approved his discharge from service on extreme compassionate grounds. The discharge was approved with effect from February 29, 2008. Questioning the discharge order he moved this Court by filing W.P. No. 8320 (W) of 2008. By an order dated November 26, 2008 the writ Petition was disposed of. The order dated November 26, 2008 is set out below: Very strange indeed. The present writ application is directed against an order dated 4th February, 2008 which is described as a discharge order No. 12 of 2008 being annexure P -4 at page -29. Learned Counsel for the petitioner has, of course, in course of his submission referred to certain subsequent developments arid how the authority concerned proceeded to declare the writ petitioner as 'deserter'. Having regard to the nature of the relief sought for as reflected from prayer (a) and (b) to the writ application, I am afraid this Court cannot really get into the said controversy. This is particularly relevant in the context of a copy of an order dated 20th March, 2008 produced by learned counsel Mr. Chatterjee on behalf of the respondent. It is clearly mentioned that the order dated 4th February, 2008, i.e. discharge order No. 12 of 2008 has been cancelled. Mr. Chatterjee, of course, has raised dispute regarding the maintainability of the present application on the ground of territorial jurisdiction. To this, learned Counsel for the petitioner submits that the petitioner was appointed by the appropriate Respondent authority in Calcutta and thereafter he served in many places in different States. According to learned counsel for the petitioner, since his appointment letter was issued from the office of the respondent authority in Calcutta, there is no reason as to why the present writ application cannot be entertained by this Court. Article 226(2) of the Constitution of India is 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. Cause of action, as is well settled, is a bundle of facts which are required to be taken into consideration. But having regard to the stand taken by the respondent authority that the impugned order dated 4th February, 2008 has already been cancelled, I do not think there is any scope for proceeding with the instant writ application. It may, however, be mentioned that this Court has not gone into the merits of ' the allegation made in the writ application precisely for the reasons as mentioned earlier. Thus, the writ petitioner certainly will be at liberty to knock the door of the writ Court with fresh application. In fact, after hearing the learned Counsel for both the parties, it appears that the complexion of the controversy has undergone radical change and the writ Court cannot operate in air. This disposes of W.P. No. 8320 (W) of 2008. There will, however, be no order as to costs. Urgent xerox certified copy of this order, if applied for, be given to the parties expeditiously.
(3.) IN W.P. No. 8320 (W) of 2008 the respondents therein filed an opposition. It was stated in the opposition that the discharge order dated February 4, 2008 had been cancelled. It seems that in view of the observation - "Thus the writ petitioner certainly will be at liberty to knock the door of the writ Court with fresh application" - the petitioner has taken out this writ Petition seeking the reliefs quoted hereinbefore. The question of territorial jurisdiction of this Court to entertain this writ Petition is quite relevant. The question was raised in the previous writ Petition and, it seems to me, by necessary implication it was answered in the affirmative. The respondents accepted the judgment. Hence I do not think today I can decide the question in this writ Petition for filing which liberty was given by the order made in the previous case. Under the circumstances, I propose to decide this writ Petition on merits.;