(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) Invoking Articles 226 & 227 of the Constitution, the petitioner has sought to challenge the order dated 20/1/2012 of learned Central Administrative Tribunal, Ahmedabad (CAT for short) in the pending Original Application no. 287/2010. By virtue of the same order, the Original Application has been ordered to be listed on 3/2/2012 and the preliminary objection of territorial jurisdiction raised by the petitioner is overruled.
The relevant facts in brief are that respondent no. 1 was originally selected and appointed at the petitioner's establishment in Gandhinagar and thereafter transferred to Hyderabad by order dated 27/4/2010. Even thereafter the respondent had continued to occupy the quarter alloted to him at Gandhinagar and upon the termination of his service, service of that order dated 23/7/2010 was effected at Gandhinagar. In order to challenge the termination, the respondent approached the Tribunal in the form of OA 287/2010, which is pending and the objection of the appellant regarding territorial jurisdiction of the CAT at Ahmedabad has been overruled on plain reading of the provision of Rule 6 of the CAT (Procedure Rules, 1987).
According to that Rule 6, an application could ordinarily be filed by an applicant with the Registrar of the Bench within whose jurisdiction the applicant is posted for the time being, or the cause of action, wholly or in part has arisen. According to sub-rule (2) of Rule 6, notwithstanding anything contained in sub- rule (1), persons who have ceased to be in service by reason of retirement, dismissal or termination of his service, may, at his option, file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application. The respondent employee had categorically stated in his Original Application that he was residing at Gandhinagar at the time of filing of the application.
Therefore, the small and simple issue required to be decided as regards territorial jurisdiction of the Bench of CAT was whether the respondent could be treated as ordinarily residing at Gandhinagar.
Learned Senior Counsel Mr. K. M. Patel, appearing for the petitioner, vehemently argued that the so called ordinary residence of the respondent at Gandhinagar in the accommodation provided by the petitioner was ex-facie unlawful insofar as the respondent was required to and in fact asked to vacate that accommodation way back in the year 2010 itself. Thereafter, even as that premises occupied by the petitioner was remaining closed, the order terminating service of the respondent had to be served at Gandhinagar by pasting the order on the premises. Relying upon recent decision of the Apex Court in Ruchi Majoo Vs. Sanjeev Majoo [2011 (6) Supreme Court Cases 479] and decision of the House of Lord in Shah Vs. Barnet London Borough Council and others reported in (1983) 1 All England Law Reports 226, Mr. Patel, vehemently argued that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether for short or long duration, with the exception that if a man's presence in a particular place or country is unlawful, i.e. in breach of the Immigration Laws, can not rely on his unlawful residence as constituting ordinary residence. The facts of the case and the context in the Apex Court Judgement in case of Ruchi Mojoo (supra) could be easily distinguished insofar as in that case for custody of a child under the Guardians and Wards Act, 1980, the Court was faced with the situation in which the place of "ordinary residence" of the mother and child at New Delhi in India, instead of their returning to America, was the main issue.
Learned Counsel Mr. Mohite appearing for the respondent concerned relied upon the communication dated 25/6/2010 of the petitioner, addressed to the respondent at an address in Mumbai, wherein he was informed to surrender the quarter within five days. A copy of that letter was endorsed to the Director of the petitioner Institute at Hyderabad with the request to recover necessary amount from the salary of the respondent as advised by earlier letter dated 8/6/2010. It was submitted on that basis that on the one hand the respondent was suddenly and with mala fide intention transferred to Hyderabad and on the other hand rent was sought to be recovered for the accommodation provided at Gandhinagar. Upon termination of service of the respondent, he could not claim to occupy any premises at Hyderabad and hence he had continued to live with his family at Gandhinagar. Therefore, factually the place of residence of the respondent was in Gandhinagar and that was the only material fact for deciding the issue of territorial jurisdiction of the CAT. He further argued that the relevant rule could not be read so as to substitute the word "legally" for "ordinarily".
It clearly appears from the scheme and provisions of the Administrative Tribunal Act 1985 and the Rules made thereunder that the Legislature has consciously conferred jurisdiction upon various benches of the Tribunal on the basis of ordinary residence of the applicant and the Tribunal may not have the jurisdiction to take evidence and decide the issue of legality of such residence. As observed by the Apex Court in Ruchi Majoo (supra), the issue of "ordinary residence" is primarily a question of intention, which in turn is a question of fact or at best would be mixed question of law and fact. If the CAT is also required to decide mixed question of fact and law involving legality of ordinary residence, it would be traveling beyond its jurisdiction. Therefore, the satisfaction of the Tribunal on facts about the ordinary residence of the applicant should be sufficient to assume jurisdiction for deciding the application on merits.
In that view of the matter, no interference is required in the impugned order of the Tribunal. It was, however, fairly conceded by learned Counsel for the respondent, on instruction, that after severance of relationship with the petitioner, the respondent did not propose to continue to forcefully or illegally occupy the accommodation provided to him by the petitioner. However, on account of his financial constraints and other circumstances, he would be able to vacate the accommodation provided at Gandhinagar latest by the end of July of this year.
Recording the above statement of the petitioner, the petition is summarily dismissed and notice is discharged with no order as to costs.
(D.H.WAGHELA, J) (MOHINDER PAL, J) *asma Top