Patna High Court
Ghanshyam Kumar vs The Union Of India on 9 July, 2026
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5790 of 2020
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Ghanshyam Kumar S/o Shri Bulan Lal Deo Resident of Village- Turki, PS-
Baheri, District- Darbhanga.
... ... Petitioner/s
Versus
1. The Union of India through the Secretary, Ministry of Home Affairs, Govt.
of India, New Delhi.
2. D.G. of B.S.F., B.S.F. Head Quarter New Delhi.
3. I.G., B.S.F. Ftr. Head Quarter Tripura.
4. Commandant 31 B.N., B.S.F. Bagafa, Tripura.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ebrahim Kabir, Adv.
Mr. Shruti Sinha, Adv.
For the Respondent/s : Mr. Ram Anurag Singh, Adv.
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 09-07-2026
Heard the parties.
2. The petitioner has invoked the prerogative writ
jurisdiction of this Court seeking quashing of the Order bearing
No. ESTT/31BN/OSL-GK/2018 9732-45 dated 25.05.2018
issued by the Commandant 31 B.N., B.S.F. Bagafa, Tripura
whereby the petitioner has been dismissed from service with
effect from 25.03.2018 for unauthorized absence with effect
from 11.12.2017 to 25.05.2018, by treating the period; "Dies
Non" for all purpose. The challenge has also been made to the
Order bearing No. IGA/Estt-IV/Re-Inst/GK-31BN/2018/11814-20
dated 27.09.2018 passed by the I.G., B.S.F. HQ Tripura Frontier
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B.S.F. Salbagam, Tripura whereby the appeal preferred by the
petitioner also came to be rejected. The Order No. IGA/Estt-
IV/Re-Inst/GK-31BN/2018/15321-25 dated 10.12.2018 issued
by the D.I.G./P.S.O. for IG, BSF Ftr. HQ Tripura, whereby the
representation of the petitioner filed before the DG, BSF has
also been rejected observing no new issues has been raised.
3. The brief facts of this case, as narrated in the writ
petition are that the petitioner joined service as Constable/GD in
BSF in the month of May, 2015; while serving as 31 st Battalion
BSF, he was granted 15 days casual leave with effect from
20.11.2017
to 10.12.2017. Upon expiry of the aforenoted period,
the petitioner had to resume duty on 10.12.2017. But
unfortunately, in the meanwhile, his son, namely, Priyanshu,
who was aged about one year got seriously ill and during the
course of treatment he died on 14.05.2018. It has further been
submitted that, in the meanwhile, the mother of the petitioner
also fallen ill and she also died on 26.06.2018. On account of
the aforesaid reason, the petitioner went in depression and could
not inform the authorities regarding unfortunate incidence.
However, when the special representative was sent to his home,
the petitioner vide Letter dated 24.03.2018 informed the
department about all the unfortunate incident.
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4. On account of the aforesaid reason of unauthorized
absence, the commandant 31st BN BSF issued show-cause
notice seeking his response for overstaying leave for 166 days;
on being dissatisfied with his response, dismissed the petitioner
from his service by treating the period; “Dies Non”. The copy of
the order of dismissal was communicated to the petitioner at his
native place in Darbhanga. On receipt of the dismissal order, the
petitioner preferred appeal before the I.G., B.S.F., which also
came to be rejected. The last representation also met with the
same fate, as stated hereinabove.
5. Learned Advocate for the petitioner while assailing
the impugned order adverting the facts, noted hereinabove,
submitted that since the son of the petitioner was seriously ill
and subsequently died, and further his mother also left for
heavenly abode, immediate to the death of his son, the petitioner
had a reasonable excuse not to resume his duty. Moreover, prior
to the death of his son and mother, his wife has also died on
account of serious illness and, as such, he was passing through
his worst and stressful days. Irrespective of all these unfortunate
incidence, the petitioner has shown his willingness to join the
service and serve the nation, but his earnest prayer has been
turned down in a most arbitrary manner, by treating his case as
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willful negligence and planned unauthorized absence. It is
further contended that the impugned order of dismissal is quite
disproportionate to the charges for unauthorized absence of 166
days.
6. On the other hand, learned Advocate for the Union
of India Mr. Ram Anurag Singh made a preliminary objection
with regard to maintainability of the writ petition and submitted
that all the incidence right from the issuance of the show-cause
notice till the dismissal and rejection of appeal, have taken place
in the State of Tripura and thus, in no circumstances, the present
writ petition is maintainable before this Court.
7. To support the aforesaid contention, heavy reliance
has been placed on a decision rendered by this Court in case of
Ashutosh Ranjan Vs. Union of India through Director
General CISF & Ors., (2022) 3 BLJ 413. Further reliance has
also been placed on a Bench decision of this Court in Rajnish
Kumar Vs. The Union of India & Ors., CWJC No. 7142 of
2026. Referring to the decisions aforenoted, he vehemently
submits that since no cause of action has arisen in the State of
Bihar, therefore, in any of the circumstances, the writ petition
ought not to be entertained.
8. While addressing on the merit of the writ petition,
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learned Advocate for the Union of India further drew the
attention of this Court to paragraph no. 11 of the counter
affidavit and submitted that in a short span of three years of
service, the petitioner had earned two major punishments on the
charge of “Absenting without Leave” and “Overstayed from
Leave”, respectively. The petitioner is a habitual absentee and
before passing the order of dismissal, his past conduct was also
taken into consideration. The petitioner has been given proper
opportunity of hearing and after consideration of his show-
cause, the impugned order of dismissal has been passed. The
unauthorized absence of a personnel in a disciplined force is
nothing but a grave misconduct, for which the punishment of
dismissal is proportionate to the charges.
9. This Court has heard the learned Advocate for the
respective parties and perused the materials available on record.
Before parting with the case, this Court deems it apt and proper
to begin with the maintainability of the writ petition. It need not
require any clarification that the High Court can issue a writ
even when the person or the authority against whom the writ is
issued, located outside its territorial jurisdiction, if the cause of
action wholly or partially arises within the court’s territorial
jurisdiction, in terms with the mandate of the Article 226 (2) of
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the Constitution of India, which is extracted hereinbelow:-
226.Power of High
Courts to issue certain writs.–(1)
Notwithstanding anything in
Article 32, every High Court shall
have power, throughout the
territories in relation to which it
exercises jurisdiction, to issue to
any person or authority, including
in appropriate cases, any
Government, within those
territories, directions, orders or
writs, including writs in the nature
of habeas corpus, mandamus,
prohibition, quo warranto and
certiorari, or any of them, for the
enforcement of any of the rights
conferred by Part III and for any
other purpose.
(2) The power
conferred on a High Court by
clause (1) shall not be in
derogation of the power conferred
on the Supreme Court by clause
(2) of Article 32.”
10. So far the expression cause of action for the
purpose of invoking the jurisdiction under Article 226 (2) of the
Constitution of India is concerned, this Court while considering
the identical matter in the case of Navneet Kumar Yadav Vs.
Union of India & Ors., CWJC No. 9942 of 2020, this Court has
considered numbers of decisions on the point of territorial
jurisdiction, including the decision passed by the Hon’ble
Supreme Court in the case of Nawal Kishore Sharma Vs.
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Union of India & Ors., (2014) 9 SCC 329; Oil and Natural
Gas Commission Vs. Utpal Kumar Basu & Ors., (1994) 4 SCC
711; Union of India & Ors. Vs. Adani Exports Ltd & Anr.,
(2002) 1 SCC 567; Kusum Ingots and Alloy Ltd. Vs. Union of
India & Anr., (2004) 6 SCC 254; as also the judgment rendered
in the case of Om Prakash Srivastava Vs. Union of India &
Anr., (2006) 6 SCC 207, where the Court reinforced the legal
position that the question of cause of action arising within the
territorial limits either wholly or in part for filing a writ has to
be decided in the light of the nature and character of the
proceedings under Article 226 of the Constitution. In order to
maintain a writ petition, a writ petitioner has to establish that a
legal right claimed by him has prima facie either been infringed
or is threatened to be infringed by the respondent within the
jurisdiction and such infringement may take place by causing
him actual injury or threat thereof.
11. So far the judgment in the case of Ashutosh
Ranjan (supra) is concerned, the petitioner was working in
Assam with CISF and he was subjected to disciplinary
proceeding, which culminated with the dismissal from service
and it was confirmed by the Appellate and Revisional Authority,
who was stationed at Assam and Kolkata, respectively. The
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petitioner in the said case had been claiming territorial
jurisdiction only because the service of dismissal order was sent
in his native place situated in the State of Bihar. However, the
Court rejected the contention of the petitioner by holding that
mere correspondence does not even constitute any partial cause
of action. Further in the case of Rajnish Kumar (supra), the
learned Single Judge placing reliance upon the decision in
Ashutosh Ranjan (supra) has rejected the writ petition; on
being found that no cause of action has arisen before the High
Court of Judicature at Patna since the proceeding ended in
termination of the petitioner as well as appellate order were
passed by the authorities in the State of Chattisgarh.
12. In the light of the aforesaid settled legal position,
now we come to the merit of this case as to whether any cause
of action has arisen within the territorial jurisdiction of this
Court. From the materials available on record as well as the
counter affidavit filed on behalf of the respondent Union of
India, the facts are admitted to the extent that while the
petitioner was at his native place of Darbhanga within the State
of Bihar and was completely engaged in treatment of his son, a
special representative of the Unit along with show-cause notice
issued vide Letter No. Estt/31Bn/SC-Notice/OR/2018/4824-26
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dated 15.03.2018 has been sent to the home address of the
petitioner to ascertain the reasons for his unauthorized absence
from duty and on receipt of such show-cause notice, the
petitioner has submitted all the written statement relating to the
treatment of his son, as his son was seriously ill and after due
care, he would join his duty. While the petitioner was in his
native place, he was serve with the show-cause notice against
the proposed dismissal from service, which was replied by the
petitioner and finally the order of dismissal came to be passed,
which was duly communicated to the petitioner at his native
place.
13. However, it is the contention of the learned
Advocate for the Union of India that the petitioner has never
responded to the show-cause.
14. As the Court, time without number, has observed
that cause of action means right to sue and it has been judicially
interpreted to mean that every fact which would be necessary
for plaintiff to prove, if traversed, in order to support his right to
judgment of Court, in the totality of the circumstances, this
Court finds that the aforesaid facts are sufficient enough to
constitute a part cause of action for which writ can be
maintained. Moreover, the finding given hereinabove to support
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the maintainability of writ petition to get strengthened for the
reason that the writ petition was filed long back in the year 2020
and now the pleadings are complete and after six years,
relegating the petitioner to approach before the High Court of
Guwahati would cause further prejudice to the petitioner,
besides travesty of justice. Thus, in such circumstances, the
preliminary objection raised by the respondent Union of India is
turned down.
15. Now coming to the legality of the order of
dismissal, which has been passed on account of unauthorized
absence from 11.12.2017 to 25.05.2018, which period has been
treated as “Dies Non” for all purposes prima facie appears to be
disproportionate to the charges of unauthorized absence for the
aforesaid period, for the reason that the petitioner after taking
proper leave went to the native place, where his son was
suffering from serious illness, who later on died and so
thereafter, his mother also died and thus, in such circumstances,
he was compelled to stay there; hence, the case of the petitioner
should be deserved to be considered sympathetically by treating
it as an unauthorized leave in an extraordinary facts and
circumstances.
16. An identical matter has also came up for
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consideration before the learned Division Bench of this Court in
case of Sumit Kumar @ Sumit Kumar Tiwary Vs. The Union
of India & Ors., (LPA No. 617 of 2019), where the Constable of
Central Reserve Police Force overstayed for 196 days on
account of treatment of his mother, who was suffering from
cancer, but his plea was not accepted and the documents
submitted by him have not been taken into account either by any
of the respondent authorities or by the learned Single Judge. The
learned Division Bench on being found the order of dismissal
disproportionate, set-aside the order of the learned Single Judge
as well as the order of the punishment passed by the disciplinary
authority and the appellate revisional order by holding as
follows:-
“Keeping in view all the facts and circumstances of
the case, we are very much conscious of the fact that absence of
the appellant from duty cannot be equated with the person who
is said to be unauthorized absence from his duty. On the said
score, dismissal of appellant from service is totally
disproportionate to the conduct committed by the appellant. For
the end of justice, we have to take sympathetic approach
towards the appellant in the given facts and circumstances of
the case that appellant has reason to leave the place of posting.”
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17. In view of the aforesaid facts and circumstances
and the position obtaining in law, this Court finds substance in
the writ petition. Accordingly, the impugned order of dismissal
contained in Order No. ESTT/31BN/OSL-GK/2018 9732-45
dated 25.05.2018 is hereby set-aside. On account of setting-
aside the dismissal order, the order passed by the first appellate
authority as well as the order passed by the D.G., B.S.F., also
stood set-aside.
18. The matter is relegated to the respondent no. 4 to
consider the claim of the petitioner afresh and pass an
appropriate order, in accordance with law, taking into
consideration the unfortunate mishappenings that occurred with
the petitioner, due to which he could not resume his duty and
compelled to remain away from the service for a period of 166
days.
19. With the aforesaid observations and directions, the
present writ petition stands allowed.
(Harish Kumar, J)
shivank/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 14.07.2026 Transmission Date NA
