The Supreme Court has asserted that, in cases involving members of the CAPF, including the BSF, who challenge an administrative order terminating service, the Delhi High Court has territorial jurisdiction under Article 226(1) where the Union of India and the Director General or equivalent supervisory authority are located in Delhi, even if the order of termination was issued and the underlying events occurred outside Delhi. In such a situation, although other High Courts may also have jurisdiction under Article 226(2) because part of the cause of action arose there, the doctrine of forum non conveniens is to be applied sparingly, and in writ proceedings referable to Article 226(1), it may rarely justify refusal to entertain the petition.
More specifically, the Apex Court held that the Delhi High Court misapplied the doctrine of forum non conveniens in the context of Article 226 writ jurisdiction. Where a litigant invokes writ jurisdiction on the basis of the situs of the respondents’ offices, and seeks a writ such as certiorari, the availability of records with the respondents and the constitutional character of the remedy weigh against declining jurisdiction merely because another High Court may be more closely connected with the cause of action.
A Two-Judge Bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma observed that the limited question was whether the Delhi High Court was right in refusing to entertain the writ petition on the ground of forum non conveniens. It emphasised that, although that decision may have proceeded on an incomplete appreciation of the Delhi High Court’s order under challenge there, the Union of India and the Director General, BSF, having their offices in New Delhi, were necessary parties to the writ petition, and in view of Sections 4 and 5 of the BSF Act and Rule 22(4) of the BSF Rules, the Delhi High Court did have competence to entertain and try the writ petition under Article 226(1).
The Bench further noted that, apart from Delhi, the appellant could also have approached the Calcutta High Court, the High Court for the Union Territory of Jammu & Kashmir and Ladakh, and the Allahabad High Court, since parts of the cause of action had arisen within their jurisdictions. However, the existence of multiple available fora did not justify the Delhi High Court’s refusal in the facts of the case. The Bench accepted that Delhi was a competent forum and observed that the High Court had not dismissed the writ petition on the ground of lack of territorial jurisdiction but on forum non conveniens.
On the doctrine of forum non conveniens, the Bench observed that it applies where multiple fora are available and the court seized of the matter examines whether another forum is more convenient and better suited. However, the Bench held that, in the context of writ jurisdiction under Article 226, particularly where jurisdiction is invoked under clause (1) based on the situs of the office of the respondent, the doctrine may rarely apply. The Bench emphasized that where a constitutional remedy is pursued and the records can be produced by or called for from the respondents’ offices, application of forum non conveniens may become self-defeating and may deny access to justice rather than advance it.
Briefly, the appellant, an enrolled member of the Border Security Force since 31 December 2010, was serving in the 44th Battalion at Narayanpur, Malda, West Bengal, when a missing person report concerning a woman was received on 24 April 2022. During the ensuing Staff Court of Inquiry, it was found that the appellant had contracted a second marriage with that woman on 6 May 2022 during the subsistence of his first marriage, and that the marriage had been registered on 23 May 2022 in Kushinagar, Uttar Pradesh, without obtaining permission from the competent authority and without obtaining divorce from his first wife. The inquiry exonerated him of the allegation of abduction but confirmed the second marriage during subsistence of the first marriage.
Thereafter, a show cause notice dated 19 September 2022 was issued to the appellant under Rules 22 and 177 of the Border Security Force Rules, 1969, alleging violation of Rule 7 of the BSF Rules and Rule 21 of the Central Civil Services (Conduct) Rules, 1964 on the ground that he had entered into a second marriage during the subsistence of both his own marriage and that of the woman, without permission. As the appellant did not respond within the prescribed period, the Commandant, 44 Battalion, by order dated 27 October 2022, dismissed him from service without pensionary benefits.
The appellant then filed a statutory petition under Rule 28A of the BSF Rules, which was placed before the Inspector General, Frontier Headquarters, BSF, Jammu, and was rejected on merits on 22 December 2023 after condonation of delay. He challenged both the dismissal order and the rejection of the statutory petition before the Delhi High Court under Article 226, contending that the Delhi High Court had territorial jurisdiction because the offices of the Director General, BSF and the Ministry of Home Affairs were situated in Delhi. The Delhi High Court declined to entertain the writ petition, holding that no part of the cause of action had arisen in Delhi and that Delhi was not the forum conveniens.
