JUDGMENT :

Yogendra Kumar Srivastava, J.

1. I have the benefit of going through the judgment of my esteemed sister Hon'ble Mrs. Sunita Agarwal, J., and I am in respectful agreement with the same. However, in view of the wide expanse and scope of the issue under consideration and the varying interpretations arising there from, I am giving a separate concurring judgment, as follows.

2. The reference before this Larger Bench has been occasioned consequent to an order dated 25.01.2017, of a learned Single Judge, expressing a view that there was a conflict of opinion between the views expressed by the Full Bench judgment of this Court in the case of Rajendra Kumar Mishra Vs. Union of India and others 2005 (1) UPLBEC 108 as also the judgment rendered by a Division Bench of this Court in The Director General, CRPF, New Delhi Vs. Constable No.850774845 , Lalji Pandey Special Appeal No.342 of 2010 on one hand and the orders passed by the two Division Benches of this Court in Bibhuti Narain Singh Vs. Food Corporation of India and others Special Appeal Defective No. 785 of 2014 and the Har Govind Singh Vs. Union of India and others Special Appeal No.158 of 2016 in the light of the judgment of the Supreme Court in the case of Nawal Kishore Sharma Vs. Union of India and others (2014) 9 SCC 329.

3. The learned Judge has made the reference in the following terms:

“Having considered the judgments and orders referred to above, I am of the view that there is a conflict of opinion between the Full Bench judgment of this Court in the case of Rajendra Kumar Mishra (supra) and Constable Lalji Pandey (supra) on one hand and the orders passed by the two Division Benches of this Court in the case of Bibhuti Narain Singh (supra) and Har Govind Singh (supra) in the light of the judgment of the Supreme Court in the case of Nawal Kishore Sharma (supra) and this dispute, therefore, needs to be resolved by a larger Bench on the question with regard as to whether the observations of the Supreme Court in the case of Nawal Kishore Sharma (supra) in paragraph 17 can be said to be a binding precedent on this Court to entertain the above writ petitions or whether the observations of paragraph 17 were in the peculiar facts and circumstances of the case of Nawal Kishore Sharma (supra) in view of paragraphs 18 and 19 of the said judgment.

OR

In the alternative whether the judgment of the Full Bench in Rajendra Kumar Mishra (supra) and Constable Lalji Pandey (supra) can be said to still lay down the correct law in view of the judgment of the Supreme Court in Nawal Kishore Sharma (supra).

Therefore, in my opinion this controversy needs to be resolved by a larger Bench of this Court. Let the records of these cases be placed before the Hon'ble Chief Justice for constitution of a larger Bench to resolve the above conflict in the several decisions of this Court.”

4. In order to appreciate the background of the reference, the judgments and the orders on the basis of which the conflict of opinion has been noticed by the learned Single Judge and the reference has been made, may be adverted to.

5. The question which was considered in the case of Rajendra Kumar Mishra (supra) was as to whether this Court had jurisdiction to decide the petition in question and taking into consideration the facts of the case that the petitioner while serving in the Indian Army and on duty at Kanchanpara at Calcutta in West Bengal was given a charge-sheet and thereafter tried by the Summary Court Martial where he was found guilty and awarded punishments, the Full Bench expressed its view that the writ petition challenging the order passed in the Court Martial proceedings was not maintainable before this Court as no part of the cause of action had arisen in the State of U.P.

6. In coming to the aforesaid conclusion the Full Bench took note of the fact that the misconduct was committed at Calcutta and Summary Court Martial was also held at Calcutta therefore the entire cause of action had arisen at Calcutta