T. Jacob vs Inspector General Of Police (Personal) on 6 April, 2022

[Cites 11, Cited by 1]

Kerala High Court

T. Jacob vs Inspector General Of Police (Personal) on 6 April, 2022

The above writ appeal is filed by the petitioner in W.P. (C) No.27588 of 2021 aggrieved by the judgment of the learned Single Judge dated 01.04.2022 whereby the writ petition filed by him was dismissed.

2. Brief facts necessary for disposal of the above writ appeal are as follows: Appellant/petitioner has been working in the Office of the IGP, CSJWT, CRPF, Belgaum since 16.06.2015. The appellant is due to retire from service with effect from 31.10.2024. He submitted Ext.P1 application before the 1 st respondent seeking for a transfer to Group Centre, CRPF, Pallipuram being his terminal posting. By Ext.P2 the application submitted by the appellant was recommended by the IGP, SCJWT, CRPF, Belgaum. The Office of the 1st respondent also considered Ext.P1 submitted by the appellant WA No.449 of 2022 3 and recommended his transfer to Group Centre, CRPF, Pallipuram as per Ext.P3 communication. In the meanwhile, there was delay in issuance of transfer order due to Covid-19 pandemic, the appellant again made a request seeking a transfer to his home State which was also recommended by the DIGP, CSJWT, CRPF, Belgaum as per Ext.P6. While so, Ext.P7 transfer order was published by the Office of the 3rd respondent whereby the appellant was transferred to 33 Bn, which is now based in Jammu & Kashmir. On issuance of Ext.P7 the appellant again represented before the 3 rd respondent as per Ext.P8. Thereafter by Ext.P9, DIGP, CSJWT, Belgaum again recommended the case of the petitioner. Thereupon the 3 rd respondent has issued Ext.P10 whereby the request of the appellant was rejected as he is not eligible for a static posting and also due to non-availability of vacancy at the requested place. On receipt of Ext.P10, appellant again represented before the 2 nd respondent as per Ext.P11 to reconsider his case. It is aggrieved by the issuance of Exts.P7 and P10 orders that the appellant has approached this Court filing the above writ petition.

3. A statement was filed on behalf of the respondents in which a preliminary objection was raised regarding the lack of jurisdiction of this Court to entertain the writ petition. It was WA No.449 of 2022 4 contended on behalf of the respondents that the appellant is still serving as Inspector, CRPF, Belgaum (Karnataka) and no part of the cause of action has occurred inside the territorial jurisdiction of this Court. To fortify their contentions, the respondents relied on the judgment of this Court in Indian Maritime University v. Viswanathan [2014 (4) KLT 798 (FB)], Anand Anoop v. Union of India [2014 (3) KLT 171] and Dental Council of India v. Viswanath [2018 (3) KLT 255 (FB)]. Based on the above averments, the respondents pray for an order dismissing the writ petition as not maintainable. The respondents have also answered in the said statement to the various averments raised by the appellant in the writ petition.

4. A reply affidavit was filed by the appellant/writ petitioner mainly contending that the writ petition is perfectly maintainable before this Court in as much as the reliefs sought for in the writ petition are to be implemented in the State of Kerala and therefore the cause of action falls solely in Kerala and not in any other State even though administrative orders may have to be issued by the appropriate authorities who may be placed in other States.

5. The learned Single Judge after considering the rival contentions of the parties held that the cause of action in the present WA No.449 of 2022 5 case is rejection of the request for transfer and the impact of the order is the appellant's retention at Belgaum and that his aspiration of being transferred to Kerala will not give rise to the cause of action and therefore the above writ petition is not maintainable before this Court. But the learned Single Judge reserved the appellant's right to approach the appropriate court. It is feeling aggrieved by the judgment of the learned Single Judge that the present writ appeal is filed.

6. In the appeal it is contended by the appellant that the wording "seat of such Government or authority or the residence of such person" obtaining in Article 226(2) of the Constitution of India is not a criteria for determining the territorial jurisdiction in the given facts and circumstances of the case. The appellant has also took up a contention that the decisions in Indian Maritime University's case (supra) and Dental Council of India's case (supra) are in fact supporting the claim raised by the appellant and not otherwise as held by the learned Single Judge. The appellant relying on the decision in Navinchandra N. Majithia v. State of Maharashtra [(2000) 7 SCC 640] contended that the crux of the issue of the territorial jurisdiction is the territories in which the cause of action wholly or in part arises in the exercise of such WA No.449 of 2022 6 power and that as per the averment in the writ petition it is clear that the main direction sought for by the appellant was essentially for a choice posting to Group Centre, Pallipuram, which is within the territorial jurisdiction of this Court and therefore the learned Single Judge went wrong in entering a finding that this Court has no territorial jurisdiction to entertain the writ petition (emphasis supplied). The appellant would contend that the cause of action essentially means a bundle of facts which the appellant must prove which if traversed, it would be necessary for the appellant to prove in order to support his right to a judgment of this Court and contended that this position has been clarified by a Larger Bench of the Apex Court in State of Rajasthan v. Swaika Properties [(1985) 3 SCC 217] and based on the decision of the Apex Court, the appellant contended that since the issue is relating to transfer to a post existing within the State of Kerala, it has to be held that part of the cause of action if not whole has arisen in the State of Kerala and therefore the finding of the learned Single Judge that this Court has no territorial jurisdiction to consider the issue is without any basis. In support of his contentions the petitioner also relies on the decision in Oil and Natural Gas Commission v. Utpal Kumar Basu [(1994) 4 SCC 711] to contend for a position that WA No.449 of 2022 7 cause of action means those bundle of facts which the appellant must prove. The appellant has also a case that he had got legal advice from a leading lawyer in Karnataka and was advised to move the High Court of Kerala and not the High Court of Karnataka advising that the Karnataka High Court lacks jurisdiction to entertain the writ petition in view of the fact that the subject matter of transfer in question being to the State of Kerala, only the High Court of Kerala has jurisdiction to entertain the issue.

7. We have heard the rival contentions of both the parties.

8. The question to be considered in this appeal is as to whether this Court has territorial jurisdiction to adjudicate the claim raised by the appellant. Admitted facts are that while the appellant was working at Belgam in Karnataka State, Ext.P1 application was submitted by the appellant wherein he has sought for a transfer posting to Group Centre, CRPF, Pallipuram, which is his home station. As per Ext.P7 transfer order published by the 3 rd respondent, ie. Inspector General of CRPF, Bangalore, Karnataka, he was transferred to 33 Bn which is now based in Jammu & Kashmir. Again representation was filed by the appellant which was also rejected by Ext.P10 order by the 3 rd respondent itself. So, going by the facts as narrated in the writ petition, the following facts are WA No.449 of 2022 8 discernible - (i) the petitioner was working at Belgaum, Karnataka while the writ petition was filed, (ii) his option for transfer to Kerala was submitted while serving at Belgaum, Karnataka, (iii) his application was rejected by Ext.P7 and thereafter by Ext.P10 by the 3rd respondent Inspector General of Police, CRPF, Bangalore, Karnataka, (iv) his place of choice for transfer was Kerala and (v) his allegation that vacancies are available in the State of Kerala. The appellant relied on the decisions reported in Indian Maritime University v. Viswanathan (2014 (4) KLT 798 (FB)), Dental Council of India v. Viswanath (2018 (3) KLT 255 (FB)), Navinchandra N.Majithia v. State of Maharashtra and others [(2000) 7 SCC 640) and Oil and Natural Gas Commission v. Utpal Kumar Basu and others [(1994) 4 SCC 711) to contend for the position that since appellant's choice for transfer posting is Kerala, he can only be presumed that the cause of action arose within the territorial jurisdiction of the High Court of Kerala and therefore, the said High Court alone has jurisdiction to entertain his grievances. We have gone through those judgments relied on by the petitioner and found that the facts in those cases decided are totally different from the facts of this case and further more, all those cases were ultimately decided against the WA No.449 of 2022 9 petitioners therein. Probably the appellant might have relied on the said judgments only to substantiate his claim that the crux of the issue of territorial jurisdiction is the territories in which the cause of action, wholly or in part, arises in the exercise of such power, and therefore the choice of transfer of the appellant being to a station within the territorial limits of the High Court of Kerala, the said court has jurisdiction to entertain the claim. Even going by the averments in the writ petition, it is to be seen that the cause of action for filing the above writ petition is in fact the rejection of the requests for transfer as per Exts.P7 and P10. Such a request was made while the appellant was admittedly working at Belgaum in Karnataka and the officer who rejected the same was also stationed in Karnataka State. We find that the finding of the learned Single Judge to the effect that the aspiration or the request made by the petitioner while working in Belgaum, Karnataka for getting a posting in a station in Kerala or the alleged availability of vacancies in the State of Kerala will not give rise to a cause of action by which the High Court of Kerala would assume jurisdiction to entertain and adjudicate such a claim. We concur with the finding of the learned Single Judge to that effect. It is elementary that the bundle of facts alleged to be the cause for institution of the action must give rise to WA No.449 of 2022 10 an actionable wrong within the territories of the court concerned.

9. The Apex Court in State of Rajasthan v. Swaika Properties [(1985) 3 SCC 217] has considered the true import and meaning of 'cause of action' and specifically held that the cause of action claimed by the petitioner to substantiate his claim that a particular High Court has jurisdiction to entertain the claim should prove that the action complained of was an integral part of the cause of action so as to assume jurisdiction on the particular court. Paragraph 8 of the judgment is relevant for consideration which is extracted below:

"The expression 'cause of action' is tersely defined in Mulla's Code of Civil Procedure:

The 'cause of action' means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The mere service of notice under Section 52(2) of the Act on the respondents at their registered office at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(20 of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. The notification dated February 8, 1984 issued by the State Government under Section 52(1) of the Act became effective the moment it was published in the official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer, Town Planning Department, Jaipur under Section 52(2) for the grant of an appropriate writ, direction or WA No.449 of 2022 11 order under Article 226 of the Constitution for quashing the notification issued by the State Government under Section 52(1) of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under Section 52(1) of the Act by a petition under Article 226 of the Constitution, the remedy of the respondents for the grant of such relief had to be sought by filing such a petition before the Rajasthan High Court, Jaipur Bench, where the cause of action wholly or in part arose."

(underline supplied) Even assuming for argument sake that the aspiration or the request for a posting in Kerala will form part of a bundle of facts leading to the cause of action, the claim of the appellant that this Court has jurisdiction to entertain the writ petition has to be rejected based on the doctrine of forum conveniens (emphasis supplied).The Apex Court in Kusum Ingots & Alloys Ltd. v. Union of India [(2004) 6 SCC 254) considered even in cases where a part of cause of action arose within the jurisdiction of a particular High Court and the said court assumed jurisdiction in view of the mandate of Articles 226(2) of the Constitution of India, even in such cases the Court can refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. Paragraph 30 of the said judgment reads as follows:

"We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. ........."

WA No.449 of 2022 12

The principle of forum conveniens was dealt with in detail by the Special Bench of the Delhi High Court, reported in M/s.Sterling Agro Industries Ltd. v. Union of India & Ors [AIR 2011 Delhi 174] which explained the principle of forum conveniens in detail and its consequential impact on deciding the territorial jurisdiction of a court. Paragraphs 29, 30 and 32 are relevant which are extracted below:

"29. The High Courts, however, must remind themselves about the doctrine of forum non conveniens also. .........

30. From the aforesaid pronouncements, the concept of forum conveniens gains signification. In Black's Law Dictionary, forum conveniens has been defined as follows:

"The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses."

xxx xxx xxx xxx

32. The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens. The Full Bench in New India Assurance Co.Ltd. (supra) has not kept in view the concept of forum conveniens and has expressed the view that if the appellate authority who has passed the order is situated in Delhi, then the Delhi High Court should be treated as the forum conveniens. We are unable to subscribe to the said view."

10. In the present case, the cause of action arose within the State of Karnataka. Only aspect pointed out by the appellant to assume jurisdiction of this Court is the aspiration and his request for transfer posting to Kerala and the allegation regarding WA No.449 of 2022 13 availability of vacancies in the State of Kerala. We have already found that the said aspect may not give rise to a cause action for this Court to adjudicate the claim. Further as the petitioner was working at Karnataka and the authority which rejected his request for transfer is also stationed in Karnataka, this is a case where the principle of forum conveniens is squarely applicable, even if we assume that a minor part of the cause of action may have arisen in the State of Kerala. This is so, as the predominant and substantial part of the cause of action has undisputably arisen outside the limits of the State of Kerala.

In view of the above discussion, we find no reason to entertain the above writ appeal and the same is accordingly dismissed.

Sd/-

ALEXANDER THOMAS JUDGE Sd/-

VIJU ABRAHAM JUDGE cks

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