Calcutta High Court
Sri Zafar Khan vs Coal India Limited & Others on 5 February, 2009
Equivalent citations: AIR 2009 CALCUTTA 187, 2009 (4) ALL LJ NOC 796, (2009) 4 SERVLR 657, (2009) 2 CAL HN 1, (2009) 1 CAL LJ 602, (2009) 2 CALLT 111
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
IN APPEAL FROM ITS CONSTITUTIONAL JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Tapan Mukherjee
A.P.O. No. 482 of 2008
G.A. No. 3912 of 2008
W.P. No. 1555 of 2005
Sri Zafar Khan
Versus
Coal India Limited & Others
For the Appellant : Mr. Subrata Ganguly
For the Respondent : Mr. Bijoy Kumar
Heard On: 16.12.2008 & 18.12.2008
Judgment On: 05.02.2009.
PRANAB KUMAR CHATTOPADHYAY, J.
This appeal has been preferred at the instance of the writ petitioner challenging the decision of the learned Single Judge whereby and whereunder the said learned Judge refused to adjudicate the grievances of the writ petitioner on merits on the ground of lack of territorial jurisdiction of this Hon'ble court. Learned Single Judge specifically held that this Hon'ble court is lacking territorial jurisdiction to entertain and try the writ petition filed by the appellant herein.
Before proceeding further, facts mentioned in the writ petition are briefly narrated hereunder:
The appellant/writ petitioner was initially employed in the Bengal Coal Company Limited as Pump Operator and the said appellant declared his date of birth as 14th February, 1948 at the time of initial appointment in the service. According to the appellant, the aforesaid date of birth was accepted and recorded in the Service Book and in the Provident Fund Records of the said company, which are still lying in the office of the Coal Mines Provident Fund authorities and also in the Head office of the Eastern Coalfields Limited at Sanctoria, Burdwan.
It has been submitted on behalf of the appellant that after nationalisation of the aforesaid company steps were taken for preparation of the service records of its employees and in course of preparation of service records, several disputes arose with regard to recording of the age of the employees. In order to resolve the said disputes, several instructions and guidelines were issued by the competent authority from time to time. A committee, namely Age Determination Committee was also constituted to resolve the aforesaid age disputes.
It has been specifically mentioned in the writ petition that in the year 1987, employees in the Coal industry were supplied with Service Excerpt forms in order to give an opportunity to correct the service records of the employees. It has been claimed by the appellant that the date of birth was correctly recorded in the said service excerpt form as 14.02.1948 and, therefore, the said appellant had no occasion to raise any dispute in this regard. The Personnel Manager of the concerned colliery also issued Medical Identity Card on 6th June, 1999 wherein the date of retirement of the appellant/writ petitioner was mentioned as 14.02.2008.
In January, 2004, the appellant/writ petitioner applied for new Medical Identity Card as he lost the earlier one and then only came to know that in the new Service excerpt form, his date of birth was erroneously recorded as 14th February, 1945 instead of 14th February, 1948. The appellant/writ petitioner thereafter approached the competent authority for necessary correction of his date of birth on the basis of the recording made in the old 'B' Form Register. According to the appellant, no step was taken by the competent authority of the respondent company.
Subsequently, the respondent No. 3 issued a notice of super- annuation dated 5th November, 2004 to the appellant herein asking the said appellant to retire from service with effect from 28th February, 2005. In the said notice, it was mentioned by the respondent No. 3 that as per 'B' Form Register the appellant herein would attain the age of super-annuation on 13th February, 2005.
The appellant, however, claimed that the date of birth as was initially recorded in the old Form 'B' Register and in the Coal Mines Provident Fund Records were changed by the concerned authority of the respondent company even without granting any opportunity of hearing to the said appellant. The appellant, therefore, filed a writ petition before this Hon'ble court for issuance of a direction upon the authorities of the respondent company for withdrawal and/or cancellation of the new 'B' Form Register and also the notice of super-annuation dated 5th November, 2004 issued by the respondent No. 3.
The said writ petition was finally disposed of by the learned Single Judge by the judgment and order under appeal wherein the said learned Judge specifically held that this Hon'ble court has no territorial jurisdiction to entertain the writ petition filed by the appellant herein and, therefore, declined to adjudicate the grievances of the appellant mentioned in the said writ petition on merits.
There is no dispute that the head-office and the registered office of the respondent Coal company are within the territorial jurisdiction of this Hon'ble court. The notice of super-annuation was, however, issued by the respondent No. 3 from the colliery office, which is admittedly outside the territorial jurisdiction of this Hon'ble court.
On examination of the writ petition we find that a representation was submitted before the competent superior authority of the respondent Coal company namely, the Director Personnel, Eastern Coalfields Limited for taking necessary steps to correct the date of birth of the appellant herein. There is no dispute that the office of the superior authorities of the respondent Eastern Coalfields Limited namely, the Chairman-cum- Managing Director and the Director Personnel are within the territorial jurisdiction of this Hon'ble court.
In the backdrop of the aforesaid facts, let us now consider whether this Hon'ble court has the territorial jurisdiction to entertain the writ petition filed by the appellant herein. The jurisdiction of the High Court in exercise of its power under Article 226 of the Constitution of India is determined by the two parameters laid down in Article 226(1) and Article 226(2). Article 226(1) clearly provides that the High Court will have the power to issue directions, orders or writs to any authority throughout the territory in relation to which it exercises jurisdiction. Article 226(1) is quoted hereunder:
"226 (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."
There is, however, no dispute that the authority mentioned in Article 226(1) should be an authority within the meaning of Article 12 of the Constitution of India. Therefore, in view of the clear provisions of Article 226(1) if the seat of the offending authority is within the jurisdiction of a High Court, then that High Court will have jurisdiction to entertain a writ application against that authority irrespective of where that offending act has been committed.
Furthermore, the High Court will have jurisdiction to issue writ under Article 226(2) of the Constitution of India if whole or in part of the cause of action have arisen within the territorial jurisdiction of that High Court. Article 226(2) of the Constitution of India is quoted hereunder:
"226(2) The power conferred by clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."
On many occasions writ applications have been filed in the High Court in view of the fact that part of the cause of action has arisen within the jurisdiction of that High Court although the seat of the offending authority is outside the jurisdiction of the said High Court. Several judgments of the Supreme Court have considered that question whether the High Court has exercised its jurisdiction rightly or wrongly on the basis of whether the part of the cause of action has arisen within the jurisdiction or not. This had led to the controversy as to what constitutes part of the cause of action. Several judgments of the Supreme Court have dealt with the question and sometimes the Court held that the part of the cause of action had arisen within the jurisdiction of the concerned High Court and, therefore, the High Court was right in exercising its jurisdiction. In many other cases, the Supreme Court has held that no part of the cause of action had arisen within the jurisdiction of the High Court and, therefore, that High Court did not correctly exercise its jurisdiction entertaining the writ petition. The controversy in those cases was concerning what constitutes part of the cause of action so as to decide whether a particular High Court can exercise its jurisdiction under Article 226(2) of the Constitution of India. This does not mean that the jurisdiction under Article 226(1) is in any way affected.
In the event, the seat of the offending authority is within the jurisdiction of a particular High Court, then by virtue of Article 226(1) of the Constitution of India that High Court will have jurisdiction irrespective of the fact as to where the cause of action has arisen. The Hon'ble Supreme Court in the case of Om Prakash Srivastava vs. Union of India and another reported in (2006) 6 SCC 207 at Paragraph 8 observed:
"8. Two clauses of Article 226 of the Constitution on plain reading give clear indication that the High Court can exercise power to issue direction, order or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action wholly or in part had arisen within the territories in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories."
This is also the ratio in the case of Oil and Natural Gas Commission vs. Utpal Kumar Basu and others reported in (1994) 4 SCC 711.
In that case jurisdiction of the Calcutta High Court was invoked on the ground that part of the cause of action had arisen within the jurisdiction of the Calcutta High Court. The Supreme Court, however, held otherwise and came to the conclusion that no part of the cause of action arose within the jurisdiction of the Calcutta High Court. It was not a case where the offending authority, namely Oil and Natural Gas Commission had its seat of activity within the jurisdiction of the Calcutta High Court. Had that been the case, the writ would have been maintainable in Calcutta High Court by virtue of Article 226(1) of the Constitution of India. Since in that particular case invocation of jurisdiction was made under Article 226(2) and the Supreme Court held that no part of the cause of action had arisen within the territorial jurisdiction of the Calcutta High Court; it observed as under:
"12................................................Notwithstanding the strong observations made by this Court in the aforesaid decision and in the earlier decisions referred to therein, we are distressed that the High Court of Calcutta persists in exercising jurisdiction even in cases where no part of the cause of action arose within its territorial jurisdiction............................................."
This is again clear from the other observation of the Supreme Court in that judgment at page 713, which is set out hereunder:
"................................................The appeal before the Supreme Court under Article 136 was confined to the preliminary objection of ONGC that the High Court of Calcutta had no jurisdiction to entertain, hear and dispose of the writ petition in the manner it did as the averments in the writ petition, even if assumed to be correct, did not disclose that even a part of the cause of action for institution of the said writ petition had arisen within the jurisdiction of the Calcutta High Court."
Almost all the judgments relied upon by the learned Single Judge and subsequently referred before us by the learned Counsel of the respondents on jurisdiction of a High Court under Article 226 of the Constitution of India are cases where jurisdiction was invoked under Article 226(2) of the Constitution. In the case of Union of India & Others vs. Adani Exports Ltd. & Anr. reported in (2002) 1 SCC 567, the Supreme Court held that the facts alleged did not give rise to any cause of action that had arisen within the jurisdiction of this Hon'ble court and, therefore, the Court could not have entertained the application.
In the case of Navin Chandra N. Majithia vs. State of Maharashtra reported in (2000) 7 SCC 640, the Supreme Court permitted Bombay High Court to interfere in respect of a complaint filed in Meghalaya on the basis that a part of the cause of action had arisen at Bombay.
The Hon'ble Supreme Court in the case of Mosaraf Hossain Khan vs. Bhagheeratha Engineering Limited and Others reported in (2006) 3 SCC 658 held that Kerala High Court had no jurisdiction to entertain the writ petition as no part of the cause of action arose within the jurisdiction of that Court.
The case of Kusum Ingots and Alloys Ltd. vs. Union of India and another reported in (2004) 6 SCC 254 is also a case where jurisdiction was invoked under Article 226(2) of the Constitution of India and the question discussed was whether the cause of action or any part of it had arisen within the jurisdiction.
In an interesting case of Om Prakash Srivastava vs. Union of India and Anr. reported in (2006) 6 SCC 207, the Supreme Court held that the High Court will have jurisdiction if cause of action wholly or in part arises within the territory even though the seat of Government or authority against whom the direction, order or writ is issued is not within the said territory. In other words, the Supreme Court reiterated that Article 226(1) of the Constitution of India is independent of Article 226(2) of the Constitution and if a High Court has jurisdiction to entertain a writ application under Article 226(2) of the Constitution of India, it is immaterial as to whether Article 226(1) of the Constitution is satisfied or not.
It is in this background the judgment of the Supreme Court in Eastern Coalfields Limited and Ors. Vs. Kalyan Banerjee reported in (2008) 3 SCC 456 is to be looked into. In the aforesaid case, the services of an employee of Eastern Coalfields Limited was terminated at Mugma, District: Dhanbad in Jharkhand state. The issue of jurisdiction was considered only on the basis that the cause of action had arisen within the jurisdiction of the Jharkhand High Court. This will be apparent from the submission of the learned Counsel appearing for Eastern Coalfields Limited as recorded in Paragraph 5 of the aforesaid judgment. The Supreme Court was, therefore, examining as to whether the entire cause of action had arisen within the jurisdiction of Jharkhand High Court.
The Supreme Court after referring to some of its earlier decisions proceeded on the basis of the finding of the Division Bench of Calcutta High Court (which was under appeal) that the entire cause of action arose in Mugma area within the State of Jharkhand. The question as to whether the situs of the head office of the Eastern Coalfields Limited in West Bengal was not in issue for consideration before the Supreme Court. The dicta in the concluding portion of the said judgment makes it clear that the Supreme Court was not deciding nor expressing any conclusive view on the question of jurisdiction on the basis of situs of the head office of the Eastern Coalfields Limited in West Bengal, which according to the Court, "by itself will not confer any jurisdiction upon the Calcutta High Court, particularly when the head office had nothing to do with the order of punishment passed against the respondent".
The aforesaid conclusion undisputedly does not touch the issue. It does not say that the Company did not have its registered office within West Bengal and hence Article 226(1) will not apply. It only says that in that case jurisdiction cannot be invoked under Article 226(2).
The particularisation that "the head office had nothing to do...................................." would have been wholly unnecessary if it was declaring the law that the situs of the head office cannot be a relevant matter for consideration of the jurisdiction of the High Court under Clause (1) of Article 226 of the Constitution of India. We do not think that it would be proper for us to adopt the view that the Supreme Court had intended to take away the basis of Clause (1) of Article 226. We also cannot overlook that the learned Judge who delivered the judgment in Eastern Coalfields Limited & Ors. (Supra) had while delivering a judgment of three- Judge Bench in Kusum Ingots and Alloys Ltd. (Supra) referred to the case of Lt. Col. Khajoor Singh vs. Union of India (AIR 1961 SC
532) and quoted the relevant passage from that judgment in Paragraph 28, which is reproduced hereunder:
"28. Lt. Col. Khajoor Singh v. Union of India whereupon the learned counsel appearing on behalf of the appellant placed strong reliance was rendered at a point of time when clause (2) of Article 226 had not been inserted. In that case the Court held that the jurisdiction of the High Court under Article 226 of the Constitution of India, properly construed, depends not on the residence or location of the person affected by the order but of the person or authority passing the order and the place where the order has effect. In the latter sense, namely, the office of the authority which is to implement the order would attract the territorial jurisdiction of the Court was considered having regard to Section 20(c) of the Code of Civil Procedure as Article 226 of the Constitution thence stood, stating: (AIR p.540, para 16) "The concept of cause of action cannot in our opinion be introduced in Article 226, for by doing so we shall be doing away with the express provision contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the territories over which the High Court has jurisdiction. It is true that this may result in some inconvenience to persons residing far away from New Delhi who are aggrieved by some order of the Government of India as such, and that may be a reason for making a suitable constitutional amendment in Article 226. But the argument of inconvenience, in our opinion, cannot affect the plain language of Article 226, nor can the concept of the place of cause of action be introduced into it for that would do away with the two limitations on the powers of the High Court contained in it."
After quoting the aforesaid passage, the learned Judge also observed as follows:
"29. In view of clause (2) of Article 226 of the Constitution of India, now if a part of cause of action arises outside the jurisdiction of the High Court, it would have jurisdiction to issue a writ. The decision in Khajoor Singh has, thus, no application."
It is significant that the learned Judge had used the word "now" for the obvious reason that the concept of cause of action was an additional feature for invoking the jurisdiction of the High Court by reason of the constitutional amendment as pointed out by the Supreme Court in its judgment in Alchemist Ltd. and another vs. State Bank of Sikkim and others reported in (2007) 11 SCC 335 to which we will be referring to hereinafter.
In the case of Alchemist Ltd. and another (Supra), Hon'ble Supreme Court examined the legal position and made the following observations:
"12. Before entering into the controversy in the present appeal, let the legal position be examined:
Article 226 of the Constitution as it originally enacted had twofold limitations on the jurisdiction of High Courts with regard to their territorial jurisdiction. Firstly, the power could be exercised by the High Court "throughout the territories in relation to which it exercises jurisdiction" i.e. the writs issued by the court cannot run beyond the territories subject to its jurisdiction. Secondly, the person or authority to whom the High Court is empowered to issue such writs must be "within those territories", which clearly implied that they must be amenable to its jurisdiction either by residence or location within those territories.
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16. It may be stated that by the Constitution (Forty-second Amendment) Act, 1976, Clause (1-A) was renumbered as Clause (2). The underlying object of amendment was expressed in the following words:
" Under the existing Article 226 of the Constitution, the only High Court which has jurisdiction with respect to the Central Government is the Punjab High Court. This involves considerable hardship to litigants from distant places. It is, therefore, proposed to amend Article 226 so that when any relief is sought against any Government, authority or person for any action taken, the High Court within whose jurisdiction the cause of action arises may also have jurisdiction to issue appropriate directions, orders or writs." (Emphasis supplied) The effect of the amendment was that the accrual of cause of action was made an additional ground to confer jurisdiction on a High Court under Article 226 of the Constitution."
(Emphasis supplied) In the case of Pottery Mazdoor Panchayat & Anr. vs. Union of India & Ors. reported in 1989 (1) CLJ 324, the Division Bench of this Hon'ble court correctly decided the issue relating to the territorial jurisdiction of the High Court upon appreciating the provisions of Article 226(1) of the Constitution of India. The relevant portion from the aforesaid decision is set out hereunder:
"4.......................................By virtue of the provisions contained in clause (1) of Article 226 of the Constitution, therefore, this Court was competent to entertain and decide the Writ Petition. The question with respect to the cause of action, wholly or in part, arising within the territorial jurisdiction of this Court was not directly relevant, since clause (1) of Article 226 of the Constitution is attracted in the present case in view of the fact that the Head Office/Registered office of the Second Respondent Company, which is an authority within the meaning of Article 12 of the Constitution, is situate in Calcutta........................................" In view of the clear provisions of Article 226(1) and 226(2), every High Court can assume jurisdiction and exercise its power in two independent ways.
In the present case, Calcutta High Court has territorial jurisdiction to entertain the present writ petition in view of the clear provisions of Article 226(1) of the Constitution of India as the seat of the offending authority, namely, the Head office and the registered office of the respondent company is within the territorial jurisdiction of this Hon'ble court. However, we also cannot ignore that a substantial part of the cause of action has also arisen within the territorial jurisdiction of this Hon'ble court in view of the fact that the appellant herein submitted a written representation to the respondent No. 4, for taking necessary steps to correct his date of birth and before disposal of the said representation by the respondent No. 4, impugned notice of super-annuation dated 5th November, 2004 was issued by the respondent No. 3 on the basis of the disputed date of birth of the appellant herein. Admittedly, the respondent No. 4 is the superior authority of the respondent No. 3 and the office of the said respondent No. 4 is located in West Bengal.
Therefore, in any event, this High Court has jurisdiction to entertain the writ petition filed by the appellant herein under Article 226(2) of the Constitution of India.
In the aforesaid circumstances, we have no hesitation to hold that this High Court is competent to exercise its jurisdiction both under Clause (1) and Clause (2) of Article 226 of the Constitution of India for the purpose of entertaining the writ petition filed by the appellant herein.
For the aforementioned reasons, the decision of the learned Single Judge cannot be sustained and the same is accordingly, set aside.
This appeal thus stands allowed. Let the writ petition filed by the appellant herein be now decided on merits by the appropriate Bench of this Court at an early date.
In the facts and circumstances of the present case, there will be, however, no order as to costs.
Let xerox copies of this judgment duly countersigned by the Assistant Registrar of this Court, be supplied to the parties herein on undertaking to apply for the certified copy of the same immediately.
[PRANAB KUMAR CHATTOPADHYAY, J.] TAPAN MUKHERJEE, J.
I agree.
[TAPAN MUKHERJEE, J.]