Andhra HC (Pre-Telangana)
P.S.R. Krishna And Ors. vs Union Of India (Uoi) Rep., By Its ... on 27 September, 2006
Equivalent citations: 2006(6)ALT593
Author: Ramesh Ranganathan
Bench: Ramesh Ranganathan
ORDER Ramesh Ranganathan, J.
1. Seeking to have the order of the Central Administrative Tribunal, Hyderabad Bench in O. A. No. 358 of 2005, on its being renumbered as O.A. No. 1954 of 2005 dated 31 -10-2005 before the Principal Bench of the Central Administrative Tribunal, New Delhi, quashed, W.P. No. 25511 of 2005 is filed.
2. Sri N. Janardhan Rao and 25 others, (Applicants in O.A. No. 330 of 2005 before the Central Administrative Tribunal, Hyderabad, which was renumbered as O.A. No. 1959 of 2005 before the Central Administrative Tribunal Principal Bench, New Delhi), have filed W.P. No. 26712 of 2005 questioning the order of the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 1959 of 2005 and batch dated 31-10-2005 and the absorption process of ITS Group-A officers, as contemplated in proceedings dated 24-03-2005, as arbitrary and illegal.
3. Sri G. Parameswar Reddy, (General Manager, West, Hyderabad Telecom District, Bharat Sanchar Nigam Limited), has filed W.P. No. 12161 of 2006 before this Court to quash the order of the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 1954 of 2005 and batch and for a consequential direction to declare that the absorption process of ITS Group-A officers, as contemplated in proceedings dated 24-03-2005, is illegal and arbitrary.
4. Sri R.N. Jyothirlingam, Deputy General Manager (Billing) BSNL Telecom Bhavan, Hyderabad, along with 70 others, has filed W.P. No. 25531 of 2005 to quash the order of the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 1959 of 2005 dated 31-10-2005, and the circular letter dated 24-03-2005, as arbitrary and illegal. The petitioners herein were repatriated, to their parent Department of Telecommunications, vide order dated 18-10-2005. Aggrieved thereby, they approached the Central Administrative Tribunal, Hyderabad Bench and filed O.A. No. 858 of 2005 and the Tribunal, by order dated 24-10-2005, directed that the order dated 18-10-2005 be kept in abeyance and gave liberty to the respondents to approach the Principal Bench seeking transfer of the case. Even before the transfer application came up for hearing, the Principal Bench had passed final orders, in O.A. No. 1963 of 2005 and batch, on 31-10-2005. Consequent thereto, BSNL issued letter dated 11-11-2005 extending the date for submission of options upto 30-11 -2005. On the ground that O.A. No. 858 of 2005 could not be disposed of, before the last date for submission of options on 30-11-2005, the petitioners herein have approached this Court by way of the present writ petition.
5. The Division Bench of this Court, in W.P.M.P. No. 32832 of 2005 in W.P. No. 25531 of 2005 dated 30-11 -2005, granted interim suspension of the impugned proceedings dated 24-03-2005 read with the consolidated general terms and conditions circulated vide letter dated 04-10-2005 and the order of the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 1959 of 2005 dated 31-10-2005. Contending that the interim order of this Court was an order in rem, and not in personem, and alleging violation of the said orders, the petitioners in W.P. No. 25531 of 2005 have filed C.C. No. 331 of 2006. The petitioners contend that O.A. No. 858 of 2005 filed by them, before the Central Administrative Tribunal, Hyderabad Bench, was transferred to the Principal Bench, New Delhi without even putting them on notice, that it was renumbered as O.A. No. 299 of 2006 and disposed of along with similar transfer applications on 28-02-2006, despite the fact that W.P. No. 25531 of 2005 was pending before this Court and that the Principal Bench at New Delhi had passed orders on 28-02-2006 disposing of all the transfer petitions reiterating their earlier orders in O.A. No. 1963 of 2005 & batch dated 31-10-2005, with the further addition that those, amongst the applicants, who had not exercised their option so far, were allowed a further time of ten days, from 28-02-2006, to exercise their options.
6. Can a writ petition be filed before the Andhra Pradesh High Court, under Article 226 of the Constitution of India, against the order of the Principal Bench of the Central Administrative Tribunal, New Delhi to which bench the O.A, originally instituted before the Hyderabad bench of C.A.T, was transferred to? Are individual members, of an unregistered Association, entitled to file separate writ petitions in different High Courts against the orders passed by the Tribunal in their respective O.As, when the Association has itself filed a writ petition before the Delhi High Court against the order passed in the O.A. instituted by it before the Principal bench of C.A.T, New Delhi? These are some of the questions which we are now called upon to answer on the preliminary objections raised by the respondents herein to the maintainability of these writ petitions.
7. While Sri Nooty Ramamohan Rao, Sri J. Sudheer, and Sri V. Hariharan, learned Counsel for the petitioners, would urge this Court to examine the order of the Tribunal on merits, Sri. P.P. Malhotra, learned Additional Solicitor General, would seek a decision first on these preliminary objections raised by the resondents to the maintainability of the writ petition. We have neither been appraised of the entire gamut of controversy nor the complete facts necessary for adjudication of the order of the Tribunal on merits. We have, therefore, confined our examination only to the objections raised by the respondents to the maintainability of these writ petitions.
8. Facts, necessary to decide the questions relating to the maintainability of these writ petitions, may briefly be taken note of. It would suffice if the facts in W.P. No. 25511 of 2005 are considered. Petitioners were all recruited to the Indian Telecommunications Services (ITS) Group-A. They were subsequently promoted to the next higher Grade in ITS Group-A purely on a temporary and adhoc basis. Recruitment to Telecom Engineering Services (Class-l) was hitherto governed by the Telecom Engineering Services Class-l Recruitment Rules, 1965 and was later replaced by the Indian Telecommunication Services (Group-A) Recruitment Rules, 1992 which came into force on 06-06-1992.
9. The Department of Posts and Telegraphs was bifurcated into two departments in 1985. The Mahanagar Telecom Nigam Limited was established in the year 1986, from out of the Department of Telecommunications, for the Metropolitan Cities of Delhi and Bombay. Two other departments were created under the overall administrative control of the Department of Telecommunications i.e., the Department of Telecom Services (DTS) and the Department of Telecom Operations (DTO). Pursuant to the Telecom Policy 1999, the Government of India decided to transfer the business of providing Telecom Services, hitherto with the Departments of Telecom Services and Telecom operations, to M/s. Bharat Sanchar Nigam Limited, a newly formed company registered under the provisions of the Indian Companies Act, 1956, with effect from 01-10-2000. The procedure, and the manner in which various functions of BSNL and DOT were required be carried out, was spelt out by the government in its office memorandum dated 30-09-2000. The Central Civil Services (Pension) Amendment Rules, 2000 were made and Rule 37-A was inserted in the Central Civil Services (Pension) Rules 1972. The Group-A officers of ITS/TFS were called upon to exercise their option for absorption into MTNL/BSNL pursuant to the impugned office memorandum dated 30-09-2000. The 1st respondent, vide proceedings dated 24-03-2005, called for options for absorption of Group-A officers of Indian Telecom Services (ITS)/Telegraph Traffic Service (TTS)/Telecom Factories Service (TFS) in MTNL/BSNL. By order dated 15-04-2005 it was clarified that the last date of receipt of options was 16-05-2005.
10. Aggrieved by the terms and conditions, of the order dated 24-03-2005, the petitioners herein submitted representations. As there was no response thereto, the petitioners filed O.A. No. 358 of 2005 before the Central Administrative Tribunal Hyderabad Bench on 01 -05-2005 challenging the legality and validity of the order of the 1st respondent dated 24-03-2005. The Union of India instituted transfer applications, before the Principal Bench of the Central Administrative Tribunal, New Delhi, to have the O.As pending before the Hyderabad Bench transferred to the Principal Bench at New Delhi. The Central Administrative Tribunal, Principal Bench, New Delhi, passed a common order on 12-08-2005, in the transfer petitions filed by Union of India and others, holding that, since a large number of petitions had been filed in different benches of the Central Administrative Tribunal pertaining to the options called for, it would be appropriate that all the petitions were transferred and withdrawn to the Principal Bench at New Delhi to avoid contradictory orders. The Principal Bench allowed the transfer petitions and directed that all the petitions be taken on its Board.
11. Challenging the vires of Section 25 of the Administrative Tribunals Act, and seeking a direction to set aside the order passed by the Central Administrative Tribunal, Principal Bench, New Delhi dated 12-08-2005, Sri N. Ramakrishna, one of the applicants in O.A. No. 330 of 2005 before the Central Administrative Tribunal, Hyderabad Bench, Hyderabad, (which O.A, on its transfer to the Principal Bench New Delhi, was renumbered as O.A. No. 1954 of 2005), filed W.P. No. 17770 of 2005 before this Court. The Division Bench, in its order dated 14-09-2005, observed that, as it was an order arising out of the Central Administrative Tribunal, Principal Bench, New Delhi, the remedy open to the petitioner was to approach the Delhi High Court against the said order, which Court had the power to review the same and also the legality of the order and that, under the circumstances, there was no reason to interfere with the impugned order. The Division Bench observed that Section 25 of the Administrative Tribunals Act was in vogue since 1986 onwards. The writ petition and the miscellaneous petitions were dismissed.
12. The Indian Telecom Services Association filed O.A. No. 1963 of 2005 before the Principal Bench of the Central Administrative Tribunal at New Delhi, long after O.A. Nos. 330 and 358 of 2005 were filed, by the petitioners herein, before the Central Administrative Tribunal, Hyderabad bench. Along with several transferred O.As, O.A. No. 1963 of 2005 was also heard and the Central Administrative Tribunal, Principal Bench, New Delhi, in its order dated 31-10-2005, expressed its anguish about the manner in which the ITS association, and its individual members, had filed series of petitions on the same subject before various benches of the Tribunal and different High Courts in the country. The Tribunal noted the submissions of the learned Additional Solicitor General that the applicants had filed nine cases before different High Courts and 37 cases before various benches of the Tribunal and that the applicants had abused the process of law and had resorted to bench hunting on the same issue. The Tribunal also took note of the submissions that the alleged misdemeanor of the applicants and their conduct disentitled them to the relief claimed in the O.As. The Tribunal, in its order dated 31-10-2005, observed:
In majority of OAs under consideration here the ITS Association or its members have filed series of petitions/applications before various High courts and different Benches of this Tribunal on the same cause of action. This indeed is a flagrant abuse of the process of law and casts a serious doubt on intellectual integrity of the concerned Association or its members. We cannot approve such a tendency on their part. Basically, following the settled law on this aspect, their O.As could have been dismissed outrightly. However, instead of taking a technical view of the matter, we have considered them on merits
13. The O.As were all disposed of directing the Secretary, Department of Telecommunications, New Delhi to extend the date of submissions of options upto 30th November 2005, and that, thereafter, the respondents were at liberty to take an appropriate decision on such options within a reasonable period of three months.
14. Even prior to final orders being passed, in O.A. Nos. 1963 of 2005 & batch, dated 31-10-2005, Transfer Petition (Civil) No(s)1028-1040 of 2005 were filed by the Union of India, and others including BSNL, before the Supreme Court under Article 139-A of the Constitution of India seeking transfer of the writ petitions, then pending before the Delhi, Allahabad, Uttaranchal and Gauhati High Courts, to the Supreme Court. In the aforesaid transfer petitions it was stated that, in addition to the seven writ petitions filed in different High Courts, about 37 Original Applications were filed before various Benches of the Central Administrative Tribunal all over the country, by various individuals and/or Associations of Group A officers, seeking the same and/or substantially the same relief. The Supreme Court, in Transfer Petition (Civil) Nos. 1028 to 1040 of 2005, dated 25-11 -2005, passed the following order:
Issue notice.
We are making it clear that during the pendency of the application for transfer none of the proceedings are stayed
15. A similar challenge to the circular dated 24-03-2005, in W.P. No. 87 of 2005 before the Uttaranchal High Court, was rejected by the Division Bench of the Uttaranchal High Court in its order dated 22-11-2005. The Uttaranchal High Court held that since the issues raised were matters falling within the jurisdiction of the Administrative Tribunal, in view of the decision of the Apex Court in L. Chandra Kumar v. Union of India , it was not open for the petitioner to directly approach the High Court and that the writ petition filed directly was not maintainable. The Division bench also noted that the petitioners were all members of the Indian Telecom Service Association which had filed O.A. No. 1963 of 1995 (sic. 2005) before the Central Administrative Tribunal, Principal bench, New Delhi. The contention urged on behalf of the petitioners, that the Association was not a Registered Association, was negatived and the Division Bench held that the practice of the Association moving one forum and its individual members moving different forums in various parts of the country, raising identical issues and seeking identical reliefs, could not be encouraged. The Division Bench noted that the Tribunal had itself deprecated the conduct of the Association, and its members, in its order in O.A. No. 1963 of 2003 and, in such circumstances, declined to exercise its jurisdiction under Article 226 of the Constitution of India.
16. Aggrieved by the order of the Principal Bench of the Central Administrative Tribunal, New Delhi, dated 31-10-2005, the Indian Telecom Services Association, which had directly instituted O.A. No. 1963 of 2005, before the Principal Bench at New Delhi, filed a writ petition before the Delhi High Court. The petitioners herein, who had instituted separate O.As before the Hyderabad Bench of the Central Administrative Tribunal, and whose O.As had been transferred to the Principal Bench of the Central Administrative Tribunal at New Delhi by order dated 12-08-2005, have, however, invoked the jurisdiction of this Court under Article 226 of the Constitution of India.
17. The maintainability of these writ petitions is under challenge, by the respondents in these writ petitions, on the following grounds:
1. Since the order under challenge is that of the Principal Bench of the Central Administrative Tribunal at New Delhi, it is only the Delhi High Court which has territorial jurisdiction and not the A.P. High Court.
2. Since the appellants are members of the Indian Telecom Services Association, and as the Association has already filed a writ petition before the Delhi High Court, individual members of the Association are not entitled to file separate writ petitions against the order of the Central Administrative Tribunal. Their act of filing these writ petitions amounts to "forum shopping".
3. Even if the individual members are held to be entitled to file separate writ petitions, they could only do so before the Delhi High Court since the Association has already filed a Writ Petition before the Delhi High Court.
4. Since institution of the writ petition before the Delhi High Court, by the Association, was prior to the present writ petitions being filed by its individual members before the A.P. High Court, this Court should refuse to exercise its discretion to entertain the writ petition on the ground of "Forum Conveniens", as it is convenient, for the Union of India and to Bharat Sanchar Nigam Limited, if all writ petitions were heard together by the Delhi High Court instead of their having to defend their action in different High Courts all over the country.
18. Sri P.P. Malhotra, Learned Additional Solicitor General, appearing on behalf of the respondents in these writ petitions, would submit that all the petitioners herein are members of the Indian Telecom Service Association. He would rely on the judgment of the Uttaranchal High Court and the order of the Principal Bench of CAT, New Delhi to contend that it was not open to individual members to file separate O. As. in different Benches of the Tribunal or Writ Petitions before different High Courts as it amounted to "Forum Shopping", and since the Association has already filed a Writ Petition in the Delhi High Court, the grievance, if any, of the petitioners, against the order of the Tribunal in the O.As filed by them, can only be agitated before the Delhi High Court. Learned Additional Solicitor General would reiterate that, since the Delhi High Court is seized of the matter, this Court should refuse to exercise its discretion to entertain the writ petition, filed by the individual members, on the doctrine of "Forum Convenient'. Learned Additional Solicitor General would submit that since the Division Bench of this Court, in W.P. 17770 of 2005, has already held that the only remedy available to question the order of the Central Administrative Tribunal, Principal Bench at New Delhi, is before the Delhi High Court, the said judgment is binding on a co-ordinate Bench of this Court and the petitioners must therefore be relegated to approach the Delhi High Court and should not be permitted to challenge the order, of the Principal Bench of the Central Administrative Tribunal, New Delhi in O.A. No. 1963 of 2005 & batch dated 31-10-2005, before this Court. Learned Additional Solicitor General, would refer to the judgment of the Apex Court in L. Chandra Kumar (supra), and to Explanation VI of Section 11 of the Civil Procedure Code, to submit that this Court does not have territorial jurisdiction, to entertain the writ petition, filed against the order of the Principal Bench of the Central Administrative Tribunal at New Delhi, since the order of the Tribunal can be challenged only before the High Court within whose territorial jurisdiction the Tribunal concerned falls. According to the Learned Additional Solicitor General, since the Principal Bench of C.A.T. at New Delhi falls within the territorial jurisdiction of the Delhi High Court, it is only the Delhi High Court whose jurisdiction can be invoked by the petitioners herein and not any other High Court in the country. Learned Additional Solicitor General would submit that, since the order of the Principal Bench at New Delhi is the final outcome of the entire cause of action, the cause of action in its entirety must be held to have arisen only at New Delhi and as such it is only the Delhi High Court which has the territorial jurisdiction and not the A.P. High Court. Learned Additional Solicitor General would place reliance on Kendriya Vidyalaya Sangathan v. Subhas Sharma ; Arun Agarwal v. Nagreeka Exports ; Union of India v. Adani Exports Ltd. ; L. Chandra Kumar (1 supra); Kusum Ingots & Alloys Ltd. v. Union of India and Shree Subhlaxmi Fabrics (P) Ltd. v. Chand Mal Baradia . Learned Additional Solicitor General would place reliance on the interim order passed by the Delhi High Court, in the writ petition filed by the ITS Association, that any option exercised by the petitioners, in terms of the impugned order or any other order passed by the respondents during the pendency of the writ petition, would be subject to the result of the writ petition and, in case the petition is allowed and any adverse order is passed by the respondent against the petitioners, the same would abide by the final orders to be passed in the Writ Petition. Learned Additional Solicitor-General would contend that, even if the writ petitions filed before this Court were held to be maintainable, uniformity would necessitate a similar interim order being passed by this Court and that the earlier interim order be vacated. Reference is also made to the fact that the Karnataka High Court had also vacated the interim order on 29-11-2005.
19. Sri Nooty Ramamohan Rao, learned Counsel for the petitioners, would submit that there is only one forum constituted as a Tribunal, under the Administrative Tribunals Act, called the "Central Administrative Tribunal", that it is only for the purpose of convenience that several coordinate benches of the Tribunal are constituted all over the country, that the Principal Bench at New Delhi does not exercise appellate or revisional powers over other benches of the Tribunal and that the power conferred on it, under Section 25 of the Administrative Tribunals Act, is merely to transfer cases from one bench of the Tribunal to another. Learned Counsel would contend that these procedural safeguards, of cases being transferred from one bench of the Tribunal to another, is only for the convenience of litigants, to provide an inexpensive redressal mechanism and that, in the present case, the order of the Principal Bench dated 12-8-2005, transferring the original applications, filed before different benches of the Tribunal, to the Principal Bench at New Delhi, was only to avoid conflicting decisions of coordinate benches which would have caused needless inconvenience. According to the learned Counsel, since the Central Administrative Tribunal functions in benches throughout the country, the mere fact that the OAs were heard by the Principal Bench located at New Delhi, would not denude this Court of territorial jurisdiction. Learned Counsel would submit that all the petitioners are Central Government employees in Group 'A' services and, as a substantial part of the cause of action has arisen within the territorial jurisdiction of this Court, the petitioners, as citizens, are entitled to invoke its jurisdiction under Article 226 of the Constitution of India. Learned Counsel would submit that, since the very amendment to Article 226 of the Constitution of India, was meant to provide inexpensive access to justice, accepting the contention of the learned Additional Solicitor General, would, in effect, frustrate the very object of such an amendment. Learned Counsel would submit that as this Court would have territorial jurisdiction, even if a part of the cause of action has arisen within its territorial limits, ouster of its jurisdiction should not be readily inferred unless specifically provided for. According to the learned Counsel, it is not as if petitioners herein had, voluntarily, and on their own volition, approached the Principal Bench of the Central Administrative Tribunal, New Delhi questioning the impugned proceedings dated 24-03-2005. They had filed the O.A. before the Hyderabad bench of the Central Administrative Tribunal, since a substantial part of the cause of action had arisen within the State of Andhra Pradesh, and it was only at the behest of the respondents, and by virtue of the powers exercised by the Principal Bench under Section 25 of the Administrative Tribunals Act, were their O. As transferred to the Principal Bench at New Delhi. Learned Counsel would submit that, but for the judicial dicta of the Apex Court in L Chandra Kumar (1 supra) requiring an aggrieved person to invoke the jurisdiction of the Tribunal at the first instance, the petitioners could have directly invoked the jurisdiction of this Court under Article 226 of the Constitution of India since a part of cause of action had arisen within its territorial limits and, by mere reason of their applications being transferred to New Delhi, the jurisdiction of this Court, under Article 226 of the Constitution of India, was not ousted. Learned Counsel would submit that, as the Principal Bench at New Delhi had merely decided an O.A, originally instituted by the petitioners at Hyderabad, the jurisdiction of the A.P. High Court, is not denuded since a substantial part of cause of action has arisen within its territorial limits. Learned Counsel would place reliance on Kendriya Vidyalaya Sangathan (supra) in this regard. Learned Counsel would submit that, it is only in exceptional circumstances where a very small part of the cause of action has arisen within its territorial jurisdiction, and if it were of the view that it would be convenient for the matter to be heard and decided by another High Court within whose territorial jurisdiction a substantial part of the cause of action has arisen, would this Court be justified in refusing to exercise its discretion to entertain a writ petition on the ground of "Forum Conveniens". Learned Counsel would submit that, normally, 'convenience' is that of the citizen or the suitor, and not that of the Union Government or the BSNL. He would place reliance on Kusum Ingots & Alloys Ltd. (supra). Learned Counsel would submit that the contention of "forum shopping" is without any basis since the petitioners had the right to invoke the jurisdiction of the Central Administrative Tribunal, Hyderabad Bench and had, in fact, done so even prior to O.A. No. 1963 of 2005, being filed by the Indian Telecom Services Association before the Principal Bench at New Delhi. Learned Counsel would submit that the respondents had not raised this plea of "forum shopping" when the petitioners herein had filed their Original Applications before the Hyderabad Bench of the Central Administrative Tribunal and had merely sought for its transfer under Section 25 of the Administrative Tribunals Act on the plea that it would be convenient if all the O. As were heard together. According to the Learned Counsel, since the respondents had not objected to the institution of the O. As. by individual members of the Association, when the O.As. were originally filed by them before the Hyderabad bench, it was not open for them to now contend that since the Indian Telecom Services Association had filed a Writ Petition before the Delhi High Court, the petitioners herein, being members of the Association, were not entitled to file writ petitions, against the order of the Principal Bench, New Delhi in the OAs filed by them, before any High Court other than the Delhi High Court. Learned Counsel would submit that merely because the Indian Telecom Services Association had filed a writ petition before the Delhi High Court, the choice of forum of the petitioners herein could not be restricted only to the Delhi High Court, that it was not open to the respondents to dictate before which High Court the order of the Principal Bench of the Central Administrative Tribunal should be challenged, and as the cause of action, in part, may arise in different High Courts, it is for the suitor, more particularly the citizen, to make a choice of the High Court whose jurisdiction he intends to invoke. Learned Counsel would submit that if the respondents were of the view that the writ petitions filed in different High Courts should be heard together it was open for them to seek leave of the Supreme Court under Article 139-A of the Constitution of India. Learned Counsel would submit that a similar request, made earlier by the respondents, had been negatived by the Supreme Court and the proceedings before different High Courts were permitted to be proceeded with. Learned Counsel would submit that the mere fact that the Association had approached the Delhi High Court would not disentitle the individual members from agitating the individual issues raised by them in their respective O.As before this Court, and while the Association may agitate issues which the Association, as a body representing Class-A Officers, is concerned with, there could be distinct individual issues which would necessarily have to be agitated by the individuals in their respective O.As. Learned Counsel would point out that the relief sought for in the writ petition filed by the Indian Telecom Services Association is distinct from the relief sought for by the petitioners and, while the Association had challenged the vires of Rule 37-A of the CCS Pension Rules, the petitioners herein had merely sought for implementation of Rule 37-A(4). Learned Counsel would contend that, since the scope of enquiry in the writ petition filed by the Association is not identical to that of the writ petitions filed by the petitioners herein, the contention that it is convenient to hear these writ petitions together is without basis. Learned Counsel would submit that the relief sought for in prayer (e) of the present writ petition is an individual relief confined to the petitioners and is not among the reliefs sought for by the Association in the writ petitions filed by it before the Delhi High Court. Learned Counsel would submit that the mere fact that the Association had approached the Delhi High Court could not result in fetters being placed on the exercise of judicial review, by this Court, under Article 226 of the Constitution of India.
20. Sri J. Sudheer, learned Counsel for the petitioners, would submit that the power of judicial review under Article 226 of the Constitution of India, a part of the basic structure of the Constitution of India, cannot be taken away by an order passed under Section 25 of the Administrative Tribunals Act. According to the Learned Counsel, requiring the O.A originally instituted before the Hyderabad Bench of the Central Administrative Tribunal, (as a substantial part of cause of action had arisen within the State of A.P.), on its transfer to the Principal Bench at New Delhi under Section 25 of the Administrative Tribunals Act, to be challenged only before the Delhi High Court would, in effect, result in the power of judicial review of the A.P. High Court being taken away by the exercise of the statutory power under Section 25 of the Administrative Tribunals Act. Learned Counsel would submit that, since the basic features of the Constitution cannot be obliterated even by a Constitutional Amendment, the contention that it could be set at naught, by the exercise of a statutory power, must be rejected. Learned Counsel would submit that, as long as a part of the cause of action has arisen within its territorial limits, this Court would not, normally, refuse to exercise jurisdiction merely because another High Court is seized of a similar issue. Learned Counsel would rely on Y. Abraham Ajith v. Inspector of Police , Swamy Atmananda v. Sri Ramakrishna Tapovanarm and Omprakash Srivastava v. Union of India , to submit that since a substantial part of the cause of action has arisen within the State of A.P., this Court has jurisdiction to entertain the writ petition. Learned Counsel would contend that the judgment of the Apex Court in L. Chandra Kumar (supra) cannot be read out of context or as a statute. Learned Counsel would submit that, since the order of the Principal Bench of the Central Administrative Tribunal dated 31-10-2005, along with several other factors, forms part of the cause of action and is not the sole factor, it neither results in ouster of jurisdiction of the A.P. High Court nor does it deprive the petitioners of their constitutional right to seek judicial review before this Court under Article 226 of the Constitution of India. Learned Counsel would submit that since the High Court, under Article 226 of the Constitution of India, exercises judicial superintendence over Administrative Tribunals, the Tribunal, by an order under Section 25 of the Administrative Tribunals Act, cannot negate exercise of such power. Learned Counsel would rely on Sections 23, 24 and 25 of the Civil Procedure Code to submit that the power of transfer is always exercised by a higher Court to transfer cases from one lower Court to another and while a higher Court could, by an order of transfer, take away the jurisdiction of a lower Court, it was not open to a lower Court to take away the jurisdiction of a higher Court. Learned Counsel would submit that, at best, the High Court could, on its own, part with its jurisdiction and that such a power could not be usurped by the Tribunal on the plea of "Forum Conveniens". Learned Counsel would submit that the very purpose of constituting different benches of the Tribunal, all over the country, was the convenience of a citizen, that the convenience of a suitor or a citizen would be the primary consideration in deciding the convenient forum and that the convenience of the respondents located at New Delhi can never be the criteria to decide as to whether the A.P. High Court should exercise or refuse to exercise its jurisdiction on the ground of "Forum Conveniens". Learned Counsel would rely on Director General Ordnance Factories Employees' Association v. Union of India and Director General Ordnance Factories to submit that it is the writ petition, filed by the ITS Association at New Delhi, which is not maintainable since the ITS Association, being an unregistered body, was not entitled to invoke the jurisdiction of the Delhi High Court under Article 226 of the Constitution of India and that the individual members of the association, were entitled to agitate their individual grievances before the appropriate High Court within whose territorial jurisdiction the cause of action, either wholly or in part, has arisen. Learned Counsel would submit that O.A. No. 1954 of 2005, filed by the petitioners in W.P. No. 25511 of 2005, was also transfered along with other O.As and, while the respondents had sought transfer of the O.A. from the Hyderabad Bench to the Principal Bench at New Delhi, it was not contended that since the O.A. filed by the ITS Association was being heard, the O.A. filed by the individual members should not be entertained at all.
21. Sri V. Hariharan, learned Counsel for the petitioners in W.P. Nos. 26712 of 2005 and 12161 of 2006, would submit that the petitioners herein had filed O.A. No. 330 of 2005 before the Central Administrative Tribunal, Hyderabad bench in April 2005, that an interim order was passed in their O.A. by the Hyderabad bench on 03-05-2005, and since the O.A. instituted by the ITS Association before the Principal bench at New Delhi was only in June 2005, long after the petitioners had approached the Central Administrative Tribunal Hyderabad bench, the petitioners, having filed their O.A. earlier, could not be accused of "Forum Shopping". Learned Counsel would submit that only one, amongst the several applicants in O.A. No. 330 of 2005, had filed W.P. No. 17770 of 2005, and it is only in so far as that individual is concerned was the judgment in W.P. No. 17770 of 2005, (ajudgment inter-parties and which has attained finality), binding, and with regards the other applicants, as they were not parties to W.P. No. 17770 of 2005, it would, at best, constitute a precedent and would not be automatically binding. Learned Counsel would submit that, since the question as to whether the A.P. High Court had territorial jurisdiction to entertain a challenge to the order passed in an O.A, instituted earlier before the Hyderabad bench of the Central Administrative Tribunal and later transferred under Section 25 of the Administrative Tribunals Act to the Principal bench at New Delhi, was not in issue before the Division bench of this Court in W.P. No. 17770 of 2005 and in as much as it was only the vires of Section 25 of the Administrative Tribunals Act which was the subject matter of challenge in the writ petition, the observations made by the Division bench would not constitute a binding precedent. Learned Counsel would submit that the judgment of this Court, in W.P. No. 17770 of 2005, is neither a binding precedent nor would it amount to res judicata disentitling the other applicants in the said O.A. from invoking the jurisdiction of this Court. Learned Counsel would submit that there are several Tribunals located, under different enactments, in different parts of the country such as the Appellate Authority under the Employees Provident Fund Act, the Tribunals constituted under the Companies Act, the Central Excise Act etc, and, as long as a part of cause of action arises within the State of A.P, the aggrieved party is always entitled to invoke the jurisdiction of this Court, under Article 226 of the Constitution of India, against the order of these Tribunals, wherever they may be located, even if their location is outside the territorial limits of this Court.
22. Before we consider the rival contentions, it is useful to extract the relevant Constitutional and Statutory provisions and the applicable rules. Articles 226 of the Constitution of India confers powers on the High Court to issue writs.
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 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.
[(3) Where any party against whom an interim order whether by way of injunction or stay or in any other manner, is made on. or in any proceedings relating to, a petition under Clause (1). without-
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order, and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or as the case may be, the expiry of the said next day. stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32.
23. The Administrative Tribunals Act, 1985, under Section 1(2)(a) thereof, extends, in so far as it relates to the Central Administrative Tribunal, to the whole of India. Section 3(aa) defines 'Administrative Tribunal' in relation to a State, to mean an Administrative Tribunal for the State or, as the case may be, the Joint Administrative Tribunal for that State and any other State or States. Section 3(d) defines 'appropriate Government' to mean (i) in relation to the Central Administrative Tribunal or a Joint Administrative Tribunal, the Central Government; (ii) in relation to a State Administrative Tribunal, the State Government. Section 3(e) defines 'Bench' to mean a Bench of a Tribunal. Section 3(f) defines 'Central Administrative Tribunal' to mean the Administrative Tribunal established under Sub-section (1) of Section 4. Section 3(q) defines 'service matters and Section 3(t) defines Tribunal' to mean the Central Administrative Tribunal or a State Administrative Tribunal or a Joint Administrative Tribunal.
24. Chapter II of the Administrative Tribunals Act relates to establishment of Tribunals and Benches and under Section 4 thereof, the Central Government shall, by notification, establish an Administrative Tribunal to be known as the Central Administrative Tribunal, to exercise jurisdiction, powers and authority conferred on the Central Administrative Tribunal by, or under, the Administrative Tribunals Act. Section 4(2) enables the Central Government, on receipt of a request in this behalf from any State Government, to establish, by notification, an Administrative Tribunal for the State to be known as the State Administrative Tribunal to exercise jurisdiction, powers and authority conferred on the Administrative Tribunal for the State by, or under, the Administrative Tribunals Act. Section 5 relates to composition of Tribunals and Benches thereof. Sub-section (7) of Section 5 provides that, subject to the other provisions of the Act, the Benches of the Central Administrative Tribunal shall ordinarily sit at New Delhi, (shall be the Principal Bench), Allahabad, Calcutta, Madras, New Bombay and at such other places as the Central Government may, by notification, specify.
25. Chapter III relates to Jurisdiction, powers and authority of Tribunals and Section 14 thereunder relates to the Jurisdiction, Powers and Authority of the Central Administrative Tribunal. Chapter IV of the Administrative Tribunals Act, prescribes the procedure and Section 19 thereunder relates to applications to Tribunals. Section 25 confers power on the Chairman to transfer cases from one Bench to the other and reads as under:
25. Power of Chairman to transfer cases from one Bench to another On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal, to any other Bench.
26. Section 28, as it existed prior to the judgment of the Supreme Court in L. Chandra Kumar (supra), excluded the jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution.
27. In exercise of the powers conferred under Sections 35 and 36 of the Administrative Tribunals Act, the Central Government made the Central Administrative Tribunal (Procedure) Rules, 1987. Rule 2(k) defines the Tribunal' to mean the Central Administrative Tribunal under Sub-section (1) of Section 4 of the Act. Rule 4 prescribes the procedure for filing applications. Rule 5 relates to presentation and scrutiny of applications. Rule 6 prescribes the place of filing application and reads thus:
Rule 6: Place of filing application (1) An application shall ordinarily be filed by an applicant with the Registrar of the Bench within whose jurisdiction-
(i) the applicant is posted for the time being, or
(ii) the cause of action, wholly or In part, has arisen:
Provided that with the leave of the Chairman the application may be filed with the Registrar of the Principal Bench and subject to the orders under Section 25, such application shall be heard and disposed of by the Bench which has jurisdiction over the matter.
(2) Notwithstanding any thing contained in Sub-rule (1) persons who have ceased to be in service by reason of retirement, dismissal or termination of service may at his option file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application.
28. Rule 10, which relates to plural remedies, provides that an application shall be based upon a single cause of action and may seek one or more reliefs provided that they are consequential to one another. Rule 13 provides that the Tribunal shall notify to the parties the date and place of hearing of the application in such manner as the Chairman may, by general or special order, direct.
CHALLENGE TO AN ORDER OF THE PRINCIPAL BENCH OF THE CENTRAL ADMINISTRATIVE TRIBUNAL AT NEW DELHI-TERRITORIAL JURISDICTION OF THE ANDHRA PRADESH HIGH COURT NOT OUSTED IF THE CAUSE OF ACTION, EVEN IN PART, HAS ARISEN WITHIN ITS TERRITORIAL LIMITS.
29. In Arun Agarwal (supra) the Supreme Court observed that the question regarding the jurisdiction of the Court was required to be decided as a preliminary issue. In Shree Subhlaxmi Fabrics(6 supra) it was held that, as the plea of jurisdiction goes to the very root of the matter, the High Court should go deep into the matter and until a clear finding is recorded that the Court has territorial jurisdiction to try the suit, no injunction should be granted. Needless to state that, if this Court does not have territorial jurisdiction, the writ petition is liable to be dismissed as not maintainable, in which event the interim order of suspension granted earlier would no longer remain in force.
30. Article 226(2) of the Constitution of India empowers the High Court to issue directions/orders/writs to any authority, in exercise of its powers under Clause (1) of Article 226, in relation to the territories within which the cause of action, wholly or in part, arises notwithstanding that the seat of such authority is not within those territories. The location of the Principal Bench of the Central Administrative Tribunal at New Delhi, outside the territorial limits of the A.P. High Court, notwithstanding, even if a part of the cause of action has arisen within its territorial limits, the jurisdiction of the A.P. High Court, and its power to issue a writ of certiorari to quash the impugned order of the Tribunal, would not be ousted. The test to determine territorial jurisdiction of a High Court is not the location of the Authority/Tribunal or the residence of the person to whom the writ is to be issued or even the seat of the Government but whether the "cause of action, either wholly or in part", has arisen within its territorial limits.
31. In this context, it is necessary to trace, in. brief, the history of the legislation of Article 226 of the Constitution of India.
32. Article 226 of the Constitution of India, as it originally stood, read thus:
226. (i) 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 (I) shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32.
33. In M.K. Ranganathan v. The Madras Electric Tramways (1904) Ltd., Subbarao, J, (as he then was), observed:
...To put in other words though the tribunal is situated outside the territorial jurisdiction of the High Court if it purports to exercise jurisdiction in regard to the parties or the subject-matter which are within the territorial jurisdiction of the High Court the tribunal must be deemed to have functioned within the jurisdiction of the High Court. But it is said that the Judicial Committee were not considering a case where the subject-matter and the parties are within the jurisdiction of the High Court but the tribunal whose order is sought to be quashed is situate outside its jurisdiction....
...The jurisdiction conferred by Article 226 of the Constitution is to protect the fundamental and other rights of parties within the territorial jurisdiction of the High Court. The Article does not expressly say that the authority or tribunal interfering with such rights should reside physically within the territorial jurisdiction. If a tribunal or authority exercises jurisdiction within the territories affecting such rights it may reasonably be construed that the authority or the tribunal functioned within the territorial jurisdiction of the High Court and therefore is amenable to its jurisdiction. Further in this case it is not necessary to invoke any fiction as the appellate tribunal though it has its headquarters at Bombay is an itinerant body functioning in different parts of the country and indeed in this case it functioned during some part of the enquiry at any rate within the territorial jurisdiction of this Court. I, therefore, hold that this Court has jurisdiction to issue a writ of certiorari against the order of the Labour Appellate Tribunal (emphasis supplied)
34. The view taken by the Madras High Court, and a few other High Courts, was that, even if the authority or Tribunal was situated outside the territorial limits of the High Court, if it purported to exercise jurisdiction in regard to the parties or the subject-matter which were within the territorial jurisdiction of the High Court, then the authority or Tribunal must be deemed to have functioned within the jurisdiction of the High Court.
35. In Lt. Col. Khajoor Singh v. Union of India , Sinha C.J, speaking for the majority, observed:
...Now it is clear that the jurisdiction conferred on the High Court by Article 226 does not depend upon the residence or location of the person applying to it for relief; it depends only on the person or authority against whom a writ is sought being within those territories. It seems to us therefore that it is not permissible to read in Article 226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court's jurisdiction. Thus if a person residing or located in Bombay, for example, is aggrieved by an order passed by an authority located, say, in Calcutta, the forum in which he has to seek relief is not the Bombay High Court though the order may affect him in Bombay but the Calcutta High Court where the authority passing the order is located. It would, therefore, in our opinion be wrong to introduce in Article 226 the concept of the place where the order passed has effect in order to determine the jurisdiction of the High Court which can give relief under Article 226. The introduction of such a concept may give rise to confusion and conflict of jurisdictions. Take, for example, the case of an order passed by an authority in Calcutta, which affects six brothers living, say, in Bombay, Madras, Allahabad, Jabalpur, Jodhpur and Chandigarh. The order passed by the authority in Calcutta has thus affected persons in six States. Can it be said that Article 226 contemplates that all the six High Courts have jurisdiction in the matter of giving relief under it? The answer must obviously be "No", if one Is to avoid confusion and conflict of jurisdiction. As we read the relevant words of Article 226 (quoted above) there can be no doubt that the jurisdiction conferred by that Article on a High Court is with respect to the location or residence of the person or authority passing the order and there can be no question of introducing the concept of the place where the order is to have effect in order to determine which High Court can give relief under it. It is true that this Court will give such meaning to the words used in the Constitution as would help towards its working smoothly. If we were to introduce in Article 226 the concept of the place where the order is to have effect we would not be advancing the purposes for which Article 226 has been enacted. On the other hand, we would be producing conflict of jurisdiction between various High Courts as already shown by the illustration given above. Therefore, the effect of an order by whomsoever it is passed can have no relevance in determining the jurisdiction of the High Court which can take action under Article 226. Now, functioning of a Government is really nothing other than giving effect to the orders passed by it. Therefore it would not be right to introduce in Article 226 the concept of the functioning of Government when determining the meaning of the words "any person or authority within those territories". By introducting the concept of functioning in these words we shall be creating the same conflict which would arise if the concept of the place where the order is to have effect is introduced in Article 226. There can, therefore, be no escape from the conclusion that these words in Article 226 refer not to the place where the Government may be functioning but only to the place where the person or authority is either resident or is located. So far therefore as a natural person is concerned, he is within those territories if he resides there permanently or temporarily. So far as anauthorfty (other than a Government) is concerned, it is within the territories if its office is located there. So far as a Government is concerned it is within the territories only if its seat is within those territories.
The seat of a Government is sometimes mentioned in the Constitutions of various countries but many a time the seat is not so mentioned. But whether the seat of a Government is mentioned in the Constitution or not, there is undoubtedly a seat from which the Government as such functions as a fact. What Article 226 requires is residence or location as a fact and if therefore there is a seat from which the Government functions as a fact even though that seat is not mentioned in the Constitution the High Court within whose territories that seat is located will be the High Court having jurisdiction under Article 226 so far as the orders of the Government as such are concerned. Therefore, the view taken in Election Commission, India v. Saka Venkata Subba Rao and K.S. Rashid and Son v. Income Tax Investigation Commission that there is two-fold limitation on the power of the High Court to issue writs etc. under Article 226, namely, (i) the power is to be exercised 'throughout the territories in relation to which it exercises jurisdiction', that is to say, the writs issued by the court cannot run beyond the territories subject to its jurisdiction, and (ii) the person or authority to whom the High Court is empowered to issue such writs must be "within those territories" which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories, is the correct one.
This brings us to the second point, namely, whether it is possible to introduce the concept of cause of action in Article 226 so that the High Court in whose jurisdiction the cause of action arose would be the proper one to pass an order thereunder...
The question whether the concept of cause of action could be introduced in Article 226 was also considered in Saka Venkata Subba Rao case and was repelled in these words:
The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under Article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority 'within the territories' in relation to which the High Court exercises jurisdiction.
Article 226 as it stands does not refer anywhere to the accrual of cause of action and to the jurisdiction of the High Court depending on the place where the cause of action accrues being within its territorial jurisdiction. Proceedings under Article 226 are not suits; they provide for extraordinary remedies by a special procedure and give powers of correction to the High Court over persons and authorities and these special powers have to be exercised within the limits set for them. These two limitations have already been indicated by us above and one of them is that the person or authority concerned must be within the territories over which the High Court exercises jurisdiction. Is it possible then to overlook this constitutional limitation and say that the High Court can issue a writ against a person or authority even though it may not be within its territories simply because the cause of action has arisen within those territories? It seems to us that it would be going in the face of the express provision in Article 226 and doing away with an express limitation contained therein if the concept of cause of action were to be introduced in it...
...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.
...In this case our reconsideration of the matter has confirmed the view that there is no place for the introduction of the concept of the place where the impugned order has effect or of the concept of functioning of a Government, apart from the location of its office concerned with the case, or even of the concept of the place where the cause of action arises in Article 226 and that the language of that Article is plain enough to lead to the conclusion at which the two cases of this Court referred to above arrived. If any inconvenience is felt on account of this interpretation of Article 226 the remedy seems to be a constitutional amendment. There is no scope for avoiding the inconvenience by an interpretation which we cannot reasonably, on the language of the Article, adopt and which the language of the Article does not bear...
(emphasis supplied)
36. Subba Rao J, (as he then was), in his landmark dissent, said:
...I have had the advantage of perusing the judgment prepared by my Lord the Chief Justice. I regret my inability to agree. I would not have ventured to differ from his weighty opinion but for the fact that the acceptance of the contention of the respondents would practically deprive the majority of citizens of our country of the benefit of cheap, expeditious and effective remedy given to them under Article 226 of the Constitution against illegal acts of the Union Government. If the relevant provisions are clear and unambiguous, the said contention must prevail however deleterious the effect may be to public interest. But if the words of the Article are capable of two or more interpretations, one that will carry out the intention of the Constituent Assembly and the other that would defeat it, the former interpretation must necessarily be accepted. We must also bear in mind that the provisions of the Constitution are not "mathematical formulae which have their essence in mere form". It being an organic statute, its provisions must be construed broadly and not in a pedantic way, but without doing violence to the language used....
But the framers of our Constitution with the background of centuries of servility, with the awareness of the important role played by the High Court of England in protecting the rights of its citizens when they were infringed by executive action, with the knowledge of the effective and impartial part played by the High Courts in pre-independence India within the narrow limits of their jurisdiction to protect the rights of the citizens of our country, with a vision to prevent autocracy raising its ugly head in the future, declared the fundamental rights in Part III of the Constitution, conferred powers on the High Courts to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs for the enforcement of the fundamental rights or for any other purpose. In short, any person of India can approach an appropriate High Court to protect his rights against any person, authority or any Government if his fundamental right or any other right is infringed by the said person, authority or Government. If the contention of the respondents be accepted, whenever the Union Government infringes the right of a person in any remote part of the country, he must come all the way to New Delhi to enforce his right by filing a writ petition in the Circuit Bench of the Punjab High Court. If a common man residing in Kanyakumari, the southern-most part of India, is illegally detained in prison, or deprived of his property otherwise than by law, by an order of the Union Government, it would be a travesty of fundamental rights to expect him to come to New Delhi to seek the protection of the High Court of Punjab. This construction of the provisions of Article 226 would attribute to the framers of the Constitution an intention to confer the right on a person and to withhold from him for all practical purposes the remedy to enforce his right against the Union Government. Obviously it could not have been the intention of the Constituent Assembly to bring about such an anomalous result in respect of what they conceived to be a cherished right conferred upon the citizens of this country. In that event, the right conferred turns out to be an empty one and the object of the framers of the Constitution is literally defeated.
...The demarcation between the Union Government and the State Government is, therefore, not territorial but only subject wise and both the Governments function within the State. With this background it is easy to perceive that "any Government" must include the Union Government, for two State Governments cannot administer the same State, though for convenience or as a temporary arrangement, the offices of one State may be located in another State. Then it is asked why the Article confers power to issue writs against any Government only in appropriate cases. There are two answers to this question. Till the Constitution was framed there was no power in a High Court to issue a writ even against the Provincial Government. The Constitution conferred for the first time a power on the High Court to issue a writ not only against the State Government but also the Union Government. As the Union Government has sway over not only the State in question but beyond it, it became necessary to administer a caution that a writ can only be issued in appropriate cases. The High Court's jurisdiction is limited in the matter of issuing writs against the Union Government, for it cannot issue writs against it in respect of a cause of action beyond its territorial jurisdiction. There may also be a case where the secretariat of one of the State Governments is located in another State temporarily. In such a case also the High Court of the latter State cannot issue writs against that State Government as it is not appropriate to issue such writs, for the cause of action accrues within the former State.
...The question that immediately arises is, what is the situs of such a Government? There is no statutory situs. For convenience of administration, the officers of such Government may stay at one place, or they may be distributed in different places; the President may reside in one place, the Prime Minister in another, the Ministers in a third place and the officers through whom the President exercises his powers in a place different from the rest. What happens when the Secretariat remains in New Delhi and the President resides for some months in a year in, say, Hyderabad? Contrary-wise, what would be the position if the President stays in New Delhi and the entire or part of the Secretariat or some of the Ministers stay in Hyderabad? It is, therefore, not possible to apply the test of residence or location in the absence of any statutory situs. The Union Government has no fixed legal abode; it is present throughout the territories over which it exercises jurisdiction and in respect whereof it can make effective and binding orders in the field allotted to it by the Constitution. The constitutional situs of the Union Government is the entire territories of the Union and it is "within" the territories of India and, therefore, within the territories of every State...
The suit by or against the Union Government shall be filed in a court which has jurisdiction to entertain such a suit, having regard to the provisions of Sections 15 to 20 of the said Code. On the same analogy, it may be held that the Union of India has no legal situs In a particular place and a writ petition can be filed against it in a place within the jurisdiction of the High Court wherein the cause of action accrues.
The foregoing discussion may be summed up in the following propositions: (1) The power of the High Court under Article 226 of the Constitution is of the widest amplitude and it is not confined only to issuing of writs in the nature of habeas corpus, etc., for it can also issue directions or orders against any person orauthority, including in appropriate cases any Government. (2) The intention of the framers of the Constitution is clear, and they used in the Article words "any Government" which in their ordinary significance must include the Union Government. (3) The High Court can issue a writ to run throughout the territories in relation to which it exercises jurisdiction and to the person or authority or Government within the said territories. (4) The Union Government has no constitutional situs in a particular place, but it exercises its executive powers in respect of matters to which Parliament has power to make laws and the power in this regard is exercisable throughout India; the Union Government must, therefore, be deemed in law to have functional existence throughout India. (5) When by exercise of its powers the Union Government makes an order infringing the legal right or interest of a person residing within the territories in relation to which a particular High Court exercises jurisdiction, that High Court can issue a writ to the Union Government, for in law it must be deemed to be "within" that State also. (6) The High Court by issuing a writ against the Union Government is not travelling beyond its territorial jurisdiction, as the order is issued against the said Government "within" the State. (7) The fact that for the sake of convenience a particular officer of the said Government issuing an order stays outside the territorial limits of the High Court is not of any relevance, for it is the Union Government that will have to produce the record or carry out the order, as the case may be. (8) The orders issued by the High Court can certainly be enforced against the Union Government, as it is amenable to its jurisdiction, and if they are disobeyed it will be liable to contempt. (9) Even if the officers physically reside outside its territorial jurisdiction, the High Court can always reach them under the Contempt of Courts Act, if they choose to disobey the orders validly passed against the Union Government which cannot easily by visualized or ordinarily be expected. (10) The difficulties in communicating the orders pertain to the rules of procedure and adequate and appropriate rules can be made for communicating the same to the Central Government or its officers...
(emphasis supplied)
37. In Lt. Col. Khajoor Singh (supra), the words 'within those territories', as used in Article 226 of the Constitution of India, was construed by the Supreme Court to imply that the person, or authority, to whom the High Court was empowered to issue writs, must be amenable to its jurisdiction either by residence or location within those territories. The Supreme Court observed that the concept of "cause of action" could not be introduced in Article 226 as the express provision contained therein required that the person or authority, to whom the writ is to be issued, should reside in or be located within the territories over which the High Court had jurisdiction. While recognizing that this may result in inconvenience to persons residing far away from New Delhi who were aggrieved by some order of the Government of India, the Supreme Court held that while that may be a reason for making a suitable Constitutional amendment in Article 226, the argument of inconvenience could not affect the plain language of Article 226, nor could 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 Article 226 i.e., (1) the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction i.e., the writs issued by the Court could not run beyond the territories subject to its jurisdiction, and (ii) 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.
38. The Statement of Objects and Reasons appended to the Constitution (Fifteenth Amendment) Bill, 1962, which was enacted as the Constitution Fifteenth Amendment) Act, 1963, to the extent relevant, reads thus:
...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 arise may also have jurisdiction to issue appropriate directions, orders or writs.
39. Article 226 of the Constitution of India, as amended by the Constitution (Fifteenth Amendment) Act 1963, is as under:
8. Amendment of Article 226: In Article 226 of the Constitution, a. after Clause (1), the following Clause shall be inserted, namely:
(1A) 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 no within those territories.;
b. in Clause (2), for the word, brackets and figure "Clause (1)", the words, brackets, figures and letter "Clause (1) or Clause (1 A)" shall be substituted.
40. As only the Punjab High Court had jurisdiction, under the then existing provisions of Article 226, with respect to the Central Government, which involved considerable hardship to litigants from distant places, the fifteenth amendment to the Constitution inserted Clause (1 -A) introducing the concept of "cause of action either wholly or in part", arising within the territories of the High Court, as enabling the High Court to exercise jurisdiction, notwithstanding that the seat/location of such government or authority was not within those territories. The limitation of residence/location of the authority, in the pre-amended Article 226, was removed and the territorial jurisdiction under Article 226 was widened.
41. Articles 226 and 227 of the Constitution of India were again amended and Articles 226-A and Part XIV-A relating to Tribunals, and containing Articles 323-A and 323-B, were introduced by the Constitution (Forty Second Amendment) Act, 1976. Clause (1-A) of the pre-amended Article 226 became Clause (2) of the substituted Article 226. Provision was made, for Constitution of Administrative and other Tribunals, to reduce the mounting arrears in High Courts and to secure speedy disposal of service matters and other matters of special importance.
42. Article 226 was again amended by the Constitution (Forty Fourth Amendment) Act, 1978. Since, however, Clause (2) thereof, which relates to the territorial jurisdiction of the High Court, was not altered, it is not necessary for us to refer to the other amendments.
43. As a result of the amendment of Article 226, by insertion of Clause (1-A) by the Fifteenth Amendment to the Constitution, which became Clause (2) under the Forty-second Amendment, the basis of the earlier pronouncements of the Supreme Court, that the authority to whom the High Court was empowered to issue writs must be "within those territories" which implied that the authority must be amenable to the jurisdiction either by residence or location within those territories, was removed and the concept of "Cause of Action" was introduced. Consequent thereto, even in cases where the relief sought for was against an authority located outside its territorial limits, the jurisdiction of the High Court to issue writs against such an authority was not ousted provided that the "Cause of Action" arose, even if it be in part, within its territorial limits.
44. In ONGC v. Utpal Kumar Basu , the Supreme Court observed:
...On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders 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....
(emphasis supplied)
45. In Om Prakash Srivastava (supra), the Supreme Court held:
...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, or writ is issued is not within the said territories....
...In the instant case the High Court has not dealt with the question as to whether it had jurisdiction to deal with the writ petition. It only observed that the Delhi High Court may have jurisdiction, but the issues relating to conditions of prisoners in the State of U.P. can be more effectively dealt with by the Allahabad High Court. As noted supra, there were two grievances by the appellant. But only one of them i.e., the alleged lack of medical facilities has been referred to by the High Court. It was open to the Delhi High Court to say that no part of the cause of action arose within the territorial jurisdiction of the Delhi High Court. The High Court; in the impugned order does not say so. On the contrary, it says that jurisdiction may be there, but the Allahabad High Court can deal with the matter more effectively. That is certainly not a correct way to deal with the writ petition. Accordingly, we set aside the impugned order of the High Court and remit the matter to it for fresh hearing on merits. A prayer has been made for release of the appellant on parole for the reasons indicated in the application. We are not inclined to pass any order on the said application. The same is rejected....
(emphasis supplied)
46. While the Delhi High Court has jurisdiction to entertain a writ petition, filed against the order of the Principal Bench of the Central Administrative Tribunal at New Delhi, as the order of the Tribunal constitutes a part of the cause of action, it does not result in the ouster of jurisdiction of other High Courts in the country, within whose territorial limits some other part of the "cause of action", may also arise.
47. In support of his contention that it is only the Delhi High Court before which an order, of the Principal Bench of the Central Administrative Tribunal at New Delhi, can be challenged, learned Additional Solicitor General would rely on the observations in L. Chandra Kumar (supra).
...To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High-Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.
It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a first appellate court. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of the Tribunals under Article 227 of the Constitution...Having regard to both the aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls.
Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned.
The directions Issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a Division Bench of the respective High Courts will, however, come into effect prospectively i.e. will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceedings, we have invoked the doctrine of prospective overruling so as not to disturb the procedure in relation to decisions already rendered.
In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated....
(emphasis supplied)
48. Learned Additional Solicitor General would contend that since the Supreme Court, in L. Chandra Kumar (supra), has held that all decisions of the Tribunal shall be subject to the jurisdiction of the High Court under Article 226 of the Constitution of India, within whose territorial jurisdiction the Tribunal concerned falls, and as the Principal Bench of the Central Administrative Tribunal at New Delhi falls within the territorial jurisdiction of the Delhi High Court, it is only the Delhi High Court which has jurisdiction, to the exclusion of all other High Courts in the country.
49. It is well settled that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence, here and there from a judgment, and to build upon it. (State of Orissa v. Sudhansu Sekhar Misra ).
50. The scope of Article 226(2), and what constitutes territorial jurisdiction thereunder, was neither in issue before nor was it considered by the Apex Court in L. Chandra Kumar (1 supra). It is necessary to note that the Supreme Court, in L. Chandra Kumar (supra), held that the power of judicial review of the High Court, under Article 226 of the Constitution of India, is part of the basic feature/structure of the Constitution and that such a power cannot be taken away even by a Constitutional Amendment. Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B, to the extent they excluded the jurisdiction of the High Court under Article 226 of the Constitution of India, were declared unconstitutional. Similarly the "exclusion of jurisdiction" clause, under Section 28 of the Administrative Tribunals Act, was struck down. Can it be said that the Supreme Court, in L. Chandra Kumar (supra), having declared that the exclusionary clauses in the other provisions of the Constitution, and in other legislations which had sought to oust the jurisdiction of the High Court under Article 226 of the Constitution of India, was unconstitutional, had restricted, not specifically, but by necessary implication, the powers of the High Court, under Article 226 of the Constitution of India, to issue writs only against authorities/Tribunals which are located within its territorial limits, contrary to the plain language of Article 226(2)? The answer thereto can only be in the negative.
51. The Tribunals, referred to in the judgment of the Apex Court in L. Chandra Kumar (supra), are not only Administrative Tribunals under Article 323-A but also other special Tribunals under Article 323-B of the Constitution of India. Even amongst the Administrative Tribunals, under Article 323-A, the State Administrative Tribunals, located within the territorial limits of a State in which the concerned High Court exercises jurisdiction, would fall within its territorial limits. For instance, the A.P. Administrative Tribunal, located within the State of Andhra Pradesh, would fall within the territorial jurisdiction of the High Court of Andhra Pradesh.
52. The Central Administrative Tribunal, however, stands on a different footing. As seen from the provisions of the Administrative Tribunals Act, only one Central Administrative Tribunal is constituted for the entire country under Section 4 thereof. In Kendriya Vidyalaya Sangathan (supra), the Supreme Court observed:
...As regards the territorial operation of the Administrative Tribunals Act, as my learned brother has pointed out, it extends to the whole of India including Jammu and Kashmir. The Full Bench of the High Court has also recognised this position and clarified that the Tribunal will function as an additional or alternative forum without affecting the constitutional jurisdiction of the High Court. Therefore, the contention that the machinery under the Administrative Tribunals Act to decide the disputes or complaints specified therein cannot function within the State of J&K, does not deserve further consideration....
(emphasis supplied)
53. Under Section 5(7) of the Administrative Tribunals Act, the Central Administrative Tribunal sits in different benches, the Principal Bench at New Delhi and other benches initially at Allahabad, Calcutta and Bombay and at such other places which the Central Government is empowered, by notification, to specify. Among the places notified is Hyderabad where also a Bench of the Central Administrative Tribunal is located.
54. The following words "all decisions of Tribunals will be subject to the jurisdiction of the High Court under Article 226 of the Constitution before a Division bench of the High Court within whose territorial jurisdiction the particular Tribunal falls", in L. Chandra Kumar (supra) are relied upon to contend that since the Principal Bench of the Central Administrative Tribunal at New Delhi falls within the territorial jurisdiction of the Delhi High Court, the impugned order, in O.A. No. 1963 of 2005 and batch dated 31-10-2005, can be subjected to challenge only before the Delhi High Court. The distinction, between the Tribunal and its benches, should not be lost sight of. While there is only one Central Administrative Tribunal, constituted under the Administrative Tribunals Act, its benches are located in different parts of the country. Since the Apex Court in L. Chandra Kumar (supra) did not hold that the decision of the bench of the Tribunal would determine the jurisdiction of the High Court within whose territorial jurisdiction such benches of the Tribunal fall, the contention, that the judgment of the Supreme Court in L. Chandra Kumar (supra) requires an order of the Principal Bench of the Central Administrative Tribunal at New Delhi to be challenged only before the Delhi High Court, must fail. There are various Tribunals, constituted under different enactments, located in different parts of the country. For instance, the Appellate Tribunal under the Employees Provident Fund Act is located at New Delhi. An employer, who carries on business in Andhra Pradesh, if he is aggrieved by an order passed by the Commissioner of Provident Fund at Hyderabad, is entitled to prefer an appeal to the Appellate Tribunal located at New Delhi. Can it be said that, since the Appellate Tribunal located at New Delhi has passed its order at New Delhi, it is only the Delhi High Court and not the Andhra Pradesh High Court whose jurisdiction can be invoked to challenge such an order? Would that not amount to bringing back the limitation of "situs or location" which was removed by the Fifteenth Amendment to the Constitution?
55. The test to determine territorial jurisdiction of a High Court, as held above, is not the location of the Authority/Tribunal, but "the Cause of Action, whether wholly or in part". In Kusum Ingots & Alloys Ltd. (5 supra), the Supreme Court observed:
...When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority....
(emphasis supplied)
56. This matter can be examined from another angle also. The petitioners herein, had instituted their respective O.As originally before the Hyderabad Bench of the Central Administrative Tribunal. Against the order of the Hyderabad Bench of C.A.T, they were entitled to invoke the jurisdiction of the A.P. High Court, as the Hyderabad Bench is located within its territorial limits. It is only, by exercise of the powers under Section 25 of the Administrative Tribunals Act, were these O.As transferred to the Principal Bench at New Delhi. Accepting the contention of the learned Additional Solicitor General, that an order of the Principal Bench of the Central Administrative Tribunal, at New Delhi, can only be challenged in the Delhi High Court, would mean that, by an order passed in exercise of a statutory power, the constituent power of juacial review of the A.P. High Court under Article 226 of the Constitution of India, which has been held to be a part of the basic feature of the Constitution of India, can be taken away, despite the "Cause of Action" in part having arisen within its territorial limits. We see no reason to accept the submission that the Supreme Court in L. Chandra Kumar (1 supra) had impliedly placed such limits on the exercise of the powers of judicial review by the High Court. Having held that the power of judicial review under Article 226 could not be taken away even by a constitutional amendment, and having struck down Clause 2(d) of Article 323-A and the exclusionary clause in Section 28 of the Administrative Tribunals Act, it does not stand to reason that any such limits, would have been placed on the territorial jurisdiction of the High Court under Article 226(2) of the Constitution of India. The language of Article 226(2) is plain enough and does not lend support to such an argument. Since the constituent power of judicial review, conferred on the High Court under Article 226 of the Constitution of India, is part of the basic feature/structure of the Constitution of India, any limitation on the manner of its exercise, beyond what has been specifically laid down by the Supreme Court in L. Chandra Kumar (1 supra), should not be readily inferred. Rule 6(1), of the Central Administrative Tribunal (Procedure) Rules, 1987, requires the O.A. to be filed by an applicant before the Bench of the Tribunal within whose jurisdiction the applicant is posted for the time being or the "Cause of Action, wholly or in part", has arisen. Residence of the Applicant and the "Cause of Action", and not the situs or location of the respondents or the bench of the Tribunal, is the criteria prescribed, under the Rules, for an O.A. to be entertained. In any view of the matter, the contention that the order of the Principal Bench of the Central Administrative Tribunal, at New Delhi can only be challenged in the Delhi High Court, and not in any other High Court even if the "cause of action" has arisen in part within the territorial limits of such other High Court, must be rejected.
RES JUDICATA - PRINCIPLES OF -NOT APPLICABLE WHERETHE MATTERS IN ISSUE AND THE PARTIES IN THE FORMER AND THE LATTER PROCEEDINGS ARE NOT IDENTICAL.
57. Learned Additional Solicitor General would place reliance on the order of this Court, in W.P. No. 17770 of 2005 dated 14-09-2005, and submit that since the Division Bench had held that the only remedy available, to question the order of the Central Administrative Tribunal, Principal Bench at New Delhi, was before the Delhi High Court, the said judgment is binding on the petitioners herein requiring them to approach only the Delhi High Court and that they were not entitled to invoke the jurisdiction of the A.P. High Court.
58. Among the 29 applicants, in O.A. No. 330 of 2005, only Sri N. Ramakrishna filed W.P. No. 17770 of 2005 before this Court challenging the vires of Section 25 of the Administrative Tribunals Act, 1985, the order of the Principal Bench of the Central Administrative Tribunal, New Delhi dated 12-08-2005, and for a declaration that Section 25 of the Administrative Tribunals Act 1985 is illegal, arbitrary and unconstitutional. The Division bench, by its order dated 14-09-2005, dismissed the writ petition and the miscellaneous petitions filed therein. Sri N. Ramakrishna, who had filed W.P. No. 17770 of 2005 before this Court, is not among the petitioners in W.P. No. 26712 of 2005 wherein the order of the Central Administrative Tribunal, Principal Bench, New Delhi, in O.A. No. 1959 of 2005 dated 31-10-2005 is also under challenge. (O.A. No. 330 of 2005 before the Hyderabad Bench on its transfer to the Principal Bench at New Delhi, was renumbered as O.A. No. 1959 of 2005).
59. The binding character of judgments, of Courts of competent jurisdiction, is in essence a part of the rule of law on which administration of justice is found and a judgment of the High Court under Article 226, passed after a hearing on merits, must bind the parties till set aside in appeal. (Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra ; UPSRTC v. State of U.P. ). Matters in controversy, in writ proceedings under Article 226, decided after full contest, after affording fair opportunity to the parties to prove their case, by a Court competent to decide it and which proceedings have attained finality, will operate as res judicata in subsequent proceedings on the same matters in controversy between the same parties. (Gulabchand Chhotalal Parikh v. State of Gujarat ; State of Punjab v. Bua Das Kaushal ). The rule of conclusiveness of judgments, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent proceeding between the same parties is the rule of res judicata. Once a matter which was the subject-matter of a lis stood determined by a competent Court, no party thereafter can be permitted to reopen it in a subsequent litigation. The principle of res judicate envisages that a judgment of a Court of concurrent jurisdiction directly upon a point creates a bar as regards a plea, between the same parties in some other matter in another Court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment. (Swamy Atmananda (supra); Iswar Dath v. Land Acquisition Collector ). Issues which have been concluded inter-parties cannot be raised again in proceedings inter-parties. (State of Haryana v. State of Punjab ).
60. A decision on an abstract question of law unrelated to facts which give rise to a right cannot operate as res judicata. Nor also can a decision on the question of jurisdiction be res judicata, in a subsequent proceeding. If, however, the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent proceeding if the cause of action is the same. (Supreme Court Employees' Welfare Association v. Union of India ).
61. As noted above, it was only the vires of Section 25 of the Administrative Tribunals Act and the order of the Principal Bench of the Central Administrative Tribunal at New Delhi dated 12-08-2005 which was in issue in W.P. No. 17770 of 2005. Neither the scope of Article 226(2) of the Constitution of India nor the question as to whether location of Principal Bench of the Central Administrative Tribunal at New Delhi would exclude the territorial jurisdiction of the High Court of Andhra Pradesh to adjudicate an order passed by the Principal Bench of C. AT. at New Delhi, even if a part of the cause of action had arisen within its territorial limits, fell for consideration in W.P. No. 17770 of 2005. Since the matters in controversy in the present writ proceedings are distinct from those in W.P. No. 17770 of 2005, the order passed therein will not operate as res judicata.
62. Even otherwise, since Sri N. Ramakrishna, one of the applicants in O.A. No. 330 of 2005, (later renumbered as O.A. No. 1959 of 2005), was alone a party to the decision of this Court in W.P. No. 17770 of 2005, the said judgment would only bind him and not the other applicants in O.A. No. 330 of 2005 (O.A. No. 1959 of 2005). In so far as the other 28 applicants in O.A. No. 330 of 2005 are concerned, the order in W.P. No. 17770 of 2005 dated 14-09-2005, not being a judgment inter-parties, will not automatically bind them.
63. While a decision inter-parties, even if it is erroneous, is binding, not every observation made in a judgment would constitute a binding precedent for other cases. In Nirmal Jeet Kaur v. State of M.P. the Supreme Court referred with approval to the observations, in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 AII E.R. 293, that the "quotable in law" is avoided if it is rendered in ignorance of binding authority. A similar view has been taken by the Supreme Court in State of U.P. v. Synthetics and Chemicals Ltd. and Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer . Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose on hand have no binding authority on another Court though they may have some persuasive efficacy: (Halsburys Laws of England -2nd Edition Vol. 19 page: 252). It is difficult to regard a word or a sentence occurring in a judgment, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment. (Madhavrao Scindia v. Union of India ). Observations which were not intended to lay down the law, and were not in issue in the case, are not meant to be and ought not to be regarded as laying down the law. Judgments are not to be read as statutes. (K. Veeraswamy v. Union of India ; Bharat Petroleum Corporation v. N.R. Vairamani ; Ashwani Kumar Singh v. U.P. Public Service Commission and Union of India v. Amritlal Manchanda).
64. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the peculiar facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides and not what may seem to follow logically from it. (Sudhansu Sekhar Misra(supra)).
65. Reliance placed on the order of this Court, in W.P. No. 17770 of 2005 dated 14-09-2005, is therefore misplaced.
FORUM SHOPPING:
66. The objection to the maintainability of these writ petitions, under this head, is on two grounds:
1. Since a writ petition has been filed in the Delhi High Court by the Indian Telecom Services Association, of which the petitioners herein are members, the individual members of the Association ought not to be permitted to file separate writ petitions; and
2. Even if it were to be held that the individual members were entitled to file separate writ petitions, since the Association has already filed a writ petition in the Delhi High Court, the individual members would only be entitled to file Writ Petitions before the Delhi High Court and not in any other High Court.
67. It is not in dispute that O.A. Nos. 330 of 2005 and 353 of 2005 were filed by the petitioners herein, before the Hyderabad Bench of the Central Administrative Tribunal in April/ 01-05-2005 respectively, much prior to O.A. No. 1963 of 2005 being instituted, by the Indian Telecom Services Association, before the Principal Bench at New Delhi, in June 2005. In fact the Hyderabad Bench of the Central Administrative Tribunal, in O.A. No. 330 of 2005, which was filed in April, 2005, passed an interim order on 03-05-2005. These two O.As, on their being transferred to the Principal Bench of the Central Administrative Tribunal at New Delhi, were renumbered as O.A. No. 1959 of 2005 and O.A. No. 1954 of 2005 respectively.
68. In support of his submission that it is the writ petition filed by the Association before the Delhi High Court which was not maintainable, and not the writ petition filed by the petitioners herein, Sri J. Sudheer, learned Counsel for the petitioner places reliance on Director General Ordnance Factories Employees' Association (supra), wherein the Calcutta High Court observed:
...The petitioner Association is, of course, not an incorporated body but it relies on the fact that it has been recognized by the Government according to the Central Services (Recognition of Service Associations) Rules, 1959, made in exercise of powers conferred by Article 309 of the Constitution. Recognition, however, gives an employees' association only a status in its relationship and dealings with the employer i.e., the Government. It has nothing to do with the representation of its members in a litigation before a Court of law. The question has therefore to be answered on general principles as explained by judicial decisions.
In cases where the right of a collective body to bring proceedings under Article 226 is challenged, two questions have to be answered:
a. Is the petitioner a legal entity or otherwise permitted by statute to initiate legal proceedings in its own name?
b. Has it been affected by the impugned order as a collective body?
(a) So far as the first question is concerned, it is patent that a legal proceeding may be maintained only by an individual or other body which is recognized as a legal person.
In the case of a body incorporated by law, the corporate body acquires a legal personality of Itself and is as such entitled to maintain legal proceedings. But an unincorporated association has no legal personality and it is nothing but the aggregation of its members who can only bring legal proceedings in their individual capacity. Even when all of them are affected by an official act, they can challenge that only if all the members join in the proceedings by name. The association, in such a case, cannot maintain an application under Article 226 or other legal proceedings, in its own name, as has been established by a number of decisions (Indian Sugar Mills Assocn. v. Secy. to Govt. U.P. Labour Dept. ; General Secy. Eastern Zone Insurance Employees' Can. v. Zonal Manager, Eastern Zone Life Insurance Corporation ) and even registration under the Societies Registration Act cannot confer this right. (Bangalore District Hotel Owners' Association v. District Magistrate, Bangalore AIR 1951 Mys 14)....
Even where an association is permitted by law to bring a legal proceeding, it can bring an application under Article 226 only when its rights as a collective body as distinguished from the aggregate rights of its members are affected by the act challenged in the proceedings. (Chiranjit Lal v. Union of India ; Govt. Press Employees' Assocn. v. Govt. of Mysore AIR 1962 Mys. 25; Barrackpore Bus Syndicate v. Serajuddin , eg., where it is already a party to the impugned order, as in ).
On this point also, the Petition must fail because if any Stenographer is given a higher post in the Clerical line, it is only a particular Assistant who is thereby deprived of his promotion that will be individually affected and shall be competent to bring a petition under Article 226. The collective existence or interests of the association as such will not thereby be affected....
(emphasis supplied)
68. The justification in filing the O.A. before the Principal Bench at New Delhi and in invoking the jurisdiction of the Delhi High Court, by the Indian Telecom Services Association and the contention regarding maintainability of such proceedings before the Delhi High Court notwithstanding, we are unable to accept the submission that the petitioners herein are not entitled to file separate writ petitions against the order passed by the Principal Bench of the Central Administrative Tribunal at New Delhi on 31-10-2005 in the respective O.As filed by them.
69. Blacks Law Dictionary 6th edition defines Forum Shopping as:
FORUM SHOPPING:
Such occurs when a party attempts to have his action tried in a particular court or jurisdiction where he feels he will receive the most favourable judgment or verdict.
70. As the "cause of action", in part, had arisen within its jurisdiction, the petitioners had originally instituted their O.As before the Hyderabad Bench of the Central Administrative Tribunal. These O.As, instituted by the petitioners, were transferred at the behest of the respondents to New Delhi by order of the Principal Bench dated 12-08-2005 and were finally disposed of on 31 -10-2005 along with several other O.As including O.A. No. 1963 of 2005 filed by the Indian Telecom Services Association. The action of the petitioners herein, in invoking the jurisdiction of the Andhra Pradesh High Court, against the said order of the Principal Bench of C.A.T. dated 31-10-2005, does not amount to "Forum shopping".
71. "Forum shopping" is when a party seeks to have his action tried in a particular Court as he feels that he would receive the most favourable verdict. To sustain the contention that the petitioners had indulged in "Forum shopping", it was incumbent upon the respondents not only to have pleaded but also to have established that institution of the O.A. before the Hyderabad Bench of the Central Administrative Tribunal earlier and later the present Writ Petition before the A.P. High Court, by the petitioners herein, was only because they felt that they would receive a favourable verdict, and not merely because a part of the cause of action had arisen within its territorial limits and it was convenient for the petitioners to invoke its jurisdiction. In the absence of any such plea, by the respondents, the allegation of "Forum shopping" does not merit further examination. Even otherwise, it is neither possible nor is it the function of Courts/Tribunals to speculate on the thought process of an individual litigant, and the reasons for his invoking the jurisdiction of a particular High Court, to decide whether the writ petition should be entertained or dismissed on this ground. As long as a part of the "Cause of Action" arises within the territorial limits of a particular High Court, even if another part thereof arises within the territorial jurisdiction of another High Court, there is no justification for the former High Court to refuse to entertain a writ petition on the premise that its jurisdiction has been invoked, by an aggrieved party, with the feeling that he would receive a favourable verdict. That such a feeling exists among litigants may well reflect their continued faith in the integrity of the judicial process.
72. The relief sought for in the writ petition filed by the Indian Telecom Services Association, before the Delhi High Court, is not identical to the relief sought for by the petitioners herein. A comparison of the relief sought for by the ITS Association in its writ petition filed before the Delhi High Court and the relief sought for in W.P. No. 25511 of 2005 before this High Court is in order. The relief sought for by the Indian Telecom Service Association, in the writ petition filed by it before the Delhi High Court, is as under:
On the foregoing submission it is most respectfully prayed that this Hon'ble Court may kindly be pleased to:
(a) Issue a writ of Certiorari or any other writ or direction in the nature of Certiorari quashing the orders dated 21-10-2005 and 31-10-2005 passed by the Hon'ble Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 1963 of 2005 and M.A. No. 2037 of 2005 respectively.
(b) Issue a writ of prohibition or any other writ order or direction in the nature of prohibition restraining respondents from enforcing the O.M. dated 18-10-2005.
(c) Issue a writ quashing the O.M. dated 24-3-2005 read with clarification dated 4-10-2005
(d) Issue a writ of prohibition or any other writ, order ordirection in the nature of prohibition restraining respondents from enforcing the O.M. dated 24-3-2005 read with clarification dated 4-10-2005.
(e) Declare Rule 37A(6) CCS (Pension) Rules 1972 as ultra vires
(f) Provide the petitioners, as an option, to be governed by Rule 37 from the prospective date, as it existed prior to the amendment.
(g) Call for the record of the case.
(h) Direct the respondents not to repatriate the petitioners and other similarly placed officers to their parent departments (DOT) unless and until the whole option process is completed as per the provisions of Sub rule 2(1) of Rule 37A.
(i) Pass such other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
73. The relief sought for by the petitioners in W.P. 25511 of 2005, filed before this Court, is for a writ of certiorari:
(a) Calling for the records related to and connected with the judgment rendered by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad in O.A. No. 358 of 2005 that was re-numbered as O.A. No. 1954 of 2005, dated 31-10-2005 on the file of the Central Administrative Tribunal, Principal Bench and quash the same
(b) Consequently, direct the 1st respondent to provide point wise clarifications sought by the petitioners to the terms and conditions of service already circulated by the respondent under which ITS Group-A officers like the petitioners would be absorbed in MTNL/BSNL before calling upon them to make their option for absorption.
(c) Direct the respondents to notify the terms and conditions that would be applied to ITS Group-A officers who do not opt for either MTNLVBSNL and opt to remain in Government service to enable the petitioners to exercise a right of option on an effective and informed basis;
(d) Direct the respondents to order the absorption of ITS Group-A officers in MTNL or BSNL on and from the date of acceptance of their option as situated in Rule 37-A(4) of the CCS (Pension) Rules; and
(e) Direct the respondents to allow the petitioners to retire from service and settle all their terminal benefits and thereafter, absorb the petitioners into service of BSNL/MTNL, if they so choose, in the grade equivalent to the grade in which the petitioners were serving at the time of retirement protecting the pay and allowances of the petitioners duly giving weightage to the service rendered by the petitioners in the grade at the time of retirement by granting increments while ensuring that their pay and allowance are at least equal to or above the last pay and allowances drawn and pass such order or further orders as are deemed fit and proper in the circumstances of the case.
74. While prayer (e), in the writ petition filed by the Indian Telecom Services Association before the Delhi High Court, is to declare Rule 37-A(vi) of the CCS (Pension) Rules, 1972 as ultra vires, prayer (d) in W.P. No. 25511 of 2005 filed before this Court is to direct the respondents to order absorption of ITS Group-A officers in MTNL/BSNL from the date of acceptance of their options as situated (sic. stipulated) in Rule 37-A(iv) of the CCS (Pension) Rules. Further prayer (e) in W.P. No. 25511 of 2005 relates only to the petitioners therein. We find considerable force in the submission of Sri Nooty Rammohan Rao, learned Counsel for the petitioners, that while the Association, as a body, was concerned with the common grievance of its members, the individual members cannot be denied their right to agitate their individual grievances which the Association may not choose to espouse.
75. Explanation VI to Section 11 C.P.C. has also no application. In order that there may be a representative writ petition, having the force of res judicata, the essential condition is that the interest of the individual member concerned has been totally represented by the Association. In cases where there is a clash of interest between the person concerned and his assumed representative, the latter cannot be considered to be a representative, litigating bona fide on behalf of the former. That the "interest", of the petitioners herein and their Association, is not identical is clear. The mere fact that the Association had filed its O.A, before the Principal Bench of C.A.T, New Delhi or the Writ Petition before the Delhi High Court, in a representative capacity, does not justify dismissal of the O.As instituted earlier, by the individual members of the Association, before the Hyderabad Bench of the Central Administrative Tribunal or the Writ Petitions filed by them before this Court against the order passed in their respective O.As.
76. The Principal Bench, of the Central Administrative Tribunal, New Delhi, while observing that separate writ petitions/ applications filed by the Association and its members was a flag rant abuse of process and casted a serious doubt on the "intellectual integrity" of the Association and its members, considered the individual O.As on its merits and did not dismiss the O.A. filed by the individual members as not maintainable. While we have our reservations regarding the observations made by the Tribunal on the "intellectual integrity" of the petitioners herein, and whether the concept of "intellectual integrity" is justiciable, we refrain from delving further on this aspect since the Tribunal has not chosen to dismiss the O.A. filed by the petitioners herein on the ground that it is not maintainable and has, in fact, passed an order on merits. Suffice also to note that the Writ petition filed before the Uttaranchal High Court was without invoking the jurisdiction of the Tribunal in the first instance, and in view of the law laid down in L. Chandra Kumar (supra), the Uttaranchal High Court had dismissed the writ petition. Observations made in the said judgment, on questions which were not in issue, are not even of persuasive value let alone constituting a binding precedent for other High Courts in deciding the questions raised in matters which are directly and substantially in issue before it. Since the Principal Bench of the Tribunal at New Delhi did not dismiss the O.As filed earlier by the individual members as not maintainable, in view of the O.A subsequently instituted by the Association, we see no reason to hold that the Writ Petition filed by the petitioners herein, aggrieved by the order passed by the Principal Bench of the Central Administrative Tribunal at New Delhi in their respective O.As, is not maintainable merely because the Association had earlier filed a writ petition before the Delhi High Court against the order of the Principal Bench of the Tribunal in O.A. No. 1963 of 2005 dated 31-10-2005.
77. We are also unable to accept the submission that, as the Association has filed a writ petition before the Delhi High Court, the individual members of the Association must challenge the orders passed in their respective O. As only before the Delhi High Court and that they are disentitled from invoking the jurisdiction of other High Courts in the country, even if the "cause of action, in part" has arisen within the territorial limits of such High Courts or that their action in doing so, amounts to "Forum shopping". Choice of the forum is that of the suitor, more particularly of a citizen, and not that of the respondents/authority. Unless it is established that no part of the cause of action has arisen within the territorial limits of the High Court, whose jurisdiction has been invoked, the choice exercised, by an aggrieved individual, of the forum to invoke, cannot be construed as "Forum shopping". The anomaly in this submission can be highlighted by way of an illustration. If instead of an Association, different individuals, residing in different parts of the country are aggrieved by the same order of the Union Government, and have approached different Benches of the Central Administrative Tribunals located all across the country, they would be entitled to approach the respective High Courts against the orders passed in their Original Applications. But for its transfer to the Principal Bench at New Delhi, O.A. Nos. 330 of 2005 and 358 of 2005 would have been decided by the Hyderabad Bench of the Tribunal, for it is not the case of the respondents that the Hyderabad Bench had no jurisdiction to do so. Against the order of the Hyderabad Bench of the Tribunal, the petitioners herein, if they were aggrieved by the order, would have been entitled to invoke the jurisdiction of the High Court of A.P. Transfer of all the O. As to the Principal Bench at New Delhi was not on the ground that the different benches did not have territorial jurisdiction but only for the reason that it was more convenient to have all the O.As heard and decided together. The provision for transfer of cases, involving the same or substantially the same questions of law, pending before two or more High Courts, to any other High Court or for its withdrawal to the Supreme Court, under Article 139-A of the Constitution of India, is in recognition of the possibility of different individuals filing different writ petitions before different High Courts on the same or similar questions of law. Just as in the present case, transfer of an O.A from one Bench of the Central Administrative Tribunal to another had been sought by way of an application under Section 25 of the Administrative Tribunals Act, the respondents were entitled to seek leave of the Supreme Court, under Article 139-A of the Constitution of India, and request that all the writ petitions, instituted before different High Courts, be withdrawn for its disposal by the Supreme Court or transferred to any one High Court. In fact, prior to the impugned order dated 31-10-2005 being passed by the Principal Bench of the Central Administrative Tribunal at New Delhi, the respondents had filed such applications before the Supreme Court, under Article 139-A of the Constitution of India and the Apex Court, while ordering notice, had made it clear that none of the proceedings in different High Courts had been stayed. We see no reason to hold that the Writ Petitions filed before this Court are not maintainable on the ground that the ITS association has filed a writ petition before the Delhi High Court or that the action of the petitioners herein, in invoking the jurisdiction of this Court, amounts to "Forum shopping".
FORUM CONVENIENS:
78. Learned Additional Solicitor General would submit that since the writ petition filed by the ITS association before the Delhi High Court raises substantial issues and, more or less, covers the entire gamut of the controversy between the parties, including the issues raised in the writ petitions by individual members, even if it were to be held that this Court has territorial jurisdiction, it should still refuse to exercise its discretion to entertain these writ petitions on the ground of "Forum conveniens" and should relegate the petitioners to file a writ petition before the Delhi High Court as it would be convenient for the respondents to have all the writ petitions adjudicated in common proceedings before one High Court, instead of having to defend their action in different High Courts all across the country.
79. The petitioner/plaintiff is the dominus litis and is entitled to have his Forum conveniens. He has the right to the choice of the High Court wherein a part of the cause of action arises. Where a part of the cause of action arises within more than one High Court, it is for the petitioner to choose his forum. In Nasiruddin v. S.T.A.T. , the Supreme Court observed:
...It is unsound because the expression 'cause of action' in an application under Article 226 would be as the expression is understood and if the cause of action arose because of the appellate order or the revisional order which came to be passed at Lucknow then Lucknow would have jurisdiction though the original order was passed at a place outside the areas in Oudh. It may be that the original order was in favour of the person applying for a writ. In such case an adverse appellate order might be the cause of action. The expression 'cause of action' is well known. If the cause of action arises wholly or in part at a place within the specified Oudh areas, the Lucknow Bench will have jurisdiction. If the cause of action arises wholly within the specified Oudh areas, it is indisputable that the Lucknow Bench would have exclusive jurisdiction in such a matter. If the cause of action arises in part within the specified areas in Oudh it would be open to the litigant who is the dominus litis to have his forum conveniens. The litigant has the right to go to a court where part of his cause of action arises. In such cases, it is incorrectto say that the litigant chooses any particular court. The choice is by reason of the jurisdiction of the court being attracted by part of cause of action arising within the jurisdiction of the court. Similarly, if the cause of action can be said to have arisen part within specified areas in Oudh and part outside the specified Oudh areas, the litigant will have the choice to institute proceedings either at Allahabad or Lucknow. The court will find out in each case whether the jurisdiction of the court is rightly attracted by the alleged cause of action....
(emphasis supplied)
80. Following the judgment in Nasiruddin (31 supra), the Supreme Court in Kusum Ingots & Alloys Ltd. (5 supra) held:
...The said decision is an authority for the proposition that the place from where an appellate order or a revisional order is passed may give rise to a part of cause of action although the original order was at a place outside the said area. When a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum....
....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....
(emphasis supplied)
81. If the cause of action, in part, arises both within the territorial limits of the Delhi High Court and the Andhra Pradesh High Court, it is for the petitioner, as the dominus litis, to choose his Forum.
82. The question which then arises is what is meant by the words "cause of action".
83. Osborne's Concise Law Dictionary defines "cause of action" as the fact or combination of facts which give rise to a right or action. Black's Law Dictionary defines the expression "cause of action" to mean the fact or facts which give a person a right to judicial relief. In Stroud's Judicial Dictionary a cause of action is stated to be the entire set of facts that give rise to an enforceable claim. The phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment. A cause of action, thus, 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. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. (Swamy Atmananda (supra)).
84. In Kusum Ingots & Alloys Ltd. (5 supra), the Supreme Court observed:
...Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily.
...Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts.
Keeping in view the expressions used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter....
85. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously, the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action". (Rajasthan High Court Advocates Association v. Union of India (2001) 2 SCC 294) The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. In Words and Phrases (4th Edn.), the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (Navinchandra N. Majithia v. State of Maharashtra ; Y. Abraham Ajith (supra)). "Cause of Action" consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise. (South East Asia Shipping Co. Ltd. v. Nav Bharat Enterprises (P) Ltd. ; Om Prakash Srivastava (supra)).
86. In Halsbury's Laws of England (4th Edn.), the expression "cause of action" is explained as:
'Cause of action' has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.
87. Each and every fact pleaded in the application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the Us, or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. (Adani Exports Ltd. (4 supra)).
88. The "Cause of Action" has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. In determining the objection, of lack of territorial jurisdiction, the court must take all the facts pleaded in support of the cause of action into consideration, albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise thereof being immaterial. The question of territorial jurisdiction must be decided on the facts pleaded in the petition. (Utpal Kumar Basu (supra)).
89. The question to be examined in the instant case is whether the Andhra Pradesh High Court has territorial jurisdiction to entertain and decide these writ petitions. The answer thereto would depend upon the averments made in the affidavits filed in support of these writ petitions and whether they show that a part of the "cause of action" has arisen within the territorial jurisdiction of the Andhra Pradesh High Court. The petitioners are all employees, officers in the Indian Telecom Services Group-A, working under Bharat Sanchar Nigam Limited in Andhra Pradesh. They are aggrieved by the proceedings of the 1st respondent dated 24-03-2005 calling for their options for absorption in BSNL. The petitioners herein, working under the Respondents within the State of Andhra Pradesh, have been called upon to exercise their options and make a choice as to whether they wish to remain in government service or choose to be absorbed with the BSNL. Some of the petitioners seek a direction that they be allowed to retire from service, their terminal benefits be settled and that they be absorbed the reafter into the service of BSNL in the same grade in which they are presently employed. While they are Central Govt. Employees as at present, their absorption in BSNL, a company registered under the Companies Act, will change their status. To make a considered and informed choice they desire to be made aware of the terms and conditions which would be applied to ITS Group-A officers who do not opt for absorption in BSNL and who opt to remain in government service. From the averments in the affidavits filed in support of the writ petitions, it is clear that the "Cause of Action", in part, has arisen within the territorial limits of this Court and that this Court, under Article 226(2) of the Constitution of India, has the territorial jurisdiction to entertain these writ petitions. While the order of the Principal Bench of the Central Administrative Tribunal, New Delhi dated 31-10-2005, in the O.As filed by the petitioners herein, would also constitute a part of the cause of action, we are unable to accept the submission that since the order of the Principal Bench at New Delhi is the final outcome of the entire cause of action, the cause of action, in its entirety, must be held to have arisen within the territorial jurisdiction of the Delhi High Court.
90. Learned Additional Solicitor General would, however, place reliance on the observations in paragraph 30 of the judgment in Kusum Ingots & Alloys Ltd. (5 supra).
...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....
91. In Kusum Ingots & Alloys Ltd. (supra), the question which arose for consideration was whether the seat of Parliament or the Legislature of a State would be a relevant factor for determining the territorial jurisdiction of a High Court to entertain a writ petition under Article 226 of the Constitution of India. The appellant was a company registered under the Indian Companies Act. Its registered office was at Mumbai. It had obtained a loan from the Bhopal Branch of State Bank of India. Respondent 2 had issued a notice for repayment of the said loan from Bhopal purported to be in terms of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Questioning the vires of the said Act, the writ petition was filed before the Delhi High Court which was dismissed on the ground of lack of territorial jurisdiction. The Supreme Court held that a writ petition questioning the constitutionality of a Parliamentary Act shall not be maintained in the High Court of Delhi only because the seat of the Union of India is in Delhi. The order of the Delhi High Court that, no part of the cause of action had arisen within its territorial jurisdiction, was upheld. While the appeal filed against this order of the Delhi High Court was dismissed as without merit, the Supreme Court observed that in appropriate cases, the Court may refuse to exercise its discretionary jurisdiction invoking the doctrine of "forum conveniens". It is necessary to note that Kusum Ingots & Alloys Ltd. (5 supra) was a case where no part of the cause of action had arisen within the territorial limits of the Delhi High Court whose jurisdiction was invoked.
92. We are not informed of any case in our country, where the doctrine of "Forum conveniens" has been invoked to relegate the petitioner to another High Court, despite the fact that the "Cause of Action" in part had arisen within the territorial limits of the High Court whose jurisdiction he had invoked.
93. Blacks Law Dictionary 6th Edition defines "Forum conveniens" and "Forum non-conveniens" as under:
"Forum Conveniens":
The state or judicial district in which an action may be most appropriately brought, considering the best interest of the parties and the public.
Forum non conveniens:
Term refers to discretionary power of court to decline jurisdiction when convenience of parties and ends of justice would be better served if action were brought and tried in another forum.
94. In this context, it is useful to quote from the speech of Lord Goff, in Spiliada Maritime Corporation v. Cansulex Ltd. 1987 (1) AC 460 (House of Lords).
... The fundamental principle In case where jurisdiction has been founded as of right, i.e., where in this country the defendant has been served with proceedings within the jurisdiction, the defendant may now apply to the court to exercise its discretion to stay the proceedings on the ground which is usually called forum non conveniens. That principle has for long been recognized in Scots law; but it has only been recognized comparatively recently in this country. In The Abidin Daver [1984] A.C. 398, 411, Lord Diplock stated that, on this point, English law and Scots law may now be regarded as indistinguishable. It is proper therefore to regard the classic statement of Lord Kinnear in Sim v. Robinow [1892] 19 R.665 as expressing the principle now applicable in both jurisdictions. He said, at p. 668:
the plea can never be sustained unless the court is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice....
...Lord Summer referred to a phrase used by Lord Cowan in Clements v. Macaulay (1866) 4 Macph. 583, 594, viz., "more convenient and preferable for securing the ends of justice," and said, at p.22:
one cannot think of convenience apart from the convenience of the pursuer or the defender or the court, and the convenience of all these three, as the cases show, is of little, if any, importance. If you read it as 'more convenient that is to say, preferable, for securing the ends of justice,' I think the true meaning of the doctrine is arrived at. The object, under the words 'forum non conveniens' is to find that forum which is the more suitable for the ends of justice, and is preferable because pursuit of the litigation in that forum is more likely to secure those ends. ...
...In my opinion, having regard to the authorities (including in particular the Scottish authorities), the law can at present be summarized as follows.
(a) The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.
(b) As Lord Kinnear's formulation of the principle indicates, in general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay (see, e.g., the Societe du Gaz case 1926 S.C.(H.L) 13, 21, per Lord Sumner; and Anton, Private International Law (1967) p.150). It is however of importance to remember that each party will seek to establish the existence of certain matters which will assist him in persuading the court to exercise its discretion in his favour, and that in respect of any such matter the evidential burden will rest on the party who asserts its existence. Furthermore, if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country (see (f), below).
(c) The question being whether there is some other forum which is the appropriate forum for the trial of the action, it is pertinent to ask whether the fact that the plaintiff has, ex hypothesi, founded jurisdiction as of right in accordance with the law of this country, of itself gives the plaintiff an advantage in the sense that the English court will not lightly disturb jurisdiction so established. Such Indeed appears to be the law in the United States, where "the court hesitates to disturb the plaintiff's choice of forum and will not do so unless the balance of factors Is strongly in favour of the defendant,": see Scoles and Hay, Conflict of Laws (1982), p.366, and cases there cited; and also in Canada, where it has been stated (see Castel, Conflict of Laws (1974), p.282) that "unless the balance is strongly in favour of the defendant, the plaintiff's choice of forum should rarely be disturbed."...In my opinion, the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. In this way, proper regard is paid to the fact that jurisdiction has been founded in England as of right (see Mac Shannon's case [1978] A.C. 795, per Lord Salmon); and there is the further advantage that, on a subject where comity is of importance, it appears that there will be a broad consensus among major common law jurisdictions...
(d) Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. These are the factors which Lord Diplock described, in MacShannon's case [1978] A.C. 795, 812, as indicating that justice can be done in the other forum at "substantially less inconvenience or expense." Having regard to the anxiety expressed in your Lordships' House in the Societe du Gaz cae, 1926 S.C. (H.L.) 13 concerning the use of the word "convenience" in this context, I respectfully consider that it may be more desirable, now that the English and Scottish principles are regarded as being the same, to adopt the expression used by my noble and learned friend, Lord Keith of Kinkel, in The Abidin Daver [1984] A.C.398, 415, when he referred to the "natural forum" as being "that with which the action had the most real and substantial connection." So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction (as to which see Credit Chimique v. James Scott Engineering Group Ltd. 1982 S.L.T. 131), and the places where the parties respectively reside or carry on business.
(e) If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay; see, e.g., the decision of the Court of Appeal in European Asian Bank A.G. v. Punjab and Sind Bank [1982] 2 Lloyd's Rep.356. It is difficult to imagine circumstances where, in such a case, a stay may be granted.
(f) If however the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this inquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the plaintiff will not obtain justice in the foreign jurisdiction; see the The Abidin Daver [1984] A.C. 398,411, per Lord Diplock, a passage which now makes plain that, on this inquiry, the burden of proof shifts to the plaintiff....
(emphasis supplied)
95. The Rule of "Forum conveniens" is an equitable rule embracing the discretionary power of a Court to decline exercise of jurisdiction, which it has over a transitory cause of action, when it believes that the action may more appropriately and justly be tried elsewhere. In cases where jurisdiction has been founded as of right, as before the High Court where the cause of action in part arises, the respondents may apply to the court to exercise its discretion and refuse to entertain the writ petition on the ground of "Forum Conveniens". The object is to find that forum which is the more suitable and preferable because pursuit of the litigation in that forum is more likely to secure the ends of justice. The court, before which such a request is made, must be satisfied that the other available forum, having competent jurisdiction, is the appropriate forum in which the case may be tried more suitably keeping in view the interests of all the parties and to secure the ends of justice.
96. The burden lies on the respondents to persuade the court to exercise its discretion to refuse to entertain the writ petition. In order to determine which is the appropriate forum for the trial of the action, it is pertinent to ask whether the petitioner has claimed jurisdiction as of right in accordance with law for, normally, a court would hesitate to disturb the petitioner's choice of the forum. The burden rests heavily on the respondents, not just to show that the High court of Andhra Pradesh is not the appropriate forum, but also to establish that the Delhi High Court is the more appropriate forum. To decide this question, we have to examine the factors which weigh in the choice of the otherforum. These factors include, that justice can be done in the other forum at substantially less inconvenience or expense. Factors such as expense, residence of parties, their convenience, etc will weigh with Courts in deciding the more appropriate forum and whether it should refuse to exercise its discretion to entertain a writ petition on the doctrine of "Forum conveniens".
97. It is wholly unnecessary for us to examine the question whether in cases, where an infringement of the fundamental rights of a citizen in the State of A.P. is brought to its notice, the High Court of Andhra Pradesh would be justified in refusing to exercise its constituent power of judicial review, under Article 226 of the Constitution of India, on the doctrine of "Forum conveniens", relegating the helpless citizen to approach the Delhi High Court, which may well be beyond his reach, on the ground that it is convenient for the respondents to have the case tried at New Delhi where it is located, for, we are satisfied that these writ petitions do not warrant exercise of any such discretion. The convenience of the authority/govt. cannot be a factor, for the very purpose of introducing the concept of "Cause of Action", and removing the limitation of "Residence/Location" of the authority, in determining the territorial jurisdiction of the High Court, by the Fifteenth Constitution Amendment Act, was keeping in view the convenience of the citizen. That the petitioners have chosen to approach the A.P. High Court is proof that they find it convenient to invoke its jurisdiction and not that of the Delhi High Court. That the petitioners residing at Hyderabad would incur less expenditure, in invoking the jurisdiction of the A.P. High Court as against the Delhi High Court, is also not in doubt. It cannot, therefore, be said that the Delhi High Court is the "appropriate forum" to try these issues. We see no reason to relegate the petitioners, to the Delhi High Court, invoking this doctrine.
98. One other contention of the Learned Additional Solicitor General, which is required to be considered is that the interim orders passed by the Delhi High Court and the Karnataka High Court, making the exercise of the options subject to the result of the writ petition, must be followed by us in these cases also. The interim order of suspension, of the impugned proceedings dated 24-03-2005, was passed by a Division Bench of this Court, in W.P.M.P. No. 32807 of 2005 in W.P. No. 25511 of 2005, as early as on 13-11-2005. While the petitioners herein have, throughout, expressed their readiness to have the writ petition adjudicated on merits, it is the respondents who have insisted on a preliminary decision, not on merits, but on the maintainability of these writ petitions. It is only if we are appraised of the matters in controversy, and submissions are made on merits, can it be decided as to whether the interim order of suspension granted earlier should be vacated or whether the writ petitions should themselves be finally heard. Without arguments being advanced on merits, we see no reason to accept the contention that as the Delhi High Court has refused to grant stay and the Karnataka High Court has vacated the stay granted earlier, it would automatically necessitate vacation of the interim order of suspension passed by this Court earlier. It is settled law that an interim order passed by a Court is not a precedent for other cases. In Empire Industries Ltd. v. Union of India , the Supreme Court observed:
...Good deal of arguments were canvassed before us for variation or vacation of the interim orders passed in these cases. Different Courts sometimes pass different interim orders as the Courts think fit. It is a matter of common knowledge that the interim orders passed by particular Courts on certain considerations are not precedents for other cases which may be on similar facts....
(emphasis supplied)
99. W.P. No. 25531 of 2005 was filed on the ground that O. A. No. 858 of 2005 was not disposed of by the Hyderabad Bench of C.A.T. before the last date of submission of options on 30-11 -2005. Thereafter the said O.A. was transferred to the Principal Bench of C. AT. at New Delhi, renumbered as O.A. No. 299 of 2006 and disposed of on 28-02-2006. Since the order of the Principal Bench of C.A.T at New Delhi, in O.A. No. 299 of 2006 dated 28-02-2006, has not been subjected to challenge, we dismiss W.P. No. 25531 of 2005, granting liberty to the petitioners, if they so choose, to file a Writ Petition afresh to include a challenge to the said order. W.P. No. 12161 of 2006 has been filed directly before this Court without invoking the jurisdiction of the Tribunal in the first instance. Applying the law laid down by the Apex Court in L, Chandra Kumar (1 supra), and as the petitioner is disentitled from directly invoking the jurisdiction of this Court under Article 226 without approaching the Tribunal at the first instance, W.P. No. 12161 of 2006 is also dismissed leaving it open to the petitioner, if he so chooses, to approach the Central Administrative Tribunal.
100.C.C. No. 331 of 2006 is filed contending that the interim suspension granted by this Court is an order in rem, and not in personam, and that its violation, in so far as the petitioners are concerned, constitutes Contempt of Court. We are afraid we cannot agree. It is well settled that Contempt Proceedings are quasi-criminal in nature, that the power of contempt must be exercised sparingly and not as a matter of course and that the proof required to establish Contempt is of a very high order. It is only when an order has been violated, willfully and deliberately, can Contempt of Court be said to have been committed. It is not even the case of the petitioners that the respondents had violated any orders passed in the writ petition filed by them. It is not open for them to rely on an interim order passed in a connected writ petition to contend that the action of the respondents in proceeding against them or in disposing of the O.A. filed by them amounts to Contempt of Court. C.C. No. 331 of 2006 is also dismissed.
101. Since we have rejected the objections raised to the maintainability of the Writ Petitions, W.P. No. 25531 (sic. 25511) of 2005 filed against the order passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 1954 of 2005 dated 31-10-2005 and W.P. No. 26712 of 2005, filed against the order in O.A. No. 1959 of 2005 dated 31-10-2005, are maintainable.
102. W.P. No. 25531 of 2005, W.P. No. 12161 of 2006 and C.C. No. 331 of 2006 are accordingly dismissed. Registry shall list the interlocutory applications, filed in W.P. No. 25511 of 2005 and W.P. No. 26712 of 2005, for hearing on 18-10-2006.