Allahabad High Court
State Of Up And 2 Others vs Amar Singh And Another on 7 August, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:127029-DB AFR Reserved on : 03.07.2024 Delivered on : 07.08.2024 Court No. - 29 Case :- SPECIAL APPEAL No. - 135 of 2024 Appellant :- State of U.P. and others Respondent :- Amar Singh and another Counsel for Appellant :- Jagannath Maurya, Rama Nand Pandey Counsel for Respondent :- Anil Kumar Mehrotra Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
(Per Hon. Mahesh Chandra Tripathi,J.)
1. Heard Sri Kunal Ravi Singh, learned Chief Standing Counsel and Sri Fuzail Ahmad Ansari, learned Standing Counsel for the State-appellants and Sri Anil Kumar Mehrotra, learned counsel for respondent no.1-petitioner.
2. The instant intra-court Special Appeal under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter referred as the 'Rules, 1952') has been preferred against judgment and order dated 21.08.2023 passed by learned Single Judge in Writ A No.11040 of 2020 (Amar Singh vs. State of U.P. and others). For ready reference, the operative portion of the judgment and order dated 21.08.2023 is reproduced as under:-
"..........65. Having gone through the authorities cited by the learned counsel appearing for the respective parties, I am of the view that the propositions as discussed in those judgments are not contradictory to each other.
66. The principle of law is well settled that interference by the High Court or Tribunal in the judicial exercise of power would not extend to appreciating the evidence and coming to a different conclusion than what Domestic Tribunal has already arrived at but the question is as to whether this decision making process was sound and was not vitiated and that a man of ordinary prudence would have arrived at a decision/ conclusion which could be said to be a rational one on the material available. It is a case where the department failed to present any evidence whatsoever in support of the charge that petitioner circulated the message to defame the Government.
67. In the case of Union of India v. Sardar Bahadur: (1972) 4 SCC 618, the Court held very clearly that any statement made in a criminal trial would have been said to be admissible had the persons who gave the statement were produced by the department before the Inquiry Officer to be cross-examined by the delinquent employee and having failed to do so the department could not have complained of the Inquiry Officer not appreciating the same.
68. Coming to the authorities cited by learned counsel for the petitioner first in the case of Wednesbury Corporation (supra) I find that in the said case the court of appeal has held that it is entitled to investigate the action of local authority in order to find out whether it had taken relevant material into consideration while arriving at a finding or conversely refused to take into account or neglected it even though available. The court, therefore, held that the answer to the question if goes to the authority or in other words like in the present case, one can conclude that authority's action is within the four corners of the matter which they ought to consider but even such a decision if tested on the IQ of a reasonable man and the Court concludes that such a reasonable man could not come to such a conclusion, the Court would still interfere. So not only decision taking process even the conclusion arrived at for the decision is open to judicial review.
69. In the case of Gohil Vishvaraj Hanubhai (supra) the Court discussed in detailed the Wednesbury unreasonableness on the point of power of judicial review. The Court held that the irrationality of a decision making power would account to akin of 'Wednesbury unreasonableness'. In support of this, the view taken by Lord Diplock was reiterated and it was observed that the decision should be so outrageous in its defiance of logic or accepted moral standards that given an application of mind by a reasonable man, it may not be approved of.
70. In the present case I find that second charge was not at all proved by the Inquiry Officer. The first charge was proved partly only and that too on the ground that petitioner had himself made an admission, fair enough, that while trying to delete the message he got the same forwarded in whatsapp group by wrongly touching the icon. This also happened in the midnight hours, therefore, applying the definition of misconduct given in Strout's dictionary (supra) there was nothing to demonstrate that the petitioner did it intentionally. It was a case where petitioner did delete the message in the midnight hoursbefore anybody could have read it, however, by way of precaution he messaged other whatsapp group members to delete the message wrongly got sent by him. The department would have been justified in bringing home the charge, had it produced the persons who might have read the message or shown to others or had complained against the petitioner. That being not the case, the charge itself did not stand proved and, therefore, punishment of dismissal from service is held to be shockingly disproportionate. Fact position admitted on record is that petitioner had made a fair admission and upon the said fair admission the department sets up an inquiry and did not find a single employee or the member of the group message who were the employees to have read the message before it was deleted in the midnight hours. This being the admitted factual position, I do not see petitioner to deserve such a harsh punishment of dismissal from service. In my considered view, in the absence of evidence as to circulation of message to pollute mind of people towards the government, the government should have appreciated his courage to show admission and should have warned him to be careful in future.
71. Coming to the argument advanced by learned Additional Advocate General that admission is the best piece of evidence and delinquent employee having admitted that he had forwarded the message, nothing more required to bring home the charge, I find that admission was only to the extent that he got the message forwarded due to inadvertence as he was trying to delete the same and further I find that admission was also that petitioner had asked everyone to delete the message. So admission was as to the inadvertent mistake and not as to the intention to forward the message to defame the Chief Minister or his government. Eventually he wanted and honestly attempted to delete the questionable message. The admission is to be read contextually and not in isolation and so in my considered view there was no admission as to the charge levelled against the petitioner.
72. The principles as discussed in authorities cited by learned counsel for the petitioner as well as learned Additional Advocate General herein this above judgment, I find that the order of dismissal deserves interference.
73. Thus the second argument as to quantum of punishment being shockingly disproportionate to the guilt proved though partly also holds merit and impugned order deserves to be quashed.
74. In view of the above, writ petition succeeds and is allowed. The order dated 7th September, 2020 is hereby quashed. Petitioner shall be reinstated in service and shall be entitled to all consequential benefits.
75. The matter is remitted to the extent that the respondent authority may impose any minor punishment in its discretion taking into consideration that admission of the petitioner and his fairness in reporting to the Government that he got objectionable message forwarded in the whatsapp group in the midnight hours mistakenly and deleted the same within 2-3 minutes and messaged others in whatsapp group to delete the message and also the fact that there was no evidence available that the message was got circulated and was read by members of the whatsapp group or any other member on his mobile through whatsapp message. He can only be just issued with a warning for his such conduct if otherwise his career has been blotless but for this solitary incident.
76. Appropriate order shall be passed by the State Government within 30 days from the date of production of certified copy of this order.
77. Cost made easy."
FACTUAL MATRIX OF THE CASE
3. Respondent no.1-writ petitioner was appointed on 05.02.2001 on the post of Personal Assistant in U.P. Secretariat, Lucknow on being selected by U.P. Public Service Commission 1. His services were governed by the U.P. Secretariat Personal Assistant Service Rules, 2001 2, U.P. Government Servants Conduct Rules, 1956 3 and U.P. Government Servant (Discipline and Appeal) Rules, 1999 4. Respondent no.1-petitioner claimed that he had received an objectionable Whatsapp message, which he was trying to delete but inadvertently it got forwarded to the Whatsapp group of Additional Private Secretary Cadre. Having realized his mistake, he immediately deleted the said message from the group. Thereafter, respondent no.1-petitioner for his inadvertent mistake, on his own accord, tendered an unconditional apology to the State Functionaries of the Government of U.P. with an assurance that no such mistake will be made by him in future.
4. On his application, wherein he has tendered unconditional apology, the Secretary, Administration initiated a disciplinary proceedings against him under the Rules, 1999. In the disciplinary enquiry the charge sheet was served upon respondent no.1-petitioner, to which he gave a reply. On 25.12.2019, the disciplinary authority sent a proposal to the Additional Chief Secretary, Department of Secretariat, Administration with the recommendation to end the departmental proceedings against the respondent no.1-petitioner giving him warning not to repeat such act in future. The matter was placed before the Chief Secretary, who did not agree with the said proposal. Thereafter, a different proposal was placed to the Hon'ble Chief Minister by the Chief Secretary seeking his consent on two proposed alternate punishment against the petitioner (respondent no.1 herein), i.e. the first proposal was "award punishment of censure entry and revert him on the grade of basic salary" and second proposal was "removal from service which does not disqualify from future employment".
5. Hon'ble Chief Minister (as Minister concerned) had accorded approval on 24.02.2020 on second proposal i.e. removal from service of respondent no.1-petitioner, which does not disqualify him from future employment. Consequently, the order dated 7.9.2020 was passed, whereby the services of respondent no.1-petitioner was dispensed with. However, dismissal would not disqualify him from future employment.
6. Aggrieved with the said dismissal order, the respondent no.1-petitioner had invoked the writ jurisdiction by preferring Writ-A No.11040 of 2020 (Amar Singh vs. State of U.P. and others) precisely on the ground that the entire procedure so adopted during disciplinary proceeding was dehors the procedure prescribed under the relevant service rules, with the following reliefs:-
"(A) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 07.09.2020 passed by respondent no.2.
(B) Issue a writ, order or direction in the nature of Mandamus commanding and directing the respondents to not interfere in the working of the petitioner as Additional Private Secretary in the Department of Secretariat Administration, Section-2 (Establishment), Government of U.P. Lucknow and pay his regular salary month to month."
7. In the writ proceeding, it was pressed by the State-respondents that the petitioner therein had admitted to have circulated the Whatsapp message. It was further argued that the termination order does not dis-entitle the petitioner (respondent no.1 herein) from seeking appointment elsewhere, so there was nothing illegal, which would call for interference by the writ Court.
8. After hearing the parties, learned Single Judge vide judgment and order dated 21.08.2023 had allowed the writ petition and held that the alleged enquiry was in gross violation of principle of natural justice and the procedure, which was adopted during the enquiry was also dehors the Rules. Accordingly, the impugned order of dismissal from service was struck down. It was also opined that the quantum of punishment was shockingly disproportionate to the guilt proved though partly holds merit. Learned Single Judge had set aside the termination order and directed for reinstatement of petitioner in service along with all consequential benefits. Further the matter was remitted with observation that the respondent authority may impose any minor punishment in its discretion taking into consideration the admission of the petitioner and his fairness in reporting to the Government that he got objectionable message, forwarded in the whatsapp group.
9. Aggrieved with the judgment and order passed by learned Single Judge, the State-appellants have preferred the instant intra Court appeal.
SUBMISSIONS ON BEHALF OF STATE-APPELLANTS
10. The basic ground taken in the instant appeal is that the dispute pertains to District Lucknow as the respondent no.1-petitioner was employed as Addl. Private Secretary in the Department of Secretariat Administration, Section 2 (Establishment), Civil Secretariat, Lucknow; entire disciplinary proceedings were initiated and culminated at Lucknow and consequently the order dated 7.9.2020 (impugned in the writ petition) was passed by the Authority constituted at Lucknow namely Addl. Chief Secretary, Department of Secretariat Administration, Section-2 (Establishment), Government of U.P., Lucknow.
11. Sri Kunal Ravi Singh, learned Chief Standing Counsel and Sri Fuzail Ahmad Ansari, learned Standing Counsel have vehemently submitted that the aforementioned facts are sufficient enough to highlight the fact that no cause of action arose at Prayagraj, which could confer jurisdiction to the Allahabad High Court to entertain the writ petition. All cause of action falls within the territorial jurisdiction of Lucknow Bench of this Court. As such the judgment and order passed by learned Single Judge is without jurisdiction and liable to be set aside. Learned Standing Counsel submitted that the respondent no.1-petitioner had heavily relied upon paragraph 67 of the writ petition, wherein it is averred that part cause of action arose at Prayagraj as the U.P. Public Service Commission, Allahabad (respondent no.4 in the writ petition) had consented for imposition of punishment upon the respondent no.1-petitioner as per Rule 16 of Rules, 1999. He submitted that the claim set up by the respondent no.1-petitioner for pressing the relief at Allahabad High Court as part cause of action arose at Prayagraj is wholly incorrect. He submitted that Rule 16 of Rules, 1999 is similar to Article 320 (3) (c) of the Constitution of India. Rule 16 of the Rules, 1999 and Article 320 (3) (c) of the Constitution of India refers to consultation with the Public Service Commission in all disciplinary matters. In such a situation, it is to be seen merely as a consultation. It would not give any legal right to the person with regard to jurisdiction.
12. He submitted that the said question is no longer res integra and the Supreme Court in State of U.P. v. Manbodhan Lal Srivastava 5 has held that Article 320 (3) does not afford the public servant any cause of action, which would confer any rights on the public servant so as to enable him to relief under Article 226 of the Constitution of India. The Apex Court had categorically held that "it is not a right which can be recognized and enforced by a writ". He has also placed reliance upon the judgment passed by the Apex Court in Ram Gopal Chaturvedi v. State of M.P.6, wherein three Judges Bench had approved the ratio laid down in Manbodhan Lal Srivastava (Supra) and reiterated that the consultation with the Commission did not confer any right on the public servant. Similar view has also been taken by the Apex Court in Union of India v. T.V. Patel 7, which also approved that Article 320 (3) (c) does not confer any right upon the public servant to challenge the same. In the said case, the consultation was done from the Public Service Commission and upon advice of the Commission, the final order was passed. Shri Ansari submitted that even in the said case, Hon'ble Apex Court unequivocally approved the ratio laid down in Manbodhan Lal Srivastava (Supra) and held that no cause of action arose to the public servant upon consultation from the Commission.
13. Shri Ansari, learned Standing Counsel, in this backdrop, submitted that consultation or the lack of same with the Public Service Commission does not confer any cause of action upon the public servant so as to confer him any right to challenge the same in writ jurisdiction. Even otherwise, the respondent no.1-petitioner did not challenge the advice given by the Commission inspite of the fact that the same has been reiterated while passing the punishment order. Safely it can be argued that the advice of the Commission merged with the final punishment order, which was passed at Lucknow. He further assertively argued that every fact pleaded in the writ petition would not constitute a cause of action at Allahabad. The fact, which is enumerated in para 67 of the writ petition would have no bearing on the lis and that so does not give cause of action so as to confer territorial jurisdiction upon the Court concerned. In support of his submissions, he has placed reliance upon the Full Bench judgment of this Court in Manish Kumar Mishra v. Union of India & Ors.8, wherein similar question was considered and it was held as follows:-
"....59. The expression "cause of action" has been defined in Halsbury's Laws of England19, as follows:-
"20. Cause of action. "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.
The same facts or the same transaction or event may give rise to more than one effective cause of action.
A cause of action arises wholly or in part within a certain local area where all or some of the material facts which the plaintiff has to prove in order to succeed arise within that area."
14. Shri Ansari, learned Standing Counsel stated that the writ petition was filed for a writ of certiorari against the order passed by Addl. Chief Secretary, Department of Secretariat (Administration) situated at Lucknow and the writ petition was entertained at Allahabad and was finally decided. He submitted that since there was no order as contemplated by second proviso to Article 14 of the U. P. High Courts (Amalgamation) Order 1948, hence writ petition pertaining to jurisdiction of Lucknow Bench of this Court could neither have been entertained much less decided by this Court. In support of the submissions, he has relied upon Full Bench judgment of this Court in the case of Nirmal Dass Kathuria v. State Transport (Appellate) Tribunal, U. P., Lucknow 9, wherein five questions were referred for the opinion of the Full Bench, which for ready reference are reproduced as under− "1. Can a case falling within the jurisdiction of the Lucknow Bench of this Court be presented at Allahabad ?
2.Can the Judges sitting at Allahabad summarily dismiss a case presented at Allahabad pertaining to the jurisdiction of the Lucknow Bench.
3.Can a case pertaining to the jurisdiction of the Lucknow Bench, presented and entertained at Allahabad, be decided finally by the judges sitting at Allahabad, without there being an order as contemplated by the second proviso to Article 14 of the U. P. High Courts (Amalgamation) Order, 1948 ?
4.What is the meaning of the expression "in respect of cases arising in such areas in Oudh" used in the first provision to Article 14of the High Courts (Amalgamation) Order, 1948 ? Has this expression reference to the place where the case originated or to the place of sitting of the last court or authority whose decree or order is being challenged in the proceeding before the High Court ?
5.Whether this writ petition can be entertained and heard by the Judges sitting at Lucknow ?"
15. He submitted that the Full Bench by majority answered the question nos.1, 2 and 3, which are relevant for the present matter, as follows :
"Question no. 1. A case falling within the jurisdiction of the Judges at Lucknow should be presented at Lucknow and not at Allahabad".
"Question No. 2. However, if such a case is presented at Allahabad the Judges at Allahabad cannot summarily dismiss it only for that reason. The case should be returned for filing before the Judges at Lucknow, and where the case has been mistakenly or inadvertently entertained at Allahabad a direction should be made to the High Court office to transmit the papers of the case to Lucknow."
"Question No. 3. A case pertaining the jurisdiction of the Judges at Lucknow and presented before the Judges at Allahabad cannot be decided by the Judges at Allahabad in the absence of an order contemplated by the second proviso to Article 14 of the of the U. P. High Courts (Amalgamation) Order, 1948."
16. He submitted that the findings given by the Full Bench of this Court on aforesaid three questions have been affirmed by the Hon'ble Apex Court in the case of Nasiruddin Vs. State Transport Appellate Tribunal 10. The Hon'ble Apex Court in the said case had observed as under :
"37. To sum up, our conclusions are as follows. First, there is no permanent seat of the High Court at Allahabad. The seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the Order. Second, the Chief Justice of the High Court has no power to increase or decrease the areas in Oudh from time to time. The areas in Oudh have been determined once by the Chief Justice and, therefore, there is no scope for changing the areas. Third, the Chief Justice has power under the second proviso to paragraph 14 of the Order to direct in his discretion that any case or class of cases arising in Oudh areas shall be heard at Allahabad. Any case or class of cases are those which are instituted at Lucknow. The interpretation given by the High Court that the word "heard" confers powers on the Chief Justice to order that any case or class of cases arising in Oudh area shall be instituted or filed at Allahabad instead of Lucknow is wrong. The word "heard" means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the Order be directed to be heard at Allahabad. Fourth, the expression "cause of action" with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the case of action arises wholly within Oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. Fifth, a criminal case arises where the offence has been committed or otherwise as provided in the Criminal Procedure Code. That will attract the jurisdiction of the Court at Allahabad or Lucknow. In some cases depending on the facts and the provision regarding jurisdiction, it may arise in either place."
"38. Applications under Article 226 will similarly lie either at Lucknow or at Allahabad as the applicant will allege that the whole of cause of action or part of the cause of action arose at Lucknow within the specified areas of Oudh or part of the cause of action arose at a place outside the specified Oudh area."
"39. The answers given by the High Court to the first three questions are correct save as modified by our conclusions aforesaid."
"40. The answer given by the High Court to the fourth question is set aside. The meaning of cases arising in Oudh areas will be found by appropriate courts in the light of this judgment."
"41. The answer to the fifth question is discharged. The matters are sent back to the High Court for disposal in accordance with this judgment."
17. Shri Ansari, learned Standing Counsel submitted that admittedly, in the present case, the entire cause of action falls within the territorial jurisdiction of Lucknow Bench of this Court as the dispute pertains to territorial jurisdiction of Lucknow Bench. It cannot even remotely be said that the part cause of action arose at Allahabad so as to confer jurisdiction upon this Court to entertain and decide the petition.
18. Reliance, in this regard, has also been placed on the judgment in Rashtriya Chinni Mills Adhikari Parishad, Lucknow v. State of U.P. & Ors.11. Emphasis has been given on paragraph 16 of the said judgment, which for ready reference, is reproduced as under:-
"Mr. Satish Chandra, learned senior advocate appearing for the appellant has contended that even on the reasoning of the Division Bench judgment itself the conclusions reached by the Bench are erroneous. We see force in the contention. The Division Bench of the High Court in Ram Rakh Vyas vs. Union of India AIR 1977 Rajasthan 243 (the judgment delivered by A.P. Sen , J. as the learned Judge then was), came to the conclusion that the words "arising in " in the context, mean "pertaining to the districts of" or "arising from". It is not disputed that in the present case the order/notification and the advertisement were issued by the State Government at Lucknow. Without there being an order/notification by the Government there could be no cause of action at all. The petitioner got aggrieved only from the order/notification which "arose" from Lucknow. The grievance of the petitioner "arose" at Lucknow which is within the Oudh area and as such on the plain reading of the relevant provisions of clause 14 of the Amalgamation Order, the Bench at Lucknow had the jurisdiction to deal with the matter."
19. He has also placed reliance on the judgment in Universal Insulators and Ceramics Ltd. v. Official Liquidator, High Court, Allahabad 12. He has relied upon paragraph 140 of the said judgment, which for ready reference, is reproduced as under:-
"140. In the present case, this issue is not at all involved, hence, we do not find that judgment in Dr. Manju Verma (supra) takes us any further on the question with which we are concerned. We, therefore, answer question (2) holding that since jurisdiction of cases to be entertained at Lucknow and Allahabad are distinct and exclusive over demarcated territories, it renders an order passed by Judges sitting at a place in a matter over which they have no jurisdiction, as nullity."
20. He further elaborated that even in case, the approval of the Commission dated 21.08.2020 would have been assailed at the initial stage while pressing the writ petition even that could not have conferred a territorial jurisdiction in favour of the petitioner to press the relief before this Court as the advice of the Commission is not mandatory and it does not give cause of action to the employee concerned. The reliance has also been placed on the judgment passed by the Division Bench of the Bombay High Court in the case of Union of India through Secretary, Ministry of Railways, Railway Board, Rail Bhawan, New Delhi and others vs. Dr. A.W. Umrdkar 13, paragraphs-6 and 7 of the same are being reproduced herein as under :
"6. The only point falls for consideration is about non-supply of advice sought from UPSC by the respondent. In this regard, the appellant would urge that, there is no legal requirement of supplying the copy of UPSC advice before passing the order of punishment. It is brought to our notice that the copy of advice was provided by the Department at the time of serving punishment order. In support of said submission the appellant has relied on the decision of Karnataka High Court in the case of The Secretary, Ministry of Railways, New Delhi v. Sh. Norman David Fernandez and anr. (Writ Petition No. 15852 of 1998) decided on 27.08.2001. In said case, while deciding similar issue, the Division Bench of Karnataka High Court held that obtaining advice from UPSC under Article 320(3)(c) is not mandatory requirement. Coincidentally, the said petition was also relating to Railway Board based on similar Rules. Besides that, the petitioner relied on the decision of Hon'ble Supreme Court in the case of Union of India v. T.V. Patel 2007 Lawsuit(SC)466. In said case, it is ruled that non-supply of copy of advice tendered by UPSC before passing final order does not afford the rights nor gives cause of action to the employee. The Hon'ble Supreme Court by referring it's earlier decision in the case of State of U.P. v. Manbodhan Lal Srivastava 1958 SCR 533 ruled that, order of punishment passed without looking to the consultation report of UPSC is valid. In other words, supply of consultation report to the delinquent is not a mandatory requirement.
7 Reverting to the impugned order we find that non-supply of UPSC consultation report was sole ground for allowing the Original Application. In view of the law laid by the Hon'ble Supreme Court as well as view taken by the Karnataka High Court the issue is no longer res integra. There is no legal requirement to furnish the copy of consultation report as the UPSC to the employee."
21. He has also placed reliance upon the judgment passed by the Apex Court in Union of India and others vs. T.V. Patel (Supra), for ready reference paragraphs-14 and 17 of which are also reproduced herein under:
"14. A Constitution Bench of this Court in the case of State of U.P. v. Manbodhan Lal Srivastava Manu/SC/0123/1957: (1958)IILLJ273SC, considered the question as to whether the consultation of the Commission under Article 320(3)(c) is mandatory and binding on the appropriate authority.
17. In view of the law settled by the Constitution Bench of this Court in the case of Srivastava (supra) we hold that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and they do not confer any rights on the public servant so that the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by the UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law."
(Emphasis supplied)
22. Reliance has also been placed upon Full Bench decision of this Court in Manish Kumar Mishra and others vs. Union of India and others (Supra), of which paragraphs 11, 12, 20 and 21 for ready reference are being reproduced herein as under:
"11. From the above, it is evident that there can never be an encyclopedic exposition as to what would constitute cause of action in a case. The decisions of the Full Bench and the Division Benches of this Court and the Apex Court should not be read to exhaustively enunciate as to when and how the Court should determine in a case that the cause of action, wholly or in part, has arisen within its territorial limits. Peculiar facts in the context of the subject matter of the litigation, and relief claimed are the only guiding factors for the learned Judge(s) to decide. It is to be entirely left at the discretion of the Judge(s) considering the petition to ascertain whether the cause of action did exist entitling the petitioner to approach the High Court concerned.
12. Each and every fact pleaded in the writ petition cannot by itself constitute a cause of action. Facts which have no bearing on the lis 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. In view of the expression used in clause (2) of Article 226 of the Constitution, even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. Integral facts pleaded must have nexus or relevance with the lis so as to constitute a cause of action.
20. 'Cause of action' implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. It has been interpreted 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. The question as to whether the Court has territorial jurisdiction to entertain a writ petition, has to be decided on the basis of averments in the petition, truth or otherwise thereof, however, would be immaterial.
21. As cause of action is the bundle of facts to examine the issue of jurisdiction it is necessary that one of the interlinked fact must have occurred in a place where the case has been instituted. All necessary facts must form an integral part of the cause of action. The fact must have direct relevance in the lis involved. It is not that every fact pleaded can give rise to a cause of action so as to confer jurisdiction on the Court in whose territorial jurisdiction it has occurred."
SUBMISSIONS ON BEHALF OF RESPONDENT NO.1- PETITIONER
23. Sri Anil Kumar Mehrotra, learned counsel appearing for respondent no.1/petitioner submitted that no such objection of territorial jurisdiction was taken before the Single Judge, and hence, it is not open for the State-appellant to raise such objection at this stage. He further submitted that cause of action has arisen within the territorial jurisdiction of this Court, inasmuch as, opinion of the Commission was mandatory and had been availed, since the Commission falls within the territorial jurisdiction of the writ court and the Commission was made party and notice was also served upon them. No objection at that point of time was taken by the State or the Commission, even though the matter was heard considerably for long time. To buttress this argument, he has placed reliance on a judgment passed by Hon'ble Supreme Court in the matter of Sneh Lata Goel vs. Pushplata and others 14. The relevant portion of the judgment are quoted below for ready reference :
"Section 21 CPC makes it clear that an objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. Hence, it has to be raised before the court of first instance at the earliest opportunity, and in all cases where issues are settled, on or before such settlement. Moreover, it is only where there is a consequent failure of justice that an objection as to the place of suing can be entertained. Both these conditions have to be satisfied.
Where the defect in jurisdiction is of kind which falls within Section 21 CPC or Section 11 of the Suits Valuation Act, 1887, an objection to jurisdiction cannot be raised except in the manner and subject to the conditions mentioned thereunder. The judgment in Kiran Singh, AIR 1954 SC 340, on which reliance was placed by the respondent, holds that an objection to territorial jurisdiction and pecuniary jurisdiction is different from an objection to jurisdiction over the subject-matter. An objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit."
24. He has further placed reliance on the judgment passed by Hon'ble Supreme Court in the matter of Om Prakash Agarwal vs. Vishan Dayal Rajput and Anr.15, wherein it has been held that objection as to the place of suing should be taken by the party concerned in the court of first instance at the earliest possible opportunity and the objection to this effect shall not be allowed by the Appellate or Revisional Court.
25. He further stated that the ground of jurisdiction has been well taken up in para 67 of the writ petition, which is quoted below:-
"That it is also relevant to mention here that, in the instant case, the opinion of the Uttar Pradesh Public Service Commission was sought and Uttar Pradesh Pubic Service Commission took contrary view to the findings of the enquiry officer, relying on which, the disciplinary authority took the decision to award major penalty of dismissal from service. Thus, it was the incumbent upon the State Government to have supplied a copy of the advice of the Uttar Pradesh Public Service Commission to the petitioner by way of show cause notice and the petitioner ought to have been given an opportunity to meet the proposed punishment. However, the aforesaid procedure has not been followed in the instant case resulting in violation of the principle of natural justice. The aforesaid contention of the petitioner draws force from a judgment and order dated 18.01.2016 passed by a division bench of this Hon'ble Court in the writ petition no.992 (M/B) of 2010 (Amar Kumar vs. Central Administrative Tribunal, Lucknow and Ors) and judgment and order passed by the Hon'ble Supreme Court in the case of S.N. Narul vs. Union of India and others reported in (2011) 4 SCC 591 and in the case of Union of India and others vs. S.K. Kapoor reported in (2011) 4 SCC 589."
26. To the aforesaid, the State gave reply in para 63 of the counter affidavit, wherein it was stated as follows:-
"That the contents of para 67 of the writ petition are not admitted, hence denied. In reply thereto it is submitted that a detailed and proper reply of the same has already been given in the preceding paras of this affidavit."
27. Learned counsel for the respondent no.1-petitioner further submitted that the opinion of the Commission is mandatory and in case of non supply of copy of the opinion of the Commission, the order would be unsustainable, since the Commission is in Allahabad, hence cause of action had also arisen in Allahabad, and hence, the writ court had the territorial jurisdiction to hear and decide the matter.
28. He further submitted that Hon'ble Supreme Court in the matter of M/s Kusum Ingots and Alloys Ltd. vs. Union of India and another 16 has held that keeping in view of the expression used in Article 226 (2) of the Constitution of India indisputably even a small fraction of cause of action accrues within the jurisdiction of the High Court, the High Court will have jurisdiction in the matter. The same view has been taken by Hon'ble Supreme Court in the matter of Shanti Devi vs. Union of India 17.
29. Since, the Commission is in Allahabad and opinion of the Commission was sought before removal/dismissal of respondent no.1-petitioner from service, hence, part of cause of action is said to have arisen in Allahabad which falls within the jurisdiction of this Court, where the writ petition was preferred and decided.
30. Learned counsel for the respondent no.1-petitioner has further placed reliance on a judgments passed by Hon'ble Supreme Court in the matter of Amar Kumar vs. Central Administrative Tribunal, Lucknow and ors.18, Union of India and ors. vs. S.K. Kapoor 19 and S.N. Narula vs. Union of India and ors.20 REJOINDER SUBMISSIONS ON BEHALF OF STATE- APPELLANTS QUA BELATED OBJECTION WITH REGARD TO JURISDICTION AT APPELLATE STAGE
31. Shri Ansari, learned Standing Counsel has submitted that the issue with regard to jurisdiction of the Court to entertain the writ petition escaped from being raised before the learned Single Judge. The issue with regard to jurisdiction of the Court has been raised as Grounds 8 and 9 of the present special appeal. It is submitted that the appellant is entitled to raise the question of jurisdiction of the Court concerned even at the appellate stage, if not taken earlier, as the same goes to the root of the matter. It is submitted that the conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court. If the Court did not have jurisdiction to entertain a matter and went on to pass an order, then the same would amount to a nullity. Such a question of jurisdiction can be raised at any point of time. Reliance in this regard has been placed on the judgment in Jagmittar Singh Bhagat v. Dir. Health Services, Haryana & Ors.21, wherein Hon'ble Supreme Court held, "Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings."
32. He further submitted that even though the objection with regard to jurisdiction was not taken before learned Single Judge, the same would not give jurisdiction to entertain the writ petition and pass orders on it. Such an order would be without jurisdiction. He has relied upon the judgment in Pioneer Traders & Ors. v. Chief Controller of Imports and Exports Pondicherry 22, wherein the Supreme Court held, "Where an authority whether judicial or quasi-judicial has in law no jurisdiction to make an order the omission by a party to raise before the authority the relevant facts for deciding that question cannot clothe it with jurisdiction."
33. He submitted that the High Court in Universal Insulators and Ceramics Ltd. (Supra) clearly held that a belated objection to the jurisdiction would have no effect when the Court did not have any jurisdiction over the matter. It was further held that mere delay in raising objections will not validate the order, since, the order lacks patent jurisdiction. The Allahabad High Court did not have any jurisdiction to entertain the writ petition at Allahabad and, therefore, the order was without jurisdiction amounting to a nullity. Such a question of jurisdiction can be raised at any point of time. Since the appeal is the continuation of the writ petition, the said objection can be raised in the appellate forum.
ANALYSIS BY THE COURT
34. Heard rival submissions, perused the record and respectfully considered the judgments cited at Bar.
35. In the present matter, learned counsel for the State-appellants, during the course of hearing, have specifically submitted that they are pressing mainly on the ground qua territorial jurisdiction of the writ Court.
36. Hon'ble the Supreme Court in Jagmittar Singh Bhagat v. Dir. Health Services, Haryana & Ors. (Supra) has held that indisputably it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the root of the cause. Such an issue can be raised at any stage of the proceedings. The relevant para 7 of the said judgment is reproduced as under:-
"7. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. (Vide: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan & Ors., AIR 1978 SC 22; Natraj Studios (P) Ltd. v. Navrang Studios & Anr., AIR 1981 SC 537; and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213)."
37. Hon'ble the Supreme Court in Pioneer Traders & Ors. v. Chief Controller of Imports and Exports Pondicherry (Supra) has held that where an authority whether judicial or quasi-judicial has in law no jurisdiction to make an order, the omission by a party to raise before the authority the relevant facts for deciding that question cannot clothe it with jurisdiction. Relevant para 38 of the said judgment is reproduced as under:-
"38. These facts can however make no difference to the position in law that if in fact the importations were made on the basis of contracts concluded before November 1, 1954, the Sea Customs Act would not apply and the Collector or the Central Board of Revenue would have no jurisdiction to make any order of confiscation or penalty. Where an authority whether judicial or quasi- judicial has in law no jurisdiction to make an order the omission by a party to raise before the authority the relevant facts for deciding that question cannot clothe it with jurisdiction."
38. In Universal Insulators and Ceramics Ltd. (Supra), this Court has held that mere delay in raising objection will not validate the order, since the order lacks patent jurisdiction. The relevant paragraphs 140, 141 & 145 of the said judgment are reproduced as under:-
"140. In the present case, this issue is not at all involved, hence, we do not find that judgment in Dr. Manju Verma (supra) takes us any further on the question with which we are concerned. We, therefore, answer question (2) holding that since jurisdiction of cases to be entertained at Lucknow and Allahabad are distinct and exclusive over demarcated territories, it renders an order passed by Judges sitting at a place in a matter over which they have no jurisdiction, as nullity.
141. In this very context and answering question (2), we think that even question (3) can be considered simultaneously as to whether objection as to territorial jurisdiction can be raised after a long time i.e. after eight years in the case in hand, and whether appellant's objection should be declined by applying principle of Section 21 C.P.C. that such objection was not raised earlier.
145. When we look at aforesaid judgment and apply it to facts of present case, on the one hand, it appears that it is a simple case of objection relating to territorial jurisdiction, but we find that here objection is in respect of subject-matter also. Cases relating to winding up, upto the stage of Section 439 of Act, 1956, arisen in the area within jurisdiction of Judges sitting at Lucknow, are not within jurisdiction of Judges at Allahabad. Therefore, Judges sitting at Allahabad lack jurisdiction on subject-matter also since, after proceeding under Section 439 of Act, 1956, Judges at Allahabad will have jurisdiction but not earlier thereto. Therefore, winding up matter in the present case involves want of jurisdiction on subject-matter also to Judges sitting at Allahabad, hence, order under appeal, in our view, is without jurisdiction and cannot be sustained. In such a situation, belated objection will make no effect."
39. In this backdrop, we find that if the Court lacks inherent jurisdiction, merely participation of the other party does not amount to any acquiescence to the jurisdiction of the Court. We also find that the consultation with the Public Service Commission does not afford the petitioner a cause of action to prefer the writ petition at Allahabad.
40. At this stage, it is relevant to refer to the U.P. High Courts (Amalgamation) Order, 1948 23. In 1948, Governor General in exercise of powers under Section 229 of G.I. Act, 1935 issued Amalgamation Order published in Gazette of Govt. of India (Extraordinary) dated 19.07.1948. It provided that it shall come into force from the date of publication i.e. 19.07.1948. In Article/Clause 2, it defines two terms i.e. "appointed day" and "existing High Courts" and same read as under :
"2.(1) In this order-
"appointed day" means the twenty-sixth day of July, 1948; and "existing High Courts" means the High Courts referred to in Section 219 of the Act, as the High Court in Allahabad and the Chief Court in Oudh.
(2) The Interpretation Act, 1889, applies for the interpretation of this Order as it applies for the interpretation of an Act of Parliament."
(emphasis added)
41. Article/Clause 3 of U. P. High Courts (Amalgamation) Order, 1948, provided that from appointed day i.e. 26.07.1948, High Court in Allahabad and Chief Court in Oudh/Avadh shall be amalgamated and shall constitute one High Court in the name of "High Court of Judicature at Allahabad", In subsequent part of Order, 1948 it has been referred as "New High Court". Article/Clause (3) is reproduced hereinunder :
"3. As from the appointed day, the High Court in Allahabad and the Chief Court in Oudh shall be amalgamated and shall constitute one High Court by the name of the High Court of Judicature at Allahabad (hereinafter referred to as "the new High Court")."
(emphasis added)
42. All the existing Judges, whether Permanent or Additional and Acting Judges in the existing High Court, became Judges in the same capacity of "New High Court". Article/Clause 5 provided that the person who, immediately before appointed day, is the Chief Justice of High Court in Allahabad shall be the Chief Justice of "New High Court", meaning thereby Chief Justice of High Court in Allahabad became Chief Justice of Amalgamated High Court i.e. "New High Court". Article/Clause 5 (2) provided the order of other Judges i.e. Chief Judge of High Court in Oudh/Avadh, Puisne Judges of High Court in Allahabad and Puisne Judges of Chief Court in Oudh/Avadh and additional and acting Judges. It says that firstly, the former Chief Judge of High Court in Oudh/Avadh and former Puisne Judges of the High Court in Allahabad, shall be placed according to the priority of their respective appointments in their capacity and thereafter, former Puisne Judges of Chief Court in Oudh/Avadh according to the priority of their respective appointments shall be placed.
43. Then comes Article/Clause 14 of Order, 1948, which prescribes for sitting of "New High Court" and it reads as under :
"14. The new High Court and the Judges and Division Courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces, appoint :
Provided that unless Governor of the United Provinces with the concurrence of the Chief Justice, otherwise directs, such Judges of the new High Court, not less than two in nubmer, as the Chief Justice, may, from time to time nominate, shall sit at Lucknow, in order to exercise in respect of cases arising in such areas in Oudh, as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court.
Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad."
(emphasis added)
44. We also find that the findings given by the Full Bench of this Court in Nirmal Dass Kathuria v. State Transport (Appellate) Tribunal, U.P., Lucknow (Supra) qua the jurisdiction of the High Court have been affirmed by Hon'ble Apex Court in Nasiruddin (Supra). The relevant paragraphs of the said judgment have already been quoted earlier.
CONCLUSION
45. In view of the above discussion and settled law on the subject, we find that the dispute in the writ petition clearly falls within the territorial jurisdiction of the Lucknow Bench of this Court. We are of the considered opinion that the writ petition was wrongly entertained and decided by the writ Court. Therefore, the impugned judgment passed by learned Single Judge is liable to be set aside and the same is accordingly set aside.
46. The special appeal is accordingly allowed with liberty to respondent no.1-petitioner to file the writ petition, if so advised, at Lucknow Bench of this Court for appropriate remedy.
Order date : 07.08.2024 Manish Himwan/SP/